Opinion
E067059
08-11-2017
In re A.W., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.P., et al., Defendants and Appellants.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant, J.P. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant, D.W. Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J255155) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant, J.P. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant, D.W. Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
J.P. (Mother) and D.W. (Father) appeal from the juvenile court's orders finding the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) does not apply and terminating parental rights to their daughter, A.W. A.W. was three years old on the date of the permanent plan selection hearing, held on October 19, 2016, under Welfare & Institutions Code section 366.26. We affirm because: (1) Father was not an enrolled member of a Native American Tribe on the date of the hearing; (2) the court had already continued the hearing four times to accommodate Father's efforts to enroll, and a further continuance was not in A.W.'s best interest; and (3) ICWA does not require a child welfare agency to facilitate a tribe's internal membership proceedings.
Section references are to the Welfare and Institutions Code except where otherwise indicated.
FACTS AND PROCEDURE
ICWA Noticing and Findings—June to September 2014
In June 2014, nine-month-old A.W. was detained from her parents. On August 14, 2014, the court declared her a dependent under section 300.
On June 9, 2014, Father filed a Judicial Council Forms, form ICWA-020, and checked the box indicating he may be a member of or eligible for membership in a tribe. In the section for writing in the name of the tribe(s), Father wrote "Lakota Sioux N. Cheyenne." At the detention hearing on that date, Father told the court that he, his father, and his mother were Native American. Father was unclear about his actual membership, stating he was born on the reservation but adopted away from the reservation at age three, his natural parents are dead, and his brother is working on getting his sealed birth records. Father indicated his tribal membership was through his father. Father gave the social worker contact information for relatives who may have information on his Native American heritage.
In the jurisdiction and disposition report dated June 30, 2014, the social worker reported she had spoken with Father's adoptive brother, who stated Father's ancestry may be from the Blackfoot tribe. The social worker also stated that Father appeared confused about the history and year of his birth, as well as the nature of his adoption.
On June 18, 2014, the San Bernardino County Children and Family Services (CFS) mailed the Judicial Council Forms, form ICWA-030 notices to the Blackfeet Tribe and numerous Sioux and Cheyenne tribes, including the Northern Cheyenne Tribe (sometimes referred to herein as "the Tribe").
On July 8, 2014, CFS filed an ICWA declaration of due diligence with return receipts for the notified tribes and letters from some tribes indicating Father and A.W. were not members.
On June 30, 2014, the Northern Cheyenne Tribe sent a letter indicating Father and A.W. were not enrolled members of the tribe and that A.W. did not fall under ICWA. The tribe directed: "No further correspondence or legal documents need to be sent to our agency. [¶] If any parent claims that they are a descendent of the Northern Cheyenne Tribe, they must submit the necessary documents to the Northern Cheyenne Tribal Enrollment office."
On September 11, 2014, the court filed its ICWA findings and orders, in which it found CFS had conducted the ICWA-required noticing and ordered that ICWA does not apply to this case.
Possible New Information on Tribal Enrollment—December 2015-February 2016
On December 3, 2015, the date set for the 18-month review hearing, Father's counsel told the court that Father had represented that the Northern Cheyenne Tribe wanted to intervene on behalf of the parents. Counsel asked that CFS follow up with the Tribe, and provided a contact name and telephone number. Counsel indicated Father believed the Northern Cheyenne Tribe had not been properly noticed. The court directed Father to provide any supporting documentation to CFS and to discuss with CFS any errors in the ICWA notices so they could be corrected.
At the pretrial hearing held December 17, 2015, county counsel told the court the social worker had met with Father, who was "still trying to gather that information." Father had not provided information that would require renoticing or changes to the Judicial Council Forms, form ICWA-030.
The contested 18-month review hearing was held on February 2, 2016. During Father's testimony about his engagement in services and hopes that he would get his daughter back, he stated: "My tribe is looking into it. I've got the native American ancestry. I was enrolled at one point and they tried to trace down that enrollment and step in." Father's counsel informed the court that he had spoken with a Mr. Roundstone with the Northern Cheyenne Tribe. Counsel represented that Mr. Roundstone stated the Tribe's investigation into Father's status was "still pending," and that Father "may have been enrolled, but due to a fire approximately 15 to 20 years ago at the records building," the records may have been lost. The court advised counsel that this information was not relevant to the issues to be decided at the review hearing, but urged him to provide this ICWA-related information to the social worker and county counsel. At the conclusion of the hearing, the court terminated reunification services to both parents and set a section 366.26 hearing for June 1, 2016.
