Opinion
E067650
06-02-2017
In re G.B., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.L., Defendant and Appellant.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, Jamila Bayati, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J264174) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Reversed. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, Jamila Bayati, Deputy County Counsel for Plaintiff and Respondent.
Defendant and appellant A.L. (Mother) appeals after the termination of her parental rights for G.B. (Minor) at a Welfare and Institutions Code section 366.26 hearing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother makes one claim on appeal that the San Bernardino County Department of Children and Family Services (Department) failed to make proper inquiry into Minor's Indian heritage and provide adequate Indian Child Welfare Act (ICWA) notice. This court should order reversal of the order terminating her parental rights and remand to the juvenile court for proper ICWA notice to be given pursuant to Title 25 United States Code section 1901 et seq. We agree.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
On February 17, 2016, Minor (male; born January 2014) was detained by the Department.
On February 17, 2016, two social workers responded to the home of O.B. (Father) and Mother (collectively, Parents) based on a report that they were being arrested for human trafficking. Once the two social workers arrived, they spoke with a senior investigator from the San Bernardino County Sheriff's Department. The sheriff's department had received a report that Parents had two juvenile females living with them for the purpose of human trafficking. The responding sheriff's deputies found a marijuana plant in the closet. In addition, Parents were smoking marijuana in their car and Minor was inside the car.
Mother was interviewed by the social worker at the sheriff's department. Mother explained she was allowing the two juvenile females to live with them because they had been kicked out of their own homes. Mother believed they were over 18 years old. When she found out they were both under the age of 18 years, she tried to kick them out but they "jumped her." She stabbed one of them in the back. Mother claimed Minor was in another room during the altercation. Mother had a marijuana card to treat anxiety and depression. She was allowed to grow the plant found in her house. Mother admitted to having a domestic dispute with Father in 2015 but asserted it was an isolated incident.
Father admitted he was the biological father of Minor. Father claimed he did not know the names of the juvenile females living in their house. He and Minor were in another room sleeping when Mother engaged in an altercation with the two females. He denied he was involved in prostitution or human trafficking. He had a medical marijuana card.
On February 19, 2016, the Department filed a section 300 petition against Parents. It was alleged under section 300, subdivision (b), that both had substance abuse issues; they had engaged in domestic violence; they both had a history of mental illness, which impacted their ability to parent Minor; and they had exposed Minor to known dangerous people putting Minor at risk of serious harm or injury. It was alleged under section 300, subdivision (g) that they could not provide for Minor because they were both incarcerated and being charged with human trafficking. Their release date was unknown. The Department also provided that Parents, grandparents, or great-grandparents were members of the Cherokee Tribe of Indians.
The detention hearing was held on February 23, 2016. Mother was present in court. Mother executed an ICWA-020 form indicating she may be eligible for membership in the Cherokee tribe. Mother was asked at the hearing which of her relatives had Indian ancestry. Mother responded "My great-grandmother on my father's side." She was asked if anyone else in her family would have information about her ancestry. Mother responded, "I'm pretty sure my grandmother would." Mother was ordered by the juvenile court to give any information about grandmother to the Department. Mother agreed. Mother was requesting that paternal grandfather be assessed for placement. Father was not present so the matter was continued to the following day.
The matter was heard on February 24. Father signed an ICWA-020 form stating he had no Indian heritage. Father denied in open court that he had any Indian ancestry. The juvenile court found a prima facie case to detain Minor outside the home.
B. JURISDICTION/DISPOSITION REPORTS AND HEARING
A jurisdiction/disposition report was filed on March 14, 2016. It was recommended that Mother and Father be denied reunification services pursuant to section 361, subdivisions (c)(1) through (c)(5). It was further stated in the report that, "Maternal relatives report they are not enrolled members of any tribe." Mother and Father remained detained at the West Valley Detention center on charges of pimping and human trafficking.
The report provided further information that the two juvenile females were 16 and 17 years old. Father and Mother were alleged to have been prostituting out the two females. One of the girls was hospitalized for injuries sustained when Mother stabbed her.
