Opinion
A158515
05-18-2020
In re C.L. et al., Persons Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, CHILD WELFARE SERVICES BRANCH, Plaintiff and Respondent, v. C.G., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. JV180073-1, JV1800732)
Mother appeals an order terminating her parental rights to her now eight- and five-year-old daughters. Mother claims only that the juvenile court erroneously failed to ensure that the Humboldt County Department of Health and Human Services (the department), fully investigated the children's maternal lineal ancestry and gave adequate notices of the proceedings to all federally recognized Cherokee tribes and to the Bureau of Indian Affairs (BIA), pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law (Welf. & Inst. Code, § 224 et seq.). The department concedes that "the record on appeal does not evidence adequate ICWA compliance by the department nor does it support the juvenile court's finding that ICWA did not apply" so that "a limited reversal of the order terminating parental rights and remand to the juvenile court is necessary in this matter to ensure ICWA compliance." We agree and, accordingly, conditionally reverse the judgment.
All statutory references are to the Welfare and Institutions Code unless otherwise noted. --------
Background
On April 5, 2018, the department filed a petition alleging the children were at risk of harm under section 300, subdivisions (b)(1) and (g). The children were detained the following day. At the detention hearing, mother reported that she did not have any Indian ancestry and the court found that ICWA did not apply. A few days later, however, the social worker spoke with the maternal grandmother who reported there was Cherokee heritage in her family and provided the social worker with supporting online genealogy information.
On May 2, 2018, the court assumed jurisdiction over the children pursuant to section 300, subdivision (b)(1). At the dispositional hearing, the court ordered the children removed from mother's custody and ordered reunification services for mother. According to the dispositional report, the department sent an ICWA notice "out on or about 06/05/18." The report does not indicate to whom the notice was sent and the record does not include copies of the notice. The court's order indicates that the court had found at the detention hearing that ICWA does not apply and that no new information had been received regarding Indian ancestry.
At the six-month review hearing, the court found that mother had made adequate progress with services and continued the services. In advance of the hearing the department recommended "that the court continue to find ICWA does not apply given no other information has been provided to the department regarding Native American ancestry and it has been over 60 days since the ICWA [notices] were sent and the department has not received any responses from any of the Cherokee bands." Confusingly, the report also states that "No notice was sent to any of the Cherokee bands." The court adopted the department's recommendation again finding that ICWA did not apply.
Although mother continued to make some progress during the second review period, based on her continued use of alcohol and methamphetamine, the court terminated reunification services and set a section 366.26 hearing.
At the section 366.26 hearing, the juvenile court terminated mother's parental rights. Mother timely filed a notice of appeal.
Discussion
"In any involuntary proceeding in a State court, where 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 parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 5.) "This notice requirement . . . enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding." (In re Isaiah W., at p. 5.)
Federal regulations implementing ICWA provide that the notice "must include," in addition to information about the child and his or her parents, " '[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents.' " (25 C.F.R. §§ 23.11(a), 23.111(d)(1)-(3)) Section 224.3 "codifies and elaborates on ICWA's requirements of notice to a child's parents or legal guardian, Indian custodian, and Indian tribe, and to the BIA." (In re Isaiah W., supra, 1 Cal.5th at p. 9.) Section 224.3, subdivision (a)(5)(C), requires ICWA notices to include "[a]ll 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 information of other direct lineal ancestors of the child, and any other identifying information, if known."
Section 224.2, subdivision (a) "provides that courts and county welfare departments 'have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . 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.' " (In re Isaiah W., supra, 1 Cal.5th at p. 9.) "This affirmative duty is triggered whenever the child protective agency or its social worker 'knows or has reason to know that an Indian child is or may be involved' [citation], and obligates the social worker, as soon as practicable, 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." (In re Breanna S. (2017) 8 Cal.App.5th 636, 652; Cal. Rules of Court, rule 5.481(a)(4).) Section 224.2, subdivision (i)(2) provides: "If the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings."
The department acknowledges that the record does not contain sufficient documentation of its compliance with ICWA so that the court's ICWA finding cannot be upheld. It is impossible to determine on this record whether and to whom any notices were sent and what information was contained in any such notices. Accordingly, the order terminating parental rights must be conditionally reversed and the matter remanded with directions to the court to ensure ICWA compliance.
Mother also contends that despite having been provided a genealogy report from www.ancestry.com reflecting the maternal grandmother's family tree and her Indian ancestry, the department failed to conduct any further inquiry of the parents or extended family members to gather additional information. It is impossible to review the adequacy of the department's investigation on the record before us. On remand, the sufficiency of the department's investigation should be addressed and further investigation conducted, if warranted.
DISPOSITION
The order terminating mother's parental rights is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry and notice provisions of ICWA and of sections 224.2 and 224.3. On remand, the court must ensure that the department has fully investigated the children's maternal lineal ancestry and that the relevant tribes and the BIA have been given sufficient notice of the proceedings. If, after receiving ICWA notice as required by sections 224.2 and 224.3, a tribe or the BIA does not respond to the ICWA notices, or respond that the children are not Indian children, the order terminating parental rights shall be reinstated and further proceedings shall be conducted, as appropriate. If any tribe or the BIA determines the children are Indian child, the court shall proceed accordingly.
POLLAK, P. J. WE CONCUR: STREETER, J.
BROWN, J.