Opinion
A159816
10-23-2020
In re TRISTAN S.-B., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. S.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSJ18-00735) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to the California Standards of Judicial Administration, section 8.1, reciting only those facts necessary to resolve the issue on appeal. (People v. Garcia (2002) 97 Cal.App.4th 847, 850; Ct. App., First Dist., Local Rules, rule 19, Abbreviated opinions.) Undesignated statutory references are to the Welfare and Institutions Code.
S.B. (mother) appeals from a juvenile court order terminating her parental rights as to her son, Tristan S.-B., following a section 366.26 hearing (.26 hearing). She contends the court and the child-protective agencies, including the Contra Costa County Children and Family Services Bureau (Bureau), failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq., ICWA). The Bureau concedes the error and agrees conditional reversal and limited remand is appropriate.
We accept the concession. We conditionally reverse the order terminating parental rights and remand for the limited purpose of ensuring ICWA compliance.
A.
Overview
In May 2018, the Calaveras County Health and Human Services Agency (Agency) filed a petition alleging Tristan came within section 300, subdivisions (b) and (g). The Calaveras County Superior Court detained Tristan, declared him a dependent, and ordered reunification services for mother. Then it transferred the case to Contra Costa County, where mother was living. At the 12-month review hearing, the Contra Costa Superior Court terminated reunification services and scheduled a .26 hearing. The court terminated mother's parental rights at the .26 hearing.
B.
ICWA
In May 2018, mother completed parental notification of Indian status (ICWA-020 form) stating she and Tristan may be members of, or eligible for membership in, the Cherokee and Athabascan tribes. Mother stated her parents were members of a federally recognized tribe.
The Agency's disposition report recommended the court find ICWA did not apply. According to the report, the Agency issued notice of child custody proceeding for Indian child (ICWA-030 form) and the Eastern Band of Cherokee Indians responded that Tristan was "neither registered nor eligible to register as a member of the tribe." The report attached return receipts for several tribes, but not the ICWA-030 form. At the disposition hearing, the Calaveras County Superior Court determined ICWA did not apply.
At the 12-month review hearing in Contra Costa Superior Court, however, the court noted an "unresolved ICWA" issue. Counsel for the Bureau asked whether there was an ICWA-020 form on file, and the social worker responded, "No." The court stated one tribe—the Eastern Band of Cherokee Indians—had responded that Tristan was not a member. Two other tribes—the Athabascan and Tlingit tribes—had not responded. The court noted it could not make an ICWA finding until those tribes responded. It scheduled an ICWA hearing, but that hearing did not take place.
Before the .26 hearing, the Bureau filed a report incorrectly stating that the court found Tristan was "not an Indian child" at the 12-month review hearing.
C.
Conditional Reversal and
Limited Remand for ICWA Compliance
Mother contends the order terminating parental rights must be conditionally reversed and the matter remanded for ICWA compliance because the ICWA-030 form was not filed with the Calaveras County Superior Court, and because there is no indication the court reviewed that form, or the tribes' responses, before determining ICWA did not apply. The Bureau urges us to take judicial notice of a May 2018 file-stamped ICWA-030 form but acknowledges the form "could have contained additional relevant information that may have assisted the tribes in making their determination under . . . ICWA." The Bureau concedes a conditional reversal and remand for ICWA compliance is appropriate. We accept the Bureau's concession.
We grant the Bureau's request but admonish counsel for the Bureau that future requests for judicial notice must comply with Rule 6 of this court's Local Rules and with California Rules of Court, rule 8.252. A party seeking judicial notice must file a "separate motion with a proposed order" and demonstrate why the document is relevant and the proper subject of judicial notice. (Cal. Rules of Court, rules 8.252(a)(1), (a)(2)(A)-(D).)
" 'Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] . . . . Without notice, these important rights granted by [ICWA] would become meaningless.' " (In re A.G. (2012) 204 Cal.App.4th 1390, 1396.) An ICWA notice must contain sufficient information to afford the tribe "a meaningful opportunity to evaluate whether the dependent minor is an Indian child" under ICWA. (In re Louis S. (2004) 117 Cal.App.4th 622, 629.) The notice must contain, among other things, known information about the child's grandparents and great-grandparents, including their contact information. (In re N.G. (2018) 27 Cal.App.5th 474, 480 (N.G.).)
The child protective agency has a duty to use due diligence in locating all the information required by the ICWA notice. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.) "The juvenile court is not authorized to determine ICWA does not apply until . . . 'proper and adequate' ICWA notice has been given . . . ." (N.G., supra, 27 Cal.App.5th at p. 480.) The " 'court has a responsibility to ascertain that the agency has conducted an adequate investigation and cannot simply sign off on the notices as legally adequate without doing so.' " (Id. at p. 484.)
Here, the ICWA-030 form was deficient because it failed to include known information about Tristan's grandparents—including Tristan's maternal grandmother—and great-grandparents, the ancestors identified as having possible Native American heritage. (N.G., supra, 27 Cal.App.5th at pp. 481-482.) The Calaveras County Superior Court's finding at the disposition hearing that ICWA did not apply was erroneous because it was based on inadequate inquiry and notice by the Agency. This error was not corrected when the case was transferred to Contra Costa Superior Court. (N.G., supra, at p. 483.) "Without knowing whether proper notice was given, and whether any response was received from the tribes, the juvenile court could not knowingly determine whether the remaining provisions of the ICWA applied." (In re Jennifer A. (2002) 103 Cal.App.4th 692, 703.)
On this record, the ICWA violation was prejudicial. (N.G., supra, 27 Cal.App.5th at pp. 484-485; In re Jennifer A., supra, 103 Cal.App.4th at pp. 704, 709.) The appropriate remedy is a conditional reversal and limited remand for ICWA compliance.
DISPOSITION
The judgment terminating parental rights is conditionally reversed and the case is remanded to the juvenile court with directions to order the Bureau to comply with ICWA notice provisions. If, after proper notice, the court finds Tristan is an Indian child, the juvenile court must proceed in conformity with all provisions of the ICWA. If, on the other hand, the court finds Tristan is not an Indian child, the judgment terminating parental rights must be reinstated. (See N.G., supra, 27 Cal.App.5th at p. 486.)
/s/_________
Reardon, J. WE CONCUR: /s/_________
Needham, Acting P.J. /s/_________
Burns, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------