Father filed a petition for extraordinary writ alleging CFS conducted improper ICWA noticing and failed to provide him with reasonable reunification services. In an opinion filed April 13, 2016, this court denied the petition. (D.W. v. Superior Court (San Bernardino County Children and Family Services) (Apr. 13, 2016, E065313) [nonpub. opn.].)
The Northern Cheyenne Tribe Intervenes—May to October 2016
On May 27, 2016, the Northern Cheyenne Tribe transmitted to the court a notice of intervention regarding A.W. The Tribe invoked its right to intervene, stated A.W. meets the definition of "Indian Child" under ICWA because she is eligible for enrollment, and that the Tribe may elect to transfer jurisdiction of the case to its own court in the future. The notice asked for all papers and pleadings to be sent to the Tribe.
The capitalized term " 'Indian Child' " as used throughout this opinion means an Indian child for purposes of ICWA, who "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. § 1903(4); accord, Welf. & Inst. Code, § 224.1, subds. (a) & (b).)
At the section 366.26 hearing scheduled for June 1, 2016, father was present by telephone, as was the Tribal representative, Mark Roundstone. The court granted a 30-day continuance to allow the Tribe to finalize its plans and to allow CFS to hire an ICWA expert. The Tribal representative requested an ICPC as a prerequisite to filing a letter requesting transfer of jurisdiction. The court indicated it was not aware that an ICPC was procedurally necessary, and asked county counsel to confer with the Tribe on that subject during the continuance. Also on that date, Mr. Roundstone filed a letter with the court explaining Father's efforts to re-enroll with the Tribe, stating this process would take six months to one year, and indicating the Tribe was seeking to intervene in A.W.'s dependency case and might later seek to transfer jurisdiction to the Tribe. The letter indicated a fire had destroyed many of the Tribe's records, Father claimed he had enrolled himself in the Tribe in the early 1970's or 1980's and, "[w]e at the tribe do not contest that statement."
The declaration of the ICWA expert witness hired by CFS was dated June 29, 2016. The expert recommended that custody continue to be removed from the parents because they had not sufficiently benefited from reunification services. The expert opined that, "This is an ICWA case." He based this opinion on his discussion with the Tribal representative, Mark Roundstone, ICWA social worker for the Northern Cheyenne Tribe, who "confirmed that this is an ICWA eligible case and that father is a member of the tribe." The expert did not express an opinion as to whether A.W. is an Indian Child.
The continued section 366.26 hearing was held on July 1, 2016. At the request of county counsel, the court continued the hearing to July 28 to allow the Tribal representative to review the dependency file.
The continued section 366.26 hearing was held on July 28, 2016. The court again continued the hearing to September 12 because both parents asked for a contested hearing and because county counsel stated Mark Roundstone needed to finish reviewing the file and decide whether to file a motion to assume jurisdiction. Robin Stang appeared by telephone on behalf of the Tribe, and stated "we believe that the children need to stay within the family of the culture with their parents, and we believe in reunification, and we do not believe in adoption."
On August 30, 2016, Father filed a Judicial Council Form, form ICWA-050 petition to transfer case involving an Indian child to tribal jurisdiction. On September 20, 2016, CFS filed its opposition to Father's petition on the basis that A.W. is not an "Indian Child" and the petition was untimely and not in A.W.'s best interest. Father filed his reply on October 3, 2016. Counsel for A.W. filed its opposition on October 5, 2016, arguing A.W. is not an "Indian Child," Father's unreasonable delay, and A.W.'s best interests.
The continued section 366.26 hearing was held on September 12, 2016. Both Father and the Tribal representative Mark Roundstone were present by telephone. Mr. Roundstone stated, Father "has gone to the Northern Cheyenne Court and has passed that process. He is presently waiting to be recruited on to the tribal [council], and that process should be happening here within a week or two; and then he will be an enrolled member of the North Cheyenne Tribe." The court continued the hearing to October 19 to allow for the required written responses to Father's ICWA-050, the Tribe's request for an ICPC to assess its proposed placement for A.W., the Tribe to have its own ICWA expert witness prepare an opinion, and Father to complete enrollment in the Tribe. The court stated it would take in-person testimony only, including from the Tribe's proposed ICWA expert witness, and would at that time also rule on Father's ICWA-050 petition to transfer jurisdiction. The court agreed with county counsel that if Father were not an enrolled member in the Northern Cheyenne Tribe by the next hearing, the hearing would proceed on the basis that A.W. is not an Indian Child.
