Opinion
F076718
08-07-2018
In re G.H. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. E.H., Defendant and Appellant.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, County Counsel, and Bryan Walters, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD135127-01, JD135128-01)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Louie L. Vega, Judge. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, County Counsel, and Bryan Walters, Deputy County Counsel, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
E.H. (father) appeals the judgment terminating his parental rights to his sons, G.H. and S.H., now six and five years of age, respectively (the children). The children's mother, Kelly A., is not a party to the appeal. Father contends the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We agree and conditionally reverse the order terminating parental rights (Welf. & Inst. Code, § 366.26) and remand for the limited purpose of allowing the juvenile court to comply with the notice provisions of the ICWA.
Statutory references are to the Welfare and Institutions Code unless otherwise noted.
PROCEDURAL AND FACTUAL BACKGROUND
These dependency proceedings were initiated in January 2017 when the Kern County Department of Human Services (the department) removed then four-year-old G.H. and three-year-old S.H. from father's custody after he was arrested for child endangerment and drug sales. Sheriff's deputies found hypodermic needles and what appeared to be methamphetamine and marijuana within the children's reach.
The department also removed the children in August 2015 from father and Kelly (mother), also a substance abuser, after sustaining allegations of parental neglect. Father and mother each filed an ICWA-020 form ("Parental Notification of Indian Status"), stating they may have Indian ancestry through the Cherokee tribe. The department completed an ICWA-030 form ("Notice of Child Custody Proceeding for Indian Child") and sent it to the Eastern Band of Cherokee Indians, Cherokee Nation of Oklahoma and United Keetoowah Band of Cherokee Indians by certified mail. The tribes responded by letter, stating the children were not Indian children under the ICWA. The juvenile court found the department provided proper notice under the ICWA and that it did not apply. The court removed the children from parental custody and ordered reunification services for both parents. Father successfully reunified with them and in September 2016, the juvenile court awarded him sole physical and legal custody and terminated its jurisdiction over the case. According to father, mother was homeless and had not seen the children since the case was dismissed in September 2016.
Father appeared for the detention hearing in January 2017 and submitted an ICWA-020 form, indicating he did not have Indian ancestry as far as he knew. The juvenile court ordered the children detained. The court noted it made an ICWA finding in the previous dependency case. However, it did not ask father if he had any additional information concerning his Indian ancestry, take judicial notice of the prior ICWA finding or find the ICWA applied. The department placed the children with their previous foster parent.
Mother appeared at the jurisdictional hearing in February 2017 and the juvenile court found the children came within its dependency jurisdiction. Father did not appear. The court did not inquire whether mother had Indian ancestry and she was not instructed to complete an ICWA-020 form. Neither parent appeared at the dispositional hearing in April 2017. The court denied them reunification services and set a section 366.26 hearing. The parents did not challenge the setting order by filing an extraordinary writ petition.
In October 2017, the juvenile court conducted the section 366.26 hearing. Neither parent was present. The court found the children were likely to be adopted and terminated parental rights.
DISCUSSION
Father contends the order terminating his parental rights must be conditionally reversed because the juvenile court and the department failed to inquire as required under the ICWA whether mother had Native American heritage. We agree.
The purpose of ICWA is well-established and we need not restate it here. (See 25 U.S.C. § 1902; In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) Suffice it to say for the purposes of this appeal that the juvenile court has a continuing duty to inquire whether a child may be an Indian child under the ICWA by section 224.3, which imposes "an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 ... has been ... filed ... may be an Indian child in all dependency proceedings ... if the child is at risk of entering foster care or is in foster care." (§ 224.3, sub. (a).)
The department concedes its duty of inquiry was breached as to mother but contends the tribal responses in the prior dependency proceedings were conclusive because they pertained to the same children. Consequently, the juvenile court had no reason to suspect the ICWA applied absent new evidence. Therefore, the department and the court were absolved from inquiring whether the children may be Indian children in this case.
Respondent initially conceded error and requested a stipulated reversal and limited remand, but filed a reply brief after this court denied the stipulation without prejudice. --------
The department's reasoning is faulty and ignores its duty to inquire. The juvenile court's finding the ICWA did not apply in the prior case was based on the parents' claimed Cherokee Indian ancestry and the Cherokee tribes' responses that the children were not Indian children. However, that finding cannot be conclusive in this case as to mother when she was not asked whether she had Indian heritage and given the possibility that if asked she may have identified Indian heritage through another tribe.
Under these circumstances, this case must be remanded to the juvenile court with directions to order the department to comply with ICWA notice requirements. We therefore conditionally reverse the juvenile court's order terminating parental rights. If, after proper notice, the court finds that the children are Indian children, the court shall proceed in conformity with the ICWA. If it is determined on remand that the children are not Indian children, the orders shall be reinstated.
DISPOSITION
The orders of the juvenile court terminating parental rights are conditionally reversed and the matter remanded to the juvenile court for the sole purpose of complying with its duty of inquiry and notice provisions of the Indian Child Welfare Act (ICWA) and for the court to determine whether the ICWA applies in this case. If the court determines the ICWA does not apply, the orders shall be reinstated. If information is presented to the juvenile court affirmatively indicating the minors are Indian children as defined by the ICWA and the juvenile court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new Welfare and Institutions Code section 366.26 hearing in conformance with all provisions of the ICWA.