Opinion
E073373
12-19-2019
In re C.M., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.S., Defendant and Appellant.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J275537) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Reversed and remanded with directions. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
K.S. (Mother) appeals from the juvenile court's order terminating parental rights to her son, C.M. She charges the court with errors under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law, and she argues that we must conditionally reverse and remand for proper ICWA inquiry and notice. We conclude that, at a minimum, further inquiry is required. We therefore conditionally reverse the order terminating parental rights.
In its respondent's brief, CFS states that it "would agree with the issuance of an immediate remittitur" if we conditionally reverse and remand for ICWA compliance. Immediate issuance of the remittitur requires the stipulation of both parties (Cal. Rules of Court, rule 8.272(c)(1)), and Mother does not address the issue in her reply brief. We agree that immediate issuance of the remittitur would be appropriate if Mother were to agree to it.
BACKGROUND
I. Overview of C.M.'s Dependency
San Bernardino County Children and Family Services (CFS) responded to a March 2018 referral alleging that Mother had given birth to C.M. while she had pending dependency cases involving C.M.'s 11 siblings and half siblings. (The siblings' cases began in November 2016.) The court initially permitted C.M. to remain in Mother's custody, but after CFS filed a second amended petition in August 2018, the court detained C.M. from Mother. In December 2018, the court found numerous allegations of the second amended petition to be true. The court sustained allegations under Welfare and Institutions Code section 300, subdivision (b) (failure to protect), subdivision (d) (substantial risk of sexual abuse), and subdivision (j) (abuse of sibling). The sustained allegations involved both Mother and J.M. (Father), who is not a party to this appeal. The court removed C.M. from the parents, denied them reunification services, and set a hearing to select a permanent plan (§ 366.26). At the section 366.26 hearing in July 2019, the court terminated parental rights and selected adoption as C.M.'s permanent plan.
Further undesignated statutory references are to the Welfare and Institutions Code.
II. ICWA-related Background
At the initial detention hearing, Mother said that she did not have Indian ancestry. Mother filed Judicial Council form ICWA-020 (Parental Notification of Indian Status) indicating the same. There was some indication, however, that Father might have Indian ancestry. CFS attached form ICWA-010(A) (Indian Child Inquiry Attachment) to the original petition, the first amended petition, and the second amended petition. In each case, the form stated that Father "may" have Sioux ancestry, but the family had no additional information. The form indicated that the social worker had spoken with Father via telephone in April 2018.
Consistent with this information, CFS's reports from April to mid-August 2018 stated that ICWA does or may apply and identified Sioux as the pertinent tribe. The reports recommended that the court either order the parents to complete form ICWA-020 or find that C.M. "may" come under the provisions of ICWA. At the hearings, while the court stated generally that it was adopting CFS's recommended findings and orders, the court made no specific ICWA-related findings or orders on the record.
In late August 2018, for the first time, CFS recommended that the court find C.M. "does not come under the provisions of" ICWA. CFS made this recommendation in an addendum report prepared for the jurisdiction and disposition hearing on the second amended petition. At that hearing, the court generally adopted CFS's recommended findings and orders, but it did not make an oral ICWA finding on the record. The minute order from that hearing stated that the court found ICWA did not apply. After that, the section 366.26 report and an interim report stated that ICWA did not apply.
The record contains no sign that Father ever completed form ICWA-020. He appeared at several hearings in this case, and neither the court nor CFS inquired about his Indian ancestry on the record.
DISCUSSION
ICWA requires notice to Indian tribes "in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights 'where the court [or social worker] knows or has reason to know that an Indian child is involved.'" (In re Isaiah W. (2016 ) 1 Cal.5th 1, 8, quoting 25 U.S.C. § 1912(a); accord § 224.3, subd. (a).) The tribe to which the child belongs, or in which the child may be eligible for membership, must receive "notice of the pending proceedings and its right to intervene." (In re H.B. (2008) 161 Cal.App.4th 115, 120; accord §§ 224.2, subd. (f), 224.3, subd. (a)(3)(A).)
