Opinion
D073572
08-16-2018
In re A.K., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.K., Defendant and Appellant.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Emily Harlan, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J519469) APPEAL from an order of the Superior Court of San Diego County, Kimberlee A. Lagotta and Ana L. Espana, Judges. Affirmed. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
C.K. (Father) appeals an order pursuant to Welfare and Institutions Code section 366.26 terminating his parental rights over his then 15-month-old daughter, A.K. (Daughter). He contends the juvenile court and the San Diego County Health and Human Services Agency (Agency) failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) in terminating his parental rights.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Based on our review of the record, we find no notice error under ICWA or state law, notwithstanding an unsigned "Parental Notification of Indian Status" form (ICWA-020) suggesting A.J. (Mother) may have Cherokee ancestry through her mother's side and Blackfeet ancestry through her father's side. Mother admitted she had only "vague" information about her ancestry when she filled out that form, and she recanted the information when she later filled out a "Notice of Child Custody Proceeding for Indian Child" form (ICWA-030) that was sent to the tribes. Substantial evidence supports the court's findings that the tribes received proper notice and ICWA does not apply. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the narrow issue raised on appeal, we provide an abbreviated summary of proceedings and focus on facts specific to Father's ICWA notice claim.
When Daughter's toxicology results were positive for methadone at her birth in late 2016, the Agency filed a petition under section 300, subdivision (b)(1). The petition alleged that the parents' substance abuse and ongoing domestic violence rendered them unable to provide regular care and placed Daughter at substantial risk of serious physical harm or illness.
Attached to the petition was an "Indian Child Inquiry Attachment" form (ICWA-010), dated December 9, 2016. A social worker declared under penalty of perjury that she had asked the parents about their Indian ancestry during an in-person interview. Mother reported she had Cherokee heritage through her paternal side but was not registered with a tribe. Father reported he had "Blackfoot" heritage through his maternal side but was not registered with a tribe.
On December 12, 2016, the day of the detention hearing, Mother and Father filed ICWA-020 forms. Father indicated he may have "Blackfoot" ancestry in his form and signed under penalty of perjury that the information was true and correct. On her form, Mother (or her counsel) checked the box next to the line, "I may have Indian ancestry," and in the space provided wrote, "Cherokee-maternal, Blackfoot-paternal." Mother did not sign to declare under penalty of perjury that the foregoing was correct. Both parents also filed parentage questionnaires, which requested information about Father's Indian heritage (only).
At the detention hearing, Mother's counsel stated,
"As for ICWA, my client only has some vague information about it at this time. She's going to have to follow up with some family members to see if she can get more information."The court replied, "I note that Mom believes she may have Cherokee Native American Indian Ancestry. Therefore, Mom is ordered to fill out the ICWA-030 form and to provide that to the social worker on/or before our next hearing." It ordered Father to do the same. The court deferred on ICWA, set the matter for a jurisdiction and disposition hearing, and gave the parents copies of the ICWA-030 form and a shorter form for an ICWA pilot project. It added handwritten notation to the dependency petition stating, "Mom claims Cherokee & Dad claims Blackfoot. ICWA deferred & dad/mom ordered to fill out ICWA 030 by JND."
On December 30, 2016, the Agency filed a jurisdiction and disposition report, which reported that the parents completed the ICWA-030 form and returned it to the social worker. Their completed form was attached to the report. It indicated, consistent with the ICWA-010 form, that Mother reported Cherokee heritage through her paternal side while Father reported "Blackfoot" heritage through his maternal side. The Agency mailed the completed ICWA-030 form to the parents, the Bureau of Indian Affairs (BIA), and agents of four tribes: Eastern Band of Cherokee Indians, Cherokee Nation, United Keetoowah Band of Cherokee Indians in Oklahoma, and Blackfeet Tribe of Montana. It was signed under penalty of perjury by two social workers—the case worker and the ICWA noticing specialist.
Father claims the Agency took the information Mother filled out in her ICWA-020 form and "crafted" the ICWA-030 forms sent to the tribes. Some portions of the ICWA-030 form were likely filled out by the Agency, such as the recipients for notice. But the uncontroverted evidence in the record shows that the court gave the parents copies of the ICWA-030 form, which they returned once complete to the social worker. Consistent with this record, the Agency represents that it "completed a typed ICWA-030 notice with both parents' information."
