Opinion
D050749
1-2-2008
In re R.B. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. H.T., Defendant and Appellant.
NOT TO BE PUBLISHED
H.T. (H.) appeals from judgments terminating parental rights to her children, R.B. (R.) and K.T. (K.), under Welfare and Institutions Code section 366.26. H. asserts the court erred when it did not inquire of K.s father whether K. is or may be an Indian child under the Indian Child Welfare Act (ICWA), title 25 United States Code section 1901 et seq., as required by California Rules of Court, rule 5.664(d), then rule 1439(d). H. does not raise any issue with respect to R., and we dismiss the appeal as to R.
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
Further rule references are to the California Rules of Court.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2004 the San Diego County Health and Human Services Agency (Agency) removed six-year-old R. and three-year-old K. (children) from the custody of their mother, H. The Agency alleged the children were at substantial risk of serious physical harm or illness because of H.s inadequate supervision. (§ 300, subd. (b).)
At the initial hearing, H. completed a paternity questionnaire for each child. She alleged James B. was R.s father. She did not know Jamess whereabouts, and did not know whether he had American Indian heritage. H. declared that K.s father was Edward C. and paternity testing confirmed the biological relationship. She stated that Edward had helped support both children but was currently incarcerated. H. did not know whether Edward had American Indian heritage.
With respect to her own heritage, H., through counsel, stated: "There does not appear to be any American Indian heritage." The court found that H. did not know whether she had American Indian heritage and she did not indicate the children had American Indian heritage. The court determined ICWA did not apply (December 2004 finding).
The Agency conducted several due diligence searches for James, R.s alleged father. Jamess whereabouts remained unknown throughout the proceedings, and paternity was not established.
The Agency located Edward at a California state prison shortly before the January 6, 2005, jurisdiction hearing. Edward waived his appearance until he was released from custody.
H. submitted to jurisdiction. (§ 300, subd. (b).) At the disposition hearing, the court removed the children from parental custody, placed them in foster care and ordered a plan of family reunification services for H. Because of R.s needs for special services, the children were placed in separate foster homes.
The social worker interviewed Edward after his release from prison in March 2005. Her detailed report of the interview does not indicate she asked him whether he had any American Indian heritage. On March 30 Edward appeared in court for the first time and requested reunification services. The minute order does not show the court asked Edward whether K. is or may be an Indian child, or made findings concerning ICWA.
This court denied as untimely appellants requests to augment the record with the transcript of March 30, 2005, hearing.
Despite an extended period of services, H. did not show she could safely care for the children. Edward stabilized his situation, and the Agency supported his efforts to regain custody of K. However, Edward came to believe it would be emotionally detrimental to K. to remove her from the foster home and did not contest the Agencys recommendation to terminate parental rights. He supported K.s proposed adoption by her foster parent, who also wanted to adopt R.
H. contested the recommendations and argued the beneficial parent-child exception applied to preclude termination of parental rights.
The court found that the children were adoptable and the beneficial parent-child exception did not apply, and terminated parental rights. The court did not make any inquiry or findings as to ICWA.
DISCUSSION
I.
The Appeal As to R. Is Abandoned
H.s appeal is based solely on alleged ICWA violations as to K. She does not raise any argument to support a theory the court erred when it terminated parental rights as to R. We treat her appeal as to R. as abandoned. (In re Barbara R. (2006) 137 Cal.App.4th 941, 949; see In re Randalls Estate (1924) 194 Cal. 725, 728-729.)
At oral argument, Minors Counsel noted that R. and K. are a bonded sibling group. Counsel requested in the event this matter was conditionally reversed and remanded for further proceedings under ICWA, that we conditionally reverse the judgment terminating parental rights to R. Minors Counsel acknowledged there are no issues raised on appeal as to R.
If further proceedings become necessary, R. may file a petition requesting the appointment of a guardian ad litem to act on his behalf and the courts consideration when determining or implementing a permanent plan for K. (§ 388, subd. (b).)
II.
Introduction
H. contends the Agency and the court did not meet their duty to inquire of Edward whether K. is or may be an Indian child. She maintains the court erred when it did not order Edward to complete the mandatory form, Parental Notification of Indian Status (Juvenile Court) (form JV-130), as required by rule 1439(d)(3), now rule 5.664(d)(3). H. asserts this error requires this court to reverse the judgment terminating parental rights to K. and remand the case to the trial court to comply with inquiry provisions under section 224.3 and rule 5.664(d), and if applicable, to provide ICWA notice. (§§ 224.2, 224.3, subd. (d); 25 U.S.C. § 1912.) H. contends she does not have to show the lack of inquiry was prejudicial.
Rule 1439 was renumbered rule 5.664, effective January 1, 2007. (Rule 5.664.) The Judicial Council of California adopted form JV-130 for mandatory use effective January 1, 2005. As of December 28, 2007, the JV-130 form available online for general use references rule 1439. (See <http://www.courtinfo.ca.gov/forms>.)
