Opinion
F085988
06-30-2023
JASON H., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Heather A. Von Hagen, under appointment by the Court of Appeal, for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Super. Ct. No. 21CEJ300315-1, Kimberly J. Nystrom-Geist, Judge.
Heather A. Von Hagen, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Real Party in Interest.
OPINION
THE COURT [*]
Petitioner Jason H. filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's order terminating reunification services for his child K.M., and setting a Welfare and Institutions Code section 366.26 hearing. He contends that the Fresno County Department of Social Services (department) did not act diligently to enroll K.M. in the Choctaw Nation of Oklahoma, thereby "depriving all parties of the protections of the Indian Child Welfare Act, and preventing the Choctaw Nation from intervening in these proceedings." Jason H. asks that we stay the upcoming July 19, 2023, section 366.26 hearing and "invalidate" the findings of the juvenile court. We decline to order the stay and deny the writ petition for reasons set forth below. However, we urge both counsel for Jason H. and K.M. to make a motion in the dependency court to continue the section 366.26 hearing pursuant to section 352 to allow the Choctaw Nation of Oklahoma (the Tribe) to conclude its consideration of the pending enrollment application.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
K.M. was born in November 2020 to L.M. (mother) and then presumed father Jose M. Shortly thereafter, due to ongoing concerns of drug use by mother and Jose M., and positive toxicology reports while mother was pregnant with K.M., a safety plan was initiated by the department for K.M. to be placed into a plan of legal guardianship with Jose M.'s parents while mother and Jose M. participated in substance abuse treatment. On August 5, 2021, the department received a referral alleging general neglect of K.M. by mother and Jose M. Jose M.'s relatives had been providing care for K.M. since November 2020 and it was reported that mother and Jose M. threatened his relatives and said they would pick up K.M. It was suspected that both mother and Jose M., who were uncooperative with the department, were still using methamphetamine. The department sought and was granted a protective custody warrant for K.M.
On August 26, 2021, the department had contact with mother and asked about K.M.'s paternity. She reported that Jose M., who signed a declaration of paternity and K.M.'s birth certificate, had been excluded as K.M.'s father due to a home DNA test, and that Jason H. was K.M.'s biological father, but he was not involved in K.M.'s life and his whereabouts were unknown. Form ICWA-010(A) completed on August 25, 2021 (and the subsequent detention report) state that the department had not been able to complete an inquiry about K.M.'s Indian status due to lack of cooperation from the parents.
The department filed a section 300 petition August 30, 2021, listing Jose M. as presumed father and Jason H. as biological father. The petition alleged mother and Jose M. had substance abuse issues. K.M., at nine months old, was detained.
An amended section 300 petition was filed September 1, 2021, changing Jose M.'s status from presumed to alleged father and adding another individual, D.L., as presumed father because he and mother were still married.
Detention Hearing
Neither mother nor Jose M. was present at the detention hearing September 2, 2021, and no information was provided regarding the applicability of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Jurisdiction was scheduled for September 22, 2021, but was continued to November 17, 2021, due to a lack of adequate ICWA notice by the department.
Jurisdiction Hearing
Mother appeared at the November 17, 2021, jurisdiction hearing; Jason H. was located in custody. Counsel was appointed for each of them. The department was ordered to offer Jason H. a paternity test. The minute order for that date states that mother was to file a form ICWA-020 within five days, as mother had informed the court of her Indian ancestry. The case was continued due to the appointment of counsel and a combined jurisdiction and disposition hearing was set for December 21, 2021.
Jurisdiction/Disposition Hearing.
The report prepared for the December 21, 2021, jurisdiction/disposition hearing stated that ICWA "may or may not" apply, and that mother had not yet completed the form ICWA-020. The report indicated that, per department records from 2003, M.K.'s maternal grandmother had previously reported that great-grandmother was an enrolled member of the Tribe. Alice, mother's sister living in Firebaugh, was also an enrolled member of the Tribe. Mother stated that, while she was not an enrolled member of any Native Nation since her family had not followed through with the process, she did believe she was of Native American descent through great-grandmother.
No parties appeared at the hearing on December 21, 2021. While Jason H. had been released from custody, the department had not yet done a paternity test. The department requested that the hearing be continued due to ICWA noticing issues. The matter was continued to February 24, 2022.
On January 20, 2022, Jason H. contacted the department and said he was no longer in custody, he was participating in a residential treatment program expected to last until April 10, 2022, and he wished to complete the DNA test. An appointment was scheduled for February 21, 2022.
On January 21, 2022, the department sent notice to the Mississippi Band of Choctaw Indians; the Cherokee Nation, Eastern Band of Cherokee Indians; United Keetoowah Band of Cherokee Indians; and Choctaw Nation of Oklahoma, including the ICWA-030 form with relevant information.
