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In re Dahlila C.

California Court of Appeals, Second District, Fifth Division
Jul 22, 2008
No. B205839 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. CK55451, Robert Stevenson, Referee (pursuant to Cal. Const., art. VI, § 21).

Kate M. Chandler, under appointment by the Court of Appeal, for Objector and Appellant Darryl C.

Linda Rehm, under appointment by the Court of Appeal, for Objector and Appellant E.T.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Senior Deputy County Counsel for Plaintiff and Respondent.


MOSK, J.

INTRODUCTION

Darryl C. (father) and E.T. (mother), parents of 21-month-old Dahlila C., appeal from the juvenile court’s order terminating their parental rights under Welfare and Institutions Code section 366.26. Father and mother contend that the juvenile court and the Department of Children and Family Services (Department) failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA or Act) (25 U.S.C. § 1901, et seq.) as to father, or to make a finding about whether the ICWA applied. The Department concedes that the inquiry requirements of the ICWA were not met, but argues that father was not prejudiced by the failure because father did not claim Indian heritage in the juvenile court and does not claim such heritage on appeal. The Department also argues that the failure of the juvenile court to make a finding on the applicability of the ICWA was harmless. Because the juvenile court did not comply with the ICWA’s inquiry requirements, we conditionally reverse the order terminating father’s and mother’s parental rights and remand this case with directions to the juvenile court to ensure full compliance with the ICWA.

All statutory citations are to the Welfare and Institutions Code unless otherwise noted.

Pursuant to California Rules of Court, rule 8.200(a)(5) (all citations to rules are to the California Rules of Court), mother joins father’s arguments. Any holding reversing the order terminating father’s parental rights may also apply to reinstate mother’s parental rights. (Rule 5.725(a)(2); In re DeJohn B. (2000) 84 Cal.App.4th 100, 109-110.)

BACKGROUND

Because this appeal concerns the discrete issue of whether the ICWA’s inquiry requirements were met, we present a brief summary of facts relevant to that issue and additional facts that are necessary for context.

On December 19, 2006, the Department filed a petition under section 300 alleging that father and mother established a hazardous and unsafe home environment for Dahlila. The petition alleged that the family was living in an abandoned building with no running water and no electricity, the parents used batteries with exposed wires as a power source, a bucket of urine was found in the home, and there was broken glass on the floor. The petition also alleged that mother had a history of substance abuse, including the use of marijuana, that rendered her incapable of providing regular care and supervision of Dahlila. As a result of mother’s substance abuse, Dahlila’s two siblings had received permanent placement services.

According to the Department’s December 19, 2006, Detention Report, a social worker interviewed mother on December 13, 2006. Mother stated that she and her family had been homeless for several months. Mother had lived with maternal grandmother while mother was pregnant, but moved out because maternal grandmother disliked father. When mother’s and father’s money ran out, they moved into an abandoned house. Mother admitted to a 2003 guilty plea to petty theft.

The Department and mother entered into a Voluntary Family Reunification Agreement on December 13, 2006, pursuant to which Dahlila was placed in temporary foster care. When the Department determined that mother had provided false information to the social worker, it terminated the voluntary agreement and detained Dahlila in protective custody.

The Detention Report stated that the ICWA did not apply and explained that when the social worker asked mother if her family had Native American Indian heritage, mother replied, “No.” The report also stated, however, that father had not been available to be interviewed, and the minute order for the detention hearing stated that the issue of the ICWA would be held over until the next hearing. Neither father nor mother appeared at the December 19, 2006, detention hearing.

In a January 23, 2007, Information for Court Officer, the Department informed the juvenile court that it had tried, unsuccessfully, to speak with father. The Department stated that on the one occasion that contact was made with father – on December 27, 2006, when father went to the Department’s office to meet with the social worker – father became argumentative and left. As a result, no statement was taken from father. The Department recommended that father participate in an approved anger management class, and that father not receive family reunification services until he made contact with the Department.

The January 24, 2007, Jurisdiction/Disposition Report stated that the Department had spoken with mother by telephone on January 10, 2007. When the dependency investigator asked to speak with father, mother said that father was unavailable. The report stated that the ICWA “does or may apply,” and listed Dahlila’s tribe as “unknown.” Father was reported to have a long criminal history that included armed robbery and parole violations. Neither father nor mother appeared for the January 24, 2007, jurisdiction/disposition hearing. The matter was continued first to February, 21, 2007, and then to March 28, 2007.

The February 21 and March 28, 2007, Interim Review Reports stated that the ICWA did not appear to apply to this case. The reports explained that mother denied that her family had Native American Indian heritage. The reports stated that there was no information on file that indicated that father had American Indian heritage and that the Department had not been able to contact father concerning any American Indian heritage. The reports recommended that the juvenile court find that the ICWA did not apply to this case.

