Opinion
D076255
01-07-2020
In re MASON H., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. LORI M. et al., Defendants and Appellants.
Emily Uhre, under appointment by the Court of Appeal, for Defendant and Appellant Lori M. Lelah Fisher, under appointment by the Court of Appeal, for Defendant and Appellant Timothy H. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Senior 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NJ15340B) APPEAL from judgment of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Conditionally reversed and remanded with directions. Emily Uhre, under appointment by the Court of Appeal, for Defendant and Appellant Lori M. Lelah Fisher, under appointment by the Court of Appeal, for Defendant and Appellant Timothy H. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Senior Deputy County Counsel, for Plaintiff and Respondent.
Lori M. (Mother) and Timothy H. (Father) appeal from orders of the juvenile court terminating their parental rights as to their minor child, Mason H. (Mason). Their sole contention on appeal is the juvenile court and the San Diego County Health and Human Services Agency (Agency) failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA) after Father disclosed that he may have Cherokee heritage. The Agency concedes a limited remand for the purpose of compliance with ICWA is appropriate and we agree.
We therefore conditionally reverse the juvenile court's orders and remand the matter for the limited purpose of compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
When Mason was approximately six months old, Mother and Father engaged in a violent physical altercation while intoxicated resulting in injuries to Mother and Mason's older siblings. The Agency filed a juvenile dependency petition on Mason's behalf a few days later.
The Agency interviewed both parents and inquired as to ICWA. Mother denied having any Native American heritage, but Father told the Agency he had paternal Cherokee heritage. On the parental inquiry and Indian status forms, he indicated he "maybe" had American Indian heritage and listed Cherokee as the tribe. On an ICWA inquiry worksheet, he listed the full names of his mother, father, and maternal grandmother.
At the initial hearing on August 21, 2017, the juvenile court found the Agency had made a prima facie showing on the petition and removed Mason from Mother and Father's care. Father's counsel noted Father had indicated potential Cherokee heritage through his paternal grandmother, but Father had not included a name on the worksheet. Father confirmed he did not know his paternal grandmother's name, as she died when his father was just a boy, and further stated he did not have a lot of contact with his father's side of the family. The juvenile court found ICWA may apply based on the information Father provided.
On September 5, 2017, Father told an Agency social worker he had Cherokee ancestry through his maternal grandmother. Father informed the Agency he lived with his grandmother (presumably maternal) for a period of time as a child, and he is the eldest of five siblings with whom he maintained "infrequent 'Facebook' contact." There is no indication the Agency made any efforts to speak to any of Father's family members regarding their ancestry or potential Indian heritage.
On September 7, 2017, the Agency sent ICWA notices to the Bureau of Indian Affairs, Cherokee Nation, Department of the Interior, and the Eastern Band of Cherokee Indians. The forms noted Father indicated he may have patrilineal (paternal) Cherokee heritage, but did not mention maternal heritage and did not include the maternal grandmother's name, even though Father had provided it. Later that month, the Agency received responses from the United Keetoowah Band of Cherokee and the Eastern Band of Cherokee Indians indicating Mason was not a member or eligible for membership in either tribe.
At a contested hearing on October 25, 2017, the juvenile court found jurisdiction over Mason and removed him from Mother and Father's care. The Agency had not received a response from one of the three Cherokee tribes, so the court set a special hearing on ICWA for November 27.
In an addendum report dated November 27, 2017, the Agency noted it had not received any further correspondence from the tribes. The court noted it had read the reports and, based on the responses from the two tribes and lack of response from the others after 60 days, the court found ICWA did not apply to Mason. The Agency reports submitted thereafter note the court previously found ICWA does not apply to Mason, and do not contain any further information regarding ICWA.
On June 24, 2019, the juvenile court held a contested permanency hearing pursuant to Welfare and Institutions Code section 366.26. The court made an additional finding the Agency had made reasonable inquiry and notice was not required under ICWA and terminated Mother and Father's parental rights.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother and Father appeal.