The Mississippi Band of Choctaw Indians, the Cherokee Nation, Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians all reported that neither mother, K.M., nor Jose M. were enrolled or eligible for enrollment.
On February 3, 2022, the Choctaw Nation of Oklahoma responded as follows:
"The Choctaw Nation Department of Children &Family Services (CFS) received your request to confirm the Indian Status of the abovenamed minor child(ren) in [Notice of Child Custody Proceedings, Superior Court of California, County of Fresno, Case# 21-300315], on [01/27/2022]. At this time, the child does not qualify as an "Indian Child" under the federal Indian Child Welfare Act (ICWA). However, our records indicate that the child's [Maternal] Grandmother, [M.F.], is a member of the Choctaw Nation of Oklahoma.
"Eligibility for membership in the Choctaw Nation is based on documented lineage and does not require a specific blood quantum. The biological [mother], [L.M.] . . ., and their minor child(ren) are eligible for membership through the lineage of the above referenced member. Once either the biological mother/father or the child is enrolled, the child will qualify as an 'Indian Child.' Please advise the parent or legal guardian to complete the enclosed application for Certificate of Degree of Indian Blood (CDIB) and Choctaw Nation membership application for the child. You may return these applications to the Choctaw Nation's CDIB Office. If there are questions about the application process, please contact the CDIB Office at 800.522.6170 or by email help@choctawnation.com.
Although the ICWA does not yet apply in this case, we have a vested interest in the welfare of children who are eligible for membership with the Choctaw Nation. We respectfully request that you notify us immediately of any changes in this child's Indian Status. The supervisor who will [be] assign[ed] to this case is Lawanna Thompson, she can be reached at 918-429-7692 or by email at lthompson@choctawnation.com."
On February 24, 2022, the matter was set for a contested jurisdiction/disposition hearing with a trial date of March 9, 2022.
Jurisdiction/Disposition
At the contested hearing on March 9, 2022, the juvenile court took jurisdiction and ordered family reunification services for mother. Paternity status for Jose M. was changed to "alleged" and D.L.'s status was elevated to "presumed." D.L. was not ordered reunification services pursuant to section 361.2, subdivision (a) and Jose M. and Jason H. were not offered services pursuant to section 361.5, subdivision (a). Jason H.'s counsel requested to continue the hearing to obtain the paternity test results. The juvenile court denied the request.
The juvenile court directed the department to assist K.M. to become enrolled in the Choctaw Tribe. The department was ordered to provide an addendum report by March 28, 2022, and an interim review hearing for ICWA issues and results of the paternity test for Jason H. was set for April 6, 2022. A combined six- and 12-month review was set for September 8, 2022.
On March 25, 2022, department social worker practitioner Daniel Siguenza spoke to social worker Amber Scott at the Choctaw Nation membership department. Siguenza was informed that an application for enrollment in the Tribe would need to be filled out for K.M., and a long form birth certification and social security card attached to the application. Siguenza was informed that, once the Tribe received the appropriate documents, a qualified expert witness (QEW) would be needed to move forward on the case. Siguenza was provided a list of QEWs who have worked with the Tribe in the past.
Siguenza initiated the process of completing the application for K.M. and began to gather the necessary documents. It takes six to eight weeks, on average, to get a state certified birth certificate.
Interim Review
At the April 6, 2022, review hearing, it was represented that the social worker was waiting for the birth certificate from the state, which was causing the delay in completing the application for enrollment. Jason H.'s parental status was elevated to biological father and ordered family reunification services. The combined six- and 12-month review hearing remained on calendar for September 8, 2022.
On August 9, 2022, four months later, department social worker Susan Soudchantho contacted the Tribe's social worker Amber Scott concerning K.M.'s enrollment application, because mother had not been in contact with the department to sign it. Scott provided a membership affidavit of personal knowledge to confirm that K.M. was mother's daughter, and advised the department to reach out to family or friends of K.M.'s parents who would be willing to sign the affidavit to complete enrollment application. Scott stated that the Tribe would participate in the case once K.M. was enrolled. It was reported that none of the alleged/biological/presumed fathers had any Native American ancestry.
The affidavit to confirm that K.M. was mother's biological daughter was completed by K.M.'s current care provider on September 22, 2022.
On September 8, 2022, the matter was continued to October 13, 2022, at the request of the department due to defective notice for Jose M. (alleged father) and D.L. (presumed father). The matter was subsequently continued to November 17, 2022.
On November 17, 2022, Jason H. requested a trial regarding the department's recommendation to terminate his reunification services and set a hearing pursuant to section 366.26. The trial was set for March 2, 2023, for a combined six-, 12-, and 18-month review hearing, provided the department filed a timely report.
