Opinion
C085512
04-20-2018
In re A.R., a Person Coming Under the Juvenile Court Law. PLACER COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. W.Q. et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 53-004581)
G.R. (father) and W.Q. (mother), parents of the minor A.R., challenge the juvenile court's order terminating parental rights. (Welf. & Inst. Code, §§ 366.26 & 395.) The parents collectively contend the juvenile court and the Placer County Department of Health and Human Services (Department) failed to comply with the requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Finding merit in the parents' claim, we will reverse and remand for further proceedings to comply with the ICWA.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue raised by the parents on appeal is related to the ICWA inquiry and notice, only the facts relevant to that issue are related here.
On September 30, 2016, the Department filed a juvenile dependency petition on behalf of the minor (born September 2016) pursuant to section 300, subdivisions (b) (failure to protect) due to mother's history of substance abuse and untreated mental illness, (g) (no provision for support) due to father's placement at an intensive medical care placement due to complications from an aortic valve replacement, and (j) (abuse of sibling) due to both parents' prior involvement in dependency proceedings related to the minor's siblings (who are not subjects of this appeal).
The detention report filed October 4, 2016, stated that, according to the section 366.26 report dated March 3, 2016, in a prior dependency action involving three of the parents' other children, "the [ICWA] does not apply."
Both parents were present at the October 4, 2016, detention hearing. Mother signed and filed a parental notification of Indian status form (ICWA-020) indicating she had no known Indian ancestry. Father, whom the court determined to be the minor's presumed father, stated he had Indian ancestry with the Cherokee and Choctaw tribes through the minor's paternal great-grandmother, A.Y.
On November 2, 2016, the Department filed an ICWA-030 form indicating the minor was potentially eligible for membership in the Cherokee and Choctaw tribes.
The jurisdiction/disposition report filed November 21, 2016, noted father's claim that his paternal grandmother was Choctaw and Cherokee, and confirmed that "[n]otices to all federally recognized tribes were sent November 2, 2016." The ICWA notices were sent to the Bureau of Indian Affairs (BIA), the Secretary of the Interior, three Cherokee Tribes, and three Choctaw Tribes.
On December 27, 2016, the Department filed notice of ICWA ineligibility of the minor confirming the minor was neither enrolled nor eligible to enroll in any of the six tribes, and the tribes would not be intervening in the dependency matter.
At the March 3, 2017, jurisdictional hearing, the court asked all counsel to confirm whether "all parties necessary as far as notices, there are no ICWA issues, all that's been resolved as far as notice goes just to make sure there is nothing out there that could be a glitch in the case in the future?" Counsel confirmed there were no outstanding ICWA issues. The court then asked, "This is not an ICWA matter?" The Department responded, "Correct." The court sustained the allegations in the amended petition and adjudged the minor a dependent of the juvenile court.
The court heard testimony from several witnesses at the subsequent dispositional hearing and, on March 17, 2017, found there was clear and convincing evidence for removal of the minor, whose out-of-home placement was appropriate and necessary. The court bypassed services as to both parents pursuant to section 361.5, subdivision (b)(11), set the matter for a section 366.26 hearing, and ordered bonding assessments for both parents. The court's written order noted the ICWA "does not apply."
The section 366.26 report filed June 21, 2017, stated the ICWA "does not apply."
Mother and father filed separate requests to change the court's March 17, 2017, order regarding denial of reunification services, but made no mention of the ICWA. The Department also filed a request to change the court's October 4, 2016, order regarding visitation. After hearing testimony and oral argument in a combined hearing on the section 388 motions and the issue of selection and implementation, the court denied the parents' section 388 motions, terminated parental rights, and ordered adoption as the permanent plan for the minor.
The parents filed timely notices of appeal.
DISCUSSION
The parents contend the Department failed to include in the ICWA notices any information regarding the minor's paternal grandparents, and failed to make any inquiry in that regard despite ample opportunity to do so. The parents further contend the juvenile court failed to ensure compliance with the ICWA before finding the ICWA did not apply and terminating parental rights. We agree.
The ICWA protects the interests of Indian children and promotes 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.) The ICWA defines " 'Indian child' " 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).) The necessity of a biological tie to the tribe is underlined by the ICWA definition of a " 'parent' " as "any biological parent or parents of an Indian child . . . ." (25 U.S.C. § 1903(9).)
The ICWA provides that, "[i]n 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).) This notice requirement, which is also codified in California law (§ 224.2), 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. (25 U.S.C. § 1912(a); see § 224.2, subd. (d).) When the notice provision is violated, an Indian child, parent, Indian custodian, or the Indian child's tribe may petition to invalidate the proceeding. (25 U.S.C. § 1914.)
