Opinion
A152645
03-23-2018
In re S.G., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. K.S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J17-00852)
K.S. (Mother) appeals from jurisdictional and dispositional orders in a juvenile dependency case concerning her child, S.G. Mother asserts the juvenile court erred in failing to comply with notice requirements under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and failing to obtain Mother's personal waiver of trial rights at the jurisdictional and dispositional hearing. We agree with Mother the juvenile court erred, but as to several jurisdictional findings, we conclude the due process violation was harmless beyond a reasonable doubt. However, we reverse and remand for compliance with ICWA, reverse certain jurisdictional findings, and otherwise conditionally affirm.
I. BACKGROUND
Shortly after she was born, the Contra Costa County Children & Family Services Bureau (Bureau) detained S.G. A few days later, the Bureau filed a petition alleging S.G. was a dependent within the meaning of Welfare and Institutions Code section 300, subdivision (b)(1) because Mother had "a chronic substance abuse problem" and "a chronic untreated mental health condition," both of which impaired her ability to provide adequate care and supervision for her child. The petition also alleged jurisdiction was necessary under section 300, subdivision (j) because Mother's reunification services had been terminated as to the child's half siblings, D.C., L.C., and N.C., due to Mother's failure to complete a case plan to address substance abuse and untreated mental health. A. Jurisdiction and Disposition Hearing
This case is related to Mother's appeal in In re D.C., case No. A152582, concerning the termination of parental rights as to S.G.'s half siblings, D.C. and L.C., and Mother's prior appeal, In re D.C., case No. A149379, concerning the juvenile court's jurisdictional and dispositional orders as to S.G.'s half siblings. We incorporate those opinions by reference. (In re D.C. (May 16, 2017, A149379) [nonpub. opn.]; In re D.C. (Mar. 23, 2018, A152582) [nonpub. opn.].) We also previously took judicial notice of the appellate records in related appeals Nos. A152582 and A151667, as well as this court's opinion in case No. A149379.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At the jurisdiction and disposition hearing in September 2017, both Mother and S.G.'s father (Father) appeared, represented by counsel. At the beginning of the hearing, the juvenile court asked, "Is everyone submitting or are you setting it for contest?" Counsel for both Mother and Father stated, "We're submitting." Following some discussion of supervised visitation, the court asked, "Do you waive irregularities I can incorporate [sic] these recommendations in my order without reading them aloud, as I've amended them?" Mother's counsel responded, "Yes." After deputy county counsel asked for clarification whether both parents were submitting to jurisdiction, Mother's counsel again responded in the affirmative.
The juvenile court then asked, "And, on a submission, do I have to give the advisements of rights?" Deputy county counsel and counsel for the minor responded, "No." The court then asked whether the parties waived irregularities regarding the jurisdictional allegations and whether the court could proceed with jurisdiction. Counsel for both Mother and Father responded, "Yes."
The juvenile court took judicial notice of its files and records, including its findings in S.G.'s half siblings' case. The court found all counts true, removed the child from parental custody and ordered reunification services for parents. B. ICWA-related Facts
On the day of the detention hearing, Father filed Judicial Council form ICWA-020 ("Parental Notification of Indian Status") averring under penalty of perjury he is or may be a member of, or eligible for membership in, a federally recognized tribe. Father indicated the name of the tribe as "Mescalero" and the name of the band as "Apache." Mother filed a notification indicating she has no Indian ancestry. In its detention report filed the same day, the Bureau noted a social worker had asked Father in person if he was aware of any Native American ancestry his child may have. Father stated "his father has Mescalero heritage and believes that they are a part of the Apache Tribe. [Father] was not aware whether or not his father was registered."
In its report filed for the jurisdiction and detention hearing two months later, the Bureau noted Father had filed the parental notification of Indian status form "indicating he is, maybe a member of, or eligible for membership in the Mescalero and Apache Tribes. Notices have not yet been sent; therefore, the Bureau would respectfully recommend the Court set an ICWA compliance hearing." At the end of the jurisdiction and detention hearing, the court asked Father whether he had "any Native American history." After Father replied, "Yes," the court set an ICWA compliance hearing for two months later.
