Opinion
D070598
01-25-2017
In re S. M., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ERIN P., Defendant and Appellant.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NJ15194) APPEAL from an order of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed in part, vacated in part, remanded with directions. Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
Erin P. appeals from the disposition order of the juvenile court removing her minor daughter, S.M., from parental custody. She contends the juvenile court erred in entering the order without ensuring compliance with notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm the order with a limited remand for purposes of further ICWA notice compliance.
FACTUAL AND PROCEDURAL BACKGROUND
On the day S.M. was born, the San Diego County Health and Human Services Agency (Agency) received a referral from the San Diego Child Abuse Hotline alleging general neglect. After investigation revealed that both Erin and S.M.'s alleged father, Joseph M. had a history of methamphetamine use and Erin had used the drug approximately a week prior to S.M.'s birth, the Agency filed a petition on behalf of S.M. under Welfare and Institutions Code section 300, subdivision (b)(1) alleging that she had suffered, or was at a substantial risk of suffering, serious physical harm or illness as a result of Erin's inability to provide regular care due to her substance abuse and Joseph's history of substance abuse and knowledge of Erin's substance abuse and inability to prevent it.
The court later determined that Joseph M. was the presumed father.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The Agency filed a detention report, notifying the juvenile court that "ICWA may apply," as Erin had "25% Cherokee ancestry" and Joseph also had some Cherokee ancestry, although he described it as "not enough." The report recommended that S.M. be detained in a licensed foster home pending a placement hearing.
By April 20, the date of the detention hearing, Erin and Joseph had each submitted a form ICWA-020 (Parental Notification of Indian Status) indicating S.M.'s potential Indian ancestry, and Erin identified the tribe as "Cherokee." At the hearing, the juvenile court ordered that S.M. be detained in foster care, ordered the parents to submit form ICWA-030 (Notice of Child Custody Proceeding for Indian Child) and deferred making an ICWA finding.
All relevant dates are in 2016 except as otherwise noted.
On May 10, Joseph submitted form ICWA-30, indicating S.M.'s possible eligibility for membership in the Cherokee tribe, and identifying S.M.'s maternal grandmother ("Grandmother") as having Cherokee affiliation. He did not include the identities of S.M.'s maternal great-grandparents on the form. Erin also provided the Agency with a form ICWA-30, but the Agency did not file a copy with the court. The next day, the primary social worker provided each parent's form ICWA-30 to another social worker with instructions to provide notice to Cherokee tribes. In June, the juvenile court held a jurisdiction hearing and found by clear and convincing evidence that the petition allegations were true and S.M. was a child described by section 300, subdivision (b). However, the court continued the disposition hearing to June 13 because the Agency had not yet notified the Cherokee tribes and ordered the Agency "to follow up with the ICWA issue as soon as possible."
The Agency subsequently filed an Addendum Report, stating that ICWA notice had been sent to the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, the Pacific Bureau of Indian Affairs and the Cherokee Nation of Oklahoma and that it had obtained return receipts from the tribes indicating that they had all received notice no later than June 6. The Agency did not file copies of the notice or the return receipts. In addition, although Agency records established that its employees spoke with S.M.'s maternal grandmother on at least two occasions, there was no indication that she was interviewed regarding ICWA issues prior to sending the notice of the disposition hearing.
At the June 13 hearing, Erin requested a continuance to allow additional time to address ICWA notice, indicating for the first time that S.M.'s maternal great-great-grandfather was Cherokee. Joseph also objected to proceeding with the disposition without first resolving the ICWA notice issue. The court questioned Grandmother, but she did not know the extent of her grandfather's involvement with the Cherokee tribe and was not aware of any documentation establishing his Cherokee affiliation. Similarly, Joseph was unable to identify a specific relative with Indian heritage. After weighing the child's age and the importance of the disposition hearing against the likeliness that S.M. would be determined to be an Indian child, the court decided to proceed with the hearing.
The juvenile court found by clear and convincing evidence that S.M. should be removed from her parents' custody pursuant to section 361, subdivision (c)(1), because there was substantial danger to S.M. and no reasonable means to protect her without removal. In addition, the court found that reasonable inquiry had been made to determine whether S.M. was or might be an Indian child. However, the court deferred its determination regarding ICWA applicability, noting it had ordered the Agency to notice the Cherokee Indian Tribe and setting a special hearing on August 8 to address the issue.
DISCUSSION
I. RIPENESS
A. Argument
The Agency argues that the issue of ICWA compliance is not yet ripe for review because the juvenile court had not yet made a determination of whether ICWA applied, review would require speculation as to the court's future findings and the court's ICWA findings at disposition were tentative.