In January 2017, the court set the matter for a contested jurisdiction and disposition hearing. By then, two tribes had responded that Daughter was ineligible to register, but the other two had yet to respond. At the contested hearing in February 2017, the court found notice was proper under ICWA but deferred on ICWA applicability to allow responses from the remaining tribes. At a special hearing on ICWA in March 2017, the court again found that the Agency had properly noticed all tribes and that all four had responded that Daughter was ineligible to register. Consequently, it found ICWA did not apply. Neither parent objected to the finding.
At a contested 6-month review hearing in September 2017, the court terminated reunification services and set a hearing pursuant to section 366.26. In February 2018, during the contested section 366.26 hearing, the court explained notice was not required under ICWA. It reasoned:
Under state law, once notice is sent, it must be sent for "every hearing thereafter" unless the court has determined that ICWA does not apply. (§ 224.2, subd. (b).)
"There's no reason to know the child is or may be an Indian child. That determination has already been made. There's no additional information to suggest otherwise."The court terminated both parents' parental rights and selected a permanent plan of adoption. Father appealed "all orders and finding[s]" from the February 2018 ruling.
DISCUSSION
The ICWA-030 form sent to the tribes stated Mother claimed Cherokee ancestry through her paternal side, while Father claimed "Blackfoot" ancestry through his maternal side. Father alleges this notice contained two errors, citing Mother's earlier ICWA-020 form: (1) it did not notify the tribes that Mother had Blackfeet heritage, and (2) it indicated Mother had Cherokee heritage through her father instead of her mother. We review a juvenile court's findings that notice was properly given under ICWA and state law for substantial evidence, considering the record in the light most favorable to the order. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57 (Charlotte V.).) " 'Mere support for a contrary conclusion is not enough to defeat the finding[.]' " (Ibid.) As we explain, on careful review of the record we conclude there was no notice error under federal or state law.
Father argues the standard is de novo, citing authority involving statutory interpretation on undisputed facts. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254 (Dwayne P.) [construing "reason to know" language in 25 U.S.C. § 1912(a)]; see generally Isaiah W., supra, 1 Cal.5th at p. 10 [applying de novo review to interpret forfeiture under ICWA and state law].) We are reviewing a factual finding, and a different standard applies. (See Charlotte V., supra, 6 Cal.App.5th at p. 57 [reviewing ICWA notice finding for substantial evidence]; In re E.W. (2009) 170 Cal.App.4th 396, 404 [same]; In re D.N. (2013) 218 Cal.App.4th 1246, 1251 [same]; In re I.W. (2009) 180 Cal.App.4th 1517, 1530 [same]; In re J.T. (2007) 154 Cal.App.4th 986, 992 [same]; but see Guardianship of D.W. (2013) 221 Cal.App.4th 242, 250 [citing Dwayne P. and applying de novo review to factual finding regarding ICWA notice].)
1. Inquiry and Notice Requirements Under ICWA and State Law
"Congress enacted ICWA in 1978 in response to 'rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.' " (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) "To address this failure, protect Indian children and promote the stability and security of Indian tribes and families, ICWA establishes minimum federal standards a state court must follow before removing an Indian child from his or her family." (In re Breanna S. (2017) 8 Cal.App.5th 636, 649 (Breanna S.).)
Federal law defines an "Indian child" as any unmarried person under 18 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).) "[A] child may qualify as an Indian child within the meaning of the ICWA even if neither of the child's parents is enrolled in the tribe." (Dwayne P., supra, 103 Cal.App.4th at p. 254.)
"ICWA imposes three types of requirements: notice, procedural rules, and enforcement." (In re W.B. (2012) 55 Cal.4th 30, 48.) This case involves notice, " 'a key component of the congressional goal to protect and preserve Indian tribes and Indian families.' " (Charlotte V., supra, 6 Cal.App.5th at p. 56.) If notice has been given, a tribe has "a right to intervene at any point in the proceeding." (25 U.S.C. § 1911(c).)
If the court "knows or has reason to know that an Indian child is involved," the social services agency must provide actual notice to the child's parent, Indian custodian, and federally recognized tribe of the pendency of the action and the tribe's right to intervene. (25 U.S.C. § 1912(a).) ICWA requires further inquiry "[i]f there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an 'Indian child.' " (25 C.F.R. § 23.107(b) (2018).) In those cases, the court must confirm that an agency or party "used due diligence" to verify the child's status, if appropriate, through contacting a tribe to "obtain information or verification." (25 C.F.R. §§ 23.105, 23.107(b)(1) (2018).)
