Opinion
F081169
11-17-2020
In re LILY R., a Person Coming Under the Juvenile Court Law. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. K.D., Defendant and Appellant.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Lee Burdick, County Counsel, and Risé A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19JD0112)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kings County. Jennifer Lee Giuliani, Judge. Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Lee Burdick, County Counsel, and Risé A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
Appellant K.D. (mother) appealed from a judgment terminating her parental rights as to her now two-year-old daughter Lily. (Welf. & Inst. Code, § 366.26.) Mother filed an opening brief contending the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Respondent concedes the error. After reviewing the record, we conclude the juvenile court failed to adequately comply with the ICWA and conditionally reverse.
Statutory references are to the Welfare and Institutions Code. --------
PROCEDURAL AND FACTUAL SUMMARY
The Kings County Human Services Agency (agency) was contacted in June 2019 while mother was being evaluated in the emergency room for pain related to gallstones. Medical staff reported mother was screaming at then seven-month-old Lily, " 'I just can't deal with you right now, and just behave.' " When asked to take care of Lily, mother placed her on an unsecured chair. Had the nurse not intervened, Lily would have fallen on the floor. Mother then placed Lily on the floor without a blanket. The staff were concerned mother was unable to care for Lily because mother was taking pain medication and tested positive for methamphetamine, amphetamines and opiates. Mother explained she relapsed and used methamphetamine to cope with loneliness and the pain caused by the gallstones. The staff attributed the presence of opiates to the medication administered when she was admitted. Mother also had several untreated mental health diagnoses, including schizophrenia and depression.
The agency took Lily into protective custody and placed her with Brenda, her maternal great-grandmother. It also filed a dependency petition under section 300, subdivision (b)(1), alleging mother's drug use and mental illness placed Lily at a substantial risk of harm. The whereabouts of Lily's alleged father, Adrian, were initially unknown. He was subsequently located in the county jail and established his biological paternity and ultimately presumed father status.
The agency completed the "Notice of Child Custody Proceeding for Indian Child" (ICWA-030) based on mother's claim she had Cherokee Indian heritage. The agency filled in mother's name, address and birthdate and Brenda's name and address and indicated the family lineage information was limited. The agency notified the Bureau of Indian Affairs, the Secretary of the Interior, the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians in Oklahoma. Adrian did not claim any Indian heritage.
After mother and Adrian submitted the matter of jurisdiction in July 2019, the juvenile court exercised its dependency jurisdiction over Lily, removed her from parental custody and ordered the parents to participate in reunification services. The court set the six-month review hearing for January 2020.
Mother completed a parenting program but was unable to complete a substance abuse disorder program. She also struggled to maintain sobriety. She was, however, motivated to reconcile with Lily and consistently visited her. Adrian visited with Lily while he was in county jail and after he was released on August 20, 2019. He was arrested on September 25, 2019, and did not keep in contact with the agency over the next several months.
The agency recommended the juvenile court terminate reunification services at the six-month review hearing. Mother reportedly achieved 60 days of sobriety but had not completed the substance abuse disorder program because of excessive absences. She was hoping to achieve sobriety on her own in the hope of reconciling with Lily. However, on December 24, 2019, she disclosed she relapsed. Adrian was in custody with pending criminal charges and scheduled to be sentenced in late December 2019. The agency also recommended the court find the ICWA did not apply based on responses from the Eastern Band of Cherokee Indians and the Cherokee Nation that Lily was not an Indian child.
The juvenile court set the matter for a contested hearing on January 7, 2020. The parents appeared on that date and withdrew their contest. The court terminated reunification services and set a section 366.26 hearing for April 28, 2020.
In the meantime, Lily was placed with her maternal great-aunt and uncle but did not change households because they all lived with Brenda. Mother continued to visit Lily. On February 24, 2020, she had a two-hour supervised visit with Lily. She had a dark bruise on the right corner of her eye. She denied having engaged in domestic violence, explaining instead that she was "sick, fell down the stairs, and hit the food tray." She was loving with Lily and appropriately engaged with her. On March 16, mother contacted the agency and reported she was at Hannah's House. The social worker arranged a visit for mother at the facility on March 25 but was told two days before the scheduled visit that mother left the premises. The agency did not have any subsequent contact with mother. Adrian was transported to prison on January 10. He requested a visit in February, and one was being arranged when visits were cancelled on March 26 because of the COVID-19 pandemic.
