Opinion
D078011
02-16-2021
In re Q.Z., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. SHELLY F., Defendant and Appellant.
Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant Shelly F. (Mother). Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J520366AB) APPEAL from orders of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed. Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant Shelly F. (Mother). Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Senior Deputy County Counsel, for Plaintiff and Respondent.
Shelly F. (Mother) appeals from orders of the juvenile court entered at the jurisdiction and disposition hearing regarding her minor children, Q.Z. and E.Z. (collectively, "the children"). She contends the juvenile court erred by finding the San Diego Health and Human Services Agency (the Agency) made reasonable inquiry to determine whether the children were subject to the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) ("ICWA") because neither parent filled out a written ICWA-020 Parental Notification of Indian Status form. We conclude the Agency and the court conducted sufficient inquiry under the circumstances and affirm the orders.
The Agency requests this Court take judicial notice of the ICWA-020 Judicial Council form, and Mother joins the request. Although neither party provides a copy of the form, it is readily available on the California Courts website. (See <https://www.courts.ca.gov/documents/icwa020.pdf> [as of 02/16/2021], archived at: <https://perma.cc/5DP7-TLPR>.) Accordingly, we grant the request and take judicial notice of the current ICWA-020 form. (See Evid. Code §§ 452, 453, 459, subd. (d); Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 184-190.)
FACTUAL AND PROCEDURAL BACKGROUND
Given the limited scope of this appeal, we provide an abbreviated summary of the dependency proceedings and focus on the facts relevant to the ICWA findings at issue.
Q.Z. and E.Z. have a history of significant mental health concerns and hospitalizations. On March 9, 2020, Mother and E.Z. got into an altercation that resulted in E.Z. threatening Mother with a knife. Mother called the children's father (Father) to assist and Father called the San Diego Police Department. E.Z. made statements indicating he wanted to harm himself and was taken to Rady Children's Hospital ("Rady's"). Q.Z. witnessed the altercation and reported having suicidal thoughts.
E.Z. was taken to Rady's again on April 6, 2020, after another confrontation with Mother and Father. Q.Z. expressed suicidal ideation the following day and was taken to the hospital as well. A social worker spoke with E.Z. at the hospital and he reported Mother often yelled, cursed, and called them names and that he had told her it made him want to hurt or kill himself. He also indicated that Mother would start fights with him while intoxicated and that Father made everything worse.
Mother initially agreed to participate in a voluntary safety plan. Under the plan, Mother would not let Father into the home, would not speak negatively or use physical discipline with the children, and would call the San Diego Psychiatric Emergency Response Team if there were any serious concerns regarding the children's mental health. At a child and family team meeting on April 14, 2020, however, Mother indicated "she did not want a voluntary case as she already had too much going on and felt that it would overwhelm her." Father refused to cooperate.
The Agency filed juvenile dependency petitions on behalf of Q.Z. and E.Z. on April 28, 2020, and alleged the parents were unable to provide adequate treatment for the minors' mental health needs.
In the associated detention report, the Agency reported Mother had previously indicated, on March 10, 2020, that she had no known Native American heritage and that Father indicated the same on April 4, 2020. At the detention hearing, Mother's counsel stated:
The hearings in this matter, including the detention hearing, were conducted via video conferencing pursuant to Emergency Rule of Court 3(a).
"[Mother] could possibly have heritage that goes very far back. I don't believe she has much information about that. I would be comfortable with the Court making a no ICWA finding today based on Mother's representation. I will file an ICWA 020 form with the Court when appropriate".
The Agency indicated it would like some additional information regarding Mother's statements before recommending the court make a finding that ICWA did not apply, and the court ordered the Agency to conduct additional inquiry. The court found the Agency had made a prima facie showing on the petitions and ordered the children detained in Mother's care pursuant to a number of conditions, including that Father remain out of the home and Mother not use any substances. However, another altercation occurred shortly thereafter, and, on May 14, 2020, the juvenile court granted a request by the Agency to detain the children outside of the home.
In the jurisdiction and detention report, dated June 10, 2020, the Agency indicated it had made additional inquiries regarding ICWA with both Mother and Father, and each denied having any Indian heritage.
At the hearing on June 10, 2020, the Agency raised ICWA and noted Mother had initially stated she may have some Indian heritage but had since denied having any such heritage. The Agency asked the court if it could clarify the issue. Mother's counsel stated she had not had a chance to address ICWA with Mother and deferred to Mother since she was on the phone. The court then asked Mother directly, "I know you mentioned already on May 13th that you have no reason to believe either child has Native American ancestry; is that still your position?" Mother answered, "Yes, ma'am." The court noted Mother had reaffirmed her assertion of no Native American Ancestry, made a finding that ICWA did not apply, and set the matter for trial on jurisdiction and disposition.
