Opinion
E072329
09-10-2019
In re A.H., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.F. et al., Defendants and Appellants.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant S.F. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant D.H. Michelle D. Blakemore, County Counsel, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J272135) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed in part; reversed in part and remanded with directions. Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant S.F. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant D.H. Michelle D. Blakemore, County Counsel, Jamila Bayati, Deputy County Counsel for Plaintiff and Respondent.
S.F. (Mother) and D.H. (Father; collectively Parents) appeal the termination of their parental rights to A.H. (Minor) at a Welfare and Institutions Code section 366.26 hearing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother, joined by Father, contends the juvenile court erred by failing to apply the beneficial parent/child relationship exception of section 366.26, subdivision (c)(1)(B)(i), because Mother maintained consistent and regular contact with Minor, and Minor would benefit from maintaining her relationship with Mother. The termination of parental rights should be reversed. Parents also contend that the juvenile court and San Bernardino County Children and Family Services (Department) failed to comply with their duty of inquiry and notice under the Indian Child Welfare Act (ICWA). Remand to ensure compliance with ICWA is necessary.
FACTUAL AND PROCEDURAL HISTORY
We will address the facts regarding ICWA notice in the analysis of that issue.
A. DETENTION PETITION
On August 3, 2017, the Department filed a section 300 petition (petition) against Parents. Minor, who was two years old, had been detained from Parents and placed with the maternal grandfather (MGF) and maternal step-grandmother (MSG; collectively, Grandparents). It was alleged under section 300, subdivision (b), that Mother failed to protect Minor by leaving her in the care of Father with whom she knew Minor would be at risk of harm if left in his custody. It was alleged under section 300, subdivision (g), that Father was unable to provide care for Minor due to his incarceration. It was alleged against Parents pursuant to section 300, subdivision (j), that Minor's sibling had been abused and there was a substantial risk that Minor may also be abused.
According to the detention report, Minor, along with her four sisters, Al.F., K.F., As.F. and R.G. (collectively, Sisters), were being detained from Mother. Sisters were placed with their fathers. The father of Al.F., K.F. and As.F. brought them to the Yucaipa Police Station on July 21, 2017, because the girls reported that Father had been sexually abusing them. Al.F. disclosed to the police and the Department that Father had walked around naked in front of her and the other children. He tried to touch her breast and commented how big her breasts were getting. He also removed his clothes in front of her. She initially stated she did not tell Mother.
Sisters were not Father's children and were placed in the care of their fathers. Sisters are not subjects of this appeal; they will only briefly be discussed if relevant to the termination of the parental rights of Parents for Minor.
K.F. disclosed to the police and the Department that Father had put his hand down her shirt and touched her breast skin to skin. He also put his hand down her pants and touched her underwear. K.F. was able to accurately describe Father's genitals. K.F. had told Mother what had happened just prior to telling her father. She did not know if Mother believed her.
R.G. reported that Father walked around the house in his underwear and squeezed her thigh. She did not trust Father. She reported that Father had thrown her against the television. Mother was present and got mad at Father. She also witnessed Father try to run over Mother with Mother's car.
As.F. told the Department that Father walked around the house naked. He did not close the bathroom door when he showered or used the bathroom. Father always yelled at her sisters and made them cry. She had seen Father hold R.G.'s arms behind her and hold her down.
Father was arrested on July 25, 2017. He confessed to accusations made by the girls. Mother denied any knowledge of the abuse, but K.F. had told Mother that Father had exposed himself to her. Mother told the arresting officers that the children were lying and tried to protect Father.
A social worker went to Mother's house on July 31, 2017. There were clothes and boxes in the hallway and Mother reported she was moving. Minor was in the house. Mother explained that she spoke with Al.F. on July 17, 2017. Al.F. had told her about the incident in the shower when Father exposed himself. Mother explained to the social worker that he was late to work and had to rush to get in the shower. He accidently exposed himself to Al.F. Mother also spoke with K.F. K.F. told her that Father only touched the "rim of her shirt and the rim of her pants and that was it." Mother insisted K.F. told her it was okay if Father stayed in the house with them. Minor was detained.