Mother filed her appeal in this matter before the ICWA compliance hearing took place. After the ICWA compliance hearing, the Bureau filed a motion in this court, asking us to augment the record and take judicial notice of the juvenile court's minute order and exhibits provided to the juvenile court for the hearing. The exhibits show the Bureau mailed Judicial Council form ICWA-030 notices ("Notice of Child Custody Proceeding for Indian Child") to (1) the Sacramento area director of the Bureau of Indian Affairs (BIA); (2) the Secretary of the Interior in Washington, D.C.; and (3) Crystal Garcia, Tribal Census Clerk for the Mescalero Apache Tribe in Mescalero, New Mexico. Signed receipts were returned from all notified parties except Father. On October 5, 2017, the Mescalero Apache Tribe responded to the notice reporting Father was not a member of the tribe, S.G. was not eligible for enrollment or recognition as a member of the tribe, and they would not intervene in the proceedings.
The unopposed motion to augment and for judicial notice is granted. (Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.155(a)(1)(A); Evid. Code, §§ 452, subd. (d), 459.)
The juvenile court's minute order states it found "minor is not an Indian Child pursuant to ICWA."
II. DISCUSSION
A. Advisement of Rights
Mother contends the juvenile court's jurisdictional and dispositional orders must be reversed due to the court's failure to obtain a knowing and intelligent waiver of Mother's trial rights.
California Rules of Court, rule 5.682 contains a list of advisements the juvenile court must give at the beginning of a jurisdiction hearing in a dependency proceeding. Under rules 5.682(a) and 5.534(g)(i), the juvenile court must advise the parent, among other things, of the right to a hearing by the court on issues raised by the petition, the right to assert the privilege against self-incrimination, the right to confront and cross-examine witnesses, the right to use the process of the court to bring in witnesses, and the right to present evidence. If a parent elects to admit the allegations of the petition, plead no contest, or submit to the jurisdiction of the court, the juvenile court must make certain findings, including that the parent "knowingly and intelligently waived" his or her trial rights. (Rule 5.682(e)(3).) The court must advise the parent—not counsel—of his or her due process rights, and the parent must personally make a knowing and intelligent waiver of these rights. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1377 (Monique T.).) It is undisputed the juvenile court in this case did not give the required advisements or obtain a personal waiver from Mother. This was error.
All further references to rules are to the California Rules of Court.
Failure to obtain a waiver of rights to a contested jurisdictional hearing, however, does not mandate reversal when the error is harmless. (In re S.N. (2016) 2 Cal.App.5th 665, 672; Monique T., supra, 2 Cal.App.4th at pp. 1377-1379.) Mother was represented at all stages of the proceedings by counsel, and Mother does not contend her counsel pressured her to waive her rights or failed to explain them. (See Monique T., at p. 1378.)
Further, because the evidence in the record overwhelmingly supports juvenile court jurisdiction over S.G. as to several of the allegations of the petition, we find the juvenile court's error was harmless beyond a reasonable doubt. (See In re S.N., supra, 2 Cal.App.5th at pp. 672-673; Monique T., supra, 2 Cal.App.4th at pp. 1378-1379.) The three section 300, subdivision (j) allegations pertain to Mother's termination of reunification services as to S.G.'s half siblings. As the records and our opinions in the related cases show, the half siblings were removed from Mother's custody in March 2016 because they were at substantial risk of suffering serious physical harm or illness due to Mother's substance abuse, history of domestic violence, and the unsafe and unsanitary condition of the commercial property in which the family had been living. (In re D.C., supra, A149379; In re D.C., supra, A152582.) Though she was offered 17 months of reunification services, Mother consistently failed to engage in efforts to complete her case plan. During the same period, Mother visited her children only a handful of times. At the 12-month review hearing, the juvenile court terminated services for Mother, noting she had done "too little too late" and "came right down to the day of this hearing before [she] even entered a [drug treatment] program." Mother later testified at the section 366.26 hearing held in the half siblings' case only a week prior to the jurisdictional and dispositional hearing in this case. After hearing her testimony, the judge, who presided over both hearings, found Mother remained in "complete denial" and failed to take responsibility for what she had done to her children, making her "a very unsafe mother." Such evidence amply demonstrates Mother had done little to address the problems that led to the dependency as to the half siblings.
We need not determine whether the correct standard of review is the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, or the reasonable probability test under People v. Watson (1956) 46 Cal.2d 818, 836, because given the facts of this case, the error was harmless under either standard. (See Monique T., supra, 2 Cal.App.4th at pp. 1377-1378.)
Mother argues it cannot be automatically assumed a child will be neglected or abused because a sibling has been neglected or abused. While that is true, given the seriousness of Mother's problems, her complete failure to engage in any efforts to address them until very late in the half siblings' case, and the vulnerability of S.G., an infant, the evidence overwhelmingly supported a determination S.G. was a dependent based on the abuse/neglect of sibling allegations.
