Opinion
B300272
05-19-2020
In re Alex M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.R. et al., Defendants and Appellants.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant E.R. Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant A.M. Mary C. Wickham, County Counsel, and Jacklyn K. Louie, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. DK21120 APPEALS from an order of the Superior Court of Los Angeles County, Lisa A. Brackelmanns, Juvenile Court Referee. Reversed and remanded with directions. Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant E.R. Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant A.M. Mary C. Wickham, County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
E.R. (mother) and A.M. (father) appeal from an order terminating their parental rights to their three-year-old son, Alex M., under Welfare and Institutions Code section 366.26. The only argument mother and father raise on appeal is that the Department of Children and Family Services (Department) failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) before the court terminated mother's and father's parental rights. The Department concedes error and does not oppose conditionally reversing the order terminating mother's and father's parental rights to ensure compliance with ICWA. We agree that conditional reversal and limited remand for ICWA compliance is necessary.
All undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
1. The Dependency Court Proceedings
In January 2017, the Department filed a dependency petition on Alex's behalf, alleging: (1) mother and father were incapable of providing necessary treatment and care for Alex's medical conditions, including a congenital heart defect and feeding complications (§ 300, subd. (b); b-1 allegation); (2) mother has a history of criminal convictions that places Alex at risk of serious physical harm (b-2 allegation); and (3) father has a history of criminal convictions that places Alex at risk of serious physical harm (b-3 allegation). The court found the petition alleged a prima facie case under section 300 and ordered Alex detained from his parents' custody.
In March 2017, the court sustained the petition's b-1 allegation and dismissed the b-2 and b-3 allegations. At the disposition hearing, the court ordered Alex removed from mother's and father's custody and granted the parents family reunification services and monitored visitation.
At the six-month review hearing held in January 2018, the court found mother's participation in family reunification services was minimal, while father's was nonexistent. The court continued reunification services for mother and terminated them for father. In May 2018, the court terminated mother's reunification services after finding her participation continued to be minimal. The court scheduled a permanency planning hearing under section 366.26.
In August 2019, the court held the permanency planning hearing. The court found Alex adoptable, that it would be detrimental to return the child to his parents' custody, and that none of the exceptions to the termination of parental rights applied. The court then terminated mother's and father's parental rights.
Mother and father appealed from the order terminating their parental rights.
2. ICWA Compliance
In Alex's dependency petition, the Department noted that mother believed she has "Native American heritage" in her family, but that she did not have any information regarding her family's ancestry or affiliation with an Indian tribe. In mid-January 2016, mother and father filled out "Parental Notification of Indian Status" forms. Mother stated she may have Navajo ancestry, while father stated he may have Blackfeet ancestry.
At the detention hearing, the court questioned mother and father about their claims of Indian ancestry. Mother believed her family had Navajo ancestry through her mother, Alex's maternal grandmother. The maternal grandmother, Anna R., who was present at the hearing, told the court her family's Navajo ancestry traced back to her grandmother, Alex's maternal great-great grandmother, whose name was "Josefina" or "Josephine" "B[.]." According to the maternal grandmother, Josefina B. had enrolled in the Navajo tribe. The maternal grandmother also stated that Alex's maternal great-grandfather was named "Manuel B[.]"
Throughout the rest of the opinion we refer to Alex's maternal great-great grandmother as Josefina B.
As for father, he believed his family's Blackfeet ancestry traced back through his grandfather, Alex's paternal great-grandfather, who was named "Robert M[.]." Father also stated that Alex's paternal grandfather was named "Alex M." Both the paternal grandfather and the paternal great-grandfather were deceased.
The court ordered the Department to conduct a full ICWA investigation and to provide notice of Alex's dependency proceedings to the Navajo and Blackfeet tribes, the Bureau of Indian Affairs (BIA), and the Department of the Interior. The court also ordered the Department to provide an "ICWA return receipt card" to the court by March 3, 2017. (Capitalization removed.) The court deferred making any ICWA findings until further investigation by the Department.
In its "Jurisdiction/Disposition Report" filed in March 2017, the Department reported that a social worker met with mother and father to discuss their claims of Indian ancestry. Father could not provide a tribal registration number or a date of birth for his great grandfather. Father stated he would contact family members to see if they could provide any information about his family's possible Blackfeet ancestry. Mother believed her family may have Indian ancestry through the Navajo, Mohave, and Apache tribes. Mother could not provide a tribal registration number for any family member, but the maternal grandmother "assisted mother to answer questions about the family to complete much of the vital information."
