Opinion
A131613
11-17-2011
In re C. B., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. Anna B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County
Super. Ct. No. 3389-DEP)
The juvenile court, pursuant to Welfare and Institutions Code section 366.26, terminated the parental rights of Anna B. (Mother) to her daughter, C. Mother appeals, arguing that the juvenile court failed to ensure compliance with the notice and inquiry provisions of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). We reverse and remand the matter to the juvenile court for the limited purpose of ensuring compliance with the notice and inquiry provisions of ICWA.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition and Detention Report
In July 2010, shortly after her birth, C. was removed from Mother's custody. The Sonoma County Human Services Department (Department) filed a juvenile dependency petition, which alleged Mother failed to protect C. (§ 300, subd. (b).) Specifically, the petition asserted that Mother has substance abuse issues that, at times, render her unable to provide adequate care. The petition alleged that Mother had, while pregnant with C., left a substance abuse treatment program and had repeatedly tested positive for methamphetamine. As alleged in the petition, Mother smoked marijuana throughout her pregnancy and smelled of alcohol when she reported for a pregnancy test. The petition also alleged that Mother had failed to protect C.'s older half-brother (§ 300, subd. (j)), Jonathan, with whom Mother had failed to reunify in prior dependency proceedings.
The petition stated that "Indian child inquiry" had been made and that C. "has no known Indian ancestry." After the petition was filed, however, Mother filed a parental notification of Indian status form (Judicial Council Forms, form ICWA-020), which indicated that she "may have Indian ancestry," but that the tribe was unknown.
At the detention hearing, on July 26, 2010, the court ordered C. detained in foster care. Mother indicated there were "[t]wo possible fathers" of C.—William M. and David B. Both were deemed "alleged fathers." The following exchange also occurred on the record:
Alleged fathers have limited rights in dependency proceedings. " 'An alleged biological father in dependency proceedings is a man who may be the father of a child, but whose biological paternity has not been established. [Citation.] "An alleged father . . . does not have a known current interest because his paternity has not yet been established." [Citation.] An alleged biological father is entitled to notice of the proceedings. (§ 316.2, subd. (b).)' [Citation.]" (In re Karla C. (2003) 113 Cal.App.4th 166, 179.)
"THE COURT: So, ma'am, do you have any relatives who would have been Native American Indian?
"THE MOTHER: Well I don't really know. Well, my mom's real father was Indian, but we haven't found any—we haven't gone and seen if we do because of the blood test costs a little.
"THE COURT: So hearing from the maternal grandma, so, ma'am, you have a relative?
"[MATERNAL GRANDMOTHER]: My father that passed away in '85, I think it was, he had Indian in him. You know, that's what I was told. I didn't know much about my dad.
"THE COURT: All right. Were you ever told what tribe or anything or just that he had some Indian?
"[MATERNAL GRANDMOTHER]: No.
"THE COURT: All right. Based on the information provided so far, the Court does find [ICWA] does not apply."
William M. later appeared before the juvenile court and requested paternity testing. William M. indicated that, if he was not C.'s biological father, he had no interest in further participation in the juvenile proceedings. William M. filed a parental notification of Indian status form (Judicial Council Forms, form ICWA-020), which indicated that he "may have [Blackfeet] Indian ancestry." The juvenile court ordered the clerk to conduct a paternity inquiry for any judgment or declaration of paternity. The paternity inquiry revealed no paternity judgment or declaration.
Jurisdiction Report and Determination
The jurisdiction report noted that C. was "doing well" in an emergency foster home. The court adjudged C. to be a dependant of the juvenile court and continued the matter for disposition.
Disposition Report
The disposition report, filed by the Department on October 12, 2010, stated: "The father of the minor is unknown. The mother initially reported to the Court the names of two men who may be the biological father of C.: William [M.] and David [B.] Neither of the alleged fathers has provided financial support to the mother or held the child out as their own, and would therefore, not be considered presumed fathers. Therefore, they are not entitled to Family Reunification Services. [¶] Additionally, the mother named a third alleged father, Jesse [D.] [He] was contacted by the Department, as well as his mother. He does not believe he is the father, has not provided for the minor, nor is he interested in pursuing custody of the minor." The report also indicated that Mother had not been visiting C., had not been participating in outpatient substance abuse treatment, and had moved to San Diego.
