Opinion
E072756
12-05-2019
In re A.F. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.S., Defendant and Appellant.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jamila Bayati, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J273514 & J273515) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed with directions. Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, C.S. (Mother), appeals from the juvenile court's order denying Mother's petition to return her two daughters, A.F. and J.S. (the girls), to her care, or grant her six additional months of reunification services. (Welf. & Inst. Code, § 388.) Mother claims the juvenile court abused its discretion in denying her petition without an evidentiary hearing. We conclude that Mother's petition was properly denied without an evidentiary hearing because it did not make the prima facie showings necessary to require the court to order a hearing on the petition. (§ 388, subds. (a), (d).)
Unspecified statutory references are to the Welfare and Institutions Code.
Mother also claims that plaintiff and respondent, San Bernardino County Children and Family Services (CFS), gave inadequate notices of the proceedings under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) because the ICWA notices did not include the name of the girls' paternal grandmother (the PGM). CFS concedes the error but claims the deficiency will be moot because CFS will include the PGM's name on new ICWA notices of the section 366.26 hearing for the girls.
We conclude that no ICWA notices were required to be given based solely on Mother's speculative statement, at the detention hearing, that the PGM "might have Cherokee or something. I'm not sure." But the court and CFS had a duty to further inquire of the PGM and other paternal relatives, to the extent practicable, in order to (1) ascertain whether the PGM or anyone else on the paternal side of the girls' family claimed Cherokee or other Native American heritage, and, if so, (2) gather identifying information concerning the PGM and her direct lineal ancestors, and any other paternal relatives, for inclusion in ICWA notices. (Former § 224.3, subd. (c), repealed and replaced, effective January 1, 2019, with new § 224.2 (Stats. 2018, ch. 833 §§ 4-7).)
Thus, we affirm the order summarily denying Mother's section 388 petition. But we remand the matter with directions to the juvenile court to ensure that CFS fully complies with ICWA and related California law by investigating, to the extent practicable, the girls' potential Indian ancestry, and by giving new ICWA notices, as appropriate.
II. FACTS AND PROCEDURAL BACKGROUND
A. The Events Preceding the Girls' Current Dependency Cases
J.S. was born in 2008 and A.F. was born in 2012. The girls' father was murdered in August 2012, only months after A.F. was born. In November 2014, CFS took the girls into protective custody due to Mother's "substance abuse, mental illness and erratic behavior," but the 2014 dependency cases for the girls were terminated in August 2015 after Mother completed substance abuse treatment and other services.
The current cases for the girls were initiated in October 2017, following Mother's October 27 arrest for driving under the influence of alcohol and "slapping, punching and kicking" the girls. CFS responded to the home where Mother and the girls were living with the girls' maternal grandparents, upon receiving an "[i]mmediate [r]esponse" referral alleging Mother's general neglect. It was reported that Mother was a "habitual intoxicant" who had been "drinking all day" before she drove with the girls in the car. Mother's boyfriend, John M., called the police, and Mother became angry after she returned home with the girls and John M. told Mother he had called the police. Mother "grabbed" then five-year-old A.F. by the back of her hair and "yanked" her into the home.
John M. reported that Mother had been drinking all day, every day, for around one month. According to the maternal grandmother (the MGM), Mother was "often drunk," had a history of alcohol abuse, and had physically "attacked" the MGM on several occasions over the previous four days. Mother had been "'acting crazy'" and "screaming" at the girls the morning before she drove drunk with the girls in the car. Mother also had a bipolar disorder but was refusing to take her medication. The girls reported Mother was "'mean'" when she was drunk and would slap them and punch them in the stomach. J.S., then age nine, reported Mother was "drunk on and off for two weeks at a time." J.S. was "'afraid'" of Mother when she had been drinking. A.F. had a scratch on her elbow that she said Mother had inflicted, but it was healing.
Mother and John M. had been together since May 2017. John M. described Mother as "the 'sweetest and kindest caring person'" when she was not drinking. The maternal grandfather reported that Mother was "usually a good person except when she [was] drinking." Mother was "somewhat uncooperative, combative and argumentative" when interviewed by a CFS social worker on October 27 while seated in the back of a patrol car. Mother denied physically abusing the girls.