Combined Review Hearing
The hearing was subsequently held March 3, 2023. Jason H. and department social worker Soudchantho testified. Soudchantho testified that she was assigned to the case on April 12, 2022, and spoke to Scott the same day. Scott advised her that she wished mother and K.M. enrolled in the Tribe at the same time, and requested that the department get in contact with mother and get state birth certificates for mother and a notarized document stating K.M. was her biological child. Soudchantho testified that she attempted to get in touch with mother numerous times and tried to make contact with any known family members who were enrolled in the Tribe. Soudchantho contacted Scott frequently with concerns about enrollment as she was not able to make contact with mother.
In August 2022, Soudchantho spoke with Scott about "other avenues to at least enroll [K.M.] as we did not want this to impede her being enrolled in the tribe and the tribe ultimately providing services for her and her future." Scott then provided an alternative affidavit and advised Soudchantho to discuss with friends or relatives of mother who may have known mother closely and could sign the affidavit to confirm that K.M. was mother's biological child. Soudchantho testified that the current care provider, who knew mother, eventually agreed to sign the affidavit on September 22, 2022.
Although the affidavit had been signed, the enrollment packet was not sent to the Tribe until November as the department and Scott went "back and forth about the state certified birth certificate versus the county certified birth certificate." Scott verified that it was the state birth certificate that needed to be sent, and Soudchantho also testified there had been issues in obtaining K.M.'s social security card. Additional attempts to contact mother were unsuccessful. Soudchantho testified that, after the packet was submitted in November of 2022, with the supplemental document of the social security number, the department did not hear back from the Tribe until January 19, 2023, wherein the Tribe stated, "they wanted an affidavit to ... include additional information regarding why the native family was not contacted or the attempts to contact Native American family included in the affidavit, as well as the actual social security card for the minor." Soudchantho testified that the department was still currently in the process of retrieving the social security card and the state certified birth certificate for K.M.
The state certified birth certificate is sometimes referred to as the long form birth certificate. The county birth certificate is an abbreviated version of the actual birth certificate.
Soudchantho testified that she told Scott in December 2022 about all the past hearings, as well as the recommendation of the department. Scott stated she would not be present at the upcoming hearing due to K.M. not being enrolled and mother not being enrolled as well. Scott did ask if there were any tribal approved homes in the area and stated she had read the report that K.M. was placed with "relatives and/or mentors." Soudchantho told Scott that she had been in contact with local tribal representatives and inquired of "tribally approved homes," but "none were available at the time" and she would follow-up monthly. As of late February 2023, none were available.
When asked what was currently pending on K.M.'s application, Soudchantho stated the department was waiting on the state certified birth certificate, and she was in contact with Ms. John, the program coordinator for the tribal membership program, and was "requesting for the supplemental document for the social security card to be found as verifying, as social security cards usually take about two to three months to come in."
The juvenile court then sought to clarify the timeline and asked when mother's state certified birth certificate was requested. Soudchantho stated mother's birth certificate was requested from mother when she was first assigned to the case in April 2022. When that was received, the department believed it had enough documentation to submit the application for both mom and K.M., but was not told until January 19, 2023, that they needed K.M.'s as well. That was then requested on January 19, 2023, and it had not been received as yet. The department requested a duplicate social security card for K.M. on January 24, 2023, and it had not been received as yet. Soudchantho testified that, while the social security card process could take three months, perhaps until the end of April 2023, she was working with Ms. John to see if "our document would suffice for the social security card."
Counsel for the department was asked whether the department ever considered having Jason H. sign the affidavit, as he was "somebody who would know the mother and the child." Counsel stated Jason H. had been difficult to contact during that time and he "reemerged" in January 2023.
On cross-examination by Jason H.'s counsel, Soudchantho testified that she had informed Scott of the dependency timeline. She also reiterated that she had attempted to make contact with mother multiple times to participate in K.M.'s enrollment process, to no avail.
Mother's counsel questioned Soudchantho on the "delivered service logs" which were sent to counsel and noted that the first reference to Scott and ICWA did not appear until August 3, 2022. Soudchantho did not think that date was accurate. Although Soudchantho stated she had had five or six contacts with Scott between April and September 2022, only one on August 3, 2022, was narrated. Soudchantho testified that she "must have forgotten to narrate them" as both she and "our ICWA liaison" made contact and Soudchantho was "under the impression that our liaison was narrating them." Carmen Garcia was the ICWA liaison working with Scott, however, there were no entries by Garcia showing communication with Scott between April and August either.
