Opinion
A119146
9-3-2008
In re S. M. et al., Persons Coming Under the Juvenile Court Law. SAN FRANCISCO COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. M. G., Defendant and Appellant.
Not to be Published
M. G., the mother of two children, S. M. and N. M., appeals from the trial courts approval of long-term placement as the permanent plan for the children and terminating reunification services to appellant. Respondent San Francisco County Department of Human Services (Department) has filed a "Statement of Non-Opposition" in response to appellants opening brief and has requested that we augment the record to include a letter from the Karuk Tribe of California identifying the children as "Tribal children" who "would qualify to enroll in the Karuk Tribe" following completion of enrollment forms and stating that "the Karuk Tribe may decide to intervene" once the children are enrolled. The Department explains that its "non-opposition" is based upon the evidence that S. M. and N. M. are "Indian children" to whom the ICWA (25 U.S.C. § 1901 et seq.) applies. (25 U.S.C. § 1903(4).)
In her appellants opening brief, appellant argues that she was not provided reasonable services by the Department, that visitation was curtailed by allowing the children to decide whether it should occur, and that the failure to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) requires reversal. Because reversal and remand for a new disposition hearing are required under the ICWA, we do not address appellants other arguments. Nor do we recite the underlying facts or detailed procedural posture of the case.
In the circumstances presented, we deem it appropriate to take judicial notice of the ICWA-030 forms filed in the superior court on June 19, 2008, on behalf of the two children and the response of the Karuk Tribe of California, described above. (Evid. Code, § 452, subd. (d)(1).)
The Department recognizes that this development requires that we reverse the order and remand to the juvenile court so it can make orders in compliance with the ICWA. Title 25 U.S.C. section 1912(d) provides: "Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court 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." Title 25 U.S.C. section 1912(e) states: "No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, 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." State law also requires a qualified expert witness to testify when foster care placement is considered. (Welf. & Inst. Code, § 224.6, subd. (b) .) The Department agrees that the determination by the Karuk Tribe that the children are Indian children as described by 25 U.S.C. section 1903(4), triggered the requirement for appropriate findings pursuant to 25 U.S.C. section 1912(d) and (e), including those relating to the Departments "active efforts" and findings by clear and convincing evidence of the likelihood of serious emotional or physical damage to the children. The Department acknowledges that such findings were not made at the dispositional hearing. The Department therefore does not oppose appellants request to vacate the order approving long term placement as the permanent plan for the children and terminating reunification services to appellant.
Welfare and Institutions Code section 224.6 provides: "(a) When testimony of a `qualified expert witness is required in an Indian child custody proceeding, a `qualified expert witness may include, but is not limited to, a social worker, sociologist, physician, psychologist, traditional tribal therapist and healer, tribal spiritual leader, tribal historian, or tribal elder, provided the individual is not an employee of the person or agency recommending foster care placement or termination of parental rights.
"(b) In considering whether to involuntarily place an Indian child in foster care or to terminate the parental rights of the parent of an Indian child, the court shall:
"(1) Require that a qualified expert witness testify regarding whether continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
"(2) Consider evidence concerning the prevailing social and cultural standards of the Indian childs tribe, including that tribes family organization and child-rearing practices.
"(c) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:
"(1) A member of the Indian childs tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.
"(2) Any expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian childs tribe.
"(3) A professional person having substantial education and experience in the area of his or her specialty.
"(d) The court or any party may request the assistance of the Indian childs tribe or Bureau of Indian Affairs agency serving the Indian childs tribe in locating persons qualified to serve as expert witnesses.
"(e) The court may accept a declaration or affidavit from a qualified expert witness in lieu of testimony only if the parties have so stipulated in writing and the court is satisfied the stipulation is made knowingly, intelligently, and voluntarily."
DISPOSITION
The disposition orders approving long-term placement as the permanent plan for the children and terminating reunification services to appellant are reversed and the matter is remanded to the juvenile court with instructions to proceed in conformity with the provisions of the ICWA.
We concur:
LAMBDEN, J.
RICHMAN, J.