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In re P.S.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 10, 2020
No. E073765 (Cal. Ct. App. Jan. 10, 2020)

Opinion

E073765

01-10-2020

In re P.S., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.P., Defendant and Appellant.

Maryann M. Goode, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and David Guardado, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J277052) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Remanded with directions. Maryann M. Goode, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.

D.P. (father) appeals the order terminating his parental rights over his daughter, P.S., arguing the juvenile court erred by failing to require compliance with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). Respondent San Bernardino County Children and Family Services (CFS) admits their notice efforts were inadequate, and we agree. As a result, the record does not support the juvenile court's finding that the ICWA notice requirements had been satisfied and ICWA did not apply. We will therefore vacate the orders terminating both parents' rights and remand to the juvenile court with directions to order compliance with ICWA's notice provisions.

Congress enacted ICWA in 1978 in response to rising concern "'over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.'" (In re Abbigail A. (2016) 1 Cal.5th 83, 90, quoting Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 32.) ICWA addresses these concerns by establishing "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs." (25 U.S.C. § 1902.)

The court and the parties must follow ICWA's procedural and substantive requirements when the dependency involves an "Indian child," which is defined 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).) Notice to the tribe is one of ICWA's procedural requirements.

If the court or the child welfare department "knows or has reason to know that an Indian child is involved," the department must send notice of the dependency proceedings to all of the tribes of which the child may be a member or eligible for membership. (25 U.S.C. § 1912(a), italics added; Welf. & Inst. Code, § 224.2, subd. (a)(3).) The notices shall inform the tribes of their right to intervene in the dependency proceedings and the right to have the proceedings transferred to the tribal court. (25 U.S.C. § 1912 (a); Welf. & Inst. Code, § 224.2, subd. (a)(5)(G).)

The notice must contain sufficient information to help the tribes ascertain the child's heritage. (Welf. & Inst. Code, § 224.2, subd. (a)(5); In re Louis S. (2004) 117 Cal.App.4th 622, 630.) For example, the notice must include all of the following information, if known: the child's name, birthdate and birth place; the names of the biological parents, grandparents and great-grandparents, including maiden, married and former names and aliases as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and other identifying information. (Welf. & Inst. Code, § 224.2, subd. (a)(5); In re N.G. (2018) 27 Cal.App.5th 474, 480.) The court and the department have an affirmative and continuing duty to make inquiries into the child's heritage, such that if either receives additional information not included in the original notices, the department must provide that information to the tribes in an updated notice. (Welf. & Inst. Code, § 224.3, subd. (a); Cal. Rules of Court, rule 5.481 (a); In re K.R. (2018) 20 Cal.App.5th 701, 705-706.)

When ICWA's notice requirements have been triggered, a juvenile court may not terminate parental rights unless it finds the department has given proper notice to the tribes and ICWA does not apply. (In re W.B. (2012) 55 Cal.4th 30, 60.) We review such a finding for substantial evidence. (In re E.W. (2009) 170 Cal.App.4th 396, 404.) The remedy for failure to comply with ICWA's notice provisions is to reverse the order (or orders) terminating parental rights and remand for compliance. (E.g., In re Jonathan D. (2001) 92 Cal.App.4th 105, 111.) Claims of ICWA noncompliance cannot be forfeited for failure to raise the issue with the juvenile court, and non-Indian parents have standing to assert ICWA violations on appeal. (In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1166.)

Here, the record indicates P.S. may be eligible for membership in the Miwok tribe. At the detention hearing in July 2018, both parents submitted parental notification of Indian status forms (ICWA-020) indicating they may have Indian ancestry. Mother told the court she believed she might have "Mewok" or "Miwok" ancestry through her paternal grandfather. Father also believed he might have Indian ancestry with an unknown tribe through his mother's side. He provided the first and last names of his mother and grandmother. CFS compiled family information during interviews with the parents and other family members and sent notices on three separate occasions (July 2018, September 2018, and May 2019) to a long list of Miwok tribes. This list included every federally recognized tribe of Miwok Indians except, unfortunately, for one—the Middletown Rancheria tribe. After the notices went out, the tribes either did not respond or sent letters stating they did not consider P.S. an Indian Child. CFS admits its error in leaving out the Middletown Rancheria tribe and agrees remand is appropriate so it can send notice to that tribe.

Next, father argues, and CFS concedes, that they did not conduct a sufficient investigation of P.S.'s possible Indian heritage. For example, although the social worker interviewed both the maternal and paternal grandfathers, the third and final set of notices still failed to contain presumably attainable family information, such as the maternal grandfather's address, the maternal great-grandfather's date of birth or address, the paternal grandmother's birthdate, and any information regarding the paternal great-grandparents. As CFS admits, it is highly likely the maternal and paternal grandfathers would know this basic information about themselves, their spouses, and their parents. On remand, CFS shall conduct additional investigation, update the notices, and resend them to all of the Miwok tribes.

Finally, father argues CFS did not file all of the tribal response letters they had received with the court, as they are required to do. (Welf. & Inst. Code, § 224.2, subd. (c).) CFS concedes this deficiency as well, but correctly points out the issue is moot because they will be sending out updated notices on remand and will therefore have another opportunity to comply with this rule.

DISPOSITION

We vacate the orders terminating parental rights and remand to the juvenile court with directions to order compliance with ICWA's notice provisions in a manner consistent with this opinion. If, after proper inquiry and notice, no response is received from a tribe indicating P.S. is an Indian child, the juvenile court shall reinstate all previous findings and orders. If a tribe determines P.S. is an Indian child, or if the juvenile court receives other information that suggests P.S. is an Indian child, the juvenile court must conduct a new Welfare and Institutions Code section 366.26 hearing in conformity with ICWA's provisions.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J. We concur: CODRINGTON

Acting P. J. RAPHAEL

J.


Summaries of

In re P.S.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 10, 2020
No. E073765 (Cal. Ct. App. Jan. 10, 2020)
Case details for

In re P.S.

Case Details

Full title:In re P.S., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 10, 2020

Citations

No. E073765 (Cal. Ct. App. Jan. 10, 2020)