Opinion
A153211
12-13-2018
In re ANTHONY R., et al., Persons Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.T., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. Nos. JD133247, JD143385)
Before the court are two children, a four-year-old girl and her nine-year-old brother, who are on the verge of being adopted by separate families. They are part of a sibling group of five, including adult twin sisters and a 16-year-old sister. The court terminated parental rights to the two youngest children on November 21, 2017. On appeal, D.T. (Mother) contends (1) the beneficial sibling relationship exception should have been applied to prevent termination of parental rights (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v)), and (2) the San Francisco Human Services Agency (Agency) failed to investigate potential ties through the children's father to a Native American tribe, and the trial court failed to make findings whether the Indian Child Welfare Act (ICWA) applied. (25 U.S.C. § 1901 et seq.) We conclude there was substantial evidence to support the trial court's factual findings, and the court did not abuse its discretion in finding the sibling relationship exception inapplicable. Because the record is uncertain as to the adequacy of the investigation and fails to show the court ruled on the ICWA issue, we will conditionally reverse and remand the matter to the juvenile court to afford the Agency and the court an opportunity to fully comply with ICWA.
I. BACKGROUND
A. The Family History
This family was before the court three years ago on Mother's petition for extraordinary relief under Welfare and Institutions Code section 366.26, subdivision (l) and California Rules of Court, rule 8.452. In October 2015, we issued a published opinion detailing their troubles as a family and their extensive history with the child welfare system. (D.T. v. Superior Court (2015) 241 Cal.App.4th 1017.) The present appeal concerns Anthony R. born in 2009, and Naomi R. born in 2014. Their father was incarcerated during much of their young lives and showed little interest in parenting them. Thus, the responsibility fell to Mother alone as a single parent of five children.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The problems that plagued the family from the beginning of the twins' dependency—Mother's drug addiction, mental instability, and relationships with abusive men—have continued to make out-of-home placement of the children necessary. Both children were initially physically removed from Mother's home in November 2014, when Anthony was five years old and Naomi was not yet four months. The first months of Anthony and Naomi's contact with the child welfare system are discussed in D.T. v. Superior Court, supra, 241 Cal.App.4th at pages 1024-1031. The parties are familiar with developments since that time. We will therefore recite only those facts pertinent to our resolution of the issues raised by Mother.
B. Sibling Placement and Visitation
Naomi and Anthony are full siblings; with the twins and A.S., they share a mother but not a father. By May 2016, the twins had turned 18 and had moved to Sacramento. One of them had given birth to a baby in 2014 at age 16, and by the time of the trial under section 366.26 both of them had young children. At the time of trial, one of the twins was living in Oakland and the other was living in Vallejo. A.S. was in a guardianship, and Naomi and Anthony were in separate prospective adoptive (fost-adopt) homes, Anthony's being in Sacramento.
At the time of the section 366.26 hearing, A.S. was apparently no longer living with her guardian, so the situation was in flux. The record before us does not disclose A.S.'s current whereabouts or living circumstances.
Anthony had displayed behavioral problems soon after removal and was placed in an intensive therapeutic foster home in Sacramento in July 2015. Although the twins lived in Sacramento for six months during the time Anthony remained there, they came to visit Anthony only once in three scheduled visits during April and May 2016. Anthony transitioned into a different intensive therapeutic foster home in Sacramento in August 2016, where he became connected not only with his foster mother, but with a mentor, Reginald B., with whom he developed a trusting attachment, beginning in June 2016.
Naomi had been in a stable, long-term foster home since she was four months old, where she had contact with the foster parents' extended family, until roughly two months before the trial. On September 21, 2017, she was placed in a fost-adopt home. She had successful overnight visits with the family for three weeks prior to being placed there. Little evidence was presented about the fost-adopt home, except that the parents were patient and loving with Naomi. They showed her affection and she responded positively.