In her reply brief, H. asserts that she and Edward have Cherokee ancestry. H.s appellate counsel acknowledges this information is not part of the record on appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.)
The Agency acknowledges the record does not expressly establish that the court ordered Edward to complete form JV-130. The Agency contends H. lacks standing to raise the issue of inadequate notice or, alternatively, has forfeited the issue on appeal by not raising the issue in the trial court. The Agency submits that the record, taken as a whole, establishes that it and the court satisfied the duty to inquire whether K. is or may be an Indian child. In the event this court finds inadequate inquiry, the Agency argues reversal is not required because the record does not contain any evidence to show K. is or may be an Indian child; therefore, H. has not shown that "a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
III.
Duty of Inquiry
In 1978 the United States Congress resolved to protect and preserve Indian tribes and their resources and, to accomplish that purpose, passed ICWA. (25 U.S.C. §§ 1901, 1902.) ICWA was specifically designed to help Indian children retain their familial, tribal and cultural ties. (In re Crystal K. (1990) 226 Cal.App.3d 655, 665.) It sets forth minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes. (25 U.S.C. § 1902.)
Under the notice provision of ICWA, if "the court knows or has reason to know that an Indian child is involved," the agency must "notify . . . the Indian childs tribe . . . of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a).) Because the lack of " proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe," notice requirements are strictly construed. " (In re Karla C. (2003) 113 Cal.App.4th 166, 174.)
Where the state provides a higher level of protection to the rights of a parent or Indian custodian of an Indian child than federal law, ICWA directs state and federal courts to apply the higher state standard. (25 U.S.C. § 1921; see § 224, subd. (d).) ICWA was adopted in California effective January 1, 1995, as rule 1439. (10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 522, p. 640.)
At the time K.s dependency proceedings were initiated in December 2004, rule 1439(d) provided: "The court and the county welfare department have an affirmative duty to inquire whether a child . . . is or may be an Indian child. (1) Section 1(l) or 1(m) of the Juvenile Dependency Petition (Version One ) (JV-100) . . . must be checked if there is reason to know the child may be a member of or eligible for membership in a federally recognized Indian tribe or if there is reason to believe the child may be of Indian ancestry." Here, the social worker did not check sections l(l) or l(m) on the section 300 petitions filed for R. and K.
Effective January 1, 2005, the Judicial Council amended rule 1439(d) to place on the court and agency "an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 . . . is to be, or has been, filed is or may be an Indian child." (Rule 1439(d), italics added; see Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines) (44 Fed.Reg. 67584, 67586, § A(1) (Nov. 26, 1979)).) The amended rule also directed the social worker to ask the parents whether the child may be an Indian child or may have Indian ancestors and instructed the court to order the parent to complete form JV-130, Parental Notification of Indian Status, at the first appearance by a parent in any dependency case. (Rule 1439(d)(2), (3).) This rule was in effect at the time of Edwards first appearance on March 30, 2005.
Effective January 1, 2007, the Legislature codified ICWA notice requirements set forth in the BIA Guidelines, rule 1439(d) and case law in a comprehensive reorganization of statutes related to the application of ICWA. (Sen. Bill No. 678 (2005-2006 Reg. Sess.) § 31; 10 Witkin, Summary of Cal. Law (2007 supp.) Parent and Child, § 526, pp. 100-101; cf. In re J.T. (2007) 154 Cal.App.4th 986, 993; see BIA Guidelines, supra, 44 Fed.Reg. at p. 67588, § B.5(a); rule 5.664; In re A.C. (2007) 155 Cal.App.4th 282, 286.) Here, at the time of the section 366.26 hearing, this reorganization, including section 224.3, was in effect.
Section 224.3, subdivision (a) imposes an "affirmative and continuing duty" on the court and agency "to inquire whether the child for whom a petition . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings . . . ." The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following:
"(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 childs extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the childs biological parents, grandparents, or great-grandparents are or were a member of a tribe.
"(2) The residence or domicile of the child, the childs parents, or Indian custodian is in a predominantly Indian community.
"(3) The child or the childs family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service." (§ 224.3, subd. (b) (italics added).)
If the court or social worker knows or has reason to know that an Indian child is involved, then the social worker must make further inquiries to garner information required for proper notice under section 224.2. (§ 224.3, subd. (c); 25 U.S.C. § 1912(a); rule 5.664(d); see 25 C.F.R. § 23.11(d)(3) (2007); § 224.2, subd. (a); In re S.M. (2004) 118 Cal.App.4th 1108, 1116; In re Robert A. (2007) 147 Cal.App.4th 982, 988-989.) In view of the statutory framework, an adequate inquiry under section 224.3, subdivision (a) and rule 5.664(d) is a mandatory prerequisite to providing proper notice to Indian tribes under ICWA. (25 U.S.C. § 1912(a); § 224.2, subd. (a); rule 5.664(f); see 25 U.S.C. § 1921; § 224, subd. (d).)