On September 9, 2020, the juvenile court made true findings by clear and convincing evidence and sustained the petitions filed on behalf of Q.Z. and E.Z. There was no further discussion of ICWA in the Agency's reports or on the record, but the court stated, in its written orders, "Notice pursuant to the Indian Child Welfare Act is not required because the court knows the child is not an Indian child. Reasonable inquiry has been made to determine whether the child is or may be an Indian child."
Mother appeals.
DISCUSSION
Mother's sole contention on appeal is that the juvenile court erred by finding ICWA did not apply despite the fact that neither parent completed a written ICWA-020 Parental Notification of Indian Status form. I. Relevant Law and Standard of Review
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, 8 (Isaiah W.).) The federal statute defines "Indian child" as a child who " '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' " and establishes minimum standards for the removal and placement of such children in foster or adoptive homes reflecting the unique values of their Indian culture. (25 U.S.C. §§ 1901(3), 1902, 1903(4); In re A.W. (2019) 38 Cal.App.5th 655, 662 (A.W.).)
The juvenile court and the Agency have an affirmative and continuing duty in every dependency proceeding 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).) In cases "where the court knows or has reason to know that an Indian child is involved," ICWA requires the Agency, or other party seeking adoption or foster care placement, to notify "the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912; Isaiah W., supra, 1 Cal.5th. at p. 5.) This is often referred to as the ICWA notice provision.
California adopted the main provisions of ICWA into California statutory law in 2006. (In re Autumn K. (2013) 221 Cal.App.4th 674, 703-704.) Following the enactment of new federal regulations concerning ICWA in 2016, California amended its own statutes, including portions of the Welfare and Institutions Code related to notice and inquiry. (25 C.F.R. § 23.107(c); 81 Fed. Reg. 38803 (June 14, 2016) ["The final rule . . . provide[s] specific guidance regarding what constitutes 'reason to know' that a child is an Indian child"]; In re Breanna S. (2017) 8 Cal.App.5th 636, 650, fn. 7.; A.W., supra, 38 Cal.App.5th at p. 662, fn. 3; Assem. Bill No. 3176 (2017-2018 Reg. Sess.).) Those changes became effective January 1, 2019. (A.W., supra, at p. 662, fn. 3.)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The Welfare and Institutions Code now "creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency's initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a 'reason to believe the child is an Indian child, then the Agency 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone 'knows or has reason to know that the child is an Indian child']; id., subd. (d) [defining circumstances that establish a 'reason to know' a child is an Indian child]; § 224.3 [ICWA notice is required if there is a 'reason to know' a child is an Indian child as defined under § 224.2, subd. (d)])." (In re D.S. (2020) 46 Cal.App.5th 1041, 1052 (D.S.).)
"The juvenile court may alternatively make a finding that ICWA does not apply because the Agency's further inquiry and due diligence was 'proper and adequate' but no 'reason to know' whether the child is an Indian child was discovered. (§ 224.2, subds. (i)(2), (g).) Even if the court makes this finding, the Agency and the court have a continuing duty under ICWA, and the court 'shall reverse its determination if it subsequently receives information providing reason to believe that the child is an Indian child and order the social worker or probation officer to conduct further inquiry.' (Id., subd. (i)(2).)" (D.S., supra, 46 Cal.App.5th at p. 1050.)
The Legislature recently amended section 224.2, subdivision (e), to further clarify: "There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know [that a child is an Indian child] enumerated in paragraphs (1) to (6), inclusive, of subdivision (d)." (§ 224.2, subd. (e)(1); Stats. 2020, ch. 104, § 15, eff. Sept. 18, 2020.)
On appeal, we review the juvenile court's ICWA findings for substantial evidence. (D.S., supra, 46 Cal.App.5th at p. 1051; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) Where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied. (D.S., at p. 1051.) II. Discussion
A. Forfeiture
The Agency argues Mother either waived or forfeited this argument by failing to raise it in the juvenile court, and that Mother's appeal should be dismissed as a result.
The Agency acknowledges that ICWA notice issues may be raised for the first time on appeal, but asserts the error alleged here does not relate to notice and instead relates to the manner of inquiry, and that Mother is using ICWA as a shield to delay the proceedings. (See Isaiah W., supra, 1 Cal.5th at p. 10; In re J.T. (2007) 154 Cal.App.4th 986, 991; In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) However, as the Agency also acknowledges, the Agency and the juvenile court have an ongoing duty of inquiry in every case, and the purpose of further inquiry is to determine whether notice is necessary. Thus, courts have consistently found no waiver or forfeiture in cases alleging inadequate inquiry. (See Isaiah W., supra, 1 Cal.5th at p. 6; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 251-252.) Moreover, Mother has raised the issue relatively early in this case, while the continuing duty of inquiry remains.
