Opinion
A153124
08-21-2018
In re U.M., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. X.F., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J17-00154)
This is an appeal from the juvenile court's order terminating the parental rights of appellant X.F. (mother) to her biological child U.M. (minor). For the reasons stated herein, we reverse the order and remand the matter to the juvenile court for the limited purpose of ensuring compliance with the notice and inquiry provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (hereinafter, ICWA).
Minor's father is not a party to these proceedings and is, therefore, only mentioned in passing.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2017, the Contra Costa County Children and Family Services Bureau (the agency) filed a juvenile dependency petition, alleging that two-year-old minor came within Welfare and Institutions Code section 300, subdivision (b)(1) (failure to protect) and subdivision (j) (sibling abuse or neglect). According to the petition, mother was found by police walking in the rain with minor late at night while under the influence of an illicit substance, and had thereby placed minor at substantial risk of serious physical harm or illness. In addition, it was alleged mother had previously failed to reunify with minor's half-siblings due to her chronic substance abuse issues. A contemporaneous police report indicated mother was found on the night in question confused and disheveled, with track marks on her arms while carrying a filthy-clad minor. The responding officer sought to place minor in protective custody based upon this and other encounters with mother.
Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code. Unless otherwise stated, all citations to Rule(s) herein are to the California Rules of Court.
The section 300 petition noted that a social worker had spoken with minor's great-grandmother (B.M.), who stated her adoptive son, John, who was mother's father, had Indian ancestry of unknown tribal origin. In addition, the agency's detention report stated mother had indicated she may have Indian ancestry, and consistent with this report, mother had later filed an ICWA-020 form in these proceedings.
At the subsequent detention hearing, the juvenile court found a prima facie showing had been made that minor came within the identified provisions of section 300, and thus ordered him detained and placed temporarily in the agency's custody.
In March 2017, a contested jurisdictional hearing was held (and later continued to April 2017). Among other things, the juvenile court found true the allegations and sustained the petition under section 300, subdivisions (b)(1) and (j).
In June 2017, a contested dispositional hearing was held. In anticipation of this hearing, the agency filed a report which, among other things, stated that an ICWA-030 form had been sent to maternal great-grandmother, J.G., who had then provided the agency with contact information for her former husband, C.D., but that C.D. refused to be interviewed by the agency. This report also stated that in 2008 and 2010 dependency proceedings involving minor's half-siblings, T.T. and G.S., mother had claimed potential Blackfeet, Siskiyou and Yakama heritage with respect to T.T. and Blackfeet and Yakama heritage with respect to G.S. In these prior proceedings, ICWA notices were sent to the Bureau of Indian Affairs (BIA), the Secretary of the Interior, the Blackfeet Nation, and the Yakama Nation with respect to the half-siblings. Ultimately, however, both of minor's half-siblings were determined by the juvenile court to be non-Indian children.
The dispositional report further indicated mother had attended nine of 12 weekly visits with minor, and that social workers had trouble scheduling a meeting with mother prior to the hearing. The agency recommended no reunification services be provided pursuant to section 361.5, subdivisions (b)(10) and (b)(13).
At the June 2017 contested dispositional hearing, the court questioned maternal great-grandmother, J.G., about minor's potential Indian heritage. J.G. advised the court that her former husband, C.D., had Native American ancestry, but that he was terminally ill and she did not recall the name of his tribe, but did recall he was from Yakima, Washington. J.G. then stated that her mother-in-law may have more information, and the juvenile court thus set an ICWA compliance hearing for August 2017 and directed the social worker to follow up with J.G. and to further investigate C.D.'s heritage. Following this hearing, the juvenile court found by clear and convincing evidence that services should be bypassed pursuant to section 361.5, subdivisions (b)(10), (b)(11) and (b)(13), and that such services were not in minor's best interest pursuant to section 361, subdivision (c). In addition, the court ordered monthly supervised visitation for mother, granting the agency discretion to liberalize the schedule. The juvenile court then set the matter for a section 366.26 permanency planning hearing.
In June 2017, mother filed a notice of intent to file a writ petition to challenge the dispositional order and the setting of the section 366.26 hearing. Thereafter, in July 2017, she filed the petition, which this court denied in September 2017 in a nonpublished decision. (X.F. v. Superior Court (Sep. 28, 2017, A151741) [nonpub. opn.].)
At the ICWA compliance hearing in August 2017, the juvenile court acknowledged that ICWA-030 notices had been sent by certified mail in June 2017 to the BIA and Secretary of the Interior, but not to any tribal entities. These notices included the names and potential Indian heritage of mother, maternal grandmother (V.D.), and maternal grandfather (J.F.), but did not identify any specific potential tribal affiliations or provide J.F.'s contact information or place of birth. These notices also provided limited biographical information for maternal great-grandmother J.G. (but not maternal great-grandmother B.M.), and for maternal great-grandfather C.D. In July 2017, the BIA responded to these ICWA-030 notices as follows: "We are returning your letter of inquiry due to insufficient information to determine tribal affiliation (25 C.F.R. 23.11(d)) or you have not identified a tribe. When additional information becomes available, please forward the Notice to the appropriate tribe(s) . . . ." (Underscoring omitted.)
