San Diego Cnty. Health & Human Servs. Agency v. Brooke H. (In re Anthony T.), D061309.
| Citation | 146 Cal.Rptr.3d 124,2012 Daily Journal D.A.R. 11666,208 Cal.App.4th 1019,12 Cal. Daily Op. Serv. 9620 |
| Decision Date | 22 August 2012 |
| Docket Number | No. D061309.,D061309. |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re ANTHONY T., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent; v. Brooke H., Defendant and Appellant; Anthony T., Appellant; Torres Martinez Desert Cahuilla Indians, Intervener and Respondent. |
OPINION TEXT STARTS HERE
See 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 534.
Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Defendant and Appellant Brooke H.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Appellant Anthony T.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Berkey Williams and Rovianne Leigh, Berkeley, for Torres Martinez Desert Cahuilla Indians, Intervener and Respondent.
Anthony T., a member of the Torres Martinez Desert Cahuilla Indian Tribe, and his mother, Brooke H., a non-Indian, appeal an order placing Anthony in foster care with an Indian family. They contend the placement is not within “reasonable proximity” to the child's home as required under title 25 United States Code section 1915, subdivision (b), and Welfare and Institutions Code section 361.31, subdivision (b).1 We reverse.
Anthony T., born August 2011, is the son of Brooke H. and Ronald T.2 Ronald is a registered member of the Torres Martinez Desert Cahuilla Indian Tribe (Tribe). Brooke has no known Indian heritage. The parents, who are not in a relationship, have histories of substance abuse and child welfare interventions. None of Brooke's or Ronald's other children are in their custody. Brooke's two other children are in a guardianship with relatives. Three of Ronald's children were adopted by Tribal members through dependency proceedings; two others are with an Indian custodian.
On November 3, 2011, the San Diego County Health and Human Services Agency (Agency) filed a petition on Anthony's behalf after he was detained in protective custody by police, who were responding to reports of a fight at Brooke's home. Brooke, who had left the scene and returned as the police were leaving with Anthony, was arrested for public intoxication. Police determined that both Ronald and Brooke were too intoxicated to care for Anthony. Both parents were charged with child endangerment.
The Tribe promptly intervened in Anthony's dependency proceedings.
The Agency placed Anthony in a foster home in northern San Diego County. The foster mother had some Indian heritage but not through the Tribe.
On December 15, the Tribe passed a resolution (Tribal Resolution) designating the home of Mr. and Mrs. H. (the H.'s) as “the tribally approved and culturally appropriate concurrent adoptive or foster home” for Anthony. The H.'s lived in Riverside County, approximately two-and-a-half hours from Brooke and Anthony's home in northern San Diego County. The Tribal Resolution stated the Tribe's primary goal was family reunification. Until the family was reunified, or in the event family reunification could not be safely achieved, placement with the H.'s was in Anthony's best interests as an Indian child because it preserved, protected and encouraged his connection to the Tribe, its culture and community, and his Tribal relatives.
The court adjudicated Anthony a dependent of the juvenile court on January 12, 2012. (§ 300, subd. (b).) At the Tribe's request, and over the Agency's and Brooke's objections, the court detained Anthony with the H.'s. Noting the placement created a “geographic barrier” to visitation, the court ordered the Tribe to transport Anthony to northern San Diego County for supervised visits with Brooke. The court said the temporary placement would allow the parties to assess the feasibility of the placement. If the distance created any problems with visitation, the court would reconsider its order at the dispositional hearing.
The dispositional hearing was held on January 24 and 25. The court admitted in evidence the Agency's reports and the declaration of Silvanna Osuna, an Indian expert, and took judicial notice of the Tribal Resolution. The court heard testimony from Osuna; Social Worker Sara Whitney; and Annette Chihuahua, Tribal delegate and ICWA case assistant.
Osuna said Anthony should remain in his current placement with the H.'s. She believed an Indian child should always be placed with a relative or tribal member, if that person was suitable.
