Opinion
H043992
02-23-2017
In re C.M., et al., Persons Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL & EMPLOYMENT SERVICES, Plaintiff and Respondent, v. C.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. J48468; J48469)
Christina M. (mother), the mother of C.M. and A.B.-C. (the children), appeals from the Welfare and Institutions Code section 366.26 orders, issued on September 13, 2016, terminating parental rights as to the children. Juvenile dependency petitions had been filed on behalf of the children in 2015.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
In this case, the juvenile court and the Monterey County Department of Social and Employment Services (Department) had sufficient information to trigger the notice requirements of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and California law implementing ICWA. Mother asserts that the juvenile court's orders terminating parental rights must be reversed because the notices that the Department sent were inadequate to comply with the law. She contends that the Department breached its duty of inquiry and the ICWA notices improperly omitted information regarding her paternal relatives who she had indicated had Indian heritage.
The record does not affirmatively establish error. Accordingly, we will affirm.
I
Procedural History
In 2015, the Department filed juvenile dependency petitions on behalf of C.M., who was then under two years of age, and A.B.-C., who was then a newborn, pursuant to section 300, subdivision (b), (failure to protect). The petitions alleged that the children had the same mother, but they had different fathers. Mother also allegedly had an older child, C.P., who was living with his father, a third man.
This is the child's name as later corrected in the dependency proceedings.
"Indian Child Inquiry Attachment" forms attached to the petitions indicated that the children may have Indian ancestry based on questioning of the mother, who had reported possible Indian ancestry on a grandfather's side but had indicated that the tribe was unknown. A second "Indian Child Inquiry Attachment" form attached to the petitions indicated that C.M.'s father, S.E., had reported possible Navajo ancestry in Arizona.
In separate "Parental Notification of Indian Status" forms concerning the children, mother indicated that she may have Indian ancestry, identifying C.M.'s maternal grandfather, M.M. In another such form, C.M.'s father indicated that he may have Indian ancestry and specified the tribe as Cherokee. A.B.-C.'s father indicated on his form that he had no Indian ancestry as far as he knew.
The jurisdiction/disposition report, dated June 16, 2015, reported on the children's ICWA status. It stated the parents had each completed an ICWA-020 form ("Parental Notification of Indian Status"). It disclosed that mother had indicated that "she may have Indian [a]ncestry on her maternal and paternal sides of the family" but that she was unsure of the tribe. S.E., C.M.'s presumed father, had indicated that "he has Navajo and Cherokee [a]ncestry." It was reported that the presumed father of A.B.-C. had disclosed no Indian ancestry. According to the report, the Department was "in the process of sending out notices to all tribes in which the child might be a member of or be eligible for membership."
None of the parents appeared for the jurisdiction/disposition hearing on June 16, 2016. The Department's counsel informed the juvenile court that each of the three parents had tested positive for methamphetamine on the previous day. The parties, through counsel, submitted on the jurisdiction/disposition report. The court found that the petitions' allegations were true and declared the children to each be a dependent child of the court, removed the children from parental custody, placed them in the Department's care, custody and control for suitable placement, and ordered family reunification services for the children's parents.
In both dependency proceedings, a "Notice of Child Custody Proceeding for Indian Child" (ICWA notice) for the six-month review hearing, then set for December 8, 2015, was mailed out. The ICWA notices concerning the children provided information regarding their biological parents, whom were all identified as homeless.
The ICWA notice on behalf of C.M. stated that "[m]other's family has no additional information and cannot identify a tribe" and that father's family has no additional information. It provided information regarding C.M.'s four grandparents. As to C.M.'s maternal grandfather, the notice specifically stated his name (M.P.M.), his current and former Michigan addresses, his birth month and year, and the state in which he was born, but it did not state a tribe or band. In addition, on mother's side, the notice provided full information regarding one maternal great-grandmother, only the name and birth date and birth place of one maternal great-grandfather, and no information regarding the other maternal great-grandparents. On the father's side, the notice provided full information regarding one of C.M.'s paternal great-grandmothers, including the names of 18 Indian tribes or bands, but it contained no information regarding C.M.'s other paternal great-grandmother. It provided the name of one of C.M.'s paternal great-grandfathers and no information regarding her other paternal great-grandfather. The notice also provided some information regarding a great-great-grandmother, a great-great-great-grandmother reportedly born on a reservation in Prescott, Arizona but whose last name was unknown, and a paternal uncle. The notice on behalf of C.M. was sent to the Bureau of Indian Affairs (BIA) and the named tribes or bands.
