Opinion
E066822
01-24-2017
In re I.D. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.D., Defendant and Appellant.
Law Offices of Lisa A. Raneri and Lisa A. Raneri for Defendant and Appellant. Jean-Rene Basle, County Counsel, Adam E. Ebright, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J258295 & J258296) OPINION APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey and Christopher B. Marshall, Judges. Reversed. Law Offices of Lisa A. Raneri and Lisa A. Raneri for Defendant and Appellant. Jean-Rene Basle, County Counsel, Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.
D.D. is the father (Father) of two boys, M.D. and I.D. (the children), who were just shy of ages six and five on August 31, 2016, the date the juvenile court terminated parental rights at the hearing held under Welfare and Institutions Code section 366.26. Father argues the termination order must be reversed because the San Bernardino County Children and Family Services (CFS) failed to adequately comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Specifically, the children's mother (Mother) claimed both Seneca and Cherokee ancestry. However, CFS failed to (1) send notice to the three federally-recognized Seneca tribes, and (2) include all of Mother's aliases in the ICWA notices it sent to the Cherokee tribes. CFS partially concedes, arguing that a limited reversal is appropriate to allow CFS to properly notify the three Seneca tribes. However, CFS argues it is not necessary to renotice the Cherokee tribes that have already indicated the children are not eligible for enrollment. We agree, because the omitted alias is likely Mother's maiden name, and Mother's claimed Native American heritage runs through her own mother and maternal grandmother, and thus the error is harmless.
Section references are to the Welfare and Institutions Code except where otherwise indicated.
FACTS AND PROCEDURE
In January 2015, the children, then ages four and three, were found on a neighbor's property in a rural area, unsupervised and naked. The children were dirty, with matted hair, and were not toilet trained or verbal. A responding sheriff's deputy found the parents and described the home as malodorous, filthy, unsafe and unfit. Several relatives, some of whom lived on the same property as the parents, described the parents as substance abusers who stayed in bed all day and did not take care of the children. It was suspected the children may be autistic. The children were placed in foster care. The parents were arrested for child endangerment. Both parents pled guilty to felony willful child cruelty (Pen. Code, § 273, subd. (a)) and were released on probation on January 27, 2015.
On January 15, 2015, father filed a Parental Notification of Indian Status (Judicial Council Forms, form ICWA-020), indicating he had no Native American ancestry as far as he knew. On January 20, 2015, Mother filed the ICWA-020 indicating, "I may have Indian ancestry: Cherekee [sic] Seneca." At the detention hearing held on January 20, 2015, Mother answered, "Yes," when asked to confirm that she claimed Cherokee and Seneca ancestry. The jurisdiction and disposition report, filed January 30, 2015, notes that, "Available family information was obtained and the ICWA 030 was submitted to Court Support for noticing purposes."
On February 3, 2015, CFS filed a Notice of Child Custody Proceeding for Indian Child (Judicial Council Form, form ICWA-030) for each child. The notices contain the child's name, a legal name and an alias for both Father and Mother, along with the parents' current and former addresses, birth dates and birth places, and the Cherokee tribal membership claimed by Mother. The notices went a step further, containing nearly complete information for the maternal and paternal grandparents and some information for the deceased great grandparents. The notices were mailed to the Cherokee Nation, the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee on January 21, 2015. Each of the tribes responded that neither child is an Indian child based on the information provided. On April 3, 2015, the juvenile court found that ICWA does not apply.
For ease of reference and to protect the children's privacy, this opinion sometimes refers to Mother as "Mary," along with the first initial of her legal last name and two aliases, as in "Mary L." or "Mary K." or "Mary H." Mother's genuine first name is not Mary.
At the jurisdiction and disposition hearing held on February 6, 2015, Father signed a waiver of rights. The juvenile court sustained the seven allegations in the section 300 petition under subdivision (b), failure to protect. The court granted both parents reunification services and visitation once a week.
At the six-month review hearing held on August 6, 2015, the court ordered reunification services to continue, but reduced visits to once a month.
At the contested 12-month hearing held March 25, 2015, the court terminated reunification services to both parents and set a section 366.26 hearing.