In May 2016, when A.S. was placed in her guardianship, she began visiting weekly with Naomi in San Francisco, facilitated by her guardian. At A.S.'s instigation, on May 24, 2016, the Agency facilitated a mediation on sibling visitation. The parties agreed to monthly, unsupervised visitation between A.S. and the twins. In addition, the Agency agreed to arrange monthly visitation among all five of the siblings at a visitation center in Oakland, including helping the twins attend through transportation funding. A.S. and Naomi would continue weekly visits supervised by A.S.'s guardian. The court adopted the agreement as an order of the court.
The family visits for all the siblings in Oakland occurred without the twins. They were adults with children of their own living in Sacramento, and they did not show up for any of the visits with their siblings. One of the twins, J.C., blamed the Agency for failing to notify her of the visitation schedule and failing to facilitate transportation. The attorney for the Agency admitted at trial that more could have been done to facilitate the twins' participation in the sibling visitation, and the court acknowledged there was blame enough to go around. Nevertheless, the overall impression is that the children who did attend enjoyed their time together during visits.
Both twins have the initials "J.C." Subsequent references to "J.C." are to the same twin.
In September 2017, the adult twins, who are non-minor dependents of the court, filed a section 388 petition after not receiving proper notice of a scheduled section 366.26 hearing. They requested recognition of the sibling relationship under section 388, subdivision (b), alleging the Agency failed to ensure their regular visitation with Naomi and Anthony, and objecting because they had not been offered post-adoption contact opportunity. They requested the court to enforce the May 2016 sibling visitation agreement and to consider the sibling relationship exception to termination of parental rights. Later in September, A.S. filed a section 388 petition, requesting recognition of the sibling relationship and asking to participate in the upcoming section 366.26 hearing so that maintaining sibling contact would be made part of the permanent plan. The court granted both petitions. (See generally, In re Hector A. (2005) 125 Cal.App.4th 783, 792-795.) A.S.'s attorney participated on her behalf at trial, as did the twins' counsel, and one of the twins testified.
C. The Section 366 .26 Hearing Terminating Parental Rights
The trial commenced on November 1, 2017. Mother, both twins, A.S., and Anthony and Naomi's father all objected to termination of parental rights on the basis of the sibling relationships exception. J.C. testified about the twins' relationship with Anthony and Naomi, saying that the twins had played a maternal role in the lives of Anthony and Naomi before the younger children were removed by the court because Mother herself was using drugs and was not performing those functions. They took turns missing school so they could care for the younger children. A.S. also performed maternal functions for her younger siblings at times. J.C. was "crushed" and "heartbroken" when the younger children were removed from Mother's home. She and Anthony had a particularly close relationship. When she last saw him, however—after such a long absence of contact—Anthony acted like he did not know her. She wanted to maintain a relationship with Naomi and Anthony, regardless of whether parental rights were terminated.
The social workers testified about the current status of Anthony and Naomi in their respective foster families. Both children were considered adoptable by the Agency, and both were in fost-adopt homes.
Anthony was placed with Reginald B., his former mentor, on June 30, 2017. As the two had grown closer, Reginald decided he would like to adopt Anthony. Anthony was very happy in the placement with Reginald, and he told the social worker he wanted to be adopted. "I'm not going anywhere," he told the social worker. "This is where I want to be." Anthony called Reginald "Daddy." Reginald was family-oriented and maintained close contact with his extended family, who also welcomed Anthony as a part of the family. In addition, Anthony's most recent foster mother, with whom he was well-bonded, would also continue to have contact with Anthony after the adoption.
Naomi was well-bonded with her foster family and their extended family, and she socialized with other children in her foster family's home daycare. At one time her foster mother's daughter wanted to adopt Naomi, but those plans fell through. Naomi was consistently described as "adorable" and appears to be well-adjusted. Although she has had some developmental issues for which she has received treatment, she is plainly adoptable.
Naomi had been moved to the home of a new fost-adopt family about two months before the trial. In an addendum report prepared simultaneously with the transition, her adjustment was portrayed as problem-free because Naomi had done well on overnight visits for three weeks prior to the transfer. The fost-adopt parents were open to continuing sibling contacts after adoption. At trial, the social worker testified that Naomi's fost-adopt family was also willing to adopt Anthony, but Anthony already had an established relationship with his fost-adopt father based on their pre-existing mentorship. In consultation with a psychologist, the Agency recommended that the children be adopted by their current fost-adopt families rather than trying to keep the siblings together.
