Opinion
F070994 F071296
01-30-2017
In re R.R., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. E.D., Defendant and Appellant. In re R.R., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. R.R., Defendant and Appellant.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant, E.D. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant, R.R. Daniel C. Cederborg, County Counsel, David F. Rodriguez and Brent Woodward, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Sup. Ct. No. 13CEJ300338)
OPINION
(Fresno Sup. Ct. No. 13CEJ300338-2) THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Brian M. Arax, Judge. Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant, E.D. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant, R.R. Daniel C. Cederborg, County Counsel, David F. Rodriguez and Brent Woodward, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
In the present appeal, two parents raise challenges based on the Indian Child Welfare Act (ICWA) to a dependency court's order terminating their parental rights. We conclude the claims are not cognizable in this appeal and affirm.
FACTS
"Because compliance with the ICWA is the only issue raised in this appeal, our discussion of the facts and procedural background focuses on the facts relevant to compliance with the ICWA." (In re I.B. (2015) 239 Cal.App.4th 367, 370.)
Two-year old R. Rey ("Rey") was detained on November 17, 2013, pursuant to allegations her mother, E.D. ("Mother"), "non-accidentally" caused her "serious physical harm." A dependency petition was filed on November 19, 2013. An interlineation on the dependency petition identified appellant R.R. ("Father") as Rey's alleged father and indicated that he was incarcerated at Tehachapi Prison.
We suppress the minor's first name rather than her last because the spelling of her last name is pertinent to the issue raised in this appeal. Since we are not suppressing the minor's last name, we will suppress the first and last name of her parents.
The dependency petition also pertained to minor D.C., the child of Mother and another man.
The interlineation appears to have been made at the detention hearing on November 19, 2013.
An attachment to the dependency petition, signed by a social worker, reflected that Mother had indicated Rey may have Indian ancestry. In the "Summary of Information" section of the attachment, handwritten text reads: "Possible Apache & Mono." On November 18, 2013, Mother had indicated on a form that she herself might be a member of the "Apache/Mono/Cherokee" tribes.
The names of these tribes are handwritten. The third tribe is difficult to read, but both Mother and Father agree that the third tribe listed on the form is "Cherokee."
Father did not appear at the detention hearing, held on November 20, 2013. The court ordered the Fresno County Department of Social Services ("Department") to make further inquiry into the possible Indian heritage of Rey. The court also ordered the Department to send ICWA notices "to all Tribes of which the child may be a member or eligible for membership, and the" Bureau of Indian Affairs.
On February 24, 2014, the Department filed an ICWA notice that had been sent to several Indian tribes, the Bureau of Indian Affairs, and the U.S. Department of the Interior. The notice misspelled Rey's last name as "Ray." The notice correctly spelled Father's last name as "Rey."
The parties have identified 12 tribal responses in the record, each of which indicate that Rey was not a member of their respective tribe. In 11 of the responses, the tribe misspelled Rey's last name as "Ray." A twelfth tribe's response only indicated that Mother was not a member and did not spell Rey's name at all.
Father's appellate brief indicates that the North Fork Rancheria of Mono Indians of California spelled Rey's last name correctly. The record, however, shows that the tribe in fact misspelled Rey's last name.
On June 2, 2014, the Department filed a motion requesting the court declare ICWA inapplicable to the case. The Department also asserted that the ICWA did not apply in its June 2, 2014, disposition report.
The Department's ICWA motion was trailed several times. The matter was finally heard at the disposition hearing on September 8, 2014. At the hearing, Father's counsel submitted "with [no] objection." The court ruled that ICWA did not apply and scheduled a section 366.26 hearing.
The reporter's transcript reads: "On behalf of the father, we'll be submitting with on [sic] objection."
The court held a Welfare and Institutions Code section 366.26 hearing on February 17, 2015, and terminated Mother's and Father's parental rights. They both appeal the termination order.
Mother has not raised any independent issues in this appeal but instead joins in and adopts Father's arguments.
In an opinion filed February 11, 2016, this court affirmed the termination order. We did not reach the merits of Mother's and Father's ICWA claims because we concluded they had forfeited the issue pursuant to In re Pedro N. (1995) 35 Cal.App.4th 183 (Pedro N.). We noted in our prior opinion that the issue of forfeiture discussed in Pedro N. was pending before the California Supreme Court. Accordingly, the Supreme Court granted review of our opinion and held it pending resolution of the issue. On July 7, 2016, the Supreme Court issued its opinion in In re Isaiah W. (2016) 1 Cal.5th 1, wherein it disapproved Pedro N. (In re Isaiah W., supra, at p. 14.) The Supreme Court transferred review of the present case back to this court with directions to vacate our prior decision and reconsider the case. We do so now.