Mother, present at the ICWA compliance hearing, provided the last name of one of her relatives who had Indian ancestry based in Washington State. The court then ordered mother to provide additional ICWA-related information to the agency within nine days.
At the subsequent contested section 366.26 hearing, held in October 2017, the juvenile court considered evidence that minor appeared content and thriving in the home of his adoptive parents. With respect to minor's possible placement with the maternal grandmother, the section 366.26 report noted, among other things, that she had a troubling child welfare history and did not complete all of her required classes to be eligible for minor's placement.
With respect to the ICWA, the county counsel erroneously stated that the juvenile court found in August 2017 that the ICWA did not apply. Over mother's objection, the court then held the ICWA inapplicable. Following the section 366.26 hearing, the juvenile court found minor likely to be adopted and terminated mother's parental rights to him. This appeal followed.
DISCUSSION
There is a single issue before us—to wit, whether the inquiry and notice requirements of the ICWA were met by the agency and the juvenile court in this case prior to the termination of mother's parental rights. The agency concedes there was a failure to comply with the ICWA, and we agree. Accordingly, for the reasons that follow, we reverse the order and remand the matter to the juvenile court to fully comply with the ICWA in this case.
"In the context of juvenile dependency proceedings, notice to Indian tribes is governed by both federal and state law." (In re Alice M. (2008) 161 Cal.App.4th 1189, 1197.) Specifically, "[t]he ICWA (25 U.S.C. §§ 1901-1963) was enacted for ' "the protection of the best interests of Indian children, and the promotion of stable and secure Indian tribal entities. [Citation.]" ' (In re Crystal K. (1990) 226 Cal.App.3d 655, 661 .)" (In re Riva M. (1991) 235 Cal.App.3d 403, 410.) "[T]he ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(a)-(c), 1912-1921.) '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).) 'Indian tribe' is defined so as to include only federally recognized Indian tribes. (25 U.S.C. § 1903(8).)" (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.)
In enacting the ICWA, "Congress declared that 'it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.' (25 U.S.C. § 1902.)" (In re Riva M., supra, 235 Cal.App.3d at p. 410.)
To accomplish these goals, under the ICWA, an Indian tribe has the right to intervene or a qualified right to transfer a proceeding to its jurisdiction in certain involuntary actions involving children residing off the reservation. (25 U.S.C. § 1911; In re Riva M., supra, 235 Cal.App.3d at p. 410; In re Baby Girl A. (1991) 230 Cal.App.3d 1611, 1616.) Further, under 25 U.S.C. § 1912(f), "[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (See also In re Riva M., supra, 235 Cal.App.3d at p. 410; 25 U.S.C. § 1912(a).)
"Concerning notice, the 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 [Bureau of Indian Affairs (BIA)] 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 [BIA] . . . .' (25 U.S.C. § 1912(a); see also 25 U.S.C. §§ 1a, 1903(11).)" (In re Jonathon S., supra, 129 Cal.App.4th at p. 338; see also In re Junious M. (1983) 144 Cal.App.3d 786, 793.)
"To enforce this notice provision, the ICWA further provides: 'Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section[] . . . 1912 . . . of this title.' (25 U.S.C. § 1914.)" (In re Jonathon S., supra, 129 Cal.App.4th at p. 338.)
"This court has characterized notice as a 'key component of the congressional goal to protect and preserve Indian tribes and Indian families.' (In re Kahlen W. [(1991)] 233 Cal.App.3d [1414,] 1421.)" (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) "Without notice, the[] important rights granted by the [ICWA] would become meaningless." (In re Kahlen W., supra, 233 Cal.App.3d at p. 1421.) That said, "[t]he ICWA notice requirement is not onerous. '[C]ompliance requires no more than the completion of a preprinted form promulgated by the State of California, Health and Welfare Agency [now the Health and Human Services Agency], for the benefit of county welfare agencies.' (In re Desiree F., supra, 83 Cal.App.4th at p. 475.) When proper notice is not given under the ICWA, the court's order is voidable. (25 U.S.C. § 1914.)" (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254, italics added.)
Sections 224.2 and 224.3, enacted in 2006, codify into state law the ICWA guidelines promulgated by the BIA that set forth specific categories of information a state agency should include in the notice required under the ICWA. (25 C.F.R. 23.11; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 678 (2005-2006 Reg. Sess.) as amended June 14, 2006, p. 12; see also In re J.T. (2007) 154 Cal.App.4th 986, 993.)
