Opinion
A157994
01-24-2020
In re C.M., a Person Coming Under the Juvenile Court Law. LAKE COUNTY CHILD WELFARE SERVICES, Plaintiff and Respondent, v. T.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. JV320533B)
Appellant T.M. (mother) appeals from a juvenile court order finding her child C.M. was likely to be adopted and terminating her parental rights under Welfare and Institutions Code section 366.26. She raises no arguments challenging the decision terminating her parental rights. Her sole contention is that the Lake County Child Welfare Services (the agency) failed to comply with the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and she asks us to conditionally reverse the order terminating her parental rights with directions to the juvenile court "to ensure adequate notice and compliance" with ICWA. The agency acknowledges it failed to give notice to the Cherokee tribes and does not oppose a remand for the limited purpose of ensuring proper ICWA notice to the Cherokee tribes, but in all other respects contends that the juvenile court and agency complied with ICWA and state law.
All further unspecified statutory references are to the Welfare and Institutions Code.
The child's presumed father is not a party to this appeal as he is deceased.
We conditionally reverse the order terminating parental rights and remand the matter to the juvenile court with directions to order the agency to comply with the inquiry and notice provisions of ICWA and the current versions of sections 224.2 and 224.3, effective January 1, 2019 and January 1, 2020, with specific directions that the agency is to make proper and adequate inquiry of mother and known maternal and paternal relatives concerning information of C.M.'s potential Indian ancestry and to send new ICWA notices to all appropriate tribes and the Bureau of Indian Affairs.
FACTUAL AND PROCEDURAL BACKGROUND
C.M., born in 2018, is mother's eighth child, and her sixth child with presumed father. The parents' five older children have been the subject of juvenile dependency proceedings, including J.M. born in 2017. The juvenile dependency proceeding concerning J.M. was commenced in the Superior Court for San Joaquin County and later transferred and consolidated with the juvenile dependency proceeding concerning C.M. in the Superior Court for Lake County. Accordingly, to the extent necessary to resolve this appeal, we set forth those facts in the consolidated proceeding.
1. Agency's Compliance with ICWA
a. Proceedings Relating to J.M. in San Joaquin County Superior Court
In October 2017, approximately one month after the birth of J.M., the parents appeared in the Superior Court for San Joaquin County to respond to a section 300 petition concerning J.M. The parents "were advised of Indian Heritage requirements and given the ICWA-020 form." That same month, mother filed an ICWA-020 indicating possible Cree tribe ancestry and presumed father filed an ICWA-020 indicating possible Apache tribe ancestry.
In March 2018, the San Joaquin County child services agency filed an ICWA-030 Notice of Custody Proceeding for J.M., asserting the child "is or may be eligible for membership" not only in the Cree and Apache tribes, but also in the Cherokee and Choctaw tribes. The form had attachments with information concerning the child's biological mother and father and limited information concerning the child's maternal and paternal relatives. The ICWA-030 forms were sent to the parents, the Sacramento Area Director Bureau of Indian Affairs (BIA), and 15 Apache, Chippewa-Cree, Choctaw and Cherokee bands, tribes or nations. The record before us does not contain any information regarding the tribes' responses, if any, received by the agency or the court.
b. Proceedings in Lake County Superior Court
Following the parents' relocation to Lake County, in May 2018, the Superior Court for Lake County accepted the transfer of J.M.'s juvenile dependency proceeding. The parents appeared and filed new ICWA-020s, again indicating possible Indian ancestry in the Cree and Apache tribes.
In August 2018, the agency took custody of C.M. after filing a section 300 petition on the ground the child was a person described in subdivisions (b) (failure to protect) and (j) (sibling abuse). The petition specifically alleged the child was at risk of harm based on the parents' history of substance abuse and domestic violence, mother's history of " 'developmental disabilities,' " and the parents' previous failure to care for the child's half and full siblings. The ICWA-010 (A) form attached to the petition alleged C.M. might have Indian ancestry. The agency's detention report confirmed that both parents had again disclosed C.M. might have Indian ancestry through the Cree and Apache tribes.
At the detention hearing for C.M. on August 8, 2018, the court took judicial notice of the documents in the transferred case file concerning J.M., and consolidated the proceedings concerning both children. The court found there was reason to believe C.M. might be a child of Indian ancestry and the agency was directed to provide notice to the Bureau of Indian Affairs as required by law. The matter was set for a jurisdictional hearing for C.M. on August 27. In its jurisdictional report, the agency informed the court that C.M.'s eligibility for status as an Indian child through ancestry in the "Apache" and "Krio" [sic] tribes was then pending.
On August 15, 2018, the agency filed an ICWA-030 Notice of Child Custody Proceeding for C.M., asserting the child "is or may be eligible for membership" in the Apache and Cree tribes, without mentioning the additional Cherokee and Choctaw tribes that were listed in the earlier ICWA-030 Notice of Child Custody Proceeding for J.M. Thus, unlike the 15 Apache, Chippewa-Cree, Choctaw and Cherokee bands, tribes or nations that were given notice of J.M.'s proceeding, the agency only noticed 9 Chippewa-Cree and Apache tribes or nations. The ICWA-030 form for C.M. concerning familial information also did not match the familial information that was listed in the earlier ICWA-030 Notice of Child Custody Proceeding for J.M. as the names of the children's paternal great grand-mothers were different.
Following the August 27, 2018 jurisdictional hearing, the court sustained the allegations against the parents and found C.M. was a person described in subdivisions (b) and (j) of section 300. The court set a contested dispositional hearing for C.M. for October 3, which was later continued to October 29. In its written jurisdictional order, the court found C.M. might be an Indian child, notice of the proceeding and the right of tribes to intervene had been provided as required by law, and proof of such notice had been filed with the court.
