Opinion
F083128
09-21-2021
ADRIAN B., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Adrian B., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review Super. Ct. No. 20CEJ300084-3, Elizabeth Egan, Judge.
Adrian B., in pro. per., for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.
OPINION
THE COURT [*]
Adrian B. (father), in propria persona, seeks an extraordinary writ from the juvenile court's orders terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his now three-year-old daughter, Alejandra. (Cal. Rules of Court, rules 8.450−8.452.) Father contends the juvenile court violated the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). He attached various documents to his writ petition, including birth, marriage, and death certificates, in an apparent effort to establish Native American heritage. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
Rule references are to the California Rules of Court.
We decline to dismiss father's writ petition as facially inadequate for review as urged by real party in interest. Although father's petition does not strictly comport with the content requirements of rule 8.452(b), we liberally construe the petition as raising an ICWA notice violation.
PROCEDURAL AND FACTUAL SUMMARY
In March 2020, one-year-old Alejandra and her five- and three-year-old half sisters were removed from the custody of their mother M.C. (mother) by the Fresno County Department of Social Services (department) after mother's boyfriend shot father in the leg and abdomen during a dispute. Mother and her boyfriend fled the scene, father was taken to the hospital and the children were left alone asleep in their beds. The children were placed together in foster care and subsequently with the paternal grandparents of Alejandra's half sisters.
Father stated he was in the process of being registered with the Chumash Tribe, which he said was state recognized but not federally recognized. Mother did not claim Native American ancestry.
The juvenile court ordered the children detained pursuant to a dependency petition, alleging the parents failed to protect the children and exposed them to physical and emotional harm by their domestic violence. (§ 300, subds. (b)(1) & (c).) The petition identified G.B. as the biological father of Alejandra's half sisters. He was living in Mexico. Father was identified as Alejandra's presumed father. He lived locally. The court ordered supervised visitation and offered father and mother parenting classes, substance abuse, mental health and domestic violence evaluations and recommended treatment and random drug testing. The jurisdictional/dispositional hearing (combined hearing) was scheduled for April 2020.
Meanwhile, the social worker was informed by the tribal enrollment specialist for the Santa Ynez Band of Chumash Indians that father was not enrolled in the tribe and was not pending enrollment. She received official confirmation by email from the enrollment committee, stating the tribe had no record of father.
Father also stated he had Native American ancestry through the Apache, Tachi and Yokut tribes. The department served the “Notice of Child Custody Proceeding for Indian Child” (ICWA-030 form) on 15 tribes and the Bureau of Indian Affairs.
The combined hearing was continued and convened on June 24, 2020. By that time, the department had received responses from seven of the tribes stating Alejandra was not an Indian child and no response from the remaining tribes. The department recommended the juvenile court find the ICWA did not apply.
On June 24, 2020, the juvenile court ordered the children removed from parental custody, ordered reunification services for father and mother consisting of the services previously offered and denied services for the half sisters' father. The court found the ICWA did not apply and set the six-month review hearing for December 9, 2020.
At the December 9, 2020 hearing, the juvenile court found the parents made minimal progress in completing their reunification plans and continued reunification services to the 12-month review hearing, which it set for May 26, 2021.
In January 2021, father was incarcerated for violating probation. He was released in February 2021 on felony probation and was offered residential substance abuse treatment through two programs but failed to enroll.
By the time of the review hearing, the children were doing well with their relative care provider. Father had not completed any of his assessments and either tested positive for marijuana or failed to show for drug tests. Mother's progress was comparatively better. She completed a parenting program and a mental health evaluation and was not recommended for treatment. She participated in substance abuse treatment from October 2020 until July 2021 but was terminated for poor attendance and noncompliance. She completed 17 of the 52 required sessions for the child abuse intervention program and either refused to drug test, did not show up when required to test or tested positive for creatinine. Neither parent progressed beyond supervised visitation. The department recommended the juvenile court terminate their reunification services.
The matter was set for a contested 12-month review hearing on July 28, 2021. All the tribes had responded, stating Alejandra was not an Indian child except for three. Father appeared at the hearing with his attorney who objected to the department's recommendation but did not contest the evidence. Father addressed the court, stating he was trying to “get [his] life back.” He had no home, vehicle or income and limited resources. He asked the court for more time. The court heard testimony from mother and the social worker and continued the hearing to August 2, 2021, for argument.
