Opinion
E072595
10-01-2019
In re H.T. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.T. et al., Defendants and Appellants.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant, S.T. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant, D.D. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J266542, J266543) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Conditionally reversed with directions. Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant, S.T. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant, D.D. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendants and appellants, D.D. (Mother) and S.T. (Father), appeal from the April 22, 2019, judgment terminating their parental rights and selecting adoption as the permanency plan for their children, S.T. (born in 2011) and H.T. (born in 2015). (Welf. & Inst. Code, § 366.26.) In this appeal, the parents claim only that plaintiff and respondent, San Bernardino County Children and Family Services (CFS), failed to adequately investigate the children's paternal ancestry, and as a result gave inadequate notice of these proceedings pursuant to the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California law (Welf. & Inst. Code, § 224 et seq.).
Undesignated statutory references are to the Welfare and Institutions Code.
CFS concedes the ICWA errors, but claims the parents have forfeited their claims of ICWA error by failing to raise them in a prior appeal. We disagree that the parents have forfeited their claims of ICWA error. We conditionally reverse the judgment for the limited purpose of allowing the juvenile court and CFS to comply with the inquiry and notice requirements of ICWA and California law.
II. BACKGROUND
At a July 29, 2016, detention hearing, the children were ordered detained. On that day, Father completed and filed a Judicial Council of California form ICWA-020 (Parental Notification of Indian Status), claiming he had Cherokee ancestry. The court asked Father who in his family CFS could contact to investigate his Indian ancestry, and Father said CFS could contact his mother, the children's paternal grandmother, K.B. (the PGM). Father's counsel gave CFS the PGM's contact information.
On July 29, 2016, Mother filed an ICWA-020 form stating she had no Indian ancestry. Mother never claimed she had any Indian ancestry.
In August 2016, CFS's "relative approval unit" (RAU) began assessing the PGM for the children's placement, but the PGM's placement was disapproved on December 23, 2016, based on the PGM's prior arrest record. The record on appeal does not show that CFS contacted the PGM, around August 2016, to obtain any information concerning the children's Indian ancestry.
On September 27, 2016, CFS filed an ICWA declaration of due diligence affirming that, on September 14, 2016, CFS gave notice of the proceedings to, among others, the Bureau of Indian Affairs (the BIA) and three Cherokee tribes, namely, United Keetoowah Band of Cherokee Indians in Oklahoma, Cherokee Nation of Oklahoma, and Eastern Band of Cherokee Indians. The ICWA notices included a Judicial Council of California form ICWA-030 (Notice of Child Custody Proceeding for Indian Child), which included Father's name, birth date, and address, and the PGM's name and address, but no other information concerning the children's paternal ancestry. (See § 224.2, subd. (a)(5)(C).)
On March 27, 2017, CFS filed a final ICWA declaration of due diligence, along with responses from several of the noticed tribes, stating that the children did not qualify for tribal membership based on the information provided. In a report filed on March 22, 2017, for the March 28, 2017, six-month review hearing, CFS reported that ICWA may apply, and that CFS had attempted to contact the PGM to gather information about the children's paternal Indian ancestry, but the PGM had not responded. In response to the court's question at the March 28, 2017, hearing, Father told the court he believed he had Cherokee ancestry. On March 29, 2017, the court issued an order finding that ICWA did not apply and that no further ICWA notices were required to be given.
At the 18-month review hearing on March 15, 2018, the court terminated the parents' reunification services, and again asked Father whether he had any Indian ancestry. Father responded: "Well, . . . it already got cleared out with me and my kids. I got partial Cherokee, but we're not . . . registered." At an October 23, 2018, hearing, Father told the court he thought he was Cherokee, but CFS had contacted "the Cherokee Tribe" and "they said they didn't want to take the case because my kids were not registered Indians . . . ." At the same hearing, Father said he had no "new . . . information" to provide about his Indian ancestry since the ICWA notices were given in September 2016. On April 22, 2019, the court terminated parental rights and selected adoption as the children's permanent plan. The parents appealed.