On redirect, Soudchantho testified that at times she communicated with Scott via e-mail and uploaded those e-mails about her delivered service log. Soudchantho stated she had 25 current cases and, although she tried to keep her narratives as accurate as possible, she was not always able to keep up with them. Soudchantho testified that, in regards to her conversation with Scott, she was basing her testimony on individual recollection of those conversations, as well as review of her delivered service logs to support her recollection.
At this point, "[t]o allow attorneys to be fully prepared on the legal issue," the hearing was continued to March 14, 2023. The juvenile court stated that, "At this point it appears to the Court that the situation is -- if not unique, at least quite unusual. And it is for the tribe to decide who is and is not a member/ It is the tribe to decide if they are going •to intervene/ And on one side of that, it's very easy to understand/ If a tribe says that a person is a member -- or if a tribe determines that someone is a member, it's not for the Court or the Department of Social Services to second guess that. That side is very easy to understand. •In this particular situation [K.M.] is not enrolled at this time, but the tribe has clearly identified that but for technicalities, she would be/ And that but for technicalities, the tribe would intervene/ So the legal issue is what standards should the Court apply to these circumstances understanding that today [K.M.] is not an Indian child, according to the tribe; however, the tribe has indicated that once the proper papers are prepared/then the tribe would be intervening."
At the resumed hearing on March 14, 2023, Scott was available and testified that she monitored cases involving Tribe children in dependency cases and made sure the ICWA was applied correctly. Scott testified that K.M.'s maternal grandmother and maternal aunt, Alice, were enrolled in the Tribe. Scott testified that Alice and mother were sisters. According to Scott the state issued certified long form birth certificate was required in order to enroll K.M. in the Tribe, and a county birth certificate would not suffice. Scott testified that, in addition to the required long form birth certificate, enrollment required a completed application and a sworn statement signed "by preferably a Native American Choctaw parent." If that was not possible, "an affidavit of personal knowledge, preferably by the other parent, the non-Choctaw." And if that was not possible, "then someone that has personal knowledge that these parents are the biological parents of this child." If the latter alternative was used, the Tribe also needed a statement from the social worker as to why the parents could not or would not sign the sworn statement. Also needed was the child's social security card.
According to Scott, a letter dated February 3, 2023, was received by the Tribe from the department which stated a membership application was enclosed, although Scott stated she could not verify the application was included, "but that's what the letter says." Scott testified that mother's sister, Alice, had a dependency case in Fresno County and her children were removed from her in October of 2021. The children were residing in Firebaugh with maternal grandmother. Maternal grandmother would have been able to sign the sworn affidavit. Alice was an enrolled member of the Tribe, ICWA had been applied to her case, and the Tribe intervened in that case.
Scott testified that she first communicated with Soudchantho in August 2022 and told her the long form birth certificate was needed for both mother and K.M. Scott did not recall having communication at least once a month between May and August 2022, as testified to by Soudchantho, and she did not have any type of information showing such communication. Scott testified that the enrollment packet for K.M., sent in November 2022, had not been signed. The application did include the affidavit of personal knowledge signed by the care provider, the care providers driver's license and social security number, a foster care form with K.M.'s social security number (but not social security card), a form that the department was applying for the card, and a copy of mother's state certified birth certificate.
According to Scott, Soudchantho was informed again on January 11, 2023, what was needed to complete the enrollment process. On January 26, 2023, Scott was informed that the department was still waiting for K.M.'s birth certificate. Soudchantho was reminded that a notarized statement from the department was needed explaining why the parent could not sign the sworn statement. As of March 8, 2023, Soudchantho informed Scott that they were still waiting for K.M.'s birth certificate and social security card.
Scott approximated that it would take "maybe four months" to enroll a minor in K.M.'s situation, but that getting the birth certificates and documents "tends to be difficult" and could take a year or longer. Scott was confident that, once the necessary paperwork was received, K.M. would be enrolled and considered an Indian child under the ICWA. Scott clarified that, currently, the ICWA did not apply in this case, and the Tribe would not intervene "unless the Choctaw parents or child is enrolled. It could be either one."
Prior to being excused as a witness, Scott asked if she could add "one thing," which the juvenile court allowed. Scott then stated, "[e]ven though this isn't an Indian Child Welfare Act case, the tribe would recommend that the Department handle the case as an ICWA case just because both mom and child are eligible for membership.."
Request for Continuance Pursuant to Section 352
Jason H.'s counsel then requested a continuance pursuant section 352, as the department had not followed through on the juvenile court's March 9, 2022, order requiring the department to enroll K.M., which resulted in Jason H. possibly being denied additional services or resources offered by the Tribe. The department objected to a continuance, arguing it was not in K.M.'s best interest, noting that the 18-month review period had already come and gone and Jason H., who was not present at the current hearing, had not participated in the dependency case until November 2022.
