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In Re Manuel G., Jr., A Person Coming Under the Juvenile Court v. Manuel G.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 17, 2010

IN RE MANUEL G., JR., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
MANUEL G., SR., ET AL., DEFENDANTS AND APPELLANTS.

Super. Ct. No. J516239A APPEAL from a judgment of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed.

The opinion of the court was delivered by: McCONNELL, P. J.

In re Manuel G. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Mother Chelsea F. and presumed father Manuel G., Sr., (Manuel, Sr.) appeal the judgment terminating their parental rights to their three and one-half-year-old son, Manuel G., Jr., (Manuel, Jr.). Chelsea contends the court erred by declining to apply the sibling relationship exception to termination of parental rights (Welf. & Inst. Code,*fn1 § 366.26, subd. (c)(1)(B)(v)). Manuel, Sr. contends the court erred by finding the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) did not apply. Chelsea and Manuel, Sr. join in each other's contentions. We affirm the judgment.

I

BACKGROUND

In April 2006, a few days after Manuel, Jr. was born, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition. The petition alleged the following facts. Chelsea and Manuel, Sr. abused marijuana and admitted a history of drug use. Chelsea tested positive for marijuana and methadone at Manuel, Jr.'s birth. She admitted using marijuana and methadone while pregnant. Manuel, Sr. admitted he knew Chelsea was using drugs while pregnant but failed and was unable to stop her.

Manuel, Jr. was detained in the hospital. In May 2006 the court entered a true finding on the petition. In June Manuel, Jr. was detained with his maternal grandparents, Raul G. and N.G. (the G.'s). In September this detention became a placement. The G.'s had obtained guardianship of Manuel, Jr.'s two older sisters, T.G. and A.G., in probate court in 2005.

Chelsea has no American Indian heritage. Manuel, Sr. is an enrolled member of the Assiniboine and Sioux Tribes of the Fort Peck Reservation of Montana (the Tribe). (74 Fed. Reg. 40218-02 (Aug. 11, 2009).) At the outset of this case, the Agency sent the Tribe ICWA notice and the Tribe acknowledged receiving the notice. The notice listed the Tribe's rights, including the right to intervene in the proceedings.

The Tribe determines eligibility for membership based on a person's quantum of Indian blood. Manuel, Jr.'s Indian blood quantum is one-eighth. On May 30, 2006, Tribe social worker Sheila Standing told the Agency that Manuel, Jr.'s one-eighth blood quantum qualified him for an associate membership in the Tribe. Standing said she would notify the Agency if the Tribe decided to intervene in this proceeding. On May 31 the court found ICWA applied. The court ordered the Agency "follow up with the [T]ribe and clarify the membership and determine [the Tribe's] interest in intervening . . . ." Throughout this case, the court made the findings required by ICWA.

In March 2007 Chelsea gave birth to a baby boy, Michael G. Michael was not detained. In May the court ordered Manuel, Jr. placed with Chelsea and Manuel, Sr. By that time, T.G. and A.G. were living with Chelsea and Manuel, Sr.

In April 2008 Manuel, Sr. was arrested for having drug paraphernalia in his car and incarcerated for violating parole. In January 2009 Chelsea and Manuel, Sr. were seen drinking in their home. That month, Manuel, Sr. tested positive for marijuana and methamphetamine and Chelsea agreed to keep him out of the home. In February the social worker found Manuel, Sr. hiding in the yard. The Agency filed a section 387 supplemental petition based on the above facts. Manuel, Jr. and Michael were detained in foster care and T.G. and A.G. were returned to the G.'s. On March 13 the court entered a true finding on the section 387 petition. The court ordered Manuel, Jr. placed in foster care and set a section 366.26 hearing. On March 16 Manuel, Jr. and Michael joined T.G. and A.G. in the G.'s' home. The G.'s wish to adopt Manuel, Jr.

