Opinion
F073780
02-16-2017
In re DOMINIC J., JR., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.P., Defendant and Appellant.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, John A. Rozum and Jason Chu, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJV068115A)
OPINION
APPEAL from an order of the Superior Court of Tulare County. Michael B. Sheltzer and Robert Anthony Fultz, Judges. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, John A. Rozum and Jason Chu, Deputy County Counsel, for Plaintiff and Respondent.
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S.P. (mother) appeals from the juvenile court's order terminating her parental rights as to her son, Dominic J., Jr., under Welfare and Institutions Code section 366.26. Mother does not challenge the substantive findings upon which the termination order is based. Instead, she contends the order must be reversed because the Tulare County Health and Human Services Agency (Agency) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) as to Dominic's father, Dominic J. (father). We agree and conditionally reverse and remand for the limited purpose of compliance with ICWA.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On August 8, 2014, one-year-old Dominic was taken into protective custody in Tulare County after both of his parents were arrested - mother for child endangerment and father for a felony warrant from San Joaquin County.
Subsequent references to dates are to dates in 2014 unless otherwise noted.
Social worker Yvette Gutierrez interviewed mother and father in person on August 11 - mother at the pre-trial facility and father at the main jail. Parents were from Stockton and had come to Tulare County on August 7 to find a place to live. They each signed a "Parental Notification of Indian Status" (ICWA-020); mother indicated she did not have any Indian ancestry, while father stated he may have Indian ancestry and wrote "Blackfoot" as the name of the tribe. Gutierrez completed an "Indian Child Inquiry Attachment" (ICWA-010), on which she checked the box "The child has no known Indian ancestry." Gutierrez also stated, however, that she questioned father and mother in person on August 11, and while "mother stated 'No[,]' " "father stated 'My grandma was Blackfoot.' "
On August 12, the Agency filed a juvenile dependency petition under section 300, subdivisions (a) [serious physical harm], (b) [failure to protect] and (g) [no provision for support]. That same day, Gutierrez was informed that father was transferred to San Joaquin County for processing of the outstanding warrant. For that reason, father was not present at the August 13 detention hearing. The juvenile court found father was a presumed father and appointed an attorney for him. Mother was not aware of any American Indian heritage on either her side or father's side of the family. On that basis, the juvenile court stated there was insufficient evidence to believe that ICWA applied. County counsel then informed the court that father told the social worker he claimed Blackfoot and the Agency would "do notices, although he said that was his grandmother" and he did not indicate he was registered.
The juvenile court removed Dominic from parental custody and set a jurisdiction hearing. The minute order states the juvenile court found there was insufficient reason to believe Dominic is or may be an Indian child covered by ICWA. The juvenile court did not order the parents to provide the Agency with family records regarding Indian ancestry or names of relatives with such information; neither did it order the Agency to provide notice to the Bureau of Indian Affairs and any identifiable federal recognized tribe.
On August 19, social worker William Myers attempted to contact father. Myers called the San Joaquin County jail and was told father was released on August 15 with time served. The jail gave father's last known address in Stockton. Myers then called father at the telephone number listed in "CMS" to discuss his case and address court-ordered services. When father did not answer, Myers left a voicemail message asking father to contact the Agency as soon as possible. Myers also sent a letter by certified mail to the address the jail provided asking father to contact the Agency. Myers submitted a due diligence search request for father.
Myers learned that mother had been transferred to a detention facility. On August 20, Myers went to the detention facility, but was told mother had been released the previous day. She did not leave an address, but did leave a telephone number. Myers called mother and left a voicemail message asking her to contact the Agency as soon as possible. Myers also left voicemail messages with several relatives in an attempt to locate mother.
