as: 200 Cal.App.3d 657)
re ROBERT T., a Minor. ROBERT WEIGLE, as Chief Probation
T., Objector and Appellant
of Appeal, Sixth District, California.
In a proceeding to terminate an Indian mother's parental rights
as to one of her sons pursuant to Civ. Code,
subds. (a)(1), (a)(7), the trial court denied a petition by
the mother's tribe for transfer to the tribal court pursuant
to 25 U.S.C. § 1911(b),
and ordered the mother's rights terminated. The son had previously
been placed with foster parents by the juvenile court in
a dependency proceeding. (Superior Court of Santa Clara County, No.
A7080, Leonard P. Edwards, Judge.)
The Court of Appeal affirmed, holding that substantial evidence supported
the trial court's finding that there was good cause not
to transfer the case to the tribal court. Further, the
court held, the mother's contention that the foster placement
previously made by the juvenile court violated 25 U.S.C. § 1915
(preferences in placement of Indian children), and that the court
was obligated to compare the fitness of the foster parents
to that of the son's maternal aunt and uncle, who
wished the son to live with them on the pueblo
of the mother's tribe, was not before the court, since
the foster placement was not made by the trial court
in the termination proceeding, but by the juvenile court, and
the mother did not appeal the juvenile court's order. (Opinion
by Agliano, P. J., with Brauer and Capaccioli, JJ., concurring.)
to California Digest of Official Reports
Indians § 1--Termination
of Indian Mother's Parental Rights--Transfer to Tribal Court.
State court, rather than the tribal court, was the appropriate
jurisdiction to decide whether an Indian mother's *658
parental rights as to one of her sons should be
terminated, even though federal guidelines require transfer to a tribal
court in the absence of good cause. The 16-month delay
between the permanency planning hearing and the tribe's first expression
of intent to intervene was sufficient to support the state
court's finding of good cause, since a timely request to
intervene should at least precede permanency planning in
the dependency proceedings. Further, substantial evidence supported the state court's
finding of good cause on the ground that a state
court forum provided the better opportunity for the production of
Indians § 1--Termination
of Indian Mother's Parental Rights-- Transfer to Tribal Court--Consideration of
Child's Best Interests.
In a proceeding to terminate an Indian mother's parental rights
as to one of her sons, the trial court properly
considered the best interests of the son in denying a
petition by the mother's tribe for transfer to a tribal
court pursuant to 25 U.S.C. § 1911(b).
Best interests of the concerned minor are a pertinent and
indeed a necessary consideration in deciding whether to grant or
deny a transfer request.
Indians, § 8.7.]
Appellate Review § 151--Questions
of Law and Fact--Sufficiency of Evidence--Credibility of Witnesses.
The weight and credibility to be accorded the testimony of
witnesses are matters for the trial court.
Appellate Review, § 532.]
Indians § 1--Termination
of Indian Mother's Parental Rights--Appeal.
On appeal by an Indian mother of an order terminating
her parental rights as to one of her sons, the
mother's contention that the foster placement previously made by the
juvenile court violated 25 U.S.C. § 1915
placement of Indian children), and that the court was obligated
to compare the fitness of the foster parents to that
of the son's maternal aunt and uncle, who wished the
son to live with them on the pueblo of the
mother's tribe, was not before the court. The foster placement
was not made by the trial court in the termination
proceeding but by the juvenile court, and the mother did
not appeal the juvenile court's order.
Frieda Jo Owings, under appointment by the Court of Appeal,
for Objector and Appellant. *659
Donald L. Clark, County Counsel, and Diane L. Bennett, Deputy
Coutny Counsel, for Petitioner and Respondent.
Leo Himmelsbach, District Attorney, and Robert J. Masterson, Deputy District
Attorney, for Minor.
Devon T. appeals from an order and judgment terminating parental
rights to her son, Robert, under Civil Code section 232,
subdivisions (a)(1) and (a)(7). Robert was born to 15-year-old Devon
on April 27, 1981. Mauricio M. (aka Mauricio A.), Robert's
father, is of Mexican-American descent. Devon is of American Indian
and Eskimo descent; both Devon and Robert are enrolled members
the Santo Domingo Tribe. Robert is thus an "Indian child"
within the meaning of 25 United States Code section 1903(4),
and this case falls under the aegis of the Indian
Child Welfare Act (Act), 25 United States Code section 1901
Devon alleges that the court failed to comply with certain
provisions of the Act. Specifically, she claims it erred in
refusing to grant the Santo Domingo Tribe's petition to transfer
jurisdiction of the proceedings to the tribal court (25 U.S.C.
and that the court's placement of Robert with his foster-adoptive
parents violated 25 United States Code section 1915. We find
no error and affirm.