At the conclusion of the trial on November 21, 2017, Judge Susan Breall found by clear and convincing evidence it was likely Anthony and Naomi would be adopted. The judge found the sibling relationship exception did not apply, as she perceived "no compelling reasons to find that it would be detrimental to terminate the parental rights" of both parents. The court then ordered both parents' parental rights terminated to both children.
II. DISCUSSION
A. The Beneficial Sibling Relationship Exception
1. Overview of the law
Mother contends the trial court erred in failing to apply the beneficial sibling relationship exception to termination of parental rights at a section 366.26 hearing, codified in section 366.26, subdivision (c)(1)(B)(v), which provides in relevant part, if a child is found adoptable, "the court shall terminate parental rights unless . . . [¶] [t]he court finds a compelling reason for determining that termination would be detrimental to the child [because] . . . [¶] [t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption."
The sibling relationship exception is rarely applied. (In re D.O. (2016) 247 Cal.App.4th 166, 174 (D.O.).) The person advocating against termination of parental rights has the burden of establishing the exception. (Id. at p. 176.) In a two-step process, the court first determines whether terminating parental rights would substantially interfere with the sibling relationship, considering the factors indicated in the statute. Second, if terminating parental rights would substantially interfere with the sibling relationship, the court must weigh the child's best interest in continuing the relationship against the benefits the child would enjoy in a permanent adoptive home. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952 (L.Y.L.); In re Hector A., supra, 125 Cal.App.4th at p. 794; see also In re Celine R. (2003) 31 Cal.4th 45, 61.) The party opposing adoption bears a "heavy burden" of proving the exception. (Celine R., at p. 61.) It is the detrimental impact of the termination of sibling contact on the child being considered for adoption, not on his or her siblings, that must be assessed. (Id. at p. 54.)
Unlike the beneficial parental relationship exception, "the Legislature does not require the juvenile court to consider as an element of proof whether a dependent child has maintained regular visitation and contact with a sibling when it determined the applicability of" the sibling relationship exception. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1010 (Valerie A.).) We nevertheless think visitation or lack of visitation is relevant to determining the "nature and extent" of the siblings' bond. We also recognize, however, that an objector need not prove "existing close and strong bonds" between the siblings, but rather may alternatively show "shared significant common experiences." (Id. at pp. 1007-1010.)
We will employ a composite standard of review, using the substantial evidence standard to evaluate the evidentiary showing with respect to factual issues, such as whether the child has a "close and strong bond[]" with a sibling (§ 366.26, subd. (c)(1)(B)(v)), and the abuse of discretion standard for issues involving a weighing of competing interests, such as whether, given the existence of a sibling relationship, there is a "compelling reason" (ibid.) for believing termination of parental rights would be detrimental to the child, which " ' "is a quintessentially discretionary determination." ' " (In re J.S. (2017) 10 Cal.App.5th 1071, 1080; accord D.O., supra, 247 Cal.App.4th at p. 174; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) Whether the benefits of adoption outweigh the benefits of continuing the relationship is also reviewed for abuse of discretion. (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 782 (Elizabeth M.).)
2. The relationship between Anthony and Naomi
The Agency made the decision to recommend adoption by separate families in consultation with a psychologist. Anthony and Naomi's attorney also felt it was in both their best interests to be adopted by their respective fost-adopt families. Anthony's court-appointed special advocate also favored his adoption by his fost-adopt father. Anthony had suffered considerable trauma and developed behavioral problems from having been through so many foster placements. Finally, in his fost-adopt home, he had found a stable and secure home and was adjusting well. Reginald was willing to adopt Naomi, as well, but he did not have enough living space.
Naomi had only recently been placed in her fost-adopt home when the trial took place. Her fost-adopt parents were willing to adopt Anthony also, but the Agency recommended that the children remain with their separate fost-adopt families, mostly due to the strong attachment Anthony had formed with Reginald after experiencing so much disruption in his life.