John M. believed Mother suffered from post-traumatic stress disorder due to the circumstances in which the girls' father was murdered in 2012. For the next five years, Mother and the girls were homeless "on and off." Mother was raped during this time and was in two abusive relationships. When Mother was arrested on October 27, 2017, Mother and the girls had been living in their current home with the maternal grandparents for only two weeks.
Mother has a criminal history, including several arrests and at least two convictions for driving under the influence. Mother was convicted of public intoxication in 2005, disturbing the peace in 2010, and driving under the influence in 2011. Mother pled no contest to driving under the influence for the October 2017 incident, and she was arrested for driving under the influence in 2004, 2012, and 2014. She was arrested in 2007 for possessing controlled substance paraphernalia and, in 2010, for three counts of misdemeanor battery. B. Detention, Jurisdiction, and Disposition
On November 16, 2017, the girls were ordered detained outside Mother's custody, and Mother was granted supervised visits. Mother was also ordered to submit to random or same day substance abuse testing. The girls were initially placed in foster care, but were later placed with the MGM.
When interviewed later in November 2017, Mother initially denied having an alcohol problem. Mother then admitted she used alcohol "as a crutch." She said she stayed sober for around 18 months after the girls' prior dependency cases were opened in 2014, but she became depressed and relapsed because she was not working and was spending too much time in her house.
At the jurisdictional hearing on February 13, 2018, the court sustained allegations for the girls under section 300, subdivisions (a) and (b). Among other things, the court found that (1) each girl had suffered, and there was a substantial risk that each girl would suffer, serious physical harm inflicted nonaccidentally by Mother (§ 300, subd. (a)) and (2) Mother suffered from "a substance abuse problem including but not limited to daily alcohol consumption that compromises her ability to properly and adequately care for and parent" the girls (§ 300, subd. (b)).
In its December 12, 2017, jurisdictional and dispositional report, CFS recommended that Mother be denied reunification services under section 361.5, subdivision (b)(13), due to Mother's failure to benefit from her substance abuse treatment and other services in 2014 to 2015. But in March 2018, CFS changed that recommendation and asked the court to grant Mother reunification services. Although Mother tested positive for marijuana on December 28, 2017, she tested negative for all substances in five separate drug tests in January 2018.
The juvenile court may deny a parent reunification services under section 361.5, subdivision (b)(13), "when the court finds, by clear and convince evidence" that the parent "has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention . . . ."
Additionally, in March 2018, Mother was continuing to maintain her sobriety and was participating in services. She was attending 12-step meetings and testing clean for all substances. She was making "excellent progress" in her counseling with Affiliated Psychological Services, she was attending parenting classes, and "seeking safety classes" and "intensive outpatient substance abuse treatment through Pacific Clinics. During Mother's supervised visits, the children had "no hesitation around" Mother and would "run to greet and hug her." Mother and the girls appeared to have a "strong bond."
Thus, at the dispositional hearing on April 10, 2018, the court authorized CFS to liberalize Mother's visits to include unsupervised daytime visits and supervised telephone contact. The court declared the girls dependents, removed them from Mother, and ordered reunification services for Mother. C. Termination of Mother's Services (January 2019)
In September 2018, CFS reported that Mother was abusing alcohol again. On an unreported date since the April 10, 2018, dispositional hearing, Mother came to the MGM's home with alcohol. When Mother was in the bathroom, A.F. walked in and saw that Mother had a small pint-sized bottle with a red top. Mother threatened A.F. by telling A.F. that if she "told" anyone about the bottle, then Mother "would kill her." As Mother was threatening A.F., J.S. walked in and witnessed the incident. The girls immediately reported the incident to the MGM. The girls were fearful of Mother and felt Mother was going to harm them. In July 2018, CFS clerical staff reported that Mother was intoxicated at a restaurant, as indicated by her "poor gait stumbling and swaying back and forth to the restroom." Mother denied the incident.
By July 2018, the girls were no longer living with the MGM and were in a foster care, concurrent planning home. That month, the foster parents reported that Mother was coming to church smelling of alcohol, was "being disruptive to the children's program at church," and was "attempting to see the children on multipl[e] occasions outside of visits." On July 15, the foster mother spoke to Mother about her drinking, Mother became "hostile" but not "physical," denied drinking alcohol, and claimed it was her medication. On July 16, J.S. told her foster father that Mother's breath "smelled funny" at their last visit as it had at church the previous day. J.S. was afraid to tell when Mother's breath smelled of alcohol because she felt Mother would hurt her for telling. The foster mother recorded that Mother smelled like alcohol on July 16, August 4, September 2, September 16, and September 23.