The judgment and order terminating appellant's parental rights, from which
this appeal arises, was filed on April 3, 1986. A
brief chronicle of the preceding five years is relevant to
the issues on appeal.
Devon and Mauricio became involved in a common law relationship
in October 1979. This liaison, which never resulted in marriage,
was to produce four children between April 1981 and September
1984. Social services had been provided both to Devon and
to Robert's maternal grandmother, Vickie T., prior to Robert's birth,
and Devon had been counseled on her need to complete
her high school education. But after Robert's birth, although Devon
agreed to improve her parenting skills and complete her education,
she moved frequently and
made little progress toward stabilizing her life.
At eight months, in December 1981, Robert was taken into
protective custody after the police received a report that Mauricio
had twice allowed him to fall from a car. A
petition alleging that Robert came within the *660
provisions of Welfare and Institutions Code section 300, subdivision (a),
based on Mauricio's abuse and on Devon's lack of support
and housing, was filed on December 22. A combined jurisdictional
and dispositional hearing was held on January 26, 1982. At
the hearing, Devon admitted the allegations of the petition and
Robert was made a dependent of the court. He was
released to Devon's custody provided she live in the home
of her father, that visitation by Mauricio be supervised and
that the court be consulted prior to Devon and Robert's
Devon moved with Robert without court approval on February 4,
1982, and for the next 11 months was apparently living
on and off in the Fresno area with Mauricio. A
Welfare and Institutions Code section 387 supplemental petition was filed
on February 23, 1982, alleging the violation of the court's
dispositional order, and on February 24, the court issued a
warrant for Robert's custody.
On September 7, 1982, Devon gave birth to another son,
Despite the case worker's contrary recommendation, the warrant was ordered
in effect at the annual review hearing on December 9,
On December 15, 1982, Devon and Robert were the subject
of a multidisciplinary team meeting which resulted in Robert's case
being transferred to an American Indian social worker, Otto Trabue,
on December 20, 1982. The team also recommended that the
tribal council be notified of the dependency proceedings.
On January 18, 1983, Robert was placed in protective custody
on the basis of the outstanding warrant. At the detention
hearing on January 20, Robert was ordered placed in emergency
foster care, and a jurisdictional hearing on the Welfare and
Institutions Code section 387 petition was scheduled for February 9,
1983. Devon admitted the allegations of the supplemental petition at
this hearing, and Robert was ordered to remain in foster
care. Although the court considered transferring the case to Fresno
County, Devon's residence there was never verified. On March 14,
the court reaffirmed its previous orders.
On April 8, 1983, Robert was placed in a second
In a social report filed on May 19, 1983, Mr.
Trabue informed the court that in accordance with 25 United
States Code section 1912, he had notified the Santo Domingo
Pueblo of the hearing originally scheduled for that date. In
light of the continued instability of Devon's life, and of
his concern for *661
the quality of Devon's care for Anthony T., Mr. Trabue
Robert be freed for adoption. At the June 2 hearing,
the court reiterated its previous orders.
Mr. Trabue also notified the tribe of the scheduled August
4, 1983, permanency planning hearing. In his court report of
the same date, he related that Devon was now pregnant
with her third child. He also related his discussions with
Vickie T. concerning the possibility of her providing a home
for Robert. In light of her alcohol-related problems, poor physical
health, lack of independent housing and inability to provide a
home to Devon and another daughter, Mr. Trabue concluded that
it would be unsuitable to consider placing Robert with his
maternal grandmother. On August 4 the court ordered the initiation
of parental termination proceedings to free Robert for adoption.
On September 7 Robert was placed back in his original
foster home. This same month, Devon gave birth to a
third son, Mauricio T.
On November 11, 1983, Robert was moved to a foster-adoptive
placement with the H's. They wish to adopt him.
The Welfare and Institutions Code section 366 dependency review hearing
scheduled for January 12, 1984, was continued to January 19
to allow the tribe, which had been notified of the
hearing on December 23 but had not received this notice
until January 4, 10 days to respond. On January 17
Mr. Trabue notified the court that Devon, then 17, was
pregnant with her fourth child.
