Opinion
C093460
07-19-2021
In re B.M. et al., Persons Coming Under the Juvenile Court Law. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.S., Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. JV20193841, JV20193842
RENNER, J.
S.S., mother of the minors (mother), challenges the juvenile court's order terminating parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) She contends the juvenile court and the Yolo County Health and Human Services Agency (Agency) failed to comply with the requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
Because the sole issue on appeal is ICWA compliance, a detailed recitation of the non-ICWA related facts and procedural history is unnecessary to our resolution of this appeal.
In December 2019, the Agency removed the one-month-old twin minors, B.M. and R.M. (minors), and filed dependency petitions on their behalf pursuant to section 300, subdivisions (a), (b), and (e). At that time, the Agency inquired of the parents about possible Native American ancestry. Neither parent provided a response. The paternal grandmother indicated she had no known Indian ancestry and she denied any known Indian ancestry for the paternal grandfather, who she identified as “half white and half Taiwanese.” The paternal grandmother also stated that, to her knowledge, mother had no Indian ancestry, noting mother's family “is Mexican and Asian.” The court ordered the minors detained and found the ICWA may apply.
The Agency's January 2020 jurisdiction report stated the Agency was continuing to investigate whether the ICWA applied and had made inquiry of various individuals. The report reiterated the paternal grandmother's statements. Father denied any Indian ancestry and signed an ICWA-020 form to that effect. Mother reported having Indian ancestry on her side of the family but was unable to recall which relative carried the heritage or which tribe was involved. Mother signed an ICWA-020 form indicating her father's great-grandmother was a member of the Comanche Tribe. The social worker spoke with the maternal grandmother about any possible Indian ancestry, and the maternal grandmother “provided the information in an e-mail.” While the specific contents of the email were not made a part of the record on appeal, the record does reveal that any information provided in the maternal grandmother's email was subsequently provided by the Agency to the Comanche Nation. The social worker also contacted the Comanche Nation regarding the minors' possible Indian heritage. The Comanche Nation requested that the social worker send her inquiry in an email, which the social worker did on December 31, 2019. As of the date of the report, there had been no response from the Comanche Nation.
On March 9, 2020, following a contested jurisdiction hearing, the court sustained the allegations in the petitions and adjudged the minors dependents of the juvenile court.
The March 25, 2020 disposition report recommended the court bypass both parents for reunification services pursuant to section 361.5, subdivisions (b)(5) and (b)(6) and set the matter for a section 366.26 hearing. The Agency reported it was continuing its ICWA investigation and that, since its last report, the Agency had received a responsive email from the Comanche Nation stating that, based on the information provided, the minors were not eligible for enrollment in the tribe.
The contested disposition hearing commenced on June 1, 2020. The court bypassed the parents for services and set the matter for a section 366.26 hearing but made no ICWA findings.
On August 5, 2020, the Agency filed a notice of child custody proceeding for Indian child (ICWA-030) for each minor. The identical notices included the names, current addresses, and birthdates of the parents (but did not identify the Comanche Nation); the names of the maternal grandparents; the birthdate and date and place of death of the maternal grandfather; the names of the paternal grandparents; the birthdate of the paternal grandfather; and the name and current address of the paternal great-grandmother. The notices were sent to the parents and the Bureau of Indian Affairs (BIA), but not to any tribe.
In August 2020, father took his own life.
The section 366.26 report reiterated the Agency's prior ICWA investigative efforts and added that the social worker prepared and submitted the August 5, 2020 ICWA notices but was not prepared to request that the court make an ICWA finding.
The December 2, 2020 addendum report reiterated the Agency's previous ICWA investigative efforts. In addition, the Agency reported that the social worker attempted to reestablish contact with the maternal grandmother by telephone on July 21, 2020, but did not receive a response to her voicemail. The social worker also attempted to contact the maternal grandmother by email, requesting the maternal grandmother's current address, date of birth, and pertinent information about the minors' great-grandparents, but received no response. The report acknowledged that the social worker omitted the Comanche Nation from the August 5, 2020 ICWA notices.
