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In re Autumn K.

California Court of Appeals, First District, Second Division

November 20, 2013

In re AUTUMN K., a Person Coming Under the Juvenile Court Law.
PATRICIA M. et al., Defendants and Appellants. DEL NORTE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,

Del Norte County Superior Court No. JVSQ11-6026, Honorable John R. Morrison, Trial Judge[*]

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Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant Patricia M.

Elysa J. Perry, under appointment by the Court of Appeal, for Defendant and Appellant Bryan K.

Charles N. Henry for Yurok Tribe as Amicus Curiae on behalf of Defendants and Appellants.

Gretchen Stuhr, County Counsel, and Elizabeth Cable, Deputy County Counsel, for Plaintiff and Respondent.


Richman, J.

This appeal challenges an order terminating the parental rights of mother Patricia M. and father Bryan K. to their daughter Autumn K. and placing the child for adoption. Because Autumn was of Chickasaw descent and thus an Indian child, the dependency proceeding fell within the provisions of the Indian Child Welfare Act of 1978 (ICWA), 25 United States Code section 1901 et seq. As such, there were particular substantive requirements with which the juvenile court was obligated to comply when selecting a permanent plan for Autumn. Most significantly, absent good cause to deviate from this requirement, ICWA obligated the court to place Autumn with a member of her extended family, a member of her tribe, or another Indian family. (25 U.S.C. § 1915.) Here, there were two potentially viable, ICWA compliant placements: maternal grandmother Teresa, who had custody

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of Autumn’s six siblings and had sought placement of Autumn from the outset of the dependency case, and maternal aunt Beatrice. Despite that, the court, relying on a conclusion by respondent Del Norte County Department of Health and Human Services (Department) that Autumn could not be placed in her grandparents’ home, placed Autumn in a non-Indian home with a distant relative.

On appeal, the parents contend the juvenile court erred for a multitude of reasons. We agree with one argument that necessitates reversal: the Department erred in determining maternal grandfather Jose had a nonexemptible criminal conviction such that Autumn could not be placed with her grandparents. We conclude two different statutory provisions instructed that the conviction was in fact exemptible, and the Department was thus obligated to evaluate the request for an exemption on its merits. We therefore reverse.


Autumn’s Birth and the Indian Custodian Designation Forms

Autumn was born on February 23, 2011, in Crescent City. She was the seventh child born to Patricia and the only one fathered by Bryan. Due to Patricia’s long history of substance abuse, her six other children lived with her mother, Teresa, under legal guardianships through the probate department. According to Patricia, before Autumn’s birth and again immediately after, she executed an Indian custodian form designating Teresa as Autumn’s Indian custodian. The form was entitled “Reighini Rancheria/Social Service Designation of Indian Custodian (25 U.S.C. § 1901, et seq).” As provided in the form, Patricia transferred the care and custody of her daughter to Teresa, designating her as Autumn’s Indian custodian. Teresa also signed the forms, accepting the designation. According to Patricia, Bryan was present both times the form was signed.

Autumn’s Initial Removal From Her Parents’ Care

Although Patricia tested positive for amphetamines and methamphetamines on multiple occasions during her pregnancy, both she and Autumn tested negative for drugs at the time of Autumn’s birth. Nevertheless, a social

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worker from the Department appeared at the hospital and removed Autumn from Patricia’s and Bryan’s care, placing her in protective custody. According to both Patricia and Teresa, they attempted to give the Indian custodian forms to the social worker to prevent Autumn’s removal, but the social worker would not take them.

Five days after Autumn’s birth, the Department filed a Welfare and Institution Code section 300[2] petition alleging that the infant came within the juvenile court’s jurisdiction pursuant to subdivisions (b) and (j) due to her parents’ substance abuse problems. Shortly thereafter, Patricia signed a parental notification of Indian status, representing that she was a member of the Chickasaw Nation. Notice of the dependency proceeding was sent to the Chickasaw Nation as required by ICWA.[3]

Autumn’s Return to Patricia’s and Bryan’s Care

At a detention hearing a week after Autumn’s removal, the court ordered her returned to her parents’ care on the conditions they reside in the home of Teresa and José and abstain from drug use. The family was provided family maintenance services.

Detention and Jurisdiction

On April 22, 2011, the Department filed a section 387 petition alleging that both parents had recently tested positive for drugs. A detention report filed the same day recommended Autumn be detained. At a detention hearing, the court adopted the Department’s recommendation, and Autumn was placed in foster care. At the hearing, Teresa addressed the court, asking why Autumn could not remain in her home. The transcript of the hearing is not in the record, and the minutes of the hearing do not reflect the court’s answer. It is suggested elsewhere, however, the court was concerned about Teresa’s ability to adequately care for her newborn granddaughter given that she was already caring for Patricia’s six other children, as well as her own adult son who was suffering from Leukemia.