The June 11, 1984, court report indicated that Robert was
thriving in his foster-adoptive placement. A long-term ear infection had
been resolved, a speech delay appeared to have been overcome,
and he was a happy, healthy three year old. Devon,
with her three younger sons, was currently seeking her fourth
housing situation since the previous hearing.
On November 5, 1984, a Civil Code section 232 petition
was filed alleging that under subdivisions (a)(1) and (a)(7), Robert
should be freed from parental custody and control. A Civil
Code section 233 report was filed on December 13, 1984.
Devon was then residing with her three other children, Anthony,
Mauricio and Danny, born in September 1984, at Unity House,
a temporary emergency housing facility for American Indian families. Devon
had visited Robert five times since his placement in foster
care in January 1983. The report recommended that the petition
At a hearing on December 21, 1984, Mauricio's parental rights
were terminated under Civil Code section 232, subdivision (a)(1), and
the matter *662
was continued to January 11, 1985, for tribal intervention on
Hearings on the termination petition were held on April 24,
May 22, June 4, 5, and 6, July 11, 26,
and 29, September 16 and 19, October 9 and November
8, 1985. On January 27, 1986, the trial court filed
a 54-page statement of decision, granting intervention, denying the petition
to transfer jurisdiction to
the tribal court, and granting the termination petition. A judgment
and order consistent with this decision was filed on April
3. This appeal followed.
As another appellate court has noted, "[t]he [Indian Child Welfare]
Act ... was enacted '... to protect the best interests
of Indian children and to promote the stability and security
of Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their
families and the placement of such children in foster or
adoptive homes which will reflect the unique values of Indian
culture, ...' ([25 U.S.C.] § 1902.)
The legislation was Congress' response to its findings that '...
an alarmingly high percentage of Indian families are broken up
by the removal, often unwarranted, of their children from them
by nontribal public and private agencies and that an alarmingly
high percentage of such children are placed in non-Indian foster
and adoptive homes and institutions; ...' ([25 U.S.C.] § 1901,
subd. (4); (see generally Barsh, The
Indian Child Welfare Act of 1978: A Critical Analysis
(1980) 31 Hastings L.J. 1287 ...; Note, The
Indian Child Welfare Act of 1978: Provisions and Policy
(1980) 25 San Diego L.Rev. 98.)" (In
re Junious M.
(1983) 144 Cal.App.3d 786, 789-790 [193 Cal.Rptr. 40].)
As in Junious
we are concerned here with subchapter I of the Act,
which governs child custody proceedings. These are defined as proceedings
foster care placement, termination of parental rights, preadoptive placement, and
adoptive placement. (25 U.S.C. § 1903(1).)
A tribe has exclusive jurisdiction over child custody proceedings involving
an Indian child who resides or is domiciled within its
reservation. (25 U.S.C. § 1911(a).)
For other Indian children who are the subject of child
custody proceedings initiated in a state court, "the court, in
the absence of good cause to the contrary, shall transfer
such proceeding to the jurisdiction of the tribe." (25 U.S.C.
Even for an Indian child who lives off the reservation,
then, the tribal court is the preferred jurisdiction under the
Act. But this preference can be overcome on a showing
of "good cause."
Appellant first asks us to decide whether the state or
the tribal court was the appropriate jurisdiction to decide whether
Devon's parental rights to Robert should be terminated. To address
this issue we turn, as did the *663
trial court, to the definition of "good cause" for nontransfer
contained in the Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Federal Register 67584 et seq. (Nov. 26, 1979)
(guidelines). Although the rulemaking procedures of the Administrative Procedures Act
were followed in developing these guidelines, they were not published
as regulations because they were not intended to have binding
legislative effect. (Id.
at p. 67584.) The guidelines represent the Department of Interior's
the Act, however, and are a useful aid in interpreting
its provisions. (See, e.g., Matter
of J. L. H.
(S.D. 1980) 299 N.W.2d 812, 815.) In denying the petition
to transfer, the trial court relied on section C.3., subsections
(b)(i) and (iii) of the guidelines, which define good cause
to include: "(i) The proceeding was at an advanced stage
when the petition to transfer was received and the petitioner
did not file the petition promptly after receiving notice of
the hearing. ... [¶]
(iii) The evidence necessary to decide the case could not
be adequately presented in the tribal court without undue hardship
to the parties or the witnesses." (44 Fed.Reg., supra,
at p. 67591.)
