Opinion
A159358
12-29-2020
In re E.W. et al., Persons Coming Under the Juvenile Court Law. MENDOCINO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.W. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCUK-JVSQ-18-17214-02, SCUK-JVSQ-18-17882-01, SCUK-JVSQ-18-17883-01, SCUK-JVSQ-18-17884-01)
In this dependency proceeding involving four siblings—C.M. (a 10-year-old boy), S.M. (a nine-year-old girl), E.M. (a seven-year-old girl), and E.W. (a five-year-old boy)—the juvenile court terminated the parental rights of the children's mother, S.W. (Mother), and their father, C.M. (Father), at a selection and implementation hearing under section 366.26 of the Welfare and Institutions Code. On appeal, Mother and Father argue the juvenile court and the Mendocino County Health and Human Services Agency (the Agency) did not comply with the inquiry and notice requirements in the federal Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related provisions of state law, including sections 224.2 and 224.3. In addition, Father argues the court erred by (1) concluding the beneficial parental relationship exception to termination of parental rights in section 366.26, subdivision (c)(1)(B)(i), did not apply, and (2) terminating continued visitation between the children and Father.
Undesignated statutory references are to the Welfare and Institutions Code. --------
In its appellate brief, the Agency disputes Father's arguments about the beneficial parental relationship exception and visitation. As to ICWA, the Agency concedes, as to both parents, that it did not fulfill its inquiry obligations and acknowledges this court should conditionally reverse the juvenile court's order and remand for compliance with ICWA. The Agency contends, however, that under applicable legal standards, no obligation to send formal notice under ICWA has yet arisen, and such an obligation will only arise, if at all, on remand, depending on the results of a properly conducted ICWA inquiry. Mother and Father disagree, arguing an obligation to send notice already exists.
We reject Father's arguments about the beneficial parental relationship exception and visitation. Based on the Agency's concession that it did not conduct an adequate inquiry under ICWA, we conditionally reverse the order terminating parental rights and remand for compliance with ICWA. We decline to address the parties' arguments about whether a notice obligation under ICWA exists based on the information currently in the record, and we decline Mother's and Father's requests to direct that ICWA notices must be issued on remand. Instead, we conclude the existence and scope of any notice obligation under ICWA should be determined by the juvenile court on remand, after the Agency conducts the required ICWA inquiry, an inquiry that may produce additional information or otherwise change the mix of evidence pertaining to whether ICWA notice is required.
I. BACKGROUND
The children were detained in April 2018 and formally removed from parental custody in July 2018, after visits to the family home revealed inadequate hygiene and unsanitary and unsafe living conditions. The older children (then six and seven years old) were sometimes left to care for their younger siblings. In the dependency petition and the detention report, the Agency alleged that both parents struggled with substance abuse, Mother had mental health difficulties, and Father had been arrested with illegal drugs and unregistered firearms. At the 12-month review hearing in July 2019, the court terminated reunification services to both parents and set a section 366.26 hearing, which was ultimately held on November 14, 2019.
At the contested section 366.26 hearing, the court admitted into evidence an adoption assessment conducted by the State Department of Social Services. The assessment concluded the children are adoptable and recommended termination of parental rights. The assessment included a favorable preliminary evaluation of the children's prospective adoptive parents. The prospective adoptive mother is the children's half-sister (Father's daughter from a prior relationship), who was 22 years old at the time of the assessment; the prospective adoptive father is her husband, who was 23 years old when the assessment was conducted. The prospective adoptive parents have no other children. The prospective adoptive mother previously helped raise another child in the home. The prospective adoptive father was adopted from foster care as a child and understands the importance of permanency for children. At the conclusion of the section 366.26 hearing, the juvenile court terminated Mother's and Father's parental rights and selected adoption as the permanent plan for the children. The court found ICWA did not apply.
As to ICWA, both parents provided information to the juvenile court and the Agency throughout the case indicating they have Indian ancestry. Father reported having Cherokee ancestry, and the Agency sent ICWA notices to some Cherokee tribes. Those tribes responded the children are not Indian children, but supplemental notices with additional information were later sent and some of them had not yet been responded to at the time of the section 366.26 hearing. For her part, Mother reported Alaskan Native ancestry and specifically mentioned an affiliation with the Bering Straits Native Corporation. The Agency, apparently flummoxed by the fact that name did not appear on a list of federally recognized tribes, did not successfully determine the identity of the tribe or band to which Mother or her relatives might belong, although it did send ICWA notices to the Bureau of Indian Affairs' Alaska office. The Agency concedes it did not conduct a sufficient inquiry into the Indian ancestry of either parent.
II. DISCUSSION
A. The Beneficial Parental Relationship Exception
Father argues the juvenile court applied the wrong legal standard in determining that Father had not met his burden to establish the applicability of the beneficial parental relationship exception to termination of parental rights in section 366.26, subdivision (c)(1)(B)(i). We disagree.