At a jurisdictional hearing the following week, the parents pleaded no contest to the allegations in the supplemental petition, and the matter was continued for disposition. The possibility of overnight visitation with Teresa was discussed, but the social worker believed it was too early, and the court agreed.

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At some point subsequent to the jurisdictional hearing, Teresa submitted an application for placement of Autumn. The Department denied it by letter dated May 25, 2011. The reason for the rejection was given as follows: “The Department does not feel that you have the ability and capacity to provide the care and supervision to meet the child’s needs at this time.”

Disposition and Family Reunification Services

A contested dispositional hearing was held on June 17, 2011. At the hearing, Teresa submitted multiple letters attesting to the skill and compassion with which she cared for her grandchildren. In one, the Del Norte High School assistant principal described how involved Teresa had been in the schooling of her other grandchildren, attending important academic meetings concerning the children, making sure they were involved in local sports, and responding to discipline issues. In another, the Crescent Elk Middle School dean of students represented that Teresa had “advocated strongly for her grand-children, exhibiting a professional and open-minded approach to issues and discussions regarding their education. She genuinely has their best interest in mind at all times, and places them at the forefront of her life.” According to the dean, “She stands up for them when necessary, and holds them accountable as well.” He described what a “positive influence” Teresa had been on her grandchildren and represented that she provided them “with a safe, comfortable, and positive household environment.” The Joe Hamilton Elementary School principal described how whenever one of the younger grandchildren, who was a special education student, had a bad day, Teresa would quickly respond to calls from the school and calmly speak to her grandson about the issues he was having. She was, according to the principal, “able to reason with him in a supportive way that often gets him back on track and ready to return to the classroom.”

Included in the packet of letters was one from Teresa herself, responding to the May 25 letter rejecting her request for placement. According to Teresa, she had been told the denial was based on an incident that happened in 2006. She advised the Department: “That incident was cleared up and I was not found at fault. Most of my grandchildren have mental health needs and as a concerned grandparent I took it upon myself to take a class from Del Norte County Child Care Council: The Incredible Years. I completed and received a certificate for 24 hours of participation, this class lasted two weeks. This class gave me a better understanding of ADHD issues and concerns.” She asked the Department to consider the goal of ICWA to “ ‘protect the best interest of Indian children and to promote the stability and security of Indian Tribes and families.’ ” In closing, she noted that her son had cancer and, although she

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had been taking care of him, he was in remission, which would allow her to spend more time with her grandchildren.[4]

At the hearing, a representative of the Chickasaw Nation advised that the tribe was recommending placement with Teresa. The Department represented that it supported any placement recommendation by the tribe. Despite this, the court voiced concerns regarding placement with Teresa, ultimately ordering that Autumn was to remain in her foster care placement while the Department provided family reunification services to both parents. The matter was continued for a six month review.

Autumn’s Placement With Amanda and Caleb C.

In September 2011, Patricia developed concerns about the foster home in which Autumn had been living since her April detention. She asked the Department to place Autumn with Amanda C. and Caleb C. (collectively, the C.’s), who were licensed foster parents. Caleb was Patricia’s former parole agent, and Amanda was her second cousin, making Amanda and Autumn second cousins once removed. Autumn was placed with them on October 15, 2011.

The Chickasaw Nation Intervenes

On November 28, 2011, the Chickasaw Nation, by Indian Child Welfare social worker Regena Frye, moved to intervene in the case, which motion the juvenile court granted on December 9, 2011.

Six Month Status Review

Meanwhile, on December 7, 2011, the Department filed a six month status report, advising that both parents were homeless, were still actively using drugs, and had made little to no progress on their case plans, having failed to stay clean despite multiple attempts at rehabilitation. In light of the parents’ failed efforts to achieve and maintain sobriety, the Department considered it unlikely Autumn would be able to reunify with them within 12 months from detention. It therefore recommended termination of reunification services for both parents. The Department represented that the current foster parents—the C.’s—were extended family members of Patricia, although the nature of the relationship was not specified. The Department also noted that Patricia’s sister in Oregon (later identified as Beatrice) had contacted the Department regarding placement but subsequently declined to move forward with the placement application.

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On December 13, 2011, Teresa submitted yet another request for placement, addressing claims that her home was not fit for Autumn to live in. In terms of space concerns, she advised that each grandchild had a bed and space for his or her personal items. The same would be the case for Autumn. According to Teresa, “She would be with her brothers and sister. She would be part of the family on a daily basis. She would be able to grow up among her family. I have recently lost a son and my time is open to care for Autumn without other outside appointments. I am very capable of caring for my granddaughter and want to keep the children together.”