Anthony and Naomi have maintained monthly visits during the dependency, most recently when Naomi attended Anthony's superhero-themed eighth birthday party dressed as Wonder Woman. Anthony said he wanted to continue to see Naomi after the adoption. The respective fost-adopt parents are committed to maintaining contact between the two, so there is little likelihood of "substantial interference" with their relationship. (§ 366.26, subd. (c)(1)(B)(v).)
3. Naomi's relationship with her older siblings
While it may be true the twins provided some maternal care to Naomi from birth to age four months, it is also true they have had little contact with her in the time since. J.C. testified she had not seen Naomi in about a year before the trial, and the last time they saw each other, Naomi did not recognize her. In the early months of the dependency, the twins were scheduled to attend sibling visitation with A.S. and Naomi beginning in March 2015, but their participation was spotty and visitation was discontinued in July 2015. After the mediated visitation schedule was established in May 2016, the twins attended none of the monthly scheduled all-siblings visitation in Oakland. There is no evidence that Naomi shared any significant common experiences with the twins or presently had a strong bond with them.
Considering the limited nature and strength of Naomi's sibling bond with the twins, Judge Breall clearly had substantial evidence to support her finding that the twins' relationship with Naomi was not so significant that its loss would be detrimental to Naomi, and the judge did not abuse her discretion in determining that the benefits to Naomi of adoption outweighed any bond she might have with the twins. Though J.C. found her separation from Naomi and Anthony to be traumatic, the judge observed there was no evidence that Naomi or Anthony would find the severance of the sibling bond with the twins or A.S. equally "crushing."
Naomi's relationship with A.S. was stronger than with the twins. The trial judge described it as a "good relationship." Naomi and A.S. had kept up visitation for one full day each week, supervised by A.S.'s guardian, throughout the 18 months preceding the trial. Their visits typically lasted eight or nine hours and included going to church with A.S.'s guardian. Naomi's fost-adopt family was planning to maintain sibling contacts between Naomi and A.S. post-adoption, but they wanted to take Naomi to their own church. Since A.S.'s guardianship appeared to be unraveling during the trial (see fn. 2, ante), future visitation will have to be worked out through mediation.
4. Anthony's relationship with his older siblings
Anthony, unlike Naomi, had been raised in the same home with the twins for much of the first five years of his life. At the time of removal he was described as having a "close relationship" with his four sisters. According to J.C.'s testimony and Mother's, Anthony received from the twins the nurturing a mother would normally provide. There is a stronger argument that this bond was worth preserving than in Naomi's case. Between Anthony's removal and the trial, however, there was little contact between Anthony and the twins. J.C. described only two visits, one at a McDonald's near her home, and one when she accompanied Mother to Mother's visit with Anthony and stayed only briefly. At one of the visits, Anthony "acted like he didn't know" J.C. At the time of trial in November 2017, J.C. had not seen Anthony in roughly 18 months. Anthony did not mention the twins to the social worker as family members he wanted to continue to see.
Mother points out the twins and Anthony shared common experiences in their home of birth as an alternative means of showing the nature and extent of the sibling bond. The nature of those common experiences, however, was not pleasant. The children all were victims of Mother's neglect while she was in the throes of her addiction and mental health issues. The judge acknowledged the children had shared the "ugliness" in Mother's home and all had "been exposed to horrors," but she did not believe any advantage accruing to Anthony from that shared experience should outweigh Anthony's chances for permanence and stability in a loving home.
J.C. expressed the opinion in her testimony that only the twins could help Anthony and Naomi come to terms psychologically with the neglect they experienced during the early months and years of their lives, a claim repeated by her attorney. Not being an expert opinion, we need not consider it as evidence favoring application of the sibling relationship exception. (Evid. Code, § 800.)
Reginald gave Anthony stability and guidance, as well as affection and encouragement. To have that "forever" home and extended family meant a great deal to Anthony after the many shifts in his living situation. He made the transition to Reginald's home over a period of two or three months and by the time of trial had also adjusted to his new school, where he was doing well and had received a "student of the week" award. It was not an abuse of discretion to find the benefit of Reginald's home outweighed the sibling bond.