On August 20, Myers completed and sent by certified mail a "Notice of Child Custody Proceeding for an Indian Child" (ICWA-030) to the following parties: (1) Sacramento Area Director - Bureau of Indian Affairs; (2) Secretary of the Interior - Department of the Interior; and (3) Raquel Vaile - ICWA Coordinator - Blackfeet Tribe of Montana. The notice lists Dominic's name and date of birth, but not his birthplace. The notice identifies Dominic's parents, lists their dates of birth, states their whereabouts are unknown, and lists their former addresses. Regarding father's tribe or band, the notice states that he "claims Blackfeet affiliation through Grandmother; Grandmother's identification information is unknown at this time." As additional information for father, the notice states: "Whereabouts are currently unknown; at this time, the Agency is unable to contact the father to request additional information regarding his family's reported Native American Ancestry." The notice also states that mother did not indicate any tribe or band, her whereabouts were unknown and "at this time, the Agency is unable to contact mother to request additional information regarding the father's reported Native American Ancestry." The only other relative identified is the maternal grandmother, for whom only a name is given; neither father's mother nor his grandmother are identified. Instead, the remaining boxes state only "Unknown." Since father's and mother's whereabouts were unknown, a copy of the notice was not mailed to them.
On August 21, mother and father each called Myers and spoke with him. They were in Stockton, but intended to return to Tulare County. Mother claimed she had not seen father since she was incarcerated, but father called Myers from mother's phone. Myers explained to mother the services the Agency recommended. They agreed to contact the Agency upon their return to Tulare County so a meeting could be scheduled to discuss their current circumstances and address court-ordered services. There is no indication that Myers asked either mother or father about ICWA issues. Myers spoke with mother again on August 26. Mother stated she intended to remain in San Joaquin County to complete her services. When Myers attempted to obtain information regarding the case, mother's communication quickly deteriorated. In the Agency's jurisdiction report, Myers explained that while contact had been made with mother and father, the contact had been brief and limited predominately to the parents' statements that they wanted Dominic returned to their care.
The Agency completed the due diligence search for father on August 28, but it was unsuccessful in locating him. On September 3, Myers called mother. Father answered the phone and told Myers he could talk to him, but Myers told him he wanted to speak with mother. Father gave mother the phone. Mother told Myers she was in a car on her way to Oakland. She provided an address in Stockton, but said she was only living there temporarily and would be moving to a different apartment at the same address. She denied that she and father were still together, and he was in the car because he was helping her get to Oakland.
On September 8, Myers called mother, who told him she had moved to Oakland and was living in a shelter. Mother said that she and father were not together, but she was four months pregnant with twins who he fathered. She and father were in different programs at the same shelter. On September 11, Myers called mother, who told him she had moved to a different program and had not seen father for some time. Myers contacted the program and learned that while mother had applied to the program, she had not yet been accepted and therefore was not residing there. On September 18, Myers called mother and left a voicemail message when she did not answer. Myers also called the first program mother and father were in and was told neither one was living there. Myers submitted another request for a due diligence search for father.
On September 5, the Agency received a response from the Blackfeet Tribe. The tribe's representative stated that in researching the "Blackfeet Tribal Enrollment records," she was unable to find Dominic, mother, father or the maternal grandmother listed on the tribal rolls. The representative concluded: "Therefore, the above named child is not an "Indian Child" as defined by [ICWA]. If you are able to gather more information on the ancestry of the parents, please contact me again and I will review the tribal rolls."
Mother, but not father, appeared at the October 1 jurisdiction hearing. Mother submitted on the Agency's reports. The juvenile court found true allegations in the petition of domestic violence between father and mother, their inability to provide Dominic with a stable home environment as they were homeless, and father leaving Dominic without provision for support as father's whereabouts were unknown. Myers stated in an addendum report prepared for the hearing that he had been unable to establish contact with father. While the Agency had attempted to contact father through mother, as the telephone number on file was the same as mother's, and mother has indicated she has had contact with father, mother was unable to provide information regarding his current whereabouts or a telephone number where he could be contacted. Moreover, father had not attempted to contact the Agency regarding services or to inquire about the case.
Mother appeared at the October 22 disposition hearing, but father was not present. Mother informed the court that she intended to remain in Tulare County and wanted to receive services there. She did not know where father was, but she thought he was still in Oakland; she last had contact with him about a month and a half before the hearing. The juvenile court found that ICWA did not apply, as there was insufficient reason to believe Dominic was covered by ICWA. The juvenile court declared Dominic a dependent and ordered family reunification services for mother, but denied them for father under section 361.5, subdivision (b)(1), as the Agency had been unable to locate him and did not know where he was. A six-month review hearing was set for April 8, 2015.
