Opinion
F051340
5-2-2007
In re JORDAN A. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. DIANE R., Defendant and Appellant.
Teri Ann Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant. Michael H. Krausnick, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
Before Harris, Acting P.J., Levy, J., and Cornell, J.
Diane R. appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter and son. Appellant contends the juvenile court failed to discharge its duty to give notice pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901, et seq.) after the childrens maternal grandmother testified her own grandmother was "full-blooded Indian."
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In arguing for reversal, appellant remarkably ignores the appellate record which establishes the court followed the ICWAs procedural and substantive requirements due to her sons paternal Indian heritage. Having reviewed that record, we will affirm. Under the unique circumstances of this case, we conclude appellant arguably is not aggrieved by the lack of notice and, even assuming error, the record affirmatively establishes she is not prejudiced.
PROCEDURAL AND FACTUAL HISTORY
In May 2005, appellant abandoned five-year-old Jordan and two-year-old Wesley to her sister despite her sisters warnings that she would call the police and child welfare. At the time, the sisters health rendered her incapable of caring for the children. This was not the first time appellant had left her children without making provisions for their care. Underlying appellants neglectful parenting was a significant history of methamphetamine abuse and domestic violence with Wesleys father. There had been numerous referrals and emergency responses over the years. Prior efforts to provide appellant with voluntary services had failed. As a result, respondent Stanislaus County Community Services Agency (agency) initiated the underlying dependency proceedings. The agency placed Jordan and Wesley in a foster home where they have since remained.
Relevant to this appeal, at a May 2005 detention hearing, appellant executed a declaration under penalty of perjury that she had no Indian ancestry. The fathers of Jordan and Wesley made their first court appearances a few weeks later. At that hearing, Wesleys father disclosed he had Cherokee and Blackfoot Indian heritage. As a result, the agency investigated and served ICWA notice on the Bureau of Indians Affairs (BIA) and the three federally-recognized Cherokee tribes, as well as appellant and Wesleys father. The agencys investigation revealed Wesleys paternal grandmother and aunt were enrolled members of the Cherokee Nation of Oklahoma. As the record would later reveal, Wesley was eligible for tribal membership in the Cherokee Nation. The Cherokee Nation received notice of the hearings over the course of these proceedings but did not intervene.
Jordans father denied any Native American ancestry.
In August 2005, the Stanislaus County Superior Court conducted a combined jurisdictional and dispositional hearing. First, it exercised its dependency jurisdiction over the children (§ 300, subds. (b) & (g)) based on the facts summarized above.
On the question of disposition, the agency reported, in relevant part, it had offered appellant drug treatment services following the childrens detention but she repeatedly failed to follow through. Assuming the court would remove the children from parental control, counsel for Wesleys father questioned where Wesley, in particular, would be placed. Counsel argued that both under Californias dependency scheme (§ 361.2, subd. (a)) and ICWA (§ 1915 (b)) there was a relative placement preference which he urged the court to invoke. He argued the maternal aunt would qualify under both state and federal law.
According to the agencys reports to the court, several relatives had sought placement of the children. First, both fathers requested placement. However, each one would need, at a minimum, to address some housing issues. In addition, there were the same maternal aunt, who initially called the authorities, the maternal grandparents and the paternal relatives, who were tribal members, all of whom expressed a desire for placement.
The maternal aunt displayed great interest in obtaining placement and had taken a number of steps towards that goal. It was shortly after the agency conducted a home inspection of the maternal aunts house that the agency learned of Wesleys Indian descent on his fathers side. As the record would later reveal, the maternal aunt was assessed as unqualified for placement. The maternal grandmother had health problems which, at the time, prevented her and her husband from providing care. Once the agency became aware of Wesleys Indian descent and his paternal relatives interest in placement, it commenced investigating a placement for Wesley with his paternal aunt. County counsel, on behalf of the agency, did not dispute the importance of the relative placement preference. Nonetheless, county counsel argued the placement issue was premature because: the court had yet to remove the children from parental custody; and the agency was close to making a decision about placing Wesley with one of his Indian relatives, presumably the paternal aunt. The agencys attorney advised the court in this regard, it was likely that Wesley was eligible to be enrolled because the paternal grandmother and aunt were.
