Opinion
A150735
11-27-2017
In re C.C., et al., Persons Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. B.C., Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on November 27, 2017, be modified as follows:
1. On page 11, at the end of the first sentence of the last paragraph beginning "In this case, D.F. took," and ending with "secure legal custody of C.C." the following is modified to read as follows:
In this case, D.F. took prompt legal action to secure legal custody of C.C. and received C.C. into his home. Mother admitted she "handed over" C.C. to D.F. "the Friday before [F]ather's [D]ay," 2004.
2. On page 12, at the end of the first full sentence ending in "presumed father of C.C.," the following is added as footnote 2:
2 Mother requests that this court to "direct the juvenile court to ensure the safety of the three children by limiting [D.] F.'s access to C.C.'s case to that permitted for an alleged father, and prohibiting [D.] F. from having any access to the younger children, or to information about their cases." Mother has not appealed from, nor identified, any order of the juvenile court in this regard. Any such request to limit D.F.'s access in the future is properly made to the juvenile court.
There is no change in the judgment.
Appellant's petition for rehearing is denied. Dated: __________
HUMES P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. JV160271, JV160272-1, JV160272-2)
INTRODUCTION
Appellant B.C. (Mother) appeals from dispositional orders removing her three children from her custody and placing them in foster care and a group home. She maintains Humboldt County Department of Health and Human Services (Department) failed to comply with Indian Child Welfare Act (ICWA) inquiry and notice requirements, and that no substantial evidence supports the court's finding that active efforts were made to prevent the breakup of a possible Indian family or its finding of presumed father status. The Department seeks judicial notice of over 600 pages of documents filed after the dispositional order, purporting to show its subsequent compliance with ICWA and thus lack of prejudice. We conclude any ICWA deficiency does not impact the dispositional orders, but remand with directions for the juvenile court to direct the Department to comply with the notice provisions of ICWA, if it has not already done so.
BACKGROUND
In November 2016, Mother was arrested in a motel room on an outstanding 1997 warrant from Texas. She was wanted for a violation of her parole on a felony conviction, and also had outstanding warrants for her arrest from Florida.
In the motel room with her were three of her children, then four years old (G.G.), seven years old (J.G.), and 16 years old (C.C.). There was also an unknown woman, apparently "high on heroin," "who was observed to be passed out with her shirt up over her stomach and her hand down her pants." The room also contained marijuana pipes, dried marijuana, and a bag containing 10 white pills.
Mother had been using an alias and "had been on the run from law enforcement for twenty years." The children had also been using aliases. The birth certificates of the two younger children listed the name of an alias used by Mother. C.C., the 16-year-old, reported that Jason G., a man who had "not been involved in their lives since [the youngest child] was approximately two weeks old," was the father of the two younger children. C.C. reported his father was D.F., but Mother denied knowing who D.F. was, and named a third man as C.C.'s father. The Department was able to contact Jason G., who indicated he had not been involved with the children's lives in "some time." He also indicated Mother listed a different name for herself on at least one of the children's birth certificates "to help [her] hide her true identity."
C.C. wanted to stay with his "uncle" T.H., a family friend. T.H. told the Department he was "the most stable adult in the children's lives," but he did not currently have enough room for them, and "could not name anyone else they could be safe with."
Mother had four prior child welfare referrals in California, the most recent one being four months earlier. Mother reportedly had a long history of mental illness and substance abuse. A fourth child, by then an adult, had been adopted by Mother's parents but was sent to live with Mother when she was 13. Mother reportedly gave that child "substances to smoke or ingest and then [Mother] allowed men to have sex with her."
Mother "worked in the marijuana industry" and made methamphetamine. She encouraged the oldest minor to use marijuana. The minors were not enrolled in school, nor did Mother ensure they received medical care.
The Department filed Welfare and Institutions Code section 300 petitions regarding the three minors, alleging failure to protect and no provision for support. (Welf. & Inst. Code, § 300, subds. (b), (g).) The petitions noted the minors might have Choctaw and Cherokee ancestry. At the detention hearing, Mother agreed that she was the mother of all three minors, but identified different fathers. She indicated she believed she had Chickasaw ancestry, in addition to Choctaw and Cherokee, stating, "my grandma was the only one on the roles. I just never applied."
