Opinion
A148873
05-18-2017
In re ALEXANDER W., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. S.G., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HJ10015084)
S.G. (Mother) appeals from the juvenile court's order selecting guardianship as the permanent plan for her son, Alexander W. (See Welf. & Inst. Code, § 366.26, subd. (b)(5).) Despite her previous admission that Alexander had no Indian ancestry, Mother contends 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 disagree and affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
We provide only the limited background necessary to resolve the ICWA issue.
In June 2010, when Alexander was 16 months old, the Alameda County Social Services Agency (Agency) filed a dependency petition on his behalf, pursuant to section 300, subdivision (b). Alexander was found to be at substantial risk of suffering physical harm or illness as a result of his parents' untreated mental health and substance abuse issues.
When the 2010 dependency began, Mother reported Alexander's maternal great-great-grandmother, Louise C., "may be of Blackfeet or Shoshone heritage." Mother told the social worker she would contact her grandmother to obtain the maternal great-great-grandmother's identifying information. Alexander's presumed father, Brian W. (Father), reported having no Indian heritage. Thereafter, 24 Shoshone and Blackfeet tribes, as well as the Bureau of Indian Affairs (BIA), were sent notice of the jurisdiction/disposition hearing. Before the jurisdictional hearing, the Agency filed an addendum report, which indicated the social worker had spoken to the maternal grandmother, Rosalyn G., who said Louise C. did not have Indian ancestry, but may have "possibly married a man who did." The dependency petition was sustained, Alexander was found to be a dependent child, removal from his parents' custody was deemed necessary, and he was placed in foster care. Ultimately, 10 of the 24 noticed tribes responded that Alexander was not an enrolled member nor eligible for enrollment. The remaining tribes either did not respond or indicated they had insufficient information to make a determination.
We make no further mention of Father because he has no Indian ancestry and is not a party to this appeal.
Although the Agency continued to update the court regarding tribal responses to ICWA notice, the juvenile court did not make an ICWA finding until July 12, 2011, at the 12-month review hearing. On that day, Mother filed a parental notification of Indian status form, which indicated, "I have no Indian ancestry as far as I know." At the Agency's request, the Honorable Thomas Rogers then found ICWA does not apply because Alexander "is not an Indian child." The court explained: "[M]other completed and submitted an ICWA-020 parental notification of Indian status form . . . which indicated that there is no Indian ancestry. [¶] . . . [¶] . . . The form was submitted today and the Court finds that the child is not an Indian child and no further notice is required under ICWA."
The parental notification of Indian status form states: "To the parent . . . : You must provide all the requested information about the child's Indian status by completing this form. If you get new information that would change your answers, you must let your attorney, all the attorneys on the case, and the social worker . . . know immediately and an updated form must be filed with the court." (Judicial Council Forms, form ICWA-020, italics added.)
The dependency case proceeded and, in August 2011, Alexander was returned to Mother's care with family maintenance services after she successfully completed a substance abuse treatment program, engaged in therapy, and maintained sobriety for approximately one year. The dependency case was ultimately dismissed and Mother obtained sole custody.
In June 2014, the Agency filed a second dependency petition on Alexander's behalf, under the same case number as the previous petition. The petition alleged Alexander, who was then five years old, was at substantial risk of serious physical harm or illness due to Mother's mental illness and substance abuse. (§ 300, subd. (b).) Specifically, it was alleged Mother had been arrested earlier that month for being under the influence of methamphetamine. Alexander was home with her at the time. Mother told the arresting officers she believed Alexander was possessed by demons. An Indian child inquiry attachment form, stating inquiry had been made and Alexander had no known Indian ancestry, was filed with the dependency petition.
At the jurisdictional hearing, after a police report was submitted showing Mother tested positive for drugs when arrested, Mother waived her rights to a hearing and submitted on the Agency's report. The Honorable Willie Lott sustained the petition, declared Alexander a dependent of the court, found removal necessary, ordered reunification services, and placed Alexander in foster care. All of the Agency's reports in the second dependency referenced Judge Rogers's July 12, 2011 finding that ICWA did not apply.
