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In Re Jack C., Iii, A Person Coming Under the Juvenile Court v. J. C. et al

February 15, 2011

IN RE JACK C., III, A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
J. C. ET AL., DEFENDANTS AND APPELLANTS. IN RE ELIZABETH. P. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
J. C. ET AL., DEFENDANTS AND APPELLANTS.



Super. Ct. No. J516832A,B,C Super. Ct. No. J516832 CONSOLIDATED APPEALS from orders of the Superior Court of San Diego County, Yvonne E. Campos, Judge. Reversed with directions.

CERTIFIED FOR PUBLICATION

M. Elizabeth Handy, under appointment by the Court of Appeal, for Minors.

J. C. and Anna C. appeal orders denying a petition to transfer dependency jurisdiction to the Bois Forte Band of the Minnesota Chippewa under title 25 United States Code section 1911(b) and Welfare and Institutions Code*fn1 section 305.5, subdivision (b). We reverse the orders with directions.

FACTUAL AND PROCEDURAL BACKGROUND

J. C. and Anna C. (the parents) have four children, Jackie P., Elizabeth P., Andrew P. and Jack C., III (Jack). Jackie is now 18 years old and is not the subject of these proceedings. Elizabeth, Andrew and Jack (the children) are ages 16, 15 and 4 years, respectively. The family's history was detailed in a previous appeal. (In re Jack C. III (Jun. 11, 2008, D052156) [nonpub. opn.].) Here, because the issues on appeal concern compliance with the Indian Child Welfare Act, title 25 United States Code section 1901 et seq. (ICWA), we only briefly discuss the underlying circumstances of the dependency proceedings.

The parents have a history of child welfare referrals due to substance abuse, domestic violence and Anna's mental health condition, which was diagnosed as schizophrenia. In 2005, to avoid dependency proceedings, the maternal grandparents became the legal guardians of Jackie, Elizabeth and Andrew. Jack was born in June 2006. In September 2007, after Anna was arrested for assaulting and injuring Jackie, Jack became a dependent of the juvenile court and was placed with his maternal grandparents.

When Jack's dependency proceedings began, J. C. informed the social worker his paternal grandmother, Dorothy Ann B., was a registered Chippewa Indian. J. C. did not know whether he or his siblings were registered tribal members. They had lived on the Nett Lake Chippewa reservation for one to two years in the late 1960's. J.C. did not have contact information for his siblings.

In October 2007 the San Diego County Health and Human Services Agency (the Agency) sent notice to the six bands of the Minnesota Chippewa Tribe.*fn2 The bands indicated Jack was not eligible for enrollment.*fn3 In January 2008 the court found that ICWA did not apply.

In April 2009 the court terminated reunification services in Jack's case and set a section 366.26 hearing.

In May 2009 the Agency initiated dependency proceedings on behalf of Elizabeth and Andrew (the siblings). The grandparents could not manage the siblings' out-of-control behaviors and decided to terminate the guardianship. The siblings were living with the parents, whose chaotic circumstances had not changed since Jack was detained in protective custody.

When the siblings' dependency proceedings began, J.C. reported that his maternal great-grandparents were members of the Nett Lake Indian tribe and his brothers and sisters were registered members of the tribe.

In September 2009 the social worker contacted the children's paternal uncle, who said he was a member of the Bois Forte Band of Minnesota Chippewa (Band). The social worker sent notice to the Band with more information about the family than it provided to the Band in 2007. On receipt of notice, the Band stated the children were eligible for enrollment and notified the trial court of its intent to intervene in the children's dependency proceedings.

On October 7, 2009, J.C. petitioned to transfer jurisdiction of the children's dependency cases to the Band (the transfer petition). On October 15, the Band notified the trial court it was exercising its right to intervene in the children's cases under title 25 United States Code section 1911(c). On October 19, Angela Wright, the Indian Child Welfare Supervisor for the Band, averred the children's dependency proceedings were governed by ICWA because the minor children were eligible or enrolled members of the Band.

The Agency opposed J.C.'s petition to transfer jurisdiction to the Band. The court continued the hearings in the children's cases to allow the Band to respond to the transfer petition.

