Opinion
E069578
07-13-2018
In re A.E. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. C.E. et al., Defendants and Appellants.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant C.E. William Hook, under appointment by the Court of Appeal, for Defendant and Appellant B.C. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1400679) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Reversed with directions. Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant C.E. William Hook, under appointment by the Court of Appeal, for Defendant and Appellant B.C. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, C.E. (Mother), is the mother of four children, A.E., R.E., T.E., and H.E., the subjects of this appeal. Defendant and appellant, B.C., is the biological father of A.E. Mother appeals from the November 30, 2017, orders terminating parental rights to the four children, and B.C. appeals from the order terminating parental rights to A.E. (Welf. & Inst. Code, § 366.26.) Mother and B.C. claim only that plaintiff and respondent, Riverside County Department of Public Social Services (DPSS), failed to adequately investigate the children's maternal ancestry and thus failed to give adequate notices of the proceedings under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law (Welf. & Inst. Code, § 224 et seq.).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
B.C. and Mother also appeal from the November 30, 2017, orders denying their section 388 petitions, but they raise no claims concerning those orders. The parents' ICWA claims are cognizable on their appeals from the section 366.26 orders, even though the parents raised no ICWA claims at the section 366.26 hearings or at any earlier point during the dependency proceedings. (In re Isaiah W. (2016) 1 Cal.5th 1, 9-10 (Isaiah W.).)
We conclude the parents' claims have merit. Nothing in the record, including DPSS's reports, shows DPSS interviewed any extended family members concerning the children's lineal ancestry, including the maternal grandparents, the paternal grandfather of R.E. and T.E., or the paternal grandfather of A.E., even though these persons were available to DPSS. These persons likely would have had additional information concerning the children's lineal ancestry, which was not included in the ICWA notices and which likely would have assisted the noticed tribes and the Bureau of Indian Affairs (BIA) in determining whether any of the children were Indian children.
Accordingly, we conditionally reverse the orders terminating parental rights and remand the matter with directions to the juvenile court to direct DPSS to conduct further inquiries and provide additional notices under ICWA and related California law. If, after receiving notice as required by those statutes, the relevant tribes do not respond or respond that the children are not Indian children within the meaning of ICWA, the orders terminating parental rights shall immediately be reinstated and further proceedings shall be conducted, as appropriate. If any tribe determines that the children are Indian children, the juvenile court shall proceed accordingly.
II. FACTS AND PROCEDURE
Because appellants only raise ICWA claims, we do not describe the facts and procedural history of the dependency proceedings in extensive detail. (See In re K.R. (2018) 20 Cal.App.5th 701, 704.)
DPSS became involved with the family in July 2014, after Mother tested positive for methamphetamine during a prenatal examination for H.E. When H.E. was born in August 2014, both H.E. and Mother tested positive for methamphetamine. A.E. was then age seven, R.E. age six, and T.E. age three.
Mother reported that her husband, G.E., used methamphetamine and heroin. Mother and G.E. were separated, and Mother was raising the children in the home of the paternal grandfather and his wife. The maternal grandparents were also available to DPSS, but G.E.'s mother was deceased.
G.E. is not a party to this appeal.
On August 11, 2014, Mother told DPSS she had Cherokee Indian ancestry on both sides of her family. On August 20, G.E. reported having Cherokee ancestry on his mother's side of his family. On August 25, Mother and G.E. signed Parental Notification of Indian Status forms (Judicial Council form ICWA-020), stating they "may" have Cherokee ancestry. At the August 25 detention hearing, the court found ICWA may apply and that G.E. was the children's presumed father.
On September 16, 2014, the court sustained jurisdictional allegations that Mother and G.E. used controlled substances and had a history of exposing the children to domestic violence. (§ 300, subd. (b).) The court removed the children from G.E. and ordered them placed with Mother pursuant to a family maintenance plan and granted G.E. reunification services.