Father contends his counsel was ineffective for failing to "preserve" the ICWA issues. Because Pedro N. has been disapproved, we conclude counsel did not fail to preserve the ICWA issue.
Father also now claims that he has Apache ancestry, and that trial counsel should have "acquired" this information and informed the Department and the juvenile court. Father first raised this theory of ineffective assistance of counsel in his reply brief, and we reject it on that basis. (Lamar Central Outdoor, LLC v. City of Los Angeles (2016) 245 Cal.App.4th 610, 620.)
DISCUSSION
I. NEW ICWA NOTICES MUST BE SENT
Mother and Father argue the ICWA notices were inadequate because they misspelled Rey's last name.
Father now claims the Department also erroneously failed to inquire of him as to whether he had any Indian ancestry. In a supplemental brief, Father represents to this court that his maternal grandparents are "part" Apache. However, there is no indication Father brought his alleged Apache ancestry to the attention of the dependency court.
When the Department asserts to the dependency court that ICWA does not apply, an inference is raised that the Department has in fact inquired as to the parents' Indian heritage. (See In re S.B. (2005) 130 Cal.App.4th 1148, 1161 ["From the affirmative representation that the ICWA did not apply, it is fairly inferable that the social worker did make the necessary inquiry."]; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.) Once the Department makes this type of representation, there is "no obligation to make a further or additional inquiry absent any information or suggestion that the child might have Indian heritage." (In re Aaliyah G., supra, 109 Cal.App.4th at p. 942; see also In re S.B., supra, 130 Cal.App.4th at p. 1161 [After the Department asserted ICWA did not apply, "[t]he mother did not introduce any contrary evidence. Although her counsel argued that the social worker had not made any inquiry, the mother did not submit a declaration or otherwise testify to this effect." (Original italics)].) Absent evidence that Father did in fact present "information or suggestion that the child might have Indian heritage," there was no duty to make further inquiry. (See In re Aaliyah G., supra, 109 Cal.App.4th at p. 942.)
"Under the ICWA, where a State court 'knows or has reason to know' that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. [Citation.]" (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.) The notices must contain " 'enough information to be meaningful' " including, if known, " 'the Indian child's name ....' " (In re K.M. (2009) 172 Cal.App.4th 115, 119.)
"Since the failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, notice requirements are strictly construed. [Citation.] Notice is "absolutely critical" under the ICWA. [Citation.]" (In re Samuel P., supra, 99 Cal.App.4th at p. 1267.) "Thus the failure to provide proper notice is prejudicial error requiring reversal and remand. [Citations.]" (Ibid.)
The Department concedes that deficiencies in an ICWA notice are generally prejudicial but argues that they may be deemed harmless under some circumstances. The Department argues the error in this case was harmless because while the child's name was misspelled, Father's name was spelled correctly. We disagree. While Father's name was correctly spelled, the ultimate issue is whether the child is a member or eligible for membership in a tribe. And there is no indication that the correct spelling of Father's name alerted the tribes to the incorrect spelling of the child's name. To the contrary, 11 of the responses from the tribes misspelled the child's name, suggesting the tribes conducted their inquiries under the impression Rey's name was spelled with an "a" even though her father's name was spelled with an "e."
In a supplemental brief, the Department notes that the minor's name was spelled correctly in various attachments to the ICWA notices. But, again, the fact that the tribes' responses misspell the child's name indicates that the correct spelling in the ICWA attachments did not alert them to the misspelling in the notice itself. --------
The Department also notes that the notices correctly identified the child's date of birth. But this cannot render the misspelling harmless absent evidence that all of the tribes conduct their ICWA searches by date of birth in addition to - or instead of - a search by name.
We cannot conclude that misspelling the child's last name was "harmless" to the tribes' ability to search their records to determine whether she was an Indian child. Accordingly, we will remand so that proper ICWA notices may be sent. If no tribe claims the child, the termination of parental rights may be reinstated.
DISPOSITION
The judgment terminating parental rights is conditionally reversed, and the case is remanded to the juvenile court with directions to order the Department to comply with the notice provisions of ICWA, consistent with this opinion. If, after proper notice, a tribe claims Rey is an Indian child, the juvenile court shall proceed in conformity with the ICWA. If no tribe claims Rey is an Indian child after receiving proper notice, the judgment terminating parental rights shall be immediately reinstated. In all other respects, the order is affirmed.