The foster parents were willing to adopt the girls, and the girls remained placed with their "fos-adopt" parents in May 2019
On July 18, 2018, Mother was terminated from her outpatient program for breaking rules and attendance issues. Mother tested positive for alcohol on September 5, admitted to her counselor that she had relapsed and was struggling with alcohol, and signed up for another outpatient treatment program. Shortly thereafter, Mother denied relapsing and denied admitting to her counselor that she had relapsed. By October 2018, Mother had missed numerous on-demand tests for substances, was not returning the social worker's calls, and claimed she had lost her phone. CFS reported Mother was "go[ing] through the motions" with her services "rather than recognizing the serious nature of her actions and addiction." The foster mother reported Mother had become "impatient, frustrated and agitated with the girls during the last few visits."
Notwithstanding Mother's relapse, CFS recommended that the court continue Mother's services at the six-month review hearing on October 10, 2018. The court followed the recommendation. But weeks later, on December 18, 2018, the court reduced the frequency of Mother's visits from twice weekly to twice monthly, over Mother's objection, and ordered the visits to be supervised by CFS. On December 13, 2018, CFS reported that Mother was continuing to smell of alcohol during visits, and that the girls were reluctant to visit Mother or speak to her on the phone.
At the 12-month review hearing on January 10, 2019, Mother asked the court to continue her services to the 18-month deadline, but the court terminated Mother's services. The girls and their foster parents had reported that Mother still smelled of alcohol during visits and at times slurred her words. Mother tested positive for alcohol on December 12, but Mother falsely claimed that the test was positive because she had eaten spaghetti with wine sauce. Mother was also tending to "intimidate" the girls during visits and told them she would kidnap them if they were not returned to her care.
Mother testified at the 12-month review hearing. She had completed many of her services, including anger management and parenting classes, and she had been attending counseling sessions for several months. She admitted she lied about her December 12 positive alcohol test but promptly admitted that she had had "a beer and a shot." She completed an "intensive" outpatient program in May 2018 and was currently attending another outpatient program and Alcoholics Anonymous/Narcotics Anonymous meetings several times weekly. She knew she could not drink again. On December 22 and 23, 2018, she attended a women's group "roundtable" on alcohol recovery, experienced an "awakening," and was meeting with the group on a weekly basis. She had not relapsed since December 12 and had a plan for maintaining her sobriety. When questioned about the impact that her alcohol abuse had had on the girls, Mother admitted the girls had been adversely affected by her alcohol abuse, but Mother seemed not to understand or appreciate why the girls did not want to talk or visit with her. Mother denied ever having physically disciplined the girls "beyond just spanking" them.
Following Mother's testimony, the girls' counsel argued Mother was focused on "presenting herself in the most positive light possible" rather than addressing the "root of the cause" of her alcoholism, and until Mother did so she would likely continue to relapse. The girls' counsel also pointed out that there were continuing concerns about Mother's relationship with the girls. The girls' counsel noted that J.S. was "very aware" of Mother's "issues," and both girls had suffered "significant" "emotional trauma" as a result of Mother's alcohol abuse. The 18-month review hearing was to be held in three months, on April 28, 2019, and the girls' counsel argued it did not seem "remotely plausible" that the girls could be returned to Mother by that time.
County counsel joined the girls' counsel's argument, and emphasized that Mother had had "multiple relapses," had been sober for less than four weeks, and was "reluctant . . . to admit . . . how her alcoholism has impacted her children directly." The girls were at times unwilling to visit Mother because they feared she would "drink and abuse again." The court concluded that Mother was "not close" to being able to provide the girls with permanency, and that the girls had "reasonable fears" based on their history with Mother. The court noted that Mother had had 14 months of services, and though "relapse is part of recovery," the girls could not wait for Mother's recovery. The court thus ordered Mother's reunification services terminated and set a section 366.26 hearing for the girls on May 10, 2019. D. Mother's Section 388 Petition (Filed May 3, 2019)
The section 366.26 hearing was continued to July 9, 2019. On May 14, 2019, Mother filed a notice of appeal from the court's May 6, 2019, order summarily denying her section 388 petition.