Thereafter, the court adjudged Jordan and Wesley dependents and removed them from parental custody. The court ordered reunification services for appellant and each childs father. It also set a placement hearing for the following month. The record is virtually silent regarding what occurred on the hearing date set to review the issue of placement. According to the minute order, attorneys for all the parties appeared and the hearing was reported, but the "matter [was] dropped." No reporters transcript for the hearing was transcribed.
Meanwhile, appellant challenged the juvenile courts August 2005 disposition in both childrens cases by way of appeal to this court (F048886, F048898). Her court-appointed appellate counsel, who also represents appellant in this appeal, found no arguable issues to raise. Despite this courts invitation for appellant to file her own brief, appellant did not respond. Accordingly, we dismissed her appeal as abandoned.
According to an interim review report from November 2005, appellant failed to make any attempt to participate in services or even visit with her children. The same was true for Wesleys father. The agencys plan was to reunify Jordan with her father. Toward that goal, it provided services to help him locate an appropriate residence for Jordan. The agency also disclosed that its plan for Wesley had been to place him with his paternal aunt. However, the day before Wesley was to be moved, the aunt called to say she could not care for him. As a result, the agency was pursuing Wesleys possible placement with his maternal grandparents. The maternal grandmother had apparently recovered from her earlier health problems.
By the conclusion of six months time and despite the agencys provision of reasonable services, appellant failed to make any attempt to participate in services or even visit with her children. Her whereabouts in fact were unknown. According to the agencys information, appellant did not wish to make contact with the agency out of fear of arrest on an unspecified warrant. Similarly, Wesleys father did not participate in court-ordered services and his whereabouts also became unknown. Jordans father actively visited with Jordan to establish a relationship with her but ultimately failed to reunify.
As a result in February 2006, the juvenile court terminated reunification efforts and set a section 366.26 hearing for May 2006. In advance of the May hearing, the agency prepared a "366.26 WIC" report in which it recommended that the court find both children adoptable and order termination of parental rights. The childrens foster parents were committed to adopting them. In its written report, the agency also disclosed:
"A letter was received from the Cherokee Nation stating that Wesley may be eligible for enrollment. The agency is currently taking steps to submit a membership application on behalf of Wesley. The application requires State certified birth certificates for the applicant and family members used to trace Indian lineage. The stated certified birth certificates have been ordered but the undersigned was given a window of approximately 6 months to receive the birth certifications."
For the first time in a year, appellant appeared in court at the scheduled May 2006 section 366.26 hearing. She was incarcerated at the time; as the record would later disclose, appellant had been arrested and in custody since February 2006. At the May hearing, the court announced that it would proceed regarding Wesley as though the ICWA applied to him. For its part, the agency moved to continue the section 366.26 hearing in order to secure the services of an Indian child expert. The court granted a two-month continuance.
It also granted a discovery request by appellants attorney for "the log notices from August 5" based on a letter the court had received from the grandmother. The record does not disclose the contents of that letter.
In the interim, the agency prepared an addendum report relative to the ICWAs substantive requirements. On the issue of the childrens placement (25 U.S.C. § 1915(b)), the agency reported:
"Although the Cherokee Nation of Oklahoma has not intervened in this matter, under provisions of the ICWA, placement preference for an Indian child would not include non-Indian foster parents. Although placement has not been challenged by the tribe, the agency is submitting additional information to the court to support a finding that `good cause exists for Wesley to remain in a placement that does not fit the placement preference criteria. (California Rules of Court [, rule] 1439(k)(4); Fresno County [Depart.]of Children and Family Services [v. Superior Court] (2004) 122 Cal.App.4th 626, 642-643.)
"Wesley has been placed with his half-sister during the entirety of the dependency. They had lived together prior to being taken into protective custody. The children enjoy a close relationship, and in the opinion of the social workers involved in this case and other professionals, it would be detrimental to Wesley to be separated from his sister Jordan."