By the time of a contested 12-month review hearing in August 2015, Mother had made only partial progress on her case plan—she had not followed through with a psychological evaluation, she continued to exhibit symptoms of untreated mental illness, and she continued to submit positive drug and alcohol tests. At the conclusion of the hearing, the juvenile court terminated Mother's reunification services and set a permanency planning hearing for December 17, 2015. On October 8, 2015, Mother filed another parental notification of Indian status form, in which she initially checked "I have no Indian ancestry as far as I know," scratched out that entry, and then renewed her claim that she "may have Indian ancestry" from the Shoshone or Blackfoot tribes.
There is no federally recognized "Blackfoot" tribe. However, the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana is a federally recognized tribe. (82 Fed.Reg. 4915, 4916 (Jan. 17, 2017).)
The Agency's section 366.26 reports indicated Alexander was thriving in his foster care placement, where he and his therapist hoped he would remain. However, Alexander's foster parents wished to have legal guardianship rather than adopt. The social worker and his therapist believed it would be detrimental to change his placement. The section 366.26 hearing was repeatedly continued, in part to allow concurrent hearing of a section 388 petition Mother filed on December 11, 2015, seeking return of Alexander to her care.
In July 2016, at the conclusion of a contested hearing, the juvenile court denied Mother's section 388 petition, took judicial notice of all prior orders and findings, ordered guardianship as Alexander's permanent plan, and appointed Alexander's foster parents as his legal guardians. In its findings and orders, the juvenile court found "[n]otice [had] been given as required by law" and did not check any of the boxes indicating Alexander was an Indian child. Mother filed a timely notice of appeal.
II. DISCUSSION
Mother's sole claim is that the guardianship order must be reversed because the Agency and the juvenile court failed to ensure proper inquiry and notice under ICWA. The Agency, on the other hand, contends no duty of further inquiry or notice was triggered and any error was harmless. In the unusual circumstances presented here, the Agency has the better argument.
"ICWA establishes minimum federal standards, both procedural and substantive, governing the removal of Indian children from their families." (In re Alicia S. (1998) 65 Cal.App.4th 79, 81.) "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.] [ICWA] sets forth minimum federal standards, both substantive and procedural, for protecting these identified policies." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) We address Mother's ICWA argument despite her failure to raise it below. (See In re Isaiah W. (2016) 1 Cal.5th 1, 6, 15 (Isaiah W.) [parent may challenge ICWA finding via appeal from order terminating parental rights, even if challenge was not made in appeal from a dispositional order where finding was first made]; In re Marinna J. (2001) 90 Cal.App.4th 731, 733 [parent's failure to raise ICWA error before juvenile court does not forfeit claim on appeal].) "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." ' " (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195; accord, Isaiah W., at p. 13.)
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 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).) The Indian status of a child need not be certain to trigger ICWA's notice requirements. (In re H.A. (2002) 103 Cal.App.4th 1206, 1211; In re Kahlen W., supra, 233 Cal.App.3d at p. 1422.) 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.)
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 [of the Interior] 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 BIA." (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), italics added; accord, Cal. Rules of Court, rule 5.481(a)(4) ["[i]f the social worker . . . 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"].) The social worker must ask the parents if the child has Indian heritage (id., rule 5.481(a)(1)), and upon a parent's first appearance in a dependency proceeding, the juvenile court must order the parent to complete a "Parental Notification of Indian Status" form (id., rule 5.481(a)(2)). "The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child, including the child . . . or a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe." (§ 224.3, subd. (b)(1).) If the court or 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 . . . and contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility." (§ 224.3, subd. (c).) "[T]he obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry." (In re Antoinette S., supra, 104 Cal.App.4th at p. 1413.)
Neither ICWA itself, nor the implementing federal regulations in effect while this case was pending, define "reason to know." (In re Breanna S. (2017) 8 Cal.App.5th 636, 650.) However, new federal regulations (applicable to any child custody proceeding initiated on or after Dec. 12, 2016) identify circumstances in which a court has "reason to know" the child is an Indian child. (25 C.F.R. § 23.107(c) (2017); Breanna S., at p. 650, fn. 7.) Because the new regulations do not apply to this case, we rely on the California statute and case law.