At the uncontested disposition hearing, on October 13, 2010, the court ordered bypass of reunification services for Mother and the three alleged fathers. The matter was continued for a section 366.26 hearing.
Section 366.26 Hearing
On January 19, 2011, the Department filed a section 366.26 hearing report. The report recommended that parental rights be terminated so that C. could be adopted by her foster parents, with whom she had been living since days after her birth. The report further noted: "On July 26, 2010 the Court found [ICWA] does not apply." The report also noted: "Following paternity testing results, [William M.] was excluded as biological father."
Mother was not present at the section 366.26 hearing, but her attorney appeared and opposed termination of parental rights. Mother's counsel also filed a request to change court order (§ 388), arguing that circumstances had changed, in that mother had been sober for several months and was able to support C. The juvenile court concluded that notice had been given as required by law, terminated Mother's parental rights, denied Mother's modification request, and selected adoption as the permanent plan for C. Mother filed a timely notice of appeal.
II. DISCUSSION
Mother contends that the Department and the juvenile court failed to comply with ICWA. Specifically, she complains, in her opening brief, that "[a]fter [she] and [William M.] claimed Indian heritage, the juvenile court failed to ascertain [C.'s] ancestry and failed to comply with the notice provisions of the ICWA." We conclude that Mother is partially correct, and that the Department and juvenile court failed to satisfy their obligations under ICWA with respect to Mother's Indian ancestry only. A. Governing Law
We can address Mother's ICWA arguments despite her failure to raise them below or to appeal the claimed error at her earliest opportunity. "The generally accepted rule in dependency cases is that the forfeiture doctrine does not bar consideration of ICWA notice issues on appeal. [Citation.] 'As this court has held, "[t]he 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 . . . no mention was made of the issue in the juvenile court.' [Citation.]" (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195 (Alice M.); see also In re Marinna J. (2001) 90 Cal.App.4th 731, 739.)
"In passing [ICWA], Congress identified two important, and sometimes independent, policies. The first, to protect the interests of the Indian child. The second, to promote the stability and security of Indian tribes and families. [Citations.] The Act sets forth minimum federal standards, both substantive and procedural, for protecting these identified policies. [Citation.]" (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)
The ICWA protects "Indian children who are members of or are eligible for membership in an Indian tribe." (25 U.S.C. § 1901(3).) For purposes of the ICWA, " 'Indian child' means any unmarried person who is under age eighteen and 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).) But, the Indian status of a child need not be certain to trigger ICWA's notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471; In re Kahlen W., supra, 233 Cal.App.3d at p. 1422.) And a child may be an "Indian child" under ICWA even if neither of the child's parents is enrolled in a tribe. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254 (Dwayne P.).)
ICWA provides: "[W]here 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 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 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 tribe or the Secretary . . . ." (25 U.S.C. § 1912(a), italics added.) When the notice provision is violated, an Indian child, parent, Indian custodian, or the Indian child's tribe may petition to invalidate the proceeding. (25 U.S.C. § 1914.)
"[N]otice to the Secretary [of the Interior] is accomplished by notice to the [Bureau of Indian Affairs (BIA)]. [Citations.]" (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1406.)
The federal ICWA notice provisions are incorporated into California law. (See §§ 224-224.3.) Thus, section 224.2, subdivision (b), similarly provides: "Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter . . . unless it is determined that [ICWA] does not apply to the case in accordance with Section 224.3." (Italics added.) The law also imposes "an affirmative and continuing" duty on the court and the social services agency "to inquire whether a child . . . is or may be an Indian child . . . ." (§ 224.3, subd. (a).)
Until recently, California courts had "consistently held that a 'suggestion' that the child is an Indian child is sufficient to invoke notice." (Alice M., supra, 161 Cal.App.4th at p. 1198; accord In re Merrick V. (2004) 122 Cal.App.4th 235, 246; In re Gerardo A. (2004) 119 Cal.App.4th 988, 991 ["one of the purposes of ICWA notice is to enable the tribe to investigate whether a child is eligible for tribal membership"]; In re Nikki R. (2003) 106 Cal.App.4th 844, 848 ["determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement"]; In re Antoinette S., supra, 104 Cal.App.4th at p. 1408 ["[g]iven the interests protected by [ICWA], the recommendations of the [federal] guidelines, and the requirements of our court rules, the bar is indeed very low to trigger ICWA notice"]; Dwayne P., supra, 103 Cal.App.4th at p. 258 [concluding that the "minimal showing" required to trigger notice under the ICWA is merely evidence "suggest[ing]" the minor "may" be an Indian child].)