On November 6, father met with social worker Mark Torres. Father said he rode with mother on a bus to Visalia; he claimed he "ran" into mother in Oakland, who told him about coming to see Dominic. Father borrowed money from a friend to purchase a bus ticket. Father was provided with his attorney's contact information. Torres asked father for his contact information, but father said he was homeless and did not have a telephone number. Father said he moved around often and stayed at different places. Father said he would contact his attorney and keep in touch with Torres. Father, however, did not do so.
On February 4, 2015, the Agency filed a subsequent petition under section 342, which alleged that mother had tested positive for methamphetamine twice since the disposition hearing and her substance abuse rendered her unable to provide Dominic with regular care. Mother had moved to Alameda County in November 2014 and gave birth to a stillborn baby in January 2015. Mother moved back to Tulare County in February 2015.
Father's whereabouts were unknown until the April 8, 2015 six-month review hearing, when mother stated that father was in custody in Stockton and would be released in a month. The hearing was continued to April 22, 2015. The juvenile court ordered father to be noticed and transported to that hearing. Neither mother nor father were present at the April 22, 2015 combined review hearing and jurisdiction/disposition hearing on the subsequent petition. Father could not be transported to the hearing because he was still in custody in San Joaquin County. The juvenile court found the subsequent petition's allegations true, ordered additional reunification services for mother, ordered reunification services for father, and set a 12-month review hearing for October 2015.
The 12-month review hearing was continued several times and ultimately held in January 2016. A guardian ad litem had been appointed for mother the prior month. Father had met with social workers in person on May 21, June 4, July 2, and August 20, 2015. Father had not made any progress on his case plan. Prior to October 21, 2015, he had attended 12 of the 20 weekly one-hour supervised visits he had with Dominic. After that date, father stopped visiting Dominic and did not remain in contact with the Agency. Mother did not begin to substantially participate in services until October 2015. Dominic had been in the same foster home since he was removed from his parents and his caregivers wanted to adopt him.
The juvenile court terminated mother's and father's reunification services after finding that the standard time allowed for provision of reunification services had run and there was not a substantial probability that Dominic would be returned to their custody within six months. The court set a section 366.26 permanency planning hearing.
At the May 11, 2016 section 366.26 hearing, the juvenile court found there was clear and convincing evidence that Dominic was likely to be adopted and terminated parental rights as to both parents.
DISCUSSION
Mother contends the Agency and the juvenile court failed to give adequate notice of the dependency proceeding as required by ICWA. Specifically, she contends they failed to provide sufficient information regarding father's family to the Blackfeet tribe. She acknowledges the Agency initially made the proper inquiry concerning the parents' Indian heritage, but asserts it failed in its continuing duty to inquire into father's family history. We agree.
Applicable Law
Congress enacted ICWA to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children in foster or adoptive homes that will reflect the unique values of Indian culture. (In re C.Y. (2012) 208 Cal.App.4th 34, 39; In re Levi U. (2000) 78 Cal.App.4th 191, 195.) An " 'Indian child' is defined as a child who is either (1) 'a member of an Indian tribe' or (2) 'eligible for membership in an Indian tribe and ... the biological child of a member of an Indian tribe. . . .' (25 U.S.C. § 1903(4).)" (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338 (Jonathon S.).) ICWA applies only to federally recognized tribes. (25 U.S.C. § 1903(8); Jonathon S., supra, at p. 338; In re B.R. (2009) 176 Cal.App.4th 773, 783 [federal definition of " 'Indian' " includes "Eskimos and other aboriginal peoples of Alaska"; see also 25 U.S.C. § 479]; In re Wanomi P. (1989) 216 Cal.App.3d 156, 166-168 [Canadian tribe is not federally recognized tribe under ICWA].)