Mother first insists the guardianship order must be reversed because no explicit ICWA finding was made "in the instant dependency." The record lacks evidence the juvenile court explicitly addressed ICWA in the second dependency proceeding, including at the section 366.26 hearing. However, "[w]hile the record must reflect that the court considered the issue and decided whether ICWA applies, its finding may be either express or implied." (In re Asia L. (2003) 107 Cal.App.4th 498, 506.) Here, in making the challenged ruling, the juvenile court expressly found that notice had been given "as required by law," declined to check any of the boxes indicating Alexander is an Indian child, and took judicial notice of all prior findings. Furthermore, the Agency's reports in the second dependency, including those written after October 8, 2015, repeatedly referred to the 2011 finding that ICWA did not apply. In a case such as this, we can imply the juvenile court found, at the permanency planning hearing, it had no reason to know Alexander is an Indian child. (See In re E.W. (2009) 170 Cal.App.4th 396, 404 [when reports specifically noted ICWA " 'does not apply,' the record reflects an implicit finding concerning [ICWA] applicability"]; In re Asia L., at p. 506 [court made express finding " 'notice had been given pursuant to ICWA' " and terminated parental rights under non-heightened ICWA standards].)
In the alternative, Mother insists the juvenile court erred by finding ICWA did not apply without failing to ensure ICWA's inquiry and notice requirements were met. She frames this case as being about notice and inquiry—whether the notice given to tribes was sufficient or whether adequate further inquiry was conducted after she filed her 2015 notification of parental Indian status form. Mother asserts her filing of the new form "should have re-triggered ICWA inquiry and notification procedures, despite the finding in the previous dependency that ICWA did not apply." She also maintains the Agency, in the 2011 dependency, failed to provide meaningful notice to the tribes because the notice did not include complete information regarding Louise C. nor any information about the maternal grandparents. Thus, in her view, the tribes' responses to the notices were insufficient to determine Alexander was not an Indian child. In framing her appeal in this manner, Mother confuses the issue. The record shows Judge Rogers found ICWA inapplicable not because notice was sufficient and no tribe intervened but because Mother retracted her claim of Indian heritage. The correct question is whether substantial evidence supports the juvenile court's implicit finding it had no reason to know Alexander is an Indian child. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; In re H.B. (2008) 161 Cal.App.4th 115, 119-120; In re Asia L., supra, 107 Cal.App.4th at p. 506.)
With respect to Louise C., the notice includes no birth date or birth place. Louise C.'s former address was identified only as "Boulder, Colorado." No identifying information was included for the maternal grandmother or maternal grandfather.
Thus, if the evidence before Judge Lott supports a finding he had no reason to know Alexander is or may be an Indian child, no further inquiry or notice were required. (§ 224.3, subd. (c) ["[i]f the court [or] social worker . . . knows or has reason to know that an Indian child is involved, the social worker . . . is required to make further inquiry"]; § 224.3, subd. (d) ["[i]f the court [or] social worker . . . knows or has reason to know that an Indian child is involved, the social worker . . . shall provide notice"]; Cal. Rules of Court, rule 5.481(a)(4) ["[i]f the social worker . . . 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"].) The substantial evidence standard requires us to determine whether reasonable, credible evidence of solid value supports the court's order. (In re Hunter W., supra, 200 Cal.App.4th at p. 1467; In re H.B., supra, 161 Cal.App.4th at pp. 119-120.) "We review factual findings in the light most favorable to the trial court's order." (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) We do not reweigh the evidence and will uphold a finding despite a conflict in the evidence. (In re Michael G. (2012) 203 Cal.App.4th 580, 589-593.) The record contains substantial evidence to support Judge Lott's implicit finding. Or, stated another way, the Agency is correct that insufficient information suggested Alexander is or may be an Indian child.
