Opinion
F080103
03-18-2020
In re K.T. et al., Persons Coming Under the Juvenile Court Law. MICHAEL T., Petitioner and Respondent, v. S.T., Objector and Appellant.
Amy Z. Tobin, under appointment by the Court of Appeal, for Objector and Appellant. No appearance for Petitioner 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SFL002131)
OPINION
THE COURT APPEAL from an order of the Superior Court of Madera County. James E. Oakley, Judge. Amy Z. Tobin, under appointment by the Court of Appeal, for Objector and Appellant. No appearance for Petitioner and Respondent.
Before Peña, Acting P.J., Smith, J. and Meehan, J.
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INTRODUCTION
Father, Michael T., filed a petition pursuant to Family Code section 7820 et seq. to declare the minors K.T. and E.T. free from the custody and control of their biological mother, S.T. After an evidentiary hearing, the court granted the petition. Mother appeals, contending the court failed to comply with the provisions of the Indian Child Welfare Act (ICWA), 25 United States Code section 1902 et seq. We conditionally reverse for compliance with the ICWA.
References to code sections are to the Family Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
On August 24, 2018, Michael filed a section 7822 petition seeking to terminate S.T.'s parental rights to the minors. The petition alleged the minors resided with Michael; S.T. last visited the minors in May 2013; and S.T. had last spoken with the minors in 2014. It also was alleged that S.T. had not made provisions to support the minors and intended to abandon the minors. A citation was issued, setting a hearing date of October 10, 2018. There was no ICWA-020 form filed with the petition.
The court appointed an investigator on October 1, 2018. An amended petition was filed on October 16, 2018, which was identical to the original petition, but with a new hearing date. The court allowed mother to be noticed by publication.
The investigator filed his report on January 28, 2019. The report disclosed that Michael and S.T. had married in 2003 and had two children; they separated in 2012. The parents had an agreed upon custody order, with Michael having primary custody. In 2014, Michael was awarded sole legal and physical custody, with S.T. having supervised visitation. S.T. never visited with the minors after the 2014 custody order. Michael maintained that S.T. had no contact of any kind with the minors after 2015 and had failed to provide any support for the minors after 2013.
The investigator was unable to make contact with S.T. The investigator spoke with K.T., a teenager, who expressed anger over S.T.'s abandonment and appeared deeply bonded with Michael and Michael's wife, her stepmother. K.T. wanted to be adopted by her stepmother. E.T. was three years younger than K.T. The investigator found E.T. was deeply hurt by S.T.'s abandonment and expressed a desire to have his stepmother adopt him. E.T. reported that there had been no cards, letters, gifts, or contact with S.T. for three years.
The investigator also interviewed Michael and his wife. The investigator found Michael to be an "intelligent, thoughtful, and committed father to his adolescent children." The investigator opined that the minors appeared to have a "healthy and securely bonded relationship" with their stepmother, who appeared to love the minors.
The investigator found that the requirements of section 7822 had been met and recommended the petition be granted. There is no indication in the investigator's report that he asked Michael about any potential Indian ancestry in his or S.T.'s family.
At a hearing on February 15, 2019, the court was concerned about notice to S.T. and directed additional service be made on relatives of S.T. The matter was continued. No ICWA inquiry was made by the court.
S.T. first appeared on March 20, 2019, arriving late for the hearing. The court appointed an attorney to represent S.T. No ICWA inquiry was made.
At a continued hearing on March 27, 2019, the court directed that S.T. be interviewed by the investigator and a supplemental report filed. No ICWA inquiry was made.
The investigator filed a memorandum on April 22, 2019, summarizing his unsuccessful efforts to contact S.T. and conduct an interview. At a hearing on April 24, 2019, the court ordered S.T. to appear for an interview on April 26, 2019. On April 29, 2019, the investigator filed a report stating mother failed to participate in the interview.
At a May 10, 2019 hearing, the court appointed counsel for the minors. The petition was set for a hearing on July 26, 2019.
The hearing commenced on July 26, 2019, and continued on August 6 and 8, 2019. The court received the investigator's report into evidence. Testimony was given by the investigator, Michael, stepmother, S.T., and maternal grandmother.