K.M.'s counsel also objected to any continuance, primarily noting Jason H.'s lack of involvement in the whole process. K.M.'s counsel stated Jason H., was "already out of time ... nowhere near reunifying with this child, who doesn't bother to come to court," but was hoping "some imagined tribe may be able to assist him and give him the opportunity to do something which he legally no longer has time for." K.M.'s counsel concluded, stating it would be detrimental to K.M. to allow the continuance.
Jason H.'s counsel then reiterated the importance of ICWA and the "concrete evidence" from the Tribe that K.M. was eligible for membership, and objected to the department and K.M.'s counsel thwarting the ICWA and its protections. Counsel argued that the department's actions in failing to enroll K.M. was "against the letter and spirit" of ICWA and, due to what appeared to be a change of social workers during the pendency of the case and even the department's own reporting, it did not appear that the department made a "significant or real attempt" to enroll K.M. until August 2022.
Neither the department, K.M.'s counsel or the court addressed the possible benefits the Tribe could provide K.M. by allowing for the continuance. In the end, the juvenile court found the request for continuance "very well reasoned," but stated it was not going to grant the motion as it believed "it would be contrary to the child's best interest under the circumstances as they are currently presented."
What followed was a lengthy discussion by all parties as to whether the Tribe had reached the conclusion that K.M. was not an Indian child "only because the Department has declined to timely provide the appropriate documents," and how the juvenile court was to rule with the Tribe's decision in mind. As argued by the department, whether a child is an Indian child is up to the tribe, and the juvenile court may not substitute its own determination regarding a child's membership in a tribe, or a parent's membership in a tribe. In this case, the Tribe was saying that K.M. had to be enrolled to be considered an Indian child.
Juvenile Court's Analysis
The juvenile court then addressed the issue of whether the department complied with the ICWA and whether K.M. was an Indian child under the ICWA. Following argument by counsel, the juvenile court recited, at length, the history of the case. Specifically, as to the ICWA issue, the juvenile court stated that very early on in the case mother identified her Indian heritage and on March 9, 2022, it directed the department to assist K.M. in enrolling in the Choctaw Nation, which the department acknowledged was in the child's best interest. The department was then informed by Scott what was required for the enrollment to be completed. While the juvenile court noted that the department had made "some efforts" to complete the process, there were many interactions between the department and the Choctaw Nation that were not accurately recorded. The juvenile court acknowledged the large case load carried by Siguenza and his understanding that he thought the "ICWA Unit" was narrating the contacts.
The juvenile court did find, contrary to Soudchantho's testimony, that the department knew the long form birth certificate for K.M. and mother and K.M.'s social security cards needed to be attached to the application over a year earlier, in March of 2022. After reciting various details of the issue, the juvenile court stated that it was most concerned that the department's records were silent between March 4, 2022, and August 9, 2022, "five months' time that passed without any indication that the Department had made communication with the Tribe; and no reflection as to what was happening with the child's birth certificate or social security card; no reflection even that the social security card is a necessary component of the application; no reflection that it is the state birth certificate that is needed." As of November 10, 2022, "more than seven months have passed from the date the Department clearly knew and reported to the court that the child's and the mother's state certified birth certificates were necessary," and yet the department was still waiting for these items.
When social worker Soudchantho contacted Scott on August 9, 2022, to report that mother had not been in contact with the department, Scott then provided a membership affidavit form advising the department to reach out to family or friends of parents willing to sign the affidavit to complete the enrollment application. After that, on November 14, 2022, the department sent a completed tribal enrollment packet on behalf of K.M. On January 19, 2023, the department received notice from the Tribe that additional documents were required to verify family heritage.
Recall that Scott testified that the enrollment packet for K.M., sent in November 2022, had not been signed and the application did include social security card for K.M.
The juvenile court then stated:
"The Department ... has taken steps. What leaves the court at a loss is why the Department has taken steps that don't make sense. Why the Department has not taken the very straightforward steps that is understood needed to be taken back in March of 2022.
"In March of 2022 the Department knew it needed the long form birth certificate for the mother and child. The Department knew it needed the child's social security card. Instead, the Department has done things like left months unaccounted for in enrolling the child. It has consistently indicated its understanding that the Tribe wants to intervene, that the Tribe will intervene once either K.M. or the mother is enrolled.
"The Department has had exclusive control over the process. No one else has the ability to act on K.M.'s behalf as to her membership. There has not been any evidence -- there's evidence that the Department says it just learned January 19, 2023, that the Tribe needs -- wants additional documents. I don't have any evidence that that's new documents. The only evidence I have is that this is the same information that was required that the Department knew of back in March of 2022."