The introduction to the guidelines also notes that the legislative
history of the Act "states explicitly that the use of
the term 'good cause' was designed to provide state courts
with flexibility in determining the disposition of a placement proceeding
involving an Indian child. S.Rep. No. 95-597, 1st Sess., p.
17 (1977)." (Id.
at p. 67584.)
Keeping these definitions in mind, we next review the record
to determine whether substantial evidence supports the court's finding that
good cause existed to deny the petition. (In
re Angelia P.
(1981) 28 Cal.3d 908, 924 [171 Cal.Rptr. 637, 623 P.2d
As grounds for denying transfer, the court found that the
tribe had failed to promptly file a petition to transfer
upon receiving notice of the termination hearing.
A review of the record reveals that the termination petition
was filed on November 5, 1984. The tribe had notice
of these proceedings in November 1984 and discussed the possibility
of intervening in December. The case was continued from December
21 to January 11, 1985. A letter from the tribe
filed on January 11 expressed its intention to intervene and
to request custody of Robert, who would be placed with
his maternal great aunt and uncle on the pueblo in
long-term foster placement "until such time [as] a more permanen[t]
plan is made and [the] child is freed for adoption."
Appended was a tribal court order making Robert a temporary
ward of that court until he became free for adoption.
These documents were submitted to the trial court at the
January 11 hearing and were treated as a request for
tribal intervention and transfer of jurisdiction.
The case was then continued to February 22, 1985, to
allow the tribe to file a petition for transfer. A
petition for intervention, filed on February 22, *664
1985, appears in the dependency file. The case was continued
to March 6 and then to April 24 for the
first hearing. A transfer petition was filed on that day.
At this juncture the court decided that it was too
late to delay trial on the termination petition and, with
all parties concurring, received evidence on the transfer issue as
well as on the termination petition.
The trial court observed that there was a five-month delay
between notice of the
termination proceedings and the tribe's filing of the transfer petition
and on this basis found "good cause." While we tend
to agree that "good cause" existed on that ground, we
note delay of greater magnitude. The tribe had been given
notice of all hearings in the dependency proceedings since July
21, 1983, six months after Robert was first placed in
foster care. Despite this, it did not intervene or petition
for transfer in those proceedings and, as we have already
noted, did not indicate its interest in any of the
state court proceedings until a year and a half later.
Albanita Atencio, the tribe's director of social services, testified that
in the summer of 1983, Vickie T. had called the
tribe requesting its support in her effort to have Robert
placed with her. The tribe then contacted Devon, who told
tribe officials that she intended to follow through with a
treatment program in order to be reunited with Robert. Mrs.
Atencio then spoke to Mr. Trabue about Vickie's ability to
assume custody of Robert. Mr. Trabue relayed his concerns about
Vickie's ability to assume this responsibility, after which the tribe
apparently decided not to intervene on her behalf.
Mr. Trabue testified he sent a letter to the tribe
on September 12, 1984, together with copies of the dependency
petition, the probation officer's initial report, Mr. Trabue's most recent
court report, and the minute order directing the filing of
a termination petition. In his letter, he indicated that
the case plan was to free Robert for adoption, and
that he was prepared to submit the necessary documents to
county counsel to implement this plan. Following this, Mr. Trabue
spoke to the lieutenant governor of the tribe by telephone,
and also told him at that time that Robert was
in foster placement. Only after the tribe was notified of
a scheduled termination hearing in December 1984, and Devon's maternal
aunt had expressed interest in having custody of Robert, however,
did the tribe decide to intervene. Mrs. Atencio testified "that
is the way we usually just, you know, operate our
system, just that we don't intervene until someone, a parent
or grandparent, asks us to intervene. And then we do
try to intervene."
The tribe argues with some reason that since the purpose
of dependency proceedings is to reunify parents and children, it
was legitimate for it to assume that the end result
of Robert's dependency would be reunification with his mother. This
belief was apparently encouraged by Devon's report *665
to Mrs. Atencio that she was cooperating with the reunification
plan. If, however, as happened here, reunification efforts fail to
successfully reunite a child with his or her parents within
a year or 18 months (Welf. & Inst. Code, § 361.5)
a court must adopt a permanent plan for a child.