On March 6, 2017, the Department mailed notices using the Judicial Council's ICWA-030 form (ICWA notices) to the "Navajo Mohave, Apache, and Blackfeet Tribes, the BIA, Secretary of the Interior, and the parents." The ICWA notices stated that Alex "is or may be eligible for membership" in the Blackfeet Tribe through father's family and the Navajo, Mohave, and Apache Tribes through mother's family.
The ICWA notices provided names and some of the dates and locations of birth and death for Alex's relatives, up through his maternal and paternal great grandparents. The notices listed the current addresses for Alex's living maternal and paternal grandmothers, Anna R. and Sharon M., respectively. But the notices listed as "Unknown" the former addresses for all of Alex's relatives (except for mother and father), and the notices provided the wrong date of birth for Alex's maternal great-grandmother, Carmen M. The notices also did not name, or otherwise include any information about, Alex's maternal great-great grandmother, Josefina B. And the notices did not include the full legal names for Alex, mother, and father.
Nothing in the record indicates the Department interviewed Sharon M. about mother's or father's claim of Indian ancestry.
The notice stated that Alex's maternal great-grandmother was born in 1993.
On March 13, 2017, the court continued the disposition hearing because "the [ICWA] notices were not sent out timely." On March 15, 2017, the Department sent new ICWA notices for the disposition hearing. The notices again included the wrong date of birth for Alex's maternal great-grandmother, Carmen M., and they did not include Alex's, mother's, and father's full legal names or any information about Alex's maternal great-great-grandmother, Josefina B. The Department filed certified "post cards" for the ICWA notices mailed on March 6, 2017 and certified mail receipts for the ICWA notices mailed on March 15, 2017.
On March 22, 2017, the Fort Mojave Tribal Services responded that Alex was not eligible for membership in the Fort Mojave Indian Tribe because mother and father were not members of the tribe. On March 23, 2017, the Department of Social Services for the Yavapai-Apache Nation submitted a letter indicating Alex was not enrolled, or eligible for membership, in the Yavapai-Apache Nation. That same day, the BIA responded that Alex, mother, and father were not eligible for membership in the Apache Tribe of Oklahoma.
On March 23, 2017, the court found that "ICWA notice is short," and it ordered the Department to send new notices to all tribes that had not yet responded to the previous notices. (Capitalization removed.) The court ordered the Department to provide proof that notice had been given to the tribes.
On March 24, 2017, the San Carlos Apache Tribe responded that it had no evidence that Alex was enrolled in, or eligible for membership in, the tribe. On March 28, 2017, the Jicarilla Apache Nation sent a letter stating that Alex was not a member of, or eligible for membership in, the Jicarilla Apache Nation.
On March 31, 2017, the Fort Sill Apache Tribe responded that none of Alex's family members identified in the ICWA notices could "be linked to the Fort Sill Apache Tribe." That same day, the Ramah Navajo Social Services sent the Department a letter explaining that it is "only a small satellite community" of the Navajo Nation and did not have access to the entire "Navajo Nation Census." The Ramah Navajo Social Services stated that it would forward the Department's ICWA notice to the "Navajo Nation ICWA Office" in Window Rock, Arizona.
The Department had previously sent an ICWA notice to the Navajo Nation in Window Rock, Arizona. --------
On April 3, 2017, the Tonto Apache Tribe responded that Alex was neither enrolled nor eligible for membership in the tribe.
On April 19, 2017, the Department sent a letter to the White Mountain Apache Tribe, along with a summary of identifying information for members of Alex's family, requesting a response to the ICWA notices the Department sent to the tribe in March 2017. The Department also reached out to the other tribes that had yet to respond to the ICWA notices, including the Blackfeet Tribe, the Navajo Nation, the Colorado River Tribe, and the White Mountain Apache Tribe.
The court held the disposition hearing on May 1, 2017. Although the court issued a disposition order, it stated it could not make any findings concerning ICWA's application to Alex's case until the Department received responses from all the notified tribes.
On May 30, 2017, the Blackfeet Tribe sent the Department a letter stating that Alex did not qualify to enroll in the tribe. On June 8, 2017, the Yavapai-Apache Nation sent a second letter stating that Alex was neither enrolled nor eligible to enroll in the Yavapai-Apache Nation.