It is essential for the Department to provide the Indian tribe with as much information as is known about the child's ancestors, especially the one with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include all of 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 membership; names and addresses (including former addresses) of the child's parents, grandparents, and great-grandparents, and other identifying information; and a copy of the dependency petition. (25 C.F.R. § 23.111(d)(1)-(4) (2015); § 224.2, subd. (a)(5)(A)-(D); In re D.W. (2011) 193 Cal.App.4th 413, 417; In re Mary G. (2007) 151 Cal.App.4th 184, 209.) All this information may not be available, even with inquiry of available relatives, but the Department has an ongoing duty to interview the minor's parents and extended family, if known, concerning the child's membership status or eligibility. (§ 224.3, subds. (a) & (c); Cal. Rules of Court, rule 5.481(a)(4).)
"If adequate and proper notice has been given, and if neither the BIA nor any tribe provides a determinative response within 60 days, then the court may determine that ICWA does not apply to the proceedings. (§ 224.3(e)(3).) At that point, the court is relieved of its duties of inquiry and notice (§ 224.2, subd. (b)), unless the BIA or a tribe subsequently confirms that the child is an Indian child (§ 224.3(e)(3))." (In re Isaiah W. (2016) 1 Cal.5th 1, 14-15 (Isaiah W.).)
We review the juvenile court's ICWA findings under the substantial evidence standard, which requires us to determine whether reasonable, credible evidence of solid value supports the court's order. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; In re N.M. (2008) 161 Cal.App.4th 253, 264; In re H.B. (2008) 161 Cal.App.4th 115, 119-120.) "We review factual findings in the light most favorable to the trial court's order." (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
Here, ICWA inquiry was made at the October 4, 2016, detention hearing. Mother claimed no Indian ancestry, as confirmed by the ICWA-020 parental notification of Indian status form she signed. Father claimed possible Indian ancestry with the Cherokee and Choctaw tribes through his grandmother (the minor's paternal great-grandmother), A.Y. The Department filed an ICWA-030 form which included information regarding the names, current and former addresses, birthdates, and birthplaces for both parents. The form also included information regarding father's biological grandmother (the minor's paternal great-grandmother), A.Y., including her name, birthdate, birthplace, and date of death. The form indicated there was no information available for the paternal grandparents.
On November 2, 2016, without any apparent inquiry to obtain additional information from father, the Department mailed ICWA notices, with return receipts requested, to the BIA, the Secretary of the Interior, three Cherokee Tribes, and three Choctaw Tribes. All six tribes responded that, based on the information provided, the tribes would not intervene because the minor was neither enrolled nor eligible for enrollment. At the March 3, 2017, hearing, the Department confirmed there were no outstanding ICWA issues and "[t]his is not an ICWA matter," and thereafter the court found the ICWA "does not apply." That finding was reiterated a final time in the June 21, 2017, section 366.26 report.
It is undisputed that there was no ICWA-020 form filed by father in the record. The Department also does not dispute that, other than the initial ICWA inquiry at the October 4, 2016, detention hearing and the court's subsequent inquiry at the March 3, 2017, jurisdictional hearing asking counsel whether this was "an ICWA matter," the Department made no attempt to obtain from father the names, addresses, birthdates, birthplaces, or any other identifying information of the paternal grandparents. In particular, father was interviewed on November 1, 2016. According to the jurisdiction/disposition report, he either discussed at that time or had stated in "previous dependencies" that his father (the paternal grandfather) had been murdered, his mother (the paternal grandmother) had substance abuse issues, and he "doesn't talk to his mother" anymore. Despite that information, it does not appear that father was asked to provide either the names of his parents or any other pertinent information relevant to an ICWA inquiry, nor is there any indication the Department attempted to learn that information from any other source. According to the Indian child inquiry attachment dated November 28, 2016, and attached to the amended dependency petition, ICWA inquiry was "not made." It is clear that, notwithstanding ample opportunity after the detention hearing on October 4, 2016, and continuing through the proceedings to the section 366.26 hearing on June 21, 2017, the Department failed its continuing duty to seek out information regarding father's parents. (In re Michael V. (2016) 3 Cal.App.5th 225, 236.)
The Department first argues the parents have presented no arguable issue on appeal because they failed to cite authority to support their position that where, as here, ICWA notices were sent and tribal responses indicating no intent to intervene were received, it was improper for the juvenile court to determine the notice was inadequate and find a lack of ICWA compliance. The Department further argues the parents failed to adequately summarize the facts upon which the juvenile court relied to support its finding that the ICWA does not apply, and only stated facts that supported their claims. We are not persuaded.
The parents' briefing, while lacking some detail, was otherwise sufficient in describing the relevant ICWA-related facts and procedural background. With regard to the parents' ICWA claim, the briefing sets forth relevant case and statutory authority regarding the continuing duty of inquiry and compliance with ICWA notice requirements. While the Department may differ with the parents' legal analysis, the briefing is nonetheless sufficient to raise an arguable issue on appeal.