Anthony's relationship with A.S. was not always close. The two were placed in foster care together in November 2014. Due to Anthony's behavioral issues and tensions that developed with A.S., the two were soon separated; Anthony proceeded through a series of four different foster homes between November 2014 and April 2015. An April 2015 addendum report noted that A.S.'s visits with Anthony had been discontinued at A.S.'s request. Visits were resumed in May 2016 as all-sibling visits at A.S.'s request. Following the mediated visitation agreement, Anthony, Naomi and A.S. had participated successfully in monthly visits, which they all enjoyed. During visits, A.S. offered guidance and support to her younger siblings, as well as "brainstorm[ing]" with them about activities.
Anthony had not seen A.S. since June 2017, though, because he needed time to adjust to his new fost-adopt placement. Nevertheless, Anthony told the social worker he remembered A.S. and wanted to be able to see her. A.S., too, while acknowledging there were "ups and downs" in their relationship, said still "he is my little brother," and she always "want[ed] to be there for him." Offsetting the disappointment that might result from discontinuing the monthly all-sibling visits was the fact that Anthony's fost-adopt father was open to post-adoption contact between Anthony and A.S.
5. The Likelihood of Future Contact
The Agency's brief focuses in part on the willingness of both fost-adopt families to maintain sibling contact post-adoption. The Agency referred all the family members and both fost-adopt families to the Consortium for Children for mediation of post-adoption contact agreements, which was underway at the time of trial. Both fost-adopt parents were supportive of contact with all the siblings. Although there were objections to the court's consideration of such testimony in the trial, much of the evidence was allowed in. Ultimately, though, the court disclaimed any reliance on the prospect of post-adoption contacts.
This self-imposed restraint was unnecessary in the context of the sibling relationship exception. (D.O., supra, 247 Cal.App.4th at pp. 174-176.) Reliance on a promise of post-adoption contact is considered improper in connection with the beneficial parental relationship exception (In re C.B. (2010) 190 Cal.App.4th 102, 128-129), and the objectors' counsel in this case argued at trial that it would be improper in the context of the sibling relationship exception as well. But the analogy is inapt. "Freeing a child for adoption necessarily requires terminating—that is, substantially interfering with—the parent-child relationship. [Citation.] But '[u]nlike the parent-child relationship, sibling relationships enjoy legal recognition after termination of parental rights.' (In re S.B. [(2008)] 164 Cal.App.4th [289,] 300.) Thus, it is not a foregone conclusion that terminating parental rights will substantially interfere with a sibling relationship, and the juvenile court must make this factual determination." (D.O., at p. 175.) Other cases confirm that post-adoption contact agreements are relevant in the context of the sibling relationship exception. (In re Isaiah S. (2016) 5 Cal.App.5th 428, 438; Valerie A., supra, 152 Cal.App.4th at p. 1014; In re Daisy D. (2006) 144 Cal.App.4th 287, 293; In re Jacob S. (2002) 104 Cal.App.4th 1011, 1019, disapproved on another ground in In re S.B. (2009) 46 Cal.4th 529, 537, fn. 5; In re Megan S. (2002) 104 Cal.App.4th 247, 254; L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) We agree with these cases and with D.O.
Naomi's fost-adopt parents were open to her having contact with the twins post-adoption. According to J.C., she was told that Reginald did not want Anthony to have contact visits with the twins after adoption, but Reginald set up an email account for Anthony so they could maintain email contact. The Agency suggested the email-only restriction applied only to Mother, and Reginald would allow face-to-face visitation between Anthony and the twins. Either way, it appears the siblings will be able to stay in touch. There is no evidence in the record that the lack of personal contact with the twins would be detrimental to Anthony. If, as J.C. predicted, Anthony would benefit from knowing the twins as he grows older, the relationship may be preserved for now through email. (See fn. 4, ante.) In all other respects, it appears the sibling relationships will be preserved through post-adoption visitation. This factor gives us further confidence in the trial court's decision.