The court ordered continued detention of the three children, and found that active efforts were made to provide services designed to prevent the breakup of a potential Indian family. The court ordered Mother to complete the ICWA parental notification of Indian Status form and file it with the court. The court ordered bi-weekly visitation for the children with Mother at the Humboldt County Correctional Facility. It also ordered services be provided to Mother, including parent education, drug monitoring, and substance abuse assessment. A contested jurisdictional hearing was set for December.
In the report for the jurisdictional hearing, the Department reported Mother had been released from the Humboldt County Correctional Facility and had attempted to arrange unsupervised visitation with the oldest minor, C.C. C.C. told his younger sibling, J.G., to "only report good things" about Mother to the Department. When a social worker initially spoke with J.G., she said she loved Mother and was safe with her. She reported never seeing anyone use needles, and could not remember anything bad about living with Mother. J.G. later told the social worker she had lied because her brother told her "not [t]o say the bad stuff," but that Mother actually used needles twice in the morning and three or more times at night. She said Mother "buys big black balls and she takes them in her arms and legs and feels better," and gave a detailed description of how to inject drugs. J.G. also described Mother's drug sales, her fabrication of marijuana- laced chocolate in a crockpot, and being given marijuana edibles on at least two occasions.
The foster parent reported C.C. "was talking about his former drug use and how he missed eating magic mushrooms and smoking marijuana." He was "not able to maintain" in the foster home, and was moved to a group home.
The Department submitted a letter written by Mother in which she explained her nomadic lifestyle was due to being threatened by D.F. Mother asserted D.F. had been violent with her.
After striking the allegation in the petition regarding 10 white unidentified pills, the court sustained the remaining allegations of the petitions. D.F. appeared and requested he be elevated to presumed father status of C.C. The court deferred that determination to the disposition hearing, which it set for January.
In the report for the disposition hearing, the Department noted the two youngest children both had extensive tooth decay, one requiring general anesthesia to have the dental work completed. G.G., then aged four, appeared to have a speech delay. Mother had not allowed the children to be vaccinated. J.G., then aged seven, had never been enrolled in school and was unable to read. She was referred to an optometrist after a "failed eye exam." Mother indicated she homeschooled the children, but the Department reported no evidence of homeschooling.
Mother had a hair follicle drug test in early January. Although she "consistently denied substance abuse," she tested positive for methamphetamine, codeine, morphine, and heroin metabolites, as well as high levels of THC.
The Department reported it had sent an "ICWA 030" notice to the Choctaw and Cherokee tribes in December 2016, but received no response yet. The Department indicated it would "continue to inquire about possible Native ancestry."
With its report for the disposition hearing, the Department submitted the declaration and report of an ICWA expert, who was a tribal psychotherapist, tribal social worker, and tribal social services director. Based on his education, experience, review of the records and communications with the social worker, he opined if the minors were to remain in the care and custody of Mother, "it is likely to result in serious emotional or physical damage to them." Although it was still unknown if the minors were eligible to become members of any tribe, the ICWA expert stated Mother "has not parented in a manner that is reflective of the child-rearing practices" of the tribes to which she may belong. The expert opined that "due to the emergent nature of the circumstances, preplacement preventive services were unable to be offered. Active efforts are being made at this time to provide remedial services and rehabilitative programs" to Mother, including "mental health services, alcohol and other drug services, healthy moms program, and a psychological evaluation."
The court made no findings regarding whether ICWA applied, but found active efforts had been made to provide services designed to prevent the breakup of a possible Indian family, but that the efforts were unsuccessful. The court also found there was a substantial danger to the physical health, safety, protection or physical or emotional well-being of the minors if they were returned home. The court ordered maternity testing for Mother and all three children. The court granted D.F. presumed father status as to C.C.
DISCUSSION
ICWA Issues
Adequacy of Inquiry and Notice
Mother asserts the Department failed to conduct the required inquiry under ICWA, and did not notify all the potential tribes or provide enough information in the notices it did send. Thus, she seeks a conditional reversal of "the court's dispositional findings and orders, and all subsequent orders."
