Opinion
2d Juv. No. B235223 Super. Ct. No. J1317460
01-30-2012
In re J.B., a Person Coming Under the Juvenile Court Law. SANTA BARBARA COUNTY CHILD WELFARE SERVICES, Plaintiff and Respondent, v. T.E. et al., Defendants and Respondents. CHEROKEE NATION, Intervener and Respondent; J.B., Real Party in Interest and Appellant.
Christopher Blake, under appointment by the Court of Appeal, for Real Party in Interest and Appellant J.B. Dennis A. Marshall, County Counsel, Toni Lorien, Deputy, for Plaintiff and Respondent Santa Barbara County Child Welfare Services. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Respondent T.E. M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Respondent M.B. N. Cheryl Hamby, Cynthia J. Burlison, Assistant Attorneys General, for Intervenor and Respondent Cherokee Nation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Barbara County)
J.B., a minor child, appealed a juvenile court order transferring him to the jurisdiction and custody of the Cherokee Nation (Tribe) during the later stages of a juvenile dependency proceeding filed by the Santa Barbara County Child Welfare Services (CWS). The juvenile court ruled that granting the Tribe's transfer motion was required by the federal Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and California law. (Welf. & Inst. Code, § 305.5, subd. (c)(2)(B).) We issued a supersedeas order staying the transfer. But as is common in life, things are not static. In the meantime, the situation involving J.B., his mother M.B. (Mother), the foster parents, the Tribe, and CWS changed dramatically. We dismiss the appeal from the transfer order as moot.
Recent Trial Court Proceedings and Mootness
We grant CWS's motion to augment the record. CWS notes that while this case was on appeal the trial court conducted additional hearings and "the child was placed in the custody of [Mother] under a program of family maintenance." The case plan for this supervised temporary custody also provided visitation for J.B.'s foster parents. Mother initially consented to the tribal transfer. But on November 21, 2011, her attorney filed a request to rescind that consent as part of a petition to set aside the trial court's tribal transfer order. Through correspondence from the parties to the court, and their representations at oral argument, it appears that the issues are moot.
Mother was apparently in compliance with family maintenance services. The foster parents, who gave love and support to J.B. and restored him to health and happiness, were in support of these services. So was J.B.'s counsel. And so was the Tribe. The Tribe agreed with Mother that jurisdiction should not be transferred to it under those circumstances.
All the parties request we issue an opinion to provide guidelines on how to proceed should Mother not succeed in the family maintenance services and we find ourselves back at "square one."
Although it is not our usual practice to write advisory opinions, in the unique circumstances of this case, we offer these observations should the Tribe again assert jurisdiction over this matter.
A BRIEF HISTORY
CWS took J.B. into "protective custody" when he was found in his home showing signs of neglect. J.B.'s biological father, T.E., lives in Oklahoma and provided CWS with a Bureau of Indian Affairs document certifying that he (T.E.) is "1/256 degree Indian blood of the Cherokee Tribe."
CWS filed a juvenile dependency petition. (Welf & Inst. Code, § 300 et seq.) The juvenile court sustained the petition. It also found that J.B. "is an Indian child." CWS provided family reunification services while J.B. resided with his foster family.
The Tribe filed a notice of intervention, stating its intent "to be involved with case activity; as to compliance with the [ICWA]." In an accompanying letter, Nicole Allison, the Tribe's child welfare specialist, said J.B. had been placed with a non-Indian foster family that did not comply with ICWA "placement preferences." But there were no Indian foster homes in the local area. Consequently, the Tribe "[would] not contest a court finding of good cause to deviate from the [ICWA foster home] placement preferences." Allison recommended that J.B. "continue to be a dependent under California law" and that "reunification services be offered to [Mother]."
The Motion to Transfer
On July 18, 2011, the Tribe filed a motion to transfer the proceedings to the "Cherokee Nation District Court." The trial court held two hearings on the motion. It listened to oral argument by counsel for the parties and tribal representatives.
J.B.'s attorney objected to the transfer. She claimed: 1) it would subject J.B. to "the shock of changing cultures" after spending 17 months with his foster family, 2) it was a bad faith litigation tactic timed "to avoid" CWS's recommendation that family reunification services be terminated, 3) it would subject J.B. to "long periods of uncertainty concerning" his future that is "harmful to [his] well-being," and 4) the Tribe unreasonably had delayed filing a transfer after intervening 17 months earlier.
At the first hearing, the trial court said, "It seems that there has been [an] unreasonable delay in asking for the transfer, in that this case is in [an] advanced stage of the proceedings . . . ." In response to an argument about the timing of the motion, the court said, "[I]t sounds like the only reason there's intervention is they don't like the direction in which the department is headed."