On May 3, 2019, Mother filed a section 388 petition, asking the court to either (1) return the girls to her care or (2) place the girls in a permanent plan living arrangement and order six additional months of reunification services for Mother. In her petition, Mother claimed (1) she had been sober since her December 12, 2018, relapse, (2) she had completed additional services "on her own" since her juvenile court services were terminated on January 10, 2019, (3) she had continued to visit the girls and maintain her bond with them, and (4) she was now "very well suited and capable" of protecting the girls and raising them.
Mother adduced evidence that she had successfully completed an outpatient drug and alcohol program on April 22, 2019. Her substance abuse counselor wrote a letter stating Mother had gained "immense" "insight" into her "past actions," and Mother and the counselor had together formulated "a well-built relapse prevention plan that includes the sober support system that [Mother] has built among the sober community." Since December 12, 2018, Mother had tested 16 times for substances and all of the tests were negative.
Mother also showed that she had completed 12 sessions of domestic violence, eight sessions of anger management, was employed, and was regularly attending 12-step meetings. Mother's Alcoholics Anonymous sponsor wrote a letter stating that Mother had "grown tremendously[,] spiritually and mentally." Mother was also attending counseling sessions every other week through Affiliated Psychological Services. Her counselor wrote that she had "expressed remorse about her substance abuse issues and how it has impacted the lives of her children."
Additionally, Mother and John M. were still together and had been together since May 2017. John M. wrote a letter confirming he had retired from the United States Marine Corps. in February 1994, and he was now fully retired, "drawing SSA" and "100% disability from the VA . . . ." Mother lived with John M. in his two bedroom, single-family home, and John M. confirmed that the second bedroom was "for the girls once reunification is approved."
On May 6, 2019, the court denied Mother's section 388 petition, summarily and without conducting an evidentiary hearing, on the grounds the petition did not state new evidence or changed circumstances, and that granting Mother's requests proposing changes of the court's orders would not promote the girls' best interests. Mother timely appeals the order denying her section 388 petition.
CFS filed a section 366.26 report on May 17, 2019, but the court could not have considered the report in denying Mother's petition on May 6, 2019. Thus, we disregard CFS's reference to contents of the section 366.26 report.
III. DISCUSSION
A. Mother's Section 388 Petition Was Properly Denied Without an Evidentiary Hearing
Mother claims the juvenile court abused its discretion in summarily denying her section 388 petition seeking either the return of the children to her care or, alternatively, six months of additional reunification services, without conducting an evidentiary hearing on the petition. We conclude that the petition was properly denied without a hearing.
1. Applicable Law and Standard of Review
Section 388 provides: "(a)(1) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . [¶] . . . [¶] (d) If it appears that the best interests of the child . . . may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ." (Italics added.)
A section 388 petition "need only allege a prima facie case in order to trigger the right to proceed by way of a full hearing." (In re Edward H. (1996) 43 Cal.App.4th 584, 592.) That is, the petition must make a prima facie showing of facts sufficient to sustain a favorable decision on the petition if the facts are credited or assumed to be true. (Id. at p. 593; In re Marilyn H. (1993) 5 Cal.4th 295, 310.) The petition must be liberally construed in favor of its sufficiency (In re K.L. (2016) 248 Cal.App.4th 52, 62; Cal. Rules of Court, rule 5.570(a)), which is to say that it must be "liberally construed in favor of granting a hearing to consider the parent's request" (In re Marilyn H., supra, at p. 309).
"'There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.] We review the juvenile court's summary denial of a section 388 petition for abuse of discretion.' [Citation.]" (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)
2. Analysis
Mother claims her petition made a sufficient showing to warrant an evidentiary hearing on the petition. We disagree. As the court ruled, the petition did not make a prima facie showing that (1) Mother's circumstances had changed since her services were terminated on January 10, 2019, or that (2) returning the girls to Mother or granting Mother an additional six months of services, would serve the girls' best interests. Thus, the petition did not warrant an evidentiary hearing, and the court did not abuse its discretion in denying the petition without a hearing.