In addition, the juvenile court also stated that it did not understand why, when Jason H. was in custody and fairly easy to locate, the department made no effort to have Jason H. sign the affidavit of personal knowledge. The department also had contact with Jason H. on November 9, 2022, and did not ask him the sign the affidavit. The juvenile court found that, while the department thought it made active efforts to comply with the court's order to help K.M. enroll, it "has not made informed or reasonable efforts and has failed to adequately document those."
The juvenile court noted that the Tribe in this instance indicated that K.M. was not an Indian child because the Choctaw Nation of Oklahoma bases eligibility for membership on documented lineage and does not require a specific blood quantum. While K.M.'s aunt Alice had a dependency case in which ICWA was found to be applicable, the juvenile court noted that Alice's circumstances were different as "Alice herself is an enrolled member. [K.M.]'s mother is not an enrolled member. So while the bloodlines, whether they are identical or whether this is a half-sibling, while there may or may not be a blood quantum, that is not the measurement that the Choctaw Nation uses. It uses documented lineage, and that is why the Department -- the [T]ribe very, very early on in this case told the Department, 'We need the long form birth certificates,' and the Department very early on in its reports said, 'We're waiting for those,' and then nothing happened."
The juvenile court concluded by stating that it would be "error for the Court to apply any provisions of ICWA to [K.M.]'s circumstances as the [T]ribe has indicated she is not an Indian child as defined by the Indian Child Welfare Act." The juvenile court was struck by the fact that the department "can defeat ICWA" by being slow, even though the Tribe indicated from the very beginning that they wanted to intervene and provided the things needed to enroll K.M.
At the time of the ruling (March 12, 2023), K.M. was in a "relative home," but due to mother's complicated history (married to D.L.; in a relationship with Jose M. who signed K.M.'s birth certificate and declaration of parentage, both invalidated due to mother still being married to D.L.; Jose M. being excluded as father; and it was learned that Jason H. is the biological father), it was uncertain whether the relative home K.H. was currently residing would be considered a relative placement under ICWA.
The juvenile court reiterated that, while it found that K.H. did not fall within the provisions of the ICWA "at this time, as the [T]ribe in which her heritage lies has indicated that she is not within the definition of an Indian child as defined by the Indian Child Welfare Act," it directed the department to "reassess its efforts to enroll her, and perhaps someone can assist in simply making a list of what needs to be done as it does not appear to be a complicated process."
Adequacy of Reunification Services
As for adequacy of the reunification services offered Jason H., the juvenile court noted it had ordered parenting, substance abuse evaluation and recommended treatment, a domestic violence intervention and recommended treatment, and random drug testing for Jason H. on April 6, 2021. The department made multiple efforts and referrals for Jason H., who "did not demonstrate any level of commitment to reunification." While Jason H. would "from time to time make an effort," those efforts were not effective and not consistent with commitment.
Jason H. had earlier testified that he was on probation and attending domestic violence intervention classes for probation, but once he was off probation, stopped the classes. Although he was told to restart those classes for dependency, he did not. And he did not do random drug testing as ordered. Jason H. never asked for a bus pass for transportation, did not ask for help with housing, and he did not think he had a substance abuse problem. He has had, in total, during the dependency of the case, only 10 visits with K.M. He was supposed to go to WestCare outpatient, but was too busy helping his mother and trying to get a job. Going through the specifics of each review period, the juvenile court stated that it would have terminated reunification services for all "parents" at the 12-month review already, as the department's efforts were reasonable and "[n]o one was making progress."
The juvenile court found by clear and convincing evidence that the department provided and offered reasonable services to Jason H. and that his progress towards alleviating and mitigating the causes necessary for placement was minimal. The juvenile court found continued placement for K.M. was appropriate, terminated services for Jason H., and set a section 366.26 hearing for July 19, 2023.
Jason H. filed a timely petition for extraordinary writ with this court on May 1, 2023.
DISCUSSION
Jason H. asks that we (1) invalidate the March 17, 2023,and March 22, 2023 orders of the dependency court under section 224, subdivision (e) due to the failure by the department to competently and diligently enroll K.M into the Choctaw Tribe; and/or (2) determine de novo an appropriate remedy when a department "fails to exercise due diligence in taking simple steps to enroll a child into a tribe where the tribe has unequivocally requested that the child be enrolled so that the tribe could exercise its right to intervene in the proceedings thereby," which, he contends, in this case, denied the Tribe's right to intervene, K.M. the benefit of tribal membership, and "the family" protections granted under ICWA and corresponding California law.
General ICWA Law
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) The Indian child, the parent, and the Indian child's tribe have the right to intervene in any "proceeding for the foster care placement of, or termination of parental rights to, an Indian child" (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see Welf. &Inst. Code, § 224, subd. (e)).