B. Governing Law
" 'Ripeness' " refers to the requirement that a lawsuit present a current controversy. (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59.) The ripeness requirement ensures that courts focus on resolving specific legal disputes, rather than abstract differences of legal opinion, and prevents courts from issuing purely advisory opinions. (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170-172 (Pacific Legal); see California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22 (California Water) ["A controversy is 'ripe' when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made."].)
Ripeness is a concept easier to illustrate than to define. (California Water, supra, at p. 23, fn. 9.) For example, in Pacific Legal, our Supreme Court rejected a challenge to administrative guidelines governing development dedications for beach access as not ripe when the claim was not predicated upon any specific application of the guidelines or any individual permit condition. (Pacific Legal, supra, 33 Cal.3d at p. 168.) Under those circumstances, the abstract posture of the proceeding made resolution of the issue difficult and the court characterized the inquiry as requiring speculation on the resolution of hypothetical situations and thus declined to undertake it. (Id. at p. 172.) Likewise, an action seeking declaratory relief to protect appellant's property from impressment by eminent domain was deemed not ripe for judicial resolution when the project for which the city had agreed to attempt to obtain the property had been completed without resort to eminent domain and the city's future intentions regarding possible condemnation were far from clear. (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582 (Wilson & Wilson).)
In contrast, the California Supreme Court rejected the Department of Family Services' argument that the issue of whether the minors were eligible for certain benefits was not ripe for review because they had not yet applied for and been denied benefits, characterizing analysis of their eligibility under governing laws and regulations as resolving a mere "difference of opinion." (In re Joshua S. (2007) 41 Cal.4th 261, 272 (Joshua II).) In that case, the issue before the juvenile court was whether it was required to terminate its jurisdiction pursuant to section 366.3, subdivision (a), following the minors' placement with a relative as legal guardian or whether "exceptional circumstances" existed which would allow it to retain jurisdiction. (Id. at p. 272.) Because the legal guardian lacked the financial means to care for the minors and exceptional circumstances may be established by a finding that the best interests of the children would be served by continued jurisdiction, the juvenile court was required to determine whether the minors could receive benefits as part of its jurisdictional analysis. (Id. at p. 273; In re Joshua S. (2003) 106 Cal.App.4th 1341, 1353-1357 (Joshua I).) Therefore, the issue of benefit eligibility was ripe for judicial determination as such determination would resolve a specific legal dispute, rather than yielding a purely advisory opinion or giving general guidance based on hypothetical facts. (Joshua II, at p. 273.)
C. Standard of Review
The determination of ripeness presents a question of law, which we review de novo. (Farm Sanctuary, Inc. v. Department of Food & Agriculture (1998) 63 Cal.App.4th 495, 501, fn. 5; Wilson & Wilson, supra, 191 Cal.App.4th at p. 1582.)
D. Analysis
As described in greater detail below, ICWA notice requirements, and the California laws implementing them, apply to a disposition hearing. (25 U.S.C. § 1912(a); Welf. & Inst. Code, §§ 224.2, 224.3.) The juvenile court has an affirmative and continuing duty to inquire into a child's Indian status and to ensure ICWA notice of each hearing is provided from the first time there is reason to know of an Indian child's involvement in the proceeding until it makes a determination, following proper and adequate provision of notice, of ICWA's inapplicability. (In re Isaiah W. (2016) 1 Cal.5th 1, 10-11 (Isaiah W.).) As a result, errors in notice are "of a continuing nature and may be challenged at any time during the dependency proceedings." (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261.)
Here, the issue raised on appeal is whether the juvenile court complied with ICWA inquiry and notice requirements applicable to the disposition hearing. Contrary to the Agency's contention, we do not need to speculate as to the ultimate outcome of the court's ICWA applicability determination to resolve this issue. Nor are we persuaded by the Agency's argument that the controversy is not ripe because the juvenile court's findings in the dispositional order regarding ICWA compliance were "tentative." Rather than being tentative, the court's findings upon disposition represents its assessment, at that specific point in time, of whether the Agency had complied with its continuing duty.
As explained in PG & E Corporation v. Public Utilities Commission (2004) 118 Cal.App.4th 1174, 1219 (PG & E), on which the Agency relies, the determinative factor for purposes of ripeness analysis is not whether a decision may be characterized as interim, but instead whether it has a concrete effect. In PG & E, the appellate court concluded that petitioner's challenge to a Public Utilities Commission (PUC) interpretation of a particular condition was abstract and thus not ripe because the PUC had not yet applied that interpretation to any concrete set of facts. (Id. at p. 17.) Unlike the circumstances in cases relied upon by the Agency, in which issues were deemed unripe because appellants sought determination of abstract differences of legal opinion rather than resolution of specific disputes, the issue here may be resolved through application of relevant law to a concrete set of facts, namely, the extent to which ICWA inquiry and notice requirements applied to the disposition proceeding and whether the Agency had complied with applicable requirements. We therefore conclude that the issues raised in this appeal are ripe for review.