Neither father nor mother appeared on March 28, 2007. The juvenile court declared Dahlila to be a dependent of the court under section 300, subdivision (b), and removed Dahlila from her parents’ custody. The juvenile court denied father and mother reunification services. The juvenile court set the matter for a six month review hearing on August 16, 2007. The juvenile court ruled that father would receive reunification services until August 16, 2007, if he appeared in the case. Father would have to participate in parent education and individual counseling to address the issues in the case including anger management. The juvenile court granted father and mother monitored one hour visits three times a week once the parents contacted the Department.

The August 16, 2007, Status Review Report stated that the Department was successful in contacting father and mother by phone on July 30, 2007. Father stated that the juvenile court had not ordered him to take any classes and no one had told him he had to take classes. Father questioned why he would be ordered to take classes when he was not taking drugs. Father handed the phone to mother. The Status Review Report states that mother’s criminal record had been received and that it showed that mother had “an extensive criminal history including charges for petty theft, disturbing the peace, and prostitution.”

The Status Review Report also stated that after the juvenile court granted the parents monitored visitation on March 28, 2007, neither father nor mother attempted to schedule a visit with Dahlila. In January 2007, mother had called Dahlila’s caregiver to attempt to schedule a visit. The caregiver attempted to return mother’s call several times to arrange a visit, but the caregiver only reached mother’s voicemail, and none of the caregiver’s calls were returned. The Department recommended that father’s family reunification services be terminated and the matter be set for a section 366.26 hearing to select and implement a permanent plan for Dahlila.

At the six-month review hearing on August 16, 2007, the juvenile court found that father was not in compliance with the case plan and terminated father’s family reunification services. The juvenile court set the matter for a section 366.26 hearing on December 13, 2007.

The Department’s report for the December 13, 2007, section 366.26 hearing reported that Dahlila had been placed in the home of prospective adoptive parents on June 28, 2007, and appeared to be comfortable in the home. Dahlila was observed to be constantly smiling and laughing. The report stated the Department’s finding that adoption was the best plan for Dahlila. The report further stated that “[t]he Indian Child Welfare Act does not apply.”

The juvenile court continued the matter first to December 26, 2007, and then to January 4, 2008. On January 4, 2008, father and mother appeared for the first time in the case. The juvenile court appointed counsel for father and mother. The juvenile court did not inquire of father about father’s American Indian heritage, if any. The juvenile court continued the matter to February 14, 2008.

Father and mother appeared in court on February 14, 2008. Father and mother objected to the termination of their parental rights. Father’s counsel stated that father and mother had missed the majority of hearings in the case due to homelessness. Mother’s counsel stated that mother had difficulty keeping in contact with the social worker due to homelessness. Father and mother appear to have conceded that none of the exceptions to the termination of parental rights in section 366.26, subdivision (c)(1)(B) applied. The juvenile court found Dahlila to be adoptable and terminated father’s and mother’s parental rights.

DISCUSSION

Father and mother contend that the juvenile court and the Department failed to comply with the inquiry and notice requirements of the ICWA as to father, or to make a finding about whether the ICWA applied. The Department concedes that neither the juvenile court nor the Department made the inquiries of father required by the ICWA, but argues that father was not prejudiced by the failure because father did not claim Indian heritage in the juvenile court and does not claim such heritage on appeal. The Department also argues that the juvenile court’s failure to make a finding on the applicability of the ICWA was harmless. We conditionally reverse the order terminating father’s and mother’s parental rights and remand for compliance with the ICWA as set forth below.

Because we reverse the order terminating father’s and mother’s parental rights due to the failure of the juvenile court and Department to inquire under the ICWA, we need not address father’s and mother’s separate contention that the juvenile court’s failure to make a finding about whether the ICWA applies is reversible error.

“In 1978, Congress passed the Act, which is designed to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and 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.’” (In re Marinna J. (2001) 90 Cal.App.4th 731, 734, quoting 25 U.S.C. § 1902.) The Act “sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody. When the dependency court has reason to believe a child is an Indian child within the meaning of the Act, notice on a prescribed form must be given to the proper tribe or to the Bureau of Indian Affairs, and the notice must be sent by registered mail, return receipt requested.” (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906, citing In re C.D. (2003) 110 Cal.App.4th 214, 222; In re Asia L. (2003) 107 Cal.App.4th 498, 506; 25 U.S.C. § 1912(a).)

“To satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, DSS [the social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. ([California Rules of Court,] [r]ule 1439(f).) Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to BIA.” (In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4.) “The burden is on the Agency to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) If proper notice under the Act is not given, the Indian child, the child’s parent or Indian custodian, or the child’s tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914.)

Section 224.3 and rule 5.481 impose upon the juvenile court and the Department a continuing duty to inquire whether a child in dependency proceedings may be an Indian child under the ICWA. (See In re J.N. (2006) 138 Cal.App.4th 450, 461.) Section 224.3, subdivision (a) provides, “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.”

Rule 5.481(a) provides, in pertinent part:

The rules with respect to the ICWA were amended effective January 1, 2008. Prior to January 1, 2008, it was rule 5.664 that mandated inquiry under the ICWA.

