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In Re Anthony T., A Person Coming Under the Juvenile Court v. Brooke H

August 22, 2012

IN RE ANTHONY T., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT;
v.
BROOKE H., DEFENDANT AND APPELLANT; ANTHONY T., APPELLANT; TORRES MARTINEZ DESERT CAHUILLA INDIANS, INTERVENOR AND RESPONDENT.



APPEAL from an order of the Superior Court of San Diego County, Blaine K. Bowman, Judge. (Super. Ct. No. NJ14540)

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

CERTIFIED FOR PUBLICATION

Reversed.

Anthony T., a member of the Torres Martinez Desert Cahuilla Indian Tribe, and his mother, Brooke H., a non-Indian, appeal an order placing Anthony in foster care with an Indian family. They contend the placement is not within "reasonable proximity" to the child's home as required under title 25 United States Code section 1915, subdivision (b), and Welfare and Institutions Code section 361.31, subdivision (b).*fn1 We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Anthony T., born August 2011, is the son of Brooke H. and Ronald T.*fn2 Ronald is a registered member of the Torres Martinez Desert Cahuilla Indian Tribe (Tribe). Brooke has no known Indian heritage. The parents, who are not in a relationship, have histories of substance abuse and child welfare interventions. None of Brooke's or Ronald's other children are in their custody. Brooke's two other children are in a guardianship with relatives. Three of Ronald's children were adopted by Tribal members through dependency proceedings; two others are with an Indian custodian.

On November 3, 2011, the San Diego County Health and Human Services Agency (Agency) filed a petition on Anthony's behalf after he was detained in protective custody by police, who were responding to reports of a fight at Brooke's home. Brooke, who had left the scene and returned as the police were leaving with Anthony, was arrested for public intoxication. Police determined that both Ronald and Brooke were too intoxicated to care for Anthony. Both parents were charged with child endangerment.

The Tribe promptly intervened in Anthony's dependency proceedings.

The Agency placed Anthony in a foster home in northern San Diego County. The foster mother had some Indian heritage but not through the Tribe.

On December 15, the Tribe passed a resolution (Tribal Resolution) designating the home of Mr. and Mrs. H. (the H.'s) as "the tribally approved and culturally appropriate concurrent adoptive or foster home" for Anthony. The H.'s lived in Riverside County, approximately two-and-a-half hours from Brooke and Anthony's home in northern San Diego County. The Tribal Resolution stated the Tribe's primary goal was family reunification. Until the family was reunified, or in the event family reunification could not be safely achieved, placement with the H.'s was in Anthony's best interests as an Indian child because it preserved, protected and encouraged his connection to the Tribe, its culture and community, and his Tribal relatives.

The court adjudicated Anthony a dependent of the juvenile court on January 12, 2012. (§ 300, subd. (b).) At the Tribe's request, and over the Agency's and Brooke's objections, the court detained Anthony with the H.'s. Noting the placement created a "geographic barrier" to visitation, the court ordered the Tribe to transport Anthony to northern San Diego County for supervised visits with Brooke. The court said the temporary placement would allow the parties to assess the feasibility of the placement. If the distance created any problems with visitation, the court would reconsider its order at the dispositional hearing.

The dispositional hearing was held on January 24 and 25. The court admitted in evidence the Agency's reports and the declaration of Silvanna Osuna, an Indian expert, and took judicial notice of the Tribal Resolution. The court heard testimony from Osuna; Social Worker Sara Whitney; and Annette Chihuahua, Tribal delegate and ICWA case assistant.

Osuna said Anthony should remain in his current placement with the H.'s. She believed an Indian child should always be placed with a relative or tribal member, if that person was suitable.

Social Worker Whitney did not object to Anthony's placement with the H.'s. Nevertheless, she was concerned about the distance from the H.'s home to the Agency's office in Escondido, where visitation would occur. In view of Anthony's age, visits should occur at least twice a week to promote the parent/child relationship. A ...


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