"The federal Indian Child Welfare Act of 1978 . . . provides: 'In 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 the 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, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.' (25 U.S.C. § 1912(a).) This notice requirement, which is also codified in California law (Welf. & Inst. Code, § 224.2 . . .), enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives the required notice." (In re Isaiah W. (2016) 1 Cal.5th 1, 5.)
The purpose of the ICWA notice provisions is "to enable the tribe or the [Bureau of Indian Affairs] to investigate and determine whether the child is in fact an Indian child. [Citation.] Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership. [Citations.] [¶] . . . [B]oth the federal ICWA regulations (25 C.F.R. § 23.11(d)(3) (2008)) and [Welfare and Institutions Code] section 224.2, subdivision (a) require the agency to provide all known information concerning the child's parents, grandparents and great-grandparents. . . . [O]mission of information concerning non-Indian relatives is [not] necessarily prejudicial . . . [because it is] typically less relevant to the tribe's determination of the child's eligibility for membership than information concerning the child's Indian ancestors." (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)
In general, the lack of compliance with the notice requirements of ICWA requires remand to the juvenile court, but not reversal of a jurisdictional or dispositional order. " '[V]iolation of the notice required by the ICWA is not jurisdictional error . . . the only order which would be subject to reversal for failure to give notice would be an order terminating parental rights.' " (In re Veronica G. (2007) 157 Cal.App.4th 179, 187.) Thus, where there is an ICWA notice violation, the "appropriate remedy is to remand for ICWA compliance." (Id. at p. 188; see In re Damian C. (2009) 178 Cal.App.4th 192, 199 ["Although we conclude the matter must be remanded with directions to the court to ensure ICWA compliance, we decline to reverse the jurisdictional and dispositional orders."].)
The Department does not dispute Mother's contentions regarding inadequate ICWA inquiry and notice prior to the dispositional hearing. It claims instead the appeal is moot and any error was harmless because it subsequently made further inquiries about the minors' possible Indian ancestry, and sent ICWA notices to the identified tribes. To support this claim, the Department requests judicial notice of over 600 pages of documents and exhibits filed with the juvenile court after the dispositional order, and therefore not part of the record on appeal. The documents include two status review reports filed for the August 2017 hearing, new ICWA-30 notices filed in May and June 2017, and copies of what appear to be mail return receipts. None are certified copies.
The Department relies on In re Z.N. (2009) 181 Cal.App.4th 282 (Z.N.) to support its claim judicial notice may be taken of the documents to demonstrate lack of prejudice. The court in In re Z.N. explained: "When determining whether a trial court committed error, we are generally limited to matters that were before the court when it ruled [citation] and there is some authority for not taking judicial notice of ICWA efforts for that purpose, including a case from our own division (In re I.G. (2005) 133 Cal.App.4th 1246, 1252-1253, . . . [judicial notice declined for the purpose of providing evidence to support an implied ICWA finding]). Here, however, we take judicial notice not to assess whether error occurred, but to assess whether there was resulting prejudice to any affected tribe. [Citations.] As for mother's protest that doing so introduces evidentiary material unsuited for resolution through judicial notice, we observe that the only materials at issue here are documents. Documents speak for themselves, and where there is no extrinsic evidence, the interpretation of a written instrument is a pure question of law. [Citations.] Mother raises no challenge to the accuracy or authenticity of these documents, which are all certified. Finally, of course, the question of prejudice itself is one of law for this court (Cal. Const., art. VI, § 13), not one for the trier below." (Z.N., at pp. 298-299, italics and fn. omitted.)
Other cases, however, have rejected the notion that the appellate court should make ICWA factual determinations based on materials outside the record. In In re Samuel P. (2002) 99 Cal.App.4th 1259, the court held that the ICWA notice requirements "were not complied with in several respects." (Id. at p. 1266.) Although the court took judicial notice of a copy of the ICWA notice sent and the return receipts, it noted "[s]ince these documents were not provided to the juvenile court, the court did not have a sufficient record from which to make a determination whether there had been compliance with the notice provisions of ICWA, or whether further inquiry was needed." (Ibid.) Thus, it remanded the case with directions to provide proper notice to the tribes and to file proof of receipt by the tribes with the juvenile court. (Id. at p. 1268.)