On the issue of active efforts (25 U.S.C. § 1912(d)), the agency explained:
"At the six month status review hearing on February 7, 2006[,] the court found that reasonable services have been provided to Wesleys parents, Diane [R.] and Aaron [R.], however neither parent had participated regularly in their treatment programs nor made any efforts or progress in alleviating or mitigating the causes which necessitated Wesleys placement. Active efforts under the ICWA and reasonable reunification efforts under California law are `essentially undifferentiable. [In re Michael G. (1998) 63 Cal.App.4th 700, 714 .] No further `active efforts finding needs to be made in order to comply with Rule[s] of Court [, rule] 1439 (l)."
The agency also attached a copy of a qualified Indian experts written opinion that, beyond a reasonable doubt, custody of Wesley by either parent would likely result in serious emotional or physical damage to him (25 U.S.C. § 1912(f).) In relevant part, the qualified Indian expert explained:
"In preparing for this report, I contacted the Cherokee Nation of Oklahoma, I spoke to social worker, Stacia Goodnight, and program Indian Child Welfare Program Director, Lou Stretch, Wesley is not yet enrolled and therefore the Cherokee Nation has not intervened in the case. The Cherokee Nation of Oklahoma is a descendency tribe, meaning that they determine eligibility based on the ability of the applicant to establish that they are descended from a tribal member who is or was enrolled or who was on the Cherokee Nation of Oklahoma. The chances that he will be eligible for enrollment are great. The Cherokee Nation of Oklahoma can not enroll Wesley until they have the enrollment papers and a State Certified birth certificate. The Agency has applied for the State certified birth certificate. In discussing the case, Lou Stretch stated that the tribe is generally reluctant to interrupt a placement where siblings with a relationship established before removal from the custody of their parents are placed together. In this case, Wesley is placed in a Stanislaus County licensed foster home with his older sister. She and Wesley had an established relationship before removal from the custody of their mother and their respective fathers.
"I request that the Agency continue to pursue enrollment for Wesley in the Cherokee Nation of Oklahoma. Enrollment in his tribe is a vital connection and resource for Wesley. In addition to the benefits offered by the Cherokee Nation, as [an] enrolled member of a federally recognized tribe Wesley would be eligible to apply to Indian Health Services, which is available throughout the United States. This may be a life saving benefit should Wesley find himself without medical insurance at any time in his life. I contacted Wesleys caregiver. She has agreed to keep Wesley connected to this tribe and culture. She stated that she believes that connection with his tribe is important for Wesley. Mrs. W. has Cherokee Nation heritage of her own and will pursue her own enrollment with the tribe.
"I have reviewed the court documents and discussed this case with the social worker, the foster parent and the tribe. In my opinion, the Agency provided the parents with services designed to remediate the problems that [led] to the removal of Wesley from their custody. The parents were unable to comply with the requirements of the Agency and therefore cannot provide a safe and stable environment for Wesley. The Agency pursued placement of Wesley with his relatives, unfortunately this did not work out. At this time, it is my understanding, that the Agency does not have any licensed Indian foster families as placement options for Indian children. I would encourage the Agency to continue to actively pursue Indian placement options for Indian children.
"I believe that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family that were unsuccessful. In my opinion, beyond a reasonable doubt, custody of Wesley by either parent would likely result in serious emotional or physical damage to him. I do not oppose the termination of parent rights of either of Wesleys parents."
Due to its unavailability on the continued hearing date, the court postponed the section 366.26 hearing once again. The following day, appellants trial counsel filed, pursuant to section 388, a "JV-180" form request to change the childrens adoptive placement from their foster parents to their maternal grandparents. According to the request, the maternal grandparents had not only requested placement throughout the proceedings but had taken steps required by the agency to become an appropriate placement for the children. The grandparents also allegedly shared a close bond with the children, having periodically cared for the children before they became dependents and having consistently visited with the children. Relevant to this appeal, trial counsel claimed placement with the maternal grandparents would advance ICWAs preference for adoptive placement with extended family members as opposed to a non-Indian foster family.
