Del Norte Cnty. Dep't of Health & Soc. Servs. v. Patricia M. (In re Autumn K.)

• Decision Date: 20 November 2013
• Docket Number: A136586
• Citation: 164 Cal.Rptr.3d 720,221 Cal.App.4th 674
• Parties: IN RE AUTUMN K., a Person Coming Under the Juvenile Court Law. Del Norte County Department of Health & Social Services, Plaintiff and Respondent, v. Patricia M., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

221 Cal.App.4th 674

164 Cal.Rptr.3d 720

IN RE AUTUMN K., a Person Coming Under the Juvenile Court Law.Del Norte County Department of Health & Social Services, Plaintiff and Respondent,

v.Patricia M., Defendant and Appellant.

A136586

Court of Appeal, First District, Division 2, California.

Filed November 20, 2013

See 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 535.

Del Norte County Superior Court, Honorable John R. Morrison (Del Norte County Super. Ct. No. JVSQ11-6026)

Attorney for Defendant and Appellant Mother: Suzanne Davidson, Glendale, under appointment by the Court of Appeal

Attorney for Defendant and Appellant Father: Elysa J. Perry, Santa Rosa, under appointment by the Court of Appeal

Attorney for Yurok Tribe as Amicus Curiae in Support of Appellants: Charles N. Henry, Klamath

Attorneys for Plaintiff and Respondent: Gretchen Stuhr, County Counsel, Elizabeth Cable, Deputy County Counsel

Richman, J.

This appeal challenges an order terminating the parental rights of mother Patricia M. and father Bryan K. to their daughter Autumn K. and placing the child for adoption. Because Autumn was of Chickasaw descent and thus an Indian child, the dependency proceeding fell within the provisions of the Indian Child Welfare Act, 25 U.S.C. section 1901, et seq. (ICWA). As such, there were particular substantive requirements with which the juvenile court was obligated to comply when selecting a permanent plan for Autumn. Most significantly, absent good cause to deviate from this requirement, ICWA obligated the court to place Autumn with a member of her extended family, a member of her tribe, or another Indian family. (25 U.S.C. § 1915.) Here, there were two potentially viable, ICWA-compliant placements: maternal grandmother Teresa, who had custody of Autumn's six siblings and had sought placement of Autumn from the outset of the dependency case, and maternal aunt Beatrice. Despite that, the court, relying on a conclusion by respondent Del Norte County Health and Social Services Department (Department) that Autumn could not be placed in her grandparents' home, placed Autumn in a non-Indian home with a distant relative.

On appeal, the parents contend the juvenile court erred for a multitude of reasons. We agree with one argument that necessitates reversal: the Department erred in determining maternal grandfather José had a nonexemptible criminal conviction such that Autumn could not be placed with her grandparents. We conclude two different statutory provisions instructed that the conviction was in fact exemptible, and the Department was thus obligated to evaluate the request for an exemption on its merits. We therefore reverse.

I. BACKGROUND¹

Autumn's Birth and the Indian Custodian Designation Forms

Autumn was born on February 23, 2011, in Crescent City. She was the seventh child born to Patricia and the only one fathered by Bryan. Due to Patricia's long history of substance abuse, her six other children lived with her mother, Teresa, under legal guardianships through the probate department. According to Patricia, before Autumn's birth and again immediately after, she executed an Indian custodian form designating Teresa as Autumn's Indian custodian. The form was entitled “Reighini Rancheria/Social Service Designation of Indian Custodian (25 U.S.C. § 1901, et seq).” As provided in the form, Patricia transferred the care and custody of her daughter to Teresa, designating her as Autumn's Indian custodian. Teresa also signed the forms, accepting the designation. According to Patricia, Bryan was present both times the form was signed.

Autumn's Initial Removal From Her Parents' Care

Although Patricia tested positive for amphetamines and methamphetamines on multiple occasions during her pregnancy, both she and Autumn tested negative for drugs at the time of Autumn's birth. Nevertheless, a social worker from the Department appeared at the hospital and removed Autumn from Patricia's and Bryan's care, placing her in protective custody. According to both Patricia and Teresa, they attempted to give the Indian custodian forms to the social worker to prevent Autumn's removal, but the social worker would not take them.