The court found that clear and convincing evidence established that the provisions of section 7822 had been satisfied and it was in the minors' best interests to terminate S.T.'s parental rights. S.T. filed a timely notice of appeal on October 3, 2019.
DISCUSSION
The only issue raised in this appeal is that the investigator and court failed to fulfill their continuing duty of inquiry into whether either parent had Indian ancestry. Consequently, S.T. contends the matter must be reversed, on a limited basis, and remanded for the purpose of complying with the ICWA. The Supreme Court issued its decision in In re Isaiah W. (2016) 1 Cal.5th 1, 6, 15, holding that a parent can raise the issue of the ICWA compliance at any stage of the proceedings, including in an appeal after termination of parental rights.
ICWA
Congress enacted the ICWA to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children in foster or adoptive homes that will reflect the unique values of Indian culture. (In re C.Y. (2012) 208 Cal.App.4th 34, 39; In re Levi U. (2000) 78 Cal.App.4th 191, 195.) An " 'Indian child' is defined as a child who is either (1) 'a member of an Indian tribe' or (2) 'eligible for membership in an Indian tribe and ... the biological child of a member of an Indian tribe ....' (25 U.S.C. § 1903(4).)" (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.) The ICWA applies only to federally recognized tribes. (25 U.S.C. § 1903(8); In re B.R. (2009) 176 Cal.App.4th 773, 783.)
ICWA applies only to federally recognized American Indian tribes. (25 U.S.C. § 1903(8); In re Jonathon S., supra, 129 Cal.App.4th at p. 338; In re Wanomi P. (1989) 216 Cal.App.3d 156, 166-168 [Canadian tribe is not a federally recognized tribe under the ICWA].)
In state court proceedings involving the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe have the right to intervene at any point in the proceeding. (25 U.S.C. § 1911(c).) But this right is meaningless unless the tribe is notified of the proceedings. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466.) Notice serves the dual purpose of (1) enabling the tribe to investigate and determine whether a child is an Indian child; and (2) advising the tribe of the pending proceeding and its right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)
ICWA Application to Section 7822 Proceedings
Section 180 incorporates the notice provisions set forth in the ICWA, calling for notice of an Indian child custody proceeding to be served on the Indian child's tribe. (§ 180, subds. (a) & (b).) An " 'Indian child custody proceeding' " for purposes of the Family Code includes a proceeding initiated by the parent of an Indian child for purposes of declaring the Indian child free from the custody and control of the other parent. (§ 170, subd. (c).)
An "Indian child," for purposes of the ICWA, is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe shall be conclusive. (Welf. & Inst. Code, § 224.2, subd. (h).)
"The responsibility for compliance with the ICWA falls squarely and affirmatively on the court." (Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406, 1410; Welf. & Inst. Code, § 224.3, subd. (a); § 177, subds. (a) & (b).) Failure to comply with the ICWA notice requirements may constitute prejudicial error. (In re H.A. (2002) 103 Cal.App.4th 1206, 1213.)
Section 224.3 and California Rules of Court, rule 5.481(a), impose upon both the court and the court-connected investigator an affirmative duty to inquire whether a dependent child is or may be an Indian child. The child, if the child is old enough, and the parents, must be asked if the child has Indian heritage. (Rule 5.481(a)(1).) Upon a parent's first appearance in a proceeding, including a proceeding to terminate parental rights or to free a child from custody and control of a parent, the court must order the parent to complete a parental notification of Indian status form, form ICWA-020. (Rule 5.481(a)(2).)
References to rules are to the California Rules of Court.
In every dependency proceeding to terminate parental rights, or proceeding to declare a child free from the custody and control of a parent, the investigator and the court have an affirmative and continuing duty to inquire whether a child is or may be an Indian child. (Rule 5.481(a); In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165 (Gabriel G.); In re W.B. (2012) 55 Cal.4th 30, 53.) Once the juvenile court or department "knows or has reason to know that an Indian child is involved," there is a duty to make further inquiry regarding the possible Indian status of the child, "and to do so as soon as practicable ...." (Rule 5.481(a)(4); Gabriel G., supra, at p. 1165.) The duty of "further inquiry" requires " 'interviewing the parents, Indian custodian, and extended family members ..., contacting the Bureau of Indian Affairs [(BIA)] ... [and contacting] the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility.' " (Rule 5.481(a)(4); Gabriel G., supra, at p. 1165.)