Next, the Department argues the tribes' responses rendered any inadequacies in the ICWA notices irrelevant and, in any event, any notice error was harmless. Citing Isaiah W., supra, 1 Cal.5th at pp. 11-12, In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1107-1108 (Jeffrey A.), and In re Abbigail A. (2016) 1 Cal.5th 83, 95 (Abbigail A.), the Department argues that the purpose of the ICWA notice is to "advise [the tribes] of the rights to intervene," therefore, the fact that the tribes responded and declined to intervene demonstrates the notices achieved their intended purpose. Therefore, any omission in the notices is "irrelevant to the . . . validity of the tribes['] responses" and the tribes' determination "relieve[s] the court of the duty it would otherwise have to provide notice." Put another way, the Department asserts, errors are considered harmless when the tribes express no intent to intervene in the particular case. (In re Nicole K. (2007) 146 Cal.App.4th 779, 784; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.) The argument is untenable.
The cases cited by the Department stand for the general proposition that a tribe's determination that a child is or is not a member of or eligible for membership is conclusive, but do not hold specifically that any notice, whether incomplete or inadequate, will suffice so long as the tribe responds and states its intent to intervene or not to intervene. (See Abbigail A., supra, 1 Cal.5th at p. 95; In re Jeffrey A., supra, 103 Cal.App.4th at p. 1107.) While it is true, as the Department points out, that each of the six tribes made a determination the minor was not ICWA eligible and the tribe would not intervene, all but one expressly or impliedly premised that determination on the information provided to it by the Department. The Department ignores the fact that the information it provided to the tribes upon which those determinations were made was inadequate for failing to include the required names and addresses of the minor's grandparents (25 C.F.R. § 23.111(d)(1)-(4) (2015); § 224.2, subd. (a)(5)(A)-(D); In re D.W., supra, 193 Cal.App.4th at p. 417; In re Mary G., supra, 151 Cal.App.4th at p. 209), and that the Department failed to make any attempt to obtain that information from father or another extended family member (§ 224.3, subds. (a) & (c); Cal. Rules of Court, rule 5.481(a)(4)).
Further, while "[c]ourts have consistently held failure to provide the required notice requires remand unless the tribe has participated in the proceedings or expressly indicated they have no interest in the proceedings" (In re Kahlen W., supra, 233 Cal.App.3d at p. 1424), the tribes here had not participated in the proceedings and, as discussed above, their indication that they would not be intervening on behalf of the minor was based on limited information which omitted crucial details regarding the minor's paternal grandparents which could easily have been obtained. We cannot say with any degree of confidence that additional information concerning the paternal grandparents would not have altered the tribes' respective evaluations, and we are reluctant to impede the right of the tribes to fully evaluate the minor's possible Indian ancestry without first being provided all available information as mandated by the ICWA. Where, as here, there are "gaps in the family tree . . . frustrating the . . . tribe's ability to meaningfully investigate the [minor's] eligibility for membership" (In re J.M. (2012) 206 Cal.App.4th 375, 383), we must remand for further inquiry and additional notice to the relevant tribes.
Finally, the Department argues that, according to the language in the ICWA itself, the tribes' findings and determinations are binding on the juvenile court, as the tribes have sole jurisdiction and authority to make the determination whether the child is an Indian child and whether or not the tribes will intervene. (25 C.F.R. § 23.108; 25 U.S.C. 1914; Jeffrey A., supra, 103 Cal.App.4th at pp. 1107-1108; Abbigail A., supra, 1 Cal.5th at p. 95.) The Department argues a court would be "ignoring the full faith and credit clause of the ICWA" if it declared the tribe incompetent to evaluate the information provided to it in the ICWA notice or to decline to make a finding it did not have sufficient information upon which to make a determination, or if it declared the tribe terminally derelict for failing to request additional information.
Again, the Department ignores that the tribes' findings and determinations were based on the information provided by the Department, information which was inadequate and incomplete. Were it true that a tribe's response negates any claim of inadequate notice, as the Department asserts, one could argue notice to a tribe need only include information regarding the pendency of the proceeding along with minimal identifying information regarding the minor and the parent or parents claiming Indian ancestry. The language of the ICWA itself and the related case law and statutory authority reveal the fallacy of that assertion. While the " 'affirmative and continuing duty' " of inquiry does not require the Department to conduct a comprehensive investigation into the minor's Indian status or to "cast about for Indian connections" (In re C.Y. (2012) 208 Cal.App.4th 34, 39, 43; In re S.B. (2005) 130 Cal.App.4th 1148, 1161), it does obligate the social worker, as soon as practicable, to interview the minor's parents, extended family members, and any other person who can reasonably be expected to have information concerning the minor's membership status or eligibility. (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4).) The Department failed to meet that minimum level of inquiry here, where the social worker was in contact with father and inquiry regarding the paternal grandparents would not have been difficult.
On this record, we cannot say there was substantial compliance with the ICWA notice provisions. Therefore, reversal is required to permit additional inquiry.
DISPOSITION
The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of conducting further ICWA inquiry to determine the names, addresses, and any other identifying information of the minor's paternal grandparents, and to provide proper notice with all known ancestral information to all previously-identified tribes and any newly-identified tribes. Thereafter, if there is no response or if the tribes determine the minor is not an Indian child, the orders shall be reinstated. However, if any tribe determines the minor is an Indian child and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new selection and implementation hearing in conformance with all provisions of the ICWA.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.