The section 366.26 hearing was finally held on October 19, 2016. Neither Father nor the Tribal representative could be reached by telephone. Father's counsel told the court that Father was not yet an enrolled member of the Northern Cheyenne Tribe and asked for a continuance to December. The court denied the request, citing In re Abbigail A. (2016) 1 Cal.5th 83 (Abbigail A.) and A.W.'s best interest. The court found ICWA does not apply, terminated parental rights, and selected adoption as A.W.'s permanent plan.
Both Mother and Father appealed from the court's ICWA determination and join in each other's arguments.
DISCUSSION
Mother and Father each essentially argue the court erred when it determined at the section 366.26 hearing held on October 19, 2016, that A.W. is not an Indian Child and that ICWA does not apply. We will also address whether the court should have granted a fifth continuance, and whether CFS satisfied its continuing duty to inquire.
1. A.W. Was Not an Indian Child as of the Section 366 .26 Hearing
As set forth in footnote 2 ante, an Indian Child "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. § 1903(4).) On the date of the section 366.26 hearing, A.W. was not a member of the Northern Cheyenne Tribe. Neither was she the biological child of a member of the Tribe, because Father was not enrolled or otherwise clearly identified as a member of an Indian tribe. In Abbigail A., our Supreme Court clarified that a court can apply ICWA to dependency proceedings only when the child is an Indian Child at the time the court makes the ICWA determination, not when it is possible that the child could be determined to be an Indian Child at some future date. "[Tribal] membership . . . is a tribe's determination based on tribal law, [whereas] a child's status as an Indian child . . . is a conclusion of federal and state law based on the tribe's determination." (Abbigail A., supra, 1 Cal.5th at p. 95.) Here, the court could not have declared A.W. an Indian Child under either definition in section 1903 of title 25 of the United States Code, because, according to the Northern Cheyenne Tribe's own tribal law, A.W. was not a member of the Tribe or the biological child of a member on the date of the section 366.26 hearing.
The Supreme Court in Abbigail A. reasoned: "The possibility that a child who is not an Indian child may become one while a custody proceeding is pending is something the juvenile court certainly should consider," and encouraged courts to "wait a few days or weeks while a parent or child pursues an application for tribal membership . . . ." (Abbigail A., supra, 1 Cal.5th at p. 95.) As discussed post regarding whether the court in the present case abused its discretion when it denied Father's request for a fifth continuance, the Abbigail A. court contemplated only a short delay to allow a parent or child to pursue enrollment, certainly no longer than a few weeks.
Father's motion filed March 6, 2017, for leave to produce additional evidence on appeal is DENIED. Father is correct that the offered evidence is relevant to his claim to Indian heritage. However, it is not relevant to the issue of whether, on October 19, 2016, A.W. was an Indian Child under the definition set forth in section 1903(4) of title 25 of the United States Code, which includes the requirement that she be either a member of an Indian tribe or the biological child of a member. Nor is it relevant to whether a change in placement would be in A.W.'s best interest. Father will undoubtedly offer this evidence to the juvenile court during the adoption proceedings, at which it will be relevant. (See 25 C.F.R. 23.107 & 23.143 (2016).)
2. The Court Did Not Abuse Its Discretion in Declining Another Continuance
At the section 366.26 hearing held on October 19, 2016, Father's counsel asked the court to continue the hearing again, to December 2016. Counsel explained to the court that the Northern Cheyenne Tribe had not yet made Father a member, despite Mr. Roundstone's assurances on September 12 that the process was two weeks from completion. "They're still going through the Court process, or the bureaucratic process that they have at the Northern Cheyenne Tribe. I received an e-mail from Mr. Roundstone that indicated that they are also in the middle of elections, so it's not certain who will sit at the court to make this ruling. And I believe the next court date is in December." The court replied that "as the Abbigail A. case indicates, children can't wait for permanency so that the parents can get enrolled in the tribe." After hearing from the minor's counsel, the court denied the request based on Abbigail A. and A.W.'s best interest.