The juvenile court found father's progress was none to minimal and mother's minimal to moderate. The court found the department provided the parents reasonable reunification services, ordered them terminated and set a section 366.26 hearing for November 29, 2021.
DISCUSSION
ICWA
The ICWA requires notice to Indian tribes “in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights ‘where the court [or social worker] knows or has reason to know that an Indian child is involved.' ” (In re Isaiah W. (2016) 1 Cal.5th 1, 8.) The tribe to which the child belongs, or in which the child may be eligible for membership, must receive “notice of the pending proceedings and its right to intervene.” (In re H.B. (2008) 161 Cal.App.4th 115, 120.) The ICWA applies only to federally recognized tribes. (25 U.S.C. § 1903(8).)
The juvenile court and the department have an “affirmative and continuing duty to inquire” whether a child in dependency proceedings “is or may be an Indian child.” (§ 224.2, subd. (a).) If the court or social worker has “reason to believe” an Indian child is involved, the social worker must, as soon as practicable, interview the parents and extended family members to gather the information required to determine the possible Indian status of the child. (§ 224.2, subd. (e)(1).) Further inquiry includes, but is not limited to: (1) interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of section 224.3; (2) contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership; and (3) contacting the tribe(s) and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility. (§ 224.2, subd. (e)(2).)
Section 224.3, subdivision (a)(5) lists the information to be included in an ICWA notice, such as the name, birth date and birthplace of the Indian child, if known; the name of the Indian tribe; and the names and other identifying information of the Indian child's biological parents, grandparents, and great-grandparents, if known.
If the inquiry establishes a “reason to know” an Indian child is involved, notice must be provided to the pertinent tribes. (§ 224.3, subds. (a) & b).) ICWA notices “shall include, ” among other things, the identifying information for the child's biological parents, grandparents, and great-grandparents, to the extent known. (§ 224.3, subd. (a)(5)(C).) The notices should “provide the Indian tribe with all available information about the child's ancestors, especially the ones with the alleged Indian heritage.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) The department must send notice of all hearings that may culminate in an order for foster care placement, termination of parental rights, or preadoptive or adoptive placement, until the court determines that the ICWA does not apply. (§§ 224.2, subd. (i)(1), 224.3, subd. (b).)
The juvenile court may find the ICWA does not apply when the department's further inquiry and due diligence were “proper and adequate” and there is no “reason to know” whether the child is an Indian child. (§ 224.2, subds. (i)(2), (g).) Even if the court makes this finding, the department and the court have a continuing duty under the ICWA, and the court “shall reverse its determination if it subsequently receives information providing reason to believe that the child is an Indian child and order the social worker or probation officer to conduct further inquiry.” (§ 224.2, subd. (i)(2).)
Father does not establish nor does the record reflect that the department failed to inquire of his Indian status or to provide proper notice to the pertinent tribes as required by the ICWA. Father claimed Native American heritage through the Chumash, Apache, Tachi and Yokut tribes. Even though the Chumash Tribe is not federally recognized, the social worker contacted the tribe to inquire about father's membership or eligibility. The tribe had no information about him. The department also sent notices to the other tribes, the majority of which stated Alejandra was not an Indian child.
Further, father does not assert that the department's notice was incomplete because there were other relatives who may have provided additional information and there is no evidence on the record the social worker had other avenues to gather additional familial information. Consequently, father cannot legitimately claim the department's notice to the tribes was defective.
Finally, to the extent father attempts to submit familial information to this court along with his petition, we cannot review it. We are confined to the evidence that was before the juvenile court. (In re Zeth S. (2003) 31 Cal.4th 396, 413.) Since the documents father submitted with his petition are not part of the record on appeal, we cannot consider them. To the extent they provide additional information about his relatives, he may want to consider submitting them to the social worker.
Some of the documents pertain to father's biological grandfather who is identified on the ICWA-030 form.
We find no ICWA violation and deny the petition.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A).
[*] Before Levy, Acting P. J., Franson, J. and Meehan, J.