Opinion
B298859
02-18-2020
In re CASSIDY W., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. BRANDON W. et al., Defendants and Appellants.
Judy Weissberg-Oritz, under appointment by the Court of Appeal, for Defendant and Appellant Brandon W. Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant Yesenia W. Mary C. Wickham, County Counsel, and Stephanie Joe Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK22526B) APPEAL from an order of the Superior Court of Los Angeles County, Michael E. Whitaker, Judge. Conditionally reversed and remanded with directions. Judy Weissberg-Oritz, under appointment by the Court of Appeal, for Defendant and Appellant Brandon W. Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant Yesenia W. Mary C. Wickham, County Counsel, and Stephanie Joe Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
____________________
Yesenia W. and Brandon W., the mother and biological father of Cassidy W., who is now almost three years old, appeal the June 26, 2019 order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26, contending the juvenile court and the Los Angeles County Department of Children and Family Services (Department) failed to fully comply with their duties of inquiry and notice under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law. The Department has acknowledged those failures and advised this court it does not oppose a limited reversal and remand with directions to the juvenile court to order the Department to conduct further inquiry and provide proper notice under ICWA. We agree a limited reversal and remand to address ICWA error is necessary.
Statutory references are to this code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Proceedings
The juvenile court sustained an amended dependency petition filed pursuant to section 300, subdivision (b) (failure to protect) as to Yesenia on June 28, 2017 and as to Brandon on August 22, 2017. As amended by interlineation, the sustained petition alleged Cassidy had been born with a positive meconium toxicology screen for marijuana and Yesenia's history of substance abuse and recent use of marijuana endangered Cassidy's physical health and safety and rendered Yesenia incapable of providing the child with regular care and supervision. It also alleged Yesenia has mental and emotional problems and has failed to take psychotropic medication as prescribed, which endangered Cassidy's physical health and safety. As to Brandon, the sustained amended petition alleged he, too, had a history of marijuana use and was a recent user of marijuana, which sometimes rendered him incapable of providing Cassidy with regular care and supervision, placing the child at risk of serious physical harm.
The section 300 petition was also directed to Yesenia's older daughter, Cassidy's half-sister Aniyah. Neither Aniyah nor her father is a party to this appeal.
At the disposition hearing on October 23, 2017 the court declared Cassidy a dependent child of the court and ordered her removed from Yesenia's and Brandon's custody and suitably placed. The court ordered reunification services for both parents, including a full drug/alcohol program with aftercare for Yesenia and weekly drug testing for Brandon with a full drug rehabilitation program if a test was positive or missed. Both parents' visitation with Cassidy was to be monitored.
At the six-month review hearing (§ 366.21, subd. (e)) the court found Yesenia in substantial compliance with her case plan and Brandon not in compliance with his plan. Additional reunification services were ordered. At the 12-month review hearing (§ 366.21, subd. (f)) the court found Yesenia in partial compliance with her case plan and Brandon only in minimal compliance with his. The court ordered additional reunification services for Yesenia and terminated Brandon's services. At the 18-month review hearing, after finding Yesenia again in partial compliance with her case plan, the court terminated Yesenia's reunification services and set a selection and implementation hearing pursuant to section 366.26.
At the contested section 366.26 hearing on June 26, 2019, the court found by clear and convincing evidence that Cassidy was adoptable and that none of the statutory exceptions to termination of parental rights had been established. The court terminated Yesenia's and Brandon's parental rights, transferred custody of Cassidy to the Department for adoptive planning and placement and designated the child's current caregiver as her prospective adoptive parent.
2. The Question of ICWA's Applicability
When Yesenia first appeared in the dependency proceedings in April 2017, she filed Judicial Council form ICWA-020 Parental Notification of Indian Status, checking the box next to the statement, "I have no Indian ancestry as far as I know." When he appeared in court on August 22, 2017, Brandon's form ICWA-020 stated he may have Indian ancestry and identified Blackfoot, Blackfeet, Cherokee and Seminole tribes. In response to questions from the court, Brandon replied, "Both my mother and father know about it, but I have to ask them who to talk to about that. . . . Dad mentioned Blackfoot. My mom said Cherokee and Seminole." The court directed the Department to inquire further regarding Cassidy's possible Indian ancestry and ordered it at minimum to give notice to the Bureau of Indian Affairs (BIA), the Secretary of the Interior and the Blackfeet, Cherokee and Seminole tribes, and to prepare a supplemental report to address ICWA notice for the October 23, 2017 disposition hearing.
A new version of ICWA-020, adopted for use as of January 1, 2020, "remove[s] the questions about whether the parents or child have Indian ancestry and instead focus[es] on information about tribal membership or eligibility." (See Judicial Council of California, Invitation To Comment SPR19-42, p. 8.) --------
The Department's attempts to contact Brandon following the August 2017 jurisdiction hearing were unsuccessful. Without having interviewed Brandon or Brandon's parents (Cassidy's paternal grandparents), the Department sent notice using Judicial Council form ICWA-030 to the BIA and the Secretary of the Interior and to the Blackfeet, Cherokee and Seminole tribes. Cassidy's middle name was omitted from the form, as was her place of birth, although both pieces of information were known to the Department. In its letter to this court, the Department also points to other inaccuracies or omissions from the form ICWA-030 that was sent.
At the disposition hearing the court indicated that ICWA notices had been sent, but responses had not yet been received. The court found ICWA might apply.