After Father was arrested, Mother asked K.F. if Father had done anything else to her and she denied any other abuse. Mother insisted that K.F. would not lie to her. Mother was asked if she knew that Father had a prior conviction of unlawful intercourse with a minor. She admitted she was aware of the conviction but that it had been "a long time ago." Mother denied she had seen Father walk around the house naked. Mother had twice visited Father in jail and brought Minor. She reluctantly agreed to no longer speak with Father.
The detention hearing for Minor was conducted on August 7, 2017; Parents were present with their respective counsel. Minor would remain detained with Grandparents.
B. JURISDICTION/DISPOSITION REPORT AND HEARING
A jurisdiction/disposition report was filed on August 23, 2017, with the recommendation of six-months reunification services to Mother and deny services to Father.
K.F. reported to the Department that she was in charge of Minor when Mother would go to work. Parents frequently argued over money. Father had pushed K.F. into a wall; K.F. told Mother and Mother got mad at Father. R.G. was interviewed by a Department social worker on August 9, 2017. She felt safe since Father had been arrested because he could no longer hit her or hold her down.
As.F. stated that Father would yell at them and call them "dumb and stupid." Parents fought in front of them. Father smoked marijuana in the home almost daily and the children would all have to go outside. Al.F. stated that she told Mother about the sexual abuse by Father but Mother did not believe her. This made her feel as though Mother did not care about her.
Mother was interviewed on August 14, 2017. Although Mother was aware of Father's criminal history, she did not think she was harming Minor by leaving her with Father. Mother explained that Father had been convicted of unlawful sexual intercourse with a minor when he was 18 years old and was dating a 17 year old. It did not concern Mother. She did not know he walked around the house naked while she was at work. None of the children had told her they had been sexually abused by Father until he was arrested. Mother had terminated her relationship with Father; she had no contact with him since July 26, 2017.
Father was interviewed on August 21, 2017, in custody. He denied that he walked around the home naked. Al.F. had "it in for him." The allegations of sexual abuse were false. The Department included with the jurisdiction/disposition report a copy of the police report in which Father admitted the allegations. He claimed his prior conviction was the result of him being 18 years old and having sex with a 17 year old. The girl claimed that he raped her.
A visit between Mother and all of the children was held on August 14, 2017. Mother and Sisters took turns holding Minor. Mother had been referred to individual counseling, and had started parenting and domestic violence classes.
K.F. and Al.F. were interviewed in connection with Father's criminal case. K.F. was interviewed on October 31, 2017. K.F. reported that Father pushed and shoved her and As.F. while Mother was at work. Father put his hand around her throat and pushed her against the wall. K.F. pushed Father away. When she told Mother about the incident, she told K.F. " 'You don't push adults.' " K.F. had observed Father "smack" Minor's hand. She again stated that Father walked around the house naked and that when she told her Mother, Mother responded that K.F. should not be awake. For the first time, she stated that Father grabbed her wrist and tried to put her hand on his "dick" while he was wearing boxers.
Al.F. again stated that Father tried to put his hands down her pants and touch her "boobs." She told Mother and she responded, " 'Joke around with him.' " While she was taking a shower, Father entered the bathroom and pulled down his underwear. When Al.F. told Mother, she said "He . . . would never do that, I know him."
The Department provided an update on January 30, 2018. Mother was not benefitting from her services as she continued to display poor judgment. She had begun a new relationship with a man who was incarcerated. Her new boyfriend had a child endangerment charge on his record. Mother was advised that this could impact her ability to reunify with her children but she responded that the Department was judging her choice of relationships.