Federal law permits states to impose higher standards for protection of an Indian child. (25 U.S.C. § 1921.) "This simply means, however, that the ICWA does not preempt such higher state standards." (In re S.B. (2005) 130 Cal.App.4th 1148, 1158.) These higher standards are state law requirements only. (Ibid.)
As noted by a leading treatise, California has adopted a number of standards offering greater protection than ICWA through its statutes and rules of court. (Seiser & Kumli, Cal. Juvenile Courts Practice & Procedure (2018) Disposition Hearing, Indian Children, § 2.125[1], p. 2-404.) "[P]ractitioners and courts have often been confused and have lumped all the requirements under the blanket term of 'ICWA.' " (Ibid.) As the Agency argues, the distinction matters for evaluating prejudice. Failure to comply with ICWA notice requirements is ordinarily prejudicial error. (In re Breanna S., supra, 8 Cal.App.5th at p. 653.) By contrast, a failure to comply with a higher state standard for inquiry or notice " '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.' " (Ibid.) As we explain, because we find no error under federal or state law, we have no occasion to determine the appropriate standard for assessing prejudice.
Consistent with ICWA, California statutes and court rules require notice if the court or Agency "knows or has reason to know that an Indian child is involved." (§ 224.3, subd. (d); see also Cal. Rules of Court, rule 5.481(b)(1).) If there is reason to know an Indian child is involved, social workers must "make further inquiry regarding the possible Indian status of the child . . . as soon as practicable," including, where appropriate, by contacting tribes and the BIA. (§ 224.3, subd. (c).) Courts and social services agencies "have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child in all dependency proceedings . . . ." (§ 224.3, subd. (a).)
The purpose of federal and state notice requirements is to "enable[] a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding." (Isaiah W., supra, 1 Cal.5th at pp. 5, 8.) As a general rule, " ' "it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child." ' " (Id. at p. 15.) It follows that notice must "contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership." (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576; see In re S.M. (2004) 118 Cal.App.4th 1108, 1116, footnote omitted ["Notice is meaningless if no information or insufficient information is presented to the tribe."].)
Under ICWA, notice sent to the tribes must include "[t]ribal enrollment information of other direct lineal ancestors of the child, such as grandparents," if known. (25 C.F.R. § 23.111(d)(3) (2018).) State law likewise requires "tribal enrollment numbers, and any other identifying information" of a child's direct relatives. (§ 224.2, subd. (a)(5)(C).) Both statutory schemes require notice to identify the names of the Indian tribes in which the child is eligible for membership. (§ 224.2, subd. (a)(5)(B); 25 C.F.R. § 23.111(d)(4) (2018).) Notice is inadequate where it omits known information about a child's alleged Indian grandparent or great grandparent. (In re S.M., supra, 118 Cal.App.4th at p. 1116.) It is likewise inadequate where it fails to identify the specific tribal affiliation claimed by a parent. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.)
Father alleges ICWA notice deficiencies that pertain to Mother's Indian heritage. He has standing to raise that claim. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339 [non-Indian parent has standing to challenge ICWA notice violation on appeal]; In re B.R. (2009) 176 Cal.App.4th 773, 779 ["although Mother is not the parent with alleged Indian heritage, she still has standing to raise the issue of ICWA compliance"].) His arguments are not forfeited by his failure to raise them below (In re Marinna J. (2001) 90 Cal.App.4th 731, 733) or by his failure to appeal the earlier order at which the ICWA inapplicability finding was first made (Isaiah W., supra, 1 Cal.5th at p. 15).
2. Application
The ICWA-010 and ICWA-030 forms identified possible Cherokee heritage through Mother's paternal side and possible "Blackfoot" heritage through Father's maternal side. Both were signed by social workers under penalty of perjury. The intervening ICWA-020 form signed by Father and paternity questionnaires are consistent with these forms, identifying possible "Blackfoot" heritage through Father's maternal side. Mother's ICWA-020 form is the outlier. It identifies possible Cherokee heritage through Mother's maternal side and possible "Blackfoot" heritage through her paternal side.