DISCUSSION
Father asserts: (1) the Agency failed to conduct sufficient inquiry under ICWA by neglecting to speak to known family members or otherwise investigate Father's paternal ancestry; and (2) the ICWA notices the Agency did provide were deficient as they did not list all of the available information. Mother joins in Father's arguments. The Agency concedes it did not include Father's maternal grandmother in the ICWA notices and a limited remand is appropriate to ensure compliance with ICWA. We agree.
Congress enacted ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) California adopted the main provisions of ICWA into California statutory law in 2006 and, more recently, amended its own statutes to conform with additional federal regulations concerning ICWA issued in 2016. (In re Autumn K. (2013) 221 Cal.App.4th 674, 703-704; In re A.W. (2019) 38 Cal.App.5th 655, 662, fn. 3 (A.W.); Assem. Bill No. 3176 (2017-2018 Reg. Sess.).) In every dependency proceeding, the juvenile court and the Agency have an affirmative and continuing duty to determine whether ICWA applies. (In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165; Cal. Rules of Court, rule 5.481(a); Welf. & Inst. Code, § 224.2, subd. (a).)
As relevant here, section 224.2 now provides additional guidance regarding the inquiry and notice requirements of ICWA. (§ 224.2, subds. (d)-(f).) If the court or Agency "has reason to believe that an Indian child is involved in a [dependency] proceeding," section 224.2 requires additional inquiry, which includes but is not limited to "[i]nterviewing the parents, Indian custodian, and extended family members to gather the information required [by section 224.3, subdivision (a)(5)]." (§ 224.2, subd. (e), [emphasis added].)
If the court or Agency have reason to know the child is an Indian child, section 224.2 requires the Agency to provide notice to the tribes by registered mail of the pending proceedings and their right to intervene and section 224.3 sets forth the information the Agency must include in any such notices. (§ 224.2, subd. (f); § 224.3; 25 U.S.C. § 1912; In re Isaiah W., supra, 1 Cal.5th at p. 5.) One of the primary purposes of the notice is to allow the tribes to determine whether a child is an Indian child and, therefore, "[i]t is essential to provide the Indian tribe with all available information about the child's ancestors, especially the one with the alleged Indian heritage." (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; see also In re S.M. (2004) 118 Cal.App.4th 1108, 1115-1116.)
Here, as the Agency concedes, the notices did not include all relevant information available to the Agency. Specifically, the notices did not indicate Father may have maternal Cherokee heritage and did not include his maternal grandmother's name. The failure to include such information was prejudicial error requiring reversal. (See § 224.3, subd. (a)(5)(C) [notice shall include names of all parents, grandparents, and great-grandparents, if known]; In re A.G. (2012) 204 Cal.App.4th 1390, 1394-1395, 1396-1397.) In addition, we also agree with Father's assertion the Agency did not fulfill its inquiry obligations pursuant to section 224.2, subdivision (e) insofar as it did not make any attempts to interview known family members regarding Father's lineage and potential Cherokee heritage. (§ 224.2, subd. (e); § 224.3, subd. (a)(5).) This error also requires reversal. (See In re N.G. (2018) 27 Cal.App.5th 474, 481-482.)
As a final matter, the parties have submitted a stipulation indicating there are no appellate issues other than the ICWA compliance issues discussed herein and seeking immediate remittitur. Accordingly, remittitur shall issue immediately.
DISPOSITION
The orders terminating Mother and Father's parental rights are conditionally reversed and the matter is remanded to the juvenile court with directions for the juvenile court to vacate its ICWA finding with respect to Mason and to direct the Agency to complete inquiry and notice in compliance with ICWA. If, after the Agency does so, the court finds Mason is an Indian child, the court shall proceed in conformity with ICWA. If the court finds Mason is not an Indian child, the orders shall be reinstated. Remittitur shall issue immediately.
HALLER, J. WE CONCUR: McCONNELL, P. J. DATO, J.