Opinion
F079447
02-25-2020
In re R.G., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. RICHARD G. et al., Defendants and Appellants.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant Richard G. Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Valerie C. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09CEJ300230-6)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. William Terrence, Judge. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant Richard G. Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Valerie C. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Meehan, J.
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Valerie C. (mother), with Richard G. (father) joining, appeals from the juvenile court's June 12, 2019, Welfare and Institutions Code, section 366.26 order terminating parental rights to their son, R.G. Mother and father charge the juvenile court with errors under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law, and they argue that we must conditionally reverse and remand for proper ICWA inquiry and notice. Respondent concedes and we agree.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
A recitation of the facts of the dependency petition are brief, as the only issue is one of ICWA compliance.
Overview of R .G.'s Dependency
In July of 2018, R.G. came to the attention of the Fresno County Department of Social Services (department) when he tested positive for methamphetamine at birth, had had no prenatal care, and required treatment for syphilis. Mother had three other children also born exposed to methamphetamine in utero. Mother's previous history with the department included three older children who were removed from her care due to drug use in September of 2011. In January of 2013, her parental rights were terminated and those children placed for adoption. In December of 2012, another child was removed from mother's care and her parental rights terminated and the child placed for adoption. And in October of 2016, still another child was removed from her care. In June of 2017, her parental rights were terminated and that child also placed for adoption. Mother had an extensive criminal history, as did father. The department had concerns about mother's continued drug use, despite having had previous services offered, and recommended R.G. be removed from her care.
It does not appear that father is the father of any of R.G.'s older siblings.
Mother reported to the social worker that she may have Native American ancestry with the Chukchansi tribe, but was not registered. According to the department, prior dependency proceedings determined that ICWA did not apply. It does not appear from the record that mother completed a parental notification of Indian status form (ICWA-020).
Neither mother nor father were present at the July 18, 2018, detention hearing. The juvenile court found a prima facie case had been made to remove R.G. from mother's care. Twice weekly supervised visits were ordered. No mention of R.G.'s possible Native American heritage was made at the hearing. Jurisdiction/Disposition
The report prepared in anticipation of jurisdiction/disposition stated that R.G. was placed in a home with care providers who had adopted all of his biological siblings. The department recommended mother be denied services pursuant to section 361.5, subdivision (b)(11) and (13) and father be denied services and placement pursuant to section 361.2, subdivision (a).
Section 361.5, subdivision (b)(11) provides that reunification services need not be offered a parent whose parental rights have been terminated as to a sibling or half sibling of the child at issue. Section 361.5, subdivision (b)(13), provides that reunification services need not be provided a parent with a history of extensive, abusive and chronic drug use and previous resistance to court-ordered treatment.
Section 361.2, subdivision (a), provides that the juvenile court need not place a child with a noncustodial parent if it finds placement would be detrimental to the child.
The department requested that the juvenile court make a finding that the ICWA did not apply, as mother was not a registered member of the Chukchansi tribe and the ICWA had been found not to apply in a previous dependency case, and father reported, in a telephone interview, that he did not have Indian ancestry. Father was to attend an upcoming meeting at the department and complete an ICWA-020 form, but he failed to show.
Mother and father were not present for the August 29, 2018, combined jurisdiction/disposition hearing. The juvenile court sustained the allegations in the amended petition; found clear and convincing evidence that placement in mother's home was contrary to R.G.'s welfare; that reasonable efforts were provided by the department; and that there was no reasonable means to protect R.G. if he were returned to mother. R.G. was removed from mother's home, monthly supervised visits were ordered, and mother was denied services pursuant to section 361.5, subdivision (b) (11) and (13).
At the hearing, the department requested that the juvenile court find the ICWA inapplicable. The department advised the juvenile court that mother claimed membership in the "same tribe" in which ICWA was found inapplicable in a previous dependency case involving her other children. The juvenile court then found that R.G. did not come within the provisions of the ICWA. Section 366 .26 Hearing
The department recommended termination of parental rights and adoption. R.G., who was placed in the same foster home into which all five of his siblings had been adopted, was thriving. He had no medical concerns and was exhibiting no developmental delays. The foster parents were interested in adoption. Neither mother nor father ever visited R.G. since removal.