366.25.) If a child is likely to be adopted (§
366.25, subd. (d)(2)), that plan is usually to commence termination
proceedings to free the child for adoption. In this case,
tribe was notified in July 1983 of the scheduled August
1983 permanency planning hearing concerning Robert, who had been a
dependent of the court since January 1982, and in out-of-home
placement since January 1983. Robert was not placed with his
foster-adoptive family, nor were termination proceedings ordered commenced, until November
1983, three months after the hearing at which the court
concluded that the reunification efforts of the preceding 19 months
The significance of this chronology is obvious: the tribe's intervention
came too late. Its decision to intervene, and to petition
to transfer jurisdiction, was based on the expressed desire of
Robert's extended family members to have Robert placed with them
on the pueblo. This option was not seriously explored until
over a year after termination proceedings had commenced, a year
in which Robert had bonded to his foster-adoptive family.
We believe a timely request to transfer jurisdiction, although this
determination must be made on a case-by-case basis, should at
least precede permanency planning in the dependency proceedings. If the
permanent plan for the dependent child is that he or
she be freed for adoption, the probation department will in
all likelihood initiate a search for a preadoptive placement. And
once in a placement which both child and foster-adoptive family
expect to become permanent, a bond will form. Its breaking
may well injure the child.
(See, e.g., In
re Micah S.
(1988) 198 Cal.App.3d 557, 566 [243 Cal.Rptr. 756] [Brauer, J.
concurring].) Although the trial court cited language from the guidelines
concerning the need for timeliness as a weapon against "disruption
caused by negligence or obstructionist tactics on the part of
counsel" (44 Fed.Reg., supra,
at p. 67590) we believe the timeliness requirement reflects the
Act's concern for the best interests of the Indian child.
(25 U.S.C. § 1902.)
While the tribal court is the preferred jurisdiction under the
Act, the tribe cannot reasonably delay its request for transfer
until after the child's adoptive family has been found. We
therefore hold that the 16-month delay between the permanency planning
hearing in August 1983 and the tribe's first expression of
intent to intervene, in December 1984, was sufficient to establish
"good cause" under the Act and the guidelines for the
court to deny the transfer petition.
of Adoption of Holloway
(1986) 48 Utah Adv.Rep.3 [732 P.2d 962] is inapposite. In
that case, as in Matter
of Appeal in Pima County etc.
130 Ariz. 202 [635 P.2d 187], cert. denied, sub
nom. Catholic Social Services of Tucson v. Pima County
(1982) 455 U.S. 1007 [71 L.Ed.2d 875, 102 S.Ct. 1644]
of Adoption of Baby Child
(1985) 102 N.M. 735 [700 P.2d 198], the Indian child
was born to a domiciliary of the reservation, and was
subsequently removed to an adoptive placement outside the reservation.
The issue in those cases was whether the child took
the domicile of its mother so as to defeat the
state court's assumption of jurisdiction. In all three cases, the
state courts held that the child retained the domicile of
its mother, and therefore the tribal court had exclusive jurisdiction,
under 25 United States Code section 1911(a). The Utah Supreme
Court, in Halloway,
therefore voided the child's adoption. (Id.
at p. 970.) The issue here is not, as in
those cases, whether the state court's original assumption of jurisdiction
was proper but whether, once having assumed jurisdiction, the state
court was compelled to transfer jurisdiction to a tribal court.
We hold, under the facts shown, that it was not.
We also hold that sufficient evidence supports the court's finding
of "good cause" to deny transfer on the basis of
subdivision (b)(iii) of the guidelines. The guideline's comments on this
subdivision reveal that it was included on the strength of
the House report on the Act (H.R.Rep. No. 95-1386, pp.
8, 21 (1984), reprinted in 1978, U.S. Code Cong. &
Admin. News, p. 7530) that 25 United States Code section
1911(b) "is intended to permit a State court to apply
... a modified doctrine of forum
in appropriate cases, to insure that the rights of the
child as an Indian, the Indian parents or custodian, and
the tribe are fully protected." (44 Fed.Reg., supra,
at p. 67591; see also Matter
of Appeal in Pima County etc., supra,
635 P.2d at p. 191.)
The guidelines acknowledge that "Application of this criterion will tend
to limit transfers to cases involving Indian children who do
not live very far from the reservation." (44 Fed.Reg., supra,
at p. 67591.)