"At a section 366.26 permanency planning hearing, the juvenile court determines a permanent plan of care for a dependent child, which may include adoption. [Citations.] 'If the dependent child is adoptable, there is strong preference for adoption over the alternative permanency plans.' [Citations.] In order to avoid termination of parental rights and adoption, a parent has the burden of proving, by a preponderance of the evidence, that one or more of the statutory exceptions to termination of parental rights set forth in section 366.26, subdivision (c)(1)(A) or (B) apply. [Citations.] The court, 'in exceptional circumstances,' may 'choose an option other than the norm, which remains adoption.' [Citation.] The parental benefit exception applies when there is a compelling reason that the termination of parental rights would be detrimental to the child. This exception can only be found when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).)" (In re Anthony B. (2015) 239 Cal.App.4th 389, 394-395.)
"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B., supra, 239 Cal.App.4th at p. 395.)
Here the evidence supports the juvenile court's determination the beneficial parental relationship exception did not apply. As to the visitation prong of the exception, while Father visited with the children and was nurturing and appropriate during the visits, he was somewhat inconsistent in his visitation. The juvenile court noted that, at the time of the section 366.26 hearing, Father had recently been convicted of felony offenses, which also showed his inconsistency—"He's in and out because he's having to serve time in custody."
As to the second prong of the exception, the evidence supports the conclusion that maintaining the relationship between Father and the children was not so beneficial to the children as to outweigh the benefits of permanency and stability to be obtained through adoption. The children had experienced several years of instability due to the parents' difficulties, including being placed in separate foster homes, and they were now placed together with prospective adoptive parents who wished to adopt all four of them. Father notes there is evidence that some of the children experienced stress or uncertainty about the prospect of adoption, but the children also reported they were happy in their prospective adoptive placement. The juvenile court reasonably could resolve this issue by concluding this was not an exceptional case in which maintaining the children's relationship with Father was so important as to justify denying them the permanency and stability of adoption.
Father suggests there were compelling reasons to order a plan of guardianship (with the prospective adoptive parents) rather than adoption, due to the potential for strain on the familial relationship and the relative youth of the potential adoptive parents. The juvenile court was not required to so conclude. The potential adoptive parents appeared very committed to the children. The potential adoptive father was himself adopted out of foster care, and he thus understood the value of permanency to a child. The potential adoptive mother (Father's adult daughter from a prior relationship) helped raise her younger brother and another child within the family, and the relative caretakers wished to adopt all four children. The court did not err in selecting adoption as the permanent plan.
Father, however, takes issue with language used by the court in explaining its ruling. After stating Father's visits were safer and went better than Mother's, the court noted that Father had been somewhat inconsistent with visitation, and that he had recently sustained felony convictions that could result in incarceration. Elaborating on the point that Father's criminal conduct and resulting incarceration contributed to the inconsistency of his visitation with the children, the court stated: "He cannot always be there in a parental role for his children by virtue of his own conduct." Father argues this statement shows the court applied an incorrect legal standard, because what the court must have meant is that Father's request to apply the parental relationship exception failed because Father did not have day-to-day contact with the children, a burden that a noncustodial parent can never meet. (See In re S.B. (2008) 164 Cal.App.4th 289, 299 ["We do not believe it is reasonable to require the parent of a child removed from parental custody to prove the child has a 'primary attachment' to the parent, or to show the parent and the child have maintained day-to-day contact. If that were the standard, the rule would swallow the exception."].)
The juvenile court's brief statement does not show it required Father to meet an incorrect legal standard. The court did not focus on a need for day-to-day contact between Father and the children. Instead, as we read the record, the court was making the point that Father's periods of incarceration prevented him from filling even the type of parental role that would come with more consistent visitation. Moreover, the court just made this statement as an explanation or elaboration about the fact Father had been somewhat inconsistent in his visitation with the children. It is clear from the rest of the court's comments that the overall standard it applied in analyzing this issue was correct. The court determined Father had not met his burden to establish that the benefits of preserving his relationship with the children outweighed the benefits of permanency and stability that the children would gain from adoption. And as discussed above, the evidence in the record amply supports that conclusion.
B. ICWA
1. Legal Standards
"Congress enacted ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement, usually in non-Indian homes. [Citation.] ICWA established minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes." (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) California has adopted various procedural and substantive requirements of ICWA, including in sections 224.2 and 224.3, which impose distinct duties of: (1) inquiry, (2) further inquiry, and (3) notice. (In re D.S., supra, 46 Cal.App.5th at pp. 1048-1050, 1052; accord, In re A.M. (2020) 47 Cal.App.5th 303, 315 ["There are two separate ICWA requirements which are sometimes conflated: the obligation to give notice to a tribe, and the obligation to conduct further inquiry to determine whether notice is necessary."].)
