In re Vincent M., H030258.

Citation150 Cal.App.4th 1247,59 Cal.Rptr.3d 321
Decision Date17 May 2007
Docket NumberNo. H030258.,H030258.
CourtCalifornia Court of Appeals
PartiesIn re VINCENT M., a Person Coming Under the Juvenile Court Law. Santa Cruz Human Resources Agency, Plaintiff and Respondent, v. Paz M., et al., Defendants and Appellants.

Dana McRae, County Counsel, Jane M. Scott, Assistant County Counsel, Shannon Sullivan, Assistant County Counsel, County of Santa Cruz, for Respondent.

Carol Koenig Under Appointment for the Court of Appeal, for Appellant Paz M.

Janet G. Sherwood, Corte Madera, Under Appointment by the Court of Appeal, for Appellant Vincent M., Sr.

MIHARA, J.

Appellants Paz M. (mother) and Vincent M., Sr. (father) are the parents of Vincent M., Jr. (Vincent). Two-year-old Vincent was detained in July 2004. At that time, he was living with mother in a residential substance abuse treatment program in which she was participating. Father was in prison, where he had been throughout Vincent's life. Mother immediately notified the Santa Cruz County Human Resources Agency (the Agency) of her Sioux and Chippewa Indian heritage and provided her tribal enrollment number. The juvenile court took jurisdiction over Vincent, removed Vincent from mother's custody, denied mother reunification services based on her prior failures to reunify with her other seven children, and granted father reunification services.

Both parents appealed from the dispositional order and, among other things, attacked the adequacy of the Agency's compliance with the notice provisions of the Indian Child Welfare Act (ICWA). This court reversed the juvenile court's order solely due to lack of compliance with the ICWA's notice requirements and remanded for compliance with those requirements. After remittitur, with a Welfare and Institutions Code section1 366.26 hearing pending, new notices were sent, and no tribe indicated that Vincent was a member or eligible for membership. Subsequently, in advance of the section 366.26 hearing, the Turtle Mountain Band of Chippewa Indians (Turtle Mountain Chippewa) and the Bureau of Indian Affairs (BIA) certified that Vincent was a member of the Turtle Mountain Chippewa tribe. The tribe sought a transfer of jurisdiction to its tribal court, and it sought to intervene in the juvenile court proceedings. The juvenile court, utilizing the "existing Indian family doctrine," found that the ICWA did not apply. Without applying the substantive provisions of the ICWA, the court terminated parental rights and selected a permanent plan of adoption.

The parents again appeal. They claim that the juvenile court erred in utilizing the "existing Indian family" doctrine to support its conclusion that the substantive provisions of the ICWA did not apply here. We conclude that the "existing Indian family" doctrine is not valid, and that the juvenile court erred in utilizing it to support its conclusion that the ICWA did not apply to Vincent. We reverse and remand for further proceedings in compliance with the ICWA's substantive requirements.

I. Background

Mother is a long-time heroin addict. Before Vincent's birth, mother had given birth to four drug-addicted children. These children, and her other children, had been removed from her custody, and she had failed to reunify with them. In 2000 and 2001, mother participated in an Indian substance abuse treatment program in San Francisco. In June 2002, when she was six months pregnant with Vincent, she was arrested in Watsonville for being under the influence of heroin. She admitted that she had used heroin that day. Father was in state prison continuously from 1991 to 2004. Vincent was apparently conceived during a conjugal visit.

Vincent was born in September 2002 in Wyoming. On June 5, 2004, mother was pushing Vincent in his stroller in a busy area of Santa Cruz when she was detained by a police officer for possession of an open container of alcohol. Heroin was found in her pocket, and she admitted that she had used heroin earlier that day and was feeling its effects. Mother asserted that she had recently relapsed after being "clean and sober for three years." Mother's local relative took Vincent to stay with her while mother was in custody, and mother entered a residential substance abuse treatment program after her release from custody. Vincent resided with mother during this program, and she appeared to be attentive to him and responsive to his needs. On July 22, 2004, about a month after mother entered the program, Vincent was detained by the Agency. Mother immediately notified the Agency that she was an enrolled member of an Indian tribe and provided her enrollment number. She identified her Indian heritage as Sioux and Chippewa.