There was also ample evidence supporting the section 300, subdivision (b) allegation S.G. was at risk of suffering serious physical harm or illness due to Mother's chronic substance abuse problem. In our prior opinion in In re D.C., supra, A149379, we affirmed the juvenile court's jurisdictional finding that Mother's substance abuse problem placed S.G.'s half siblings at risk of serious physical harm or illness. Mother kept marijuana in her purse, smoked it in front of her children (without a prescription), and maternal grandmother reported Mother was " 'wacked out and on drugs.' " After her children were removed, Mother tested positive twice for marijuana, then failed to appear for court-ordered random drug testing 42 times. Despite receiving multiple referrals for drug treatment programs over the course of 14 months, Mother consistently denied having a drug problem and refused to participate in treatment. She finally entered a residential drug treatment program only a week before the 12-month review hearing for the half siblings and less than two months before S.G. was born. Mother completed the 90-day program just 12 days before the section 366.26 hearing as to the half siblings and 19 days before the jurisdictional hearing for S.G. While we commend Mother's rehabilitation efforts, they were far too recent to demonstrate she had addressed her chronic substance abuse problem and no longer posed a risk of harm to S.G.
Indeed, even after Mother entered a residential drug treatment program, she continued to deny she had a drug problem.
We agree with Mother the record does not contain evidence beyond a reasonable doubt as to the section 300, subdivision (b) allegation based on Mother's alleged "chronic untreated mental health condition." There is no evidence Mother was ever diagnosed with a specific mental health condition, and we can locate only cursory references to "mental health issues that remain unaddressed" and Mother's failure to participate in "mental health counseling" in the record. Because the true finding could have consequences for Mother beyond jurisdiction, including the type of reunification services Mother is required to obtain, we reverse as to that finding. (See, e.g., In re M.R. (2017) 7 Cal.App.5th 886, 896 [though juvenile court's jurisdiction will be upheld if sufficient evidence supports any one of the statutory bases for jurisdiction, court may exercise its discretion to determine validity of other findings where they could conceivably have consequences beyond jurisdiction].) For the same reason, we also reverse the jurisdictional findings under section 300, subdivision (j) only to the extent they relied on Mother's failure to complete her case plan to address "untreated mental health." Accordingly, we order "untreated mental health" stricken from the each of the section 300, subdivision (j) findings.
Because the evidence abundantly supports the allegations under section 300, subdivision (j) regarding Mother's termination of services as to the half siblings and the section 300, subdivision (b) substance abuse allegation, we conclude any error in failing to obtain a waiver of Mother's rights was harmless beyond a reasonable doubt. B. ICWA Notice
Mother next contends the juvenile court's orders must be reversed for failure to comply with ICWA notice requirements. Though the Bureau argues any errors were cured by the juvenile court's subsequent findings that proper notice was given and ICWA did not apply, Mother asserts the ICWA notices contained numerous prejudicial errors that require reversal. On the record presented, Mother's contention has merit.
"Congress enacted ICWA in 1978 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . .' " (In re Damian C. (2009) 178 Cal.App.4th 192, 196, citing 25 U.S.C. § 1902.) ICWA requires that a child's Indian tribe be notified of a dependency proceeding and its right to intervene whenever there is a reason to know a child is an Indian child. (In re A.G. (2012) 204 Cal.App.4th 1390, 1396; 25 U.S.C. § 1912(a).) Section 224.2, subdivision (a) similarly requires notice to the tribe whenever a court, social worker, or probation officer knows or has reason to know an Indian child is involved in a dependency proceeding.
A juvenile court also has an affirmative and continuing duty to inquire into a child's Indian status. (§ 224.3, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 14.) Where a court or social worker "has reason to know" a child may be an Indian child, it has a duty to inquire into a parent's claim of Indian ancestry. (§ 224.3, subd. (c); rule 5.481(a)(4)(A); In re Michael V. (2016) 3 Cal.App.5th 225, 233 (Michael V.).) This duty of inquiry is satisfied by, among other things, "interviewing the parents, Indian custodian, and extended family members." (§ 224.3, subd. (c); rule 5.481(a)(4)(A).)