In determining whether a section 388 petition makes its required prima facie showings, the court may consider the factual and procedural history of the case. (In re K.L., supra, 248 Cal.App.4th at p. 62.) The court may also consider "(1) the seriousness of the problem that led to the dependency and the reason for any continuation of that problem; (2) the strength of the child's bond with his or her new caretakers compared with the strength of the child's bond with the parent; and (3) the degree to which the problem leading to the dependency may be easily removed or ameliorated, and the degree to which it actually has been. [Citation.]" (In re Ernesto R. (2014) 230 Cal.App.4th 219, 224.) None of these factors favored granting a hearing on Mother's petition.
First, given the entire factual and procedural history of the case, the petition did not make a prima facie showing of changed circumstances. The petition showed that Mother had completed yet another outpatient program and had remained sober for nearly five months, from December 12, 2018, through May 3, 2019, the date the petition was filed. The petition also showed that Mother was continuing to visit the girls and was engaging in many services "on her own" to maintain her sobriety and become a better parent. But given Mother's years-long history of alcohol addiction and relapses, these showings were insufficient, on their face, to show that the circumstances underlying the girls' dependency—mainly, Mother's alcoholism—were sufficiently changed.
To be sure, Mother's continuing efforts to recover from her alcohol addiction are commendable. But Mother has a years-long history of alcohol abuse and of relapsing, even after completing alcohol abuse treatment services. She did not maintain her sobriety after the girls were removed from her in 2014 to 2015, despite her completion of treatment services during that time. She was also unable to maintain her sobriety during the current proceedings for the girls, even after she completed an "intensive" outpatient program, numerous 12-step meetings, and many other services to address her alcohol abuse. The court even continued Mother's services in October 2018, following Mother's relapse during July to September 2018, but Mother was still unable to maintain her sobriety, and relapsed again in December 2018. Given Mother's history of alcohol abuse and relapses, her petition showed only that she was continuing with her recovery. Her recently attained five months of sobriety was insufficient to show changed circumstances.
Indeed, when a parent shows that they are in the early stages of recovering from drug or alcohol addiction, courts tend to find that this amounts to "changing" but not "changed circumstances." (See, e.g., In re Ernesto R., supra, 230 Cal.App.4th at pp. 221-223 [recent completion of drug treatment program did not show changed circumstances given parent's long history of substance abuse].) Indeed, courts have found even longer periods of recent sobriety than Mother's five months insufficient to show changed circumstances, when, as here, the parent has a years-long history of substance abuse and relapses. (See, e.g., In re Clifton B. (2000) 81 Cal.App.4th 415, 421-423 [seven months of sobriety insufficient given parent's lengthy history of substance abuse and relapses]; In re Casey D. (1999) 70 Cal.App.4th 38, 48 [nine months of sobriety insufficient where parent "had an extensive drug history with a tendency to engage in treatment programs when required to do so . . . and then relapse . . . ."]; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 ["It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform."].)
Mother relies on two cases in which the courts concluded that the section 388 petitions made the prima facie showings necessary to require hearings on the petitions: In re Hashem H. (1996) 45 Cal.App.4th 1791 and In re Aljamie D. (2000) 84 Cal.App.4th 424. Both cases are distinguishable. Neither involved a parent with a lengthy history of drug or alcohol abuse and relapses, and only a recent period of several months of sobriety. Aljamie D. involved a mother whose petition showed she had tested clean for over two years following the placement of her children in long-term foster care, and the mother was only seeking a 60-day trial visit before an "eventual change in the placement order." (In re Aljamie D., supra, at p. 432; see id. at pp. 427-431.) Hashem M. did not even involve a parent with a history of alcohol or substance abuse. Rather, it involved a mother whose petition showed, prima facie, that the mother had "successfully resolved" through 18 months of therapy the psychological problems that led to her child's dependency. (In re Hashem M., supra, at pp. 1798-1800.) Thus, Hashem M. does not assist Mother's claim that her petition made the prima facie showings necessary to require a hearing.