The addendum report stated that, on September 30, 2020, the social worker performed an internet search and discovered the 2005 obituary for the maternal great-grandmother which indicated she was survived by the maternal great-grandfather. An additional internet search revealed the maternal great-grandfather's address in Texas and his last known telephone number which appeared to be disconnected. On October 1, 2020, the social worker again attempted to contact the maternal grandmother by telephone and left a voicemail at the number the maternal grandmother had called the social worker supervisor from the previous day. That same day, the social worker sent another email to the Comanche Nation regarding possible enrollment status of the minors and advising that updated ICWA notices with additional relative information would be sent shortly. The social worker received no response from the Comanche Nation.
On October 5, 2020, the updated ICWA notices with additional relative information and Comanche Nation information were electronically filed with the court. The updated ICWA notices included the names, birthdates and birth places of the parents; the address and tribal affiliation (Comanche Nation) for mother; the date and place of father's death; the maternal grandmother's name and address; the paternal grandmother's name, former address, birthdate, and date and place of death; the name, birthdate and birth place, and date and place of death of the maternal grandfather; the names of the paternal grandparents; the name, address, and birthdate of the paternal grandfather; the name, former address, birthdate and birth place, and date of death of the maternal great-grandmother; and the name, former address, and birth year of the maternal great-grandfather. The notices were sent to the mother, the BIA, and the Comanche Nation.
The addendum report also stated that, on October 21, 2020, the social worker sent a follow-up email to the Comanche Nation requesting a response and an indication of receipt of the social worker's original email. No response was received. The social worker attempted to reach the Comanche Nation by telephone on October 22, 2020, and left a voicemail requesting a return call. The social worker then called a different number listed for the tribe and spoke to a receptionist, inquiring whether the tribe had received the updated ICWA notices. The receptionist confirmed receipt of the updated notices and confirmed that neither minor was eligible for enrollment with the Comanche Nation, noting a letter dismissing eligibility had been mailed out the previous day. As of the date of the addendum report, the Agency had yet to receive the letter from the Comanche Nation but nonetheless requested that the court find the minors were not Indian children and the ICWA did not apply.
The section 366.26 hearing commenced on December 2, 2020. Mother and the maternal grandmother were present. The Agency requested an inquiry of mother and the maternal grandmother regarding any new information regarding Indian ancestry. Mother stated she had “Comanche Native American blood” on her father's side and offered to “find names of my great-great-grandmother... and more information from my family that's in the South because they know more about it than I do.” The Agency stated it contacted the Comanche Nation on two occasions and the tribe twice indicated the minors were not eligible for enrollment. The ICWA notices included information obtained from the parents' family members, including from the maternal grandmother. The Agency stated further that it attempted to contact mother's relatives in Texas but was not able to obtain any additional information. The names of the family members in Texas were included in the ICWA notices. The Agency further reported that any information provided by the maternal grandmother had already been provided to the Comanche Nation and the tribe determined the minors were not eligible for enrollment. Neither mother nor the maternal grandmother provided any additional information. Based on that information, the court found the ICWA did not apply and terminated parental rights, freeing the minors for adoption.
II. DISCUSSION
Mother contends the Agency failed to comply with ICWA requirements by failing to inquire of all known maternal relatives about possible Indian heritage. She claims there were a number of documents (e.g., ICWA-020 forms filled out by the parents, emails, and letters to and from the Comanche Nation, certified receipts, and updated ICWA notices) that were never provided to the juvenile court for purposes of verifying the Agency's representations and determining the minors' ICWA status. The claim lacks merit.
Applicable Law
ICWA's purpose is to protect the interests of Indian children and promote the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912; In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) The juvenile court and the Agency have an affirmative and continuing duty to inquire whether a child is, or may be, an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); see In re K.M. (2009) 172 Cal.App.4th 115, 118-119.) If, after the petition is filed, the juvenile court knows or has reason to know that an Indian child is involved (25 U.S.C. § 1912(a)), notice of the pending proceeding and the right to intervene must be sent to the tribe or the BIA if the tribal affiliation is not known. (See § 224.2, subds. (d) & (f); § 224.3, subds. (a)-(g); Cal. Rules of Court, rule 5.481(b); In re Robert A. (2007) 147 Cal.App.4th 982, 989.)