But, recently, it has been suggested that the California Legislature's comprehensive reorganization of the ICWA statutes (Sen. Bill No. 678 (2005-2006 Reg. Sess.) § 31, eff. Jan. 1, 2007) raised the bar for when ICWA notice is required in California courts. (See In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520 ["both the federal regulations and the California Welfare and Institutions Code require more than a bare suggestion that a child might be an Indian child"].)
Our colleagues in the Fourth and Sixth Appellate Districts have rejected the contention that the 2007 amendments heightened the notice standards. (See In re Damian C. (2009) 178 Cal.App.4th 192, 197-199 (Damian C.); Alice M., supra, 161 Cal.App.4th at p. 1200 ["[a]bsent clear language regarding the intent to abrogate existing law, we find no reason to reject years of established and well-reasoned case law"].)
The Damian C. court's analysis of the issue is persuasive. That court explained: "[T]he legislative history reveals an intention to standardize the interpretation of ICWA provisions and ICWA inquiry and noticing practice throughout the state and to broaden the statutory interpretation. We do not find a purpose to raise the threshold of when ICWA notice is required. [¶] . . . [¶] Neither the text of the legislation nor the legislative history indicates an intention to undermine California courts' past interpretations of ICWA notice requirements. [Citation.] . . . [¶] Section 224.2, subdivision (b) restates the ICWA requirement that '[n]otice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter . . . unless it is determined that [ICWA] does not apply to the case . . . .' (§ 224.2, subd. (b); see 25 U.S.C. § 1912(a).) This is the same requirement of notice upon which California courts relied when deciding cases before the enactment of Senate Bill No. 678 (2005-2006 Reg. Sess.). [Citation.]" (Damian C., supra, 178 Cal.App.4th at pp. 197-198, fn. omitted.) The Damian C. court continued: "Former rule 5.664 required ICWA notice of dependency proceedings if the child may be an Indian child. This rule was repealed effective January 1, 2008. Current rule 5.481(b)(1) now requires notice only if it is known or there is reason to know the child is an Indian child. However, circumstances that may provide reason to know the child is an Indian child include '[t]he child or a person an interest in the child . . . informs or otherwise provides information suggesting that the child is an Indian child . . . .' (Rule 5.481(a)(5)(A), (b)(3), italics added.) We see little practical difference in the change to the rule. Although the 'may' language was eliminated from the notice provision in the rule and now conforms to the statute, both section 224.3, subdivision (b)(1) and rule 5.481(a)(5)(A) indicate circumstances that may provide reason to know the child is an Indian child include information suggesting the child is an Indian child." (Damian C., at pp. 198-199, fns. omitted.)
All rule references are to the California Rules of Court.
We agree with the conclusions of the Damian C. and Alice M. courts. A suggestion that the child is an Indian child is sufficient to invoke ICWA's notice requirements. We turn to application of these principles. B. William M.'s Indian Ancestry
First, Mother asserts that the juvenile court's termination order must be reversed because the Department failed to fulfill its ICWA duty of inquiry or to provide notice of the proceedings to the Blackfeet Tribe of Montana, with whom William M. had ties. Mother maintains: "The matter must be reversed and remanded to make proper paternity determinations. If [William M.] is indeed the biological father, notice to the Blackfeet Tribe of Montana must be made pursuant to the ICWA."
We read Mother's opening brief as raising two arguments with respect to William M. Mother has standing to raise the issue of ICWA notice even though the argument addresses possible Indian heritage on C.'s paternal side of the family. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.) However, Mother is without standing to argue that she is entitled to reversal simply because the juvenile court failed to make a finding with respect to whether William M. is C.'s biological father. Mother does not have standing on appeal to seek reversal based on a claim that an alleged father's rights were violated, unless she suffered harm. (See In re Jenelle C. (1987) 197 Cal.App.3d 813, 818.) We fail to see how Mother was injured by the juvenile court's failure to make a finding that William M. is not C.'s biological father. Thus, we do not address the latter contention.