The juvenile court case file contained the 2011 finding that ICWA was not applicable because Alexander is not an Indian child, as well as Mother's 2011 representation Alexander has no Indian ancestry. Mother presents no reason why the juvenile court could not reasonably rely on this evidence, in the second dependency, to make a finding ICWA does not apply. Instead, she focuses on the absence of evidence that, after she filed a new parental notification of Indian status form in October 2015, the court or Agency made any further inquiry regarding her renewed claim of Indian ancestry. Viewed either as a substantial evidence issue or as a duty of inquiry issue, Mother has shown no error. The implicit ICWA finding, made at the section 366.26 hearing, remains supported by the finding and representations in the prior dependency. At most, there was a conflict in the evidence. The trial court could reasonably find Mother's 2015 vague assertion of possible Indian ancestry not credible when made on the eve of a section 366.26 hearing, with no supporting new information, and when she had previously (after inquiry by the social worker) admitted having no such Indian ancestry. Substantial evidence supports the implicit finding there was no reason to know Alexander is or may be an Indian child.
Mother is also mistaken in insisting the juvenile court and agency had a duty to make further inquiry after she filed her 2015 parental notification of Indian status form. She relies on an apparent misunderstanding of the Agency's " 'affirmative and continuing duty' " to make the inquiries necessary to determine whether a dependent child is or may be an Indian child. (Isaiah W., supra, 1 Cal.5th at p. 9; see § 224.3; Cal. Rules of Court, rule 5.481.) 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. (§ 224.3, subd. (a); see Isaiah W., at pp. 9, 10-11; see also Cal. Rules of Court, rule 5.481(a).) However, this affirmative duty to inquire is triggered only when the agency or its social worker "knows or has reason to know that an Indian child is or may be involved." (Cal. Rules of Court, rule 5.481(a)(4)); In re J.L. (2017) 10 Cal.App.5th 913; In re Breanna S., supra, 8 Cal.App.5th at p. 652; In re Michael V. (2016) 3 Cal.App.5th 225, 233; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942 ["court had no obligation to make a further or additional inquiry absent any information or suggestion that the child might have Indian heritage"]; see In re Alice M., supra, 161 Cal.App.4th at p. 1200 ["duty to inquire is triggered by a lesser standard of certainty regarding the minor's Indian child status . . . than is the duty to send formal notice to the Indian tribes"].)
Mother misplaces her reliance on Isaiah W., supra, 1 Cal.5th 1. In that case, the juvenile court found, at the disposition hearing, there was no reason to know Isaiah was an Indian child and did not order notice to the tribes through which the mother claimed attenuated ancestry. The only issue was whether the mother, despite filing no appeal from the disposition order, could challenge that ICWA finding in her appeal from a subsequent order terminating parental rights. (Id. at pp. 5-6, 9-10.) Our Supreme Court held the mother did not forfeit the ICWA issue by failing to appeal from the dispositional order because ICWA and the corresponding provisions of California law impose an affirmative and continuing duty on the juvenile court to inquire whether the child is an Indian child. (Id. at p. 6.) The court concluded: "In light of this continuing duty, the . . . order terminating [the mother's] parental rights was necessarily premised on a current finding by the juvenile court that it had no reason to know Isaiah was an Indian child and thus ICWA notice was not required. Here, the juvenile court made that finding explicit in the course of the [section 366.26] hearing when it said, 'the Court is once again making a finding [that] I have no reason to know the child would fall under the [ICWA].' Properly understood, [the mother's] present appeal does not seek to challenge the juvenile court's finding of ICWA's inapplicability underlying the . . . dispositional order. It instead seeks to challenge the juvenile court's finding of ICWA's inapplicability underlying the . . . order terminating her parental rights." (Id. at p. 10, italics omitted.)