Section 224.2, subdivision (d), provides that a juvenile court has reason to know a child involved in a proceeding is an Indian child under any of the following circumstances: “(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 proceeding 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)(1)-(6).) “At that point, the social worker is required, as soon as practicable, to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility.” (In re Michael V. (2016) 3 Cal.App.5th 225, 233; see Cal. Rules of Court, rule 5.481(a)(4)(A); § 224.2, subd. (b).)
If, on the other hand, the “court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court, social worker, or probation officer shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e), italics added.) “There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know” as set forth in section 224.2, subdivision (d). (§ 224.2, subd. (e)(1), italics added.)
When there is “reason to believe” the child is an Indian child, further inquiry is necessary to help determine whether there is “reason to know” the child is an Indian child, including: “(A) Interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.3[;] [¶] (B) 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 may reasonably be expected to have information regarding the child's membership status or eligibility[;] [¶] (C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility. Contact with a tribe shall, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of notices under the [ICWA]. Contact with a tribe shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case.” (§ 224.2, subd. (e)(2); see In re D.S. (2020) 46 Cal.App.5th 1041, 1052-1053.)
Analysis
Here, father claimed no Indian heritage, a claim that was confirmed by the paternal grandmother. Mother initially claimed possible Indian ancestry but could not identify which tribe or through which relative the purported Indian ancestry flowed. She later stated, in her ICWA-020 form, that her father's great-grandmother (the minors' great-great-great-grandmother) “is or was” a member of the Comanche Tribe. Mother's ICWA-020 form was filed with the court on December 23, 2019, and made a part of the court record. Based on the information provided by mother at that time, there was only a reason to believe the minors may be Indian children, thus triggering the Agency's duty of further inquiry. (§ 224.2, subd. (e).)
The Agency began its further inquiry in December 2019 when the social worker spoke with the maternal grandmother and inquired about any Indian ancestry in her family. The maternal grandmother provided a response by email (the contents of which were not made a part of the record). The social worker also contacted the Comanche Nation that month to inquire about possible application of the ICWA to the minors and, at the tribe's request, followed-up with an inquiry via email (which was not made a part of the record). The Comanche Nation responded in March 2020 stating that, based on the information provided, the minors were not eligible for enrollment in the tribe. In July 2020, the social worker attempted to contact the maternal grandmother again by telephone and by email, requesting the maternal grandmother's current address, date of birth, and other pertinent information. The maternal grandmother did not respond to those requests.
Next, the social worker prepared ICWA notices which were sent to the parents and the BIA and filed with the court on August 5, 2020. ICWA notices must include all of the following information, if known: the child's name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses of the child's parents, grandparents, great-grandparents, and other identifying information; and a copy of the dependency petition. (§ 224.3, subd. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184, 209.) The initial ICWA notices filed on August 5, 2020, included limited information, including the parents' information, the names of the maternal grandparents, and the birthdate and date and place of death of the maternal grandfather, but did not identify any additional maternal relatives or, as the social worker realized, a potential tribe.
On October 1, 2020, the social worker made another attempt to contact the maternal grandmother by telephone using a number the maternal grandmother had used the previous day to call the social worker supervisor. Again, the maternal grandmother did not respond. Thereafter, the social worker turned to the internet to search for information on mother's side of the family, finding an obituary for the maternal great-grandmother. That led the social worker to information about the deceased maternal great-grandmother and the surviving maternal great-grandfather, whose last known address was in Texas and whose last known telephone number was, as it turned out, no longer in service. Armed with that information, the social worker prepared updated ICWA notices which included additional information about mother's relatives including mother's name, birthdate and place of birth, address, and tribal affiliation (Comanche Nation); the maternal grandmother's name and address; the name, birthdate and birth place, and date and place of death of the maternal grandfather; the name, former address, birthdate and birth place, and date of death of the maternal great-grandmother; and the name, former address, and birth year of the maternal great-grandfather. The updated notices were sent to mother (father was by that time deceased), the BIA, and the Comanche Nation, and were filed with the court on October 5, 2020, and made a part of the court record.
In late-October 2020, the social worker sent a follow-up email to the Comanche Nation requesting confirmation of the tribe's receipt of her original email. Receiving no response, the social worker called the tribe and left a voicemail requesting a return call. She called a second number listed for the tribe and spoke with a receptionist, who confirmed receipt of the updated ICWA notices, confirmed the minors were not eligible for enrollment, and stated a letter to that effect had been sent the previous day. As of the section 366.26 hearing, the Agency had not received the tribe's letter. Based on the information provided, the Agency recommended the court find the ICWA did not apply.