In this case, Mother argues the juvenile court erred because, among other things: (1) the ICWA-030 notice may have misspelled Father's middle name; (2) the notice may have the incorrect birth date for Father; (3) the notice spelled paternal grandfather's name alternately as "David" and "Davis"; (4) the notice fails to provide an address, contact information, or birthdate for paternal great-grandmother, though she is living; (5) the notice was sent only to the Mescalero Apache tribe, not all federally recognized Apache tribes; and (6) neither the notice nor the Bureau detailed any attempts to obtain information on Indian ancestry through Mother despite the fact maternal great-grandfather indicated the family had Indian ancestry through his wife.
Mother also asserts the juvenile court erred because there is no evidence Father received the ICWA notice. Mother lacks standing to raise this argument. (In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261 ["An appellant cannot urge errors which affect only another party who does not appeal."].) Additionally, Mother contends the notice omits the names of S.G.'s three siblings through Father and three siblings through Mother, but does not cite any legal authority such information must be included in an ICWA notice.
We first address Mother's claim the notice should have been sent to all federally recognized Apache tribes. Section 224.2, subdivision (a)(3) requires that notice "be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child's tribe." Courts have construed that language to require "notice to all federally recognized tribes within the general umbrella identified by the child's parents or relatives." (In re Alice M. (2008) 161 Cal.App.4th 1189, 1202; In re O.C. (2016) 5 Cal.App.5th 1173, 1183.) In O.C., the father signed a completed ICWA-020 form indicating he is or may be a member of, or eligible for membership in, the Wailaki and Pomo tribes. (Id. at pp. 1178-1179.) The father completed another form stating he was born in Covelo, California and enrolled as a child in the (Pomo) Round Valley tribe. He claimed ancestry through his father whom he had never met but believed may have been a member of the (Pomo) Covelo tribe. (Id. at p. 1179.) Although there were 22 federally recognized Pomo-affiliated tribes, the trial court found notice to the Round Valley and Covelo tribes sufficient. After reviewing the relevant statutory notice requirements and case law, this court concluded the trial court had erred in failing to send required notice to the remaining Pomo-affiliated tribes. (Id. at p. 1188.)
Similarly, here, Father's ICWA-020 form indicated the name of the tribe as "Mescalero" and the name of the band as "Apache." When interviewed by the Bureau, he reported his father (paternal grandfather) "has Mescalero heritage and believes that they are a part of the Apache Tribe." In its report for the jurisdiction and detention hearing, the Bureau noted Father is a member of, or may be eligible for membership in, "the Mescalero and Apache Tribes." Paternal grandfather told a social worker that although he knew he had Indian ancestry, he did not know which tribe.
It is undisputed notice went out only to the Mescalero Apache tribe, not the other seven Apache tribes. (See 82 Fed.Reg. 4915-02 (Jan. 17, 2017) [listing eight federally recognized Apache tribes].) Given Father's and paternal grandfather's statements to the Bureau and the court, there was reason to know S.G. may be a member of, or eligible for membership in, one of the Apache tribes. Under these circumstances, the Bureau was required to notice all federally recognized Apache tribes, not just the Mescalero.
We next consider Mother's claim the notice failed to provide address, contact information, and birth date for paternal great-grandmother, and failed to detail any efforts to obtain further information on potential Indian ancestry through Mother's family. " '[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child's direct lineal ancestors.' " (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) An ICWA notice must include all available information about the child's parents, maternal and paternal grandparents and great-grandparents, especially those with Indian heritage, including maiden, married, and former names or aliases, birthdates, current and former address, and information about tribal affiliation and enrollment. (In re A.G., supra, 204 Cal.App.4th at pp. 1396-1397; In re Francisco W. (2006) 139 Cal.App.4th 695, 703; 25 U.S.C. § 1912(a); § 224.2, subd. (a)(5)(C).) Because of their critical importance, ICWA's notice requirements are strictly construed. (In re A.G., at p. 1397.) Further, a social worker has a duty to inquire about and obtain such information. (In re Breanna S. (2017) 8 Cal.App.5th 636, 652 [social worker has affirmative duty "to interview the child's parents, extended family members and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility"].)
As to paternal great-grandmother, the notice states she is "not deceased" and provides her first and last name and place of birth, but not her current or former address or date of birth. According to the notice, Father did not know her address but believed it is "somewhere in San Diego County." Paternal great-grandmother, however, is Father's mother's mother, and Father claims Indian ancestry only through his father. Accordingly, on this record, the court and the Bureau did not have any reason to believe obtaining additional information for paternal great-grandmother would make a difference in the outcome of the ICWA notice to the tribes. (See, e.g., In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414 [no prejudice in omitting information about paternal grandmother where there was no claim she had Indian heritage]; In re Cheyanne F. (2008) 164 Cal.App.4th 571, 575-577 [absence of information in ICWA notice regarding non-Indian relatives is subject to harmless error analysis].)