The trial court, in citing this ground as good cause
to deny the transfer petition, noted the fact that Robert
had spent his life in or near Santa Clara County,
that court, department of social services and probation department records
were all located there, that social workers, probation officers, public
health nurses, foster parents and Indian center staff members all
worked there, that one expert witness resided in the county
and the other two were closer to Santa Clara County
than to the pueblo in New Mexico. Devon and her
three younger children had lived in the San Jose or
Fresno area until February 1985, when they moved to the
reservation. Robert's maternal grandparents, who had participated in the dependency
proceedings, were also residents of Santa Clara County. The only
New Mexico witness testifying in these proceedings was Mrs. Atencio.
The court also noted that in such a complex case,
proximity of the court to the numerous records and *667
witnesses in the proceedings had been of great assistance in
facilitating the presentation of evidence. These are all pertinent and
adequate reasons to deny transfer on the basis of subdivision
(b)(iii) of the guidelines. (See In
re Interest of Bird Head
(1983) 213 Neb. 741 [331 N.W.2d 785, 790]; In
Interest of J. R. H.
358 N.W.2d 311, 317.) We are therefore satisfied that substantial
evidence supports the trial court's finding of "good cause" to
deny transfer on the ground that the state court forum
provided the better opportunity for the production of valuable evidence.
The trial court denied the transfer petition on the additional
ground that it would injure Robert's best interests. Appellant argues
that this was not appropriate under the Act. We disagree.
The stated purpose of the Act, as we have already
noted, is to "protect the best interests of Indian children."
(25 U.S.C. § 1902.)
We are satisfied that this is a pertinent and indeed
a necessary consideration in deciding whether to grant or deny
a transfer request. (Matter
(1981) 195 Mont. 329 [635 P.2d 1313, 1317.) Both the
petitioner's expert witness and the expert witness for the tribe
reported that Robert was strongly bonded to his foster-adoptive family,
and that he perceived them as his psychological family. Both
also opined that it would be psychologically injurious to remove
Robert from this setting. The only evidence presented to rebut
this testimony was that of Devon's expert witness, Evelyn Blanchard.
She testified that Robert would not be irreparably harmed by
a move to the reservation. This witness, however, had never
met Robert or his foster-adoptive family, and based her opinion
solely on a home visit with Devon's extended family on
the pueblo in New Mexico. The court noted that the
other two experts
were far more persuasive in assessing the harm which might
befall Robert were he to be removed from his psychological
The weight and credibility to be accorded the witnesses' testimony
are matters for the trial court. (Nestle
v. City of Santa Monica
(1972) 6 Cal.3d 920, 925 [101 Cal.Rptr. 568, 496 P.2d
re Marriage of Slivka
(1986) 183 Cal.App.3d 159, 162 [228 Cal.Rptr. 76].) (2b)
We thus agree that the court properly considered Robert's best
interests in denying transfer.
Devon's second claim of error concerns Robert's placement with his
foster-adoptive family, the H's. She argues that this placement violated
25 United States Code section 1915, and that the court
was obligated to compare the fitness of Robert's foster-adoptive parents
to that of his maternal aunt and uncle, the T's,
who wished Robert to live with them on the pueblo
in New Mexico.
We find this argument to be without merit. 25 United
States Code section 1915 states: "(a) In any adoptive placement
of an Indian child under State law, a preference shall
be given, in the absence of good cause to the
contrary, to a placement with (1) a member of the
child's extended family; (2) other members of the Indian child's
tribe; or (3) other Indian families. [¶]
(b) Any child accepted for foster care or preadoptive placement
shall be placed in the least restrictive setting which most
approximates a family
and in which his special needs, if any, may be
met. The child shall also be placed within reasonable proximity
to his or her home, taking into account any special
needs of the child. In any foster care or preadoptive
placement, a preference shall be given, in the absence of
good cause to the contrary, to a placement with [¶]
(i) a member of the Indian child's extended family; [¶]
(ii) a foster home licensed, approved, or specified by the
Indian child's tribe; [¶]
(iii) an Indian foster home licensed or approved by an
authorized non-Indian licensing authority; ..."