First, the initial duty of inquiry includes asking the parents, extended family members, and other involved parties whether the child is, or may be, an Indian child. (§ 224.2, subd. (b).) Second, when the court or the social services agency has "reason to believe" that an Indian child is involved, "further inquiry" regarding the possible Indian status of the child is required. (§ 224.2, subd. (e), italics added.) The further inquiry includes communication with tribes to gather and share information, but this sharing of information is distinct from formal ICWA notice. (§ 224.2, subd. (e)(2); In re D.S., supra, 46 Cal.App.5th at p. 1049.) Finally, if the inquiry establishes a reason to know an Indian child is involved, notice must be provided to the pertinent tribes. (§ 224.3, subds. (a), (b).)
2. Inquiry
Mother contends the Agency did not fulfill its obligation to conduct an adequate inquiry into whether the children were Indian children. Mother argues the Agency should have inquired of extended family members, the Bureau of Indian Affairs, and others, to identify the tribe or band in which the children might be members or eligible for membership. Father similarly contends the Agency did not comply with statutes and rules requiring that it inquire of extended family members and inquire of tribes of which the children were potentially members. Both parents also argue the Agency did not adequately document its efforts to inquire as to whether the children are Indian children.
The Agency concedes, as to both parents, that it did not fulfill its duty of inquiry. The Agency specifically notes (1) there is no documentation that it fulfilled its duty, as part of its initial inquiry, to inquire of extended family members, (2) the information provided by both parents was sufficient to establish a "reason to believe" the children might be Indian children, triggering the Agency's obligation of further inquiry, and (3) the Agency did not adequately document its further inquiry. The Agency agrees the remedy for these failures is a conditional reversal of the order terminating parental rights and a remand for compliance with the inquiry and notice provisions of ICWA and sections 224.2 and 224.3. Specifically, the Agency states this court should remand with directions that (1) the Agency conduct and document the required inquiry to determine whether there is "reason to know" the children are Indian children, and (2) if there is "reason to know" the children are Indian children, formal notice must be sent in compliance with ICWA and applicable state law.
Based on the Agency's concession, we shall conditionally reverse the juvenile court's orders and remand for compliance with ICWA and applicable state law.
3. Notice
In addition to arguing the Agency did not conduct an adequate inquiry into whether the children are Indian children, Mother and Father contend the ICWA notices the Agency did send (Judicial Council form ICWA-030) were inadequate because they did not include enough information. In part, Mother and Father argue the information in the notices was incomplete because (1) the Agency's investigation was inadequate and did not unearth facts that then would have had to be included in the notices, (2) the Agency failed to include in the notices certain information that it already did have, including information it had in its file from a 2015 dependency case involving E.W., and (3) the ICWA-030 forms sent by the Agency did not attach notices of the upcoming hearing on selection of a permanent plan. Mother and Father argue that, as a result of the deficient notices sent by the Agency, the juvenile court lacked sufficient information to find that ICWA did not apply, and they contend the court's finding on that point was error.
As to notice, the Agency responds that, under an amendment to section 224.2 that took effect January 1, 2019, defining when there is "reason to know" a child is an Indian child such that the obligation to send notice under ICWA is triggered (see § 224.2, subd. (d)), the information possessed by the Agency prior to the present appeal did not give rise to any obligation to send notice. The Agency argues that therefore any alleged defects in the contents of the notices it did send are irrelevant. The Agency further contends that, on remand, it will only have an obligation to send notices (form ICWA-030) if, after conducting a proper inquiry, there is information establishing a "reason to know" the children are Indian children.
To resolve the present appeal, we need not determine whether the Agency failed to comply with statutory notice requirements, or whether the ICWA-030 notices it did send were defective or incomplete. Based on the Agency's conceded failure to conduct an adequate inquiry as required by ICWA and by state law, specifically section 224.2, we are conditionally reversing the juvenile court's order terminating parental rights—including the court's associated finding that ICWA does not apply—and remanding for compliance with ICWA and applicable state law. On remand, if the information that is available after the Agency fulfills its duty of inquiry meets the standard for sending formal ICWA notices to one or more tribes or other recipients (i.e., there is "reason to know" the children are Indian children), such notices must be sent.
In their reply briefs, however, Mother and Father argue a notice obligation already exists, so this court should issue more specific directions in remanding the case, and should expressly require that the Agency (1) conduct a proper and more complete inquiry and (2) send ICWA notices. They present several arguments on this point. First, Father suggests the Agency is incorrect in arguing the amended versions of sections 224.2 and 224.3 (including a recently adopted definition of "reason to know") apply here. Second, Mother argues that, based on the information in the record, i.e., the information already available to the Agency (from the 2015 and 2018 dependency cases, and despite the Agency's failure to conduct an adequate inquiry), there was a "reason to know" the children are Indian children (even under the amended versions of sections 224.2 and 224.3), so the obligation to send notice under those statutory provisions has already been triggered, at least as to some tribes or other recipients. Third, both parents contend the Agency long acted as if there was an obligation to send notice and that the "reason to know" standard had been met (including by sending ICWA-030 notices), so it has forfeited and/or is estopped from presenting a contrary argument in this appeal.
