Opinion
A158024
10-01-2019
Sade B. et al., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 County Super. Ct. No. JD173297)
Sade B. (Mother) petitions this court for extraordinary relief from dependency court orders terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for her daughter (Minor). Mother does not challenge the orders on the merits; instead, she argues that failure to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) requires invalidation of the orders and a limited remand for compliance with ICWA.
Further unspecified statutory references are to the Welfare and Institutions Code.
The San Francisco Human Services Agency (Agency) concedes that the matter should be remanded for compliance with ICWA, but argues that the dependency court's orders should otherwise remain in effect. We agree with the Agency, and therefore we remand the matter for compliance with ICWA and otherwise conditionally affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2017, the Agency filed a petition alleging that Minor, then age 15 months, came within section 300 because of anger management issues on the part of minor's Father (Father), Mother's and Father's substance abuse, and domestic violence by Father that resulted in physical injury to Minor. On a Judicial Council form attached to the petition, a social worker reported Minor's paternal great grandmother stated the family "may have Indian Ancestry and may be part of the Blackfoot tribe."
At the detention hearing, Minor was detained from Father and placed with Mother. Based on ICWA-020 forms (Parental Notification of Indian Status) signed by Mother and Father, the juvenile court found that ICWA did not apply as to Mother and may apply as to Father.
Later, after the police found Mother and Minor at Father's residence, Minor was detained from Mother as well.
We grant the Agency's request to augment the record to include Mother's ICWA-020, on which Mother checked the box beside "I have no Indian ancestry as far as I know."
On January 22, 2018, the Agency filed form ICWA-030 (Notice of Child Custody Proceeding for Indian Child) showing notice to the Blackfeet Tribe of Montana, the Sacramento Area Director of the Bureau of Indian Affairs, and the Secretary of the Interior. The form stated that a jurisdiction hearing was scheduled for March 5, 2018, and included information as to Mother, Father, and Father's relatives. The Agency later filed return receipt cards indicating that the notices had been received.
We grant the Agency's request to augment the record to include the filed receipt cards.
In advance of the scheduled March 5, 2018 hearing, the Agency filed a report, which stated that ICWA "does or may apply." In addition to providing information about Father's possible Indian ancestry, the Agency provided the following details regarding Mother: On January 11, 2018, Mother reported that Minor's maternal great grandmother had "Cherokee Indian" ancestry and Minor's maternal great grandfather had "Blackfoot Indian" ancestry. Of crucial importance for this appeal, nothing in the record shows any further inquiry by the Agency or the court in response to this information from Mother. Nor is there any indication that any ICWA notice was provided that included information about Mother's family.
The notice that was sent to the Blackfeet Tribe included information about Mother, but no other information about Mother's family.
At a March 5, 2018 hearing on jurisdiction and disposition, the juvenile court found Minor to be a person described by section 300, subdivision (b), declared her a dependent of the court, placed her in foster care, and ordered reunification services for Mother and Father.
On April 11, 2018, at an Agency-requested hearing to provide a progress report on ICWA, the court found that ICWA had been satisfied and did not apply. That was the last finding by the juvenile court regarding ICWA, and the various reports filed by the Agency with the juvenile court after April 11, 2018, say nothing about ICWA except that it does not apply.
In August 2019, the juvenile court terminated Mother's and Father's reunification services and scheduled a hearing under section 366.26 to select a permanent plan. Mother then filed her petition, in which Father joins. Mother raises a single issue: non-compliance with ICWA. She argues that even though the juvenile court received information that Mother claimed possible Indian heritage, there was no further inquiry into the matter and there was no ICWA notice that provided information about Mother's relatives.
In its opposition to Mother's petition, the Agency represents that on September 18, 2019, after Mother's petition was filed, the Agency sent notices on form ICWA-030 "to the appropriate tribes." The Agency states that after responses are received or 60 days have passed from receipt of the notices, whichever is earlier, but before any termination of parental rights, it will request that the juvenile court make a new ICWA finding.
DISCUSSION
"ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. [Citations.] ICWA defines an Indian child as any unmarried person who is under age 18 and is either (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe." (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538.) The juvenile court and the social services agency "have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . has been filed, is or may be an Indian child." (§ 224.2, subd. (a).)
If circumstances indicate a child may be an Indian child, the social worker must make further inquiry regarding the child's possible Indian status. (§ 224.2, subd. (e).) And if the inquiry leads the court or social worker to know or have reason to know that a child in a dependency proceeding is an Indian child, notice must be provided to the tribe and the Bureau of Indian Affairs. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.482(a).) If neither the tribe nor the Bureau of Indian affairs has provided a response within 60 days after receipt of the notice, the juvenile court may determine ICWA does not apply. (Cal. Rules of Court, rule 4.582(c)(1).)
