Opinion
D077013
05-14-2020
In re M.D. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. GREGORY D. et al., Defendants and Appellants.
Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and Appellant Gregory D. Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant Sherri P.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J520089A-B) APPEALS from orders of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed. Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and Appellant Gregory D. Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant Sherri P.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Gregory D. (Father) appeals from jurisdictional and dispositional orders regarding his two children, six-year-old M1.D. and two-year-old M2.D. (together, the children). He contends that the San Diego County Health and Human Services Agency (Agency) and the juvenile court did not comply with inquiry and notice requirements pursuant to the Indian Child Welfare Act (ICWA), Title 25 United States Code section 1901 et seq., and Welfare and Institutions Code section 224 et seq. He requests reversal of the jurisdictional and dispositional orders and remand for compliance with ICWA. Sherri P. (Mother) joins in Father's arguments.
Undesignated statutory references are to the Welfare and Institutions Code.
The Agency asserts that we should dismiss the appeal in its entirety on grounds of waiver and abandonment. The Agency argues that, if we do consider Father's assertion on its merits, Father failed to meet his burden of demonstrating reversible error under current law. We exercise our discretion to consider Father's argument on its merits and affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue on appeal relates to the adequacy of the ICWA inquiry, we summarize the facts briefly, focusing on the ICWA issue.
In July 2019, Father left M1.D. in a convenience store and did not return for him after 45 minutes, resulting in law enforcement officers taking the child into protective custody. A few days later, Father left M2.D. unattended in a hot car. When Father returned to the car, he was extremely disoriented and was transported by law enforcement officers to a local hospital for evaluation. Officers took the children to Polinsky Children's Center. The Agency filed petitions on behalf of the children alleging that they had suffered, or that there was a substantial risk they would suffer, serious physical harm or illness, due to the failure or inability of Father to adequately supervise or protect them. After M2.D. revealed sexual abuse by Father, the Agency amended the petitions to add this allegation.
Unless otherwise noted, all date references are to 2019.
At this time, Mother lived in a homeless shelter that did not allow children.
Father is a registered sex offender in Michigan and had served a 10-year sentence for sexually abusing his other biological children.
At the detention hearing, Mother denied Native American ancestry and Father stated that he "probably" had Native American ancestry. The court instructed Father to provide the social worker with information to enable the Agency to locate his relatives and obtain information regarding any Indian heritage. The court removed the children from Father's custody and detained them in out-of-home care.
Father informed the social worker that he might have Choctaw Indian heritage from his deceased mother. He had no contact information for the relative who reported possible Indian heritage and denied ever having lived on an Indian reservation, having a tribal enrollment number, or having an identification card indicating membership or citizenship in an Indian tribe. Father's brother, Michael, denied any knowledge of Indian heritage. Out of an abundance of caution, the Agency's ICWA specialist sent notices on July 24 to the Bureau of Indian Affairs, the Choctaw Nation of Oklahoma, the Jena Band-Choctaw, the Mississippi Band of Choctaw Indians, Mother, and Father.
At a hearing in early August, Father did not appear and the Agency informed the court that it had "not been able to get any information that there's even really a reason to believe [that the children are Indian children], let alone a reason to know, that would trigger [ICWA] noticing." The court deferred ruling on ICWA and continued the hearing. Father did not appear at the continued hearing in late August. The Agency noted that it had not received any updated information regarding with whom it could pursue additional inquiry regarding Father's possible Indian heritage.
Father filed a Parental Notification of Indian Status form alleging that he might have Indian ancestry through the Choctaw Tribe. He did not allege membership, or eligibility for membership, in a federally recognized Indian tribe. Nor did he allege that the children were members, or eligible for membership, in a federally recognized tribe. At a hearing in early October, Father made his first appearance. Father identified his eldest brother, Willie, as a person who might have information about the family's ancestry. The court again "deferred on ICWA. . . . [S]o the Agency can do any proper noticing."
In early November, the social worker spoke with Willie, who indicated that he had been told by family members that there might be Native American Indian heritage but that he "ha[d] never seen it." When the social worker asked about Choctaw heritage, Willie reported that he had never heard a specific tribe mentioned. Willie indicated that he had never lived on a reservation, did not have a tribal enrollment number, and did not have an identification card indicating membership in an Indian tribe. He indicated that he would contact relatives to see if they had any other information, but stated that he had no reason to believe the children were Indian children.
At the contested jurisdictional and dispositional hearing in late November, the Agency asked the court to find that ICWA did not apply. The court agreed and found that ICWA did not apply. None of the parties objected or interjected any comments. The court made true findings on the petitions, declared the children to be dependent children, placed them in a foster home, and ordered reunification services for Mother, but denied services to Father because he is a registered sex offender. (§ 361.5, subd. (b)(16).) Father timely appealed.
III.
DISCUSSION
A. Waiver
The Agency contends that Father's sole issue on appeal is barred by the doctrine of waiver because he did not object to the Agency's argument that it had satisfied the ICWA notice requirements, or to the juvenile court's subsequent finding that ICWA did not apply. The Agency asserts that the entire appeal should be dismissed because Father is improperly using an unmeritorious ICWA claim as a shield to preserve his parental rights and delay permanency for the children.
