Kahlen W., In re
| Citation | 233 Cal.App.3d 1414,285 Cal.Rptr. 507 |
| Decision Date | 06 September 1991 |
| Docket Number | Nos. F015175,F015499,s. F015175 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re KAHLEN W., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. KATHLEEN D. et al., Defendants and Appellants. KATHLEEN D. et al., Petitioners, v. The SUPERIOR COURT of Stanislaus County, Respondent; STANISLAUS COUNTY DEPARTMENT OF SOCIAL SERVICES et al., Real Parties in Interest. |
ORIGINAL PROCEEDINGS AND APPEAL from a judgment of the Superior Court of Stanislaus County. John P. Hagan, Juvenile Court Referee.
This case is a consolidated appeal and writ from an order of the Stanislaus County Juvenile Court setting a Welfare and Institutions Code section 366.26 hearing to determine whether parental rights should be terminated. Kahlen W., the minor daughter of Kathleen D. and Stephen W., is the subject of the controversy. Kahlen was removed from her parents' care on July 1, 1989. Stanislaus County Department of Social Services (DSS) filed a petition on July 5, 1989, alleging that Kahlen, then age 19 months, came within the provisions of Welfare and Institutions Code section 300, subdivision (b).
The minor was ordered detained July 6, 1989. The parents pleaded no contest to the petition on July 20, 1989, and the matter was set for disposition. On August 9, 1989, Kahlen was adjudged a dependent child and placed in the home of her adult half-sister. A reunification plan was approved. Neither parent was present at the disposition hearing. A six-month review hearing was held on January 5, 1990, at which the court found reunification efforts to date had failed. The dispositional orders were renewed.
On July 2, 1990, a second six-month review hearing was held at which the court again renewed its earlier orders, again found reunification efforts had failed and set the matter for a review and permanent planning hearing under Welfare and Institutions Code section 366.21 for September 21, 1990. At the September hearing, Kathleen D. informed the court she was an American Indian (of the Miwok Tribe) and thus Kahlen was likely covered by the provisions of the Indian Child Welfare Act of 1978 (the Act), 25 United States Code Annotated section 1901 et seq. 1
The court continued the hearing to December 11, 1990, and ordered DSS to contact the tribe and determine the child's status. On December 11, the court denied Kathleen D.'s request for a further continuance. After hearing testimony, the court continued Kahlen as a dependent child, ordered that Kahlen remain in her then current placement with fost-adopt parents, found reunification efforts unsuccessful, terminated reunification services, limited visitation, and set a Welfare and Institutions Code section 366.26 hearing for March 19, 1991, to determine whether parental rights should be terminated.
Kathleen D.'s request for rehearing was denied on December 20, 1990. The appeals followed. Stephen W. filed his appeal on December 28, 1990, and Kathleen D. filed hers on February 14, 1991. On February 22 and March 4, 1991, DSS filed its motions to dismiss the appeals contending the December 11 order is nonappealable. A ruling on the motions was ordered deferred until consideration on the merits by order dated May 9, 1991.
On March 7, 1991, Kathleen D. filed a petition for writ of mandate and request for stay of further proceedings (F015499). This court declined to issue a writ of supersedeas on March 7. On April 8, Kathleen D. filed a request for stay of the permanency planning hearing, which this court granted on May 2. Also on May 2, this court ordered the petition for writ and the appeal consolidated. On May 13, Stephen W. filed his petition for writ of mandate. By order dated May 22, a ruling on the petition was deferred until resolution of the previously filed actions.
On July 1, 1989, Kahlen was taken into police custody because her parents left her with a mentally deficient stranger and did not return. Kahlen was placed with her half-sister Kondi Olivera on July 7. Kondi is married and has twin boys close in age to Kahlen. Kahlen stayed with Kondi for several months. Soon it became apparent reunification would most likely not be successful within the statutory 18-month period and DSS began to look for an appropriate long-term placement for Kahlen. DSS considered Kahlen to be highly adoptable and adoption to be the preferred disposition.
After serious consideration, Kondi decided she could not provide Kahlen with the long-term family commitment she needed. Kondi could not be Kahlen's mother, and although she cared for her sister, she could not parent Kahlen as her own child. Kondi was also not raised by Kathleen D.
With the help of Kondi and other maternal relatives, Kahlen was placed in May 1990 with a distant relative who was willing to adopt Kahlen if that were to become necessary. Kahlen adjusted well and lived with this family for a period of four months. In September 1990, DSS informed the court this family was experiencing a marital breakup and could no longer care for Kahlen. It was necessary to move Kahlen immediately. No other members of either parent's family came forward and Kahlen was placed in a nonrelative fost-adopt family. Kahlen would have been placed with a relative had one come forward. Three different relatives contacted DSS about caring for Kahlen after she was placed in the fost-adopt home.