The judge found there was "absolutely no evidence" of detriment to Anthony or Naomi by going forward with adoption because of interference with their sibling relations and no "compelling reasons to find that it would be detrimental to terminate parental rights" based on the sibling relationship exception. The court found the benefits of adoption for Anthony and Naomi outweighed any benefit of maintaining their sibling relationships. The court's factual assessment of the siblings' bonds rested on substantial evidence, and it did not abuse its discretion in finding those bonds did not outweigh the prospect of permanency for these children.
B. The ICWA Investigation and Lack of Findings
Mother's second issue on appeal is that the Agency did not do a proper investigation to determine if Anthony and Naomi are "Indian children" under ICWA. She claims that unanswered question requires reversal of Judge Breall's order terminating her parental rights. We agree that ICWA compliance is uncertain on this record, and we will remand for on-the-record compliance.
1. An overview of the law
"Congress enacted ICWA to further the federal policy ' "that, where possible, an Indian child should remain in the Indian community . . . ." ' " (In re W.B. (2012) 55 Cal.4th 30, 48.) ICWA requires that when a court knows or has reason to know that an Indian child is involved in a dependency matter, it must ensure that notice is given to the relevant tribe or tribes. (25 U.S.C. § 1912(a); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261.) An "Indian child" is one who is either a "member of an Indian tribe or . . . 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).) Notice should be sent to the Bureau of Indian Affairs (BIA) if the identity or location of the tribe cannot be determined. (25 U.S.C. § 1912(a).) When a case involves siblings who claim Indian heritage through the same parent, notice to the tribes or the BIA should be provided for all siblings. (In re E.W. (2009) 170 Cal.App.4th 396, 400-401 (E.W.).) Notice is sufficient if there was substantial compliance with the applicable provisions of ICWA. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566; E.W., at pp. 402-403 ["where notice has been received by the tribe, . . . errors or omissions in the notice are reviewed under the harmless error standard"].)
A social worker has "an affirmative and continuing duty to inquire whether a child [in a section 300 proceeding] is or may be an Indian child . . . ." (§ 224.3, subd. (a); accord Cal. Rules of Ct., rule 5.481(a); In re Isaiah W. (2016) 1 Cal.5th 1, 11; In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) If the social worker "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 to be provided in the ICWA notice. (§ 224.3, subd. (c).) "However, neither the court nor [the Agency] is required to conduct a comprehensive investigation into the minor's Indian status." (In re C.Y. (2012) 208 Cal.App.4th 34, 39; In re Levi U. (2000) 78 Cal.App.4th 191, 199 [no duty to "cast about" for information].)
The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. (E.W., supra, 170 Cal.App.4th at p. 403.) This court reviews the trial court's ICWA findings for substantial evidence. (Ibid.)
2. The Agency's investigation
In September 2013, when the Agency first filed a section 300 petition for Anthony, Mother herself claimed no Native American ancestry. At that time only Mother had been questioned about Indian affiliation. The social worker proposed to inquire about Anthony's father's possible Indian ancestry when she had an opportunity to question him and his relatives, as his whereabouts were then unknown. In the meantime she indicated in the jurisdiction report that ICWA did not apply. Once he was located, the father indicated on two ICWA-020 forms (on November 5 and December 16, 2013) that he had Native American heritage through his own father, who was from Arkansas, but he did not know to which tribe his ancestors belonged. So far as the record discloses, this was all the information the Agency had about potential Native American heritage. The Agency's addendum report for a November 19, 2013 hearing also indicated ICWA did not apply.
The record shows the ICWA issue was still unresolved as of December 3, 2013, when a note in the court file indicated "ICWA status" was to be taken up on January 7, 2014. The January 7 hearing was continued to January 29, 2014 for a settlement conference. On January 24, 2014, the social worker completed and later filed an ICWA-030, Notice of Child Custody Proceedings for Indian Child, which was mailed to the BIA. (See 25 U.S.C. § 1912(a).) The form included Mother's and father's biographical information and listed Anthony's paternal grandfather's name as James Floyd R. and his age as "79 years old?". It listed "no information available" for the current and former addresses for Anthony's grandfather. The notice did not include that the grandfather was from Arkansas. No other paternal relative's information was given. Nothing in the record suggests the Agency tracked down James Floyd R. to obtain more information. There is no evidence in the record that the information provided to the BIA was ever updated.