Mother's petition also failed to make a prima facie showing that returning the girls to Mother's custody, or granting Mother six additional months of services, would serve the girls' best interests. The girls were doing very well with their foster parents, and the foster parents were willing to adopt the girls. Although Mother's petition showed that Mother continued to visit the girls, it did not show that the girls' fears that Mother would use alcohol again and abuse the girls again had been resolved. Thus, the petition did not show, on its face, that returning the girls to Mother or granting Mother more services (and another chance to reunify with the girls), would serve the girls' best interests.
"'[U]p until the time the section 366.26 hearing is set, the parent's interest in reunification is given precedence over a child's need for stability and permanency.' (In re Marilyn H., supra, 5 Cal.4th at p. 310.) [But] '[o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.' (Id. at p. 309.)" (In re Zacharia D. (1993) 6 Cal.4th 435, 447.) Once reunification services are terminated, the child's interest in permanency and stability "takes priority." (See In re Marilyn H., supra, 5 Cal.4th at p. 309.) The girls' need for permanency and stability "took priority" over Mother's interests in reunifying with the girls, in May 2019, when Mother filed her section 388 petition seeking the girls' return or further services.
Thus, even if Mother's petition had made a prima facie showing that Mother's circumstances had changed since her services were terminated in January 2019, Mother's petition did not make a prima facie showing that granting her services or custody of the girls would serve the girls' best interests. (See, e.g., In re Ernesto R., supra, 230 Cal.App.4th at pp. 223-224 [the mother failed to show how granting her services or liberalized visitation would have served child's best interest, when child was bonded to his foster parents and granting the mother's requests would have delayed the child's permanency].) Mother's petition asserted that Mother was "well suited" to parent the girls, but given Mother's recently attained sobriety and against the background of her history of alcohol abuse and relapses, this was not enough to satisfy the best interest prong of section 388. B. Mother's ICWA Claims
Mother claims that the ICWA notices CFS gave to the Bureau of Indian Affairs (BIA) and three federally recognized Cherokee tribes in March 2018 were deficient, because they did not include the PGM's name. As noted, CFS concedes that the ICWA notices were deficient for this reason. But CFS claims that the ICWA notice issue "will likely be moot" because CFS will be continuing the section 366.26 hearing in order to include the PGM's name in new ICWA notices for that hearing.
As we explain, the record does not show that CFS discharged its own and the court's duty to further inquire of the PGM and possibly other paternal relatives concerning the girls' possible status as Indian children. For this reason, the matter must be remanded for further proceedings under ICWA and California law.
1. Relevant Background
When initially interviewed for these proceedings on October 27, 2017, Mother told the social worker that there was no Indian ancestry in either Mother's or the girls' father's families. But at the November 16, 2017, detention hearing, Mother completed an ICWA-020 form indicating that the girls either did or may have Cherokee ancestry through the PGM. At the detention hearing, the court asked Mother why she thought the PGM had Indian ancestry, and Mother responded that the PGM "might have Cherokee or something. I'm not sure." Mother also indicated that the PGM was not "around to speak to" and Mother did not know whether the PGM was still living. Mother confirmed that the girls were not "enrolled trib[al] members."
Several months later, on March 13, 2018, the dispositional hearing was continued to April 10, 2018, at CFS's request because "ICWA notice [was] not complete." On March 14, 2018, Mother spoke with the social worker and again reported, as she had at the November 16, 2017, detention hearing, that the girls may have Cherokee on their father's side of the family. Mother told the social worker she had no contact information for anyone in the father's family, but the name of the girls' PGM was "Andrea F." Mother reported she had not spoken to Andrea F. during the previous 10 years and had last seen Andrea F. at the father's funeral, which would have been in 2012. Mother never claimed that the girls had any maternal Indian ancestry.
On April 5, 2018, CFS filed an ICWA declaration of due diligence, stating that, on March 27, 2018, it notified three Cherokee tribes and the BIA of the continued April 10, 2018, dispositional hearing, by registered mail. The ICWA notices, given on form ICWA-030, erroneously stated that the PGM's name was "[u]nknown." In October 2018, CFS filed a final ICWA declaration of due diligence, stating it had received responses from the three noticed tribes, each indicating that the girls did not qualify for tribal membership based on the information provided in the ICWA notices. On October 9, 2018, the court issued findings and an order declaring that notice had been given as required by ICWA and that ICWA did not apply to the girls' cases.