With regard to the children's maternal grandfather's name, C.M.'s ICWA notice stated a first, middle, and last name (M.P.M.) whereas A.B.-C.'s ICWA notice stated a first and last name (M.M.). As to this grandfather, C.M.'s ICWA notice stated that his tribe or band and its location was "Unknown" whereas A.B.-C.'s ICWA notice stated that his tribe or band and its location was "Not Applicable. There is no argument on appeal that these differences were material.
The ICWA notice on behalf of A.B.-C. also stated that "[m]other's family has no additional information and cannot identify a tribe." It stated that his father was not claiming Native American heritage. Information was provided regarding the child's maternal grandparents (including M.M.) (see fn. 3, ante), but no information was provided regarding his paternal grandparents. Information was provided regarding one set of his maternal great-grandparents, but no information was provided regarding the other set. The notice gave no information regarding any of his paternal great-grandparents. The notice on behalf of A.B.-C. was sent to the BIA.
The status review report, which was filed December 11, 2015 and which had been prepared for the contested six-month review hearing (then set for January 26, 2016), recommended that the juvenile court terminate family reunification services to the children's parents and set the matters for a "Selection and Implementation Hearing" (§ 366.26). The report revealed that the Department previously had sent an ICWA notice to the Yakama Nation at the wrong address and that a notice had been sent to the correct mailing address on October 22, 2015. The Department was awaiting a response.
An addendum report, which was filed January 29, 2016, recommended that the juvenile court, at the contested six-month review hearing (continued to February 1, 2016), find that the Department had complied with ICWA's notice requirements and that ICWA did not apply to the children's dependency cases. The Department reported that on July 16, 2015 and subsequent dates in September and October 2015, it had sent copies (by certified mail, return receipt requested) of the "Notice of Involuntary Child Custody Proceedings for an Indian Child" to "all of the tribes to which the Department had reason to believe the child might belong." The Department had received two letters in return, one from the White Mountain Apache Tribe (dated August 31, 2015) and one from the Ramah Navajo School Board (dated August 25, 2015). Neither of the responding tribes had indicated that C.M. was a member of, or eligible for membership in, the tribe. In its letter, the Ramah Navajo School Board stated that it was forwarding the notice to the Navajo Nation ICWA Office, and it advised all further ICWA inquiries be sent to that office.
On February 1, 2016, before the juvenile court found that the ICWA did not apply to the children, mother's counsel specifically stated that she had no objection to such a finding. The court found that ICWA did not apply to the children, terminated family reunification services to the parents, ordered the children to continue as dependents of the court in the Department's care and custody, and set the matters for a section 366.26 hearing on May 24, 2016.
A letter from the Navajo Nation (dated March 11, 2016) was filed on March 17, 2016. The letter stated that it had been "unable to verify [C.M.]'s eligibility for tribal membership enrollment with the Navajo Nation base[d] on parent's ancestry provided." The letter advised that, "[i]f you are able to obtain additional information which will assist us in determining the child's eligibility for enrollment with the Navajo Indian Tribe, please notify us."
The Department's report for the section 366.26 hearing recommended that the juvenile court terminate parental rights, continue the children as dependents of the court, and approve adoption as the permanent plan for both children. It stated that, on February 1, 2016, the court had found that ICWA did not apply.
On September 13, 2016, the juvenile court terminated parental rights, ordered the children continued as dependents of the court, and declared adoption to be the permanent plan for both of them.
II
Discussion
A. Mother's Contentions
Mother asserts that the social worker failed to make further inquiries concerning her paternal relatives and to secure additional available information, and as a result the ICWA notices were inadequate. She maintains that the notices should have included the names of the children's great-grandparents, and they were "missing the operative names which could have linked the minors to the tribes." She complains that there is no indication that the Department, which was in regular contact with the children's maternal grandmother, M.S., and their maternal aunt, A.S., "asked them if the they knew anything more about [the children's maternal grandfather M.M.'s] heritage, or even if the [social] worker had contacted [him] directly." Mother points out the Department could have easily contacted M.M. since it had an address for him, which was listed on the notices.
