Opinion
A156771
10-15-2019
In re JOSHUA C., a Person Coming Under the Juvenile Court Law. MENDOCINO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. ALISSA C. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-JVSQ-17-17808)
Alissa C. (Mother) and Joshua C., Sr. (Father), parents of two-year-old minor, Joshua C., appeal from the juvenile court's order terminating their parental rights. (Welf. & Inst. Code, § 366.26.) The parents contend the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). They further argue they were denied due process because they were not given an opportunity to cross-examine the child welfare agency's adoptability witness at the permanency planning hearing. We find no prejudicial error on the due process claim but conditionally reverse and remand for ICWA error.
All further statutory references are to this code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Joshua was born premature, weighing 4 pounds, 12 ounces, and with a cleft palate. The Mendocino County Department of Social Services, Family & Children's Services (Department) received a referral that Mother had received limited prenatal care and regularly used marijuana and cigarettes during pregnancy. Investigation revealed that Joshua was not being properly or adequately fed, and Mother had discontinued prescribed treatment for mental illness. Joshua was diagnosed with failure to thrive.
On December 4, 2017, the Department filed a section 300 petition against Mother and Father alleging they failed to adequately supervise, protect and care for Joshua due to mental illness, developmental disability, or substance abuse. The petition further alleged that Mother had a history of bipolar disorder and schizophrenia. The juvenile court found a prima facie case for detention and placed Joshua in a medically specialized foster home.
After several continuances, a jurisdiction hearing was held in January 2018. The juvenile court found true, by a preponderance of evidence, the allegations that the parents failed to provide Joshua with adequate food and medical care resulting in his failure to thrive.
After several continuances, a disposition hearing was held in March 2018. The parents submitted on the Department's report and requested services. The juvenile court declared Joshua a dependent and ordered reunification services.
Following disposition, the parents had several positive drug tests and refusals to test. The Department reported that the parents had not adequately engaged in services or complied with their case plan and failed to demonstrate their readiness to provide for Joshua's needs. The Department recommended terminating services and setting a section 366.26 hearing.
After a contested six-month review hearing in October 2018, the juvenile court found by clear and convincing evidence that reasonable services had been offered, and there was not a substantial probability of Joshua's return because the parents had not sufficiently engaged in their case plan. The court terminated services and set a section 366.26 hearing for February 28, 2019.
In January 2019, the California Department of Social Services issued an adoption assessment for Joshua. The assessor noted that Joshua was still living in his first and only placement since his detention, and that both his current caretakers and out-of-state relatives were willing to adopt him. Regarding the relatives, the assessor noted that the potential adoptive father was employed at a military base and had experience in caring for a child with special needs, and the potential adoptive mother had experience working with medical staff and families. Both parents demonstrated good parenting practices with their own children and had supportive family members nearby. There were also local services nearby, including a craniofacial center, maxillofacial center, genetics clinic, and multiple children's speech therapy providers.
The assessor noted Joshua's medical and developmental issues, including congenital torticollis, chromosome abnormality, gastroesophageal reflux disease, chronic ear infections, and cleft palate, but he had already recovered from surgery to correct his cleft palate and ear infections. He was assessed at 64% delay compared to other children his age, had some difficulties eating, and was not uttering words, but he was on target developmentally with regard to walking, and his mental and emotional status appeared to be healthy. The assessor observed that Joshua was alert, sought and received comfort from his caretakers, and was pleasant, fun and curious. The assessor concluded that Joshua was adoptable and recommended a permanent plan of adoption.
On February 28, 2019, the juvenile court continued the section 366.26 hearing to March 14, 2019. In the meantime, Mother filed a section 388 petition asking the juvenile court to change its order terminating reunification services, but the court summarily denied the petition.
The section 366.26 hearing was held on March 14, 2019. Mother requested a stay in order to appeal the denial of the section 388 petition, but the court denied the request. Mother then requested to have a contested hearing on the sibling bond and beneficial parent-child relationship exceptions to termination of parental rights, and to examine the Department's witness on whether Joshua was adoptable despite his extensive medical issues. The Department informed the court that the adoption worker was not present due to a family emergency, and it argued that Joshua was adoptable because his relatives were willing to adopt him, and his current caretakers were a "backup if somehow it fell through."
The juvenile court stated that although its general preference was to allow an evidentiary hearing, it was not convinced anything was going to overcome the adoptability report. The court found that Joshua was adoptable, with two families willing to adopt, and the presence of the adoptions witness or any further evidence about Joshua's medical condition would not change that determination. After hearing argument from both sides, the court found by clear and convincing evidence that that no exceptions to terminating parental rights applied, and that Joshua was likely to be adopted. The court terminated parental rights and selected adoption as the permanent plan.