(See, e.g., Pacific Legal, supra, 33 Cal.3d at p. 172 [challenge to administrative guidelines was too abstract when not targeted at a specific application of the guidelines or permit condition]; County of Alameda v. Superior Court (2005) 133 Cal.App.4th 558, 568 [challenge to ballot measure as regulatory taking was not ripe when landowner had not submitted any development proposal subsequent to passage of the measure]; Calprop Corp. v. City of San Diego (2000) 77 Cal.App.4th 582, 593, 598 [takings claims not ripe when one appellant had not been denied approval of any specific project and the other, while having been denied application for one unique use, had not established any decision that would preclude it from engaging in economically beneficial development of its property].)
II. ADEQUACY OF ICWA COMPLIANCE
A. Argument
Erin contends that the ICWA notices were not timely received by the tribes prior to the disposition hearing. In addition, she argues that the Agency did not comply with ICWA requirements because it failed to conduct a proper investigation and therefore did not include the name of the maternal relative with Indian heritage in the notices.
B. Governing Law
ICWA requires provision of notice in any involuntary dependency proceeding in which the Agency seeks foster care placement or termination of parental rights and "the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a).) A similar notice requirement is incorporated into California law implementing ICWA. (Welf. & Inst. Code, § 224.2.) ICWA notice serves the dual purpose of facilitating a determination of whether the child is an Indian child and notifying Indian tribes of their right to intervene or assert jurisdiction over a custody proceeding involving an Indian child. (Isaiah W., supra, 1 Cal.5th at p. 8.) Whether a child is an Indian child depends upon the determination of the applicable Indian tribe. (Ibid., citing U.S. Dept. of the Interior, Bureau of Indian Affairs, Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 10146, 10153 (Feb. 25, 2015) (BIA Guidelines) ["Only the Indian tribe(s) . . . may make the determination whether the child" is an Indian child under ICWA.]; see Welf. & Inst. Code, § 224.3, subd. (e)(1) [tribal determination conclusive].)
An "Indian child" 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).)
Federal statutes do not define when there is "reason to know" that a child is an Indian child, but California law provides a nonexhaustive list of circumstances triggering the notice requirement, including when an interested person "provides information suggesting the child is a member of a tribe or eligible for membership in a tribe." (Welf. & Inst. Code, § 224.3, subd. (b)(1); Cal. Rules of Court, Rule 5.481(a)(5).) Because the tribe must determine a child's Indian status, the notice requirement may be triggered by a mere suggestion of Indian ancestry, a very low bar. (In re D.C. (2015) 243 Cal.App.4th 41, 60 (D.C.) [adoptive father's representation that he is or may be a member of, or eligible for membership in, the Cherokee or Apache tribes triggered notice requirement]; see In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1168 (Gabriel G.) [father's representation that child had Cherokee heritage through the paternal grandfather sufficient to trigger further inquiry and notice].) If there is reason to know the child is an Indian child, relevant tribes must receive notice at least 10 days prior to any foster care placement proceeding. (25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2, subd. (d).)
In addition, proper notice must include sufficient information to allow the tribes to determine a child's tribal membership or eligibility for membership. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) The notice must include (among other things) the names of a child's known direct lineal ancestors. (25 C.F.R. § 23.111(d)(3), effective December 12, 2016; see § 224.2, subd. (a)(5)(C) [requiring notice to include the names of the Indian child's biological parents, grandparents, great-grandparents and "any other identifying information"].) In addition, to the extent the child's great-great-grandparent is the ancestor claimed to have the tribal connection, his or her information must be included in the ICWA notice if known. (In re S.E. (2013) 217 Cal.App.4th 610, 615 [reversing guardianship order and remanding for notice to Cherokee tribes containing the name and any available identifying information for minor's maternal great-great- grandfather, who was described as the source of Indian ancestry]; In re C.B. (2010) 190 Cal.App.4th 102, 147 [reversing order terminating parental rights when prior notice to tribes had not contained information about minor's great-great-grandfather, believed to have had an Indian wife]; but see In re J.M. (2012) 206 Cal.App.4th 375, 382 [notice did not need to identify children's great-great-grandparents when judicial notice established that even if the grandparents were full-blooded tribal members, the children would be too distantly related to be eligible for tribal membership].)
The former version of the regulation, in effect at the time of the hearing, required the notice to include "[a]ll names known, and current and former addresses of the Indian child's biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information." (25 C.F.R. § 23.11(d)(3) [79 FR 27190, May 13, 2014].)