Five days after Autumn's birth, the Department filed a Welfare and Institution Code section 300² petition alleging that the infant came within the juvenile court's jurisdiction pursuant to subdivisions (b) and (j) due to her parents' substance abuse problems. Shortly thereafter, Patricia signed a parental notification of Indian status, representing that she was a member of the Chickasaw Nation. Notice of the dependency proceeding was sent to the Chickasaw Nation as required by ICWA.³

Autumn's Return to Patricia's and Bryan's Care

At a detention hearing a week after Autumn's removal, the court ordered her returned to her parents' care on the conditions they reside in the home of Teresa and José and abstain from drug use. The family was provided family maintenance services.

Detention and Jurisdiction

On April 22, 2011, the Department filed a section 387 petition alleging that both parents had recently tested positive for drugs. A detention report filed the same day recommended Autumn be detained. At a detention hearing, the court adopted the Department's recommendation, and Autumn was placed in foster care. At the hearing, Teresa addressed the court, asking why Autumn could not remain in her home. The transcript of the hearing is not in the record, and the minutes of the hearing do not reflect the court's answer. It is suggested elsewhere, however, the court was concerned about Teresa's ability to adequately care for her newborn granddaughter given that she was already caring for Patricia's six other children, as well as her own adult son who was suffering from Leukemia.

At a jurisdictional hearing the following week, the parents pleaded no contest to the allegations in the supplemental petition, and the matter was continued for disposition. The possibility of overnight visitation with Teresa was discussed, but the social worker believed it was too early, and the court agreed.

At some point subsequent to the jurisdictional hearing, Teresa submitted an application for placement of Autumn. The Department denied it by letter dated May 25, 2011. The reason for the rejection was given as follows: “The Department does not feel that you have the ability and capacity to provide the care and supervision to meet the child's needs at this time.”

Disposition and Family Reunification Services

A contested dispositional hearing was held on June 17, 2011. At the hearing, Teresa submitted multiple letters attesting to the skill and compassion with which she cared for her grandchildren. In one, the Del Norte High School assistant principal described how involved Teresa had been in the schooling of her other grandchildren, attending important academic meetings concerning the children, making sure they were involved in local sports, and responding to discipline issues. In another, the Crescent Elk Middle School dean of students represented that Teresa had “advocated strongly for her grand-children, exhibiting a professional and open-minded approach to issues and discussions regarding their education. She genuinely has their best interest in mind at all times, and places them at the forefront of her life.” According to the dean, “She stands up for them when necessary, and holds them accountable as well.” He described what a “positive influence” Teresa had been on her grandchildren and represented that she provided them “with a safe, comfortable, and positive household environment.” The Joe Hamilton Elementary School principal described how whenever one of the younger grandchildren, who was a special education student, had a bad day, Teresa would quickly respond to calls from the school and calmly speak to her grandson about the issues he was having. She was, according to the principal, “able to reason with him in a supportive way that often gets him back on track and ready to return to the classroom.”

Included in the packet of letters was one from Teresa herself, responding to the May 25 letter rejecting her request for placement. According to Teresa, she had been told the denial was based on an incident that happened in 2006. She advised the Department: “That incident was cleared up and I was not found at fault. Most of my grandchildren have mental health needs and as a concerned grandparent I took it upon myself to take a class from Del Norte County Child Care Council: The Incredible Years. I completed and received a certificate for 24 hours of participation, this class lasted two weeks. This class gave me a better understanding of ADHD issues and concerns.” She asked the Department consider the goal of ICWA to “ ‘protect the best interest of Indian children and to promote the stability and security of Indian Tribes and families.’ ” In closing, she noted that her son had cancer and, although she had been taking care of him, he was in remission, which would allow her to spend more time with her grandchildren.⁴

At the hearing, a representative of the Chickasaw Nation advised that the tribe was recommending placement with Teresa. The Department represented that it supported any placement recommendation by the tribe. Despite this, the court voiced concerns regarding placement with Teresa, ultimately ordering that Autumn was to remain in her foster care placement while the Department provided family reunification services to both parents. The matter was continued for a six month review.

Autumn's Placement With Amanda and Caleb C.

In September 2011, Patricia developed concerns about the foster home in which Autumn had been living since her April detention. She asked the Department to place Autumn with Amanda C. and Caleb C. (collectively, the C.'s), who were licensed foster parents. Caleb was Patricia's former parole agent, and Amanda was her second cousin, making Amanda and Autumn second cousins once removed....