Father made his first appearance, in custody, at the December 12, 2018 selection and implementation hearing. The hearing was continued to February 13, 2019, and DNA testing ordered for father, as he was listed as an alleged father. Subsequent DNA testing determined that he was R.G.'s biological father.
Mother, who was also in custody, made her first appearance at the February 13, 2019, hearing and was appointed counsel. The continued selection and implementation hearing was rescheduled several times. At the June 12, 2019 hearing, both mother and father objected to termination of parental rights, but did not present any evidence or testimony. The juvenile court found clear and convincing evidence that R.G. was likely to be adopted, and ordered termination of parental rights and placement of R.G. for adoption.
DISCUSSION
ICWA requires notice to Indian tribes "in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights 'where the court [or social worker] knows or has reason to know that an Indian child is involved.'" (In re Isaiah W. (2016) 1 Cal.5th 1, 8; 25 U.S.C. § 1912(a); accord Welf. and Inst. Code, § 224.3, subd. (a).) The tribe to which the child belongs, or in which the child may be eligible for membership, must receive "notice of the pending proceedings and its right to intervene." (In re H.B. (2008) 161 Cal.App.4th 115, 120; accord § 224.3, subd. (a)(3)(A).)
The juvenile court and the department have an "affirmative and continuing duty to inquire" whether a child in dependency proceedings "is or may be an Indian child." (§ 224.2, subd. (a).) If the court or social worker has reason to believe that an Indian child is involved, the social worker must, as soon as practicable, interview the parents and extended family members to gather the information required for the ICWA notice. (§§ 224.2, subd. (e)(1), 224.3, subd. (a)(5).)
ICWA notices "shall include," among other things, the identifying information for the child's biological parents, grandparents, and great grandparents, to the extent known. (§ 224.3, subd. (a)(5)(C).) The notices should "provide the Indian tribe with all available information about the child's ancestors, especially the ones with the alleged Indian heritage." (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
The department must send notice of all hearings until the court determines that ICWA does not apply. (§§ 224.2, subd. (i)(1), 224.3, subd. (b).) Before finding ICWA inapplicable, the court must find that the department conducted a "proper and adequate further inquiry" and exercised "due diligence to identify and work with" all of the pertinent tribes. (§ 224.2, subds. (i)(2), (g).) The court "must have sufficient facts, as established by the [department], about the claims of the parents, the extent of the inquiry, the results of the inquiry, the notice provided any tribes and the responses of the tribes to the notices given. Without these facts, the juvenile court is unable to find, explicitly or implicitly, whether" ICWA applies. (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
Even if the juvenile court has determined that ICWA does not apply, if the court or social worker receives new information that was required to be in the ICWA notice, the social worker shall provide the new information to the pertinent tribes. (§ 224.2, subd. (j).) Failure to comply with the ICWA notice provisions generally constitutes prejudicial error requiring a limited remand. (In re B.H. (2015) 241 Cal.App.4th 603, 608-609; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
This case requires a limited remand for ICWA compliance. The department and the juvenile court knew that mother claimed possible Native American heritage with the Chukchansi tribe. Yet the record reveals no efforts by the department to contact mother's extended family members, gather the information required for ICWA notices, and send notice to the pertinent tribe(s). Similarly, the court did not direct the department to inquire further or send notice to the tribes. Moreover, the juvenile court's order finding that ICWA did not apply—based on the court's general adoption of the department's recommendations—was not supported by substantial evidence. (§ 224.2, subd. (i)(2) [ICWA findings "subject to reversal based on sufficiency of the evidence"]; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467 [reviewing ICWA findings for substantial evidence].) The court had no facts on which to base an ICWA finding in the absence of information about the department's investigation and notice to the tribes. (In re L.S., supra, 230 Cal.App.4th at p. 1198.)
The department concedes that it did not comply with the ICWA notice requirements. The record of the siblings' case is not before us, and nothing in the record of R.G.'s case shows a finding that ICWA does not apply to his siblings. Even assuming that the siblings' record was before us, collateral estoppel would not apply. The doctrine "precludes a party from relitigating in a second proceeding the matters litigated and determined in a prior proceeding." (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201, fn. 1.) For the doctrine to apply, "the issue necessarily decided in the previous proceeding" must be "identical to the one that is sought to be relitigated." (Ibid.) The issues are not identical here—whether the department conducted a diligent investigation and gave proper notice in the siblings' case and whether the department did so in this case are separate questions. The answers must be based on the record of the department's efforts in each case.