In the ICWA section of a May 31, 2018 status review report prepared for the 12-month review hearing, the Department stated that on March 22, 2018 Brandon had informed the Department's assigned social worker he did not have any Indian ancestry. The report had no further comment or explanation regarding Brandon's inconsistent statements regarding his possible Indian ancestry. The report also indicated the social worker had been in contact with Cassidy's paternal grandparents, but did not contain information reflecting any inquiry had been made by the Department regarding Cassidy's possible Indian ancestry.
At a hearing on February 19, 2019 the court inquired about tribal responses to the ICWA notices that had been sent and requested an updated report. In its last minute report prior to the June 26, 2019 section 366.26 hearing, the Department advised the court it had provided notice to the BIA, the Secretary of the Interior, the Seminole Nation of Oklahoma, Seminole Tribe of Florida, Eastern Band of Cherokee Indians, Cherokee Nation of Oklahoma, United Keetowah Band of Cherokee Indians and Blackfeet Tribe. Attached to the report were the ICWA notices, certified mail receipts and domestic return receipts. The Department reported that none of the tribes had found Cassidy to be an Indian child under ICWA, an enrolled member of the tribe or eligible for enrollment in the tribe. At the hearing the court found no reason to believe Cassidy was an Indian child within the meaning of ICWA.
DISCUSSION
1. Governing 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 a state court 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; In re W.B. (2012) 55 Cal.4th 30, 47.) For purposes of ICWA, an "Indian child" is an unmarried individual under age 18 who is either a member of a federally recognized Indian tribe or 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) [definition of "'Indian child'"] & (8) [definition of "'Indian tribe'"]; see Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal definitions].)
Notice to Indian tribes is central to effectuating ICWA's purpose, enabling a tribe to determine whether the subject of a dependency proceeding is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the matter. (In re Isaiah W., supra, 1 Cal.5th at pp. 8-9.) Accordingly, ICWA requires that "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe" of the pending proceedings and its right to intervene. (25 U.S.C § 1912(a).) Similarly, California law requires notice to the parent, legal guardian or Indian custodian and the Indian child's tribe if the Department or court "knows or has reason to know . . . that an Indian child is involved" in the proceedings. (Welf. & Inst. Code, § 224.3, subd. (a); see Cal. Rules of Court, rule 5.481(b)(1) [notice is required "[i]f it is known or there is reason to know that an Indian child is involved in a proceeding listed in rule 5.480," which includes all dependency cases filed under section 300].)
The burden of developing information to determine whether an Indian child may be involved and ICWA notice required in a dependency proceeding does not rest primarily on the child and his or her family. (In re Michael V. (2016) 3 Cal.App.5th 225, 233.) Juvenile courts and child protective agencies have "an affirmative and continuing duty to inquire" whether a dependent child is or may be an Indian child. (§ 224.2, subd. (a); In re Isaiah W., supra, 1 Cal.5th at pp. 9, 10-11; see Cal. Rules of Court, rule 5.481(a); see also In re W.B., supra, 55 Cal.4th at pp. 52-53.) This affirmative duty to inquire is triggered whenever the child protective agency or its social worker "knows or has reason to know that an Indian child is or may be involved . . . ." (Cal. Rules of Court, rule 5.481(a)(4).) At that point, the social worker is required, as soon as practicable, to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. (§ 224.2, subd. (e); Cal. Rules of Court, rule 5.481(a)(4); see In re Kadence P. (2015) 241 Cal.App.4th 1376, 1386; In re Shane G. (2008) 166 Cal.App.4th 1532, 1539.)
2. The Department Has Conceded ICWA Error
As Yesenia and Brandon argue and the Department acknowledges, the Department did not conduct an adequate inquiry concerning Cassidy's possible Indian ancestry after being notified by Brandon that she may be an Indian child within the meaning of ICWA. In particular, the Department failed to interview Brandon or Brandon's parents (Cassidy's paternal grandparents) even though Brandon had identified them as possessing relevant information. That omission was responsible, at least in part, for the notices sent to the tribes lacking complete information regarding Cassidy's parents, grandparents and other relatives. In addition, the Department failed to include in the notices information that was known about Cassidy, including her full name and place of birth. The Department concedes these failures require a limited remand for the court and the Department to fulfill the duties of inquiry and notice imposed by ICWA and California law. Accordingly we conditionally reverse the order made at the section 366.26 to permit further proceedings to correct these errors.
DISPOSITION
The order terminating Yesenia and Brandon's parental rights and placing Cassidy for adoption is conditionally reversed. Upon remand the juvenile court shall direct the Department to make a meaningful and thorough inquiry regarding Cassidy's possible Indian ancestry, including interviews with her parents, paternal grandparents, extended family members and any other person who may reasonably be expected to have information concerning the child's tribal membership status or eligibility, and thereafter to send complete and accurate notices to all appropriate tribes in accordance with ICWA and California law, as well as to the Secretary of the Interior and the BIA. The Department must timely file certified mail return receipts for the ICWA notices, together with any responses received. If no responses are received, the Department shall so inform the court. Following receipt of this information, the juvenile court is to determine whether ICWA inquiry and notice requirements have been satisfied and whether Cassidy is an Indian child. If the court finds Cassidy is not an Indian child, it shall reinstate the order terminating parental rights and placing her for adoption. If the court finds Cassidy is an Indian child, it is to vacate its order terminating parental rights and placing the child for adoption and conduct further proceedings in compliance with ICWA and related California law.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.