Opinion
E069749
04-26-2018
In re N.R., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.R., Defendant and Appellant.
Jamie A. Moran, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J267041) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Reversed with directions. Jamie A. Moran, 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.
The juvenile court terminated defendant and appellant, L.R.'s (Father), parental rights as to N.R. (Minor), born in August 2016. On appeal, Father contends the court erred in finding the Indian Child Welfare Act (ICWA) (25 U.S.C.A. § 1901 et seq.) did not apply. We conditionally reverse the judgment for a limited remand.
I. FACTS AND PROCEDURAL HISTORY
On August 26, 2016, a social worker with plaintiff and respondent, San Bernardino County Children and Family Services (CFS), received an immediate response referral from the hospital where D.B. (Mother) had given birth to Minor. Both Mother and Minor tested positive for methamphetamine. Mother admitted using methamphetamine the day before her admission to the hospital, during her pregnancy, and prior to her pregnancy. Mother initially reported being homeless, but later said she could stay with the maternal grandmother.
Mother is not a party to the appeal.
Father said he knew Mother and Minor had tested positive for methamphetamine. Father had an extensive criminal history, including a conviction for lewd and lascivious behavior with a minor under the age of 14. (Pen. Code, § 288, subd. (a).) Father had been arrested for a parole violation for which he was serving a 75-day term of incarceration.
On August 30, 2016, the social worker filed a juvenile dependency petition alleging that Mother had substance abuse issues (B-1) and did not have appropriate living arrangements for Minor (B-3). As to Father, the petition alleged he negligently failed to adequately supervise Minor (B-2), had an extensive criminal history (B-4), and had a criminal history which placed Minor at substantial risk of sexual abuse (D-5).
Father filed a parental notification of Indian status asserting that he was or might be a member or eligible for membership in an unknown, federally recognized Indian tribe; may have unknown Indian ancestry; and that Minor might be a member or eligible for membership in an unknown, federally recognized Indian tribe through the paternal great-grandmother. Mother filed a parental notification of Indian status reflecting she might have Sioux ancestry.
At the detention hearing on August 31, 2016, the court asked Father about his Indian heritage; Father said he believed he had Indian ancestry through his paternal great-grandmother, but neither knew her name nor to which tribe she may have been affiliated. Mother informed the court she believed she might have Sioux heritage through her father. The court detained Minor.
In the jurisdictional and dispositional report filed on September 19, 2016, the social worker recommended that Mother receive reunification services, but that Father be denied reunification services pursuant to Welfare and Institutions Code section 361.5, subdivisions (e)(1) (incarceration), (b)(12) (conviction for a violent felony), and (b)(16) (registered sex offender). The report reflected that Father "stated that he may have ICWA for his family, the SIOUX tribe."
All further statutory references are to the Welfare and Institutions Code.
On October 21, 2016, the social worker filed an ICWA declaration of due diligence as to Father reflecting potential Sioux heritage. As to Mother, it shows no known information regarding tribal affiliation and lists as "unknown" any information about the maternal grandfather. The social worker filed an information for the court on the same day, reflecting Mother had been referred to an inpatient drug treatment program on October 5, 2016, but stayed for less than 24 hours. Mother missed four scheduled weekly visits with Minor. A December 5, 2016, ICWA declaration of due diligence reflected the social worker had yet to receive any confirmation regarding tribal affiliation.
At the jurisdiction and disposition hearing held on December 6, 2016, the court found the (b) and (d) allegations true, but dismissed the (g) allegation. The court removed Minor from the parents' custody, ordered reunification services for Mother, and denied reunification services as to Father pursuant to section 361.5, subdivision (b)(12) and (b)(16).
The social worker had filed a first amended juvenile dependency petition on September 20, 2016, adding an allegation that Father was incarcerated and unable to care for Minor (G-6). --------
On May 22, 2017, the social worker filed a final ICWA declaration of due diligence reflecting there had been no affirmative response within 65 days of receipt of notice; thus, the social worker recommended that the court find ICWA did not apply. In the status review report filed on May 24, 2017, the social worker recommended that the court terminate Mother's reunification services and set the section 366.26 hearing.
Mother had not started any of the services in her case plan. She failed to attend intake appointments for parenting and counseling to which she had been referred on December 7, 2016, January 19, 2017, and February 19, 2017. Mother failed to make appointments to schedule intake for inpatient drug treatment when provided referrals on January 4 and 9, and February 16, 2017. She missed 10 randomly scheduled drug tests. Mother failed to show for numerous scheduled visits with Minor.