"Continuances are discouraged in dependency cases" (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604) and can be granted "only upon a showing of good cause." (§ 352, subd. (a).) (See In re Karla C. (2003) 113 Cal.App.4th 166, 179 ["Courts have interpreted this policy to be an express discouragement of continuances."].) "[N]o continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a).) We review the denial of a continuance for abuse of discretion (In re Giovanni F., at p. 605) and evaluate the reasonableness of the decision as of the time it is made (In re Karla C., at p. 180).
Here, we cannot say the court abused its discretion, because it explicitly considered A.W.'s best interest as required by section 352. The court reasoned regarding A.W.'s best interest that "this child was removed at 10 months old; she's now three. She's been placed in a concurrent planning home for a substantial period of her life. And because of that she deserves permanency. And so I can't find that the continuance is in her best interest." Further, the court had already granted four continuances after the Northern Cheyenne Tribe intervened on May 27, 2016, starting with the very first section 366.26 hearing set for June 1, 2016. This prolonged the process by four-and-one-half months, and Father's counsel sought a fifth continuance that would have delayed the proceedings yet another two months. The court in Abbigail A. spoke approvingly of waiting "a few days or weeks while a parent or child pursues an application for tribal membership," if such a delay would be in the child's best interest. (Abbigail A., supra, 1 Cal.5th at p. 95.) We see no support in case law or statute for faulting the court here for refusing to delay A.W.'s permanency a total of more than six months. This is especially so when we consider that the fourth and final continuance was prompted by the Tribe's assurance that this would be the last delay, which elicited the court's admonition at the September 12, 2016 hearing that it would proceed with the case as a non-ICWA case should Father not become an enrolled member of the Tribe by the next hearing. The court did not abuse its discretion when it denied Father's request for a fifth continuance.
3. Continuing Duty to Inquire—What Does It Entail?
Father argues that, even after the Tribe intervened, CFS was required to facilitate and report to the court in detail on the status of the Tribe's internal procedures for enrolling Father as a tribal member. As the appellant, Father has the burden to affirmatively establish error. (In re S.C. (2006) 138 Cal.App.4th 396, 408.) As discussed post, the legal authorities to which Father cites regarding a child welfare agency's continuing duty to inquire did not require CFS to assist the Tribe in expediting father's enrollment.
Congress enacted ICWA to further the federal policy " ' "that, where possible, an Indian child should remain in the Indian community . . . ." ' " [Citation.]" (In re W.B. (2012) 55 Cal.4th 30, 48.) California has adopted statutes and rules that "implement, interpret, and enlarge upon" ICWA. (In re S.B. (2005) 130 Cal.App.4th 1148, 1157.)
Under these provisions, whenever "the court knows or has reason to know that an Indian child is involved," notice of the proceedings must be given to the relevant tribe or tribes. (25 U.S.C. § 1912(a); accord, § 224.2, subd. (a); Cal. Rules of Court, rule 5.481(b)(1).)
"Juvenile courts and child protective agencies have 'an affirmative and continuing duty to inquire' whether a dependent child is or may be an Indian child. [Citations.] This affirmative duty to inquire 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.] At that point, the social worker is required, as soon as practicable, to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. [Citations.]" (In re Michael V. (2016) 3 Cal.App.5th 225, 233.)
"The purpose of the ICWA notice provisions is to enable the tribe . . . to investigate and determine whether the child is in fact an Indian child. [Citation.] Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership. [Citations.]" (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)
"A notice violation under ICWA is subject to harmless error analysis. [Citation.] 'An appellant seeking reversal for lack of proper ICWA notice must show a reasonable probability that he or she would have obtained a more favorable result in the absence of the error.' [Citation.]" (In re Autumn K. (2013) 221 Cal.App.4th 674, 715.)
Father complains of seven distinct deficiencies in the CFS efforts to investigate A.W.'s Native American heritage and status with the Northern Cheyenne Tribe.
First, Father argues CFS did not investigate his claim at the December 3, 2015 hearing that he had been in contact with the Tribe and that the Tribe wished to intervene. This is not correct. Upon father's disclosure on December 3, the court directed him to provide documentation to CFS to support his claim, and to discuss with CFS any errors in the ICWA-030 notices so they could be corrected. At the pretrial hearing held December 17, 2015, county counsel told the court the social worker had met with Father, who was "still trying to gather that information." County counsel also stated that Father had not yet provided information that would require renoticing or changes to the ICWA-030. Thus, it appears from the record that CFS met with Father to evaluate and investigate the claim he made on December 3, 2016, and determined he had not provided enough information to trigger additional noticing to the identified Tribe.