The jurisdiction/disposition hearing was conducted on January 30, 2018. Mother submitted on the allegations of the petition based on the reports from the Department. The juvenile court found the allegations true under section 300, subdivisions (b), (g) and (j) for Parents, although the allegations were amended to include that Mother became aware of the sexual abuse on July 31, 2017. Father was denied reunification services. Mother was granted six months of reunification services. Sisters were placed with their fathers and their cases were dismissed.
C. STATUS REVIEW REPORTS AND HEARING
A status review report was filed on August 1, 2018, recommending termination of Mother's reunification services and setting a section 366.26 hearing.
There had been a noticeable change in Minor since her removal from Mother and placement with Grandparents. Minor had been shy and wary of the social worker, Rhonda Cufone, at the beginning of Cufone's assignment to the case. Minor had limited language skills. However, she had developed into a talkative and engaging child since being with Grandparents. Grandparents were willing to adopt Minor.
The Department acknowledged that Mother had been engaging in her court ordered services; however, her counseling reports showed she had not benefitted from her services. The Department was concerned that Mother continued to engage in relationships with men who presented a risk to Minor. Mother was involved with Donald, who had been incarcerated when she met him but was released in September 2017. Cufone found photographs on Facebook of the two together and it appeared they were in a romantic relationship. Cufone inquired of Mother but Mother adamantly denied that they were in a romantic relationship. Cufone expressed concern about Donald's criminal record; Mother stated she was aware of his record.
Maria Ciaglo provided counseling services to Mother. On November 29, 2017, she reported that Mother had made progress in her therapy. She moved from denial of the sexual abuse, to minimization of the abuse, to acceptance. Based on Mother's self- reports, she was using what she learned in therapy to improve her relationships with her children. Ciaglo did express concern in her report that the duration of the treatment was brief and the issues were complicated. The prognosis was uncertain based on the short time for treatment and the initial denial and minimization. It was too soon to be certain if the change in her understanding was permanent or temporary.
Cufone contacted Ciaglo on November 29, 2017, and expressed concern to the therapist regarding Mother's relationship with Donald. The therapist agreed to discuss the issue with Mother and eight more sessions were authorized.
Ciaglo submitted a second report on February 16, 2018. Six sessions were conducted with Mother to work on increasing her protective capacity and distinguishing between healthy and unhealthy relationships. Mother reported she had taken steps to find out more about Donald. She would not introduce him to her children until he could show her he had left his lifestyle behind. Mother self-reported that she had gained insight into herself and had a greater understanding that she had a responsibility to provide a safe environment for her children. However, Ciaglo reported that Mother's prognosis remained uncertain. No further sessions were requested as "therapeutic goals have been addressed to the best of [Mother's] ability at this time."
Cufone contacted Ciaglo on January 31, 2018, and Ciaglo had concerns about Mother's judgment and relationships. During sessions, Mother was vague about Donald's background. Cufone stated that it appeared Mother did not "get" the concerns the Department had about her relationship with him. Ciaglo responded, "I think she gets it but she is not willing to do anything about it." Ciaglo had discussed the issue with Mother numerous times and did not think that further sessions would be helpful, stating it would be like "beating a dead horse." Mother was referred to a different counselor.
Mother requested unsupervised visits with Minor. Mother was advised by Cufone that she would not be granted unsupervised visits. Mother became angry and asked for a new social worker. Cufone's supervisor advised Mother that the Department was concerned about her relationship with Donald. Mother told the supervisor she should be able to decide who to introduce to Minor. Mother then asked to speak to a manager at the Department; she told the manager that she and Donald were only friends and he was not a danger to Minor, despite Donald being arrested 18 times.
On June 19, 2018, a progress report was received from Mother's second therapist, Candy Howard. Howard indicated that progress was slow. Mother was insistent she did not know Father was abusing the girls and minimized the seriousness. Mother was concrete in her thinking and wanted to do things her way. Mother maintained a "friendship" with Donald and planned on continuing her relationship with Donald. Howard did not recommended further therapy. Howard stated, "At this time, the client has had numerous individual sessions, of which she has been defensive and resistive to developing a better understanding of herself and the choices she makes in terms of relationships." Howard had "tried everything" with Mother but Mother did not appear to have the ability to develop a lot of insight.