Accordingly, we decline to apply the doctrine of waiver or forfeiture and exercise our discretion to address the merits of Mother's claim. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.)
B. Substantial Evidence Supports the Juvenile Court's ICWA Findings
Turning to the merits, substantial evidence supports the juvenile court's findings on September 9, 2020, that reasonable inquiry had been made and ICWA notice was not required because there was no reason to believe or know the children were Indian children.
Mother and Father initially denied having any Native American ancestry. However, at the detention hearing, Mother's counsel indicated Mother "could possibly have heritage that goes very far back," but she did not have very much information about that heritage. At the Agency's request, the juvenile court ordered the Agency to conduct additional inquiry.
Consistent with the court's order and the ongoing duty of inquiry, the Agency followed up with Mother on May 13, 2020 and she once again denied having any Indian heritage. The Agency then asked the court to assist in resolving any inconsistencies in Mother's statements. In response, the court directly questioned Mother on the record, and Mother confirmed she had no reason to believe either child has Native American ancestry. Thereafter, neither Mother, Father, nor anyone else involved in the case provided any further information regarding their own Indian heritage, indicating anyone else had information regarding such heritage, or suggesting there was any reason to believe the children were Indian children.
Accordingly, as September 9, 2020, there was no reason to believe, and certainly no reason to know, either child was an Indian child. (See § 224.2, subds. (a)-(e); In re A.M. (2020) 47 Cal.App.5th 303, 323 ["There is no need for further inquiry if no one has offered information that would give the court or [the agency] reason to believe that a child might be an Indian child. This includes circumstances where parents 'fail[ ] to provide any information requiring followup. . . .' "]; D.S., supra, 46 Cal.App.5th at p. 1053 ["The Agency is not required to 'cast about' for information or pursue unproductive investigative leads."].)
Relying on California Rules of Court, rule 5.481, Mother asserts the Agency and the juvenile court's ICWA inquiry was nevertheless inadequate because the court did not order, and Mother did not submit, a written ICWA-020 Parental Notification of Indian Status form.
Rule 5.481 provides, in part, "[a]t the first appearance by a parent" in a juvenile dependency matter, the court must "[o]rder [the parent], if available, to complete [the] Parental Notification of Indian Status (form ICWA-020)." (Cal. Rules of Court, rule 5.481(a)(2)(C).) If the parent does not appear or is unavailable, the court "must order the [Agency] to use reasonable diligence to find and inform the parent . . . to complete [the] Parental Notification of Indian Status (form ICWA-020)." (Id., rule 5.481(a)(3).)
Here, Mother's counsel affirmatively stated that she would file an ICWA-020 form on Mother's behalf when appropriate. The court did not formally order Mother to complete the form, but, as noted, the detention hearing, and all remaining hearings, were conducted via video conferencing pursuant to Emergency Rule of Court 3(a), as a result of the ongoing pandemic. Thus, it is unclear whether Mother was ever "available" within the meaning of Rule 5.841, and, in any event, it was certainly reasonable for the court to rely on Mother's counsel's representation that she would provide the form when appropriate. Moreover, the court did order the Agency to conduct further inquiry and also conducted its own inquiry to confirm Mother's representation that she had "no reason to believe either child has Native American ancestry" on the record.
Mother asserts a parent is "available" within the meaning of rule 5.481 if they appear at the hearing, but that assertion is inconsistent with the plain language of the rule and Mother provides no support for her position. (See California Rules of Court, rule 5.481 (a)(2)(C) ["[a]t the first appearance by a parent" . . . "if available"].)
Mother asserts the court's inquiry was insufficient because the court did not ask each individual question on the ICWA-020 form. While we agree asking each question on the record may have been the most cautious approach, we decline to find error based on the juvenile court's failure to do so under the circumstances at issue here. The specific questions on the form seek information regarding potential Native American ancestry, but there is no indication in the record or on appeal that Mother or Father had any information regarding such heritage. At most, Mother's counsel indicated Mother may have had some heritage that went "very far back" but she did not believe Mother had much information about that, and Mother herself affirmatively and repeatedly indicated she had no reason to believe either child had any Native American ancestry. (See D.S., supra, 46 Cal.App.5th at p. 1053; cf. In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1167 [social worker's report that father denied Indian heritage after previously identifying a potential Indian relative insufficient where a conflict in the evidence regarding such heritage remained].)
Given the unprecedented circumstances and the extensive efforts by the Agency and the juvenile court to confirm Mother had no knowledge of any Native American ancestry, we conclude the Agency and the juvenile court conducted an adequate inquiry and substantial evidence supports the court's September 9, 2020 findings regarding ICWA.
DISPOSITION
The orders are affirmed.
HALLER, J. WE CONCUR: McCONNELL, P. J. DO, J.