On July 28, 2017, the court found ICWA did not apply to Alex's case. The court stated, "Unless we get other information today, I will deem it non-ICWA based on the notices."
DISCUSSION
ICWA was enacted " 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture ... .' [Citation.]" (In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C. § 1902.) Under ICWA, an "Indian child" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C.A. § 1903(4); see also § 224.1, subd. (a) [adopting federal definition of "Indian child"].)
Providing notice to Indian tribes of a child's dependency proceedings is essential to satisfying ICWA's purpose. (Isaiah W., supra, 1 Cal.5th at pp. 7-9.) Proper notice enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in, or exercise jurisdiction over, the child's dependency proceeding. (Id. at pp. 8-9.) To that end, ICWA requires that "[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 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).) Consistent with ICWA, California law requires that where the court, a social worker, or a probation officer knows or has reason to know that an Indian child is involved, notice must be provided to the parent, legal guardian or Indian custodian and the child's tribe. (§ 224.3, subd. (a); see also Cal. Rules of Court, rule 5.481(c)(1) [notice must be provided where "it is known or there is reason to know that an Indian child is involved in a proceeding listed in rule 5.480," including any dependency cases filed under section 300].)
"[T]he burden of coming forward with information to determine whether an Indian child may be involved and [the extent of] ICWA notice required in a dependency proceeding does not rest entirely—or even primarily—on the child and his or her family." (In re Michael V. (2016) 3 Cal.App.5th 225, 233.) Rather, "[J]uvenile courts and child protective agencies have 'an affirmative and continuing duty to inquire' whether a dependent child is or may be an Indian child." (Ibid.; see also Isaiah W., supra, 1 Cal.5th at pp. 9-11.) This affirmative duty to inquire is triggered whenever the child protective agency or its social workers "know[] or ha[ve] reason to know that an Indian child is or may be involved" in the dependency proceeding. (Cal. Rules of Court, rule 5.841(a)(4).) Once the duty is triggered, the social worker must, as soon as practicable, interview the parents, Indian custodian, extended family members, and any other person or agency, including the Bureau of Indian Affairs and the State Department of Social Services, who may have information concerning the child's membership status or eligibility. (§ 224.2, subd. (e); Cal. Rules of Court, rule 5.481(a)(4).)
As mother and father contend, and the Department concedes, the record does not support a finding that the Department conducted an adequate investigation concerning Alex's possible Indian ancestry. For example, nothing in the record indicates the Department interviewed Alex's paternal grandmother, Sharon M., who could have provided information about the family's possible Indian ancestry, including father's claim that Alex's paternal great-grandfather had enrolled in the Blackfeet tribe. (See § 224.2, subd. (e); Cal. Rules of Court, rule 5.481(a)(4).) The Department's ICWA notices also were deficient, as they omitted: (1) any reference to, or information about, Josefina B.; (2) parts of Alex's and his parents' legal names; (3) any last known addresses for Alex's maternal and paternal grandparents and great-grandparents; and (4) the dates and locations of birth and death for several of Alex's maternal and paternal grandparents and great-grandparents. (See In re S.E. (2013) 217 Cal.App.4th 610, 615-616 [omission of information relating to child's maternal great-great grandmother that pertains to family's claimed Indian ancestry prejudicial error under ICWA]; § 224.3, subd. (a)(5)(C) [ICWA notice must include, among other things, known information about the child's relatives, including, names, and dates and locations of birth and death].)
Based on the inadequacy of its investigation and the omissions in its ICWA notices, the Department concedes a limited remand is necessary to fulfill its inquiry and notice duties imposed by ICWA. We agree and, therefore, conditionally reverse the order terminating mother's and father's parental rights and remand the matter to ensure ICWA compliance.
DISPOSITION
The juvenile court's order terminating mother's and father's parental rights is conditionally reversed. The matter is remanded to the court with directions to ensure compliance with ICWA's inquiry and notice provisions. If, after a meaningful and thorough inquiry into Alex's possible Indian ancestry is conducted and proper notice under ICWA is provided to all appropriate tribes and the Department of the Interior and BIA, the court finds Alex is an Indian child, the court shall conduct a new permanency planning hearing under section 366.26 in conformity with all provisions of ICWA. If no responses are received, or if the notified tribes determine Alex is not an Indian child, the court shall reinstate the order terminating mother's and father's parental rights.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
EGERTON, J.