Section 224.2 provides in relevant part: "(a) If the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under this code shall be sent to the minor's parents or legal guardian, Indian custodian, if any, and the minor's tribe and comply with all of the following requirements:
"(1) Notice shall be sent by registered or certified mail with return receipt requested. Additional notice by first-class mail is recommended, but not required. [¶] . . . [¶]
"(4) Notice, to the extent required by federal law, shall be sent to the Secretary of the Interior's designated agent, the Sacramento Area Director, Bureau of Indian Affairs. If the identity or location of the parents, Indian custodians, or the minor's tribe is known, a copy of the notice shall also be sent directly to the Secretary of the Interior, unless the Secretary of the Interior has waived the notice in writing and the person responsible for giving notice under this section has filed proof of the waiver with the court.
"(5) In addition to the information specified in other sections of this article, notice shall include all of the following information:
"(A) The name, birthdate, and birthplace of the Indian child, if known.
"(B) The name of the Indian tribe in which the child is a member or may be eligible for membership, if known.
"(C) All names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.
"(D) A copy of the petition by which the proceeding was initiated.
"(E) A copy of the child's birth certificate, if available.
"(F) The location, mailing address, and telephone number of the court and all parties notified pursuant to this section.
"(G) A statement of the following:
"(i) The absolute right of the child's parents, Indian custodians, and tribe to intervene in the proceeding.
"(ii) The right of the child's parents, Indian custodians, and tribe to petition the court to transfer the proceeding to the tribal court of the Indian child's tribe, absent objection by either parent and subject to declination by the tribal court.
"(iii) The right of the child's parents, Indian custodians, and tribe to, upon request, be granted up to an additional 20 days from the receipt of the notice to prepare for the proceeding.
"(iv) The potential legal consequences of the proceedings on the future custodial and parental rights of the child's parents or Indian custodians.
"(v) That if the parents or Indian custodians are unable to afford counsel, counsel will be appointed to represent the parents or Indian custodians pursuant to Section 1912 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).
"(vi) That the information contained in the notice, petition, pleading, and other court documents is confidential, so any person or entity notified shall maintain the confidentiality of the information contained in the notice concerning the particular proceeding and not reveal it to anyone who does not need the information in order to exercise the tribe's rights under the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.)." (§ 224.2, subd. (a), italics added.)
Section 224.3, in turn, provides in relevant part: "(a) The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care. "(b) 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, an officer of the court, a tribe, an Indian organization, a public or private agency, 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. [¶] . . . [¶] "(c) If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer 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 to gather the information required in paragraph (5) of subdivision (a) of Section 224.2, contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility. "(d) If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer shall provide notice in accordance with paragraph (5) of subdivision (a) of Section 224.2." (§ 224.3, italics added.)
Finally, current Rule 5.481 provides in relevant part that if the Department of Social Services "knows or has reason to know that an Indian child is or may be involved, [it] must make further inquiry as soon as practicable by," among other things, "[c]ontacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility." (Rule 5.481(a)(4)(C), italics added.) Further, "[i]f it is known or there is reason to know that an Indian child is involved in a proceeding . . . , the court must send Notice of Child Custody Proceeding for Indian Child (form ICWA-030) to . . . the Indian child's tribe, in the manner specified in Welfare and Institutions Code section 224.2 . . . ." (Rule 5.481(b)(1).)
In this case, mother contends the agency failed to fulfill certain mandatory investigatory duties under section 224.3, subdivision (c), including its duty to make further inquiry regarding minor's potential Indian heritage given the available information indicating that certain maternal relatives had Indian ancestry. In addition, mother contends the ICWA-030 notices accepted by the juvenile court failed to include information required by section 224.2, subdivision (a)(5). Without conceding all of mother's arguments, the agency does concede limited remand is necessary "to inquire of all maternal relatives for whom [the agency] has contact information about their knowledge of the child's alleged Native American ancestry."
The record, set forth above, supports the need for remand in this case. Briefly stated, as the agency appears to concede, there were clearly indications in this case that mother's maternal relatives may have had Indian ancestry, including, possibly, Yakama and Blackfeet, two tribes mother herself identified in prior dependency proceedings. The agency should have further investigated these leads in accordance with section 224.3, subdivision (c), and the juvenile court should not have accepted the ICWA-030 form and terminated mother's parental rights in this case without first ensuring all the information reasonably available and required under section 224.2, subdivision (a)(5), was included. Accordingly, we reverse the order terminating parental rights and remand this matter to the juvenile court to ensure the agency has complied with the ICWA's inquiry and notice requirements.
DISPOSITION
The order terminating mother's parental rights is reversed. The case is remanded to the juvenile court with directions to comply with the inquiry and notice provisions of the ICWA, if it has not already done so. If, after proper inquiry and notice, the juvenile court finds that U.M. is an Indian child, the court shall proceed in conformity with the ICWA. If, however, after proper inquiry and notice, the juvenile court finds U.M. is not an Indian child, the order terminating mother's parental rights and selecting adoption as the permanent plan shall be reinstated. (In re Alice M., supra, 161 Cal.App.4th at p. 1203.)
/s/_________
Jenkins, J. We concur: /s/_________
Siggins, P. J. /s/_________
Pollak, J.