SISKIYOU COUNTY HUMAN SERVICES/ADULT AND CHILDREN'S SERVICES DEPARTMENT v. KARUK TRIBE,

Filed 3/9/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

APPEAL from a judgment of the Superior Court of Siskiyou County, Bill Davis, J. Affirmed.

Frank J. DeMarco, County Counsel, Donald R. Langford, Assistant County Counsel and Paula L. Baca, Deputy County Counsel, for Plaintiff and Appellant.

Law Office of Stephanie J. Dolan and Stephanie J. Dolan for Intervener and Respondent.

California Indian Legal Services and Jenny Y. Kim for amici curiae Pala Band of Mission Indians, Pauma Band of Mission Indians, Pechanga Band of Luiseño Indians, Viejas Band of Kumeyaay Indians, on behalf of Intervener and Respondent.

Respondent Karuk Tribe of California (the Tribe) filed a petition to transfer this juvenile dependency proceeding from the Siskiyou County Juvenile Court to the Karuk Tribal Court pursuant to the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA); undesignated statutory references are to title 25 of the United States Code). The juvenile court issued an order granting the transfer.

On appeal, the Siskiyou County Human Services/Adult and Children's Services Department (Department) contends the Tribe was not entitled to the transfer because its tribal court has not been approved by the Secretary of the United States Department of the Interior (Secretary). Because ICWA does not require the Secretary's approval, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

R.A., the mother of minor M.A., has a history with the Department dating back to 1985. M.A. was born in April 1992. In 1994, he was declared a dependent child of the court. In 1996, he was placed in guardianship with a maternal uncle. In 1998, the mother resumed custody and the guardianship was dismissed.

In June 1999, the present original dependency petition was filed. In 2001, M.A. was placed in guardianship with an extended family member in Sonoma County and the dependency was dismissed.

In April 2004, the mother filed a modification petition seeking termination of the guardianship and placement of the minor with the mother or with tribal relatives in Siskiyou County.

In June 2004, the Karuk Tribe of California, a federally recognized Indian Tribe (65 Fed. Reg. 13298), filed notice of intervention in the matter. The juvenile court found that ICWA applies to this case and that the Tribe has standing as an intervening party.

In July 2004, the mother's modification petition was granted to the extent that it awarded her reasonable visitation with the minor.

In December 2004, the guardianship failed and the guardian returned M.A. to the mother's physical custody. In February 2005, the Department filed a modification petition seeking termination of the guardianship, reinstatement of the dependency, and placement of the minor in the mother's home. The Department was awarded temporary custody pending a disposition hearing that was continued to April 25, 2005.

In March 2005, the Karuk Tribal Council (the Tribe's governing body) issued a resolution authorizing transfer of the child custody proceeding from the juvenile court to the Karuk Tribal Court. Following the resolution, the Tribe's Department of Child and Family Services (KCFS) petitioned the Children's Division of the Karuk Tribal Court for an order accepting transfer of this case and awarding temporary custody of M.A. to KCFS. The petition alleged that the minor resided on tribal lands. The chief judge of the tribal court granted the petition.

In April 2005, a KCFS social worker filed a petition in the juvenile court to transfer the case to the Karuk Tribal Court pursuant to ICWA (§ 1911(b)) and rule 1439 of the California Rules of Court. (References to rules are to the California Rules of Court.) The hearing on the petition was set for April 25, 2005, the same day as the Department's modification petition.

The Department filed opposition to the transfer, contending, among other things, that M.A. is not residing on tribal lands and that the Tribe, in establishing its court, did not follow the procedures set forth in ICWA, section 1918. Specifically, the Tribe did not obtain the Secretary's approval to exercise transfer jurisdiction over child custody matters.

The Tribe filed a reply and a supplemental reply to the Department's opposition. At the hearing on the motion, the Department's counsel stated she â€