In state court proceedings involving the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe have the right to intervene at any point in the proceeding. (25 U.S.C. § 1911(c).) This right is meaningless, however, unless the tribe is notified of the proceedings. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466.) Notice serves the dual purpose of (1) enabling the tribe to investigate and determine whether a child is an Indian child and (2) advising the tribe of the pending proceeding and its right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)
"Notice under the ICWA must, of course, contain enough information to constitute meaningful notice." (In re Karla C. (2003) 113 Cal.App.4th 166, 175 (Karla C.).) An ICWA notice must include, if known: (1) the name, birthplace and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child's parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. (25 C.F.R. § 23.111(d); see also § 224.2, subd. (a) [specifying these and additional requirements].)
In every dependency proceeding, the Agency and the juvenile court have an "affirmative and continuing duty to inquire whether a child ... is or may be an Indian child. . . ." (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a); In re W.B., Jr. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165 (Gabriel G.).) Once the court or department "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. . . ." (§ 224.3, subd. (c); rule 5.481(a)(4); Gabriel G., supra, at p. 1165.) The agency's duty of "further inquiry" requires "interviewing the parents, Indian custodian, and extended family members ..., contacting the Bureau of Indian Affairs ... 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); rule 5.481(a)(4); Gabriel G., supra, at p. 1165.) It is the Agency's burden to obtain all possible information about the child's potential Indian background and provide that information to the relevant tribe. (In re Louis S. (2004) 117 Cal.App.4th 622, 630.)
Subsequent references to rules are to the California Rules of Court.
ICWA applies to children who are eligible to become or who are members of a tribe but does not limit the manner by which membership is to be defined. (In re Jack C., III (2011) 192 Cal.App.4th 967, 978 (Jack C.), disapproved on another point in In re Abbigail A. (2016) 1 Cal.5th 83, 96, fn. 3; see also Nelson v. Hunter (1995) 132 Or.App. 361 [888 P.2d 124, 126, fn. 4] [observing that Congress rejected proposed language that would have limited ICWA protection to enrolled members of Indian tribes].) A "tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community." (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) The tribe's determination that a child is a member of or eligible for membership in the tribe is conclusive. (§ 224.3, subd. (e)(1).)
Where, as here, the trial court has made a finding that ICWA is inapplicable, the finding is reviewed under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; Karla C., supra, 113 Cal.App.4th at pp. 178-179.) Thus, 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.) A juvenile court's ICWA finding is also subject to harmless error analysis. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.) A parent does not waive an ICWA notice issue by failing to raise it below. (In re Nikki R. (2003) 106 Cal.App.4th 844, 849.) Moreover, a non-Indian parent has standing to challenge the adequacy of ICWA notice resulting from the Indian heritage of the other parent. (Jonathon S., supra, 129 Cal.App.4th at p. 339.)
Analysis
At the outset of the case, social worker Gutierrez interviewed father and learned he believed his grandmother was "Blackfoot." That same day, father completed an ICWA-020 form in which he stated he may have Indian ancestry through the "Blackfoot" tribe. Eight days later, social worker Myers unsuccessfully attempted to contact father. The next day, he mailed the ICWA-030 to the Blackfeet tribe, which listed only the parents' and maternal grandmother's names, and stated that other relatives' names were unknown.
As the Agency points out, while father stated his grandmother was "Blackfoot[,] there is no such tribe listed in the Federal Registry. The tribe with the closest name is the Blackfeet tribe. (77 FR 45816, 45822.) "[T]here is frequently confusion between the Blackfeet tribe, which is federally recognized, and the related Blackfoot tribe which is found in Canada and thus not entitled to notice of dependency proceedings. When Blackfoot heritage is claimed, part of the Agency's duty of inquiry is to clarify whether the parent is actually claiming Blackfoot or Blackfeet heritage so that it can discharge its additional duty to notice the relevant tribes." (In re L.S., Jr. (2014) 230 Cal.App.4th 1183, 1198.) The record does not indicate whether the Agency attempted to clarify whether father had possible Blackfoot or Blackfeet heritage. The Agency acknowledges on appeal that notice was sent to the Blackfeet tribe apparently because father's whereabouts were unknown and therefore he was unavailable to provide additional information regarding his claim of Indian ancestry.