Neither parent appeared at the hearing on June 6, 2017. The juvenile court terminated Mother's reunification services and set the section 366.26 hearing. The next day, the court issued an order finding ICWA did not apply. Father filed a notice of intent to file a writ petition. On July 24, 2017, we dismissed the case for failure to timely file a motion for relief from default for having failed to timely file a writ petition.
The social worker filed section 366.26 reports on September 26 and November 30, 2017, recommending the court terminate the parents' parental rights and set a permanent plan of adoption. Neither parent appeared at the hearing on December 4, 2017. The juvenile court found Minor adoptable and ordered the parents' parental rights terminated.
II. DISCUSSION
On appeal, Father contends insufficient evidence supports the juvenile court's finding that ICWA did not apply because the social worker failed to send notice in Mother's name to the Sioux tribes and failed to inquire or provide information regarding the maternal grandfather, the individual through whom Mother believed she had Sioux heritage. CFS concedes the issue, specifically noting that the matter should be remanded so that an ICWA notice may be sent which identifies Mother "as the parent claiming Sioux heritage and contain any additional information that can be obtained . . . ." We agree.
Notice of the proceedings is required to be sent whenever it is known or there is reason to know that an Indian child is involved. (25 U.S.C.A. § 1912(a); Welf. & Inst. Code, § 224.2, subd. (a); see In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) Notice serves a twofold purpose: "(1) it enables the tribe to investigate and determine whether the minor is an Indian child; and (2) it advises the tribe of the pending proceedings and its right to intervene or assume tribal jurisdiction." (In re Desiree F., supra, at p. 470.)
In addition to the child's name, and date and place of birth, if known, the notice is required to include the "name of the Indian tribe in which the child is a member or may be eligible for membership, if known." (§ 224.2, subd. (a)(5)(B).) The notice is also required to contain "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, . . . as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (§ 224.2, subd. (a)(5)(C).) "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.) "ICWA notice requirements are strictly construed and must contain enough information to be meaningful. [Citation.]" (In re J.M. (2012) 206 Cal.App.4th 375, 380.)
Juvenile courts and child protective agencies have "'an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child.'" (In re H.B. (2008) 161 Cal.App.4th 115, 121; § 224.3; Cal. Rules of Court, rule 5.481.) As soon as practicable, the social worker is required to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. (§ 224.3, subd. (c); In re Shane G. (2008) 166 Cal.App.4th 1532, 1539; Cal. Rules of Court, rule 5.481(a)(4).) "'The [trial] court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. [Citation]. We review the trial court's findings for substantial evidence. [Citation.]' [Citation.]" (In re Christian P. (2012) 208 Cal.App.4th 437, 451.)
Here, the social worker apparently confused Mother's asserted Sioux heritage as that being claimed by Father. Mother filed a parental notification of Indian status specifically indicating she might have Sioux heritage. She informed the juvenile court she might have Sioux heritage through her father. Father claimed potential Indian heritage from an unspecified tribe through his great-grandmother; however, the social worker mistakenly indicated in one of her reports that Father stated he might have Indian heritage through a Sioux tribe. The ICWA declaration of due diligence reflects the social worker sent notification to the Sioux tribes in Father's name. The notice failed to indicate any information regarding Mother's father, the individual through whom Mother claimed Sioux heritage. The notice does not even include the maternal father's name and failed to reflect that it was Mother, not Father, who claimed Sioux heritage. Thus, insufficient evidence supports the juvenile court's finding that ICWA did not apply because the tribal notification was inadequate as to Mother.
III. DISPOSITION
The orders terminating parental rights and ordering adoption as the permanent plan for Minor are conditionally reversed and a limited remand is ordered as follows: Upon remand, the juvenile court shall direct CFS to make further inquiries regarding Minor's maternal Indian ancestry, if any, pursuant to section 224.2 and send ICWA notices containing any additional information obtained to all relevant tribes and the Bureau of Indian Affairs in accordance with ICWA and California law. CFS shall thereafter file certified mail, return receipts for the ICWA notices, together with any responses received. If no responses are received, CFS shall so inform the juvenile court.
The juvenile court shall determine whether the ICWA notices and the duty of inquiry requirements have been satisfied and whether Minor is an Indian child on his maternal side. If the juvenile court finds Minor is not an Indian child on his maternal side, it shall reinstate the orders terminating parental rights and placing Minor for adoption. If the court finds Minor is an Indian child on his maternal side, it shall conduct all further proceedings in compliance with ICWA and related California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.