Mother appealed from the order denying her section 388 petition, and both parents appealed from the order terminating their parental rights.
Mother provided no argument that the juvenile court erred in denying her section 388 petition. Thus, we deem the appeal from this order to have been abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
ICWA-Related Facts
Mother initially informed a social worker in December 2017 that she believed she was of Pomo, Wailaki, and Cherokee ancestry. Father stated in his ICWA-020 form that he may have Osage, Cherokee, and Pawnee heritage. In her first ICWA-020 form, Mother stated she was or may be a member of "Round Valley Tribe."
California Rules of Court, rule 5.481(a)(2), provides in relevant part that upon the first appearance by a parent in a dependency case, the court must order the parent to complete a "Parental Notification of Indian Status" form, designated ICWA-020.
In a later ICWA-020 form, Mother stated she was or may be a member of the "Pomo" tribe, "Round Valley" band.
In February 2018, the Department sent a "Notice of Child Custody Proceeding for Indian Child" (ICWA-030) to eight tribes: Cherokee Nation, Eastern Band of Cherokee Indians, United Keetowah Band of Cherokee, Grindstone Rancheria, Osage Tribe, Pawnee Nation of Oklahoma, Round Valley Reservation, and Scotts Valley Reservation. The notice attached a parent history chart which described the ancestry of Joshua's maternal grandfather, great-grandfather, and great-grandmother as "Pomo (Round Valley), Wylacki." In April, the Department reported that five tribes (Eastern Band of Cherokee Indians, Grindstone Rancheria, Pawnee Nation of Oklahoma, Round Valley Indian Tribes, and Scotts Valley Rancheria) responded and stated that Joshua was not eligible for membership.
California Rules of Court, rule 5.481(b), mandates that in a section 300 proceeding involving an Indian child, the social services agency must send the ICWA-030 form to the Indian child's tribe in the manner specified in section 224.2.
In its six-month status review report, the Department reported that it had confirmed "Wailaki is part of the Round Valley Indian Tribes," and that Joshua was neither enrolled nor eligible to be a member of Round Valley Indian Tribes.
The Department further reported that a social worker interviewed Joshua's maternal grandmother, who stated that Joshua's maternal grandfather had been registered with the "Pomo Wailaki Tribe of Mendocino Coast." Mother also provided a social worker with two letters from the Bureau of Indian Affairs (BIA), one of which stated that maternal great-grandmother "Margaret Jean Fay" was 1/16 Wailaki, and maternal grandfather was 1/32 Wailaki, and the other addressed to "Margaret J. Faye Sanchez" stating that she was listed on the Judgment Fund Roll of California Indians. Mother's attorney also provided the social worker with a certificate from the BIA confirming that maternal grandfather was a lineal descendant of an enrolled California Indian of Wailaki ancestry.
In September 2018, Joshua's maternal great uncle, Antonio M., contacted the Department and expressed interest in adopting Joshua. Antonio stated that he lived in Washington and was "Native with 'Pomo.' "
In October 2018, the Department sent a second ICWA-030 notice (with the same family history information) to the same eight tribes.
DISCUSSION
A. ICWA
The parents contend that ICWA notice was inadequate because the Department did not give notice to all Pomo-affiliated tribes recognized by the federal government, and the notices they did provide omitted known, statutorily-required information, including the current or former addresses for maternal grandparents, all names and spellings for maternal great-grandmother, and maternal great uncle's information.
The parents' failure to object to the ICWA notice in the lower court does not forfeit the issue on appeal. (In re J.T. (2007) 154 Cal.App.4th 986, 991 (J.T.).)
ICWA was enacted 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.) Federal and state law allow a tribe to intervene in dependency proceedings involving an Indian child because the law presumes it is in the child's best interests to retain tribal ties and heritage, and it is in the tribe's interest to preserve future generations. (§ 224.4; In re Desiree F. (2000) 83 Cal.App.4th 460, 469 (Desiree F.).) Notice of all hearings that may culminate in, among other things, termination of parental rights and adoptive placement of an Indian child, shall be sent to "[a]ll tribes of which the child may be a member or citizen, or eligible for membership or citizenship." (§ 224.3, subd. (a)(3)(A).) This language has been construed as requiring notice to all federally recognized tribes within the "general umbrella" identified by the child's parents or relatives. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1202 (Alice M.).)
Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families, as it ensures the tribe will be afforded the opportunity to assert its rights under the ICWA. (In re O.C. (2016) 5 Cal.App.5th 1173, 1181 (O.C.).) The ICWA notice must include, among other information, "[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, 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).) The ICWA notice requirements are strictly construed. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.)
The juvenile court and the Department have "an affirmative and continuing duty to inquire" whether a dependent child "is or may be" an Indian child. (Cal. Rules of Court, rule 5.481(a).) The Indian status of the child need not be certain to invoke the notice requirement, and enrollment in a tribe is not required or determinative, as ICWA applies to children who are eligible for membership, even if not enrolled and neither of the child's parents is enrolled in the tribe. (Desiree F., supra, 83 Cal.App.4th at pp. 470-471.) Failure to comply with the notice provisions and to determine whether ICWA applies is prejudicial error. (Id. at p. 472.)
Based on the statements of Mother, maternal grandmother, and maternal great uncle regarding their Pomo heritage, we conclude the Department was required to give ICWA notice to all federally recognized tribes within the general umbrella of the Pomo tribe, and the juvenile court erred in not requiring the Department to do so. (Alice M., supra, 161 Cal.App.4th at p. 1202.) Because the Department gave ICWA notice to only two Pomo-affiliated tribes and did not give notice to all Pomo-affiliated tribes identified in the current federal list (see 84 Fed.Reg. 1200 (Feb. 1, 2019)), the ICWA notice was inadequate. (See O.C., supra, 5 Cal.App.5th at pp. 1178-1179, 1188 [court erred in failing to require notice to all Pomo-affiliated tribes; J.T., supra, 154 Cal.App.4th at pp. 992-994 [county was required to send ICWA notice to all federally recognized Sioux and Cherokee tribes].)
The Department argues the instant matter is distinguishable from O.C. and Alice M. because Mother clarified that her only Native American ancestry was Round Valley Indian Tribes, not Pomo broadly. We do not agree that Mother's identification dispensed with further inquiry. The father in O.C. also referred specifically to Round Valley Indian Tribe, but this was not held to limit the scope of the Department's inquiry. (O.C., supra, 5 Cal.App.5th at pp. 1178-1179.) And courts have recognized that, due to the oral nature of transmission of information over generations, as well as the vagaries of translating from Indian languages to English, there is a "very real possibility that a parent's identification of the family's tribal affiliation is not accurate." (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 787.) For this reason, the Department has a duty to determine whether additional information exists that may establish Joshua's eligibility for membership in a federally recognized tribe. (Ibid.) Indeed, the Department recognized at the initial disposition hearing that although it believed Round Valley Indian Tribe was "the most appropriate" tribe, "there are multiple tribes that the child may be eligible for," and "we still need to do due diligence to the other tribes."
The Department's duties were not satisfied by simply confirming that Wailaki was part of Round Valley Indian Tribes and that Joshua was not eligible for membership in Round Valley Indian Tribes. Maternal grandmother referred to a "Pomo Wailaki Tribe of Mendocino Coast," and as Mother points out, there are multiple Pomo-affiliated tribes in the Mendocino area, including Coyote Valley Band of Pomo Indians of California, Hopland Band of Pomo Indians, and Manchester Band of Pomo Indians of Manchester Rancheria. (See 84 Fed.Reg. 1200 (Feb. 1, 2019).) Nothing was presented to the juvenile court or included in the record on appeal concerning the membership rules for these tribes. (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1386-1387.) And since the determination of membership rests with each tribe (§ 224.2, subd. (h); Desiree F., supra, 83 Cal.App.4th at p. 471), it cannot be said, on the current record, that the Department satisfied its duty to inquire as to whether Joshua "may be . . . eligible for membership" (§ 224.3, subd. (a)(3)(A)) in the remaining tribes, notwithstanding the particular requirements of Round Valley Indian Tribe.
We also agree with the parents that the ICWA notice was inadequate in failing to provide complete information for Joshua's maternal grandparents and maternal great-grandmother. (See § 224.3, subd. (a)(5)(C).) ICWA's notice requirements are strictly construed (In re Karla C., supra, 113 Cal.App.4th at p. 174), and a notice that provides incomplete information does not permit a tribe a meaningful opportunity to investigate its records (In re Louis S. (2004) 117 Cal.App.4th 622, 629-631). The Department concedes the omissions but contends they were not prejudicial because Round Valley Indian Tribe confirmed Joshua's ineligibility. But this argument fails, as we have rejected the premise that the Department's duties were satisfied by its limited inquiry as to Round Valley Indian Tribe. Accordingly, we direct the juvenile court on remand to order the Department to give ICWA notice to all Pomo-affiliated tribes recognized by the federal government and to include in the notice the omitted information of maternal grandparents and maternal great-grandmother.