In conjunction with the notice requirement, California law imposes "an affirmative and continuing duty" on the court and the Agency to inquire regarding a child's Indian status for ICWA purposes. (Welf. & Inst. Code, § 224.3, subd. (a) [inquiry requirements apply to all hearings under sections 300, 601 or 602]; Cal. Rules of Court, rule 5.481(a).) Under California law, the Agency is required to "make further inquiry . . . as soon as practicable" when it knows or has reason to know that the minor is, or may be, an Indian child, which includes interviewing "extended family members" or any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. (Welf. & Inst. Code, § 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4).) " '[E]xtended family members' " includes an Indian child's grandparents, unless otherwise "defined by the law or custom of the Indian child's tribe." (Cal. Rules of Court, rule 5.481(a)(4)(A); 25 U.S.C., § 1903(2).)
BIA Guidelines also require that "Agencies and State courts, in every child custody proceeding, must ask whether the child is or could be an Indian child and conduct an investigation into whether the child is an Indian child." (BIA Guidelines, supra, 80 FR 10146, 10152.) These guidelines are not binding on state courts, but are "instructive." (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1387, fn. 10.)
C. Standard of Review
We review the trial court's findings regarding ICWA compliance for substantial evidence. (In re E.W. (2009) 170 Cal.App.4th 396, 404; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) Under the substantial evidence test, the appellant bears the burden of establishing that there is no evidence of a sufficiently substantial nature to support the court's findings or orders. (D.C., supra, 243 Cal.App.4th at p. 55.)
D. Analysis
As a threshold matter, we conclude that there was sufficient information of S.M.'s potential Indian affiliation to require the Agency to investigate whether S.M. was an Indian child for purposes of ICWA and give notice to relevant tribes. From early in the proceedings, both Erin and Joseph characterized S.M. as having possible Cherokee ancestry. Over a month before the disposition hearing, Joseph identified S.M.'s Cherokee ancestry as stemming from Grandmother, and provided the Agency with Grandmother's name, address, birthdate and birthplace. This information was sufficient to trigger ICWA's inquiry and notice requirements. (See D.C., supra, 243 Cal.App.4th at p. 60; Gabriel G., supra, 206 Cal.App.4th at p. 1168; § 224.3, subd. (b)(1); Cal. Rules of Court, Rule 5.481(a)(5).)
Moreover, the notice sent by the Agency prior to the disposition hearing was untimely. Although the Agency did send notice to three different Cherokee tribes, one or more of the tribes did not receive notice until June 6, only seven days prior to the disposition hearing. Consequently, the notice did not comply with Welfare and Institutions Code section 224.2, subdivision (d) or 25 United States Code section 1912(a), both of which require that notice be received by applicable tribes at least 10 days prior to any foster care placement proceeding.
In addition, although the juvenile court properly inquired about S.M.'s Indian ancestry at each hearing, its finding that the Agency had completed reasonable ICWA inquiry was not supported by substantial evidence. The Agency knew more than one month prior to the disposition hearing that S.M.'s possible Cherokee ancestry was through Grandmother. However, despite evidence that S.M.'s social worker had spoken with Grandmother at least once prior to sending the ICWA notice, and on another occasion prior to the disposition hearing, there is no indication that the Agency interviewed her about her Indian ancestry before sending the ICWA notice. Under these facts, the Agency failed to comply with its duty to conduct an ICWA inquiry of extended family members, such as Grandmother, "as soon as reasonably practicable," and therefore had not completed a reasonable ICWA inquiry prior to the disposition hearing.
Although the Agency's reports and the disposition hearing transcript support Erin's contention that the Agency had not previously inquired regarding the identity of the maternal great-great-grandfather or included reference to him in its ICWA notice, the ICWA notice itself should have been included in the record and Erin's counsel should have taken steps to ensure that it was. (See In re D.W. (2011) 193 Cal.App.4th 413, 417 [Appellant "has the duty to present error affirmatively by an adequate record; error is never presumed."].)
The Agency's failure to comply with ICWA does not require us to reverse the dispositional order. (See In re Damian C. (2009) 178 Cal.App.4th 192, 199 (Damian C.); D.C., supra, 243 Cal.App.4th at p. 64.) Instead, we shall remand with instructions. If, after proper notice, the juvenile court determines that S.M. is an Indian child and ICWA applies to these proceedings, S.M., her parents or any relevant tribe may petition the juvenile court to invalidate any orders that violated ICWA. (See Damian C., supra, 178 Cal.App.4th at p. 200; 25 U.S.C. § 1914.)
DISPOSITION
The dispositional order is affirmed. The matter is remanded to the juvenile court with directions to vacate its finding in the dispositional order that reasonable ICWA inquiry was made and to order the Agency to comply with the inquiry and notice requirements of ICWA and related California law.
BENKE, Acting P. J. WE CONCUR: NARES, J. HALLER, J.