Mother's ICWA argument as to William M. is completely without merit. No notice to the Blackfeet Tribe was required because the record shows William M. was excluded as C.'s biological father by paternity testing. Our colleagues in the Third District reached a similar conclusion in In re E.G. (2009) 170 Cal.App.4th 1530 (E.G.). The E.G. court explained: "An alleged father may or may not have any biological connection to the child. Until biological paternity is established, an alleged father's claims of Indian heritage do not trigger any ICWA notice requirement because, absent a biological connection, the child cannot claim Indian heritage through the alleged father. Since [the alleged father] was excluded [by a paternity test] as a biological father of the child, no notice was required under ICWA. . . . [U]ntil biological paternity is established for an alleged father who claims Indian heritage, neither the court nor the social worker knows or has reason to know that an Indian child is involved and notice requirements are not activated. (§ 224.2, subd. (a).)" (E.G., at p. 1533.)
Mother's opening brief incorrectly suggests that William M.'s paternity was never established because genetic testing was not completed. She later filed an "Errata," which concedes that, "[o]n January 19, 2011, the social worker reported William was excluded as the biological father by testing."
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There was no error in failing to send ICWA notice based on William M.'s claimed Indian heritage. C. Mother's Indian Ancestry
Mother's argument with respect to her own Indian ancestry presents a close question, but we conclude that Mother's statement that her "mom's real father was Indian" was sufficient to trigger further inquiry and notice to the BIA. (In re Antoinette S., supra, 104 Cal.App.4th at p. 1408 [father's suggestion that child "might" be an Indian child because paternal great-grandparents had unspecified Native American ancestry was enough to trigger notice requirements]; Dwayne P., supra, 103 Cal.App.4th at p. 253.) C.'s maternal grandmother said nothing at the detention hearing that rebutted the suggestion that C. may be an Indian child.
We disagree with the Department's contention that "[t]he information provided was too vague and speculative to give the juvenile court reason to believe C. might be an Indian child by virtue of her heritage." The information provided by mother and grandmother was concrete—it made a claim of a known Indian ancestor, the maternal great-grandfather. Thus, In re Aaron R. (2005) 130 Cal.App.4th 697, 707 (Aaron R.) and In re O.K. (2003) 106 Cal.App.4th 152 (O.K.) are distinguishable.
In O.K., the child's grandmother replied to inquiries by the court: " 'the young man may have Indian in him. I don't know my family history that much, but where were [sic] from it is that section so I don't know about checking that.' " (In re O.K., supra, 106 Cal.App.4th at pp. 154-155.) The reviewing court rejected the parents' argument that the grandmother's comments necessitated notice to the BIA. (Id. at p. 155.) The court stated: "The information provided by the paternal grandmother that the father 'may have Indian in him' was not based on any known Indian ancestors but on the nebulous assertion that 'where were [sic] from is that section . . . .' This information was too vague and speculative to give the juvenile court any reason to believe the minors might be Indian children." (Id. at p. 157.) In Aaron R., supra, 130 Cal.App.4th at p. 707, the reviewing court held that a "grandmother's brief allusion to her own membership in an historical association falls far short of giving the court reason to know that Aaron may be an Indian child."
At the very least, the juvenile court and the Department had a duty to make further inquiry. (See § 224.3, subd. (a); rule 5.481(a)(4) ["[i]f the social worker, probation officer, . . . investigator, or petitioner knows or has reason to know that an Indian child is or may be involved, that person or entity must make further inquiry . . . ."].) C.'s maternal grandmother said that she "didn't know much about" her father, but this did not relieve the court and Department from asking, at the very least, for his name. "The burden is on the Agency 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.)
Given the information presented by Mother and C.'s maternal grandmother, the Department was under a duty, at a minimum, to inquire further and then provide notice to the BIA.
III. DISPOSITION
The juvenile court's order terminating parental rights is reversed. The matter is remanded to the juvenile court, with directions to comply with the notice and inquiry provisions of ICWA. If, after proper inquiry and notice, the court finds that C. is an Indian child, it shall proceed in conformity with ICWA. If, however, after proper inquiry and notice, the court finds that C. is not an Indian child, the order terminating parental rights and selecting adoption as the permanent plan shall be immediately reinstated.
Bruiniers, J.
We concur:
Jones, P. J.
Simons, J.