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Pit River Tribe v. the Superior Court of Sacramento County

September 14, 2011

PIT RIVER TRIBE, PETITIONER,
v.
THE SUPERIOR COURT OF SACRAMENTO COUNTY, RESPONDENT; SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES ET AL., REAL PARTIES IN INTEREST.



(Super. Ct. No. JD223652)

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

Pit River Tribe v. Super. Ct.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Petitioner Pit River Tribe (the Tribe) seeks an extraordinary writ to vacate the order of the juvenile court at a postpermanency planning hearing (Welf. & Inst Code, § 366.28),*fn1 at which it found good cause to deviate from the placement preferences set forth in the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) The Tribe contends the good cause finding was in error because there was a failure to comply with the ICWA's notice and placement requirements. Because the social services agency failed to use the services of the Tribe to secure a placement conforming to the ICWA placement preferences, failed to expeditiously evaluate the relatives recommended by the Tribe for placement, failed to assist in obtaining a criminal record exemption or adequately explain why it did not do so for one of the ICWA-compliant placement options, and failed to apply the Tribe's social and cultural standards when assessing the relative's home, we are compelled to agree.

FACTUAL AND PROCEDURAL BACKGROUND

A dependency petition was filed in Shasta County in August 2005 concerning two-day-old T.S. (the minor), based primarily on the parents' substance abuse. The minor's mother has Indian heritage through the Tribe, which determined the minor was an Indian child and intervened in the proceedings. The matter eventually was transferred to Sacramento County, where the parents' services were terminated due to noncompliance with their case plans, and a section 366.26 hearing was set to select and implement a permanent plan for the minor.

The Tribe passed a resolution establishing placement with the mother's cousins as "the first order of placement preference" for the minor. However, placement with these relatives was not approved because of their criminal history. Another maternal relative -- Jennifer A. -- was assessed for placement and also was denied approval because of her criminal history.

At the section 366.26 hearing in July 2008, an adoption social worker testified that the minor was generally adoptable and that an Indian foster family agency had identified a placement for the minor in which one of the foster parents was a member of the Tribe. She maintained she would be able to find another Indian family to adopt the minor if this particular family was not willing to do so. The Tribe continued to support a permanent plan of guardianship, with placement of the minor in the home of the maternal cousins.

Concluding it retained discretion to find adoption in a child's best interests even when a tribe identifies guardianship or long-term foster care as the preferred permanent plan, the juvenile court ordered a permanent plan of adoption and terminated parental rights. The father appealed the juvenile court's orders, which we affirmed. (In re T.S. (2009) 175 Cal.App.4th 1031.)

The day after the hearing, the minor was placed through the Tribal Economics and Social Solutions Agency (TESSA) with a prospective adoptive family. However, TESSA decertified the home the following year as a result of concerns about the care the minor was receiving. In June 2009 the minor was placed in a home with an approved adoption home study, in which one parent was a member of the Tribe. Although this family, too, initially avowed a commitment to adopting the minor, by mid-December 2009 the family had changed its mind. At this point, the minor, now four and one-half years old, was evincing behavioral difficulties such as lying, being defiant, throwing tantrums, urinating and defecating on himself, refusing to eat, drinking water excessively, and experiencing sleep disturbances. The minor had exhibited these types of behaviors in his previous placement, only not as severely.

In its report for the review hearing in December 2009, the Sacramento County Department of Health and Human Services (the Department) disclosed that it had not identified another adoptive home for the minor, although a potential family was being evaluated. The Department anticipated the minor would transition into a new home within two months.

Notice of the December 2009 review hearing was sent to the Tribe.*fn2 However, the notice indicated that the social worker was not recommending a change in placement. Additionally, the Tribe was not provided the Department's report for the hearing, which contained information about the need to find a new placement for the minor. Although the social worker for the Department, Colleen Gonzalez, tried to contact the Tribe by telephone while attempting to find a placement for the minor, she was unable to reach anyone or leave a message. The Department did not attempt to contact the Tribe by letter or any other means regarding the impending placement change.

The Tribe did not appear at the review hearing, which occurred on December 22, 2009. The juvenile court continued the matter two months for a report "regarding the progress in finding an adoptive home." A copy of the minute order from this hearing was sent to the Tribe.