III. DISCUSSION
The parents claim that the April 22, 2019, judgment must be conditionally reversed and the matter remanded to the court with directions to ensure that CFS fully complies with the inquiry and notice requirements of ICWA and related California law. We agree. CFS concedes the ICWA errors, but claims the parents have forfeited their claims of ICWA error by failing to raise them in a prior appeal. As we explain, the parents have not forfeited their claims of ICWA error. A. ICWA's Inquiry and Notice Requirements
1. ICWA's Notice Requirements
ICWA provides: "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 [here, CFS] 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).) ICWA also requires child welfare agencies to notify the BIA of the proceedings if the juvenile court knows or has reason to know the child may be an Indian child but the identity of the child's tribe cannot be determined. (25 U.S.C. §§ 1903(11), 1912(a); In re Michael V. (2016) 3 Cal.App.5th 225, 232.) Section 224.2 of the Welfare and Institutions Code "codifies and elaborates on" ICWA's notice requirements. (In re Isaiah W. (2016) 1 Cal.5th 1, 9.) It provides: "If the identity or location of the parents, Indian custodians, or the minor's tribe is known, a copy of the notice shall also be sent directly to the Secretary of the Interior, unless the Secretary of the Interior has waived notice in writing . . . ." (Welf. & Inst. Code, § 224.2, subd. (a)(4); see In re Michael V., supra, at p. 232.)
An "Indian child" is a child who is either a member of an Indian tribe or 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).) An ICWA 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 proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives the required notice." (In re Isaiah W., supra, 1 Cal.5th at p. 5; see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2, subd. (d).)
The juvenile court is not authorized to determine that ICWA does not apply until (1) "proper and adequate" ICWA notice has been given, and (2) neither a tribe nor the BIA has provided a determinative response to the notice within 60 days of receiving the notice. (§ 224.3, subd. (e)(3); In re Isaiah W., supra, 1 Cal.5th at p. 11.) An ICWA notice must include, among other things: (1) the Indian child's name, birth date, and birthplace, if known; (2) the name of the Indian tribe in which the child is a member or may be eligible for membership, if known; and (3) specific identifying information concerning the child's lineal ancestors, including "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, . . . 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, . . . and any other identifying information, if known." (§ 224.2, subd. (a)(5)(A)-(C).)
An ICWA notice is also required to include known identifying information about the child's great-great-grandparents and even older lineal ancestors. (25 C.F.R. § 23.111(d) (2018).) "There is 'no general blood quantum requirement or "remoteness" exception to ICWA notice requirements,' particularly when there is no indication that the child's tribe or potential tribe has a blood quantum requirement for membership. [Citations.] Thus, it is '"necessary to provide as much information as is known on the Indian child's direct lineal ancestors." [Citation.]'" (In re N.G. (2018) 27 Cal.App.5th 474, 480-481.)
2. The Continuing Duty of Inquiry
Juvenile courts and child protective agencies have "an affirmative and continuing duty to inquire" whether a child for whom a section 300 petition has been filed is or may be an Indian child. (§ 224.3, subd. (a); see In re M.R. (2017) 7 Cal.App.5th 886, 904.) If the court or social worker "knows or has reason to know" the child is or may be an Indian child, 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" and "any other person that reasonably can be expected to have information regarding the child's membership status or eligibility" in order to "gather the information required" in section 224.2, subdivision (a)(5). (§ 224.3, subd. (c); In re Michael V., supra, 3 Cal.App.5th at p. 233; In re K.R. (2018) 20 Cal.App.5th 701, 706-707; Cal. Rules of Court, rule 5.481(a)(4)(A).) B. Analysis
1. The Court and CFS Failed to Comply with ICWA
As the parents point out, and as CFS concedes, the record does not show that CFS attempted to contact the PGM around August 2016, when the PGM was in contact with CFS, to obtain any information about the children's paternal ancestry. (In re N.G., supra, 27 Cal.App.5th at p. 483.) Regarding the children's paternal ancestry, the ICWA notices only contain Father's name, current address, and date of birth, and the PGM's name and current address. The ICWA notices contain no other identifying information about Father or the PGM, and contain no identifying information whatsoever about the children's other paternal ancestors, including the paternal grandfather, great-grandparents, or great-great-grandparents.