“The court, court-connected investigator, and party seeking a foster-care placement, guardianship, conservatorship, custody placement under Family Code section 3041, declaration freeing a child from the custody or control of one or both parents, termination of parental rights, or adoption have an affirmative and continuing duty to inquire whether a child is or may be an Indian child in all proceedings identified in rule 5.480. The court, court-connected investigator, and party include the county welfare department, probation department, licensed adoption agency, adoption service provider, investigator, petitioner, appointed guardian or conservator of the person, and appointed fiduciary.

“(1) The party seeking a foster-care placement, guardianship, conservatorship, custody placement under Family Code section 3041, declaration freeing a child from the custody or control of one or both parents, termination of parental rights, or adoption must ask the child, if the child is old enough, and the parents, Indian custodian, or legal guardians whether the child is or may be an Indian child and must complete the Indian Child Inquiry Attachment (form ICWA-010(A)) and attach it to the petition unless the party is filing a subsequent petition, and there is no new information.

“(2) At the first appearance by a parent, Indian custodian, or guardian in any dependency case; or in juvenile wardship proceedings in which the child is at risk of entering foster care or is in foster care; or at the initiation of any guardianship, conservatorship, proceeding for custody under Family Code section 3041, proceeding to terminate parental rights proceeding to declare a child free of the custody and control of one or both parents, or adoption proceeding; the court must order the parent, Indian custodian, or guardian if available, to complete Parental Notification of Indian Status (form ICWA-020).

“(3) If the parent, Indian custodian, or guardian does not appear at the first hearing, or is unavailable at the initiation of a proceeding, the court must order the person or entity that has the inquiry duty under this rule to use reasonable diligence to find and inform the parent, Indian custodian, or guardian that the court has ordered the parent, Indian custodian, or guardian to complete Parental Notification of Indian Status (form ICWA-020).”

The juvenile court and the Department did not comply with the inquiry requirements of the ICWA. The record on appeal does not contain a complete Parental Notification of Indian Status (form ICWA-20) for father (or mother) as required by rule 5.481(a). As the Department concedes, there is no indication in the record that the juvenile court inquired of father (or mother) whether Dahlila has Indian heritage as required by section 224.3 and rule 5.481(a).

The Department contends that the failure to comply with the inquiry requirements of the ICWA was harmless and does not require reversal because father did not claim Indian heritage in the juvenile court and does not claim such heritage on appeal. “We refuse to speculate about what [father’s] response to any inquiry would be” and, thus, reject the Department’s contention of harmless error. (In re J.N., supra, 138 Cal.App.4th at p. 461 [rejecting a claim of harmless error that was based on the absence in the record of any indication that the parent had any Indian ancestry]; but see In re H.B. (2008) 161 Cal.App.4th 115, 121-122 [finding harmless error where the parent did not claim Indian heritage in the juvenile court or on appeal]; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [finding no prejudice where father failed to make an offer of proof on appeal as to his Indian heritage].) A purpose of the ICWA is to give Indian tribes the right to intervene in dependency matters that will affect a member of a tribe. What the parent does or omits to do should not remove the right of the tribe to exercise its interest in the proceeding. Instead, we conditionally reverse the order terminating father’s and mother’s parental rights so that there can be compliance with the Act. (See In re Francisco W. (2006) 139 Cal.App.4th 695, 705-706; In re Marinna J., supra, 90 Cal.App.4th at p. 740; In re J.N., supra, 138 Cal.App.4th at pp. 461-462.)

DISPOSITION

The order terminating father’s and mother’s parental rights is conditionally reversed. The matter is remanded to the juvenile court for the limited purpose of inquiring of father and mother whether Dahlila is or may be an Indian child. If the inquiry produces evidence that Dahlila is or may be an Indian child, then the juvenile court shall direct the Department to give notice of the underlying proceedings in compliance with the ICWA to the Bureau of Indian Affairs (BIA) and any identified tribes. (25 U.S.C. § 1912; rule 5.481(b).) The Department shall document its efforts to provide such notice by filing such notices and any and all responses received with the juvenile court. If the BIA or any tribe responds by confirming that Dahlila is or may be eligible for Indian tribal membership, the juvenile court shall proceed pursuant to the ICWA. If the inquiry of father and mother produces no evidence that Dahlila is or may be an Indian child, or there is no confirmation from the BIA or any tribe that Dahlila is or may be eligible for Indian tribal membership, then the juvenile court shall reinstate the

order terminating father’s and mother’s parental rights as to Dahlila, and may proceed accordingly.

We concur: TURNER, P. J., KRIEGLER, J.


Summaries of

In re Dahlila C.

California Court of Appeals, Second District, Fifth Division
Jul 22, 2008
No. B205839 (Cal. Ct. App. Jul. 22, 2008)
Case details for

In re Dahlila C.

Case Details

Full title:In re DAHLILA C., a Person Coming Under the Juvenile Court Law. v. DARRYL…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Jul 22, 2008

Citations

No. B205839 (Cal. Ct. App. Jul. 22, 2008)