2. ICWA's Notice Requirements and the Duty of Inquiry
"ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8 . . . ; In re W.B. (2012) 55 Cal.4th 30, 47. . . .) For purposes of ICWA, an '"Indian child"' is a child who is either a member of an Indian tribe or 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); see Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal definitions].)
"As the Supreme Court recently explained, notice to Indian tribes is central to effectuating ICWA's purpose, enabling a tribe to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the matter. (In re Isaiah W., supra, 1 Cal.5th at pp. 829.) Notice to the parent or Indian custodian and the Indian child's tribe is required by ICWA in state court proceedings seeking foster care placement or termination of parental rights 'where the court knows or has reason to know that an Indian child is involved.' (25 U.S.C. § 1912(a).) Similarly, California law requires notice to the parent, legal guardian or Indian custodian and the Indian child's tribe in accordance with [former] section 224.2, subdivision (a)(5), if the Department or court 'knows or has reason to know that an Indian child is involved' in the proceedings. ([Former] § 224.3, subd. (d); see Cal. Rules of Court, rule 5.481(b)(1) [notice is required '[i]f it is known or there is reason to know that an Indian child is involved in a proceeding listed in rule 5.480,' which includes all dependency cases filed under § 300].)
"If the court has reason to know an Indian child may be involved in the pending dependency proceeding but the identity of the child's tribe cannot be determined, ICWA requires notice be given to the federal [BIA] (25 U.S.C. §§ 1903(11), 1912(a); see In re Isaiah W., supra, 1 Cal.5th at p. 8). California law reinforces this requirement: [Former] [s]ection 224.2, subdivision (a)(4), provide[d], 'Notice, to the extent required by federal law, shall be sent to the Secretary of the Interior's designated agent, the Sacramento Area Director, Bureau of Indian Affairs.' In addition, the California statute requires any notice sent to the child's parents, Indian custodians or tribe to 'also be sent directly to the Secretary of the Interior' unless the Secretary of the Interior has waived notice in writing. ([Former] § 224.2, subd. (a)(4); see In re Isaiah W., at p. 9.)
"The circumstances that may provide reason to know the child is an Indian child include, without limitation, when a person having an interest in the child, including a member of the child's extended family, 'provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe.' ([Former] § 224.3, subd. (b)(1); see In re Isaiah W., supra, 1 Cal.5th at p. 15 [[former] 'section 224.3, subdivision (b) sets forth a nonexhaustive list of "circumstances that may provide reason to know the child is an Indian child"']; Cal. Rules of Court, rule 5.481(a)(5)(A) [containing language substantially identical to that in [former] § 224.3, subd. (b)(1)]; see also In re Kadence P. (2015) 241 Cal.App.4th 1376, 1386-1387 & fn. 9 . . .] [because only the tribe may make the determination whether the child is a member or eligible for membership, there is no general blood quantum requirement or 'remoteness' exception to ICWA notice requirements]; In re B.H. (2015) 241 Cal.App.4th 603, 606-607 . . . ['a person need not be a registered member of a tribe to be a member of a tribe—parents may be unsure or unknowledgeable of their own status as a member of a tribe'].)" (In re Michael V. (2016) 3 Cal.App.5th 225, 231-233, fn. omitted.)
3. Analysis
We first conclude that no ICWA notices were required to be given based solely on Mother's statement at the detention hearing that the PGM "might have Cherokee or something. I'm not sure." The statement was too speculative to require CFS to give notice of the proceedings to the BIA or to any federally recognized Cherokee tribes. (See In re Michael V., supra, 3 Cal.App.5th at pp. 234-235 [and cited cases].) "[A] claim that a parent, and thus the child, 'may' have Native American heritage is insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information that would reasonably suggest the minor has Indian ancestry." (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1516, italics added; former § 224.3, subd. (c).)
But Mother's statement plainly indicated that the PGM "may" have Cherokee or other Native American ancestry. As such, the statement triggered the court's and the social worker's duty to make "further inquiry," as soon as practicable, of the PGM and other paternal relatives, to discover whether the PGM and other paternal relatives had any information that would reasonably suggest that they, and by extension the girls, had Cherokee or other Indian ancestry. "'[T]he duty to inquire is triggered by a lesser standard of certainty regarding the minor's Indian child status . . . than is the duty to send formal notice to the Indian Tribes.'" (In re Michael V., supra, 3 Cal.App.5th at p. 235.) This standard was met here.
