Larissa G., In re

• Decision Date: 07 March 1996
• Docket Number: Nos. D024180,D024517,s. D024180
• Citation: 51 Cal.Rptr.2d 16,43 Cal.App.4th 505
• Parties: , 96 Cal. Daily Op. Serv. 1741, 96 Daily Journal D.A.R. 2904 In re LARISSA G. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. GINA L., Defendant and Appellant; Navajo Nation, Intervener and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 16

51 Cal.Rptr.2d 16

43 Cal.App.4th 505, 96 Cal. Daily Op. Serv. 1741,

96 Daily Journal D.A.R. 2904

In re LARISSA G. et al., Persons Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. GINA L., Defendant and Appellant;

Navajo Nation, Intervener and Respondent.

Nos. D024180, D024517.

Court of Appeal, Fourth District, Division 1, California.

March 7, 1996.

Certified for Partial Publication ¹

[43 Cal.App.4th 507] Joseph T. Tavano, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Lloyd M. Harmon, Jr., County Counsel, John J. Sansone, Acting County Counsel, Susan Strom, Chief Deputy County Counsel and Gary Seiser, Deputy County Counsel, for Plaintiff and Respondent.

California Indian Legal Services and James E. Cohen and Nancy S. Rank, Escondido, for Intervener and Respondent.

Christopher Blake, San Diego, upon the request of the Court of Appeal, for Minors.

INTRODUCTION

KREMER, Presiding Justice.

In this dependency case, Gina L. appeals the juvenile court's six-month review order suspending her visits with her minor children Larissa and Michael G. and its subsequent order transferring jurisdiction to the Navajo Nation (Nation) pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). ² As to the first order, Gina contends there was insufficient evidence that continuing visitation would be detrimental to the children, the court improperly vested discretion regarding resumption of visits in the Department of Social Services (DSS) and a therapist, and the court erroneously required her to participate in a substance abuse program and testing. We agree there was insufficient evidence to support the suspension of visits and reverse and remand for a hearing on this issue. As to the second order, Gina contends her objection and good cause precluded the transfer of jurisdiction, the court erred in ordering the children placed with paternal relatives on a reservation in Arizona, and it erred in finding that the ICWA applied before determining paternity. We conclude that while the court did not err in placing the children in Arizona and the contention regarding application of the ICWA is moot, the court erred in transferring jurisdiction to the Nation. We accordingly reverse the transfer order.

I BACKGROUND

In addition to Larissa and Michael, Gina has five other children. The youngest three were declared dependent due to physical and emotional abuse and are in confidential placements with no reunification services ordered. Gina was convicted of and served prison time for child abuse. She was on probation for child abuse when this case was initiated. Her primary parenting problem was apparently an inability to control her anger.

Twins Larissa and Michael were born prematurely on August 23, 1994, to Gina and Clyde G., a registered Navajo Indian. Dependency petitions were filed on September 6, alleging abuse and neglect of the twins' half brother, Gina's son Rick L. Amended petitions filed on September 30 added allegations that Gina and Clyde engaged in violent confrontations, Clyde drank to excess, and Gina abused her daughter Megan L. and her

                husband's grandson Richard J. 3  On October 17, Gina submitted on the count alleged in the original petition.  The court dismissed the remaining counts with an agreement it could consider them in rendering a dispositional order.  Larissa and Michael were detained and then placed in foster care upon their release from the hospital.  Both children had medical problems and were developmentally delayed
                

II

SIX-MONTH REVIEW

According to the reports dated June and July 1995 that DSS prepared for the six-month review, Gina had been "very sporadic regarding compliance with her reunification plan." Her therapist said that she had "deteriorated substantially" and behaved erratically. Gina's meetings with the therapist had been infrequent and she had not attended therapy since April 1, 1995. She had threatened the therapist and the social worker and frequently failed to show up for visits with the twins. When Gina did visit, her interaction with the children varied from failing to remove them from their strollers or carseats to holding them and changing their diapers. Gina's relationship with Clyde was volatile and included fights for which the police were summoned. In December 1994, Gina spent a week in jail for hitting Clyde with a hammer. Gina and Clyde screamed at each other at a May 17, 1995, visit with the minors. Gina had not benefited from an anger management class.