Mother was given the reports from both therapists. Mother believed there was nothing negative in the reports.
Cufone indicated it had been reported that Mother was driven to the visits with Minor by Donald and that she spent a significant amount of time with him. It was concerning that she did not want to end the relationship with Donald. Mother continued to minimize the sexual abuse committed by Father. Mother had not demonstrated through her behavior that she had any insight into the problem with her relationships.
Mother had successfully completed domestic violence and parenting classes. Mother was consistent in her visitation with Minor. Mother missed only three visits and two of those were due to Mother not having transportation. Mother had whispered to Minor at one visit that supervised visits would be ending, which was not true. Another time she arrived with Donald and had a puppy in the car. She wanted to show it to Minor but MSG, who was supervising the visit, was concerned Minor would believe she was returning home. Mother "snapped" at MSG.
An update was filed on September 21, 2018. Mother had requested further therapy and the Department was in the process of finding her another therapist. In addition, it was reported that Mother showed up with Sisters to a visit on July 26, 2018, covered in bruises on her arms and legs.
The contested status review hearing was conducted on September 24, 2018. The Department submitted on the reports. Mother testified. Mother had completed her domestic violence and parenting programs. Based on her counseling, she realized she should have looked into Father's background before bringing him into her home. When the sessions with Ciaglo were over, Ciaglo told Mother she was done and did not need further therapy. She did not know that Ciaglo believed she was not getting a benefit from the therapy. She disagreed; she understood what she had done wrong in the past. She felt that both with Ciaglo and Hardy she was engaged and learned how to protect her children. She would not let anyone around her children that she had not "fully referenced."
Mother stated that Donald was just a friend and was helping her. She saw him "seldomly" once she found out about his criminal history. She believed she had done everything that she was asked to do by the Department. Mother would not let anyone around her children until they completed a background check. The bruises on her body were from moving boxes at work. She was not being hurt by someone she was seeing. Mother noted that the Department was criticizing her for her relationships but had given custody to Sisters' two fathers. She believed she was focused on getting her children back. She had completed all of her programs and asked for more counseling. She did not feel that the social worker was responsive to her and was not supportive of her efforts to reunify with Minor.
Mother was not aware that Donald had an arrest for child endangerment but knew he had been arrested 18 times. She claimed to have looked into his charges and none involved children. She was putting limits on him until he could show his past was behind him. If he was able to show that it was in the past, she would let him be around her children. She acknowledged he had recently been back in jail. She had seen him that morning before court. She would only acknowledge that K.F. was sexually abused.
The juvenile court found that the services provided to Mother were reasonable. In fact, the Department gave Mother another therapist after she was unsuccessful with the first therapist. The juvenile court noted it had watched Mother in her testimony and stated, "There is without a doubt some—some inability to make that connection with protectiveness there that I see. I've read it in the reports, but I visualized it when she testified." The juvenile court "felt bad" for Mother because she clearly loved Minor but lacked the ability to take the final step. Her friendship with Donald was troubling. Mother appeared to try to minimize Donald's criminal history. Further, based on her testimony, it appeared that Mother was waiting to introduce Donald to her children and it appeared she may want to pursue a relationship with him. The juvenile court could visualize what the therapists saw when it observed Mother testify. Mother's reunification services were terminated and the matter was set for a section 366.26 hearing.
D. SECTION 366.26 REPORTS AND HEARING
Mother filed a section 388 petition on January 2, 2019, without assistance of counsel. She accused MSG of trying to sabotage her relationship with Minor. Minor had started calling Mother by Mother's first name, and MSG told Minor that Mother was a liar. Mother completed all of her services and was using the skills to become a better mother. She was opposed to the adoption.