For purposes of ICWA, an "Indian child" is an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) &(8); see § 224.1, subd. (a) [adopting federal definitions].) "Being an 'Indian child' is thus not necessarily determined by the child's race, ancestry, or 'blood quantum,' but depends rather 'on the child's political affiliation with a federally recognized Indian Tribe.'" (In re Austin J. (2020) 47 Cal.App.5th 870, 882.)
Efforts to Enroll K.M. in the Tribe
Jason H. contends the department failed to comply with California Rules of Court, rule 5.485(c)(3), which reads in pertinent part:
"(c) In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made ... to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful.... [¶] ... [¶] (3) Active efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe." (Italics added.)
Jason H. argues the inadequacy of the department's efforts in enrolling K.M., which the juvenile court found lacking, "invalidates" the juvenile court's findings at the 18-month hearing. Jason H. cites section 224, subdivision (e) for this proposition, which provides, in relevant part, that "Any Indian child, the Indian child's tribe, or the parent or Indian custodian from whose custody the child has been removed, may petition the court to invalidate an action in an Indian child custody proceeding for foster care or guardianship placement or termination of parental rights if the action violated" the ICWA. For reasons that follow, we find section 224, subdivision (e) inapplicable here and deny his request to invalidate the proceedings of March 17, and 22, 2023.
In In re Abbigail A. (2016) 1 Cal.5th 83, the California Supreme Court explained that California Rules of Court, rule 5.484(c)(3) (formerly rule 5.484(c)(2), renumbered eff Jan. 1, 2020) by its plain language only applies to cases involving an "Indian child" as defined by law. (Abbigail A., supra, at p. 96.) Noting the distinction between ICWA rules that apply "as if' a child was an Indian child and this rule, which "speaks only to the court's obligations in a case involving an 'Indian child' as defined by law," the Supreme Court held invalid a rule requiring a department to make active efforts to secure tribal membership for a child in a tribe in which the child was merely eligible for membership but was not determined to be an Indian child. (Abbigail A., supra, at p. 96.) However, the Supreme Court stated that a court may properly direct that steps be taken to pursue tribal membership for a child who, while not a member of a tribe, is already an Indian child to whom ICWA applies because he or she is both eligible for membership and also the biological child of a member. (Abbigail A., supra, at pp. 96-97, citing 25 U.S.C. § 1903(5) and Welf &Inst. Code, § 224.1, subd. (a).)
Here, K.M. was not an Indian child under applicable law - while she was eligible for membership in the Tribe, she was not the biological child of a member, as affirmed by the Tribe statement that it did not consider K.M. to be an Indian child. Per Abbigail A., California Rules of Court, rule 5.484(c)(3) would not apply. In turn, section 244, subdivision (e), does not invalidate the proceedings, as that section provides only an "Indian child, the Indian child's tribe, or the parent or Indian custodian," may petition the court for invalidation of a proceeding to terminate parental rights.
We understand that the situation here is unique and more nuanced. Recall that Amber Scott of the Tribe's membership department testified that she was confident that once the necessary paperwork was received, K.M. would be enrolled and considered an Indian child under the ICWA, and the Tribe would participate in the case. She cautioned, however, that K.M. did not qualify as an Indian child under ICWA "[a]t this time" (March 2022). Also, as earlier advised by a February 2022 letter from the Tribe, eligibility for membership in the Choctaw Nation was based on documented lineage, and mother and K.M. were both eligible for membership and, once K.M. or mother was enrolled, K.M. would qualify as an "Indian Child." A membership application for the child was enclosed with this letter from the Tribe. At various points in the dependency proceedings, the Tribe indicated it needed more information, including state-issued birth certificates and social security cards, in order to complete the application process. By the time of the setting of the section 366.26 hearing on March 14, 2023, the department did not have/and or had not submitted all of the requested information to the Tribe, and the Tribe repeated that K.M. was not yet an Indian child. But for the lack of diligent effort by the department, K.M.'s enrollment with the Tribe was delayed.
This court takes judicial notice of the outbreak of COVID and pandemic and the ramifications of the Federal (Centers for Disease Control) and State mandated restrictions which went into effect in March 2020, and the work-related staffing limitations and shortages that resulted from these restrictions, particularly on state agencies, such as the department. (Evid. Code, § 452, subd. (g).)
Jason H. argues that, due to this delay by the department, the findings by the juvenile court that K.M. was not an Indian child must be invalidated. However, at the time of the 18-month review, K.M. was not considered an Indian child, as evidenced by ICWA law and by the Tribe itself. Each Indian tribe has sole authority to determine tribal eligibility criteria under ICWA and who meets the criteria, and a tribe's determination a child is [or is not] a tribal member or eligible for membership is therefore conclusive. (In re Francisco W. (2006) 139 Cal.App.4th 695, 702.) There was no error on the part of the juvenile court in finding that K.M. was not an Indian child at the time of the 18-month hearing.
