Opinion
E067004
03-07-2017
In re C.W., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. S.W., Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1500394) OPINION APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Reversed and remanded with directions. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Appellant S.W. (father) is the father of C.W. (the child). A juvenile court terminated the dependency case concerning the child under a permanent plan of legal guardianship. The sole issue on appeal is that the Riverside County Department of Public Social Services (DPSS) failed to comply with the requirements under the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Respondent concedes, and we agree. Therefore, we will conditionally reverse the order and remand the matter to the juvenile court, with directions to order compliance with the ICWA inquiry and notice provisions. In all other respects, we affirm.
Respondent opted not to file a brief in this matter, but simply a letter indicating its concession on the issue.
PROCEDURAL BACKGROUND
Because the only issue on appeal concerns ICWA, the procedural background will be minimal.
On April 16, 2015, DPSS filed a Welfare and Institutions Code section 300 petition, alleging that the child, who was 15 years old at the time, came within the provisions of section 300, subdivision (b). With regard to father, the petition specifically alleged that he knew or reasonably should have known that the child's mother had a substance abuse problem, but failed to protect the child, and that he had a mental health history. The petition also indicated that the social worker questioned father over the phone, and he reported he may be of Apache descent. In the detention report, the social worker stated that ICWA may apply.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
Mother is not a party to this appeal.
The court held a detention hearing on April 17, 2015, and detained the child in foster care. The minute order indicates that there was reason to know an Indian child was involved and that DPSS had provided notice to all identified tribes and the Bureau of Indian Affairs (BIA).
On May 13, 2015, the social worker filed a jurisdiction/disposition report and stated that, on May 5, 2015, father identified Indian ancestry on his paternal grandmother's side of the family. He stated that his "great great great grandmother is a quarter of Apache Indian." However, father said he did not know her name. The social worker reported that DPSS sent out ICWA notices on April 17, 2015, to the BIA, the San Carlos Apache Tribe, the Tonto Apache Tribe of Arizona, the White Mountain Apache Tribe, and the Yavapai-Apache Nation. Other tribes that were sent notices included the Apache Tribe of Oklahoma, the Fort Sill Apache Tribe of Oklahoma, the Jacarilla Apache Nation, and the Mescalero Apache Tribe. The notices contained the names, addresses, and birthdates of father and mother. They did not contain any other information regarding the paternal grandparents or great-grandparents; they simply stated, "No information available," with regard to all relatives.
In the jurisdiction/disposition report, the social worker reported that father said his parents were Angela Kay T. and Robert Alvin W.
The court held a jurisdiction hearing on May 18, 2015. Father set the matter contested. The court found that ICWA notice had been given, and noted that the Mescalero Apache Tribe responded, and ICWA did not apply to that tribe.
On July 8, 2015, DPSS filed an amended petition and added the allegation that father admitted to excessively drinking alcohol, which resulted in child protective services getting involved with the child's half siblings. That same day, the court held a contested jurisdiction/disposition hearing. The court sustained the petition, adjudged the child a dependent of the court, and ordered mother and father (the parents) to participate in reunification services. It also found that good ICWA notice had been given and noted that it received responses from the Fort Sill Apache Tribe, the San Carlos Apache Tribe, the Tonto Apache Tribe of Arizona, and the Yavapai-Apache Nation, indicating that the child was not a member of their tribes; thus, ICWA did not apply to them. However, the court stated that ICWA may apply to the child, since there were still tribes outstanding.
On January 11, 2016, the court held a six-month status review hearing. The court stated: "We had a good ICWA-030 filed June 11th. Let me see, one tribal response. I thought her dad was Indian. However, all of the Apache tribes have responded in the negative that she's not eligible to be enrolled. [¶] So at this point, I'll find she is not an Indian child and ICWA does not apply unless new information comes before the Court." The court found that the parents had made minimal progress in their case plans, but continued their services and set a 12-month status review hearing.
The court held a 12-month review hearing on June 14, 2016. The court found that ICWA did not apply, noting that it had heard back from all the tribes, and there was no Indian ancestry.
The court held a contested 12-month review hearing on June 28, 2016, found that the parents had made minimal progress in their case plans, ordered reunification services to be terminated, and set a section 366.26 hearing.
