Del Norte County Department of Health & Human Services v. Patricia M.

Opinion

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 [680]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 José 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.

I. BACKGROUND1

Autumn’s Birth and the Indian Custodian Designation Forms

Autumn was bom on February 23, 2011, in Crescent City. She was the seventh child bom 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 “Resighini 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.