As to Mother's lineage, the issue is closer. Mother filed an ICWA-020 form indicating she is not aware of any Indian ancestry. However, maternal great-grandfather said, " '[M]y wife's side of the family had Indian ancestry, but I have no information about the tribe.' "
We acknowledge courts have rejected similar claims of Indian ancestry as too vague or attenuated to require ICWA notice. (See, e.g., In re J.D. (2010) 189 Cal.App.4th 118, 125 [ICWA notice not required where children's paternal grandmother said her own grandmother had told her she had Native American ancestry but she didn't know what tribe and had no living relatives who could provide further information]; In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1521 [father's claim of Indian heritage without naming the tribe and which he later retracted insufficient to require notice]; In re O.K. (2003) 106 Cal.App.4th 152, 155, 157 [grandmother's statement children "may" have Indian heritage, though unable to identify tribe or nation, was too vague and speculative to give court reason to believe they might be Indian children].) However, the level of certainty giving rise to a duty of inquiry is less than that required for notice. (See Michael V., supra, 3 Cal.App.5th at pp. 230, 234-236 [mother's statement she may have Indian ancestry through children's grandmother but could not remember which tribes was insufficient to require ICWA notice, but sufficient to trigger agency's duty to make further inquiry]; In re Alice M., supra, 161 Cal.App.4th at p. 1200 ["the 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"].) Because maternal great-grandfather's statement suggested his wife had Indian ancestry, the Bureau had an affirmative duty to follow up with extended relatives to obtain further information and conduct a meaningful investigation. (See rule 5.481(a)(4) [if social worker or court knows or has reason to know an Indian child is or may be involved, that person or entity must make further inquiry as soon as practicable]; Michael V., at pp. 235-236.) The record before this court does not reflect whether any such efforts were undertaken. Because we must remand for the reasons stated above, we do not determine this issue but leave it to the juvenile court to evaluate on an adequate evidentiary record.
Since we conclude we must conditionally reverse and remand as discussed above, we also need not resolve Mother's other claims of error with respect to the notice. We observe, however, a notice that provides inaccurate or incomplete information does not permit a tribe a meaningful opportunity to investigate its records. (See, e.g., In re Louis S. (2004) 117 Cal.App.4th 622, 630-631.) On remand, the Bureau shall verify (1) Father's birth date, (2) the correct spelling of Father's middle name, and (3) the correct spelling of paternal grandfather's first name, and (4) shall ensure the accuracy of this information in the notice to the extent it is available.
Where the sole error on appeal of a dependency court order is the failure to adequately investigate a child's Indian ancestry or to give notice in compliance with ICWA and related California law, the appropriate remedy is a conditional remand to the juvenile court with directions. On remand, the juvenile court shall order compliance with inquiry and notice provisions in ICWA and related state law. To the extent it has not already done so, the Bureau shall conduct a meaningful investigation of maternal great-grandmother's purported Indian ancestry, making genuine efforts to locate family members who may have more information. Once that investigation is completed, new notices—updated with any new information and corrected as to purported errors specifically identified in this opinion—must be provided to all federally recognized Apache tribes and any other tribes which are identified, the BIA, and the Secretary of the Interior. The Bureau shall thereafter notify the court of its actions and file certified mail return receipts for the new ICWA notices, together with any responses received. The court shall then determine whether ICWA and state law inquiry and notice requirements have been satisfied and whether S.G. is an Indian child. If the juvenile court finds S.G. is not an Indian child, it shall reinstate the original jurisdictional and dispositional order. If the court finds she is an Indian child, it shall set a new hearing and conduct all further proceedings in compliance with ICWA and related state law.
III. DISPOSITION
The finding of jurisdiction based on the section 300, subdivision (b) allegation Mother "has a chronic untreated mental health condition" is reversed and the references to "untreated mental health" in the section 300, subdivision (j) allegations are stricken. In all other respects, the jurisdictional and dispositional orders are conditionally affirmed. The matter is remanded to the juvenile court for compliance with the inquiry and notice provisions of ICWA and related California law as set forth above and for further proceedings consistent with this opinion.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.