Kathleen D. has a serious alcohol and substance abuse problem. During Kahlen's dependency, Kathleen D. has not complied with the terms of the reunification plan. Her abuse of alcohol and drugs has continued. She appeared at the December 11, 1990, hearing under the influence of alcohol. She was incarcerated for heroin use. Although she attended a 28-day detox program, she failed to participate in an out-patient substance abuse program as required under the reunification plan. Kathleen D. failed to maintain regular contact with Kahlen or to provide a home for Kahlen.
Stephen W. also has an alcohol and substance abuse problem as well as a long history of incarceration. During Kahlen's dependency, he has been incarcerated from November 1989 until the present. His scheduled release time is June 1992. Initially, Stephen W. did not maintain regular contact with Kahlen and his whereabouts were unknown to DSS. After incarceration, however, he wrote to Kahlen regularly, contacted Kahlen or her caretaker by phone, and visited with Kahlen on several occasions after the court ordered DSS to facilitate the visits. He has faithfully attended substance abuse counseling available in prison and arranged to have counseling with the prison psychologist in hopes of complying with the parenting/training requirement in the reunification plan. Parenting classes were not available to him in prison. He is, of course, unable to provide a home for Kahlen while incarcerated.
At the September 21, 1990, hearing, Kathleen D. stated for the first time that she was a member of the Miwok Tribe. The court ordered DSS to contact the Miwok Tribe pursuant to the Act. DSS requested that Kathleen D. provide DSS with her Indian roll number. She did not do so. DSS contacted the Bureau of Indian Affairs (Bureau) and was given the name of the three bands of the Miwok Tribe in the area. Social worker Kelli Opdyke testified she called the Shingle Springs Band and was told she needed a roll number in order to determine to what band the family belonged. Opdyke also talked to a representative of the Tuolumne Rancheria Band who confirmed a roll number was needed and said the Miwoks would not get involved unless they were requested to do so by the parent.
Both parents told Opdyke they had requested tribe intervention. Opdyke again talked to the council of the Tuolumne Band on December 10, 1990, and was told the tribe needed certain documents before it could determine if Kahlen was a member of the tribe. She was also told it would be at least 45 days before the tribe would meet to consider the application. At the December 11, 1990, hearing Kathleen D. requested a continuance in order to wait for the tribe's determination. The request was denied.
At oral argument, respondent conceded that Kahlen will likely be determined to be a member of the Miwok Tribe.
I. MOTIONS TO DISMISS **
II. WAS PROPER NOTICE GIVEN?
The pivotal issue raised is whether proper notice was given to the Miwok Tribe in accordance with the Act. All appellants/petitioners contend DSS failed to comply with the Act's notice provisions.
In passing the Act, Congress identified two important, and sometimes independent, policies. The first, to protect the interests of the Indian child. The second, to promote the stability and security of Indian tribes and families. (In re Crystal K. (1990) 226 Cal.App.3d 655, 661, 276 Cal.Rptr. 619; In re Junious M. (1983) 144 Cal.App.3d 786, 789, 193 Cal.Rptr. 40; see also Matter of Appeal in Pima County, etc. (1981) 130 Ariz. 202, 203, 635 P.2d 187, 188.) The Act sets forth minimum federal standards, both substantive and procedural, for protecting these identified policies. (Matter of Appeal in Pima County, etc., supra, 130 Ariz. at p. 203, 635 P.2d at p. 188.)
Section 1912, subdivision (a) of the Act requires notice to the parents, Indian custodian, and tribe by registered mail return receipt requested of any child custody proceedings and of the rights afforded to each by the Act. (See § 1911, subds. (b), (c).) 2 Notice is a key component of the congressional goal...
To continue reading
Request your trial
-
Kern Cnty. Dep't of Human Servs. v. M.H. (In re K.H.)
...1206, 1210, 128 Cal.Rptr.2d 12 ; accord, In re Desiree F. (2000) 83 Cal.App.4th 460, 469, 99 Cal.Rptr.2d 688 ; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421, 285 Cal.Rptr. 507 ), and "[w]hen ICWA applies, the Indian tribe has a right to intervene in or exercise jurisdiction over the proc......
-
In re Miguel E.
...121 Cal.Rptr.2d 820.) The notice requirement applies even if the Indian status of the child is uncertain. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422, 285 Cal.Rptr. 507.) The showing required to trigger the statutory notice provisions is minimal; it is less than the showing needed to ......
-
In Re The Welfare Of L.N.B.-l.
...to assert its rights under ICWA. In re Welfare of M.S.S., 86 Wash.App. 127, 134, 936 P.2d 36 (1997) (citing In re Kahlen W., 233 Cal.App.3d 1414, 285 Cal.Rptr. 507, 511 (1991)). Under ICWA, the Indian child's tribe may intervene at any point in termination proceedings involving the child in......
-
In re Antoinette S.
...error. The very fact that notice problems are sometimes deemed harmless in ICWA cases (see, e.g., In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424, 285 Cal.Rptr. 507) indicates such error is not jurisdictional. To the contrary, a finding of jurisdictional error would logically precede and p......