On July 26, 2004, the Agency filed a petition alleging that Vincent came within the jurisdiction of the juvenile court under section 300, subdivisions (b) and (j). The Agency sent out inadequate ICWA notices addressed to the Spirit Lake Sioux tribe, the Turtle Mountain Chippewa tribe and the BIA. Vincent was placed in a foster/adoptive home in August 2004. In August 2004, the Turtle Mountain Chippewa tribe in North Dakota notified the Agency that Vincent was neither enrolled nor eligible for enrollment.

At the October 5, 2004 jurisdictional/dispositional hearing, the court found the allegations of the petition true, took jurisdiction, and removed Vincent from mother's custody. Father, who was still in prison but due to be released very shortly, was granted reunification services, but mother was denied services due to her failure to reunify with her other children and her failure to make reasonable efforts to treat the substance abuse problem that had led to her prior failures to reunify. Mother testified at the hearing that she had lived with her paternal grandfather on a North Dakota Indian reservation in 2001 and 2002. The court found that the ICWA did not apply, and Vincent was placed in foster care. Both mother and father appealed to this court from the juvenile court's dispositional order.

In March 2005, while the parents' appeal was pending, the Agency recommended that the court terminate father's reunification services and schedule a section 366.26 hearing. Father had failed to make significant progress on his case plan. At the March 2005 six-month review hearing, the court found that the ICWA did not apply and terminated reunification services. It set a section 366.26 hearing for July 22, 2005. The hearing was subsequently continued at the Agency's behest due to the pendency of the appeal. By this point, father was incarcerated in Oregon.

In September 2005, this court filed its opinion in the parents' appeal. This court rejected most of their contentions challenging the jurisdictional and dispositional orders, but it found meritorious their contentions that the juvenile court had erred in implicitly finding that the ICWA notices were adequate. This court reversed and remanded for compliance with the ICWA's notice provisions. Pending finality of this court's decision, the section 366.26 hearing was rescheduled for January 2006. The Agency was recommending termination of parental rights and a permanent plan of adoption.

On November 17, 2005, the Agency sent notices to numerous Indian tribes and the BIA of the scheduled January 2006 hearing. The tribes included the Spirit Lake Sioux (Spirit Lake) tribe in North Dakota and the Turtle Mountain Chippewa tribe in North Dakota. These notices provided mother's Spirit Lake tribe enrollment number and stated that mother had been treated at an Indian substance abuse clinic in 2003. The notices contained some misinformation. Mother's Turtle Mountain Chippewa maternal great grandmother was identified as "Mabel Ironbear Smith Bruns" instead of "Mabel Ironbear Smith Burns." The notices stated that mother had lived "on reservation in Arizona during pregnency [sic]" in "2001 & 2002" and "1993," when she had actually lived on Wyoming and North Dakota reservations.

In November 2005, Frank Myrick, the Spirit Lake tribe's ICWA director, contacted the Agency by telephone and stated that mother and Vincent were both eligible for membership. Because the Spirit Lake tribe had previously stated that Vincent was not eligible for membership, the Agency requested written confirmation. Written confirmation was not forthcoming.

Vincent's foster parents, with whom Vincent had been living continuously since August 2004, were granted de facto parent status in December 2005. This court's decision in the parents' appeal became final in late December 2005.

On January 13, 2006, the juvenile court held a hearing at which it declined to make ICWA findings due to the Spirit Lake tribe's inconsistent responses. The court continued the matter for clarification of Vincent's status. On January 27, 2006, the Agency filed an "ICWA UPDATE." The Agency reported that it had received two more telephone calls from Myrick inquiring as to why he had not yet received anything from the Agency. When Myrick was told that the Agency needed confirmation in writing of Vincent's status, Myrick complained about the Agency "putting up so many `roadblocks' for this case...."

At a January 27, 2006 hearing, the court found that the ICWA did not apply. The section 366.26 hearing was rescheduled for February 17, 2006. On February 15, 2006, mother's attorney filed a copy of a letter from the Spirit Lake tribe stating that mother was a member of the tribe and Vincent was "a descendant of the Spirit Lake Sioux Tribe" but "not a member" of the tribe. The section 366.26 hearing was subsequently rescheduled for March 16, 2006.

The social worker's report for the section 366.26 hearing stated that the ICWA "may apply." Mother's uncle, who lived on the Spirit Lake reservation in North Dakota, had requested that he be considered as a placement for Vincent, and the social worker had requested an ICPC2 assessment of the uncle. The social worker expressed the belief that "it would definitely not be in...

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2 books & journal articles
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