She insisted she did not know Father was abusing her children until July 31, 2017, and he was already in custody. She immediately stopped contact with Father when she found out about the abuse. Mother was always protective of her children. She felt that the therapist reports did not accurately reflect who she was as a person. She understood what happened to her daughters and wanted to be there for them. The court denied the section 388 petition without a hearing, finding that the request did not state new evidence; the change did not promote the best interests of Minor; and Mother's statements were conclusory.
The Department filed the section 366.26 report on January 15, 2019, recommending termination of parental rights and a permanent plan of adoption. Adoption would be by Grandparents. Minor was thriving in the home of Grandparents. She had been with them since her initial removal on August 2, 2017. Mother had been consistent with visitation. Minor appeared to enjoy visits with Mother. Mother had whispered to Minor at visits, and convinced MGF to allow her to take Minor to the bathroom alone, but otherwise visits were appropriate. Grandparents consistently set up visits with Minor and her siblings.
The section 366.26 hearing was held on March 13, 2019. Mother was present with counsel; she objected to the termination of her parental rights. She had never missed a visit with Minor and Minor enjoyed the visits. Mother felt that she and Minor had a strong bond. The juvenile court had read the reports and found that there was not a strong bond between Mother and Minor. Further, the benefits of adoption outweighed any benefit of maintaining a relationship with Mother. The juvenile court terminated the parental rights of Parents and freed Minor for adoption.
DISCUSSION
A. PARENTAL BOND EXCEPTION TO TERMINATION OF PARENTAL RIGHTS
Mother, joined by Father, claims she has a significant bond with Minor and that the juvenile court erred by failing to apply the parental bond exception of section 366.26, subdivision (c)(1)(B)(i).
" 'The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time.' [Citation.] When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family.' " (In re Celine R. (2003) 31 Cal.4th 45, 52.) After reunification services are denied or terminated, " 'the focus shifts to the needs of the child for permanency and stability.' " (Ibid.) Adoption is preferred once reunification services have been terminated and, "adoption should be ordered unless exceptional circumstances exist." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Under section 366.26, subdivision (c)(1), the juvenile court must terminate parental rights if it finds "by clear and convincing evidence" it is likely the child will be adopted. There are several statutory exceptions. Under section 366.26, subdivision (c)(1)(B)(i), one such exception exists where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." A beneficial relationship is established if it " 'promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.' " (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.)
The parent has the burden of proving the statutory exception applies and to produce the evidence in support of the exception. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314; see also In re K.P. (2012) 203 Cal.App.4th 614, 621.) The parent must show both that a beneficial parental relationship exists and that severing that relationship would result in great harm to the child. (Bailey, at pp. 1314-1315; see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
" 'A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.' " (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
"In reviewing challenges to a trial court's decision as to the applicability of these exceptions, we will employ the substantial evidence or abuse of discretion standards of review depending on the nature of the challenge." (In re J.S. (2017) 10 Cal.App.5th 1071, 1080.) "The first determination—most commonly whether a beneficial parental or sibling relationship exists . . . is, because of its factual nature, properly reviewed for substantial evidence. [Citation.] The second determination in the exception analysis is whether the existence of that relationship or other specified statutory circumstance constitutes 'a compelling reason for determining that termination would be detrimental to the child.'" (In re K.P., supra, 203 Cal.App.4th at p. 622.) Based on the foregoing, the issue of whether a beneficial relationship exists is reviewed for substantial evidence, and the decision of whether that relationship constitutes a compelling reason for termination being detrimental to the child, is reviewed for an abuse of discretion. (In re J.S., at p. 1080.)
The evidence supports that Mother maintained regular supervised visitation with Minor. There were some minor concerns about Mother's behavior during visits but visits were generally positive. Despite the consistent visitation, the juvenile court did not abuse its discretion by finding that it was in Minor's best interests to terminate Mother's parental rights.
Minor was with Mother for the first two years of her life but spent more than a year in the care of Grandparents. When she initially was placed with Grandparents, she was shy and had some verbal delays. However, after being in the care of Grandparents, she became a different child, becoming more verbal and outgoing. The evidence supported that Minor was thriving with Grandparents and that Mother, when she had custody of Minor, did not occupy a parental role in Minor's life.