IV.
Preliminary Issues
Standing
The Agency argues H. lacks standing to appeal the lack of inquiry into Edwards American Indian heritage. The Agency posits that in notice cases the record contains some suggestion the child may have Indian ancestry, and this suggestion is sufficient to show on appeal that the parent has a legally cognizable interest that may be injuriously affected by the courts decision. The Agency argues where the record contains no evidence of Indian ancestry, as here, the parent cannot show that he or she was aggrieved by the lack of inquiry into the childs Indian heritage, and therefore does not have standing to raise the issue on appeal.
We reject the Agencys argument. Under the Agencys theory, a parent may never be able to establish standing to raise the issue of inadequate inquiry on appeal. Thus, a party would not be able to obtain a remedy on appeal for an error involving inadequate inquiry unless the party first cured the error. (Cf. People v. Broome (1988) 201 Cal.App.3d 1479, 1489, fn. 2; see, e.g., In re Steven H. (2001) 86 Cal.App.4th 1023, 1031; Rhodes v. Robinson (2005) 408 F.3d 559, 566-567.)
As we have discussed, ante at p. 9, an adequate inquiry is a requisite component of ICWA notice. A non-Indian parent has standing to challenge the adequacy of ICWA notice resulting from the Indian heritage of the other parent. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.) Thus, H. has standing to challenge the adequacy of inquiry whether K. is or may be an Indian child.
Forfeiture
Alternatively, the Agency argues H. has forfeited her challenge of inadequate inquiry because she did not raise the issue in the trial court.
H.s failure to raise the ICWA compliance issue in the trial court did not affect the obligations of the court and the Agency to comply with the law for the possible benefit of K. and any interested tribe. The duty to inquire serves the interests of the tribe as much as, or even more than, the interests of the parent. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 258; see also In re Desiree F. (2000) 83 Cal.App.4th 460, 469-472.) H. has not forfeited the issue on appeal.
V.
The Record Does Not Show the Agency and the Court Asked Edward Whether He Had Any Indian Heritage
H. contends the court did not order Edward to complete form JV-130 at his first appearance in K.s dependency case and did not otherwise fulfill its duty to inquire whether K. is or may be an Indian child. She asserts the error requires reversal. H. argues she is not required to demonstrate prejudice on appeal where the record shows the court and agency did not fulfill their duty to whether the child is or may be an Indian child. (In re J.N. (2006) 138 Cal.App.4th 450, 461-462.).
The Agency contends the courts failure to order Edward to complete form JV-130 is harmless error, and asserts there is substantial evidence to show that it and the court fulfilled their duty of inquiry under former rule 1439(d). The Agency also argues a parent raising a claim of inadequate inquiry on appeal must make an affirmative representation of Indian heritage sufficient to show there has been a miscarriage of justice requiring reversal. (In re Rebecca R. (2006) 143 Cal.App.4th 1426 (Rebecca R.); Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d at p. 836.)
The Agency also argues Edward was African-American, not Native American, and suggests this information is relevant to an inquiry whether K. is or may be an Indian child. We reject the Agencys argument. Race is not determinative under ICWA. Instead, ICWA recognizes the political affiliation that follows from tribal membership in a federally recognized tribe, and does not discriminate on a racial basis. (In re Vincent M. (2007) 150 Cal.App.4th 1247, 1267; see Morton v. Mancari (1974) 417 U.S. 535, 553-554.) Each Indian tribe has sole authority to determine its membership criteria and to decide who meets those criteria. (In re Santos Y. (2001) 92 Cal.App.4th 1274, 1300; citing Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.; see § 224, subd. (c).) We also reject the Agencys argument to the extent it suggests that the Agency and court need not inquire of a parent, or the burden of producing information shifts to the parent, when the matter involves a parent who is or may be identified as having a racial or ethnic affiliation other than American Indian.
Appellate courts apply the substantial evidence standard of review when the appeal challenges the trier of facts resolution of disputed factual questions. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) In contrast, the abuse of discretion standard examines whether the trial courts act fell within the range of legally permissible options. Both standards entail substantial deference to the decision-maker below. (Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 624, Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) [¶][¶] 8:88 to 8:89, pp. 8-36 to 8-37.) Here, the issue is whether the court performed a mandatory duty, therefore we review the record under an abuse of discretion standard.
The use of form JV-130 at the parents first appearance in dependency court is mandated by judicial rule; however, we believe that its absence does not necessarily require reversal where the record shows the court otherwise conducted an adequate inquiry. (Cf. In re Mary G. (2007) 151 Cal.App.4th 184, 211 ["Sending an ICWA notice to the wrong address is error, and the error is prejudicial when . . . the record lacks conclusive evidence the tribe received actual notice"]; see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783.)
