Siskiyou Cnty. Health & Human Servs. Agency v. A.A. (In re K.L.)

237 Cal. Rptr. 3d 915, 27 Cal. App. 5th 332
CourtCalifornia Court of Appeal, 5th District
DecidedSeptember 18, 2018
DocketC079100
StatusPublished
Cited by4 cases

This text of 237 Cal. Rptr. 3d 915 (Siskiyou Cnty. Health & Human Servs. Agency v. A.A. (In re K.L.)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Siskiyou Cnty. Health & Human Servs. Agency v. A.A. (In re K.L.), 237 Cal. Rptr. 3d 915, 27 Cal. App. 5th 332 (Cal. Ct. App. 2018).

Opinion

HULL, Acting P. J.

*334Appellant, the noncustodial biological father of the minor, appeals from the juvenile court's dispositional judgment, removing the minor from his mother and placing him with his presumed father, L.V. ( Welf. & Inst. Code, § 395 [unless otherwise set forth, statutory section references that follow are to the Welfare and Institutions Code].) The Karuk Indian Tribe has intervened on appeal. They contend the juvenile court failed to comply with the procedural requirements of the Indian Child Welfare Act of 1978 (hereafter ICWA) in entering its dispositional judgment. ( 25 U.S.C. § 1912.) Finding the provisions of ICWA do not apply, we affirm the judgment.

FACTS AND PROCEEDINGS

In August 2014, the Siskiyou County Health and Human Services Agency (hereafter Agency) filed a section 300 petition on behalf of the two-year-old minor and his older half sibling, after mother was arrested for child cruelty and possession of a controlled substance. The minors were temporarily detained together in a nonrelative foster home. L.V. is the father of the minor's half sibling. (The minor's half sibling is not a subject of this appeal.) The petition alleged that the minor's father's identity was unknown. Shortly after the minor was born, L.V. took the minor into his home where he lived for several months. Initially, L.V. believed he was quite probably the minor's father and treated him as such. When the minor was four months old, a DNA test, requested by mother, confirmed L.V. was not the minor's biological father. Nonetheless, L.V. continued to treat the minor as his own. The juvenile court found L.V. to be the minor's presumed father. The Agency *917thereafter placed the minor and his half sibling with L.V.

Shortly after these proceedings commenced, paternity test results revealed appellant, A.A., to be the minor's biological father. Appellant had never met the minor and had only recently learned of the minor's existence. Appellant is an enrolled member of the federally recognized Karuk *335Indian Tribe (hereafter the Tribe). (79 Fed. Reg. 4748, 4750 (Jan. 29, 2014).) The Agency sent ICWA notice to the Tribe. The Tribe confirmed that it was in the process of enrolling the minor and informed the juvenile court that it intended to intervene in the proceedings after its next council meeting on December 18, 2014.

The combined jurisdiction and dispositional hearing took place on December 8, 2014. The juvenile court acknowledged that the minor was an Indian child but, because the minor was being removed from one parent and placed with L.V., his presumed father, the juvenile court found the ICWA procedures, including expert testimony and placement preferences, were not triggered. The juvenile court sustained the allegations in the section 300 petition, declared the minor a dependent child of the court, placed the minor (along with his half sibling) with his presumed father, L.V., and ordered family maintenance services for L.V. Mother was also provided with reunification services. Because appellant was required to register as a sex offender, he was bypassed for reunification services pursuant to section 361.5, subdivision (b)(16). The case was then transferred to Humboldt County, where L.V. lives.

DISCUSSION

Appellant and the Tribe argue extensively that the ICWA required that the juvenile court's order removing the minor from his mother and placing him with his presumed father be supported by the testimony of an expert witness and otherwise comply with the ICWA placement preference requirements. Since we agree with the juvenile court that the minor was not placed in "foster care" and the proceeding was not a "child custody proceeding" within the meaning of the ICWA, we hold that compliance with ICWA provisions was not required at disposition.

Congress passed the ICWA "to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children 'in foster or adoptive homes which will reflect the unique values of Indian culture ....' " ( In re Levi U. (2000) 78 Cal.App.4th 191, 195, 92 Cal.Rptr.2d 648 ; 25 U.S.C. § 1902 ; Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 56, fn. 2, 109 S.Ct. 1597, 104 L.Ed.2d 29.)

In furtherance of that policy, the ICWA provides for a heightened standard of proof prior to removal of a minor at disposition. Specifically, the ICWA provides that "[n]o foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." ( *33625 U.S.C. § 1912(e).) "Foster care placement" is expressly defined as "any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand." ( 25 U.S.C. § 1903(1)(i).) By its terms, foster care does *918not include placement with one of the parents. (See In re J.B. (2009) 178 Cal.App.4th 751, 758, 100 Cal.Rptr.3d 679

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Cite This Page — Counsel Stack

Bluebook (online)
237 Cal. Rptr. 3d 915, 27 Cal. App. 5th 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/siskiyou-cnty-health-human-servs-agency-v-aa-in-re-kl-calctapp5d-2018.