" '[P]arent' means any biological parent or parents of an Indian child ...." (25 U.S.C. § 1903(9).) If the tribe is unknown, the notice must be given to the BIA as the agent for the Secretary of the Interior. (25 U.S.C. § 1912(a); In re Edward H. (2002) 100 Cal.App.4th 1, 4, superseded by statute on another issue.)
The ICWA applies to children who are eligible to become or who are members of a tribe but does not limit the manner by which membership is to be defined. (In re Jack C. (2011) 192 Cal.App.4th 967, 978.) "A tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community." (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) The tribe's determination that a child is a member of or eligible for membership in the tribe is conclusive. (Welf. & Inst. Code, § 224.2, subd. (h).)
Analysis
Here, the record is devoid of any inquiry by the court or investigator as to possible Indian heritage of either Michael or S.T. and no ICWA finding was made by the court. The object of the ICWA notice is to enable a tribe to review enrollment records and determine whether a child is eligible for enrollment. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) The notice must contain enough information to be meaningful. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) Notice is sufficient if there was substantial compliance with the ICWA. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.)
Despite the provisions of rule 5.481(a) imposing upon the court and the investigator an obligation to inquire about any Indian ancestry of the parents, the record is devoid of any such inquiry. On the record before us, we cannot find that there has been substantial compliance with the ICWA. We review compliance with the ICWA notice requirements under the harmless error standard. (In re E.W. (2009) 170 Cal.App.4th 396, 402-403.)
We find our decision in In re J.N. (2006) 138 Cal.App.4th 450, dispositive. In J.N., the parent was never asked whether she had any Indian ancestry and the record contained no information to that effect. (Id. at p. 461 & fn. 6.) In those circumstances, we rejected harmless error analysis, "refus[ing] to speculate" about what the parent's response to an inquiry might be. (Id. at p. 461.)
Rule 5.481(a)(2) provides that in order to comply with the ICWA, the juvenile court "must order" the parent to complete the ICWA-020 form. We will conditionally reverse and remand for the limited purpose of complying with the ICWA. After remand, the court shall order both parents to complete the ICWA-020 form and should direct the investigator to send the ICWA-020 form to both parents. In addition, because of S.T.'s past failure to respond to the investigator and cooperate, the ICWA-020 form should be sent to S.T.'s relatives, such as the maternal grandmother. Interested parties should be directed to return the completed form within 10 days of service. (See Welf & Inst. Code, § 224.3, subd. (d).)
If any interested party fails to return the completed form within the 10 days, adequate inquiry will be deemed to have been made. (See In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 ["Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way."].)
Furthermore, if any interested party returns the form indicating Indian ancestry, the investigator should be directed to make diligent efforts to obtain the information to complete the ICWA-030 form and the interested parties should be directed to cooperate with the investigator in this effort. The interested parties should provide any relevant information necessary to complete the ICWA-030 form within 30 days of being requested to do so, to enable the investigator to expeditiously send notice to appropriate tribes and/or the BIA.
Conclusion
The court has a sua sponte duty to assure compliance with the notice requirements of the ICWA and this duty continues until proper notice is given. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261.) We cannot say with certainty from this silent record that the notice requirements of the ICWA were satisfied.
We will conditionally reverse the order to permit the investigator to inquire of both parents whether either has any Indian ancestry. If Indian ancestry is disclosed, the court shall ensure the investigator serves appropriate notice on any relevant tribes or the BIA. We note, however, that various appellate courts have held that the notice provisions of the ICWA are not triggered by "vague references" to Indian heritage. (See, e.g., In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520-1521 [father's claim of Indian heritage, without naming the tribe and which he later retracted, was insufficient to require notice under the ICWA].)
DISPOSITION
The order declaring K.T. and E.T. free from S.T.'s custody and control is conditionally reversed, and the matter remanded to the court for the sole purpose of ensuring compliance with the ICWA. The court shall ensure a proper inquiry is made in compliance with the notice provisions of the ICWA. If, after proper inquiry and notice, the court determines K.T. and E.T. are Indian children, the court shall proceed pursuant to the terms of the ICWA. If the court determines the ICWA does not apply, the order declaring K.T. and E.T. free of S.T.'s custody and control shall be reinstated.