Isaiah W. is not particularly helpful. The Agency does not contend Mother forfeited her ICWA argument. Isaiah W. does suggest a court is not relieved of its duty to inquire until proper notice is given and all tribes respond. (Isaiah W., supra, 1 Cal.5th at pp. 11-12, 15.) However, it simply does not address whether an ICWA violation occurred in that case, much less in the circumstances of this case—when a prior finding of ICWA inapplicability has been made based on the parents' admissions they have no Indian ancestry. (Id. at p. 9 [no view expressed on juvenile court's determination "that it had no reason to know Isaiah was an Indian child"].)
We need not decide whether Mother's 2015 parental notification of Indian status form, if filed on a blank slate, would have been sufficient to trigger further ICWA inquiry or notice. (See In re Andrew S. (2016) 2 Cal.App.5th 536, 545, 547-548 [father's initial statement he might "have Indian ancestry on his father's side" was sufficient to trigger further inquiry].) Of course, "the burden of coming forward with information to determine whether an Indian child may be involved and ICWA notice required in a dependency proceeding does not rest entirely—or even primarily—on the child and his or her family." (In re Michael V., supra, 3 Cal.App.5th at p. 233.) But here the Agency did ask Mother about her ancestry at the outset of the 2010 dependency. When she provided information suggesting Louise C. might have Shoshone or Blackfeet ancestry, the Agency deemed this information sufficient to trigger further inquiry and noticed the relevant tribes. However, as a result of the Agency's continuing investigation into Mother's ancestry, after it had already noticed numerous tribes, the Agency learned from Mother and the maternal grandmother that Alexander does not, in fact, have Indian ancestry. At this point, in the absence of any newly discovered information suggesting Alexander actually has Indian ancestry, no further inquiry was required.
As Mother concedes, the record does not reveal why, in 2015, she reasserted her claim of Blackfeet or Shoshone ancestry. In light of Mother's 2011 admission she does not have Indian ancestry, we agree with the Agency that Mother's contradictory 2015 statement, without any new supporting information, was too vague and speculative to provide reason to believe Alexander is or may be an Indian child. (See In re J.L., supra, 10 Cal.App.5th at pp. 916, 922-924 & fn. 10 [ICWA inquiry and notice requirements not triggered by mother's statement she was "not sure" if she had Indian ancestry when she relied on nonspecific information from family members and ICWA found inapplicable in prior dependency]; In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1518-1521 [father's vague claim of Indian heritage was "a possibility," without naming a tribe and which was later retracted, insufficient to require ICWA notice]; In re J.D. (2010) 189 Cal.App.4th 118, 125; In re Aaron R. (2005) 130 Cal.App.4th 697, 707 ["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"]; In re Hunter W., supra, 200 Cal.App.4th at p. 1468 [mother "cite[d] no authority in which the court found sufficient information to trigger ICWA when the parent could not even identify the tribe the family may have had connections to"]; In re O.K. (2003) 106 Cal.App.4th 152, 154-157 [notice requirements not triggered by grandmother's statement that child "may have Indian in him" because "where were [sic] from it is that section"].)
On this record, the juvenile court did not err in finding ICWA did not apply. In any event, even if we assume Mother has shown notice or inquiry error it would be harmless. "Deficiencies in ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child." (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.) Alexander's Indian ancestry, if he had any, would not change over time. Yet, Mother has made no representation—either below or in her briefs on appeal—that any new information has been obtained showing the prior ICWA finding is wrong. Thus, there has been no miscarriage of justice and remand would be a wholly idle act. (See In re Shane G. (2008) 166 Cal.App.4th 1532, 1539 [when agency performed reasonable inquiry and found no reason to believe minor was an Indian child, "reversing the judgment . . . for the sole purpose of sending notice to the tribe would serve only to delay permanency . . . rather than further the important goals of and ensure the procedural safeguards intended by ICWA"]; In re Rebecca R., supra, 143 Cal.App.4th at pp. 1430-1431 [conditional reversal and remand for ICWA inquiry not required unless parent represents child had Indian ancestry].) "Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship without any showing whatsoever that the interests protected by ICWA are implicated in any way." (In re K.M. (2009) 172 Cal.App.4th 115, 120.)
III. DISPOSITION
The July 2016 order selecting guardianship as Alexander's permanent plan is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.