In a March 17, 2015, status review report, DPSS stated ICWA does or "may apply" but recommended that the court find ICWA did not apply. At an April 27, 2015, review hearing, the court found ICWA did not apply, ostensibly because the children were placed with Mother. (In re J.B. (2009) 178 Cal.App.4th 751, 757-758 [ICWA does not apply to proceedings in which dependent child is removed from one parent and placed with another].)
On May 19, 2015, DPSS detained the children in foster care. On May 20, DPSS filed a supplemental petition, alleging Mother continued to abuse controlled substances and engage in domestic violence. The supplemental petition included an Indian child inquiry attachment for each child (Judicial Council form ICWA-010(A)). The forms indicated that on May 19 Mother and G.E. again reported that the children may have Cherokee ancestry through their maternal grandparents and paternal grandmother. On August 24, 2015, the court sustained the supplemental petition, removed the children from Mother, and granted Mother reunification services. The children continued to be placed in foster care.
On June 22, 2015, DPSS mailed notices of the proceedings to the Eastern Band of Cherokee Indians, the Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians, the BIA, and the Secretary of the Interior. Each tribe then notified DPSS that, based on the information provided, none of the children were eligible for enrollment and the tribes would not intervene.
In June 2015, the United Keetoowah Band of Cherokee Indians notified DPSS by letter that it would not intervene in the proceedings because, based on the information provided, there was no evidence that the children were descended from anyone on the Keetoowah Roll. In July 2015, the Eastern Band of Cherokee Indians notified DPSS it would not intervene because the information provided showed none of the children were eligible to enroll in the tribe.
In October 2015, the Cherokee Nation notified DPSS it would not intervene because the information provided was insufficient to determine whether any of the children were Indian children. The Cherokee Nation explained it could not make a "conclusive finding" that a child is eligible for enrollment in the tribe without the full name, including maiden name, and the date of birth of a lineal ancestor of the child who was an enrolled member of the tribe. The record does not show that the BIA responded to its June 2015 ICWA notice.
On October 27, 2015, the court again found that ICWA did not apply. On the same date, the court terminated G.E.'s reunification services.
In January 2016, Mother's fifth child, B.S., was born, and Mother and B.S. tested positive for methamphetamine. B.S. is not a subject of this appeal. After she was denied services for B.S., Mother filed a notice of her intention to file a writ petition. Mother withdrew her writ petition, but the record on the writ petition, in case No. E065933, was incorporated into the record in these appeals. The record in case No. E065933 shows that DPSS conducted further ICWA inquires of Mother in January 2016.
B.S.'s father is E.S. B.S. was initially placed in foster care and was later placed with a paternal uncle. Parental rights to B.S. were terminated in October 2017.
In February 2016, Mother told DPSS that her great-grandmother (the children's maternal great-great-grandmother) was a "full-blooded American Indian" and Mother believed the woman was Cherokee, but Mother did not know what tribe the woman belonged to. Mother also reported that her entire family had always lived in California, except that her mother (the children's maternal grandmother) currently lived in Arizona. Mother had never attended an American Indian school or lived on a reservation. Mother filed an updated Parental Notification of Indian Status form, this time stating that she "may" have Indian ancestry, without identifying any tribes. In January 2016, DPSS sent new ICWA notices to the three tribes previously noticed, to the BIA, and to the Secretary of the Interior.
In January 2016, the United Keetoowah Band again notified DPSS that, based on the information provided, there was no evidence the children were descended from anyone on the Keetoowah Roll. In February 2016, the Cherokee Nation again notified DPSS that the children were ineligible for membership based on the information provided. The record does not show that the Eastern Band of Cherokee Indians or the BIA responded to their January 2016 ICWA notices.
On April 6, 2016, the court found adequate ICWA notices had been given and the ICWA did not apply to the Cherokee Nation or the United Keetoowah Band. The court terminated Mother's services for A.E., R.E., T.E., and H.E., and set section 366.26 hearings for those children. In July 2016, Mother reported she was living with her father and stepmother.
