Opinion
C089851
01-17-2020
In re M.M., a Person Coming Under the Juvenile Court Law. PLACER COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. J.H., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 53004692)
J.H., the mother of minor M.M., appeals from the juvenile court's order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Mother contends the Placer County Department of Health and Human Services (Department) failed to comply with the requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) The Department concedes the error. We will reverse and remand for limited ICWA proceedings.
Undesignated statutory references are to the Welfare and Institutions Code. --------
BACKGROUND
A detailed recitation of the facts and non-ICWA related procedural history is unnecessary to our resolution of this appeal. The juvenile court found true the allegations in an amended dependency petition filed by the Department pursuant to section 300, subdivisions (b), (c), and (d), related to mother and also related to B.M. (the father of minor M.M.) and J.C. (the father of the minor's two older half siblings, C.H. and M.H.). The older half siblings are not parties to this appeal. The juvenile court found B.M. to be the presumed father of the minor.
At a hearing on September 6, 2017, mother denied having any Indian heritage. B.M. informed the juvenile court of his belief that he had Indian ancestry with the Comanche Tribe based on information from his grandmother, although he had no verification of Indian ancestry and he did not believe any of his family members were registered with the tribe. B.M. filed a parental notification of Indian status indicating he might have Indian ancestry with the Comanche Tribe. Mother filed the same document indicating she had no known Indian ancestry.
The jurisdiction report filed October 16, 2017, stated B.M. reported on September 21, 2017 that his grandmother Margarita Cavosos (the minor's paternal great-grandmother) had Comanche heritage and his great-grandmother, Ms. Cavosos's mother (the minor's paternal great-great-grandmother), was full-blooded Comanche from San Vicente, Mexico. The report stated notices were sent to the Comanche Tribe on September 26, 2017.
The ICWA notices sent by the Department on September 26, 2017, were sent to the Comanche Nation, the Bureau of Indian Affairs (BIA), and the Secretary of the Interior. The notices included the names, birthdates, and birthplaces of mother and B.M.; identified B.M.'s possible tribe as the Comanche Nation; and included the name, birthplace, and tribe of Margarita Cavosos, although Ms. Cavosos's name was misspelled (i.e., it was spelled "Cavasos" instead of the proper spelling "Cavosos"). The notices did not include the names of the paternal grandparents or the paternal great-great grandmother.
The amended dependency petition filed October 17, 2017 stated the minor had no known Indian ancestry.
On October 30, 2017, the Department filed a notice of the minor's ICWA eligibility stating that the Comanche Nation had been noticed and had responded that the minor was neither enrolled nor eligible to enroll in the tribe. The notice attached the letter from the Comanche Nation to that effect. The tribe's letter noted its conclusion was "[b]ased on the information provided."
The status review report filed July 25, 2018, and subsequent reports filed thereafter, stated the juvenile court found that ICWA did not apply as to the minor. The juvenile court's orders following the six-month review hearing and the 12-month review hearing stated that ICWA did not apply.
The juvenile court terminated mother's reunification services on December 21, 2018, and set the matter for a section 366.26 hearing. On June 19, 2019, the juvenile court terminated mother's parental rights.
DISCUSSION
Mother contends, and the Department concedes, that the Department failed to comply with ICWA requirements by failing to provide correct and adequate relative information provided by the presumed father in notices it sent to the relevant tribes and agencies. We accept the Department's concession and we will reverse and remand for further limited proceedings.
ICWA's purpose is to protect the interests of Indian children and promote the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) The juvenile court and the Department have "an affirmative and continuing duty to inquire" whether a child is, or may be, an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the juvenile court knows or has reason to know that an Indian child is involved (25 U.S.C. § 1912(a)), notice of the pending proceeding and the right to intervene must be sent to the tribe or the BIA if the tribal affiliation is not known. (See § 224.2, subds. (a)-(j); Cal. Rules of Court, rule 5.481(b); In re Robert A. (2007) 147 Cal.App.4th 982, 989.) "Proof of notice filed with the court must include Notice of Child Custody Proceeding for Indian Child (form ICWA-030), return receipts, and any responses received from the Bureau of Indian Affairs and tribes." (Cal. Rules of Court, former rule 5.482(b).)
ICWA notices must include all the following information, if known: the child's name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses of the child's parents, grandparents, great-grandparents, and other identifying information; and a copy of the dependency petition. (§ 224.3, subd. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184, 209.) As mother argues and the Department properly concedes, the notice failed to include the names of the minor's paternal grandparents; the minor's paternal great-grandmother's name was misspelled; the notice stated the minor's paternal great-grandmother was born in San Vicente, Mexico even though B.M. never provided that information to the Department; the notice omitted information regarding the minor's paternal great-great-grandmother who was born in San Vicente, Mexico and was full-blooded Comanche Indian; and the notice omitted any addresses for B.M.
The Department's duty of ICWA inquiry extends to the minor's extended family, if known. (§ 224.2, subd. (c); Cal. Rules of Court, rule 5.481(a)(4).) Here, information regarding B.M.'s extended family was known. The Department failed its duty of inquiry. The notices sent by the Department were insufficient for purposes of ICWA.
"[E]rrors in an ICWA notice are subject to review under a harmless error analysis." (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1415.) Error is not presumed. It is mother's obligation to present a record that affirmatively demonstrates error. (In re D.W. (2011) 193 Cal.App.4th 413, 417-418.) Mother has done so here. In light of the Department's prudent concession, and given the state of the record, we cannot say the failure of ICWA compliance was harmless. A failure to conduct a proper ICWA inquiry requires reversal of the orders terminating parental rights and a limited remand for proper inquiry and any required notice. (In re A.B. (2008) 164 Cal.App.4th 832, 839; In re D. T. (2003) 113 Cal.App.4th 1449, 1454-1456.)
DISPOSITION
The order terminating parental rights pursuant to section 366.26 is reversed and the matter is remanded to the juvenile court for limited ICWA proceedings consistent with this opinion. If, at the conclusion of those proceedings, no tribe indicates the minor is an Indian child within the meaning of ICWA, then the order terminating parental rights shall be reinstated. If the juvenile court finds, after proper inquiry and notice, that ICWA applies, the juvenile court shall hold such further proceedings as are appropriate.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
DUARTE, J.