We see no need in this appeal to determine whether the evidence already in the record triggers a notice obligation, or to attempt to define the scope of that obligation (i.e., to identify which tribes or other recipients must be noticed, and/or to specify what information must be included in any new notices). For this court to delve into these fact-intensive questions on the present record (which may well be supplemented or otherwise changed on remand) would be inefficient and is a task that might need to be largely duplicated by the juvenile court after the Agency's further inquiry is completed. The scope of the Agency's notice obligation must be determined by the juvenile court in the first instance, after the Agency has completed and documented its required inquiry.
Also in relation to the notice question, Mother has filed a motion asking this court to take additional evidence on appeal. The proffered evidence is a letter from an Alaska Native regional corporation (1) saying Mother is a lineal descendant of a shareholder of the corporation, but (2) apparently distinguishing such corporations from federally recognized tribes. Mother argues the letter supports her argument that there is "reason to know" the children are Indian children, and that therefore this court should direct the issuance of ICWA notices (not just inquiry) on remand.
We shall deny the motion. The letter submitted by Mother is not relevant to the question whether this case must be conditionally reversed and remanded for compliance with ICWA; all parties agree it must. And because we do not address whether there is a "reason to know" the children are Indian children (leaving that issue for resolution on remand based on a more complete record after a proper inquiry under ICWA), we deny the motion to admit additional evidence that is purportedly relevant to the "reason to know" issue.
One final ICWA issue requires brief discussion. Mother and Father note that, when the juvenile court entered its order terminating parental rights at the hearing on November 14, 2019, it directed that Mother's and Father's trial counsel be relieved 61 days after that hearing date. Mother and Father request that this court direct the juvenile court to reappoint counsel for them on remand. They also ask that they be provided notice of all ICWA proceedings and communications conducted or sent by the Agency, as well as notice of their rights to appeal any further orders entered by the juvenile court on ICWA issues. Mother and Father do not elaborate on these points, and the Agency does not respond to them. We shall direct the juvenile court to reappoint counsel for Mother and Father during the pendency of the ICWA proceedings on remand. Any requests as to notice or other matters may be directed to the juvenile court by Mother's and Father's trial counsel.
C. Visitation
At the section 366.26 hearing, the juvenile court, after ordering the termination of Mother's and Father's parental rights, stated: "At this time ongoing visitation between the children and their parents would be detrimental. It will be ordered terminated." Father contends the court erred by finding visitation would be detrimental, noting reports of his visits with the children were generally positive. Father argues that, because it was error to terminate his parental rights, it was also error to terminate visitation.
We have found no error as to the merits of the court's order terminating parental rights (specifically the court's rejection of Father's argument that the beneficial parental relationship exception to termination applied). It was not error for the court to terminate visitation in conjunction with that order. (See In re Noreen G. (2010) 181 Cal.App.4th 1359, 1391 [in dependency proceedings, "an order that terminates parental rights and selects adoption as the permanent plan . . . frees the child from all parental rights, custody or control, and does not sanction the maintenance of reasonable visitation"].)
We are, however, conditionally reversing the juvenile court's order terminating parental rights and remanding for compliance with ICWA. Following compliance with ICWA, the juvenile court will either reinstate its orders terminating parental rights (if no tribe claims the children are Indian children) or proceed in accordance with ICWA (if a tribe has claimed the children are Indian children). Father suggests visitation should be permitted during the pendency of the proceedings on remand.
Any request by Father or Mother that visitation be allowed during the pendency of the remand may be directed to the juvenile court. The juvenile court may consider any such request in light of the circumstances and procedural posture existing at the time the request is made.
III. DISPOSITION
The orders terminating parental rights as to C.M., S.M., E.M., and E.W. are conditionally reversed. The matter is remanded to the juvenile court with directions to order the Agency to comply with the inquiry and notice provisions of ICWA and of sections 224.2 and 224.3, consistent with the discussion in this opinion. If, after compliance with these provisions, no tribe claims C.M., S.M., E.M., or E.W. is an Indian child, the orders terminating parental rights shall be reinstated. If any tribe claims C.M., S.M., E.M., or E.W. is an Indian child, the court shall proceed in accordance with the provisions of ICWA and applicable state law.
The juvenile court is directed to reappoint counsel to represent Mother and Father during the pendency of the proceedings on remand.
Mother's motion to take additional evidence on appeal is denied.
STREETER, Acting P. J. WE CONCUR: TUCHER, J.
BROWN, J.