Opinion
D059981 Super. Ct. No. J517606A-B
12-20-2011
In re JOHNNY R., JR., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. STEPHANIE B. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from findings and orders of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Reversed and remanded with directions.
Stephanie B. and Johnny R., Sr., (Johnny, Sr.) appeal from orders terminating their
parental rights under Welfare and Institutions Code section 366.26. The sole issue on appeal is whether the matter must be remanded for compliance with the Indian Child Welfare Act (ICWA), title 25 United States Code sections 1901 et seq. and 224 et seq. We reverse.
Unless otherwise indicated, further references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal concerns twin boys, Johnny R., Jr., and Steven R. (together, the children), who were born prematurely in July 2009 and hospitalized for several months. The drug-exposed, medically fragile children were placed in protective custody in September and again in November 2009, and adjudicated dependents of the juvenile court in March 2010.
The children's parents did not complete their court-ordered treatment plans. The juvenile court terminated family reunification services at the six-month review hearing in November 2010. The section 366.26 hearing was held in June 2011. By that time, Stephanie, who was incarcerated periodically during the dependency proceedings, had not visited the children for more than a year. Johnny, Sr., did not visit the children after November 2010.
When the San Diego County Health and Human Services Agency (Agency) first detained the children in protective custody, Stephanie filed form ICWA-020, Parental Notification of Indian Status, stating she was or may be eligible for membership in the Campo Band of Mission Indians, and her maternal grandmother, E.S., and aunt, V.S., were members of the tribe. There were no claims of Indian heritage through any other branch of the children's maternal or paternal families.
On September 16, 2009, the social worker briefly spoke with Stephanie's aunt V.S. about placing the children with her. The social worker did not discuss the family's Indian heritage with V.S. When the social worker tried again to contact her, V.S.'s telephone number was no longer in service.
On December 2, the social worker contacted Stephanie's mother, R.B., to initiate a home evaluation for the children's placement. The record does not indicate the social worker inquired about the family's Indian heritage.
In the jurisdiction/disposition report, the social worker stated Stephanie had mentioned she might belong to a Choctaw or Cherokee Tribe, and the Campo Band of Mission Indians. Stephanie had not yet had an opportunity to ask V.S. about the family's Indian heritage. The social worker sent ICWA notices to three Cherokee Tribes, three Choctaw Tribes and the Campo Band of Mission Indians. The notices included only the children's names, and place and date of birth, and Stephanie and Johnny, Sr.'s, names, current addresses, and places and dates of birth. The notices did not identify any of the children's grandparents or great-grandparents or provide any other information about the family's Indian heritage.
In response, the Bureau of Indian Affairs (BIA) stated there was insufficient information in the notice to substantiate any federally recognized tribe. The Cherokee Nation requested the complete names of the children's grandparents and great-grandparents, including maiden names, and their dates of birth. The Eastern Band of Cherokee and the Mississippi Band of Choctaw Indians reported that Steven was not eligible for membership in their tribes.
On March 11, 2010, at the settlement conference, the juvenile court ordered Stephanie, who was incarcerated, to complete form ICWA-030, Notice of Child Custody Proceeding for Indian Child. Stephanie returned form ICWA-030 to the social worker at the disposition hearing on March 18. County counsel told the juvenile court the form contained "some significant additional information regarding relatives who may have further information" about the family's Indian heritage. The court ordered the Agency to renotice the tribes.
The form Stephanie returned to the social worker is not included in the record.
On or about March 29, the Agency sent ICWA notices to the Campo Band of Mission Indians and the BIA with the new information Stephanie had provided to the social worker. In addition to the parents' information, the notices included the full names of the children's maternal grandparents and great-grandparents, the full name of their paternal grandmother and the last name of their paternal great-grandfather. They provided the maternal great-grandmother's date of birth. The notices included the names of V.S. and her husband, R.S., the children's maternal great-aunt and great-uncle, and listed their residence as "Campo Reservation." Under "additional information," Stephanie stated her aunt V.S. was "adopted" by the Campo Band of Mission Indians after V.S. married her husband, who was a tribal member.
In April 2010, the home of R.B., the maternal grandmother, was approved for the children's placement. On April 27, the Agency held a Team Decision Meeting and decided to move the children from foster care to R.B.'s home after a transition period of four to six weeks. R.B. visited the children regularly and had day visits with the children on weekends. In mid-May, the Agency learned there was another adult present in the home and did not proceed with the placement transfer plan. The record does not indicate the social worker asked R.B. about the family's Indian heritage.
On June 9, the juvenile court directed the Agency to submit an addendum report detailing its efforts to obtain information about the family's Indian heritage from the children's relatives, and to notice the Cherokee and Choctaw Tribes with any additional information it received. The court set a special hearing to address ICWA issues on July 14.
At the special hearing, the social worker reported that she had telephoned R.B. multiple times in April, May and June to inquire about the family's Indian heritage and speak to her about other matters. R.B. returned her telephone call in May and left a message to return her call. The social worker was unable to reach her. In June, the social worker telephoned the home and reached R.B.'s partner. The partner gave V.S.'s telephone number to the social worker. It was not in service.
In response to the second notice sent to the Campo Band of Mission Indians and the BIA, the BIA stated it did not need to respond because appropriate notice was provided to the Indian tribe, and the Indian tribe would determine the child's tribal status. The record does not indicate the Campo Band of Mission Indians responded to the notice of the children's dependency proceedings.
