Opinion
B294417
06-19-2020
In re Anthony B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. EDDIE B., Defendant and Appellant.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, and Jessica S. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 17CCJP01039E) APPEAL from orders of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Conditionally affirmed and remanded with directions. Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Eddie B. appeals from the juvenile court's jurisdiction findings and disposition orders declaring his one-year-old son, Anthony, a dependent of the court and removing Anthony from Eddie and the child's mother. Eddie contends the Los Angeles County Department of Children and Family Services failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). The Department concedes the issue, and Eddie raises no others. Therefore, we conditionally affirm the juvenile court's jurisdiction findings and disposition orders and remand for compliance with ICWA's notice provisions.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2018 the Department filed a petition under Welfare and Institutions Code section 300, subdivisions (a), (b)(1), (d), and (j), alleging Anthony came within the jurisdiction of the juvenile court as a result of, among other things, Eddie's history of violent altercations with Anthony's mother and both parents' history of substance abuse. At a progress hearing in October 2018, the juvenile court found that the Department had complied with ICWA's notice requirements and that the court did not have any reason to know Anthony was an Indian child under ICWA. Later in October 2018 the juvenile court sustained the petition, and at disposition the court declared Anthony a dependent of the court and removed him from his parents. Eddie timely appealed.
Statutory references are to the Welfare and Institutions Code.
DISCUSSION
A. The ICWA Notice Requirements
"In 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 the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 5; In re Breanna S. (2017) 8 Cal.App.5th 636, 649 [ICWA "establishes minimum federal standards a state court must follow before removing an Indian child from his or her family"].) "This notice requirement . . . 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., at p. 5; see In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165 ["'[t]he determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement'"].)
Federal regulations implementing ICWA provide that the notice "must include," in addition to information about the child and his or her parents, "[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents." (25 C.F.R. §§ 23.11(a), 23.111(d)(1)-(3); see In re Breanna S., supra, 8 Cal.App.5th at p. 651, fn. 8.) Former "[s]ection 224.2 codifies and elaborates on ICWA's requirements of notice to a child's parents or legal guardian, Indian custodian, and Indian tribe, and to the [Bureau of Indian Affairs]." (In re Isaiah W., supra, 1 Cal.5th at p. 9.) Former section 224.2, subdivision (a)(5)(C), requires ICWA notices to include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (See In re Breanna S., at p. 651.) "Notice given by [the child protective agency] pursuant to ICWA must contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership." (In re S.E. (2013) 217 Cal.App.4th 610, 615.)
Effective January 1, 2019 the Legislature repealed sections 224.2 and 224.3 and enacted new versions of those statutes. (Stats. 2018, ch. 833, §§ 5, 7.) We refer to and quote from the version of the statutes in effect in 2018, when all hearings relevant to this appeal occurred. (See In re H.B. (2008) 161 Cal.App.4th 115, 121, fn. 5.)
Former "section 224.3, subdivision (a) . . . provides that courts and county welfare departments 'have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.'" (In re Isaiah W., supra, 1 Cal.5th at p. 9.) "This affirmative duty is triggered whenever the child protective agency or its social worker 'knows or has reason to know that an Indian child is or may be involved' [citation], and obligates the social worker, as soon as practicable, to interview the child's parents, extended family members and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility." (In re Breanna S., supra, 8 Cal.App.5th at p. 652; accord, In re Elizabeth M. (2018) 19 Cal.App.5th 768, 785; see former § 224.3, subd. (c); Cal. Rules of Court, former rule 5.481(a)(4).)
Section 224.2, subdivision (e), as amended, now provides: "If the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, the court, social worker, or probation officer shall make further inquiry regarding the possible Indian status of the child . . . " (emphasis added). Likewise, effective January 1, 2020, California Rules of Court, rule 5.481(a)(4) now provides: "If the social worker . . . or petitioner knows or has reason to know or believe that an Indian child is or may be involved, that person or entity must make further inquiry as soon as practicable . . ." (emphasis added).
Former section 224.3, subdivision (e)(3), provides: "If proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, the court may determine that the Indian Child Welfare Act . . . does not apply to the proceedings." "Only after proper and adequate notice has been given and neither a tribe nor the BIA has provided a determinative response within 60 days does [former] section 224.3(e)(3) authorize the court to determine that ICWA does not apply." (In re Isaiah W., supra, 1 Cal.5th at p. 11; accord, In re N.G. (2018) 27 Cal.App.5th 474, 480.)
B. The Department Did Not Comply with the ICWA Notice Requirements
Shortly after the Department filed its petition, Anthony's mother completed a Parental Notification of Indian Status form (Judicial Council Form ICWA-020), in which she indicated she may have "Pima (Arizona)" Indian ancestry through her paternal grandfather, Cresencio Garcia, whose date of birth she provided. In August 2018 Anthony's mother further reported that "her maternal grandmother Marylou S[.] has Pima Native American Heritage and paternal grandmother Ruth G[.] has Gabrieleno Native American Indian Heritage."
After receiving this information the Department sent notice of the proceedings, using Judicial Council form ICWA-030, to the Bureau of Indian Affairs, the Secretary of the Interior, the Gabrieleno/Tongva Tribe, the Gabrieleno/Tongva Tribal Council, the Gila River Indian Community, and the Salt River Pima-Maricopa Indian Community. On the notice form, however, the Department did not include the name of Anthony's mother's maternal grandmother (Marylou S.) or paternal grandmother (Ruth G.) or Cresencio Garcia's date of birth (which the form stated was "unknown"). Moreover, the Department did not send notice to the Gila River Pima-Maricopa Indian Community, which Eddie maintains "appears to be another Pima tribe that is listed in the Federal Register . . . current at the time the notices were sent."
Eddie contends, and the Department concedes, that in omitting the above information concerning Marylou S., Ruth G., and Cresencio Garcia, the Department failed to comply with the ICWA notice requirements. And although the Department asserts that "the Gila River Pima-Maricopa Indian Community does not appear to be on the 2018 or 2019 Federal Registry," the Department concedes it "should conduct further investigation into said tribe in order to ascertain if affiliation with [the] Gila River Pima-Maricopa Indian Community qualifies the child for membership in a federally recognized tribe." The Department suggests remanding the matter to allow the Department to send proper notice to all appropriate tribes and the Bureau of Indian Affairs in compliance with ICWA, to allow it to provide the juvenile court with all appropriate copies, return receipts, and responses, and to allow the juvenile court to make appropriate findings concerning compliance with and application of ICWA. Eddie does not object to the suggestion, and we think it is sound. Therefore, we conditionally affirm the juvenile court's jurisdiction findings and disposition orders and remand for the juvenile court and the Department to comply with ICWA. (See In re Gabriel G., supra, 206 Cal.App.4th at p. 1168 [a juvenile court's failure to ensure compliance with ICWA requirements "'does not mean the . . . court must go back to square one,' but that the court ensures that the ICWA requirements are met"].)
DISPOSITION
The juvenile court's jurisdiction findings and disposition orders are conditionally affirmed, and the matter is remanded for full compliance with the notice provisions of ICWA and related California law, including proper notices by the Department to the appropriate Indian tribes. To the extent they differ from requirements previously applicable in this case, the current notice requirements of ICWA and related California law will apply. The juvenile court is to determine whether the notice requirements have been satisfied and whether Anthony is an Indian child. If the court finds Anthony is an Indian child, it is to conduct new hearings in compliance with ICWA and related California law.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.