The social worker had contacted the paternal grandmother and grandfather, who were no longer together. Each was willing to take custody of Minor. On March 8, 2016, Mother contacted the Department and sought to have the maternal great-grandmother (MGGM) considered for placement. The social worker spoke with MGGM; she wanted placement of Minor. Parents and Minor had lived with MGGM up until the prior four months. MGGM reported that Mother did not have a good relationship with maternal grandmother (MGM). Mother had been previously arrested for engaging in an altercation with MGM. It appeared that MGGM was MGM's mother. Mother continued to deny that she was involved in human trafficking. Mother had previous arrests for battery; Father had a prior conviction for battery on a spouse.
The two juvenile females living with Parents had been interviewed. Both females described that Parents would prostitute them out and they would give half of the money they earned to Parents. Parents carried knives and guns. One of the females had observed Minor holding one of the guns.
Mother reported being physically abused by her father and MGM. MGGM was willing to adopt Minor if reunification failed. Minor was doing well in the foster home. The Department reported that the possibility of reunification was poor based on Mother and Father being incarcerated and facing serious criminal charges. It was not in Minor's best interest to grant reunification services.
The Department included with its report the declaration of due diligence for the ICWA notice dated March 15, 2016. On February 26, 2016, the Department sent notice to the Bureau of Indian Affairs (BIA), the U.S. Department of the Interior, Cherokee Nation of Oklahoma, Eastern Band of Cherokee Indians and United Keetoowah Band of Cherokee Indians in Oklahoma. The Department included postal receipts that the notices were received by each of these recipients. On the notices, Parents were identified. Their current addresses, former addresses and dates of birth were provided on the form. For MGM, only her name, a city where she currently lived and her birth date were provided. MGGM was identified by name, and her current address was listed as Las Vegas, Nevada. The tribes she was involved with were listed as the three Cherokee tribes.
As for maternal grandfather's (MGF) side of the family, Minor's maternal grandfather was identified as either Adolfo H. or Adolfo W. His current address was listed as Oakland and his date of birth was also provided. The three Cherokee tribes were listed under his name. No other information was provided as to maternal great-grandparents or great-great grandparents on MGF's side of the family.
The paternal grandmother and grandfather were also identified, but Father denied any Indian ancestry. --------
MGGM had a unique last name. The Eastern Band of Cherokees and the United Keetoowah Bank had responded that Minor was not eligible to register as a member of the tribes.
On March 22, 2016, the Department filed an additional declaration of due diligence. The BIA and U.S. Department of the Interior had not responded yet. The Cherokee Nation of Oklahoma responded that Minor was not eligible and they would not intervene. No further information on family members was provided to the Cherokee tribes, BIA or the U.S. Department of the Interior.
Just prior to the jurisdiction/disposition hearing, the Department changed its recommendation and authorized providing reunification services to Parents. The Department also recommended that the juvenile court make the finding that ICWA did not apply in the case.
The jurisdiction/disposition hearing was held on March 24, 2016. The Department requested that the juvenile court enter and receive the ICWA declaration of due diligence provided that day. It provided that all three Cherokee tribes had responded and stated that Minor was not eligible. In addition, the BIA and U.S. Department of the Interior had not responded after 65 days since notice was received by the three tribes. The Department recommended that the juvenile court find that ICWA did not apply.
The Department also moved to amend the section 300 petition to dismiss the allegation that Mother had exposed Minor to dangerous individuals and that her substance abuse was due to her mental illness.
Mother waived her right to a contested hearing and admitted the allegations. The trial court found all of the allegations in the petition under section 300, subdivisions (b) and (g) true against Parents as amended. Mother asked that MGGM be assessed for placement of Minor. The juvenile court ordered an ICPC for MGGM because she lived in Nevada.