Mother complains that neither the email sent by the maternal grandmother to the social worker nor the emails between the social worker and the Comanche Nation were included in the record or provided to the court, preventing the court from making an informed ICWA determination. As the record demonstrates, neither the Agency nor the court ever had anything more than a reason to believe the minors may be Indian children. (§ 224.2, subd. (e).) Under these circumstances, the Agency undertook the appropriate inquiry and investigation, including interviewing or attempting to interview family members, contacting the BIA, and contacting the Comanche Nation. The social worker detailed her investigative efforts in the various reports and, while she was not required to do so without the requisite reason to know (§ 224.2), she provided the BIA and the Comanche Nation with ICWA notices which included all information available to her. On this record, the Agency's efforts satisfied the requirements set forth in section 224.2, subdivision (e)(3). (In re D.S., supra, 46 Cal.App.5th at pp. 1052-1054.)
Mother also complains she informed the court about her belief that she had Comanche Indian ancestry on her father's side, but the updated ICWA notices did not indicate the Comanche ancestry flowed through the “PGF.” Assuming mother meant MGF (maternal grandfather), any error in not identifying the maternal grandfather as the source of the Indian ancestry is harmless given that the notices indicated the Indian ancestry flowed through mother's side of the family and the maternal grandfather's name, birthdate and birth place, and date and place of death were also provided, as was similar identifying information about his mother, the maternal great-grandmother.
Mother argues further that the maternal grandmother was present at the section 366.26 hearing “but was not asked for any additional information regarding the family's Indian ancestry or for her missing statistical information.” The record belies mother's claim. Mother and the maternal grandmother were both present at the hearing. The Agency requested, “If the mother and the grandmother are present I would ask if they be asked if they have any new information on ICWA.” (Italics added.) The court granted the maternal grandmother's request to “say something, ” but the maternal grandmother spoke only about the lack of visitation with the minors, the progress made by mother, and mother's family support. Mother also spoke, addressing issues not related to the ICWA or her Indian ancestry. When the court asked counsel whether it needed to make an ICWA finding, the Agency again requested that the court “inquire of the grandmother and the mother that are present if they have any new information regarding Native American ancestry.” (Italics added.) Mother responded as follows: “So I have Comanche Native American blood in me and it's on my father's side, but that's all of the information that I have. I could find names of my great-great-grandmother, I believe it was, and I can find out more information from my family that's in the South because they know more about it than I do, but I do know I have Comanche Native American blood in me.” The maternal grandmother remained silent on the issue. As the Agency pointed out, the updated ICWA notices contained information obtained from family members, including the maternal grandmother. The Agency's attempts to contact mother's relatives in Texas were unsuccessful. The Agency informed the court that “[a]ny information that was provided by the maternal grandmother we have now provided to the Comanche tribe to assess, and they determined the minors were not eligible.” Mother did not provide any new or additional information not already known to the Agency or included in the updated ICWA notices, and the maternal grandmother provided no information at all.
The Agency's duty of ICWA inquiry extends to the minors' extended family, if known. (§ 224.2, subd. (b); Cal. Rules of Court, rule 5.481(a)(4).) Here, information regarding the minors' extended family on their mother's side was known and included in the updated ICWA notices. Contrary to mother's claim, the updated notices sent by the Agency were sufficient for purposes of the ICWA.
“[E]rrors in an ICWA notice are subject to review under a harmless error analysis.” (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1415.) Error is not presumed. It is mother's obligation to present a record that affirmatively demonstrates error. (In re D.W. (2011) 193 Cal.App.4th 413, 417-418.) Mother has not done so here. If we conclude the juvenile court did not comply with ICWA provisions, we “reverse only if the error is prejudicial.” (In re A.L. (2015) 243 Cal.App.4th 628, 639.) On this record, we conclude the notices were legally sufficient and there was no prejudice.
III. DISPOSITION
The juvenile court's orders are affirmed.
We concur: MURRAY, Acting P. J., KRAUSE, J.