In re Sally M.

Filed 7/31/06 In re Sally M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert W. Nagby, Temporary Judge. (Pursuant to Cal. Const., art. VI, §21.) Affirmed as modified.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Carl Fabian, under appointment by the Court of Appeal, for Minor.

Timothy J. Turner for Mesa Grande Band of Mission Indians.

Defendant Raymond M. appeals from an order terminating his parental rights to Sally M. under Welfare and Institutions Code section 366.26.^[1] He asserts that the juvenile court erred in failing to place his daughter in an Indian home in accordance with the wishes of the child's tribe and the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.), by giving preference in adoption to the child's non-Indian foster family, and by failing to continue the hearing so that compliance with ICWA could be secured. We modify the order and affirm.

Facts and Procedural History

A petition under section 300, subdivisions (b) and (g), was filed on June 16, 2004, in essence asserting that 10-month-old Sally M.'s mother could not provide for her due to the mother's extensive involvement with substance abuse and asserting that the father, Raymond M., had not provided any support for the child and was, at that time, incarcerated for abusing the mother. Sally M. was detained in the home of her maternal aunt.

The detention report, filed June 16, 2004, indicates that the mother had been receiving family maintenance services for six months, but failed to make progress. In September 2003, the mother told the Riverside County Department of Public Social Services (DPSS) that Sally M. and her father were affiliated with the Luiseno Band of Mission Indians. However, on June 14, 2004, the mother reported that she did not believe that Sally M.'s father or her paternal grandfather were registered with any Indian tribe. The paternity inquiry that she filled out indicated that Raymond M. had no Indian heritage. Raymond M. married Sally M.'s mother in January 2004, but he is not listed as the child's father on her birth certificate. At a hearing on June 17, 2004, Raymond M. was found to be Sally M.'s alleged father and Sally was ordered detained.

The jurisdiction/disposition report filed July 14, 2004, recommended that Raymond M. be denied family reunification services due to his chronic alcohol abuse. (§ 361.5, subd. (b)(13).) He also has an extensive criminal history. It states that ICWA does or may apply because the mother reported that Raymond M. was a member of the Mesa Grande Tribe in San Diego and that she had a letter stating that the paternal grandfather was registered with that tribe, though she did not believe Sally M. would qualify for enrollment. At Raymond M.'s request the jurisdiction/disposition hearing was set as contested and was continued twice. Notice of those hearing dates was mailed to the Bureau of Indian Affairs in Sacramento, Indian Child and Family Services (ICFS) in Temecula and the Mesa Grande Band of Mission Indians in Santa Ysabel. On September 23, 2004, DPSS requested a continuance in order to provide notice to the Bureau of Indian Affairs and Indian tribes. Notice of the new hearing date was again provided as above. A paternity inquiry was ordered filed. That document indicated that Raymond M. was a member of the Digueno tribe. He also claimed to have enrolled Sally M. at the Soboba Indian Clinic.

An addendum report indicated that DPSS had sent notice and requested confirmation of Sally M.'s status to the eight tribes Raymond M. said he might be affiliated with, as well as the United States Department of the Interior, the Bureau of Indian Affairs in Sacramento and ICFS in Temecula. These notices did not list Raymond M.'s place of birth or the names and birthplaces of his parents. The Department of the Interior required more information to determine if Sally M. was an Indian child. An Indian expert averred that DPSS had given notice under ICWA, that Sally M.'s return to her parents would place her in danger, and recommended that she remain placed with her maternal aunt in accordance with ICWA.

The contested jurisdictional hearing was again continued as the mother failed to appear, but on October 18, 2004, Raymond M. was declared Sally M.'s presumed father. Notice was again provided as above. An addendum report filed November 15, 2004, indicated that the Soboba Band of Luiseno Indians had denied that Sally M. or either of her parents was an enrolled member.