Social Worker Whitney did not object to Anthony's placement with the H.'s. Nevertheless, she was concerned about the distance from the H.'s home to the Agency's office in Escondido, where visitation would occur. In view of Anthony's age, visits should occur at least twice a week to promote the parent/child relationship. A one-way trip was two-and-a-half hours, which was a long time for a child to be in a car.
Whitney testified the Agency did not have the resources to facilitate twice-weekly visits between Anthony in Riverside County and Brooke in San Diego County. The Tribe said it would help transport Anthony to the Agency's Escondido office or arrange for Brooke to visit Anthony in the H.'s home.
In November and December, the Agency offered to schedule visitation between Brooke and Anthony three times a week. As far as Whitney knew, Brooke visited Anthony twice after he was detained in protective custody, once at Polinsky Children's Center and once at the previous foster parents' home. After the January 12 hearing, the parties scheduled a visit but Brooke cancelled it, saying she was ill. A second visit was not set up because Brooke did not know her class schedule. Whitney wanted to schedule a visit at the Agency's offices on January 12 from 11:00 a.m. to 1:00 p.m., but Brooke did not have time to visit Anthony before the hearing. Whitney acknowledged that scheduling visitation had been difficult.
When Whitney finished testifying, the court noted that Anthony, who was outside the courtroom with Mrs. H., had been “screaming and yelling and crying for the last few hours” and was a “little bit cranky” after his nap.
Tribal delegate Chihuahua testified that after the last hearing, they discussed scheduling visits on January 18 and 24, and visitation in general. Chihuahua understood that visits would occur twice a week on the same day for both parents. Tuesdays and Thursdays would probably work for her, depending on her calendar. She was responsible for visitation in other cases. Chihuahua acknowledged that during the previous week, she had only one day available for a visit between Anthony and Brooke. When asked whether arranging visitation was difficult, Chihuahua replied, “I just feel it is difficult because it is a long ride for [Anthony], too, and so—and mom [doesn't] have a car, right?” 3
Chihuahua said Brooke cancelled the January 18 visit, saying she was ill. Brooke asked about visiting Anthony on January 23, but Chihuahua was not available on that date. They did not set up any other visits. Brooke said she had a visit scheduled for January 25 but Chihuahua was not aware of it. Chihuahua testified that Brooke did not cancel today's visit, but she asked to change the time from 11:00 a.m. to 12:30 p.m. Brooke asked for Saturday visits but Chihuahua was not available due to an ongoing commitment to another case. Chihuahua testified that she might be able to accommodate Brooke's request for Saturday visits by the end of February.
Chihuahua said if the court ordered twice weekly visitation, the Tribe would abide by that order. She did not know whether the Tribe would be able to facilitate visits three times a week because of their other cases. They might be able to find other Tribal members who could assist with transportation. Funding for transportation was not an issue with the Tribe. The issue was scheduling.
The court removed Anthony from parental custody. It found that the parties opposing Anthony's placement with the H.'s did not establish good cause not to follow ICWA placement preferences, and placed Anthony with the H.'s. Noting that Brooke had expressed little, if any, interest in visiting Anthony while he was placed in northern San Diego County, the court ordered liberal supervised visitation for the parents and authorized the Agency to implement unsupervised visitation with notice to minor's counsel, and weekend and overnight visits with the concurrence of minor's counsel.
(In re Jack C. (2011) 192 Cal.App.4th 967, 975–976, 122 Cal.Rptr.3d 6.)
To meet its goal to place children in foster or adoptive homes which reflect the unique values of Indian culture, ICWA establishes placement preferences for Indian children who have been removed from their families. (25 U.S.C. §§ 1902, 1915(b); § 361.31.) An Indian child in foster care must be placed in “the least restrictive setting that most approximates a family ... within reasonable proximity to his or her home, taking into account any special needs of the child.” (25 U.S.C. § 1915(b); § 361.31, subd. (b).) In the absence of good cause to the contrary, the preferred...
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