Mother acknowledges that "[s]ome courts have held that reversal is not required if the appellate record does not demonstrate whether or not the [social] worker made the requisite inquiry, as is the case here." She claims that those cases are distinguishable because "mother asserted Indian heritage through her father." Citing In re S.M. (2004) 118 Cal.App.4th 1108, 1116 (S.M.), mother asserts that we should reverse "even if the record does not reveal whether the [social] worker attempted to gather all available information."
The Department argues that "[t]here is nothing in [the appellate] record to suggest that [it] did not utilize all information known or discoverable to it" or that there is any "additional information available to [it] to provide further notice to the tribes or the [BIA]." B. Legal Background
"[ICWA] establishes minimum federal standards a state court must follow when removing an Indian child from his or her family. Congress has defined 'Indian child' for these purposes as '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).)" (In re Abbigail A. (2016) 1 Cal.5th 83, 88 (Abbigail A.).)
"When applicable, ICWA imposes specific requirements on child custody proceedings in state court. Among other things, when 'the court knows or has reason to know that an Indian child is involved,' the party seeking to remove the Indian child from the custody of its parent or Indian custodian, or to terminate parental rights, must 'notify the parent or Indian custodian and the Indian child's tribe . . . of the pending proceedings and of their right of intervention.' (25 U.S.C. § 1912(a).) If the parent, Indian custodian or tribe cannot be determined, notice must be given to the [BIA]. (Ibid.)" (Abbigail A., supra, 1 Cal.5th at pp. 90-91.)
"If . . . the Tribes in which the Indian child is a member or eligible for membership cannot be ascertained, but there is reason to know the child is an Indian child, notice of the child-custody proceeding must be sent to the appropriate [BIA] Regional Director (see www.bia.gov). To establish Tribal identity, as much information as is known regarding the child's direct lineal ancestors should be provided. The [BIA] will not make a determination of Tribal membership but may, in some instances, be able to identify Tribes to contact." (25 C.F.R. § 23.111(e).)
"The tribe may intervene 'at any point in the proceeding.' ([25 U.S.C.] § 1911(c).) Under certain circumstances, the court must 'transfer such proceeding to the jurisdiction of the tribe.' (Id., subd. (b).) If the proceeding is not transferred, the party seeking to remove an Indian child must 'satisfy 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.' (Id., § 1912(d).) The court may not enter an order removing an Indian child 'in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.' (Id., subd. (e).) Similarly, an order terminating parental rights requires 'a determination, supported by evidence beyond a reasonable doubt,' that continued custody by the parent or Indian custodian is likely to result in such damage. (Id., subd. (f).) Any placement of an Indian child must follow the preferences set out in ICWA. (Id., § 1915.) Finally, ICWA authorizes collateral attacks: When a court removes an Indian child or terminates parental rights in violation of ICWA, 'any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action . . . .' (Id., § 1914.)" (Abbigail A., supra, 1 Cal.5th at p. 91.)
"In California, the state with the second largest Indian population (U.S. Dept. of the Interior, BIA, 2013 American Indian Population and Labor Force Report (Jan. 16, 2014) p. 10 [281,374 Native Americans] ), persistent noncompliance with ICWA led the Legislature in 2006 to 'incorporate[ ] ICWA's requirements into California statutory law.' (In re W.B. (2012) 55 Cal.4th 30, 52; see Welf. & Inst. Code, §§ 224-224.6.)" (Abbigail A., supra, 1 Cal.5th at p. 91.)
Under California law implementing ICWA, "[i]f the court [or] a social worker . . . knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under [the Welfare and Institutions Code" must be sent to specified recipients (§ 224.2, subd. (a)), including "all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child's tribe . . . , after which notice need only be sent to the tribe determined to be the Indian child's tribe." (§ 224.2, subd. (a)(3).) An ICWA notice must include, among other information, "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (§ 224.2, subd. (a)(5)(C), italics added.)