Further, Mother was unable to protect Sisters from Father's abuse, showing her inability to be an appropriate parental figure. Mother brought Father into her home despite his criminal history, which included unlawful sexual intercourse with a minor. Father was reported to have been inappropriate in the home, walking around naked and being aggressive with Sisters. He was accused of sexually assaulting two of her children. While the allegations in the petition supported that Mother was not aware of the allegations until Father was removed from the home, she allowed him into her home, despite knowledge of his criminal history, and left him alone with her children. Although Mother eventually stopped contact with Father, she then began a relationship with Donald, who was incarcerated when she met him and had a significant criminal history.
Mother completed her services, but her two therapists both stated that Mother had no insight into the problems occasioned by her choice of relationships. Mother refused to stop seeing Donald despite his extensive criminal history, including endangerment of a child. The juvenile court witnessed her testimony in court and confirmed the reports of the therapists. The juvenile court noted several times that Mother did not appear to have any insight as to how her relationship with someone who may put Minor at risk was a problem. There was evident concern that Mother would bring someone into the home who would put Minor at risk of harm. Based on Mother's lack of insight into the real danger her relationships posed to Minor, the juvenile court did not err by finding that termination of the parental-child relationship would not be detrimental to Minor, or that the relationship conferred benefits more significant than the permanency and stability offered by adoption.
Mother relies on In re S.B. (2008) 164 Cal.App.4th 289 to support that the juvenile court should not have terminated her parental rights. In that case, a father was able to continue a significant parent-child relationship first developed while the child was in his custody. He completed every aspect of his case plan and there was evidence to support there was a strong relationship between the father and the child. (Id. at pp. 298-299.)
Here, Mother failed to benefit from her services and did not occupy a parental role in Minor's life. Moreover, another court addressed In re S.B., supra, finding, "[W]e once again emphasize that S.B. is confined to its extraordinary facts. It does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact. . . . [C]ontact between parent and child will always 'confer some incidental benefit to the child,' but that is insufficient to meet the standard.' " (In re C.F. (2011) 193 Cal.App.4th 549, 558-559.) The instant case differs factually from S.B., and it has no relevance to the decision in this case to terminate Mother's parental rights. The juvenile court properly found that the termination of the parental rights of Parents was in Minor's best interests.
B. ICWA NOTICE
Mother, joined by Father, contends the juvenile court erroneously concluded that proper ICWA notice was provided and in finding ICWA did not apply, based on the Department's failure to include the birthplace of a majority of Minor's relatives in the ICWA notices. Parents contend the matter should be remanded to ensure compliance with the directives of ICWA.
1. ADDITIONAL FACTS
Mother completed an ICWA-020 form and checked the box that she "may" have Indian ancestry. At the detention hearing, Mother was asked by the juvenile court what tribe she was part of; she did not know but the Indian ancestry was on both sides of her family. Maternal grandmother's (MGM) name was given to the juvenile court. Mother did not know where MGM had been born and only knew the month and day, not the year. She disclosed MGF's name. She did not know where he was born and did not know the year. Father filed an ICWA-020 form stating that he may have Cherokee ancestry.
On August 24, 2017, the Department filed its first declaration of due diligence. They had served notice and received proofs of service from the Bureau of Indian Affairs (BIA), Eastern Band of Cherokee Indians, Cherokee Nation of Oklahoma and United Keetoowah Band of Cherokee. The United Keetoowah Band of Cherokee had responded that Minor was not an enrolled member and the tribe would not intervene.
The notice listed Minor's name along with the addresses and names of Parents; the former addresses and birthdates for Parents were also provided. No birthplaces for Parents were listed. As for MGM, her name, current address, birthdate and birthplace was provided. As for her prior address, only the city and state were listed. The name of the paternal grandmother (PGM) was provided but no further information, such as her address or birthdate, was put in the notice. MGF's name, current address, former address, and birthdate were included on the notice. No birthplace was provided. The name of paternal grandfather (PGF), his current address, birthdate, birthplace and former address (city and state only) were put in the notice. Some information about the great-grandparents was also provided.