On July 14, 2010, the juvenile court found that ICWA notice was provided as required and ICWA did not apply.
On June 20, 2011, the juvenile court found that the children were adoptable and terminated parental rights.
DISCUSSION
Stephanie and Johnny, Sr., contend the juvenile court erred when it found that ICWA did not apply. They argue the Agency did not fulfill its obligation under state law to ask R.B., the children's maternal grandmother, about her Indian heritage and as a result, notice to the tribes was inadequate.
Each parent adopts by reference the other parent's brief. (Cal. Rules of Court, rule 8.200(a)(5).)
ICWA protects the interests of Indian children, their tribes and families by establishing minimum federal standards for proceedings involving foster care placement or termination of parental rights. (25 U.S.C. § 1912; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Jullian B. (2000) 82 Cal.App.4th 1337, 1344.) "ICWA sets forth minimum substantive and procedural standards to protect the interests of Indian children, Indian families and Indian tribes." (In re Jack C. (2011) 192 Cal.App.4th 967, 977.)
Under California law, a social worker must provide notice in accordance with section 224.2, subdivision (a)(5), if he or she knows or has reason to know that an Indian child is involved in the proceedings. (§ 224.3, subd. (d).) The circumstances that may provide reason to know the child is an Indian child exist when a member of the child's extended family provides information that suggests one or more of the child's biological parents, grandparents or great-grandparents are or were a member of a tribe, the residence of the child or the child's family is in a predominantly Indian community or the child or the child's family has received Indian services or benefits. (§ 224.3, subd. (b).)
In California, if the court or social worker receives information suggesting that an Indian child is involved in the proceedings, the social worker must make further inquiry regarding the possible Indian status of the child by interviewing the parents and extended family members, contacting the BIA for assistance in identifying the tribe and contacting the tribes and any other person that can reasonably be expected to have information regarding the child's membership or eligibility. (§ 224.3, subd. (c); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 256 [duty of inquiry triggered by receipt of information suggesting that the child is an Indian child].) If, after further inquiry, the court or social worker knows or has reason to know the child is an Indian child, the social worker must provide notice in accordance with section 224.2, subdivision (a)(5). (§ 224.3, subd. (d).)
The Agency contends they fulfilled their statutory duty to interview the parents and extended family members because R.B. and V.S. were not available to discuss the matter. We are puzzled by this assertion with respect to R.B. The Agency was working with R.B. from December 2009 to May 2010 to evaluate her home for placement and transfer the children to her care. She visited the children regularly and continued to visit them after the Agency decided not to place the children in her care. The record does not indicate the Agency reasonably complied with section 224.3, subdivision (c), which requires the social worker to interview extended family members about the family's alleged Indian heritage.
The Agency argues the information concerning the family's alleged Cherokee and Choctaw heritage is attenuated, speculative or vague, and was insufficient to trigger notice requirements under ICWA. (In re Shane G. (2008) 166 Cal.App.4th 1532, 1539.) However, Stephanie did not speculate that one of her ancestors had or may have had some Indian heritage. Instead, Stephanie said she "might belong" to the Choctaw Tribe, the Cherokee Tribe and the Campo Band of Mission Indians. Information suggesting that one or more of the child's biological parents, grandparents or great-grandparents are or were a member of an Indian tribe triggers a duty of further inquiry under section 224.3, subdivision (c).
Finally, the Agency argues the record contains substantial evidence to support the juvenile court's finding that appropriate notice was sent to the Campo Band of Mission Indians. It relies on the BIA's letter, dated April 16, 2010, stating the BIA was not required to respond to the ICWA notices because the county provided appropriate notice to the tribe or tribes.
The Agency acknowledges the standard of review for ICWA inquiry or notice issues is not clear, and argues that either a substantial evidence or abuse of discretion standard applies. We need not address this issue here.
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In any case in which state or other applicable state or federal law provides a higher standard of protection to the rights of the parent of an Indian child, or the Indian child's tribe, the court shall apply the higher standard. (§ 224, subd. (d); cf. 25 U.S.C. § 1921.) Although the BIA's response would be sufficient to support the juvenile court's findings if the federal notice statute applied here, it is not sufficient to meet California's more stringent inquiry and notice requirements. (See, generally, In re Damian C. (2009) 178 Cal.App.4th 192, 197-198 [the California Legislature intended to broaden the interpretation of current federal laws, including additional noticing requirements].) We conclude the court erred when it found that appropriate ICWA notice was provided to the Campo Band of Mission Indians. (§ 224.3, subds. (b), (c) & (d).)
DISPOSITION
The orders terminating parental rights are reversed, and the matter is remanded to the juvenile court with direction to inquire of the maternal grandmother whether she or another relative of the children have any Indian heritage, whether she has information about the children's maternal relatives required for notice and to provide notice to the tribes in accordance with section 224.2. If inquiry produces no evidence the children are or may be Indian children, or if notice is required and there is no confirmation the children are Indian children, or if the tribe confirms the children are Indian children but the child, the Indian child's tribe or a parent does not petition to invalidate an action taken in violation of title 25 United State Code sections 1911, 1912 and 1913 of ICWA (§ 224, subd. (e); 25 U.S.C. § 1914), the court shall reinstate its findings and orders terminating parental rights.
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NARES, J.
WE CONCUR:
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McCONNELL, P. J.
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BENKE, J.