In addition, the claimed finding in the siblings' case does not mean that the ICWA noncompliance here was necessarily harmless. "It is important to not lose sight of the fact that ICWA notices in separate dependency cases are not fungible evidence—even when the separate cases involve [children] who share the same parent with Indian heritage." (In re Robert A. (2007) 147 Cal.App.4th 982, 990.) We do not know whether R.G.'s ICWA notices would have any new information because the department did not follow up with mother or her extended family members. Likewise, we do not know whether the Chukchansi tribe might have changed their membership criteria since the time they received the notices relating to R.G.'s siblings. We decline to speculate about what the result would have been and therefore cannot say that the ICWA errors were harmless. (In re N.G. (2018) 27 Cal.App.5th 474, 485 [concluding that ICWA error was prejudicial and observing that "on a deficient record such as this one, we simply cannot know whether [the department] would have discovered information sufficient to enable any of the previously noticed tribes to determine whether [the minor] is an Indian child"].)
On remand, the juvenile court shall ensure that the department further investigates mother's claim of Indian ancestry. (§ 224.2, subds. (a), (e).) The court must then decide whether the information amounts to "reason to know" that R.G. is an Indian child, thereby triggering the notice requirement. (25 U.S.C. § 1912(a); Welf. and Inst. Code, § 224.3, subds. (a), (b).) In this regard, we note that the Legislature has recently amended the definition of "reason to know." (Assem. Bill No. 3176 (2017-2018 Reg. Sess.) § 5.) Before January 1, 2019, a "reason to know" could be based on "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." (Former § 224.3, subd. (b)(1).) Effective January 1, 2019, the mere suggestion of eligibility for membership as to the child—or the mere suggestion of membership as to the parents, grandparents, or great-grandparents—no longer provides a reason to know that the court is dealing with an Indian child. (§ 224.2, subd. (d).) Now, the amended statute declares that there is reason to know an Indian child is involved if, for instance, "[a] person having an interest in the child ... informs the court that the child is an Indian child." (§ 224.2, subd. (d)(1), italics added.) The changes to the statute conform the definition of "reason to know" to the definition in federal regulations promulgated in 2016. (25 C.F.R. § 23.107(c)(2); In re Breanna S. (2017) 8 Cal.App.5th 636, 650, fn. 7; Assem. Com. on Human Services, Analysis of Assem. Bill No. 3176 (2017-2018 Reg. Sess.) Apr. 10, 2018, p. 8.) The juvenile court should consider the new definition of "reason to know" when determining whether the notice requirement is triggered.
The amended statute, as amended further effective January 1, 2020, describes six circumstances providing reason to know an Indian child is involved: "(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 informs the court that the child is an Indian child. [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village. [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child. [¶] (4) The child who is the subject of the proceedings gives the court reason to know that the child is an Indian child. [¶] (5) The court is informed that the child is or has been a ward of a tribal court. [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d).)
We recognize that mother's cursory suggestion of Chukchansi ancestry might be merely a ploy to complicate and delay these proceedings, and "[w]e are sympathetic to the proposition that further delay in finality of this matter is detrimental to the child." (In re B.H., supra, 241 Cal.App.4th at p. 607.) At the same time, we cannot ignore the duty of inquiry under ICWA, which is well settled and clear. We must remand for the juvenile court and the department to fulfill their "affirmative and continuing duty" of inquiry (§ 224.2, subd. (a)) and for the department to notice the pertinent tribe(s), if required.
DISPOSITION
The order terminating parental rights is conditionally reversed. On remand, the juvenile court shall (1) direct the department to further investigate mother's claim of Indian ancestry and (2) decide whether the inquiry reveals reason to know that R.G. is an Indian child. If the court determines that there is reason to know R.G. is an Indian child, the court shall direct the department to send notice to the pertinent tribe(s). After the department updates the juvenile court on its inquiry and responses from the tribe(s), the court shall determine whether ICWA applies to R.G. If the court determines that ICWA does not apply—either because the department's inquiry reveals no reason to know that R.G. is an Indian child or because the tribes' responses show that R.G. is not an Indian child—the court shall reinstate the order terminating parental rights. If the juvenile court determines that ICWA applies, it shall proceed in conformity with ICWA and related California law.