Similarly, in In re Jennifer A. (2002) 103 Cal.App.4th 692, "[n]o evidence regarding notice, receipt of notice, or any responses from the tribes or the BIA was provided to the juvenile court." (Id. at p. 703.) The department attempted to cure the error by requesting that the appellate court take additional evidence on appeal. (Ibid.) The court denied the request and declined to judicially notice the documents, explaining "it is up to the juvenile court to review the information concerning the notice given, the timing of the notice, and the response of the tribe, so that it may make a determination as to the applicability of the ICWA, and thereafter comply with all of its provisions, if applicable." (Id. at p. 705.) As the court in In re Nikki R. (2003) 106 Cal.App.4th 844, 852 noted, "It is a trial court function to receive evidence of [social services'] notice efforts and to determine if they measure up to ICWA standards."
We likewise decline to take judicial notice of the 600-plus pages of documents as requested by the Department. Judicial notice may be taken of the records of any court of this state. (Evid. Code, § 452, subd. (d).) While the existence of a court record may be judicially noticed, the truth of matters asserted in such records is not subject to judicial notice. (Rea v. Blue Shield of California (2014) 226 Cal.App.4th 1209, 1223; Simons, Cal. Evidence Manual (2017 ed.) § 7:12, p. 581.) Unlike in Z.N., the documents are not certified, nor do they "speak for themselves." (Z.N., supra, 181 Cal.App.4th at p. 299.) And, "the additional evidence does not convince us that proper notice was given as a matter of law." (Nikki R., supra, 106 Cal.App.4th at p. 855.) Even if only used to assess prejudice, use of these documents would require this court to make a factual determination about whether the appropriate tribes were given notice and whether those notices were adequate. We agree with those cases concluding this is a trial court function.
Mother claims we should make a finding that the ICWA inquiry and notice requirements were violated and reverse the dispositional orders and "subsequent orders." In the same circumstances, courts have concluded an ICWA notice violation is not jurisdictional, and determined the appropriate remedy is a remand to the juvenile court with directions to direct the Department to comply with the notice provisions of ICWA. (In re Veronica G., supra, 157 Cal.App.4th at pp. 187-188; In re Brooke C. (2005) 127 Cal.App.4th 377, 386.) If the court determines any of the minors are Indian children, Mother may petition the juvenile court to invalidate orders that violated ICWA. (See In re Veronica G., at p. 188; Cal. Rules of Court, rule 5.486(a).)
Although some courts have held that a violation of ICWA constitutes jurisdictional error (see Nicole K. v. Superior Court (2007)146 Cal.App.4th 779, 781), we conclude that In re Veronica G. and In re Brooke C. state the better view—that the error here was not "jurisdictional" in the fundamental sense and that reversal is only appropriate where parental rights have been terminated. (In re Brooke C., supra, 127 Cal.App.4th at p. 385.)
Juvenile Court's Finding of Active Efforts Under ICWA
Mother asserts the juvenile court's finding that active efforts were made to prevent the breakup of a potential Indian family was not supported by substantial evidence.
A "party seeking an involuntary foster care placement of . . . an Indian child shall provide evidence to the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (Welf & Inst. Code, § 361.7, subd. (a); 25 U.S.C. § 1912(d).) "[T]he standards in assessing whether 'active efforts' were made to prevent the breakup of the Indian family, and whether reasonable services under state law were provided, are essentially undifferentiable. Under the ICWA, however, the court shall also take into account 'the prevailing social and cultural conditions and way of life of the Indian child's tribe. [Remedial services] shall also involve and use the available resources of the extended family, the tribe, Indian social service agencies and individual Indian care givers.' " (In re Michael G. (1998) 63 Cal.App.4th 700, 714.) We review the juvenile court's finding for substantial evidence, viewing the record in a light most favorable to the judgment. (C.F. v. Superior Court (2014) 230 Cal.App.4th 227, 239.)