The contested jurisdiction/disposition hearing took place on November 17, 2004. The juvenile court found that notice had been given or attempted as required by law and that Sally M. came within the provisions of section 300, subdivision (b). Therefore, she was judged a dependent of the court. The juvenile court also found, in accordance with ICWA, that the continued custody of Sally M. by her parents or Indian custodian was likely to result in serious emotional or physical damage to her, that active efforts had been made to prevent the breakup of the Indian home, and that while ICWA applied, Sally M. was not an Indian child under ICWA. However, the juvenile court indicated that it would proceed as if Sally M. was an Indian child, despite the lack of evidence. Sally M.'s current placement with her maternal aunt was found appropriate. DPSS was ordered to provide services to both parents. DPSS filed an amended petition the date of the hearing striking the allegations that Raymond M. was not a member of the household and had not provided for Sally M. and that he was incarcerated with an unknown release date.

Reports filed in advance of the review hearing recommended the termination of reunification services and that the matter be set for a section 366.26 selection and implementation hearing because the parents had not complied with their case plans and had not been visiting the child. In addition, Sally M.'s aunt had, on February 9, 2005, requested that she be removed from her home immediately because of problems with the mother. No family member was available for long-term placement at that time. DPSS was investigating whether ICWA had a preference in Sally M.'s adoptive placement by pursuing the matter with ICFS. At the parents' request the matter was set for a contested status review hearing on March 7, 2005. Notice was again provided as before.

Sally M. was placed in a non-Indian foster home on February 15, 2005. The scheduled hearing was continued because Raymond M. had been incarcerated again for a parole violation. The juvenile court again found that Sally M. was not an Indian child pursuant to ICWA and that the act did not apply to her. Notice was provided as before.

An addendum report filed April 1, 2005, continued to recommend the termination of services and the setting of a hearing to terminate parental rights under section 366.26, so that Sally M. could be adopted. DPSS was informed, on March 22, 2005, that the father was enrolled as a member of the Mesa Grande Band of Mission Indians (Tribe), but enrollment was closed to Sally M. The Tribe indicated that she was nevertheless entitled to ICWA services and expressed the intent to appear at court for the next scheduled hearing.

On April 6, 2005, two members of the Tribe were present in court. The Tribe was allowed to intervene and the hearing was continued in order that it could prepare. DPSS indicated that it would provide the Tribe's representatives with all the case documents, including the Indian expert declaration relied upon for jurisdiction. Notice of the new hearing was provided as before. The Tribe appeared at the April 28, 2005, hearing. Neither parent was present. The juvenile court found that active efforts were made to prevent the breakup of the Indian family but those efforts had failed as the parents had not made any progress towards mitigating the problems that necessitated placement. There was not a substantial probability that Sally M. could be returned to her parents in six months and therefore reunification services were terminated. A contested hearing under section 366.26 was set for August 25, 2005, and Sally M. was ordered placed in accordance with ICWA. She was found to be an Indian child pursuant to ICWA and DPSS and the Tribe were ordered to evaluate her paternal relatives for possible placement. The juvenile court recognized the ICWA preference for placement in an Indian home. When asked if the Tribe was asking that Sally M. be placed in an Indian foster home, the Tribe's representative indicated that no suitable home had yet been found. Notice was provided as before.

DPSS filed a report on August 10, 2005, recommending that the parental rights of both the mother and Raymond M. be severed and that a permanent plan of adoption be implemented for Sally M. DPSS also requested that the hearing be continued for 75 days in order to obtain the consent of the Tribe. The representative from the Tribe had indicated in May that the paternal grandfather might want to adopt Sally M. but insisted on a paternity test first, which he had done nothing to obtain. On July 19, 2005, the Tribe's representative contacted DPSS indicating that both parents were interested in restarting services to regain custody of Sally M. He also agreed with the social worker that it nevertheless seemed to be in Sally M.'s best interests to be adopted by the foster family with which she had bonded. DPSS provided the Tribe's representative with a phone number to give the paternal relatives to contact DPSS. However, no paternal relative had contacted DPSS regarding visitation with Sally M. and neither the relatives nor the Tribe had further communicated with DPSS regarding their positions concerning Sally M.'s adoption. The child's current foster family was willing to adopt her should the Tribe agree.

The Tribe's representative filed a declaration in lieu of witness testimony in which he indicated that the Tribe was in agreement with and recommended the foster placement, which was in the best interests of the minor, â€