Teresa described how she would maintain Autumn’s connection to the Indian community: “My family is part of this Indian community and my grandchildren participate in local Native community events and activities throughout the school year and summer. Even though we are not from here, we are part of this Native community and my grandchildren are able to experience and learn local culture, language, tradition[]s. Autumn, being in my home, would allow her to participate, experience and learn her Native heritage from her family and community. If Autumn continues to be placed out of our home, it is not guaranteed that she will have these experiences as a Native person. ICWA law [was] created to prevent this from happening. To[o] many Native children are taken away from their family, culture and Native teaching and I ask that I be given a chance to raise my granddaughter with her brothers and sister and among the Native community.”

Teresa also detailed the school and extracurricular schedules of her six other grandchildren, demonstrating that, given their schedules, she and Autumn would have four hours to themselves each morning. She acknowledged the concern that her husband José had “several DUI’s, ” but represented she was the sole transporter of her grandchildren, and would be for Autumn as well. She also identified three individuals who were available to help should she need assistance in transporting the children to their numerous activities.

On December 20, 2011—two weeks after the Department recommended termination of reunification services—Frye submitted a report on behalf of the Chickasaw Nation. She advised that in a December 2 conversation with Department social worker Bob Beck, Beck had represented that despite a recent relapse by Patricia, the Department would continue to offer reunification services, a representation he then contradicted in the December 7 status report. Frye further advised that the Chickasaw Nation was recommending continued reunification services “in an ‘Active Effort’ to prevent the breakup of the Indian Family.” She also requested the Department consider placing Autumn with her grandmother and half-siblings.

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On December 29, 2011, Teresa filed a de facto parent request. In addition to detailing the amount of time she spent with Autumn and the activities she did with her, Teresa once again requested placement of Autumn so she could be with her family.

The matter came on for a six month review on January 6, 2011. At the hearing, Frye, who appeared telephonically, represented that the tribe wanted Autumn placed with Teresa under a legal guardianship. The Department, however, recommended Autumn remain in her current foster placement, as she was doing well there and the placement was ICWA compliant because the foster mother was a “member of the family.” The six month review hearing was continued for a contested hearing, and the court ordered Teresa be given a minimum of four hours a week visitation with Autumn.

On January 31, 2012, the Department filed an addendum report, this time recommending the continuation of reunification services to both parents until they had received “a year’s worth of reunification services from the time of detention....” The Department also advised it had assigned a new social worker so Patricia could focus on reunification rather than her feelings of conflict with the prior social worker. It recommended Teresa be given eight hours a month visitation instead of four hours per week because it felt four hours a week was “a bit much.”

On February 10, 2012, the court granted a request by the foster parents to be designated de facto parents. It also denied Teresa’s de facto parent petition and reduced her visitation to eight hours per month.

Prior to the contested review hearing, Teresa filed an amended de facto parent status request. In a supporting letter, she pleaded with the court: “When Autumn was taken from Patricia, it was not anything I was doing wrong. You said in court that because my younger son was dying from Leukemia you felt it was better to remove her. My son is gone and I now have time and space for Autumn. I feel I am being punished because of personal issues beyond my control. I would also like to restate that I have many support services and friends that are more than willing to help me transport the children to activities and appointments and school functions as needed. [¶] I am a devoted grandmother to my grandchildren and only want the best for them. I was raised, with the knowledge that the children should be kept together. We are taught to make do with what you have and provide and love all the children equally. I understand that the foster parents love Autumn too, but Autumn is my blood family and she should be with me and her brothers and sisters.” Teresa urged the court to give Autumn’s siblings “the opportunity to grow up with their younger sister. They miss her terribly.... I feel that this separation is breaking the bond the children need. [¶] I ask you

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to please consider the ICWA law, that stresses keeping the children together. Too many times in the past Native children have been taken away from family and adopted into non-Native homes. They loose their family identity, they loose their connection to their Native Heritage, culture and traditions. Our family is part of this Native community and would like Autumn to have the chance to experience her Native culture with her family . . . ." In support, Teresa appended letters from longtime friends and an employee of the Del Norte Indian Education Center in Crescent City, all of whom attested to her dedication to her grandchildren and her commitment to their upbringing.

Although it is unclear from the record how this came about, around that same time, the Department apparently determined that José had a criminal conviction that precluded placement. A request for an exemption of that conviction was made, which the Department denied on February 15, 2012.

Termination of Reunification Services

On February 21, 2012, the matter came on for a contested review hearing. Counsel for Autumn contested the Department’s new recommendation to continue reunification services, and the court took evidence on the matter. At the conclusion of the hearing, counsel for the Department advised it was now of the opinion that active efforts had been made to reunify the family, and it was no longer recommending additional reunification services.