On August 4, 2009, Tribe social worker Lois Weeks told the Agency that Manuel, Jr. was eligible only for associate membership in the Tribe, not full membership. As a result, the Tribe declined to intervene in this case. Weeks promised to send the Agency a letter confirming her statements. On August 31 Weeks told the Agency "the Tribe is now unsure of whether they will stop servicing persons who are considered 'associate members.' " Weeks said the Tribe was "going back and forth about" issues regarding associate members.

At the January 2010 section 366.26 hearing, designated Indian expert witness Phillip Powers*fn2 testified about his discussions with Weeks.*fn3 Weeks said the Tribe created associate memberships to facilitate access to clinical services. The Bureau of Indian Affairs (BIA) had issued a cease and desist order concerning the Tribe's provision of services to associate members. Weeks believed the Tribe had discretion to determine membership and entitlement to services. The Tribe planned "to make some final determination regarding exactly what would happen to the associate members." On several occasions, Weeks had promised Powers a written statement from the Tribe about associate memberships. Powers had not received a statement. Weeks declined to tell Powers the Tribe's position on Manuel, Jr.'s adoption.

Powers testified Manuel, Jr.'s one-eighth blood quantum was not enough to qualify him for full membership in the Tribe, but was enough to qualify him for an associate membership. There was no indication the Tribe might lower the blood quantum for full members to one-eighth, as other tribes had done. According to Powers, an associate membership was "still a membership." Associate members were not entitled to the comprehensive benefits granted to a full member of the Tribe, such as voting rights and "per capita." The Tribe had the sole right to determine eligibility for membership and services, but was required to do so in a manner consistent with the Tribe's governance documents.*fn4 Powers had not seen those documents. Powers concluded that the Tribe's statement that Manuel, Jr. qualified for associate membership meant he was eligible for membership in the Tribe within the meaning of ICWA. Powers acknowledged this conclusion appeared to be inconsistent with the BIA's cease and desist order, but testified it was unclear what power the BIA had on this subject.

Powers further testified it would be detrimental to return Manuel, Jr. to Chelsea and Manuel, Sr.; there had been active efforts to help the family remediate the problems that led to the dependency; out-of-home placement was necessary; and Manuel, Jr.'s placement with the G.'s conformed to ICWA preferences. Powers believed the Agency and the court had followed ICWA and Manuel, Jr. should be freed for adoption.

At the conclusion of the section 366.26 hearing, the court found ICWA did not apply and terminated parental rights.

II

ICWA

A

Manuel, Sr.'s Assertion of the Doctrine of Judicial Estoppel and Motion to Strike

In the juvenile court the Agency argued this case was governed by ICWA. The Agency now argues to the contrary. In his reply brief, Manuel, Sr. contends the doctrine of judicial estoppel prohibits this change of position.

Application of the doctrine of judicial estoppel is discretionary. (People v. Castillo (2010) 49 Cal.4th 145, 156; MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.) Furthermore, the doctrine applies only if the party against whom it is asserted on appeal was successful in asserting its position in the trial court. (People v. Castillo, supra, at p. 155; Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 943, cited in MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc., supra, at p. 422.) Here, the juvenile court ultimately found ICWA did not apply, contrary to the Agency's position at trial. Thus, the doctrine of judicial estoppel is inapplicable.

Manuel, Sr. also complains of the Agency's citations, in its respondent's brief, of "a relatively inaccessible history book concerning the Tribe" and "news articles." Manuel, Sr. contends these citations and the Agency's related arguments should be stricken because these secondary sources "are not proper subjects for judicial notice or academic legal materials."

The Agency cites the history book for the proposition that the Tribe's 1960 Constitution added a one-quarter blood quantum to its membership requirements. Exactly when the requirement was instituted is unimportant, as it clearly happened before Manuel, Jr. was born. This requirement, however, is stated in the Tribe's enrollment ordinance, discussed below, of which we take judicial notice. We decline to strike the Agency's citation of the history book or the proposition accompanying the citation.