It is apparent from the ICWA-030 that neither social worker had asked father for information concerning his family members. The form did not contain information that father would have known, such as the names of his parents or grandparents. Moreover, the Agency admitted on the form it was unable to contact father to request additional information about his family's reported Native American ancestry because his whereabouts were unknown. While father's whereabouts may have been unknown when the ICWA-030 was sent, the Agency thereafter had contact with father twice by telephone - on August 21 and September 3 - yet did not ask him for information about his family. After the juvenile court's October 22 finding that ICWA did not apply, the Agency had other opportunities to ask father about his family, yet failed to do so, such as when he met with a social worker on November 6 and when he met four times with various social workers after reunification services were ordered for him in April 2015.
Once the Agency knew father identified his grandmother as being a "Blackfoot[,]" the social workers had an affirmative duty to make some inquiry regarding the additional information required to be included in the ICWA notice. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455 (D.T.); rule 5.481(a)(4)(A).) Here, the record does not disclose any such inquiry of father.
The Agency does not assert on appeal that it made such an inquiry. Instead, it asserts that it could only provide the tribe with information known to it, and it was father's burden to provide it, the court, or his attorney with information that was not included on the form. Father, however, was not served with the ICWA-030, so he would not have known what information was on the form. The Agency asserts that father's attorney was served with the ICWA-030. Even so, by statute and rule, the duty of inquiry is placed squarely on the social worker and court, not counsel. (§ 224.3, subd. (a); rule 5.481(a)(4).) Counsel's failure to bring his client's Indian ancestry to the juvenile court's attention is not evidence of the Agency's compliance with its duty of inquiry.
The Agency also contends the ICWA-030 contained sufficient information for the Blackfeet Tribe to determine whether Dominic was an Indian child as defined by ICWA because the tribe did not express any concern that the form did not provide a sufficient basis to make its determination. While the tribe did issue what seems to be a definitive finding, it is apparent from the tribe's response that its finding was based solely on the names provided, and that additional information about the parents' ancestry could yield a different result.
Finally, we reject the Agency's assertion that Dominic could not be an Indian child since the response did not indicate that mother and father were tribal members and neither claimed membership in a federally recognized Indian tribe. This is because lack of enrollment in a tribe is not determinative of the child's tribal membership. (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 207-208 [while enrollment can be one means of determining membership, it is not the only means, nor is it determinative]; Jack C., supra, 192 Cal.App.4th at pp. 977-978; see § 224.3, subd. (e)(1) [unless the tribe confirms in writing that enrollment is a prerequisite for membership under tribal law or custom, information that the child is not enrolled or eligible for enrollment in the tribe is not determinative of the child's membership status].) While this principle does not apply where the Indian tribe requires enrollment for membership by tribal law and custom (In re K.P. (2015) 242 Cal.App.4th 1063, 1072), the record here is silent on whether enrollment is a prerequisite for membership in the Blackfeet Tribe.
In sum, under the facts here, we conclude the ICWA-030 notice was insufficient. As the Blackfeet Tribe and the Bureau of Indian Affairs were deprived of any meaningful opportunity to determine whether Dominic was an Indian child, the error was prejudicial. (D.T., supra, 113 Cal.App.4th at p. 1455.) Accordingly, we remand the matter to the juvenile court with directions to make the appropriate inquiries of father, if his whereabouts are known, and any extended family members reasonably expected to have information regarding Dominic's membership status or registration.
DISPOSITION
The order terminating mother's parental rights is conditionally reversed and the matter remanded to the juvenile court for the sole purpose of complying with its duty of inquiry and notice provisions of ICWA as to father only, and for the court to determine whether ICWA applies in this case. If the court determines that ICWA does not apply, the order shall be reinstated. If information is presented to the juvenile court that affirmatively indicates Dominic is an Indian child as defined by ICWA and the juvenile court determines that ICWA applies in this case, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of ICWA.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
FRANSON, J.