Opinion
B206977
8-8-2008
In re MOSES M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SUSAN R., Objector and Appellant.
Deborah Dentler, under appointment by the Court of Appeal, for Objector and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, R. Keith Davis, Principal Deputy County Counsel for Plaintiff and Respondent.
Not to be Published
INTRODUCTION
Susan R. (mother), mother of nine-year-old Moses M., appeals from the juvenile courts order terminating her parental rights as to Moses under Welfare and Institutions Code section 366.26. Mother contends that the juvenile court and the Department of Children and Family Services (Department) failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA or Act) (25 U.S.C. § 1901, et seq.) as to Daniel M. (father), presumed father of Moses, or to make a finding about whether the ICWA applied. Mother also contends that fathers notice of the section 366.26 hearing was deficient because fathers whereabouts were unknown and the Department did not give notice to fathers mother, Delia M. Because the juvenile court and the Department did not comply with the ICWAs inquiry requirements, we conditionally reverse the order terminating mothers 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.
BACKGROUND
On January 26, 2005, the Department filed a petition pursuant to section 300 alleging that then seven-year-old Moses and his then 15-year-old half-sister, P.F., came within the jurisdiction of the juvenile court. The petition alleged, among other things, that P.s father, Juan F., "forced" P. and Moses to shoplift while they were in Juans care. Mother was alleged to be using illicit drugs and to have a history of substance abuse that included the abuse of heroin. Mothers whereabouts allegedly were unknown, and she was alleged to have failed to provide Moses and P. with the basic necessities of life. Moses, P., and their sibling, Robert R., were alleged to be former dependents of the juvenile court due to mothers physical abuse of Moses and her illicit drug use. Mother allegedly failed to reunify with Robert. The petition further alleged that prior services failed to resolve the familys problems as mother continued to abuse illicit drugs.
According to a July 17, 2006, Status Review Report, the Superior Court of Los Angeles County appointed Juan as Mosess legal guardian on January 13, 2005, prior to the filing of the petition in this case. At the January 26, 2005, detention hearing, Juan appears to have testified that the hearing on the guardianship for Moses was to be held on February 24, 2005.
The Departments January 26, 2005, Detention Report states that the ICWA does not apply. According to the report, Moses had been taken into protective custody in January 2002 due to mothers physical abuse and neglect. Moses and P. were placed with their maternal aunt Veronica A. At the detention hearing, the juvenile court inquired of Juan about P.s Indian heritage and found that the ICWA did not apply as to her. The juvenile court made no such inquiries about Moses. The report states that the whereabouts of Mosess father were unknown, but lists a state prison address for him. The juvenile court ordered a "due diligence" with respect to fathers location.
On February 16, 2005, the Department filed a first amended petition pursuant to section 300 that added the allegation that Juan inappropriately disciplined Moses and P. The juvenile court sustained the modified first amended petition. Moses and P. were declared dependents of the juvenile court. Although father was not named in the first amended petition, he submitted to the juvenile courts jurisdiction.
The Departments March 14, 2005, Interim Review Report states that the ICWA does not apply. The report states that father was interviewed on March 9, 2005. The report does not discuss any inquiry made of father concerning any Indian heritage. Thereafter, each of the Departments Status Review Reports, Interim Review Reports, and section 366.26 Reports states that the ICWA does not apply. None of Status Review Reports, Interim Review Reports, or section 366.26 Reports in this case indicates that the Department made ICWA inquiries. The Departments June 1, 2005, and August 5, 2005, Concurrent Planning Permanent Planning Adoption Assessments (CP PP AA) for Moses state that no ICWA inquiry had been made. The March 7, 2006, CP PP AA does not address whether ICWA inquiry had been made.
The July 17, 2006, Status Review Report states that it was assumed that father was released from state prison in or about February 2006. Father had not contacted the social worker, and his whereabouts were unknown.
On February 1, 2007, the matter was closed with respect to P. and a section 366.26 hearing with respect to Moses was set for May 30, 2007. The May 30, 2007, section 366.26 Report states that father had not contacted the social worker during the prior eight months and that Moses had not seen father. The report states that the results of a due diligence search for father were pending. Notice to father for the section 366.26 hearing was sent to a state prison address. The juvenile court found that the parties had not been given notice of the section 366.26 hearing, and continued the hearing to October 3, 2007.
The record on appeal contains an unsigned Declaration of Due Diligence, addressing the search efforts made for father.
On October 3, 2007, the juvenile court found due diligence was proper for father, but continued the hearing to December 17, 2007, due to improper notice. The December 17, 2007, Status Review Report states that father had not contacted the social worker and his whereabouts were unknown. The social worker had completed a new due diligence search for father.
Notice of the December 17, 2007, section 366.26 hearing was sent to father at a state prison address by certified mail. The notice apparently was returned marked "Not On Database." At the hearing, the juvenile court found proper notice for the hearing had been given to "all appropriate parties." The section 366.26 hearing was continued to January 10, 2008—with notice sent to father at a state prison address—and then to February 7, 2008.
The Departments February 7, 2008, Interim Review Report states that father had been incarcerated and that he was currently at the "Twin Towers." The report states that father had not contacted the Department, but that the social worker "submitted an in/out for father on 2/4/08." The record on appeal contains an unsigned copy of an order to transport father from the county jail to the juvenile court for the February 7, 2008, section 366.26 hearing. The record does not contain notice to father or fathers mother of the February 7, 2008, section 366.26 hearing.