As outlined above, section 224, subdivision (e) is not applicable here, since K.M. was not an Indian child at the time of the 18-month hearing, and we therefore reject Jason H.'s request that we invalidate the proceedings pursuant to that section. (Abbigal A., supra, 1 Cal 5th at page 96.) However, while we do not invalidate the proceedings under section 224, subdivision (e), we do question the juvenile court's discretionary denial of the motion to continue pursuant to section 352. We do so based on the best interests of K.M., and the importance of K.M.'s membership in the Tribe and the possible benefits she might derive from that membership - which were highlighted by Jason H.'s counsel's argument for the continuance and seemed to be ignored over overlooked by the department, M.K.'s counsel, and even the juvenile court.
California courts have long recognized an" 'emergency escape valve'" under section 352, a general provision governing continuances in dependency cases. (In re D.N. (2020) 56 Cal.App.5th 741, 762; see § 352.) As the Courts of Appeal have held, this section 352 escape valve is available to all parents and minors in exceptional situations in which the court determines that extending services and continuing reunification efforts beyond 18 months is not contrary to the child's interests.
Section 352 provides that courts may "continue any hearing" under the dependency law "beyond the time limit within which the hearing is otherwise required to be held" (§ 352, subd. (a)(1)), provided there is "good cause" (id., subd. (a)(2)) and a continuance would not be "contrary to the interest of the minor" (id., subd. (a)(1)). In evaluating the minor's interest, the court "shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (Ibid.) While prompt resolution is of import, it also appears, under the circumstances of this case, that there is "good cause" for a continuance to further address the possibility of K.M.'s enrollment in the Tribe.
By its terms, the statutory discretion to continue "any hearing" under section 352 extends to the section 366.26 permanency planning hearing. (§ 352, subd. (a)(1); e.g. In re Michael R. (1992) 5 Cal.App.4th 687, 694 [section 352 was enacted "so a party could continue the section 366.26 hearing"]; Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1016 ["section 352 ... authorizes a continuance of any hearing upon a showing of good cause"]; In re Dino E. (1992) 6 Cal.App.4th 1768, 1779 [§ 352 "indicates ... that the court has discretion upon a showing of good cause to continue juvenile dependency hearings beyond the statutory time limits"].) In the past, California courts have found good cause in a number of cases where" 'extraordinary circumstances'" justified an extension and doing so was consistent with the child's best interests. (In re D.N., supra, 56 Cal.App.5th at p. 762.) "Extraordinary circumstances exist when 'inadequate services' are offered by the child welfare agency or 'an external force over which [the parent has] no control' prevented the parent from completing a case plan." (Ibid.) Examples include cases where a parent never receives reunification services or a reunification plan over the 18-month reunification period (see Mark N. at p. 1017; In re Dino E., at p. 1778); the parent was hospitalized for most of the reunification period but demonstrated an "impeccable record of visitation and efforts to comply with the reunification plan" (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1777-1778, 17981799); or the parent sought a continuance to complete a program required by the reunification plan that was otherwise impossible to finish in time (In re Michael R., at p. 695.) Our Supreme Court in Michael G. v. Superior Court (2023) 14 Cal.5th 609, held that section 352 provides that the power to continue the permanency planning hearing implies a power to continue reunification services as well. (Id. at p. 634.)
In response to a June 13, 2023 order from this court requesting an update on the status of the ICWA enrollment form since the filing of the petition and response, the parties have indicated, based on communications with tribal social worker Scott, that the enrollment application for K.M. was completed on June 2, 2023, but that as of June 14, 2023, the membership department of the Tribe had still not made a final determination. No timeframe for completion was offered. Because of the uncertainty of this process and Jason H.'s, and more importantly, K.M.'s statutory ability to request a continuance, if either or both so desire, we deny Jason H.'s request to stay the upcoming section 366.26 hearing scheduled for July 19, 2023. Based on this record, and the updated status of the K.M. enrollment application, counsel for K.M. and Jason H. should seriously consider making a motion in the dependency court to continue the section 366.26 hearing pursuant to section 352 to allow the Tribe to conclude its consideration of the pending enrollment application. We also note that if K.M. becomes enrolled by the time of a section 366.26 hearing, the Tribe can intervene as the ICWA allows a tribe to intervene at any stage of the proceedings. (25 U.S.C. §§ 1911, subd. (c), 1914.)
DISPOSITION
The petition for extraordinary writ is denied.
[*]Before Franson, Acting P. J., Pena, J. and Snauffer, J.