Generally, the forfeiture doctrine does not bar consideration of ICWA notice issues not raised in the juvenile court. (In re Isaiah W. (2016) 1 Cal.5th 1, 14.) " 'The notice requirements serve the interests of the Indian tribes "irrespective of the position of the parents" and cannot be waived by the parent.' [Citation.] A parent in a dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court, but also on appeal even where, as here, no mention was made of the issue in the juvenile court." (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435.) Accordingly, we decline to apply the doctrine of waiver and will proceed to address the merits of Father's claim. B. The Agency did not violate ICWA's notice provision
1. Governing Law
Congress enacted ICWA to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement with non-Indian families. (In re Isaiah W., supra, 1 Cal.5th at p. 7.) "In 2006, California adopted various procedural and substantive provisions of ICWA. [Citation.] In 2016, new federal regulations were adopted concerning ICWA compliance. [Citation.] Following the enactment of the federal regulations, California made conforming amendments to its statutes, including portions of the Welfare and Institutions Code related to ICWA notice and inquiry requirements. [Citations.] Those changes became effective January 1, 2019 [citation], and govern here." (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.)
In dependency proceedings, the juvenile court and Agency have an "affirmative and continuing duty to inquire" whether a child "is or may be an Indian child." (§ 224.2, subd. (a).) Under the amended statutes, if the court or social worker has reason to believe that an Indian child is involved, the social worker must, as soon as practicable, conduct further inquiry, including, but not limited to: (1) interviewing parents and extended family members; (2) 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; and (3) contacting the tribes or any persons that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility. (§ 224.2, subd. (e)(1)-(3).)
Only if this inquiry establishes reason to know the child is an Indian child, must the Agency provide notice to the tribes by registered mail of the pending proceedings and their right to intervene. (§ 224.2, subd. (f).) Section 224.3 sets forth the information that the Agency must include in any such notices. (§ 224.3; 25 U.S.C. § 1912; In re Isaiah W., supra, 1 Cal.5th at p. 5.)
Section 224.2 subdivision (d) provides that "[t]here is reason to know a child involved in a proceeding is an Indian child under any of the following circumstances: [¶] (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family informs the court that the child is an Indian child. [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village. [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child. [¶] (4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child. [¶] (5) The court is informed that the child is or has been a ward of a tribal court. [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe."
Father appears to have briefed this matter as if the prior statutes were still in effect.
We review the juvenile court's finding that ICWA is inapplicable under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) We must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we must indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
2. Analysis
Father contends that the juvenile court erred in proceeding with the jurisdictional and dispositional hearing because the court failed to comply with the notice requirements under ICWA. He claims that the juvenile court ordered the Agency to do "proper noticing" at the contested adjudication and disposition hearing and thus recognized that there was reason to know that the children are Indian children. As we shall explain, the juvenile court did not err in finding ICWA inapplicable because the Agency complied with the statutory inquiry requirements and its proper inquiry did not provide reason to know that the children are Indian children. Accordingly, the notice provisions of ICWA were not triggered.
Father does not claim that the Agency's inquiry of possible Indian heritage was inadequate.
Father's statement to the social worker that he might have Choctaw Indian heritage from his deceased mother provided the Agency with reason to believe that the children might be Indian children via the paternal grandmother and great-grandmother. (§ 224.2, subd. (e)(1)-(3).) In response to this information, the Agency interviewed Father's brother, Michael, who denied any knowledge of Indian heritage. Nonetheless, the Agency sent notices to the Bureau of Indian Affairs, the Choctaw Nation of Oklahoma, the Jena Band-Choctaw, and the Mississippi Band of Choctaw Indians.
At a hearing in early October, Father made his first appearance. Father identified his eldest brother, Willie, as a person who might have information about the family's Indian ancestry. The court again "deferred on ICWA. . . . [S]o the Agency can do any proper noticing." Father construes the court's statement about "proper noticing" as a finding that a reason to know existed that the children were Indian children because Willie "confirmed the children were" Indian children.
Father is wrong. At this hearing, the Agency had not yet contacted Willie. We read the court's statement about "proper noticing" as one requiring inquiry notice by the Agency to determine whether there was reason to know that the children are Indian children. Thereafter, in early November, the social worker spoke with Willie, who indicated that there "may be" Native American Indian heritage, but that he had no reason to believe that the children were Indian children. This record shows that the Agency complied with the statutory inquiry requirements. (§ 224.2, subd. (e)(1)-(3).)
Father claims that the notices to the tribes were inadequate because the Agency did not designate any tribal agents for service and the record does not include a copy of the notices or copies of return receipts. We reject this assertion. To satisfy its inquiry duty, the Agency must contact the tribe or tribes "that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility." (§ 224.2, subd. (e)(3).) This inquiry may be by telephone, facsimile, or electronic mail contact to each tribe's designated agent. (Ibid.) Accordingly, return receipts are not required.
Father also complains that the petition and detention reports misspelled M2.D.'s first name and that the misspelling was not corrected until after the Agency had sent notice to the tribes. Father does not claim that M2.D. is a member of an Indian tribe. Instead, Father claims that M2.D. might be eligible for membership in an Indian tribe depending on whether any of Father's ancestors were tribal members. Accurate information about the claimed Indian ancestors and M2.D.'s relationship to those ancestors is what would determine whether M2.D. is an Indian child under Title 25 United States Code section 1903(4)(b). The misspelling of M2.D.'s first name is harmless because it would not have had any effect on this determination. (See In re Miracle M. (2008) 160 Cal.App.4th 834, 847 [assuming defective notice to parents, the error was harmless].)
Finally, Father claims that the Agency was required to supply a copy of the children's birth certificates with its inquiry to the tribes. Father is mistaken because this requirement applies only after inquiry creates reason to know that a child is an Indian child. (§§ 224.2, subd. (f), 224.3, subd. (a)(5)(E).)
In summary, because formal ICWA notice was never triggered under section 224.3, we reject Father's argument that the juvenile court erred in failing to comply with ICWA's noticing requirements.
DISPOSITION
The orders of the juvenile court are affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.