In the jurisdiction/disposition report, the Department noted that a social worker had spoken with Mother, MGM, MGF and the PGF. Mother disclosed she may have Cherokee ancestry. PGM's phone number was not valid.
A second declaration of due diligence was filed on September 28, 2017. The Eastern Band of Cherokee Indians had responded that Minor was not enrolled in the tribe and that they would not intervene.
A "final" declaration of due diligence was filed on October 24, 2017. No further responses had been received and the Department requested that the juvenile court make the finding that notice had been conducted, as required by ICWA, and all other Cherokee tribes and the BIA had failed to respond since the notice had been received. On October 26, 2017, the juvenile court signed an order of findings that ICWA notice had been given and ICWA did not apply. However, on November 2, 2018, the juvenile court noted there appeared to be information missing from the ICWA-030 form, and in an abundance of caution, new notice would be sent.
On January 2, 2019, the Department gave an update on the ICWA notice and its attempts to obtain additional ICWA information. A phone interview was completed with Father who provided a small amount of additional information. Further information was also obtained from PGM and PGF, but what information was obtained was not provided in detail. The updated ICWA-30 form was served on December 4, 2018.
A declaration of diligence was filed on January 27, 2019. The BIA, Eastern Band of Cherokee Indians, Cherokee Nation of Oklahoma and United Keetoowah Band of Cherokee had acknowledged receipt of the new notice.
The new notice included information on Parents including addresses, former addresses, and birthdates. Again, no birthplaces were provided. For MGM, her name, address, former address (city only), birthdate and birthplace were provided. PGM's name and current address were the only information provided and the birthplace was listed as unknown. For MGF, his name, address, former address and birthdate was provided. For PGF, his name, current address, former address (city only), and his birthdate and birthplace were listed. Both maternal great-grandmothers' names were listed, along with their current addresses, former addresses (city only) and birthdates. For those who had their birthdates listed, the birthplaces were not included and there were no notations that the information was unknown. The one maternal great-grandfather was listed as deceased, but his former address and birthdate was provided. The other maternal great-grandfather's name, current address and birthdate were listed. As for one of the paternal great-grandmothers, her name, address, former address (city only), birthdate and birthplace were listed; the only information for the second paternal great-grandmother was her name and birthdate. Finally, one of Minor's paternal great-grandfathers was listed by name, was reported deceased, a former address was reported, along with his birthdate and birthplace; no information was provided as to the second paternal great-grandfather.
A final declaration of diligence dated March 13, 2019, indicated the Department received a response from the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians in Oklahoma that Minor was not enrolled in the tribe and they would not intervene. There was no response from the BIA or Cherokee Nation of Oklahoma. That same day, the juvenile court made its finding that ICWA did not apply as notice had been given, 65 days had elapsed since the BIA received notice, and no affirmative response as to tribal membership had been received.
2. REMAND FOR FURTHER ICWA NOTICE
ICWA was enacted to " 'protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.' " (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174.) ICWA provides that " '[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the . . . termination of parental rights to . . . an Indian child shall notify . . . the Indian child's tribe . . . of the pending proceedings and of their right of intervention.' (25 U.S.C. § 1912(a).) This notice requirement, which is also codified in California law [citation], enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding." (In re Isaiah W. (2016) 1 Cal.5th 1, 5.) "The Indian status of a child need not be certain or conclusive to trigger ICWA's notice requirements." (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783.)
"An ICWA notice must include, among other things, (1) the Indian child's name, birthdate, and birthplace, if known; (2) the name of the Indian tribe in which the child is a member or may be eligible for membership, if known; and (3) specific identifying information concerning the child's lineal ancestors, including '[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents . . . including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.' " (In re N.G. (2018) 27 Cal.App.5th 474, 480-481.)