In March 2018, Mother told the social worker that the PGM's name was "Andrea F." and that Mother had not spoken to the PGM in several years. Nonetheless, CFS had a duty to attempt to locate the PGM and other paternal relatives in order to discover whether any of them had information that would reasonably suggest that the girls have Indian ancestry. If the court or CFS obtained that information, then the court and CFS had a duty to give notices of the proceedings under ICWA. And, before giving the ICWA notices, the court and CFS had a duty to gather as much identifying information as possible from the PGM and other paternal relatives (see former § 224.2, subd. (a)(5)) for inclusion in the ICWA notices (see former § 224.3, subd. (c)).
In the words of former section 224.3, subdivision (c): "If the court or social worker 'knows or has reason to know' the child is or may be an Indian child, 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' and 'any other person that reasonably can be expected to have information regarding the child's membership status or eligibility' in order to 'gather the information required' in [former] section 224.2, subdivision (a)(5). ([Former] § 224.3, subd. (c); [In re] Michael V., supra, 3 Cal.App.5th at p. 233; In re K.R. (2018) 20 Cal.App.5th 701, 706-707 . . . ; Cal. Rules of Court, rule 5.481(a)(4)(A).)" (In re N.G. (2018) 27 Cal.App.5th 474, 481.)
"'[O]nce there is sufficient information to believe that the children might be Indian children within the meaning of ICWA and the California statutes, "responsibility for compliance" with those statutes "falls squarely and affirmatively" on both the social services agency and the court. [Citation.] Accordingly, the court has a responsibility to ascertain that the agency has conducted an adequate investigation and cannot simply sign off on the notices as legally adequate without doing so.'" (In re N.G., supra, 27 Cal.App.5th at p. 484, quoting In re K.R. (2018) 20 Cal.App.5th 701, 709.)
The record does not show that the court or CFS made any effort to locate the PGM or any other paternal relatives by, for example, asking Mother for the PGM's or any other paternal relative's last known address or contact information. Rather, the court simply signed off on the March 2018 ICWA notices as adequate without ascertaining whether CFS had discharged the court's and CFS's duty of inquiry by fully investigating the girls' possible paternal Indian ancestry. This was error. (See In re N.G., supra, 27 Cal.App.5th at pp. 482-485; In re Michael V., supra, 3 Cal.App.5th at p. 235.)
Lastly, CFS's argument that including the PGM's name in new ICWA notices of the upcoming section 366.26 hearing will "moot" the deficiency in the March 2018 ICWA notices disregards the court's and CFS's duty of inquiry. The argument assumes that including "Andrea F." in new ICWA notices—without any other identifying information that reasonably could have been obtained about the PGM, such as her date and place of birth—will render the new ICWA notices sufficient. On this record, we cannot know that this will be the case. (See In re N.G., supra, 27 Cal.App.5th at pp. 482-485.) On remand, the court must ensure that an adequate inquiry and investigation is conducted concerning the girls' possible paternal Indian ancestry. If that investigation yields new information reasonably suggesting that the girls have paternal Indian ancestry, then all relevant identifying information concerning all relevant paternal relatives must be included in new ICWA notices of any subsequent hearings in these proceedings.
Additionally, juvenile courts and child protective agencies have "'an affirmative and continuing'" duty to inquire whether a child for whom a section 300 petition was filed "is or may be an Indian child." (In re N.G., supra, 27 Cal.App.5th at p. 481.) Thus, the court and CFS must be vigilant for any new leads that may develop during the investigation that may indicate that the girls are Indian children through relatives other than the PGM.
IV. DISPOSITION
The May 6, 2019, order summarily denying Mother's section 388 petition, without conducting an evidentiary hearing on the petition, is affirmed. The matter is remanded to the juvenile court with directions to ensure that CFS conducts a further inquiry and investigation concerning whether the girls may be Indian children through their paternal grandmother and other paternal relatives, and, if so, to give new ICWA notices of these proceedings and to include all relevant and reasonably obtainable identifying information concerning the girls' possible paternal Indian ancestors in the new ICWA notices.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. RAPHAEL
J.