At the October 3, 2018, hearing, the court found J.M. was a dependent of the court and bypassed reunification services for both parents. In its written order following that hearing the court found J.M. was not an Indian child, and that finding is not now challenged by mother. However, the record before us does not contain any documents from which we may conclude the agency complied with ICWA and the state law extant at the time concerning J.M. Additionally, the agency makes no argument that ICWA compliance for J.M. should be deemed sufficient to meet ICWA compliance for C.M.
The agency filed an ICWA compliance report on October 25, 2018. The agency asked the court to find ICWA did not apply to C.M. because "proper and adequate notice has been provided" pursuant to section 224.3, and "neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice," noting that the 60-day period had expired on October 14 for all noticed tribes to respond. As to compliance with ICWA, the agency provided a table alphabetically outlining the ICWA notice processes including the name of the tribe, dates of notice, form of notice delivery, and the respective responses of each tribe. The agency reported it had received responses from six tribes indicating C.M. was neither an enrolled member nor eligible for enrollment in that tribe.
At the October 29, 2018, dispositional hearing, the court noted the ICWA Notice of Child Custody Proceeding for C.M. had been given, the disposition hearing was adjourned to December 5, and it was later continued to February 6, 2019. At the February 6 hearing, neither parent appeared but their counsel were present. The court found the parties had been given notice of the hearing and refused to continue the matter. The court indicated it had read, considered, and received into evidence the agency's ICWA report and recommendation filed on October 25, 2018. It found all ICWA notices had been given as required by law and ICWA did not apply "at this time" to C.M. Counsel for mother and the agency proffered no contrary argument to the court's ICWA ruling. The court then adjudged C.M. a dependent of the court, being a person described under subdivisions (b) and (j) of section 300, and found clear and convincing evidence supporting the child's removal from his parents' custody under sections 300 and 361, subdivision (c)(1). The court further found by clear and convincing evidence that reunification services for each parent should be bypassed pursuant to section 361.5, subdivision (b)(10) and (11). The matter was adjourned to June 5 for a section 366.26 hearing. On May 13, 2019, the court was informed the child's presumed father had died and it rescheduled the section 366.26 hearing to July 29.
At the July 29, 2019 section 366.26 hearing, the court found by clear and convincing evidence that C.M. was likely to be adopted and noted the child was currently placed with potential adoptive parents. The court terminated the parental rights of mother and "all unknown fathers." A post-permanency hearing was scheduled for January 27, 2020.
Mother's timely appeal ensued.
DISCUSSION
The parties agree, and we concur, that the agency's compliance with ICWA's notice requirements was inadequate and the proper remedy is to conditionally reverse the order terminating parental rights and remand the case to ensure compliance with ICWA. The parties disagree, however, as to the agency's responsibilities on remand.
The record unquestionably shows that the information listed in the ICWA-030 form for J.M. differs significantly from the information listed in the ICWA-030 form for C.M. with regard to potential Indian ancestry and the names of the paternal great grand-mothers. Although the ICWA-30 form for C.M. indicates that some ancestral information was "requested" but "not provided," there was other information that would appear to have been readily available if proper inquiry had been made but, without explanation, does not appear: date of birth and full current address for paternal grandmother; date of birth and full current address for paternal grandfather; and information concerning presumed father's legal parentage (either by being named on C.M.'s birth certificate, acknowledging parentage, or by judicial declaration). Additionally, it would appear that, had the agency made proper inquiry, a copy of C.M.'s birth certificate could have been secured as the ICWA-030 form was sent more than two months after the child's birth in Lake County.
Because the ICWA notice "must contain enough information to be meaningful" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703), in a case such as this where "the record does not show what, if any, efforts the agency made to discharge its duty of inquiry [citations], and the record also does not show . . . that the ICWA notices that were given included all known [and correct] identifying information, the burden of making an adequate record demonstrating the court's and the agency's efforts to comply with ICWA's inquiry and notice requirements must fall squarely and affirmatively on the court and the agency. And in the absence of an appellate record affirmatively showing the court's and the agency's efforts to comply with ICWA's inquiry and notice requirements, we will not, as a general rule, conclude that substantial evidence supports the court's finding that proper and adequate ICWA notices were given or that ICWA did not apply. Instead, as a general rule, we will find the appellant's claims of ICWA error prejudicial and reversible." (In re N.G. (2018) 27 Cal.App.5th 474, 484.)
Mother has filed a request asking us to take judicial notice of the unpublished opinion in an appeal concerning the child's siblings Z.M. and G.V., which request is not opposed by the agency. We deny the request for judicial notice as consideration of the unpublished opinion is unnecessary for our resolution of this appeal. --------
DISPOSITION
Accordingly, the order terminating mother's parental rights to C.M. is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry and notice provisions of Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) and Welfare and Institutions Code sections 224.2 and 224.3, effective January 1, 2019 and January 1, 2020. The juvenile court is directed to order the agency to investigate and obtain from the child's mother and known maternal and paternal relatives complete and accurate information concerning C.M.'s potential Indian ancestry, including securing the child's birth certificate and information concerning the presumed father's legal parentage. The juvenile court is further directed to order the agency to send new ICWA notices, which include all previously known and newly discovered identifying information concerning C.M.'s maternal and paternal lineal ancestry, to all appropriate tribes and the Bureau of Indian Affairs. If, after receiving proper notice, no tribe indicates C.M. is an Indian child within the meaning of the statutory scheme, then the juvenile court shall reinstate the order terminating parental rights. If a tribe seeks to intervene after receiving proper notice, the court shall proceed in conformity with all provisions of ICWA.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Fujisaki, J.