Second, Father argues CFS should have contacted his adopted sister and his father's brother, I.W., about A.W.'s enrollment eligibility. Assuming CFS did not contact these relatives, Father does not describe what kind of information they could have provided that would have sufficiently accelerated the Tribe's own membership proceedings, and thus has not established prejudice from any failure to inquire. Further, as CFS argues in its brief, even if this additional information would have led to Father becoming an enrolled member of the Tribe by the October 19, 2016 hearing, the juvenile court would still have had concurrent jurisdiction. More to the point, the court very likely would have denied any motion to transfer based on A.W.'s best interest in a stable placement with the only family she had known since the age of nine or 10 months, as discussed ante.
Father further argues CFS's continuing duty to inquire encompassed an obligation to discuss with the Tribe the possibility of placing A.W. with an Indian family pending Father's enrollment application. He provides no legal authority for this argument, so we do not address it.
Father points to three additional events that sparked a continuing duty to inquire on the part of CFS regarding the status of Father's efforts to enroll in the Northern Cheyenne Tribe. These are: the Tribe's notice of intervention, dated May 27, 2016; the Tribe's letter of June 1, 2016, describing Father's efforts to enroll and stating this should be completed in six months to a year; and the ICWA expert witness report filed on June 29, 2016, in which the expert opined that "this is an ICWA case." Similarly, Father argues that at the section 366.26 hearing on October 19, 2016, CFS should have submitted a full report to the court on the status of Father's membership claim and the timelines for his membership so the court could properly assess whether to continue the hearing.
Generally, Father argues that even after the Northern Cheyenne Tribe had intervened and was processing Father's application to enroll, ICWA required CFS to delve into "the particulars" of Father's status with the Tribe rather than wait for the Tribe to determine for itself whether it wished to declare Father an enrolled tribal member and move to transfer the case to the Tribal court. Father cites to section 224.3, subdivision (c), and section 1912(a) of title 25 of the United States Code, but neither of these codes imposes a duty on CFS to participate in or prod the Tribe into accelerating its internal membership proceedings under tribal law. Neither code requires CFS to investigate Father's Native American ancestry on behalf of the Tribe, nor to provide the court with detailed reports on Father's status. Father also cites to In re C.Y. (2012) 208 Cal.App.4th 34, 39-42, but this case actually supports the CFS argument that it did all that was required to—"[N]either the court nor [the child welfare agency] is required to conduct a comprehensive investigation into the minor's Indian status." (Id. at p. 39.)
Section 224.3, subdivision (c): "If the . . . social worker . . . knows or has reason to know that an Indian child is involved, the social worker . . . 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 [section 224.2, subd. (a)(5)], contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility."
"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. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding." (25 U.S.C. § 1912(a).)
In his responsive brief, father cites to two cases, In re Michael V., supra, 3 Cal.App.5th 225 and In re Breanna S. (2017) 8 Cal.App.5th 636, to support his argument that CFS was required to assist the Northern Cheyenne Tribe in its enrollment determination by contacting family members, reporting the information they provided to the Tribe, and documenting these efforts for the court. Neither case imposes these duties on a child welfare agency. In re Michael V. addresses the affirmative duty of the child welfare agency to interview relatives as a part of the initial effort to identify the tribe from which a child might have Native American ancestry. (Michael V., at pp. 232-233.) In re Breanna S. is a straightforward notice case in which the child welfare agency failed to interview a grandparent and learn the birth place of a great-grandparent. (Breanna S., at pp. 651-652.) Neither case is persuasive on this issue raised by Father. Similarly, our review of the other cases Father cites, In re Isaiah W. (2016) 1 Cal.5th 1; In re W.B. Jr. (2012) 55 Cal.4th 30; In re N.E. (2008) 160 Cal.App.4th 766; In re J.N. (2006) 138 Cal.App.4th 450; and In re Noreen G. (2010) 181 Cal.App.4th 1359, shows that they stand for the general rule that a child welfare agency has a continuing duty to inquire if it has reason to know a child might have Native American ancestry.
To conclude, Father and Mother did not carry their burden to establish the juvenile court erred when it found A.W. was not an Indian Child at the time of the October 16, 2016 hearing, and then terminated their parental rights.
DISPOSITION
The court's orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. FIELDS
J.