The court and the county welfare department have an "affirmative and continuing duty to inquire" whether a child in dependency proceedings "is or may be an Indian child." (§ 224.2, subd. (a).) If the court or social worker has reason to believe that an Indian child is involved, the social worker must, as soon as practicable, interview the parents and extended family members to gather the information required for the ICWA notice. (§§ 224.2, subd. (e)(1), 224.3, subd. (a)(5).)
ICWA notices "shall include," among other things, the identifying information for the child's biological parents, grandparents, and great grandparents, to the extent known. (§ 224.3, subd. (a)(5)(C).) The notices should "provide the Indian tribe with all available information about the child's ancestors, especially the ones with the alleged Indian heritage." (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
The county welfare department must send notice of all hearings until the court determines that ICWA does not apply. (§§ 224.2, subd. (i)(1), 224.3, subd. (b).) Before finding ICWA inapplicable, the court must find that the CFS conducted a "proper and adequate further inquiry" and exercised "due diligence to identify and work with" all of the pertinent tribes. (§ 224.2, subds. (i)(2), (g).) The court "must have sufficient facts, as established by the [CFS], about the claims of the parents, the extent of the inquiry, the results of the inquiry, the notice provided any tribes and the responses of the tribes to the notices given. Without these facts, the juvenile court is unable to find, explicitly or implicitly, whether" ICWA applies. (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
Even if the court has determined that ICWA does not apply, if the court or social worker receives new information that was required to be in the ICWA notice, the social worker shall provide the new information to the pertinent tribes. (§ 224.2, subd. (j).) Failure to comply with the ICWA notice provisions generally constitutes prejudicial error requiring a limited remand. (In re B.H. (2015) 241 Cal.App.4th 603, 608-609; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
This case requires a limited remand for ICWA compliance. CFS and the court knew that Father claimed possible Sioux ancestry. Yet the record reveals no efforts by CFS to contact Father's extended family members, gather the information required for ICWA notices, and send notice to the pertinent tribes. Similarly, the court did not direct CFS to inquire further or send notice to the tribes. Moreover, the minute order finding that ICWA did not apply—presumably based on the court's general adoption of CFS's recommendations—was not supported by substantial evidence. (§ 224.2, subd. (i)(2) [ICWA findings "subject to reversal based on sufficiency of the evidence"]; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467 [reviewing ICWA findings for substantial evidence].) The court had no facts on which to base an ICWA finding, in the absence of information about CFS's investigation and notice to the tribes. (In re L.S., supra, 230 Cal.App.4th at p. 1198.)
CFS concedes that it did not comply with the ICWA notice requirements. But it argues that Mother is collaterally estopped from raising the issue, or that the ICWA error was harmless. Father and Mother share two other children besides C.M. CFS relies on the Sade C. brief filed by Mother's counsel in the siblings' case (In re M.W. et al. (May 20, 2019, E072159)), in which counsel determined that there were no arguable issues on appeal. CFS quotes portions of the brief stating that it noticed the Sioux tribes and that the court found ICWA did not apply to C.M.'s siblings in June 2017 and May 2018. CFS bases its collateral estoppel and harmless error arguments on the ICWA findings as to C.M.'s siblings.
In re Sade C. (1996) 13 Cal.4th 952.
CFS's arguments lack merit. First, the record of the siblings' case is not before us, and nothing in the record of C.M.'s case shows a finding that ICWA does not apply to his siblings. Second, even assuming that the siblings' record were before us, and assuming that the quoted portions of Mother's brief accurately represent that record, collateral estoppel would not apply. The doctrine "precludes a party from relitigating in a second proceeding the matters litigated and determined in a prior proceeding." (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201, fn. 1.) For the doctrine to apply, "the issue necessarily decided in the previous proceeding" must be "identical to the one that is sought to be relitigated." (Ibid.) The issues are not identical here—whether CFS conducted a diligent investigation and gave proper notice in the siblings' case and whether CFS did so in this case are separate questions. The answers must be based on the record of CFS's efforts in each case.