When the court has made an otherwise adequate inquiry, the failure to order a parent to complete form JV-130 may constitute harmless error. Thus, the focus of our discussion is not whether the court ordered Edward to complete form JV-130, which it did not, but whether the court and the agency otherwise fulfilled its duty of inquiry under former rule 1439(d), effective January 1, 2005, or section 224.3, subdivision (a) and rule 5.664(d), effective January 1, 2007.
The Agency argues where the social worker has submitted reports affirmatively stating ICWA does not apply, it is fair to infer the social worker made the necessary inquiry. (In re S.B. (2005) 130 Cal.App.4th 1148, 1161; Rebecca R., supra, 143 Cal.App.4th at p. 1430.) The Agency contends this court may draw the reasonable inference that the social worker made a proper inquiry based on the section 300 petition filed on K.s behalf in December 2004 and its status review reports dated July 21, 2005, December 28, 2005, and February 7, 2007. Those reports stated, "The Indian Child Welfare Act does not apply."
H. points out that in reports dated January 10, 2006, May 19, 2006, June 7, 2006, June 21, 2006, and July 18, 2006, the Agency stated, "On 12/15/04, the court found that the Indian Child Welfare Act 25 U.S.C. does not apply in this case." She contends these statements show the Agency relied on the courts December 2004 finding that ICWA did not apply, and do not permit the inference the Agency and the court made the inquiry required under rule 1439(d), effective January 1, 2005.
We are not persuaded by the Agencys contentions. On December 14, 2004, the court found that H. did not know whether she had Indian ancestry and under the standards in place at that time, the court determined that ICWA did not apply. Thus, the courts findings in December 2004 do not fulfill its duty to inquire under rule 1439(d), effective January 1, 2005. That rule imposed an "affirmative and continuing duty to inquire" into any Indian heritage of a child for whom a petition "is to be, or has been filed." (Rule 1439(d), italics added.) The courts previous findings did not fulfill its obligation to order Edward to complete form JV-130 at his first appearance in the dependency proceedings, or otherwise inquire about his Indian heritage.
The record does not allow this court to infer that the trial court asked Edward whether he had any Indian heritage. The social worker did not interview Edward before she filed the section 300 petition and completed the parent demographic form; he was not located until shortly before the jurisdiction hearing. The Agencys statements in some of its reports that ICWA does not apply are conclusory and are contradicted by other statements that indicate the Agencys conclusion was based only on the courts December 2004 finding. None of the Agencys reports state that Edward was asked whether he had any Indian ancestry. (In re J.N., supra, 138 Cal.App.4th at p. 461.) Unlike Rebecca R., the court did not order the Agency to inquire whether the child had Indian ancestry. (Rebecca R., supra, 143 Cal.App.4th at p. 1430.) Here, the record is clear that the court did not make any other findings concerning ICWA after December 2004.
We find nothing in the record to show the Agency and the court asked Edward about any possible Indian heritage. (In re J.N., supra, 138 Cal.App.4th at p. 461.) It is up to the juvenile court to adhere to the procedures imposed by ICWA, including any higher standards imposed by state law, so that it may make a determination whether further inquiry and notice is required. (Cf. In re Mary G., supra, 151 Cal.App.4th at p. 212; In re Jennifer A. (2002) 103 Cal.App.4th 692, 705.) We conclude the court erred when it did not make an "affirmative and continuing inquiry" whether K. is or may be an Indian child after Edwards first appearance in the case, as required under former rule 1439(d), and section 224.3, subdivision (a) and rule 5.664(d). The error requires reversal.
Rebecca R. does not apply here. At the time of the parents first appearance in that case, rule 1439(d) was not in force, and form JV-130 did not yet exist. (Rebecca R., supra, 143 Cal.App.4th at p. 1429; see In re Mary G., supra, 151 Cal.App.4th at pp. 211-212 [rejecting the argument a parent is required to produce evidence the child is a member of or eligible for membership in an Indian tribe as a prerequisite to reversal from ICWA notice deficiencies].)
DISPOSITION
The judgment terminating parental rights to R. is affirmed. The judgment terminating parental rights to K. is reversed, and the matter is remanded to the juvenile court with directions to inquire of Edward whether he has any American Indian heritage, if it has not already done so. (§ 224.3, subd. (a); rule 5.664(d).)
If inquiry produces no evidence that K. is or may be an Indian child or, if notice is required and there is no confirmation that K. is or may be eligible for membership in an Indian tribe, the court shall reinstate its findings and orders terminating parental rights. If, however, it is determined that K. is an Indian child and that ICWA applies to these proceedings, the court is directed to hold a new permanency hearing for K. under section 366.26.
We concur:
McCONNELL, P. J.
NARES, J.