In March 2017, B.C. contacted DPSS for the first time and reported he may be A.E.'s biological father. B.C. was in jail. Paternity testing confirmed, and the court found, that B.C. was A.E.'s biological father. B.C. refused to give DPSS his contact information, but B.C. gave DPSS the name and contact information of his father (A.E.'s biological paternal grandfather). The record does not show that DPSS ever asked B.C. or B.C.'s father whether B.C. had any Indian ancestry, or that B.C. ever completed a Parental Notification of Indian Status form.
Paternity testing also confirmed that G.E. was T.E.'s biological father but was not H.E.'s biological father. Although G.E.'s paternity of R.E. was not confirmed, neither Mother nor G.E. ever claimed that G.E. was not R.E.'s biological father. Thus, G.E. is presumably R.E.'s biological father. In April 2017, Mother completed a parentage questionnaire, identifying J.M. as H.E.'s alleged father. J.M. was not located and his paternity of H.E. was not confirmed.
On November 30, 2017, the court denied Mother's and B.C.'s section 388 petitions, terminated parental rights to A.E., R.E., T.E., and H.E. and selected adoption as their permanent plans. B.C. and Mother appeal from the November 30, 2017, orders.
III. DISCUSSION
Together, Mother and B.C. claim the juvenile court erroneously failed to ensure that DPSS adequately investigated the children's possible Indian ancestry by interviewing the children's maternal grandparents, G.E.'s father (the paternal grandfather of T.E. and R.E.) and B.C.'s father (the paternal grandfather of A.E.). Mother and B.C. also claim the ICWA notices were incomplete because, had these persons been interviewed, DPSS likely would have discovered, and included in the notices, additional information which would have been helpful to the tribes or the BIA in determining whether the children were Indian children. We agree. A. ICWA and Related California Law, Overview
1. ICWA's Notice Requirements
ICWA 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).) An "Indian child" is a child who is either a member of an Indian tribe or 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); see Welf. & Inst. Code, § 224.1, subd. (a) [adopting ICWA's definition of "'Indian Child'"].) An Indian child's tribe has the exclusive right to determine whether a child is an Indian child. (Isaiah W., supra, 1 Cal.5th at p. 8.)
Where the court knows or has reason to know an Indian child may be involved in the dependency proceeding, but the identity of the child's tribe cannot be determined, ICWA requires the party seeking foster care placement or termination of the parents' rights to the child (here, DPSS) to notify the BIA of the proceeding. (25 U.S.C. §§ 1903(11), 1912(a); In re Michael V. (2016) 3 Cal.App.5th 225, 232.) Welfare and Institutions Code section 224.2 "codifies and elaborates on ICWA's requirements of notice to a child's parents or legal guardian, Indian custodian, and Indian tribe, and to the BIA." (Isaiah W., supra, 1 Cal.5th at p. 9.) Welfare and Institutions Code section 224.2 requires that any notice sent to a child's parents, Indian custodian, or tribe to "also be sent directly to the Secretary of the Interior," unless the Secretary has waived its right to notice in writing and the person responsible for giving notice (here, DPSS), has filed proof of the wavier with the court. (Welf. & Inst. Code, § 224.2, subd. (a)(4).)
An ICWA notice "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." (Isaiah W., supra, 1 Cal.5th at p. 5; 25 U.S.C. § 1912(a); see Welf. & Inst. Code, § 224.2, subd. (d).) The court is not authorized to determine ICWA does not apply until (1) "proper and adequate" ICWA notice has been given, and (2) neither a tribe nor the BIA has provided a determinative response to the notice within 60 days of receiving the notice. (Welf. & Inst. Code, § 224.3, subd. (e)(3); Isaiah W., supra, at p. 11.)
2. The Required Contents of ICWA Notices
Section 224.2 requires ICWA notices to include, among other things: (1) the Indian child's name, birthdate, and birthplace, if known; (2) the name of the Indian tribe in which the child is a member or may be eligible for membership, if known; (3) "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents . . . 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).)
New federal regulations implementing ICWA were adopted on December 12, 2016—after the June 2015 and January 2016 ICWA notices were given here. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 650, fn. 7.) "The new regulations apply to any child custody proceeding initiated on or after December 12, 2016, even if the child has been involved in dependency proceedings prior to that date." (Ibid.)