Third, the claimed finding in the siblings' case does not mean that the ICWA noncompliance here was necessarily harmless. CFS contends that Father provided no new information in C.M.'s case, and so even if we were to remand, it would have no new information to provide the Sioux tribes, and the result would be the same as in the siblings' case. But "[i]t is important to not lose sight of the fact that ICWA notices in separate dependency cases are not fungible evidence—even when the separate cases involve [children] who share the same parent with Indian heritage." (In re Robert A. (2007) 147 Cal.App.4th 982, 990.) We do not know whether C.M.'s ICWA notices would have any new information because CFS did not follow up with Father or his extended family members. Likewise, we do not know whether the Sioux tribes might have changed their membership criteria since the time they received the notices relating to C.M.'s siblings. We decline to speculate about what the result would have been and therefore cannot say that the ICWA errors were harmless. (In re N.G. (2018) 27 Cal.App.5th 474, 485 [concluding that ICWA error was prejudicial and observing that "on a deficient record such as this one, we simply cannot know whether [the CFS] would have discovered information sufficient to enable any of the previously noticed tribes to determine whether [the minor] is an Indian child"].)
On remand, the court shall ensure that CFS further investigates Father's claim of Sioux ancestry. (§ 224.2, subds. (a), (e).) The court must then decide whether the information amounts to "reason to know" that C.M. is an Indian child, thereby triggering the notice requirement. (25 U.S.C. § 1912(a); § 224.3, subds. (a), (b).) In this regard, we note that the Legislature has recently amended the definition of "reason to know." (Assem. Bill No. 3176 (2017-2018 Reg. Sess.) § 5.) Before January 1, 2019, a "reason to know" could be based on "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).) Effective January 1, 2019, the mere suggestion of eligibility for membership as to the child—or the mere suggestion of membership as to the parents, grandparents, or great-grandparents—no longer provides a reason to know that the court is dealing with an Indian child. (§ 224.2, subd. (d).) Now, the amended statute declares that there is reason to know an Indian child is involved if, for instance, "[a] person having an interest in the child . . . informs the court that the child is an Indian child." (§ 224.2, subd. (d)(1), italics added.) The changes to the statute conform the definition of "reason to know" to the definition in federal regulations promulgated in 2016. (25 C.F.R. § 23.107(c); In re Breanna S. (2017) 8 Cal.App.5th 636, 650, fn. 7; Assem. Com. on Human Services, Analysis of Assem. Bill No. 3176 (2017-2018 Reg. Sess.) Aug. 28, 2018, p. 8.) The court should consider the new definition of "reason to know" when determining whether the notice requirement is triggered.
The amended statute describes six circumstances providing reason to know an Indian child is involved: "(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family informs the court that the child is an Indian child. [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village. [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child. [¶] (4) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child. [¶] (5) The court is informed that the child is or has been a ward of a tribal court. [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d).)
We recognize that Father's vague suggestion of Sioux ancestry might be merely a ploy to complicate and delay these proceedings, and "[w]e are sympathetic to the proposition that further delay in finality of this matter is detrimental to the child." (In re B.H. (2015) 241 Cal.App.4th 603, 607.) At the same time, we cannot ignore the duty of inquiry under ICWA, which is well settled and clear. We must remand for the court and CFS to fulfill their "affirmative and continuing duty" of inquiry (§ 224.2, subd. (a)) and for CFS to notice the pertinent tribes, if required.
DISPOSITION
The order terminating parental rights is conditionally reversed. On remand, the juvenile court shall (1) direct CFS to further investigate Father's claim of Sioux ancestry and (2) decide whether the inquiry reveals reason to know that C.M. is an Indian child. If the court determines that there is reason to know C.M. is an Indian child, the court shall direct CFS to send notice to the pertinent tribes. After CFS updates the court on its inquiry and responses from the tribes, the court shall determine whether ICWA applies to C.M. If the court determines that ICWA does not apply—either because CFS's inquiry reveals no reason to know that C.M. is an Indian child or because the tribes' responses show that C.M. is not an Indian child—the court shall reinstate the order terminating parental rights. If the court determines that ICWA applies, it shall proceed in conformity with ICWA and related California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: CODRINGTON
Acting P. J. RAPHAEL
J.