The Agency cites the news articles for the irrelevant proposition that some tribes have honored prominent persons by naming them associate members. We strike the proposition and the accompanying citation. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1389, fn. 13.)

B

The Agency's Request for Judicial Notice

The Agency requests judicial notice of copies of three documents. The first is a 2001 memorandum from the Field Solicitor of the United States Department of the Interior to the Regional Director of the BIA's Rocky Mountain Regional Office entitled "Agency Denial of Assistance and Services to Persons Granted Associate Status by the [Tribe]" (the memorandum). The second document consists of the Tribe's February 2009 Certification of Enrollment Eligibility for Manuel, Jr. and Certificates of Indian Blood for Manuel, Sr. (the certificates). The third document comprises the Tribe's Constitution, bylaws and enrollment ordinance. Manuel, Sr. opposes the request for judicial notice of the memorandum and the certificates.

The Agency claims the memorandum is "an official act of the executive branch" under Evidence Code section 452, subdivision (c) "or a record of any state of the United States" under Evidence Code section 452, subdivision (d). The Agency characterizes the certificates as "official tribal actions, with the [T]ribe considered a state" under Evidence Code section 452, subdivision (c)). Evidence Code section 452, subdivision (d), pertains only to court records and is inapplicable here. The copies of the memorandum and the certificates the Agency proffers are not certified and the Agency does not even attempt to meet its burden of showing a reason for failing to furnish certified copies. (Wolf v. CDS Devco (2010) 185 Cal.App.4th 903, 915.) In any case, we could not take judicial notice of the truth of the statements in the memorandum or certificates, as the Agency requests. (Ibid.) We deny the Agency's request for judicial notice of the memorandum and the certificates. We grant the Agency's request for judicial notice of the Constitution, bylaws and enrollment ordinance. (Evid. Code, § 452, subds. (a), (b), (f).) Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192, and fn. 3 [taking judicial notice of a tribe's Constitution, bylaws, gaming act and resolution].)

C

Analysis of the Tribe's Constitution, Bylaws and Enrollment Ordinance

The Constitution and bylaws, adopted by the Tribe and ratified by the Secretary of the Interior (the Secretary) in 1960, state the Tribe's membership consists of those persons who qualify under an ordinance approved by the Tribe in a referendum vote. The enrollment ordinance states, "The following individuals automatically qualify for membership in the [Tribe] . . . ." Following this statement are the two definitions pertinent here: "Future Members" and "Associate Members." The current version of these two definitions came about after the Tribe voted on May 7, 1988, to amend its enrollment ordinance. With exceptions inapplicable here, the definitions are as follows. "Future Members" are children with a blood quantum of at least one-fourth who are born to members of the Tribe. "Associate Members" are children with a blood quantum of at least one-eighth but less than one-fourth who are born to members of the Tribe.*fn5 The definition of "Associate Members" states "Associate members shall not be eligible to vote in Tribal elections or to share in any distribution of tribal funds or property, but shall otherwise be eligible for benefits as Indians as provided by law."

The Agency contends the "Associate Members" provision did not exist before the 1988 amendment and the amendment was not approved by the Secretary, as was the original enrollment ordinance, and as required by the Tribe's Constitution, bylaws and enrollment ordinance. The Agency concludes "it is open to question whether associate membership was ever properly established . . . ."*fn6

The Agency's premise is flawed. Assuming arguendo there was no provision regarding associate members before 1988, the Tribe's Constitution, bylaws and enrollment ordinance do not state a requirement that amendments to the enrollment ordinance be approved by the Secretary. The bylaws refer to "Any resolution or ordinance which by the terms of this Constitution is subject to review by the Secretary," but do not state an amendment to the enrollment ordinance must be approved by the Secretary. The bylaws also state "This revised Constitution and Bylaws . . . shall be in full force and effect from the date of . . . approval by the Secretary," but do not state an amendment to the enrollment ordinance must be approved by the Secretary. The provision in the Constitution and bylaws regarding membership requires only that an enrollment ordinance be approved by a referendum vote, with no mention of approval by the Secretary.

