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

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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