The agency recommended the juvenile court terminate parental rights at the 366.26 hearing and order adoption as her permanent plan. Lily was an "adorable, energetic, playful, and happy, [one-year-old] toddler" who shared a parent-child relationship with her maternal great-aunt and uncle who were committed to adopting her. She had no significant developmental delays and/or medical concerns and the agency considered her likely to be adopted.
The parents testified at a contested section 366.26 hearing on May 13, 2020. Mother had a visit the day of the hearing. Her last visit prior to that was two to three months before. After reunification services were terminated, she had one supervised visit a month. She did not believe her parental rights should be terminated because she loves Lily. Adrian expected to be released from custody on September 24, 2020. He objected to termination of his parental rights because he loves Lily and wants to be part of her life.
Mother's attorney made a vague reference to the beneficial parent-child relationship exception to adoption, arguing the juvenile court could decide for itself whether mother had a bond with Lily that would overcome the preference for adoption.
The juvenile court terminated parental rights after finding Lily was likely to be adopted. The court also found the beneficial parent-child exception to adoption did not apply and it would not be detrimental to Lily if parental rights were terminated. Finally, the court found the ICWA did not apply.
DISCUSSION
In her sole issue on appeal, mother contends the agency failed to comply with the inquiry and notice requirements of the ICWA because it did not gather all the family information related to Lily's potential Cherokee Indian heritage. She points out, for example, the agency could have inquired and possibly obtained additional familial information from the maternal aunt and maternal grandmother to include on the ICWA-020. Respondent concedes, suggesting other measures the agency could have taken such as 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 Lily may be a member and presenting the efforts it made to the juvenile court.
We cannot over emphasize the importance of ICWA notice compliance. Congress enacted the ICWA "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families ...." (25 U.S.C. § 1902.) Pursuant to the ICWA, "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking ... termination of parental rights to[ ] an Indian child shall notify the parent or Indian custodian and the Indian child's tribe" of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a).) "This notice requirement, which is also codified in California law (Welf. & Inst. Code, § 224.2 ... ), enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding." (In re Isaiah W. (2016) 1 Cal.5th 1, 5.)
"The [agency], as well as the court, has an affirmative obligation 'to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members' ([former] § 224.3, subd. (c); see Cal. Rules of Court, rule 5.481(a)(4)(A)) if a person having an interest in the child 'provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe' ([former] § 224.3, subd. (b)(1); see Cal. Rules of Court, rule 5.481(a)(5)(A).)" (In re Michael V. (2016) 3 Cal.App.5th 225, 235.) When a parent claims possible Indian ancestry, the agency must ask a parent's siblings and other extended family members about such ancestry. (In re Andrew S. (2016) 2 Cal.App.5th 536, 545, 548; see 25 U.S.C. § 1903(2) [" 'extended family member' " includes the Indian child's grandparents, aunts or uncles, siblings, brother-in-law or sister-in-law, niece or nephew, first or second cousins, and stepparents].)
The agency also has an obligation to provide sufficient notice to Indian tribes. Pursuant to former section 224.2, subdivision (a)(3), "[i]f the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved ... [n]otice shall be sent to all tribes of which the child may be a member or eligible for membership." Notice shall include: "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, ... as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C); see former § 224.2, subd. (a)(5)C).)
ICWA inquiry and notice requirements are strictly construed. (In re A.G. (2012) 204 Cal.App.4th 1390, 1397.) A notice that contains errors and omissions may preclude a tribe from conducting a meaningful search to determine a child's heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Courts have " 'published repeatedly to emphasize the importance of ICWA notice compliance' and ... when failing to assure compliance, [the Department] and the juvenile courts 'face the strong likelihood of reversal on appeal ....' " (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411.)
We concur the agency failed to fully inquire about Lily's possible Cherokee Indian heritage by interviewing relatives known to the agency. Therefore, it potentially omitted information the Cherokee tribes needed to meaningfully evaluate Lily's Indian heritage. Consequently, we conditionally reverse the order terminating parental rights and remand for the limited purpose of complying with the ICWA.
DISPOSITION
The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court for the sole purpose of ensuring compliance with the ICWA. The court shall ensure a proper inquiry is made in compliance with the notice requirements of the ICWA. If, after proper inquiry and notice, the court determines Lily is an Indian child, the court shall proceed pursuant to the terms of the ICWA. If the court determines the ICWA does not apply, the court may reinstate its prior order terminating parental rights. The Clerk/Executive Officer of this court is directed to issue a remittitur immediately. (Cal. Rules of Court, rule 8.272(c)(1).)