The minor was placed in a new prospective adoptive home on January 8, 2010. The home had an approved adoption home study, but neither parent was Native American.

The Tribe's representative, Susan Alvarez, appeared at the next hearing, which took place in late February 2010, and informed the court that the Tribe had not received timely notice of the minor's most recent placement change. Alvarez submitted a tribal resolution for placement of the minor with Mary M., the minor's maternal aunt, and the court ordered Alvarez to provide a copy of the resolution to the other parties.*fn3 The matter was continued to June 2010.

According to the Department's report for the June hearing, the minor had established a strong bond with the new adoptive family, and his previous behavioral problems were no longer a concern.

At the hearing in June 2010, tribal representative Alvarez stated that when she contacted social worker Gonzalez about assessing Mary M., Gonzalez responded that she was not required to assess the Tribe's preference for placement because the minor was in a preadoptive home. According to Alvarez, Gonzalez also informed Mary M. that the Department would not be assessing her home for this reason. The attorney for the Department reiterated this position, maintaining that, as the minor already had been placed in the prospective adoptive home when the Tribe's resolution for placement was filed, there was no basis to remove the minor from that home in the absence of "some sort of a motion . . . ." The minor's attorney also objected to consideration being given to moving the minor to the home of a relative, maintaining that the Tribe chose to absent itself from the previous hearing and had waited too long to assert a placement preference. The juvenile court expressed that the Department was "thwarting the Court's ability to make the kind of weighing that the Court is supposed to make" by not "assessing this person and at least giving a position." The court continued the review hearing for the parties to brief the issue.

At the following hearing in July 2010, the attorney for the Tribe requested an assessment of Mary M.'s home and an evidentiary hearing as to whether there was good cause to deviate from the ICWA's placement preferences. The court took these issues under submission.

At a hearing a week later, the court found a lack of evidence that the Department made a diligent effort to identify a family meeting the ICWA's placement preferences prior to placing the minor in his current home. The court noted that "[a]n attempt to telephone the [T]ribe and finding that a voice-mail is full is not the kind of notice to the [T]ribe that is required for the Department to enlist the [T]ribe's services to meet the requisite preferences . . . ." The court found unpersuasive the Department's reliance on the absence of an order (presumably, to assess placement with Mary M.) at the hearing in February 2010 and rejected the Department's argument that it had discretion to select an adoptive placement, concluding that discretion is limited when placing an Indian child. The court ordered a placement assessment of Mary M. and set the matter for an evidentiary hearing on whether there was good cause to deviate from the ICWA's placement preferences.

In August 2010 it was disclosed that Mary M. was no longer interested in having the minor placed with her. The Tribe requested a reassessment of Jennifer A., who had not passed the assessment process previously because of a 1995 misdemeanor conviction for infliction of corporal injury upon a spouse. Jennifer A. had visited the minor throughout the dependency proceedings, except for a period beginning in 2009 when the Department discontinued visits in an effort to maintain the minor's placement. Jennifer A. contacted the social worker during this time about reinstating visits. The court confirmed the evidentiary hearing to clarify the reasons why Jennifer A. previously was found unsuitable for placement.

A few days later, the Tribe filed a formal request for assessment of Jennifer A., stating it would seek an exemption from the State Department of Social Services regarding her criminal record.

At a hearing in September 2010 social worker Gonzalez testified that although she had been unsuccessful in contacting the Tribe while investigating a new placement for the minor, she looked for an Indian family on the adoption agency list of certified adoptive homes, and the Department called other agencies in this regard. She explained she did not consider placing the minor with a family through TESSA, because these families, while "potentially . . . interested in adoption," did not have completed home studies, which she felt was necessary to avoid further delays in permanency for the minor. At a later hearing, Gonzalez explained she also was looking for a family that could meet the minor's special needs in terms of his behavioral problems.

Tribal representative Alvarez testified she found out the minor had been moved when Jennifer A. called her in January 2010 to inform her of the placement change. She acknowledged that, other than contacting the child's family, the Tribe had no services for finding placements.

The Department and the minor's attorney maintained the Tribe knew in advance that the minor was going to have to be moved but waited until after the placement change to come forward with an ICWA-compliant placement. The Department's attorney noted that the placements previously identified by the Tribe had all been "inappropriate in some way." The Department also maintained that ...


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