In addition to information concerning the child and his or her parents, the new federal regulations require ICWA notices to include "[i]f known, the names birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents." (25 C.F.R. § 23.111(a) (2017), italics added.) Thus, unlike Welfare and Institutions Code section 224.2, which does not expressly require ICWA notices to include information about the child's great-great-grandparents or older lineal ancestors, the new federal regulations indicate that the notices should include information concerning the child's great-great-grandparents and more remote lineal ancestors, if known.
Even before the new federal regulations went into effect, there was "no general blood quantum requirement or 'remoteness' exception to ICWA notice requirements," particularly when there is no indication that the child's tribe or potential tribe has a blood quantum requirement for membership. (In re Breanna S., supra, 8 Cal.App.5th at p. 650; In re Kadence P. (2015) 241 Cal.App.4th 1376, 1386-1387.) In such circumstances, it is "'necessary to provide as much information as is known on the Indian child's direct lineal ancestors.' (25 C.F.R., § 23.11(b), (2003).)" (In re Karla C. (2003) 113 Cal.App.4th 166, 175; In re Francisco W. (2006) 139 Cal.App.4th 695, 703 ["It is essential to provide the Indian tribe with all available information about the child's ancestors, especially the ones with the alleged Indian heritage."].) This certainly should include known information about great-great-grandparents and older lineal ancestors. The Cherokee Nation, for example, has no blood quantum requirement for membership. Its response to the June 2015 ICWA notice indicated that the children would be eligible for membership if they had a "direct biological lineage linking [them] to an enrolled member of the tribe."
3. The Duty of Inquiry
"[T]he burden of coming forward with information to determine whether an Indian child may be involved and ICWA notice [is] required in a dependency proceeding does not rest entirely—or even primarily—on the child and his or her family. Juvenile courts and child protective agencies [such as DPSS] have 'an affirmative and continuing duty to inquire' whether a dependent child is or may be an Indian child. (§ 224.3, subd. (a); [citations].) This affirmative duty to inquire is triggered whenever the child protective agency or its social worker 'knows or has reason to know that an Indian child is or may be involved.' [Citation.] At that point, the social worker is required, as soon as practicable, to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility." (In re Michael V., supra, 3 Cal.App.5th at p. 233; § 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4)(A).) B. Analysis
In August 2014, at the outset of these dependency proceedings for A.E., R.E., T.E., and H.E., Mother told DPSS she had Cherokee ancestry on both sides of her family, and G.E. reported having Cherokee ancestry on his mother's side. Around the same time, Mother and G.E. also signed Parental Notification of Indian Status forms (Judicial Council form ICWA-020) stating they each "may" have Cherokee ancestry.
This information gave the court and DPSS reason to know the children might be Indian children, and triggered the court's and DPSS's "affirmative and continuing duty" to investigate the children's possible Indian ancestry by interviewing the children's parents, extended family members, and others who may have been able to provide any information concerning the children's possible Indian ancestry. (§ 224.3, subd. (a); In re W.B. (2012) 55 Cal.4th 30, 53.)
Although, at the April 27, 2015, review hearing, the court properly found that ICWA did not apply because the children were placed with Mother (In re J.B., supra, 178 Cal.App.4th at pp. 757-758), the children were detained from Mother and placed in foster care in May 2015. Yet, at that point, the record does not indicate that DPSS interviewed the parents, the maternal grandparents, or G.E.'s father, in order to obtain as much information as possible concerning the children's lineal ancestry, even though these persons were available and DPSS was required to interview them concerning the children's possible Indian ancestry. (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4)(A); see In re K.R., supra, 20 Cal.App.5th at p. 707 ["The social services agency must make a meaningful effort to contact specified family members who might have pertinent information."].) Nor does the record indicate that DPSS interviewed any of these extended family members in or after January 2016, after Mother disclosed that her great-grandmother (the children's great-great-grandmother) was a "full-blooded American Indian," and even though DPSS sent a second set of ICWA notices in January 2016.