Another point, however, supports the juvenile court's conclusion that associate members of the Tribe are not members for purposes of ICWA. The enrollment ordinance's provision for "Associate Members" conflicts with the enrollment ordinance's statement "[t]he following individuals automatically qualify for membership" and with the provision in the Constitution and bylaws governing elections. As noted above, associate members are not entitled to vote in Tribal elections. The Constitution and bylaws, however, state, "All members of the [Tribe], as determined by . . . this Constitution, who are eighteen (18) years of age or over, are eligible to vote . . . ." This conflict leads to the ineluctable conclusion that associate members are not members as defined by the Tribe. Because it is the Tribe's own definition of associate members that removes associate members from the definition of members, this conclusion does not contradict the Tribe's "right to define its own membership for tribal purposes." (Williams v. Gover (9th Cir. 2007) 490 F.3d 785, 791, quoting Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72.)*fn7 Nor does this conclusion contravene the principle, as stated by Manuel, Sr., that "any ambiguity as to whether ICWA applies to associate members of the Tribe . . . should be resolved in favor of the Indian child and family as ICWA must be liberally construed for the benefit of Indians." (In re Pedro N. (1995) 35 Cal.App.4th 183, 190, disagreed with on another point by Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 251, 259-260.) The conclusion is not based on an interpretation of ICWA, but rather on the construction of the Tribe's Constitution, bylaws and enrollment ordinance.

D

Discussion

ICWA applies in a juvenile dependency case involving an Indian child. (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538.) " 'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) "A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe, or testimony attesting to that status by a person authorized by the tribe to provide that determination, shall be conclusive." (§ 224.3, subd. (e)(1).) If there is no timely "determinative response" to proper and adequate ICWA notice, the court may determine that ICWA does not apply, but "shall reverse [this] determination . . . and apply the act prospectively if a tribe . . . subsequently confirms that the child is an Indian child." (§ 224.3, subd. (e)(3).)

In June 2006 the Tribe received proper ICWA notice, including notice of its right to intervene in this case. By the time of the section 366.26 hearing, more than three and one-half years later, the Tribe still had not provided a "determinative response" to the notice. Although Powers testified that Manuel, Jr. was eligible for membership in the Tribe, the Tribe had not authorized Powers to make that determination. Moreover, the evidence was uncontroverted that Manuel, Jr. would qualify only as an "associate member" of the Tribe. As discussed above, an analysis of the Constitution, bylaws and enrollment ordinance shows that associate members are not members. For these reasons, the juvenile court did not err by finding ICWA inapplicable in this case.

Furthermore, any error in the court's finding is harmless. (See In re Celine R. (2003) 31 Cal.4th 45, 59-60 [applying harmless error test to failure to appoint separate counsel for separate siblings]; In re Jesusa V. (2004) 32 Cal.4th 588, 624-625 [applying harmless error test to biological father's absence from trial].) The court also made the findings that would be required if ICWA did apply. The court made "a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (25 U.S.C. § 1912(f); see also § 366.26, subd. (c)(2)(B)(ii).) The court found, by clear and convincing evidence (In re Michael G. (1998) 63 Cal.App.4th 700, 704, 709, 712), "that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (25 U.S.C. § 1912(d); § 361.7, subd. (a).)