As the Agency suggests, it is possible that in filling out the ICWA-020 form, Mother was referring to Daughter's possible Indian heritage, as this would make the form consistent with forms filed before and after. But assuming Mother intended to write that she had possible Cherokee heritage on her maternal side and "Blackfoot" heritage on her paternal side, the question becomes whether the juvenile court was entitled to find notice proper under federal and state law. We conclude it was.
Federal and state law require tribal notice only where a court "knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a); § 224.3, subd. (d).) Case law makes clear that "vague statements suggesting that a child ' "may" have Native American heritage [are] insufficient to trigger ICWA notice requirements.' " (In re J.L. (2017) 10 Cal.App.5th 913, 923; see In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520 (Jeremiah G.) ["more than a bare suggestion that a child might be an Indian child" is required to trigger notice requirement].)
Until recently, federal law did not define when a court had "reason to know" an Indian child was involved under ICWA. (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 784 (Elizabeth M.).) Effective December 12, 2016, new regulations define when a court has "reason to know." (25 C.F.R. § 23.107(c) (2018).) Citing BIA commentary to these regulations, the Agency claims they narrow when ICWA notice is required and compel reconsideration of earlier cases expansively construing ICWA notice requirements. (See U.S. Dept. of the Interior, BIA, ICWA Proceedings, Discussion of Rule and Comments, 81 Fed.Reg. 38778, 38804 (June 14, 2016).) Because we find no ICWA error under existing case law, we need not consider whether the new regulations compel a narrower approach.
By contrast, notice requirements are triggered if a parent simply states in an ICWA-020 form that the child's grandparent "is or was a member' " of a particular tribe. (In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1167-1168 (Gabriel G.).) Similarly, if an ICWA-020 form indicates affiliation with a tribe that sounds similar to a federally recognized tribe, the Agency has a duty to investigate further. (Elizabeth M., supra, 19 Cal.App.5th at p. 786 [mention of "Red Tail" tribe triggered duty to investigate ties to the Red Tailed Hawk clan of Cherokee Nation].)
Applied here, although "Blackfoot" is not a federally recognized tribe, a reference to "Blackfoot" on both parents' ICWA-020 forms and parentage questionnaires triggered a duty to investigate possible ties to the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana, which is. (In re L.S. (2014) 230 Cal.App.4th 1183, 1197-1198 [noting frequent confusion between the Blackfoot and Blackfeet tribes]; Indian Entities Within the Contiguous 48 States Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 83 Fed.Reg. 4236 (Jan. 30, 2018).)
This case is factually similar to Breanna S., supra, 8 Cal.App.5th 636. The mother in that case filled out an ICWA-020 form at the detention hearing indicating she may have ancestry in the Apache and Yaqui tribes. (Id. at pp. 643-644.) The court ordered the social services agency to investigate, with notice to the tribes if appropriate. (Id. at p. 644.) In the jurisdiction and disposition report, a social worker stated the mother had disclosed possible Yaqui heritage through her maternal grandmother. (Ibid.) Based on that information, the agency sent notices to the Yaqui tribe, which replied that the minors were ineligible for membership. (Ibid.) The agency conceded that the notices to the Yaqui tribe omitted required information, and the court reversed on this basis. (Id. at pp. 651-652, 655.) But there was no suggestion the failure to further investigate the mother's Apache roots or notify Apache tribes was erroneous. Although the court in Breanna S. did not have occasion to address that question, we conclude on similar facts that there was no error here regarding inquiry or notice.
At the outset, the court was entitled to conclude that information provided in Mother's ICWA-020 form lacked foundation. The same day she filed that form, her counsel admitted Mother had only "vague" information about her Indian ancestry and would "have to follow up with some family members to see if she can get more information." Because she lacked a sufficient factual basis for her assertion in her ICWA-020 form, that form did not on its own suggest a "reason to know" Daughter was an Indian child so as to trigger federal and state notice requirements.
In re O.K. (2003) 106 Cal.App.4th 152 is instructive. At a section 366.26 hearing, a minor's paternal grandmother stated, " 'the young man may have Indian in him' " because of where her family was from, but she admitted knowing little about her family history. (Id. at p. 155.) That information "was insufficient to give the court reason to believe that the minors might be Indian children"; it was simply "too vague and speculative" to trigger ICWA's notice requirements. (Id. at p. 158; see In re J.D. (2010) 189 Cal.App.4th 118, 125 [grandmother's recollection she was told as a child of her Indian ancestry but lacked living relatives who knew more was "too vague, attenuated and speculative" to trigger notice requirement].) Applied here, Mother's admission that she had only "vague" information about her Indian ancestry demonstrated that her ICWA-020 form filed that same day as that admission lacked foundation. The juvenile court could properly disregard information provided in that form in determining whether notice was proper.