As Mother and B.C. point out, neither set of ICWA notices included the maternal grandmother's middle name or current address, or the maternal grandfather's middle name or former address. In addition, the first set of ICWA notices contained no information concerning any of the children's four maternal great-grandparents, even though Mother originally reported possible Cherokee ancestry on both sides of her family. The second set of ICWA notices included one maternal great-grandmother's first name, but no other information about the maternal great-grandparents. It is likely that, if interviewed, the maternal grandparents could have supplied their middle names, current and former addresses, and more information about the maternal great-grandparents. (See In re K.R., supra, 20 Cal.App.5th at pp. 707-708.) For these reasons alone, the court and DPSS failed to discharge its duty of inquiry and the ICWA notices were incomplete.
The ICWA notices are also incomplete regarding G.E.'s potential Indian ancestry. Neither set of ICWA notices included any information concerning the parents or grandparents of G.E.'s mother, even though G.E. indicated he may have Indian ancestry on his Mother's side. It is likely that G.E.'s father could have provided pertinent information concerning G.E.'s maternal lineal ancestry. In addition, the second set of ICWA notices did not include the birthdate of G.E.'s deceased mother, even though the first set of ICWA notices included the birthdate of G.E.'s father. --------
DPSS claims it was not required to include any information concerning Mother's great-grandmother (the children's great-great-grandmother) in the ICWA notices. Relying on In re J.M. (2012) 206 Cal.App.4th 375, 380, where the court held that any error in failing to include the names of the children's great-great-grandparents was necessarily harmless because the children were disqualified from membership even if their great-great-grandparents were member of the subject tribe. (Id. at p. 382.) The same cannot be said here. As noted, the Cherokee Nation had no blood quantum requirement for membership, and there is no indication that the two other noticed Cherokee Tribes had a blood quantum requirement either. Thus, information about the children's maternal great-great-grandparents, if known, was required to be included in the ICWA notices. (See In re C.B. (2010) 190 Cal.App.4th 102, 147.)
DPSS claims substantial evidence shows it complied with ICWA's inquiry and notice requirements because DPSS interviewed Mother. This claim lacks merit because it disregards DPSS's duty to interview extended family members concerning the children's possible Indian ancestry (§ 224.3, subd. (c)), and here, the record does not show that DPSS interviewed available extended family members.
DPSS also argues Mother "did not provide information that may provide reason to know the children were Indian children." This is plainly not the case. Mother originally reported having Cherokee ancestry on both sides of her family, and later reported her great-grandmother was a "full-blooded American Indian." G.E. also reported possible Cherokee ancestry on his mother's side. All of this information gave the court and DPSS reason to know the children may be Indian children. (Cf. In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520-1521 [bare suggestion that child may be Indian child insufficient to trigger duty of inquiry].)
Lastly, B.C. claims and we agree that DPSS should have contacted B.C.'s father to inquire whether B.C. (and therefore A.E.) had any Indian ancestry. Although B.C. failed to give DPSS his contact information, and there is no indication B.C. completed a Parental Notification of Indian Status form, B.C. gave his father's contact information to DPSS. Thus, after paternity testing confirmed B.C. was A.E.'s biological father, DPSS should have contacted B.C.'s father and asked him whether B.C., and therefore A.E., had any Indian ancestry. (§ 224.3, subd. (c).) We disagree, however, with B.C.'s claim that DPSS had a duty to include information concerning the children's aunts, uncles, cousins, etc. in the ICWA notices. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 58 ["[T]here is no requirement under ICWA or California law that information about non-lineal ancestors be provided."].)
IV. DISPOSITION
The orders terminating parental rights to A.E., R.E., T.E., and H.E. are conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry and notice provisions of ICWA and of sections 224.2 and 224.3, consistent with this opinion. If, after receiving notice as required by those statutes, the relevant tribes do not respond or respond that the children are not Indian children within the meaning of ICWA, the orders terminating parental rights shall immediately be reinstated and further proceedings shall be conducted, as appropriate. If any tribe determines that the children are Indian children, the juvenile court shall proceed accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.