Manuel, Sr. contends the court's finding that ICWA did not apply prejudices him, Manuel, Jr. and the Tribe for the following reasons. The finding deprives Manuel, Sr. of the opportunity to seek Manuel, Jr.'s return if the adoption fails. (25 U.S.C. § 1916(a) [if an adoption fails, the court shall grant the biological parent's petition for return unless return is not in the child's best interests]; Fam. Code, § 8619.5 [same].) The finding deprives Manuel, Jr. of the protection of ICWA preferences should his placement be changed (25 U.S.C. § 1916(b), § 224, subd. (b)), of continuing contact with the Tribe (Fam. Code, § 8616.5) and of the means to unseal his adoption records to secure tribal benefits or services (25 U.S.C. § 1917; Fam. Code, § 8619). The finding deprives the Tribe of the opportunity to be a party to any post adoption contact agreement (Fam. Code, § 8616.5) and of the right to notice of post permanency planning review hearings and any supplemental or modification petitions (§§ 295, subd. (g), 297, subd. (d)). The finding deprives Manuel, Jr. and the Tribe of the right to petition the court to invalidate post-termination actions that violate ICWA. (25 U.S.C. § 1914; § 224, subd. (e).)

Manuel, Sr. lacks standing to raise issues on behalf of Manuel, Jr. and the Tribe. Manuel, Jr. was represented by counsel in the juvenile court and in this court and has not appealed. The Tribe had notice of the proceeding and of its right to intervene. The Tribe declined to intervene, thus forfeiting its right to challenge the juvenile court's findings and orders.*fn8 (In re Liliana S. (2004) 115 Cal.App.4th 585, 589 [tribe waived right to challenge children's placement].) The harm that Manuel, Sr. predicts for himself is based on the sheer speculation that Manuel, Jr.'s adoption will fail. If this unlikely event occurs, it is virtually inconceivable that it would be in Manuel, Jr.'s best interests to return to Manuel, Sr.'s custody. During the pendency of this case, the Agency learned Manuel, Sr. had been violent with Chelsea while Manuel, Jr. was living with them. In April 2009 Manuel, Jr. disclosed that Manuel, Sr. had hit him. Manuel, Sr. did not visit Manuel, Jr. for the seven months preceding September 1.*fn9 During the September 1 visit Manuel, Sr. did not assume a parental role and at the close of the visit Manuel, Jr. showed no distress. Later that month Manuel, Sr. quit his drug treatment program. He had no further contact with Manuel, Jr. It is not reasonably probable Manuel, Sr. would have achieved a more favorable result had the court found ICWA applied.

III

THE SIBLING RELATIONSHIP EXCEPTION

Section 366.26, subdivision (c)(1)(B)(v), provides an exception to termination of parental rights when termination would substantially interfere with the child's sibling relationship and the severance of the relationship would be so detrimental to the child as to outweigh the benefits of adoption. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-953; § 366.26, subd. (c)(1)(B)(v).) The juvenile court must "balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (In re L.Y.L., supra, at p. 951, citing In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Factors to be considered in determining whether the sibling relationship exception applies include whether the siblings were raised in the same home; whether they shared significant common experiences or have existing close and strong bonds; and whether ongoing contact is in the child's best interests, including his long-term emotional interests, as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(v).) "[T]he application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.) Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the juvenile court's finding that Chelsea did not meet her burden of proving the exception. (In re L.Y.L., supra, at pp. 947, 952.)

Manuel, Jr. and his older siblings, T.G. and A.G., lived together almost constantly from the time Manuel, Jr. was a few months old. Manuel, Jr. and his younger sibling, Michael, lived together from the time Michael was a few months old. At the time of the section 366.26 hearing, Manuel, Jr. was three and one-half years old. Because he lived with his siblings for most of his life, Manuel, Jr. shared experiences with them. His sibling relationships were significant to him. Manuel, Jr. enjoyed living with his siblings and showed affection for them. Manuel, Jr. and his siblings still lived together in the G.'s' home, although it was not guaranteed this would continue. In any case, Manuel, Jr. needed permanency. Even if termination of parental rights substantially interfered with his sibling relationships, there was no showing the severance of those relationships would be so detrimental to him as to outweigh the benefits of adoption. The court did not err in declining to apply the sibling relationship exception.

DISPOSITION

The judgment is affirmed.

WE CONCUR: HALLER, J. McDONALD, J.


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