Any opportunity to do so has passed, as the paternal grandparents were reported in July 2017 to be deceased.
On January 29, 2014, the court declared Anthony a dependent child and left him in Mother's home under a settlement agreement, setting the next hearing for July 31, 2014. The orders did not include ICWA findings.
On February 26, 2014, the BIA responded to the ICWA notice, indicating there was insufficient information to determine whether Anthony had any tribal affiliation. If additional information became available, the BIA asked that the notice be forwarded to the appropriate tribes. The Agency notified all parties of this BIA communication. If "neither [the] tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, the court may determine that [ICWA] does not apply to the proceedings . . . ." (§ 224.3, subd. (e)(3).) No ICWA findings were made at the January 29 hearing, which occurred while the Agency was waiting for the BIA's response. Anthony was declared a dependent child but initially was allowed to remain in Mother's care.
We have reviewed the record of proceedings between January 29, 2014 and November 19, 2014, when Anthony was detained on a section 387 petition and a dependency case was initiated for Naomi. Nothing in the record shows the court made ICWA findings at any time during that period, while the social worker's reports continued to indicate ICWA did not apply.
On November 19, 2014, when a dependency petition was filed for Naomi, Mother filled out an ICWA-020 form indicating she did not have Indian ancestry. Father did not fill out an ICWA-020 in Naomi's case. No ICWA notice was sent on Naomi's behalf. (See generally In re J.M. (2012) 206 Cal.App.4th 375, 383 [failure to include full sibling in ICWA notice was harmless because both children claimed Indian heritage through the same parent]; E.W., supra, 170 Cal.App.4th at pp. 400-402.) No ICWA findings were made at Naomi's detention hearing or at any hearings thereafter.
3. The parties' positions
Without citing support in the record, Mother asserts the social worker failed to interview the children's father regarding their ICWA qualification, despite opportunities to do so when he appeared in court or she visited him in jail. In fact, the record strongly suggests the social worker did interview the father. The social worker filled out the ICWA-030 form with Anthony's grandfather's full name and age, information that appears nowhere else in the record. To draw from a silent record the conclusion that the social worker acted contrary to law is unwarranted where the record plainly suggests the Agency did interview father. (See Evid. Code, § 664; In re Gerardo A. (2004) 119 Cal.App.4th 988, 995 [It is appellant's burden to affirmatively show error on the record. That the record is silent as to whether the department interviewed relatives about ICWA "does not necessarily mean the department failed to make an adequate inquiry for Indian heritage information."].)
But Mother also suggests the father's sister (the children's aunt) could possibly have identified more of the father's biological ancestors but was not asked. It is true the Agency should have consulted her on this matter as an "extended family member[]." (§ 224.3, subd. (c).) The aunt is described in the record, however, as the father's "maternal sister," which suggests she may not have known much about the paternal grandfather's ancestry. The Agency definitely contacted the aunt, but there is no record whether she was asked about the children's possible Native American heritage.
The Agency points out that, just because the record does not expressly indicate ICWA-relevant questions were asked of the aunt does not prove the Agency failed to make the inquiry. (In re Gerardo A., supra, 119 Cal.App.4th at p. 995; see In re Charlotte V. (2016) 6 Cal.App.5th 51, 57-59.) While it is true that no statute imposes on the social worker a duty to document his or her efforts to acquire information needed for ICWA purposes, there is a standardized form ICWA-010 designed to capture such efforts and information. Earlier this year the Fourth Appellate District, Division Two, conditionally reversed an order terminating parental rights because the social worker's documentation did not include efforts to learn ICWA-relevant facts from extended family members. (In re K.R. (2018) 20 Cal.App.5th 701, 704, 708-709 (K.R.).) The court effectively placed on the social services agency the duty to document its ICWA inquiries. (Ibid.) Elizabeth M., supra, 19 Cal.App.5th 768, also decided earlier this year, also found an inadequate investigation under ICWA, relying in part on the absence of evidence in the record to demonstrate ICWA inquiry compliance. (Id. at pp. 778, 787.)