A federal regulation implementing ICWA requires the notice of a child-custody proceeding to include among other things "[a]ll names known (including maiden, married, and former names or aliases) of the parents, the parents' birthdates and birthplaces, and Tribal enrollment numbers if known" (25 C.F.R. § 23.111(d)(2), italics added) and "[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents (Id., § 23.111(d)(3), italics added).
California law imposes upon "[t]he court [and the] county welfare department . . . an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or 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, subd. (a) (hereinafter § 224.3(a)), italics added; see California Rules of Court, rules 5.480(1) [rule 5.480 et seq. applies to proceedings under § 300], 5.481(a) [affirmative and continuing duty to inquire].) "If the court [or] social worker . . . knows or has reason to know that an Indian child is involved, the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2, contacting the [BIA] and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility." (§ 224.3, subd. (c), italics added.)
All further references to rules are to the California Rules of Court.
Rule 5.481(a)(4) more specifically provides that, "[i] f the social worker . . . or petitioner knows or has reason to know that an Indian child is or may be involved, that person or entity must make further inquiry as soon as practicable by: [¶] (A) Interviewing the parents, Indian custodian, and 'extended family members' as defined in 25 United States Code sections 1901 and 1903(2), to gather the information listed in Welfare and Institutions Code section 224.2(a)(5) . . . , which is required to complete the Notice of Child Custody Proceeding for Indian Child (form ICWA-030) . . . ." United States Code, title 25, section 1903(2), states that " 'extended family member' shall be as defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent."
"Notwithstanding a determination that the [ICWA] does not apply to the proceedings made in accordance with subdivision (e), if the court [or] social worker . . . subsequently receives any information required under paragraph (5) of subdivision (a) of Section 224.2 that was not previously available or included in the notice issued under Section 224.2, the social worker . . . shall provide the additional information to any tribes entitled to notice under paragraph (3) of subdivision (a) of Section 224.2 and the [BIA]." (§ 224.3, subd. (f).)
Section 224.3, subdivision (e)(3), (hereinafter section 224.3(e)(3)) provides: "If proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the [BIA] has provided a determinative response within 60 days after receiving that notice, the court may determine that the [ICWA] does not apply to the proceedings, provided that the court shall reverse its determination of the inapplicability of the [ICWA] and apply the act prospectively if a tribe or the [BIA] subsequently confirms that the child is an Indian child." "Reading section 224.3(a) together with section 224.3[(e)(3)] underscores the continuing nature of the juvenile court's duty." (In re Isaiah W. (2016) 1 Cal.5th 1, 11 (Isaiah W.).)
"The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) determines whether the child is a member of the Tribe, or whether the child is eligible for membership in the Tribe and a biological parent of the child is a member of the Tribe, except as otherwise provided by Federal or Tribal law." (25 C.F.R. § 23.108(a); see 25 C.F.R. § 23.108(b); § 224.3, subds. (e)(1) & (e)(2).) --------
"Section 224.3(e)(3) implicitly recognizes that any finding of ICWA's inapplicability before proper and adequate ICWA notice has been given is not conclusive and does not relieve the court of its continuing duty under section 224.3(a) to inquire into a child's Indian status in all dependency proceedings. (See Dwayne P. [v. Superior Court (2002)] 103 Cal.App.4th [247,] 261 ['Because the court's duty continues until proper notice is given, an error in not giving notice is also of a continuing nature and may be challenged at any time during the dependency proceedings.'].) Only after proper and adequate notice has been given and neither a tribe nor the BIA has provided a determinative response within 60 days does section 224.3(e)(3) authorize the court to determine that ICWA does not apply. The effect of that determination is to relieve the court of the duty it would otherwise have under section 224.2, subdivision (b) to provide ICWA notice 'whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter.' " (Isaiah W., supra, 1 Cal.5th at p. 11.)