Father did not attend the February 7, 2008, section 366.26 hearing and waived his appearance for, and presented no evidence at, that hearing. Mother testified in her own behalf. Father, through his attorney, and mother objected to the termination of their parental rights. Mother did not object on the ground that fathers notice of the hearing was inadequate due to notice not being given to fathers mother. The juvenile court found that notice of the hearing was proper and terminated mothers and fathers parental rights to Moses.
DISCUSSION
I. ICWA Compliance
Mother contends that the juvenile court and the Department failed to comply with the inquiry 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 mother was not prejudiced by the failure because there is no indication in the record that Moses has or may have Indian heritage, and mother does not allege that she, father, or fathers mother would have alleged that Moses has Indian heritage if the proper inquiries had been made. We conditionally reverse the order terminating mothers parental rights and remand for compliance with the ICWA as set forth below.
"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 minors 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 minors 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 childs parent or Indian custodian, or the childs tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914.)
Section 224.3 and California Rules of Court, 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."
All citations to rules are to the California Rules of Court. The rules with respect to the ICWA were amended effective January 1, 2008. Prior to January 1, 2008, rule 5.664 was the rule that mandated inquiry under the ICWA.
Rule 5.481(a) provides, in pertinent part:
"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). The Department concedes that the juvenile court and the Department failed to fulfill their respective duties under the ICWA to inquire whether Moses had Indian heritage by inquiring of mother, father, or fathers mother about fathers India heritage as required by section 224.3 and rule 5.481(a).
The Department argues that mother was not prejudiced by the failure to comply with the inquiry requirements of the ICWA because there is no indication in the record that Moses has or may have Indian heritage, and mother does not allege that she, father, or fathers mother would have alleged that Moses has Indian heritage if the proper inquiries had been made. "We refuse to speculate about what [the] response to any inquiry would be" and, thus, reject the Departments 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 mothers 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.)
II. Fathers Notice Of The Section 366.26 Hearing
Mother contends that fathers notice of the section 366.26 hearing was deficient because fathers whereabouts were unknown, and the Department did not give notice to fathers mother as required by section 294, subdivision (f)(7)(A). Respondent argues that mother lacks standing to raise this issue, mother forfeited appellate review of the issue by failing to object in the juvenile court, and any error was harmless. Mother has no standing to raise this issue on appeal.
Section 294, subdivision (f)(7)(A) provides, in relevant part, that notice to parents of a section 366.26 hearing may be given in the following manner:
"(7) If a parents identity is known but his or her whereabouts are unknown and the parent cannot, with reasonable diligence, be served in any manner specified in paragraphs (1) to (6), inclusive, the petitioner shall file an affidavit with the court at least 75 days before the hearing date, stating the name of the parent and describing the efforts made to locate and serve the parent.
"(A) If the court determines that there has been due diligence in attempting to locate and serve the parent and the probation officer or social worker recommends adoption, service shall be to that parents attorney of record, if any, by certified mail, return receipt requested. . . . [T]he court shall also order that notice be given to the grandparents of the child, if their identities and addresses are known, by first-class mail."
Because we hold that mother lacks standing to raise this issue on appeal, we need not address respondents other arguments that mother forfeited appellate review of this issue and that any error was harmless.
In In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193-1194 (Caitlin B.), a mother claimed error in the termination of her parental rights on the ground that neither of two alleged fathers had received proper notice of the section 366.26 hearing. The Court of Appeal rejected the mothers claim, holding that she lacked standing. (Ibid.) The Court of Appeal held, "`Where the interests of two parties interweave, either party has standing to litigate issues that have a[n] impact upon the related interests. This is a matter of first party standing. (In re Patricia E. (1985) 174 Cal.App.3d 1, 6 [father and daughter had interest in both her welfare and the parent-child relationship so father could assert daughters right to competent counsel].) In the absence of such intertwined interests, `a parent is precluded from raising issues on appeal which did not affect his or her own rights. (In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1806 .)" (Id. at p. 1193.)
Mother appears to argue that she has standing to raise the lack of notice to father in this case because the "termination of parental rights of one parent to free a child for adoption is permitted only where the parental rights of the childs other parent have been terminated." In support of this argument, mother relies on rule 5.752(a)(2) (former rule 1463(a)). The Court of Appeal in Caitlin B. rejected the same argument that mother makes here. (Caitlin B., supra, 78 Cal.App.4th at p. 1194.) The Court of Appeal held, "The compulsory joinder provision of California Rules of Court, rule 1463 is of no assistance to appellants argument. The rule merely requires that termination of both parents rights occur in a single proceeding. (In re Joshua M. (1997) 56 Cal.App.4th 801, 808 .) That was done here. The rule was never intended to serve a terminated parents interests in delaying termination. The stated purpose of the requirement that both parents rights be terminated in a single proceeding `is to free the dependent child for adoption. (Cal. Rules of Court, rule 1463(g).) Nothing in the rule gives appellant the right to urge on appeal that an error in terminating the fathers rights redounds to her benefit so as to make into error an errorless termination of her parental rights." (Ibid.) Accordingly, mother lacks standing to challenged the asserted lack of proper notice to father.
DISPOSITION
The order terminating mothers parental rights is conditionally reversed. The matter is remanded to the juvenile court for the limited purpose of inquiring of whether Moses is or may be an Indian child. If the inquiry produces evidence that Moses 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 Moses is or may be eligible for Indian tribal membership, the juvenile court shall proceed pursuant to the ICWA. If the inquiry produces no evidence that Moses is or may be an Indian child, or there is no confirmation from the BIA or any tribe that Moses is or may be eligible for Indian tribal membership, then the juvenile court shall reinstate the order terminating mothers parental rights as to Moses, and may proceed accordingly.
We concur:
TURNER, P. J.
KRIEGLER, J.