The juvenile court first stated that the ICWA notice was still pending. The Department referred to the updated due diligence report filed that day. Counsel for the Department stated, "we'll ask that the Court make a finding at this point that ICWA does not apply, based on the updated ICWA declaration of due diligence. Both of the tribes mentioned are declining to intervene. I don't believe we had all of the information at the time jurisdiction was written." The juvenile court asked the parties if there was any objection. Both parties responded they had no objection. The juvenile court found that the ICWA did not apply.
Minor was placed with the paternal grandmother and her husband on May 23, 2016. They were willing to adopt Minor.
On July 7, 2016, the Department filed a section 388 petition seeking to terminate reunification services immediately because Parents had both been convicted of felonies for their involvement in pimping the two juveniles. Father had been sentenced to eighteen months and Mother was sentenced to three years. Neither Parent would be able to reunify with Minor within the legal time frame. On August 18, 2016, the section 388 petition was granted. Reunification services were terminated and the matter was set for a section 366.26 hearing.
C. SECTION 366.26 REPORTS AND HEARING
The Department filed its section 366.26 report on December 9, 2016. It recommended that parental rights be terminated and that Minor be freed for adoption. Paternal grandmother and her husband wanted to adopt Minor. The Department stated that ICWA did not apply. Minor was developing normally and adoption was the most appropriate plan for him.
The section 366.26 hearing was held on January 27, 2017. Father was present and out of custody but Mother was still in custody. Parents contested termination of their rights and sought legal guardianship. The juvenile court terminated the parental rights of Mother and Father and freed Minor for adoption.
DISCUSSION
A. ICWA NOTICE
Mother asserts that the ICWA notice was incomplete because the Department failed to properly investigate her Indian heritage. As a result, the notices sent were deficient.
Initially, Mother has not forfeited her claim that the notice was deficient by failing to appeal from the disposition order "because the notice provisions are designed in part to protect the potential tribe's interests." (In re S.E. (2013) 217 Cal.App.4th 610, 615.)
ICWA is intended 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, and by providing for assistance to Indian tribes in the operation of child and family service programs." (25 U.S.C. § 1902.)
"When applicable, ICWA imposes three types of requirements: notice, procedural rules, and enforcement. [Citation.] First, if the court knows or has reason to know that an '"Indian child"' is involved in a '"child custody proceeding,"' as those terms are defined in the Act (25 U.S.C. § 1903(1), (4)), the social services agency must send notice to the child's parent, Indian custodian, and tribe by registered mail, with return receipt requested. (25 U.S.C. § 1912(a).) If the identity or location of the tribe cannot be determined, notice must be sent to the Bureau of Indian Affairs (BIA). [Citation.] No hearing on foster care placement or termination of parental rights may be held until at least 10 days after the tribe or BIA has received notice." (In re W.B., Jr. (2012) 55 Cal.4th 30, 48.)
"ICWA notice requirements are strictly construed and must contain enough information to be meaningful. [Citation.] In 2006, the [California] Legislature enacted section 224.2 . . . , which 'largely tracks the ICWA . . . .' [Citation.] Section 224.2 provides that notice shall 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, birth dates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.' [Citation.] Section 224.2 does not require that notice include information about great-great-grandparents. [¶] Like section 224.2, federal regulations do not require the disclosure of information concerning ancestors more remote than great-grandparents. Federal regulations require the notice to include '[a]ll names known . . . of 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; birth dates; places of birth and death; tribal enrollment numbers, and/or other identifying information.'" (In re J.M. (2012) 206 Cal.App.4th 375, 380 (J.M.)
"'[I]n order to establish tribal identity, it is necessary to provide as much information as is known on the Indian child's direct lineal ancestors.'" (J.M., supra, 206 Cal.App.4th at p. 381.) "The burden is on the [Department] to obtain all possible information about the minor's potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA." (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) "Thus, a social worker who knows or has reason to know the child is Indian 'is required 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 to gather the information required in paragraph (5) of subdivision (a) of Section 224.2.'" (In re A.G. (2012) 204 Cal.App.4th 1390, 1396.) The Department "has an affirmative and continuing duty to inquire about, and if possible obtain, this information." (Ibid; see also Isaiah W. (2016) 1 Cal.5th 1, 9.)