We first note that until this appeal is final, Robert
is not freed for adoption. His placement with the H's
therefore does not come under the aegis of 25 United
States Code section 1915(a). This placement was a preadoptive placement
and therefore comes only under the auspices of 25 United
States Code section 1915(b). But this placement was not made
by the court below, but by the juvenile court during
the course of the underlying dependency proceedings. Civil Code section
232 et seq. provides no authority for a court hearing
a termination petition to place or to review either a
foster or a preadoptive placement for a dependent child. The
juvenile court's jurisdiction over Robert continued while the termination petition
was pending, and will presumably not terminate until this appeal
is final and an adoption decree is filed. Any complaint
Devon may have concerning the propriety of Robert's placement
with the H's should therefore be made to the juvenile
court. Since Devon has not appealed from the juvenile court
order, any issue concerning the propriety of Robert's placement with
his foster-adoptive family is not properly before this court.
We are constrained, however, in view of the expression of
these concerns, to make the following observations.
Mr. Trabue, the American Indian social worker assigned to Devon's
case in December 1982, testified that he was aware of
the dictates of the Act concerning placement of Indian children
with their family members or in an Indian foster home.
In March and April 1983, however, Devon did not know
her tribal affiliation. Sometime in March Mr. Trabue was provided
by Roberta Kipp of the San Jose Indian Center with
a certificate indicating that Vickie T. was a member of
the Santo Domingo Pueblo, and that Devon's father, Frederick T.,
was an Alaskan Indian or Eskimo. In May 1983, therefore,
Mr. Trabue contacted Mrs. Atencio, the Santo Domingo tribe's social
worker, and she mentioned that there were relatives on the
pueblo. Mr. Trabue had considered placing Robert with his maternal
grandmother, Vickie T., but decided against this because of her
own problems. He then requested referrals for Indian foster families
from the department of social services, from the San Jose
Indian Center and from a social worker in Alameda County.
He also placed an advertisement
for an Indian foster family in a San Jose newspaper.
Robert's foster-adoptive parents responded to this advertisement. Mrs. H is
part Pima Indian; Mr. H is part Miwok. Mrs. H
testified that at the time the ad appeared, she and
her husband were considering adopting a child, and followed up
on the ad because they were of Indian heritage, and
Robert needed an Indian family. In the meantime, Mr. Trabue
confirmed Robert's status as an Indian child with the Bureau
of Indian Affairs and was provided his tribal affiliations and
the contact persons for the respective tribes.
Thus, from the spring of 1983 until February 1985, while
Devon was living either in the San Jose or the
Fresno area, (most of the time out of touch with
her social workers), neither she, nor her parents, nor the
tribe provided Mr. Trabue with any possible alternative placements within
the family for Robert. Mr. Trabue complied with both the
letter and the spirit of the Act when he searched
out an Indian family within the immediate geographical area who
could provide a permanent adoptive home for Robert. Indeed, placing
Robert in foster care or preadoptive placement with extended family
members on the pueblo before February 1985, when Devon moved
there, would have violated 25 United States Code section 1915(b)'s
directive to place a child in proximity to his or
Had the tribe offered the T's as a placement alternative
when the juvenile court
was considering and implementing a permanent plan for Robert, the
court would have been afforded a reasonable opportunity to evaluate
this placement for Robert. Offering it after Robert had already
lived for over a year with his new family, however,
would again have presented the risk of detriment to Robert
from severing an established familial bond.
The trial court pointed out in its statement of decision
that the H's are "actively involved in a life which
includes and builds upon the Indian culture that each of
them comes from. the[y] are also devoted to Robert's best
interests. They recognize that he has Santo Domingo ties, and
they have indicated an intention to insure that he visits
with the Tribe and his family there as he grows
up. It is an ideal situation for Robert. He will
be able to remain with the family he is bonded
to while learning about Indian culture not only from the
[H's] but also from contacts with the Tribe and his
relatives the [re]. ... [¶]
It is clear to this Court that Robert is not
being robbed of his cultural heritage, nor will this action
be devastating to him in his later development. [Citing Irving
N. Berlin, M.D. Anglo
Adoptions of Native Americans: Repercussions in Adolescence,
American Academy of *670
Child Psychiatry (1978) 387, 388.) Instead, he will be provided
stability now when he so desperately needs it and cultural
experience from now through his adolescence so that a future
identity crisis can be avoided." We are gratified to
approve a decision which allows Robert to become a permanent
member of a happy and secure family, while ensuring that
he has the means to cultivate and live his Indian
The judgment and order are affirmed.
Brauer, J., and Capaccioli, J., concurred.
A petition for a rehearing was denied May 20, 1988,
and appellant's petition for review by the Supreme Court was
denied July 28, 1988. *671