Despite making no finding as to the applicability of or compliance with ICWA, the juvenile court and the Department proceeded as though ICWA might apply. The Department obtained the services of an ICWA expert, who submitted a report. He opined if the minors were to remain in the care and custody of Mother, "it is likely to result in serious emotional or physical damage to them." Although it was still unknown if the minors were eligible to become members of any tribe, the expert believed if they were, the tribes could provide them with supportive resources and services. The ICWA expert stated Mother "has not parented in a manner that is reflective of the child-rearing practices" of the tribes to which she may belong. Lastly, he opined that "due to the emergent nature of the circumstances, preplacement preventive services were unable to be offered. Active efforts are being made at this time to provide remedial services and rehabilitative programs" to Mother, including "mental health services, alcohol and other drug services, healthy moms program, and a psychological evaluation."
Mother maintains the "active efforts" finding was in error because the Department failed to investigate her allegations of prior violence by D.F. and failed to provide services addressing that history or domestic violence. To the contrary, the Department investigated D.F. and learned he had no criminal history in California and had previously been awarded full legal and physical custody of C.C. in family court in 2004. The family court had ordered only supervised visitation for Mother. Mother, however, left Humboldt County with C.C. "soon after these orders were issued." D.F. reported Mother "was abusive towards him and severely mentally ill."
As to services, the Department referred Mother to an alcohol and other drugs program, a detox program, a "Healthy Mom's" program, the Humboldt Family Service Center, the Humboldt Recovery Center, and staffed the case "with a supervisor to discuss the barriers to completing the case plan." The Department also recommended that, due to Mother's "erratic behavior and statements . . . [Mother should] complete a psychological evaluation" and have a mental health assessment or services. Mother, however, had not engaged in any services.
Mother acknowledges the ICWA expert concluded that active efforts had been made to prevent the breakup of a possible Indian family, but claims his opinion should be given little weight. Our task, however, is not to reweigh the evidence but to determine whether substantial evidence supports the trial court's finding. (See In re I.J. (2013) 56 Cal.4th 766, 773.) It does.
Presumed Father Status
Mother asserts there is no substantial evidence supporting the juvenile court's finding that D.F. is the presumed father of C.C.
Family Code section 7611 sets forth several rebuttable presumptions under which a man may qualify as a presumed father. (In re D.A. (2012) 204 Cal.App.4th 811, 824.) Family Code section 7611 provides a "person is presumed to be the natural parent of a child" under certain conditions, including where "[t]he presumed parent is obligated to support the child under a written voluntary promise or by court order, [or] [t]he presumed parent receives the child into his or her home and openly holds out the child as his or her natural child." (Fam. Code, § 7611, subds. (c)(2), (d).)
"Case law holds, however, that under certain circumstances a man may acquire all of the rights of a presumed father without meeting the requirements of any of the statutory presumptions. Under [Adoption of] Kelsey S. [(1992) 1 Cal.4th 816], 'an unwed biological father who comes forward at the first opportunity to assert his paternal rights after learning of his child's existence, but has been prevented from becoming a statutorily presumed father under [Family Code] section 7611 by the unilateral conduct of the child's mother or a third party's interference' acquires a status 'equivalent to presumed parent status under [Family Code] section 7611.' " (In re D.A., supra, 204 Cal.App.4th at p. 824.)
In this case, D.F. took prompt legal action to secure legal custody of C.C. The Humboldt family court had awarded D.F. full legal and physical custody of C.C. in 2004, thus obligating him to support the child. Mother then absconded with C.C. and was on the run with him for years while concealing their whereabouts by using aliases for both of them. Thus, substantial evidence supports the finding that D.F. is the presumed father of C.C.
DISPOSITION
The challenged dispositional orders are affirmed, and the matter is remanded to the juvenile court with directions to direct the Department to comply with the notice provisions of ICWA, if it has not already done so. After proper notice under the ICWA, if it is determined that the minors are Indian children and the ICWA applies to these proceedings, Mother is entitled to petition the juvenile court to invalidate orders that violated the ICWA. (See 25 U.S.C. § 1914; Cal. Rules of Court, rule 5.486(a) [petition to invalidate orders].) Should any of the identified tribes determine the minors are Indian children, or other information show the minors to be Indian children as defined by ICWA, the juvenile court shall conduct new jurisdiction and disposition hearings in conformity with ICWA.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.