Opinion
E069401
07-09-2018
In re K.L., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. D.L., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1201092) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Reversed with directions. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant D.L. (Mother) is the mother of K.L., who was five years old when detained in 2012 and 10 years old on the date of the challenged orders. Mother asks this court to reverse the orders of September 7, 2017, in which the juvenile court terminated her parental rights and selected adoption as K.L.'s permanent plan. Specifically, Mother argues the Riverside County Department of Public Social Services (DPSS) failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA) because the notices sent to the identified tribes in 2012 did not include the maternal great-grandmother's (MGGM's) date and place of birth and complete address, although DPSS had been in contact with the MGGM. We agree, and therefore conditionally vacate the judgment and remand for the limited purpose of complying with ICWA's notice and inquiry provisions.
FACTS AND PROCEDURE
K.L. first came to the attention of DPSS in August 2012, at the age of four, when he was found wandering along a major street in downtown Riverside and attempting to step into traffic. The maternal grandmother (MGM) was found under the influence of alcohol in the motel room where she lived with the child and the maternal grandfather (MGF). The MGM told the responding social worker that she took care of K.L. because Mother has mental health problems. K.L. was clean, nicely dressed and friendly. His intellectual and speech development were delayed, and he had scars on his closely shaven head from having a brain tumor surgically removed. DPSS temporarily maintained K.L. in the MGM's care, subject to supervision.
DPSS and law enforcement detained K.L. on October 22, 2012. K.L. had answered the telephone at the home when the social worker called and the MGM did not pick up after an extended period. The social worker immediately went to the home and found the MGM under the influence of alcohol and the home in disarray. In addition, the MGM had attempted to pick up K.L. from school earlier that month while drunk.
On October 24, 2012, DPSS filed a petition under Welfare and Institutions Code, section 300 in which it alleged under subdivision (b) that Mother failed to protect K.L. when she left him in the care of the MGM and maternal grandfather without consistent contact, despite knowing the couple engaged in domestic violence and the MGM chronically abused alcohol.
Section references are to the Welfare and Institutions Code except where otherwise indicated.
The petition contains allegations concerning two alleged fathers. However, neither alleged father is relevant to the ICWA issue Mother raises, so they are not referred to in this opinion.
The court ordered K.L. detained on October 25, 2012, and took jurisdiction on January 30, 2013. The court granted Mother one supervised visit each week.
K.L. remained in the same foster care home until October 2015. In October 2013, the court terminated Mother's reunification services and set a section 366.26 hearing because Mother failed to participate in her case plan and had not visited with K.L. since April 2013. The court continued the section 366.26 hearing numerous times while workers searched for an adoptive placement. In August 2015 the court took the hearing off-calendar because of the lack of progress in finding an adoptive placement. K.L.'s foster parents were committed to providing him with long-term care, but declined to pursue adoption or legal guardianship. In October 2015, K.L. moved to a new foster home because his foster parents had a change in circumstances and were no longer able to care for him.
A neighbor of the former foster parents, J.H., expressed interest in adopting K.L. once she resolved some personal issues. On August 26, 2016, K.L. was placed with J.H. The placement was going well and J.H. was committed to adopting K.L. On August 28, 2016, the court set a section 366.26 hearing for January 2017. The hearing was continued several times. On August 7, 2017, Mother filed a section 388 petition asking to reinstate reunification services and transition K.L. to her care. Throughout the dependency, Mother had visited with K.L. only about six times, including three times in 2017. K.L. consistently told the social worker that he wanted to live with J.H. because he loves her and she takes care of him.
On September 7, 2017, the court held the combined hearing on Mother's section 388 petition and K.L.'s permanent plan. (§ 366.26.) After hearing testimony from Mother and argument from counsel, the court denied the petition. The court then terminated Mother's parental rights and selected adoption as K.L.'s permanent plan. None of the parties made any mention of ICWA.
This appeal followed.
DISCUSSION
Mother argues we must conditionally reverse the court's order terminating her parental rights because DPSS and the court did not comply with ICWA's notice and inquiry requirements. We agree.
Facts Pertaining to ICWA Inquiry and Notice
The MGM told the social worker on August 3, 2012, that the family has Cherokee Indian ancestry. On October 22, 2012, Mother denied having American Indian ancestry, but on October 25 filed an ICWA-020 form in which she claimed Navajo and Cherokee ancestry. At the detention hearing on October 25, the court found there is reason to know K.L. may be an Indian child, and ordered DPSS to provide notice as required by law.