At the second hearing, on August 4, 2011, CWS filed an "Attachment to the Status Review" with a written summary by J.B.'s foster parents and photographs of J.B. with the foster family. In the summary, the foster parents said they had cared for J.B. since December 2009. J.B. had developed a close bond with their children and their extended family which included aunts, uncles, cousins and grandparents. They said J.B. and "our little girl" "go to preschool together and the teachers are amazed at how smart he is. He knows his ABC's, colors and can count objects to 10. He loves all things outdoors and monster trucks. He is very adept at riding bicycles, skateboards and scooters. He loves to play catch and soccer." They said, "Our little girl is the same age as [J.B.] so she thinks of him as her brother. Good or bad, they do everything together. . . . They are typical siblings. . . . [We] are committed to [J.B.'s] well being, and are ready to adopt him if given the opportunity. As foster parents, we did not go into this with that option in mind."
This summary discussed J.B.'s progress over a 19-month period. His foster parents said, "When [J.B.] came to our home he was malnourished and covered with bruises, burns and sores. He had such horrible yeast infections that he scratched almost constantly. His little belly stuck out very similar to the pictures of malnourished children we have all grown used to seeing." They said he had "no belly button, only stretched skin. His constant diarrhea was a major concern . . . ." He would "wake up screaming" and he often ate crumbs from the floor. But they "were able to get all of these problems under control."
J.B.'s foster parents said Mother had visitation through reunification services. But after going on these visits, J.B. would come home "typically filthy, unruly and tired." If he was wearing a diaper, "it would always be full," and for "a while, he was using foul language, including f*** you." They opposed the Tribe's transfer motion because it would take J.B. "to a strange home, with strange people that he doesn't know." They said, "[H]as this child not suffered enough?"
Counsel for CWS urged the trial court to consider this information because it was relevant to the child's well being. The court ruled it was irrelevant. It ordered J.B. transferred to the Tribe's jurisdiction in Oklahoma. J.B. appealed, and we stayed the order.
DISCUSSION
ICWA
The Tribe contended the trial court properly transferred J.B. to its jurisdiction consistent with the ICWA (25 U.S.C. § 1901 et seq.) and state law.
"In enacting the ICWA, Congress sought to '"protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society."'" (Crystal R. v. Superior Court (1997) 59 Cal.App.4th 703, 711.) "The [ICWA] established '"a Federal policy that, where possible, an Indian child should remain in the Indian community."'" (Ibid.)"By its terms the ICWA applies wherever an Indian child is the subject of a child custody proceeding." (Ibid.)Tribes have a right to intervene in state juvenile court proceedings involving Indian children. (Id. at p. 712.) But "[t]he phrase, 'Indian Child Welfare Act,' is not a talismanic incantation which can be uttered at any time to defeat the jurisdiction of California courts." (In re Derek W. (1999) 73 Cal.App.4th 828, 833.)
"Where the Indian child resides or is domiciled within a reservation, the [ICWA] provides that the tribe is to have exclusive jurisdiction over custody proceedings involving that child. ([25 U.S.C.] § 1911(a).)" (Crystal R. v. Superior Court, supra, 59 Cal.App.4th at p. 712.) But where the child "does not reside within the reservation, the [ICWA] creates concurrent but presumptively tribal jurisdiction." (Ibid.) In such cases, state juvenile courts should transfer jurisdiction to "the child's tribe" unless there is "good cause" not to do so. (Ibid.)
Children have standing to challenge the order that transfers them to the custody and jurisdiction of the Indian tribe. (Welf. & Inst. Code, §§ 317, 317.5; Crystal R. v. Superior Court, supra, 59 Cal.App.4th at p. 711; In re Kreft (Mich.Ct.App. 1986) 384 N.W.2d 843, 846.)
Here the trial court found that J.B. was an Indian child. But J.B. had never lived on the Tribe's reservation. He resides in California. The Tribe is in Oklahoma. Consequently, the trial court had concurrent jurisdiction over J.B.
Transfer to a Tribe Requires Consideration of the Child's Best Interests
The child's best interest is "a necessary consideration in deciding whether to grant or deny a transfer request." (In re Robert T. (1988) 200 Cal.App.3d 657, 667.) The ICWA "specifically provides that the state court can deny a request to transfer jurisdiction . . . [for] 'good cause.' ([25 U.S.C.] §§ 1911(b), 1915.)" (Crystal R. v. Superior Court, supra, 59 Cal.App.4th at p. 720.) "'Good cause' often includes considerations affecting the best interests of the child, such as whether the child has had any significant contact with the tribe, the detriment to the child from removal to a tribal court, or the extent of the child's bonding with a prospective adoptive family." (Ibid.)