As Father points out, the RAU was likely to have the PGM's date of birth and former names, since an assessment of the PGM's home was submitted to the RAU. The ICWA notices do not even contain Father's place of birth, or the paternal grandfather's name, even though Father was likely to have that information. --------
It likely that CFS could have obtained substantially more identifying information about Father, the PGM, and the children's other paternal ancestors, had CFS made any attempt to investigate the children's paternal ancestry through either Father or the PGM. But the record does not show that CFS ever asked Father for any such information. And, as CFS concedes, it did not ask the PGM for any such information when the PGM was in contact with CFS, around August 2016, when her home was being assessed for the children's placement. (In re K.R., supra, 20 Cal.App.5th at p. 707.)
In addition, either Father or the PGM may have been able to put CFS in contact with other paternal relatives who may have had identifying information about the children's paternal ancestors. (§ 224.3, subd. (c).) In any event, on this record it is not possible to know whether CFS would have discovered information sufficient to enable any of the noticed tribes, any other tribe, or the BIA, to determine whether the children were Indian children. (In re N.G., supra, 27 Cal.App.5th at pp. 483-485.) For this reason, the ICWA errors are not harmless. (In re S.E. (2013) 217 Cal.App.4th 610, 615-616.)
As this court has observed, "the [juvenile] court has a responsibility to ascertain that the agency has conducted an adequate [ICWA] investigation and cannot simply sign off on [ICWA] notices as legally adequate without doing so. Here, the court did not inquire as to what efforts [CFS] had made to contact the [PGM or other paternal relatives], and accordingly failed in its duty to ensure compliance with ICWA." (In re K.R., supra, 20 Cal.App.5th at p. 709.) Thus, the judgment terminating parental rights must be conditionally reversed to allow the juvenile court and CFS to comply with the inquiry and notice requirements of ICWA and related California law. (Ibid.)
2. The Parents Have Not Forfeited Their Claims of ICWA Error
Notwithstanding its concession that it did not comply with ICWA's inquiry and notice requirements, CFS argues that the parents have forfeited their claims of ICWA error in this appeal. CFS points out that Father filed a prior notice of appeal in case No. E066940, challenging the court's jurisdictional and dispositional findings. By that time, ICWA notices had been sent, CFS had filed its initial ICWA declaration of due diligence, and these records were part of the record in the prior appeal. Thus, CFS argues, Father could have raised the ICWA claims in his prior appeal. CFS also argues that either parent could have raised the ICWA issues on appeal from the court's March 29, 2017, order finding that ICWA did not apply and that no further ICWA notices were required.
The parents' failure to raise the ICWA issues in an earlier appeal does not mean that they have forfeited their claims of ICWA error. It is settled that a parents' failure to appeal from an earlier order does not preclude the parent from raising ICWA compliance issues in an appeal from a later order, including an order terminating parental rights. (In re Isaiah W., supra, 1 Cal.5th at pp. 6, 9, 14-15; In re N.G., supra, 27 Cal.App.5th at p. 485; In re K.R., supra, 20 Cal.App.5th at p. 706.) Thus, neither parent has forfeited their claims of ICWA error, and the claims are cognizable in this appeal.
IV. DISPOSITION
The April 22, 2019, judgment terminating parental rights to the children is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry and notice provisions of ICWA and sections 224.2 and 224.3. On remand, the court must ensure that CFS fully investigates the children's paternal lineal ancestry; gives new ICWA notices, including all previously known and newly discovered identifying information concerning the children's paternal lineal ancestry to the previously noticed tribes, the BIA, and any additional tribes, and other parties, as necessary to comply with ICWA and related California law. If, after receiving ICWA notice as required by sections 224.2 and 224.3, the tribes or the BIA do not respond to the ICWA notices, or respond that the children are not Indian children, the judgment terminating parental rights shall immediately be reinstated and further proceedings shall be conducted, as appropriate. If any tribe or the BIA determines the children are Indian children, the court shall proceed as required by ICWA.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.