"Because ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, . . . the parent may challenge a finding of ICWA's inapplicability in an appeal from the subsequent order, even if she did not raise such a challenge in an appeal from the initial order." (Isaiah W. supra, 1 Cal.5th at p. 6.) " '[G]iven the court's continuing duty throughout the dependency proceedings to ensure the requisite notice is given [citation], and the protections the ICWA affords Indian children and tribes, the parents' inaction does not constitute a waiver or otherwise preclude appellate review.' [Citations.]" (Id. at p. 13.) C. Analysis
In making her ICWA arguments, mother overlooks a settled principle of appellate review, which governs our resolution of her contentions. " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . .' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, second italics added.)
Mother suggests that we must infer from a silent record that the Department and the social worker failed to fulfill their legal duties to make inquiries into the children's possible Indian status and to send adequate ICWA notices. We adhere to the guiding principle the error must be affirmatively shown. The record before us does not affirmatively show that the Department and the social worker breached the affirmative and continuing duty of inquiry under section 224.3(a), by not using reasonable diligence and effort to interview extended family members, including M.S., A.S., and M.M., or any other person that reasonably could have been expected to have information regarding the children's membership status or eligibility (see § 224.3, subd. (c)), or that the ICWA notices omitted any information regarding the children's direct lineal ancestors that was reasonably discoverable by such inquiry. Under applicable law, the ICWA notices were not required to include "unknown" information concerning the children's direct lineal ancestors. (See § 224.2, subd. (a)(5)(C); 25 C.F.R. § 23.111(d)(2) & (d)(3).)
To the contrary, the fact that the ICWA notices contain far more information than initially provided by the parents in the "Parental Notification of Indian Status" forms suggests that the Department and the social worker were reasonably diligent in making inquiries. It may be inferred from the ICWA notices' statement that "mother's family has no additional information" that the Department and the social worker sought to acquire further information from the members of mother's family as required by law and that the ICWA notices contain all reasonably available information. In the absence of contrary information, we presume that the official duties of the Department and the social worker were regularly performed. (See Evid. Code, § 664; In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1108 ["when a social worker's report or other documentation indicates that ICWA notice has been provided, it can properly be presumed that such notice was in compliance with the requirements of the ICWA"].)
This case is distinguishable from the S.M. case on which mother relies. In S.M., Lucille, the dependent child's paternal grandmother and de facto parent, told the social worker that the child had Cherokee blood on Lucille's mother's side. (S.M., supra, 118 Cal.App.4th at pp. 1112-1113.) The child's father told the social worker that "his grandmother, Lillian, may have been registered with one of the Cherokee tribes and before her death resided in Beaumont, Texas." (Id. at p. 1113.) The challenged ICWA notices provided no information about Lucille or Lillian, the person with the alleged Indian heritage. (Id. at p. 1116.) The appellate court stated that "[i]nformation about Lucille was indisputably available because she was the minor's de facto parent[] [citation]" and that it was "likely [that] Lucille had information about Lillian." (Ibid.) The court concluded that "[b]ecause the notices contained no information about Lillian or Lucille, the tribes could not conduct a meaningful search with the information provided. [Citations.]" (Ibid.) It reversed the order terminating parental rights. (Id. at p. 1123.)
The ICWA notices in this case, unlike those in S.M., contain identifying information for both the children's mother, the person who disclosed potential Indian heritage, and their maternal grandfather, the person with the alleged Indian heritage. The record in this case does not affirmatively show, or even suggest, that the Department or the social worker in any way neglected their affirmative and continuing duty of inquiry or failed to secure information that was indisputably or likely available.
Mother also argues that "as a matter of policy, the Department should be required to include any and all inquiries—and the results—in its reports." Mother has not pointed to any statute, regulation, or court rule that required the Department or the social worker to document and report all inquiries and efforts made to discover the children's Indian ancestry and the results. Courts have no power to rewrite a statute to make it conform to a presumed legislative intent that was not expressed. (See County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 446.) "[I]t is up to legislatures, not courts, to decide on the wisdom and utility of legislation." (Ferguson v. Skrupa (1963) 372 U.S. 726, 729.)
Based upon the record before us, we cannot conclude that the juvenile court, the Department, or the social worker breached the affirmative and continuing duty of inquiry or that the ICWA notices were defective.
DISPOSITION
The section 366.26 order terminating parental rights is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
RUSHING, P. J. /s/_________
PREMO, J.