At the July 19, 1995, six-month review, the court ordered that Gina's visits would commence when she demonstrated progress in her reunification plan, particularly therapy, and that if she failed to attend therapy regularly or the therapist felt it necessary, Gina would be required to take part in a 12-step program and substance abuse treatment and submit to chemical testing.

III

VISITATION ^*

IV

ICWA

On September 6, 1995, the court heard the Nation's request for a transfer of jurisdiction ⁵ and DSS's request for a change of placement to the home of the paternal aunt and uncle on the Navajo reservation in Arizona. Gina opposed the motions. The court concluded that Gina lacked veto power over the transfer decision, transferred jurisdiction, and ordered the children placed with the aunt and uncle.

Contentions and Discussion

Gina contends that her objection to transfer of jurisdiction to the Nation operated as a veto and good cause precluded the transfer; the court erred in ordering the children placed with the relatives in Arizona, which made visitation difficult and thus jeopardized reunification; and the court erred in finding that the ICWA applied before determining paternity. We conclude that Gina had veto power over the transfer but that the placement order was proper, and that the remaining contentions are moot.

Transfer of Jurisdiction

Section 1911(b) provides in pertinent part:

"In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: ..."

The language of section 1911(b) appears plainly to give a parent the right to veto a transfer of jurisdiction. To determine Guidelines for aid in interpreting the ICWA, promulgated by the Bureau of Indian Affairs of the Department of the Interior, interpret this statutory language as follows:

whether such a reading is proper, we examine administrative guidelines regarding the section, cases from other jurisdictions interpreting it and the policy underlying the section.

"... Upon receipt of a petition to transfer by a parent, Indian custodian or the Indian child's tribe, the court must transfer unless either parent objects to such transfer, the tribal court declines jurisdiction, or the court determines that good cause to the contrary exists for denying the transfer.

"...

"Since the Act gives the parents and the tribal court of the Indian child's tribe an absolute veto over transfers, there is no need for any adversary proceedings if the parents or the tribal court opposes transfer." (Guidelines for State Courts, Indian Child Custody Proceedings, 44 Fed.Reg. 67584, 67590-67591 (Nov. 26, 1979).)

While these guidelines were not intended to have binding legislative effect, their construction of the ICWA is entitled to great weight. (Id. at p. 67584; In re Junious M. (1983) 144 Cal.App.3d 786, 792, fn. 7, 193 Cal.Rptr. 40.)

Cases from other jurisdictions interpret section 1911(b) to confer on the parent veto power over transfer of jurisdiction. Matter of Adoption of Baby Boy L. (1982) 231 Kan. 199, 643 P.2d 168, concerns adoption of a child never domiciled in an Indian community born to a non-Indian mother and an Indian father. The court stated:

"A careful study of the legislative history behind the Act and the Act itself discloses that the overriding concern of Congress and the proponents of the Act was the maintenance of the family and tribal relationships existing in Indian homes and to set minimum standards for the removal of Indian children from their existing Indian environment. It was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother." (Matter of Adoption of Baby Boy L., supra, 643 P.2d at pp. 175-176.)

In Matter of S.Z. (S.D.1982) 325 N.W.2d 53 the court considered parental rights termination proceedings involving the child of an Indian mother and non-Indian father not living on a reservation. The tribe was given proper notice and intervened. The parents objected to transfer to a tribal court. The Supreme Court of South Dakota reversed the transfer order in light of section 1911(b) holding: "This statute provides that objection by either parent will keep jurisdiction in the state court." (Matter of S.Z., supra, 325 N.W.2d at p. 56.) In Brown on Behalf of Brown v. Rice (D.Kan.1991) 760 F.Supp. 1459, the district court concluded a tribal court's exercise of jurisdiction over part Indian children who had never lived on a reservation could not be pursuant to a transfer from the state court since:

"... if a transfer was intended, the transfer was not 'pursuant to law.' Under the Indian Child Welfare Act, 25 U.S.C. 1911(b), a case involving children not domiciled on the reservation cannot be transferred from state court without the consent of the parents." (Brown on Behalf of Brown v. Rice, supra, 760 F.Supp. at p. 1463, fn. omitted.)

Finally, though...