In Re Derek W.

California Court of Appeal Jul 22, 1999 No. B128676Published

Before: Yegan

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Holding. The court denied a petition for a writ of error coram vobis because the petitioner failed to meet the procedural requirements for the writ and failed to demonstrate that the child qualified as an Indian child under the Indian Child Welfare Act (ICWA).

Issues

Whether the petitioner met the procedural requirements for a writ of error coram vobis to vacate a judgment terminating parental rights.
Whether the child qualifies as an 'Indian child' under the ICWA given the lack of evidence regarding tribal membership or cultural connection.

Disposition. denied

Quotations verified verbatim against the opinion

“The current petition fails to meet any of these requirements and must, therefore, be denied on procedural grounds.”

“The petition is also denied on the merits because David W. fails to carry his burden to prove that Derek comes within the ICWA.”

86 Cal.Rptr.2d 742 (1999) 73 Cal.App.4th 828 In re DEREK W., a Person Coming Under the Juvenile Court Law.

David W., Plaintiff and Appellant,

Santa Barbara County Child Protective Services, Defendant and Respondent.

No. B128676. Court of Appeal, Second District, Division Six.

July 22, 1999. Review Denied October 6, 1999. [743] Marin Williamson, San Francisco, for Plaintiff and Appellant.

Stephen Shane Stark, County Counsel, County of Santa Barbara; Gustavo E. Lavayen, Deputy County Counsel, for Defendant and Respondent.

YEGAN, J.

David W. petitions for a writ of error coram vobis to vacate the judgment terminating his parental rights to his son, Derek, on the ground that the juvenile court failed to comply with the Indian Child Welfare Act (ICWA), 25 U.S.C.A. section 1901 et seq.[1] We have issued an order to show cause. We now deny the petition.

Facts and Procedural History

Derek, who is of "mixed race but dark skinned," was born in 1989, addicted to cocaine and amphetamine. He was removed from the custody of his parents, Adele B. and David W., and placed in foster care with Stephanie and John K., who are Caucasian. Derek has lived with the K.'s since he was nine days old. Derek suffers from developmental delay, a respiratory condition similar to asthma, and has behavioral and emotional difficulties. Reunification efforts with David W. failed.

In 1992, the court selected long-term foster care as the permanent plan for Derek W., after determining that he was unlikely to be adopted due to his multiple special needs. We affirmed that order in a non-published opinion. (No. B059107.) In 1998, the K.'s asked to adopt Derek and the court scheduled a hearing to determine whether to terminate David W.'s parental rights. (Welf. & Inst.Code, § 366.26.) David W. contested the termination, arguing that guardianship remained the preferred permanent plan for Derek because he would benefit from continuing his relationship with David W. (Welf. & Inst.Code, § 366.26, subd. (c)(1)(A).)

In Re Derek W.

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YEGAN, J.

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