B. Due Process
The parents argue their due process rights were violated when the juvenile court deprived them of any opportunity to cross-examine the Department's adoptability witness. While we agree that due process required the parents to be given a meaningful opportunity for cross-examination, we conclude there was no prejudice.
The Department suggests the parents waived this issue by not subpoenaing the adoptability witness or requesting her attendance at the permanency planning hearing. However, consistent with Mother's counsel's belief that the witness was going to attend, we may infer from the record that the witness intended to be present but did not appear due to an unforeseen family emergency. Because both sides apparently expected the adoptability witness to be present, we do not find the cross-examination issue waived by the parents' failure to secure the witness's attendance.
In order to terminate parental rights and place a child for adoption, the juvenile court must determine, by clear and convincing evidence, that it is likely the child will be adopted. (§ 366.26, subd. (c)(1).) The issue of adoptability requires the court to focus on whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt, and whether there is clear and convincing evidence of the likelihood that adoption will take place within a reasonable time. (In re Brian P. (2002) 99 Cal.App.4th 616, 624 (Brian P.).)
In In re Thomas R. (2006) 145 Cal.App.4th 726 (Thomas R.), we held that a parent has a due process right at the permanency planning stage to conduct an examination and test the sufficiency of evidence offered by a child welfare agency on the issue of adoptability. Recognizing that parents do not have full cross-examination rights as they do in hearings before the permanency planning stage, we concluded nonetheless that due process still requires " ' [a] "meaningful opportunity to cross-examine and controvert the contents of the report" ' if it is relevant to the issues before the court." (Id. at p. 733.) Because "[t]he strength of the Department's evidence on the likelihood of adoption was indisputably relevant at the permanency planning stage," it was error to preclude the parents from testing that evidence. (Id. at pp. 733-734.)
Based on Thomas R., we conclude the parents here had a due process right to examine the Department's adoptability witness. This issue was especially important given that Joshua has special needs, and the finding of his adoptability was based on the willingness of specific caretakers to adopt him. "When a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child." (In re Helen W. (2007) 150 Cal.App.4th 71, 80 (Helen W.).)
The parents do not contend there are any legal impediments to adoption by the prospective adoptive families in this case. --------
We conclude, however, that any error was harmless beyond a reasonable doubt. (In re Dolly D. (1995) 41 Cal.App.4th 440, 446.) "Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. [Citations.] We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) Here, the written adoption assessment, which detailed the relatives' experience, abilities, and available resources to meet Joshua's needs, was evidence that reasonably supported the juvenile court's conclusion that Joshua was likely to be adopted within a reasonable time by capable caretakers. The parents have not identified any weaknesses or errors in the adoption assessment that precluded the juvenile court's reliance upon it.
Furthermore, the fact remains that Joshua's current caretakers were willing to adopt him if the relatives could not, and the record establishes that Joshua has lived almost his entire life in the same medically specialized foster home and has received appropriate care and developmental services. The parents have given us no reason to doubt the abilities of Joshua's current caretakers to continue to meet his special needs. These facts distinguish Thomas R., where prejudicial error was found because the children were not otherwise adoptable if placement with the foster parents fell through. (Thomas R., supra, 145 Cal.App.4th at p. 734.) Taken together, the evidence of the relatives' experience, abilities, and resources, and the availability of the current caretakers as a backup option, satisfied the low threshold showing of a likelihood that Joshua would be adopted within a reasonable time by caretakers able to meet his needs. (§ 366.26, subd. (c)(1); cf. Brian P., supra, 99 Cal.App.4th at p. 624; Helen W., supra, 150 Cal.App.4th at p. 80.) Thus, we conclude that any due process error in denying the parents an opportunity to examine the Department's adoptability witness was harmless beyond a reasonable doubt.
DISPOSITION
The disposition order is conditionally reversed. The case is remanded to the juvenile court with directions to order the Department to give ICWA notice to all Pomo-affiliated tribes recognized by the federal government, and to include in the notice all statutorily required information. If a tribe intervenes after receiving proper notice, the court shall proceed in conformity with all provisions of ICWA. If no tribes intervene or otherwise respond after receiving proper notice, the order terminating parental rights and selecting adoption as the permanent plan shall be reinstated.
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.