Here, the ICWA notice listed that MGGM had Indian heritage and also listed MGF as having Indian heritage. Mother clearly stated at the hearing that the Indian heritage was from her great-grandmother on her father's side. The record supports that MGGM was from maternal grandmother's side of the family. The great-grandmother on MGF's side of the family would be Minor's great-great grandmother. As noted, section 224.2 does not require that notice include information about great-great-grandparents. (J.M., supra, 206 Cal.App.4th at p. 380.)
However, in this case, other than the minimal information given on MGGM, no information was given about the great-grandparents on MGF's side of the family. Further, there is nothing in the record to support that the Department made any inquiry as to MGF's side of the family. Here, the great-grandparents on MGF's side of the family were listed as unknown. While the record supports that the Department spoke with MGGM, there is no information as to what discussions were had about MGF's side of the family. At the very least, since the Indian heritage came from MGF's side of the family, some inquiry should have been made to determine the maternal great-grandparents' names on MGF's side even if the Department had no obligation to list the maternal great-great grandparents.
Ordinarily, "'[t]he juvenile court's failure to secure compliance with the notice provisions of the [ICWA] is prejudicial error.'" (In re Marinna J. (2001) 90 Cal.App.4th 731, 739.) Any failure to comply with the state standard, "'must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error." (In re Breanna S. (2017) 8 Cal.App.5th 636, 653.)
Here, the ICWA notice pertaining to MGF's side of the family was sparse. Moreover, there is no indication in the Department's reports of any effort to investigate Minor's Indian heritage on MGF's side of the family. In J.M., the mother in that case argued the ICWA notice was deficient because the great-great grandparents were not named. The court initially found that the ICWA notices did not need to include the names of the great-great grandparents. (J.M., supra, 206 Cal.App.4th at p. 380.) It further found that the exclusion was harmless because the notice did include the names of immediate lineal ancestors, including mother, grandparents and great-grandparents, of the purported member of the Indian tribe. (Id. at p. 381.) The court noted "This is not a case where there are gaps in the family tree, frustrating the Papago tribe's ability to meaningfully investigate the children's eligibility for membership in the Tohono O'odham Nation. The information required by section 224.2 was provided to the Tohono O'odham Nation, including the identities of the children's mother, maternal grandparents, and maternal great-grandparents, all of whom had the same surname and were alleged to be members of the Papago tribe. Nothing more was required." (Id at p. 383.)
On the other hand, in this case, there was a gap in the family tree, which frustrated the tribe's ability to investigate Minor's eligibility for membership. (J.M., supra, 206 Cal.App.4th at p. 383.) MGF was identified but there was no identification of the great-grandparents on his side of the family. The Cherokee tribes could not conduct a meaningful review of records to determine Minor's eligibility for membership if the tribes were not provided with information concerning the family lineage for the relative who Mother claimed to be the tribal member. Accordingly, remand is required for the Department "to conduct a further investigation into [Mother's] claim of Indian ancestry by making a genuine effort to locate other family members who might have information bearing on the issue. Once that investigation is completed, new notices must be provided" (In re Breanna S., supra, 8 Cal.App.5th at p. 655.) Furthermore, if the juvenile court finds that Minor is an Indian child, it shall comply with the ICWA and related California law in addition to conducting a new section 366.26 hearing. If it is determined that Minor is not an Indian child, the juvenile court's original section 366.26 order shall remain in effect.
DISPOSITION
The order terminating parental rights is reversed, and the matter is remanded to the juvenile court in order for the Department to further investigate Mother's Indian heritage and provide notice to the tribes in accordance with the ICWA and this opinion. If after proper notice the court finds the child is an Indian child, the court shall proceed in conformity with the ICWA. If, after proper inquiry and notice, no response from the BIA or tribes is received indicating Minor is an Indian child, all previous findings and orders shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.