On November 1, 2012, DPSS mailed the ICWA notice to the five identified Navajo and Cherokee tribes, Indian Child and Family Services, and the Bureau of Indian Affairs, and filed the notices with the court on November 20.
The notices included the name, date and place of birth, addresses and tribal membership information for K.L., Mother, and both maternal grandparents. The notices regarding the MGGM were missing her date and place of birth, as well as her street address, although the city and state of her current address, her name, and her possible tribal affiliations were included.
DPSS did have the MGGM's complete address and telephone number, as these were included in the detention report, and DPSS was apparently in contact with her. On November 12, 2012, DPSS submitted a referral to the Relative Assessment Unit (RAU) to investigate whether K.L. could be placed with the MGGM. However, the referral was closed on January 28, 2013, because the MGGM failed to contact the RAU. The MGGM was in court on November 26, 2012, and January 30, February 21, and March 18, 2013.
At the jurisdiction hearing held on January 30, 2013, the court found DPSS had provided adequate notice to the tribes and ICWA does not apply. On April 8, 2013, the court determined ICWA may apply, and asked DPSS to file proof of ICWA noticing with the court. On October 31, 2013, the court found ICWA does not apply.
ICWA Notice and Inquiry Requirements
"[O]ne of the purposes of ICWA notice is to enable the tribe or BIA to investigate and determine whether the minor is an 'Indian child.' [Citation.]" (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995.) " '[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child's direct lineal ancestors.' [Citation.]" (In re Karla C. (2003) 113 Cal.App.4th 166, 175, quoting 25 C.F.R. § 23.11(b); see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2, subd. (a); In re J.M. (2012) 206 Cal.App.4th 375, 380; In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) As such, it must include all available information about the child's parents, maternal and paternal grandparents and great-grandparents, especially those with alleged Indian heritage, including maiden, married and former names and aliases, birthdates, places of birth and death, current and former addresses, and information about tribal affiliation including tribal enrollment numbers. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; 224.2, subd. (a)(5).) "A 'social worker has "a duty to inquire about and obtain, if possible, all of the information about a child's family history" ' required under regulations promulgated to enforce ICWA. [Citation.]" (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) This is a continuing duty that belongs to both the child protective agencies and the courts. (§ 224.3; Cal. Rules of Court, rule 5.481.)
"Substantial compliance with the notice requirements of ICWA is sufficient. [Citation.]" (In re Christopher I. (2003) 106 Cal.App.4th 533, 566; accord, In re Suzanna L. (2002) 104 Cal.App.4th 223, 237.) However, the notice sent to the BIA and/or Indian tribes must contain enough information to be meaningful. (In re Karla C., supra, 113 Cal.App.4th at p. 175.) Accordingly, substantial compliance requires the notice to include sufficient information—at least to the extent that it is both available and otherwise required by law—to give the tribe "a meaningful opportunity to evaluate whether the dependent minor is an Indian child within the meaning of the ICWA. [Citation.]" (In re Louis S. (2004) 117 Cal.App.4th 622, 629; accord, In re Karla C., at p. 178.)
Here, the record indicates the ICWA notices were incomplete regarding the MGGM's address and, more importantly, her date and place of birth. The detention report itself contains the MGGM's complete address, which is listed in the ICWA notices as "unknown." Further, the detention report contains the MGGM's telephone number and the record shows that the MGGM attended at least four hearings. A reasonable reading of the record shows that DPSS did not include all required information that was in its possession, or that it could have obtained by asking the MGGM for her place and date of birth. For this reason, we order a limited reversal per In re Francisco W., supra, 139 Cal.App.4th at page 708, and In re Jonathon S. (2005) 129 Cal.App.4th 334, 343.
DISPOSITION
The orders terminating parental rights and selecting adoption as K.L.'s permanent plan are conditionally reversed, and we order a limited remand, as follows: The juvenile court is directed to order DPSS to inquire of the MGGM (or in her absence other maternal family members) as to her place and date of birth, and subsequently give notice in compliance with the ICWA and related federal and state law.
Once the juvenile court finds that there has been substantial compliance with the notice requirements of the ICWA, it shall make a finding with respect to whether K.L. is an Indian child. If at any time within 60 days after notice has been given there is a determinative response that K.L. is or is not an Indian child, the juvenile court shall find in accordance with the response.
If there is no such response, the juvenile court shall find that K.L. is not an Indian child. If the juvenile court finds that K.L. is not an Indian child, it shall reinstate the original orders terminating parental rights and selecting adoption as K.L.'s permanent plan.
If the juvenile court finds that K.L. is an Indian child, it shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with ICWA and all related federal and state law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.