These issues are relevant in considering a transfer motion and require a hearing. (In re Jack C. (2011) 192 Cal.App.4th 967, 986-987; Crystal R. v. Superior Court, supra, 59 Cal.App.4th at p. 724; In re Heather H. (1988) 200 Cal.App.3d 91, 96-97.) "[A] child is entitled to an evidentiary hearing to establish good cause not to transfer jurisdiction to the tribe." (In the Interest of J.L. (S.D. 2002) 654 N.W.2d 786, 790; Cal. Rules of Court, rule 5.483(d)(3); Ex parte C.L.J. (Ala.Ct.App. 2006) 946 So.2d 880, 892-893; In re S. W. (Okla.Ct.App. 2001) 41 P.3d 1003, 1009; In re G.L.O.C. (Mont. 1983) 668 P.2d 235, 237.)
Without an evidentiary hearing, a court cannot make factual findings on good cause issues based on counsel's arguments. (In re Zeth S. (2003) 31 Cal.4th 396, 413-414, fn. 11 ["It is axiomatic that the unsworn statements of counsel are not evidence"]; In re Heather H., supra, 200 Cal.App.3d at pp. 96-97 [reversible error for juvenile court to make findings based on unsworn statements]; Cal. Rules of Court, rule 5.483(d)(3) [juvenile court must make findings on good cause issues from evidence at the "evidentiary hearing" on the tribe's transfer motion]; People in Interest of M.C. (S.D. 1993) 504 N.W.2d 598, 601 [evidentiary hearing and findings required].)
A tribe's motion must be carefully considered, but the court cannot limit its focus exclusively to the tribal interests. "Ultimately, the determination whether good cause not to transfer exists is made on a case-by-case basis, after a careful consideration of all the circumstances of the case." (In the Interest of J.W. (IowaCt.App. 1995) 528 N.W.2d 657, 660; In re Wayne R.N. (N.M.Ct.App. 1988) 757 P.2d 1333, 1335.) "[T]he child's best interests must be the paramount concern" in these proceedings. (Crystal R. v. Superior Court, supra, 59 Cal.App.4th at p. 718.) This does not conflict with the ICWA. "Congress clearly envisioned situations in which the child's best interests take precedence over the tribe's interests." (Id. at p. 720.)
Weighing the Child's Constitutionally Protected Interests
The court must consider the tribe's statutory interests, but it also must consider the child's constitutionally protected interests. Children have "the fundamental right to be protected from neglect and to 'have a placement that is stable [and] permanent.'" (In re Jasmon O. (1994) 8 Cal.4th 398, 419.) "[A]fter a child has spent a substantial period in foster care and attempts at reunification have proved fruitless, the child's interest in stability outweighs the parent's interest . . . ." (Id. at pp. 419-420.)
"[A]pplication of the ICWA that fundamentally interferes with the Minor's right to retain his existing stable familial relationships requires that the statute be subjected to strict scrutiny . . . ." (In re Santos Y. (2001) 92 Cal.App.4th 1274, 1315.) Consequently, when the statute is applied to sever that relationship, there must be "a compelling government purpose" and the court must determine "whether its application is actually necessary and effective to the accomplishment of that purpose." (Ibid.) This requires a careful balancing of the respective interests.
The Tribe has a substantial interest in "preserving Native American culture." (In re Santos Y., supra, 92 Cal.App.4th at p. 1315.) But where the Tribe's connection to the child is primarily genetic, the tribal interest may not be sufficient to "'overcome the child's fundamental right to remain in the home where he . . .is loved and well cared for, with people to whom the child is daily becoming more attached by bonds of affection . . . .'" (Id. at p. 1316.)
In Santos Y., the Court of Appeal said, "The Minor's sole connection with the Tribe is a one-quarter 'Minnesota Chippewa Tribe' genetic contribution from an enrolled bloodline . . . ." (In re Santos Y., supra, 93 Cal.App.4th at p. 1316.) But this genetic link was not sufficient to overcome the child's protected interest in his familial connection to his foster family. The court said, "[W]e find the 'repatriation' to the Reservation of a child of assimilated parents, solely because of the child's one-quarter Minnesota Chippewa Tribe genetic heritage, to be a constitutionally impermissible application of the statute." (Ibid.)
For the sake of J.B. and all the parties involved, we hope the family maintenance services succeed and J.B. enjoys a happy and productive life. We dismiss the appeal from the transfer order as moot.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
Christopher Blake, under appointment by the Court of Appeal, for Real Party in Interest and Appellant J.B.
Dennis A. Marshall, County Counsel, Toni Lorien, Deputy, for Plaintiff and Respondent Santa Barbara County Child Welfare Services.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Respondent T.E.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Respondent M.B.
N. Cheryl Hamby, Cynthia J. Burlison, Assistant Attorneys General, for Intervenor and Respondent Cherokee Nation.