In Jack's case, the court considered the transfer petition at his section 366.26 hearing, which began on March 5, 2010. The court admitted the Agency's reports in evidence. Angela Wright appeared telephonically on behalf of the Band. She testified the Band was in agreement with termination of parental rights and Jack's adoption by his maternal grandparents. Wright was not aware of the tribal court's position on accepting jurisdiction; however, the Bois Forte Commissioner of Judicial Services was scheduled to meet with the Band's prosecuting attorney, Thomas Sjogren, to determine the Band's position.

On March 19, 2010, the court admitted a letter it had received from Sjogren in evidence. Sjogren stated he represented the Band in all child protection proceedings in its tribal court. The Band did not join the father's petition to transfer jurisdiction; however, it formally intervened in the children's cases on October 15, 2009, under title 25 United States Code section 1911(c). The Band did not automatically accept transfers. The tribal court considered each case on its merits and assessed the effect transfer may have on the child, the parent seeking transfer and the Band. The tribal court did not issue advisory opinions and would not determine whether to accept or decline jurisdiction until the state court transferred the case.

Sjogren stated that according to the tribal enrollment coordinator for the Band, J.C. was not currently a member of the Band. J.C.'s enrollment application was incomplete pending receipt of a certified copy of his birth certificate. The children "possess[ed] a Bois Forte degree of Indian blood of 1/4" and were eligible for enrollment. However, their applications for enrollment could not be completed until J.C.'s application was processed.

With respect to the children's status, Sjogren wrote, "There is no question in my mind that these are Indian children who will ultimately be enrolled in the Bois Forte Band of Lake Superior Chippewa upon completion by someone of the necessary paperwork." Sjogren stated the "bureaucratic" requirements were necessary because in addition to ICWA protections, there were substantial other benefits associated with tribal membership, including hunting, fishing, trapping and gathering privileges, annual per capita distributions from the Band, and eligibility for tribal, state and federal programs.

Wright testified that the tribal court was able to take custody over children before they were enrolled in the Band. The Band could then complete the enrollment process. Jack's adoptive parent would also be able to enroll him in the Band.

The trial court denied the motion to transfer jurisdiction in Jack's case. The court stated it was not satisfied Jack was "an Indian child as defined by the law, notwithstanding that he may later become an Indian child and notwithstanding there's no doubt he may later become an Indian child." The court said even if Jack were an Indian child, the petition to transfer jurisdiction to the Band was not filed within a reasonable time after notice of the entirety of the proceedings. The court incorporated the arguments of the Agency and minor's counsel in its findings. Counsel had argued transferring jurisdiction to the Band would create an undue hardship for the parties and impede the presentation of evidence on Jack's behalf. The trial court found that Jack was adoptable and terminated parental rights.

On June 2, 2010, at the conclusion of the contested disposition hearing in the siblings' cases, the court stated Elizabeth and Andrew were not currently members of the Band and therefore were not Indian children within the meaning of ICWA. Without further hearing, the court took judicial notice of Jack's file, and incorporated by reference its findings and orders with respect to the transfer petition. The court bypassed reunification services and ordered alternative permanent placement plans of long-term foster care for the siblings. Wright appeared telephonically and concurred with the recommended disposition.

The Agency informed the court it had a certified copy of J.C.'s birth certificate in its possession. The court ordered the Agency to send J.C.'s birth certificate to the Band.

APPELLATE MOTIONS

In In re Elizabeth P. et al., the Agency asks this court to augment the record with a Status Review Report dated November 18, 2010, to show that the siblings are enrolled members of the Minnesota Chippewa Tribe. (Cal. Rules of Court,*fn4 rule 8.155(a)(A)(1) [on the motion of any party, the reviewing court may augment the record to include any document filed or lodged in the case in superior court].) In In re Jack C., III, J.C. asks this court to take judicial notice of the same report for the same purpose. (Code Civ. Proc., § 909; Evid. Code, §§ 452, 459.)

We grant the motion to augment the record with the Agency's November 18, 2010 report and the request to take judicial notice that the Minnesota Chippewa Tribe enrolled Elizabeth and Andrew as tribal members on November 4, 2010. Minor's counsel also informs this court the Minnesota Chippewa Tribe enrolled Jack as a tribal member on November 17, 2010.

DISCUSSION

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