The section 366.26 hearing was held on September 26, 2016. DPSS recommended that the court establish a legal guardianship with the current caretakers and terminate the dependency. The child's counsel agreed. The court noted that the child was 16 years old and was living with someone who was not able to adopt, but was willing to provide her with stability through legal guardianship. The court appointed the caretaker as the child's legal guardian and terminated the dependency.
ANALYSIS
The Record Fails to Show That ICWA Inquiry and Notice Requirements Were Met
Father contends that proper ICWA notice was not given to the BIA or Apache tribes, since the notices sent contained no identifying information about the paternal relatives. Specifically, even though father gave the social worker the names of his parents and said he had Apache Indian heritage through his paternal grandmother's side of the family, the notices sent to the BIA and Apache tribes did not contain the paternal grandparents' names. Moreover, the social worker apparently failed to interview any of father's relatives for more information. DPSS concedes that the ICWA notices did not contain paternal relative information that was known, and that the notices were therefore insufficient. We conclude that the ICWA inquiry and notice requirements were not met.
A. Requirements under ICWA
"The social worker has a 'duty to inquire about and obtain, if possible, all of the information about a child's family history' " required under ICWA regulations. (In re S.M. (2004) 118 Cal.App.4th 1108, 1115-1116 (S.M.).) "[W]here 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, subd. (a); see In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264-1265.) "One of the primary purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. [Citation.] Notice is meaningless if no information or insufficient information is presented to the tribe. [Citation.] The notice must include . . . information about the Indian child's biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, birthdates, places of birth and death, current and former addresses, tribal enrollment numbers, and/or other identifying information. [Citations.]" (S.M., at pp. 1115-1116, fn. omitted.)
When the notice sent is inadequate, the orders of the court terminating parental rights should be vacated and the matter should be remanded to the juvenile court with directions to order compliance with the ICWA notice provisions. (In re Jonathan D. (2001) 2 Cal.App.4th 105, 111.) "If, after proper inquiry and notice, no response is received from a tribe indicating the [child] is an Indian child, all previous findings and orders shall be reinstated. If a tribe determines that the minor is an Indian child, or if other information is presented to the juvenile court that suggests the [child] is an Indian child as defined by [ICWA], the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of [ICWA]." (Id. at pp. 111-112; see Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261.)
B. The ICWA Notices Sent to the BIA and Apache Tribes Were Deficient
The record shows the notices failed to provide the BIA and the tribes with sufficient identifying information. The notices appear to have been prepared and served prematurely and were sent prior to father even identifying the relative through whom he had Apache heritage. On April 15, 2015, he told the social worker that he might have Apache ancestry. Twelve days later, DPSS sent ICWA notices to the BIA and Apache tribes, apparently just based on this initial indication that he may have Apache ancestry. The notices included only the names, addresses, and birthdates of mother and father. They did not include any information on any relatives.
On May 5, 2015, approximately one week after the notices were sent, father identified Indian ancestry on his paternal grandmother's side of the family. He stated that his "great great great grandmother is a quarter of Apache Indian," but did not know her name. Since father did not have any information regarding her, the social worker should have made further inquiry with the paternal relatives. In the jurisdiction/disposition report, the social worker reported that father said his parents' names were Angela Kay T. and Robert Alvin W. The social worker should have asked the paternal grandparents for the name, birthdate, or place of birth or death of the paternal great, great, great-grandmother, who was alleged to have Indian heritage. However, nothing in the record indicates the social worker followed through. By failing to make this minimal inquiry, DPSS failed to make a proper inquiry.
Moreover, DPSS concedes that the ICWA notices did not "contain paternal relative information that was known to the Department." Thus, DPSS apparently had the names of the paternal grandparents at the time the ICWA notices were sent, but inexplicably did not include them in the notices.
We conclude that DPSS failed to comply with ICWA inquiry and notice requirements. Without any information about the person with the alleged Indian heritage in the ICWA notices, the BIA and Apache tribes could not have conducted a meaningful search. Thus, the matter must be remanded for proper ICWA compliance.
DISPOSITION
The order of the juvenile court terminating the dependency and establishing a legal guardianship is conditionally reversed, and the matter is remanded to the juvenile court with directions to order compliance with the ICWA inquiry and notice provisions. If, after proper inquiry and notice, no response is received from a tribe indicating the child is an Indian child, the order terminating the dependency and establishing a legal guardianship, which in all other respects is affirmed, shall be reinstated. If a tribe determines the child is an Indian child, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of ICWA.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: McKINSTER
J. MILLER
J.