After closing arguments, the court found by clear and convincing evidence that active efforts had been made to reunify the family but neither Patricia nor Brian had taken advantage of the many services provided. With that, the court terminated reunification services to both parents, and set the matter for a section 366.26 selection and implementation hearing on June 15, 2012. Autumn was maintained in her foster placement.

Patricia and Bryan Unsuccessfully Petition for Extraordinary Writ

On March 14, 2012, Bryan filed a petition for extraordinary writ, arguing that the juvenile court erred in finding the Department made “active efforts” to reunify the family. Patricia’s followed a week later, replicating Bryan’s petition word for word, save for the addition of Frye’s December 20, 2011 report as Exhibit A. We ordered the matters consolidated for all purposes, and by order dated May 25, 2012, we denied both writ petitions, affirming the juvenile court’s finding that the Department made active efforts to reunify the parents with Autumn. (Patricia M. v. Superior Court, supra, A134777.)

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Patricia Requests Reinstatement of Reunification Services

Meanwhile, on May 15, 2012, while the writ petitions were pending before us, Patricia filed a section 388 request, seeking reinstatement of reunification services on the grounds that she was participating in a treatment program and had been testing clean.

The Department Recommends Termination of Parental Rights and Adoption by the C.’s

On June 6, 2012, the Department filed a section 366.26 report recommending the court terminate the parental rights of Patricia and Bryan and select and implement a permanent plan of adoption. The Department advised that the parents continued to have problems. After services were terminated, Patricia made another effort at rehab. She relapsed again, however, proving to the Department she was unable to remain clean and sober. Bryan was incarcerated due to a domestic violence incident between him and Patricia. It summarized: “Both parents were offered services to reunify with their daughter for approximately 10 months. However, the active efforts by the Department were unsuccessful, as found by the Court in February in 2012 and confirmed by the Court of Appeal in June of 2012. It is also apparent that circumstances haven’t improved for the parents, and there is not a substantial probably [sic] that Autumn could be returned, if services were to be offered again. Therefore, the Department is recommending that the parental rights of the parents be terminated.”

In terms of a permanent plan, the Department recommended adoption by the C.’s: “Autumn is a 15 month old little girl who has spent the majority of her life bouncing back and forth from visits to her foster homes. Autumn is now in a loving, relative, two parent family home that is extremely dedicated to meeting her needs. The C.’s can offer Autumn a safe, stable, and secure parenting relationship, love, unconditional commitment, and lifelong support in a legal adoption. They can also offer her an opportunity to know her culture and her family. Autumn deserves permanency and normalcy in her life and the Department strongly believes the selection of the permanent plan of adoption with the C.’s would be in Autumn’s best interest.”

The Department represented that Amanda’s mother and Teresa were second cousins, making Amanda and Autumn second cousins once removed. As such, the Department claimed, the home met ICWA placement requirements. Further, while Amanda was non Indian, she grew up in an Indian household because her adoptive father was a Yurok tribal member. She had a “great” relationship with him, and he would assist in teaching Autumn about her Native American heritage.

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The Department noted that Teresa had requested placement of Autumn, but the request was denied through the licensing process, identifying José’s criminal history as the reason Autumn could not be placed in their home. According to the Department, it was clear Teresa loved Autumn, and the C.’s were hopeful that once the dependency proceeding concluded, Teresa could settle into her role as a grandmother to Autumn and move past her feelings of anger and disappointment so they could have a respectable working relationship for the sake of all of Teresa’s grandchildren.

In an adoption assessment appended to the section 366.26 report, adoption specialist Teddee-Ann Boylan recommended Autumn be adopted by the C.’s. According to the assessment, Autumn had a “secure and nurturing relationship with her potential adoptive family” and had “substantial emotional ties” to them. Removal from their care, Boylan opined, would be detrimental to Autumn’s well being, and she would benefit from the establishment of a permanent parent/child relationship with them.

Boylan also advised that the Chickasaw Nation’s first choice for Autumn’s placement was in Teresa’s home with her grandparents and half-siblings, if the grandfather’s nonexemptible criminal history could be expunged. Barring that, the tribe had initially agreed with placement with the C.’s, but then changed its recommendation, seeking placement of Autumn with maternal aunt Beatrice who lived in Oregon. The tribe believed this placement would be better for Autumn because it would ensure regular contact between Autumn and Teresa, contact that might not happen under adoption by the C.’s because Amanda and Teresa had “challenges in their relationship.”

Boylan also advised that Patricia claimed to have signed Indian custodial papers at the hospital that were not considered when Autumn was taken into emergency custody. Patricia worried about post-adoption contact with Autumn because she and Amanda did not get along. According to Boylan, ...

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