The social worker is required to interview " 'the parents, Indian custodian, and extended family members to gather the information.' " (In re C.Y. (2012) 208 Cal.App.4th 34, 39.) The goal is "to provide the Indian tribe with all available information about the child's ancestors." (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
"[W]here the record does not show . . . that the ICWA notices that were given included all known identifying information, the burden of making an adequate record demonstrating the court's and the agency's efforts to comply with ICWA's inquiry and notice requirements must fall squarely and affirmatively on the court and the agency. And in the absence of an appellate record affirmatively showing the court's and the agency's efforts to comply with ICWA's inquiry and notice requirements, we will not, as a general rule, conclude that substantial evidence supports the court's finding that proper and adequate ICWA notices were given or that ICWA did not apply. Instead, as a general rule, we will find the . . . claims of ICWA error prejudicial and reversible" (In re N.G., supra, 27 Cal.App.5th at p. 484.)
Here, the Department spoke with Mother numerous times, and MGF had custody of Minor. The Department also indicated it had conducted phone interviews with Father, PGM and PGF; however, the Department did not include the birthplaces of Mother, Father, MGF, or PGM despite the fact this information was readily available.
The exclusion of the birthplaces is not explained in the record. Father, Mother and MGF had their birthplaces excluded despite numerous contacts with the Department. The form did not include that their birthplaces were "unknown." Social worker April Cepeda did state in a declaration attached to the second ICWA-030 notice, signed under penalty of perjury, that she had provided "all information I/we have about the relatives" on the ICWA tribal notice form. However, it is inconceivable that Mother, Father, and MGF could not provide their birthplaces if such inquiry were made to them. Further, the social worker spoke directly with PGM, and her birthdate and birthplace were not listed or explained in the record. Moreover, maternal great-grandmother's address was the same as MGM. Despite extensive information from MGM, the Department did not provide the birthplace of maternal great-grandmother, who lived with MGM and who was listed as having tribal membership. The failure to inquire of maternal great-grandmother is not explained in the appellate record.
We find prejudicial error in the failure to comply with federal ICWA notice requirements. The ICWA notice did not contain birthplace information for the above-mentioned relatives, and also several other of Minor's relatives. While the notices did include other biographical information, the birthplaces of only MGM, PGF and paternal great-grandfathers were provided. Some of the tribes responded to the deficient ICWA notice, but the letters noted that the failure to find Minor was a part of the tribe was based on the information in the notice. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 654 ["Although the Pascua Yaqui tribe responded that the children were not members of, or eligible for membership in, the tribe, the tribe's letter explained its assessment was '[b]ased upon the family information provided.' Some of the omitted information pertained directly to the maternal great-grandmother, the ancestor . . . affirmatively identified as a Yaqui Indian. We cannot say with any degree of confidence that additional information concerning that relative . . . would not have altered the tribe's evaluation"].)
We cannot find the excluded information was harmless. The maternal great-grandmother and paternal great-grandmother were listed as having Cherokee ancestry. Despite the Department interviewing PGM, and knowing the whereabouts of MGM and MGF, the Department did not provide what was known, or not known, about their birthplaces. As such, limited remand is necessary in order to ensure that adequate ICWA notice is given.
DISPOSITION
The orders terminating parental rights for both Mother and Father are conditionally reversed and the matter is remanded for the limited purpose of complying with ICWA. If, after further inquiry and notice by the Department, including further notice to the tribes previously contacted if birthplace information is available, the juvenile court determines that the tribes were properly noticed and there either was no response or the tribes determined that Minor is not an Indian child, the orders shall be reinstated. However, if a tribe determines Minor is an Indian child as defined by ICWA and the court determines ICWA applies to this case, the juvenile court is ordered to conduct a new hearing pursuant to section 366.26 and proceed in accordance with ICWA, including considering any petition filed to invalidate prior orders. The juvenile court's order terminating Father's and Mother's parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. FIELDS
J.