Theoretically, we might invoke the appellant's duty to present a record demonstrating error, and presume the social worker made the appropriate inquiry and discovered no new reportable information. (Evid. Code, § 664 [presumption of official duty regularly performed].) K.R. specifically rejected this approach, however, reasoning that the parent vindicates in part the interest of the tribe by raising the issue. Due to the "unique situation" presented by ICWA, the "general" rule—requiring an appellant to produce an adequate record demonstrating reversible error—should not be rigorously applied. (K.R., supra, 20 Cal.App.5th at pp. 708-709; accord, In re N.G. (2018) 27 Cal.App.5th 474, 484-485.)
Here, it is not just the adequacy of the investigation that is at issue, but also the failure to give the BIA notice on behalf of Naomi, and the failure of the record to reflect a ruling by the court as to whether ICWA applies. It appears to us the ICWA issue may have fallen between the cracks as this complicated and prolonged dependency case proceeded on its course.
The Agency argues the failure by the court to make an explicit finding under ICWA was harmless because the court implicitly found ICWA did not apply. (See E.W., supra, 170 Cal.App.4th at p. 405.) It points out the social worker's reports, including those prepared for the section 366.26 hearing, uniformly indicated ICWA did not apply, and the court would have been justified in finding ICWA did not apply. In these circumstances, the Agency suggests, remanding would be an "empty exercise with a preordained outcome." (Id. at p. 402.)
But reliance on implicit findings in place of explicit findings is justified only when it is clear from the record that the court actually considered and decided the ICWA issue. (E.W., supra, 170 Cal.App.4th at p. 405 [court of appeal must be "confident that the juvenile court considered the issue and there is no question but that an explicit ruling would conform to the implicit one"].) That clarity and confidence does not exist on this record. Given the several reasons to doubt the adequacy of ICWA compliance, we will follow recent precedent in remanding for compliance with ICWA inquiry and notice provisions and for an on-the-record finding by the court whether ICWA applies. Though the dispositions differ, the general thrust of these cases is the same: if the social services agency fails to document its efforts to comply with ICWA, and if anything in the record suggests further investigation was reasonably likely to be fruitful, the agency remains vulnerable to an ICWA challenge even at this late stage of the dependency.
In re N.G., supra, 27 Cal.App.5th at page 486; K.R., supra, 20 Cal.App.5th at page 709; Elizabeth M., supra, 19 Cal.App.5th at page 788; In re Michael V. (2016) 3 Cal.App.5th 225, 236; In re Kadence P. (2015) 241 Cal.App.4th 1376, 1389.
We remand for a renewed ICWA investigation, which must include inquiry of the children's paternal aunt, L.H. If, after appropriate inquiry, the court finds Naomi and Anthony are Indian children, it shall conduct a new section 366.26 hearing, as well as all further proceedings, in compliance with ICWA and related California law. If not, the court's original orders terminating parental rights shall immediately be reinstated.
III. DISPOSITION
The judgment terminating parental rights to Anthony and Naomi is 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. On remand, the court must ensure that the Agency fully investigates the children's paternal lineal ancestry and gives new ICWA notices, including all previously known and newly discovered identifying information concerning their paternal lineal ancestry, to the BIA and to any tribes identified as a result of the new investigation.
If, after receiving ICWA notice as required by sections 224.2 and 224.3, the tribes or the BIA do not respond to the ICWA notices, or respond that Anthony and Naomi are not Indian children, the judgment terminating parental rights to Anthony and Naomi shall immediately be reinstated and further proceedings shall be conducted, as appropriate. If any tribe or the BIA determines Anthony or Naomi is an Indian child, the court shall proceed accordingly.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Lee, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.