In response to the placement change request, the court set the matter for hearing on the same date as the section 366.26 proceedings. For its part, the agency filed a second addendum report to support a finding that good cause existed not to follow ICWAs placement preferences. The agencys social worker first explained what had occurred after Wesleys placement with his paternal aunt "fell through." In mid-October 2005, the social worker contacted the maternal grandparent and explained the situation and the need for a new placement for Wesley. The maternal grandmother was interested. She lived in a two-bedroom apartment with her husband and a 12-year-old grandson. She divulged her husband had mood changes and was mentally ill but she was unsure of his diagnosis. Soon thereafter, the agency concluded that Jordan and Wesley should not be separated. However, before both children could be placed with the maternal grandparents, the grandparents would need housing with more space and a letter from the grandfathers doctor describing the grandfathers diagnosis, medication and treatment plan. As of December 2005, the grandfathers mental health status remained unclear and the grandparents reported they would be unable to obtain a larger home until July 2006. The social worker responded that the children needed to be in a concurrent home before July. Under the circumstances, the grandparents stated they wanted the childrens foster mother to adopt them.
The agency also reported that, according to the childrens mental health clinician, it would be "`devastating" to now disrupt the childrens placement with their foster family given what the children had been through before they became dependents as well as the bond they now shared with their foster family. Attached to this second addendum report was a copy of the clinicians detailed opinion letter.
It was against this backdrop that the court eventually conducted an evidentiary hearing first on the appellants section 388 request and then on the agencys section 366.26 recommendations. The social worker testified on the issue of good cause to deviate from the ICWAs placement preferences as well as the decision in December 2005 not to place the children with the maternal grandparents. The social worker described the decision as mutual, once the grandparents explained they would not be able to get a bigger residence for several months. As the hearing progressed, it was also established that the grandfather wished to preserve his privacy rights regarding his mental health history. He eventually had a change of heart in the spring of 2006, as the original section 366.26 hearing date approached.
The qualified Indian expert also testified consistent with her prior written report. She reiterated that the agency had very limited placement options for Indian children if relatives were not available. She also testified that the foster mother had Cherokee heritage and had told the expert she (the foster mother) would maintain Wesleys connection to the tribe.
The maternal grandmother also took the witness stand on the placement issue and affirmed her desire to adopt the children. During her testimony, appellants trial counsel asked if she would take steps to ensure Wesley maintained contact with his Indian heritage. The grandmother replied:
"Well, you know what? My grandmother — my real grandmother is full blooded Indian, but I dont know what tribe shes from. But she is full blood Indian. My grandfather was full blooded Spaniard."
The record contains no follow-up inquiry or response to the grandmothers statement of Indian heritage.
Following closing arguments, the court found the agency exercised due diligence to locate relatives and attempt to first place the children with extended family members under the ICWA. It also found there was good cause to go outside of the ICWA preferential placement order based on the childrens extraordinary needs as established by their mental health clinician. In turn, the court denied appellants section 388 request.
Moving on to the issue of permanency planning, the court heard testimony unrelated to this appeal. After closing arguments in this regard, the court found under state law that the children were adoptable and that none of the exceptions under section 366.26, subd. (c)(1) applied in this case. As to the ICWA, the court found active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family but that those services and programs were unsuccessful due to appellants and the fathers failure to participate in programs. The court also found beyond a reasonable doubt that if Wesley were placed in the custody of either parent that it would likely result in serious emotional or physical damage to the child based on the parents failure to complete rehabilitative efforts. The court in turn terminated parental rights.
DISCUSSION
As mentioned at the outset, appellant contends once the maternal grandmother claimed Indian heritage, the court should have suspended the termination proceedings and ordered the agency to give notice, pursuant to ICWA, of the proceedings and the maternal grandmothers claimed heritage. Because the maternal grandmother did not know her relatives tribal affiliation, such ICWA notice presumably would have been served on the BIA. (25 U.S.C. § 1912(a).) In the absence of such notice, appellant claims she is entitled to reversal of all the orders in her childrens dependencies.
The BIA would then have the burden of identifying and providing notice to the proper tribe. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.)
It is well established that ICWA exists to protect the interests of Indian children and promote the stability and security of Indian tribes and families. The act does so by establishing certain minimum federal standards, both procedural and substantive, in state dependency proceedings. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1421.)