Even if there was foundation, notice is not required where a parent retracts an earlier claim of Indian ancestry. Gabriel G. and Jeremiah G. offer helpful guideposts. In Gabriel G., a father indicated in an unsigned ICWA-020 form that his father " 'is or was a member' of a 'Cherokee' tribe." (Gabriel G., supra, 206 Cal.App.4th. at p. 1167.) Thereafter, a social worker indicated in a report that the father stated he did not have Indian heritage. (Ibid.) The report did not explain whether the social worker probed the discrepancy or asked the father to elaborate on the information in his ICWA-020 form. (Ibid.) On that record, there was notice error because the conflicting evidence at a minimum created "a duty of further inquiry." (Ibid.) As the court reasoned:
"In the absence of further inquiry or information that reliably rebutted father's representation that [the minor] has specific Cherokee heritage through the parental grandfather, notice was required to be sent to the three federally recognized Cherokee tribes prior to the court's considering termination of parental rights, since father's claim gave the court 'reason to know that an Indian child is involved.' " (Ibid.)
A different result was reached in Jeremiah G., supra, 172 Cal.App.4th 1514. There, a father vaguely stated at a hearing that he "might have some Indian heritage" but needed to do further research. (Id. at p. 1516.) Three weeks later, he told the agency and the court he did not have Indian heritage. Upon further inquiry from the court, the father's counsel indicated he initially thought he might have Indian ancestry but later retracted the claim. (Ibid.) On that record, the court properly proceeded without ICWA notice. (Ibid.)
Mother's ICWA-020 form conflicted with the social worker's earlier ICWA-010 form, which stated Mother had only Cherokee ancestry through her paternal relatives. Assuming it had foundation, the fact the ICWA-020 form was unsigned did not "render the document ineffective or irrelevant." (Gabriel G., supra, 206 Cal.App.4th at p. 1167.) Instead, it created a conflict that triggered a duty to investigate and clarify Mother's Indian ancestry. (Ibid.) That is precisely what the court did by requiring Mother to submit an ICWA-030 form and asking the Agency to make further inquiry. In submitting the ICWA-030 form to the social worker, Mother in effect recanted her earlier vague and equivocal claim of possible "Blackfoot" heritage through her father or Cherokee heritage through her mother. (Jeremiah G., supra, 172 Cal.App.4th at p. 1516.) Because further inquiry and information "reliably rebutted" Mother's representation in her ICWA-020 form, there was no error in failing to notify the tribes in accordance with that form. (Gabriel G., at p. 1168.)
This is not a case where the Agency failed to follow up with Mother to ascertain her Indian ancestry. (Cf. In re A.G. (2012) 204 Cal.App.4th 1390, 1397.) It twice interviewed Mother, and it forwarded the information she provided to the Cherokee and Blackfeet tribes. There was no error in failing to obtain and include additional information in the notice sent to the tribes. (Charlotte V., supra, 6 Cal.App.5th at p. 58 [notice to Blackfeet tribe was not deficient for failing to include additional information about minor's relatives where "DCFS interviewed Mother's family to determine what information was known to them" and included the information provided in its notice].)
Although "the agency must pursue all reasonable investigative leads" (Elizabeth M., supra, 19 Cal.App.5th at p. 787), there was no need to further investigate Mother's Blackfeet ancestry or Cherokee ancestry through her maternal side once Mother followed up with the detailed ICWA-030 form. Mother's initial statement was admittedly "vague," and it was rebutted by her subsequent clarification in the ICWA-030 form. There was likewise no error under federal or state law in failing to notify the tribes about Mother's alleged affiliation with the Blackfeet tribe or maternal roots to a Cherokee tribe.
Substantial evidence supports the court's finding that notice was proper under ICWA and state law. In light of the tribes' responses, substantial evidence likewise supports its finding that ICWA did not apply. Because we find no error, we need not determine whether any notice error violated ICWA or state law only for purposes of evaluating prejudice. (Breanna S., supra, 8 Cal.App.5th at p. 653.)
DISPOSITION
The order is affirmed.
DATO, J. WE CONCUR: O'ROURKE, Acting P. J. GUERRERO, J.