The contested section 366.26 hearing was held on August 31, 2016. Mother's counsel argued the parental benefit exception applies and Father's counsel joined in that argument. The court found both children to be generally and specifically adoptable, selected adoption by their foster mother as their permanent plan, and terminated the parents' parental rights.
This appeal followed.
DISCUSSION
Father argues the termination order must be reversed because CFS failed to send notice to the three federally-recognized Seneca tribes and to include all of Mother's aliases in the ICWA notices it sent to the Cherokee tribes. CFS concedes, and this court agrees, that the appellate record fails to show that CFS complied with ICWA with regard to the Seneca tribes, and thus a limited reversal to allow for proper notice is appropriate. However, CFS does not agree the notice to the Cherokee tribes was deficient. We find any deficiency in the notice to the Cherokee tribes to be harmless error.
If an agency "knows or has reason to know that an Indian child is involved" in a dependency proceeding, the agency must send notice of the proceeding to, among others, a representative of all potentially interested Indian tribes. (§ 224.2, subd. (a).) "[F]ederal and state law require that the notice sent to the potentially concerned tribes include 'available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data.' [Citations.] To fulfill its responsibility, the Agency has an affirmative and continuing duty to inquire about, and if possible obtain, this information. [Citations.] Thus, a social worker who knows or has reason to know the child is Indian '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 . . . .' [Citation.] That information 'shall include' '[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.' [Citation.] Because of their critical importance, ICWA's notice requirements are strictly construed." (In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397, italics added.)
At the same time, "A notice violation under ICWA is subject to harmless error analysis. [Citation.] 'An appellant seeking reversal for lack of proper ICWA notice must show a reasonable probability that he or she would have obtained a more favorable result in the absence of the error.' [Citation.]" (In re Autumn K. (2013) 221 Cal.App.4th 674, 715.)
Here, the notices mailed to the Cherokee tribes on January 21, 2015, identified Mother by her legal name, Mary L., and the alias Mary K. In the jurisdiction and disposition report filed January 30, 2015, the CLETS report showed mother used the names Mary L., Mary K. and Mary H. In addition, the minute orders and the written orders (form JV-320) for the section 366.26 hearing held on August 31, 2016, identified Mother by her legal name, Mary. L. and the alias, Mary H. CFS did not provide the Cherokee tribes with the alias Mary H., which is the basis for Father's contention that the notice to the Cherokee tribes was deficient. As Father points out, H. is likely Mother's maiden name because it is the maternal grandfather's last name.
L. is Mother's married last name. Her estranged husband has the same last name.
CLETS is the California Law Enforcement Telecommunications System, an automated criminal history system that tracks the criminal history (rap sheet) associated with an offender's fingerprints and criminal identification index number. (People v. Robinson (2010) 47 Cal.4th 1104, 1128)
The ICWA-030 notices did not include a middle name for Mother. The CLETS report showed versions of Mother's name with either a middle name beginning with P. or just the initial P. We see nothing in the record to suggest the use or nonuse of Mother's middle name and/or initial is significant for the purpose of determining whether the children here are Indian children. --------
Even though the notice to the Cherokee tribes omitted what is likely Mother's maiden name, we conclude the error is harmless. This is because, as the notices make clear, Mother's claimed Native American ancestry runs through her own mother and maternal grandmother. It is not reasonably likely that, even if the notice had listed Mother's probable maiden name, Mary H., the tribe's response would have been any different. For this reason, we agree with CFS that requiring it to renotice the Cherokee tribes is not required.
DISPOSITION
The order terminating parental rights is conditionally reversed. We order a limited remand as follows: The juvenile court is directed to order CFS to give notice to the three Seneca tribes in compliance with ICWA and related federal and state laws. Once the juvenile court finds there has been substantial compliance with the notice requirements of ICWA, it shall make a finding with respect to whether the children are Indian children. If the juvenile court finds the children are not Indian children, it shall reinstate the original order terminating parental rights. If the juvenile court finds the children are Indian children, it shall proceed in compliance with ICWA and all related federal and state laws. (In re S.E. (2013) 217 Cal.App.4th 610, 616-617 [conditional reversal in an ICWA case].)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: HOLLENHORST
J. McKINSTER
J.