ICWAs procedural protections include strict notice requirements to the Indian childs tribe or, if the tribe is unknown, to the BIA where the court knows or has reason to know that an Indian child is involved (25 U.S.C. § 1912(a)), the right of an Indian childs tribe to intervene in the state proceedings or assume jurisdiction (25 U.S.C. § 1911(b) & (c)), and the right to petition to invalidate prior state court orders not in compliance with ICWA (25 U.S.C. § 1914). The acts substantive protections include a requirement that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful (25 U.S.C. § 1912(d); active efforts finding) as well as a determination supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child (25 U.S.C. § 1912(f); detriment finding). The most important substantive requirement imposed on state courts is that of 25 United States Code section 1915(a), which, absent "good cause" to the contrary, mandates that adoptive placements be made preferentially with (1) members of the childs extended family, (2) other members of the same tribe, or (3) other Indian families. (Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 36.)
In this case, appellants claim of error relates to the procedural requirement of notice. She argues ICWAs notice provision give tribes an opportunity to intervene, a right which tribes may exercise at any stage of the proceeding (25 U.S.C. § 1911(c); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253). She adds a tribe cannot intervene, however, if it receives no notice. Although appellants argument is legally sound, this does not mean she is entitled to our review, much less our reversal.
First, appellant fails to explain how she is aggrieved because a potential tribes right to intervene is jeopardized by the lack of new notice. (See In re Carissa G. (1999) 76 Cal.App.4th 731, 734 [a parent must establish he or she is a party aggrieved and cannot raise issues that do not affect his or her rights].) In this regard, she overlooks the other purpose of ICWAs notice requirement, which is to enable tribes to investigate and determine whether a child is an Indian child. (In re Pedro N. (1995) 35 Cal.App.4th 183, 186-187.) If a tribal affiliation, within the meaning of the ICWA, can be established, ICWAs substantive protections take effect. Appellants inattention to this aspect of ICWA should perhaps come as no surprise to us given the record in this case.
As detailed above, appellant received the benefit of the ICWAs substantive protections because the agency and the juvenile court proceeded in Wesleys case pursuant to ICWAs substantive requirements. The court made an active efforts finding and a detriment finding based on qualified expert testimony, determinations which entitled the court to proceed with termination of parental rights. (25 U.S.C. § 1912(d) & (f).) In addition, the court followed ICWAs placement preference law (25 U.S.C. § 1915(a)) when it found good cause not to award the maternal grandparents placement. Notably, appellant has not contested any of the courts ICWA findings in Wesleys case.
The fact that the court did not expressly make the same ICWA findings in Jordans case does not render appellant aggrieved. The courts active efforts and detriment findings pertained to: (a) the agencys efforts to help parents overcome the problems which led to the juvenile courts intervention, and (b) the parents failure to take adequate steps such that the risk of serious emotional or physical damage continued to exist. Although the courts placement decision under the ICWA did focus on Wesley, it was based on the mental health clinicians opinion evidence that both children, not just Wesley, would be emotionally devastated by a change in placement in light of the profound neglect and sense of abandonment they previously suffered. Consequently, we conclude the ICWAs substantive requirements were satisfied in Jordans case, as well as in Wesleys.
Alternatively, were we to consider appellants claim of error and assume for sake of argument that the juvenile court should have ordered a new ICWA notice based on the maternal grandmothers Indian heritage claim, appellant fails to establish how she has been prejudiced by a notice error. Indeed, she cannot because, as discussed above, she received all the substantive protections which ICWA affords a parent.
In taking this approach to appellants claim of error, we acknowledge that any parent ordinarily has standing to raise such a claim. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.) Moreover, when no notice has been given despite a reason to believe a child may be Indian, an appellate court will reverse ordinarily without an affirmative showing of prejudice. However, the record in this case affirmatively establishes appellant has been neither aggrieved nor prejudiced by the alleged notice error. Thus, she is not entitled to reversal.
Finally, having taken this approach to appellants claim of error, we need not and will not address other interesting questions raised herein. Those questions include: (1) what legal effect, if any, did appellants express denial of Indian heritage at the outset of the proceedings have? and (2) could the court have properly dismissed the grandmothers claim as either vague, speculative or not credible?
DISPOSITION
The orders terminating parental rights are affirmed.