The Agency agrees with Mother that the inquiry and notice requirements of ICWA were not met with respect to Mother's statement that Minor's great-grandparents had Indian ancestry. The Agency also agrees with Mother that we should remand the case for compliance with ICWA. We shall do so.
The parties disagree, however, as to how we should treat the orders terminating reunification services and setting the section 366.26 hearing. Mother argues that we should vacate the order terminating reunification services and stay the section 366.26 hearing, currently scheduled for November 27, 2019, but she cites no cases requiring that result. The Agency argues that the orders should remain in effect, and that there is no present need to stay the section 366.26 hearing. The Agency has the stronger position.
Mother cites a single case In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424 to support her claim that failure to comply with ICWA notice provisions requires invalidation of the order setting a section 366.26 hearing as well as a remand. The case is distinguishable, however, because in Kahlen W. the agency conceded that the minor would likely be determined to be a member of the Miwok Tribe. (Id. at p. 1421.)
There is a split of authority as to whether failure to meet the inquiry and notice requirements of ICWA constitutes jurisdictional error that requires reversal. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384, 386 (Brooke C.) [affirming disposition order denying reunification services and remanding matter to juvenile court with directions to comply with ICWA notice requirements].) The court in Brooke C. adopted the reasoning of In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1410, that violation of the notice requirement is not jurisdictional error, and followed the majority of cases in holding that the only order that would be subject to reversal for failure to give notice would be an order terminating parental rights. (Brooke C., supra, 127 Cal.App.4th at p. 385.)
This district followed Brooke C. in the case of In re Veronica G. (2007) 157 Cal.App.4th 179, 187 (Veronica G.) and agreed that reversal is appropriate only where parental rights have been terminated, which is not the situation before us. In both Brooke C. and Veronica G., the juvenile court's orders were affirmed and the matter was remanded with directions to comply with ICWA. (Brooke C., supra, 127 Cal.App.4th at p. 386; Veronica G., supra, 157 Cal.App.4th at p. 188.) And in each case the appellate court noted that if, after proper notice under ICWA, the minor was determined to be an Indian Child, the parents had the right to petition the juvenile court to invalidate any orders that violated ICWA. (Brooke C. at p. 386; Veronica G. at p. 188.) We agree with the approach taken in Brooke C. and Veronica G., and accordingly we see no need to order the juvenile court to vacate its order terminating reunification services or to stay the section 366.26. hearing. If by November 27, 2019, the juvenile court can properly find that ICWA does not apply, the section 366.26 hearing can go forward as scheduled. Otherwise, the juvenile court's compliance with ICWA will dictate how it proceeds.
The Agency calls our attention to Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, in which the appellate court disagreed with Brooke C. and concluded that failure to provide ICWA notice required not only remand for compliance with ICWA, but also that orders terminating reunification services and scheduling a section 366.26 hearing be vacated. (146 Cal.App.4th at p. 785.) If the minors in that case were determined to be Indian children, the juvenile court was to hold a new review hearing in conformance with ICWA; if not, the juvenile court was to reinstate the vacated orders. (Id. at p. 786.) Unlike the court in Nicole K., we agree with Brooke C. Furthermore, the court in Nicole K. suggested that the "reasonable efforts" standard on which the juvenile court's orders were based (i.e., that reasonable efforts were provided or offered to the parents which were designed to aid the parents to overcome the problems which led to the initial removal and continued custody of the child) was a "lesser standard" than the ICWA standard that " 'active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.' " (Id. at p. 785.) California cases, however, have long held that "the standard[] for determining whether active efforts were made is 'essentially undifferentiable' from that for assessing whether reasonable services under state law were provided." (C.F. v. Superior Court (2014) 230 Cal.App.4th 227, 239, citing In re Michael G. (1998) 63 Cal.App.4th 700, 714.) --------
DISPOSITION
Let a peremptory writ issue directing respondent court to order the Agency to provide proper notice under ICWA (if the Agency has not already done so) and conduct further proceedings in compliance with ICWA. The challenged orders are otherwise conditionally affirmed. If the juvenile court determines that Minor is an Indian child and ICWA applies to these proceedings, Mother and Father are entitled to petition the juvenile court to invalidate orders that violated ICWA. (See 25 U.S.C. § 1914; Cal. Rules of Court, rule 5.486.) Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.