Opinion
H047129
11-25-2019
In re N.L. et al., Persons Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. N.L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. 18JU00181, 18JU00182)
B.C. (mother) and N.L. (father) appeal from the juvenile court's order entered pursuant to Welfare and Institutions Code section 366.26 terminating their parental rights over their two daughters. On appeal, mother and father argue only that the juvenile court erred when it found that the notice and inquiry requirements of the Indian Child Welfare Act (ICWA) had been satisfied and the ICWA did not apply to the proceedings. Mother and father claim that the Santa Cruz County Human Services Department (Department) failed to adequately investigate the children's Indian heritage, and the ICWA notices that were sent were deficient because they omitted information that could have been obtained with reasonable diligence. The Department concedes that there were inadvertent omissions in the ICWA notices. We accept the Department's concession and conditionally reverse the order for the limited purpose of ensuring compliance with the ICWA.
Unspecified statutory references are to the Welfare and Institutions Code. --------
BACKGROUND
On July 19, 2018, the Department filed two dependency petitions under section 300, subdivisions (b)(1), (c), and (g) alleging that mother and father's two daughters, ages two and four, came within the juvenile court's jurisdiction. It was alleged that mother was under the influence of alcohol when she cared for the children, and when she was arrested, she left her children without a caregiver. Father had previously broken mother's nose, and there was ongoing domestic violence between the parents in the presence of their daughters. Father's recent whereabouts were not known to the Department, but his last known address was in Texas.
The juvenile court held a detention hearing on July 20, 2018. Mother was in custody at the time, and the Department had been unable to contact father. Mother's cousin, Christine J., was identified as willing and able to care for the children. The juvenile court temporarily placed the children in the Department's care.
An initial inquiry into the children's Indian heritage was made. Christine J. indicated that the children may have Indian heritage. Father's Indian heritage was unknown. Mother initially indicated that she was unsure if she had Indian heritage. Christine J. filled out a "Parental Notification of Indian Status" form indicating that she may have Indian ancestry from the Cherokee tribe in Kansas City, Oklahoma.
On August 6, 2018, mother spoke to the social worker and told her that she believed that her maternal grandfather, Rick C., had Indian ancestry. On August 8, 2018, Christine J. reported that mother's maternal aunts, Sharon D. and Gerry D., were registered with the Cherokee tribe and received tribal benefits. Christine J. reported that Sharon D. had passed away and Gerry D. lived in Madera, California. Christine J. further stated that Rick C. was affiliated with the "Blackfoot" tribe. The social worker contacted father on August 9, 2018, and he stated that he did not have any Indian ancestry.
On August 15, 2018, mother filed a "Parental Notification of Indian Status" form indicating that she may have Indian ancestry from the Cherokee tribe.
On August 22, 2018, the Department filed an ICWA attachment to the social worker's report. According to the attachment, the Department sent ICWA notices to the Bureau of Indian Affairs (BIA) and to three Cherokee tribes. The Department intended to prepare and send an amended ICWA notice to the Blackfeet tribe. Mailing receipts were attached to the report.
The ICWA notice that was sent by the Department listed mother's address as the San Benito County Jail and did not provide her former address. There was no information provided about mother's biological mother. Rick C.'s full address was not provided, and the form indicated that Rick C. was affiliated with the "Cherokee, Kansas City, Oklahoma" tribe. Christine J. was listed as an "other relative," but her current and former address were not provided. No information was provided about Sharon D. or Gerry D., and they were not listed as other relatives on the notice. The notice was sent to the Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians. The social worker did not sign the declaration on the ICWA notice that stated that all information about the relatives, Indian custodian, and the children had been provided.
The Eastern Band of Cherokee Indians responded to the notice and stated that based on the information provided, the children were not registered and were not eligible to register as members of the tribe.
Before the jurisdiction hearing, the Department filed amended section 300 petitions that removed the allegation under section 300, subdivision (g) and added an allegation under section 300, subdivision (b)(1). The amended petitions alleged that father had not cared for the children since September 2017 and did not adequately protect the children.
According to the Department's jurisdiction/disposition report, the children were placed with Christine J. on August 27, 2018, after she was approved as a placement. Both mother and father informed the social worker that they wanted the children to remain with Christine J.
The Department also filed another ICWA attachment to the social worker's report. The Department had sent an ICWA notice to the Blackfeet tribe. The ICWA notice was largely the same as the first notice sent to the three Cherokee tribes, except Gerry D. was named as a relative. Gerry D. was described as the children's maternal great aunt, but no address or date of birth was provided. No mailing receipts were provided with this report, and the social worker did not sign the declaration on the ICWA notice that stated that all information about the relatives, Indian custodian, and the children had been provided. It is unclear whether the BIA was sent a notice.
During the initial jurisdiction hearing, father was found to be the children's presumed father. Mother and father waived their right to trial and submitted on the social worker's reports.
On September 18, 2018, the juvenile court held a combined jurisdiction and disposition hearing and sustained the amended section 300 petitions. The children were declared dependents of the court, removed from mother's custody, and reunification services were ordered for both parents.
On December 10, 2018, the Department filed another ICWA attachment to the social worker's report. According to this report, "an error occurred with the mailing" of the ICWA notices and "none of the certified mail cards were returned to the Department." Subsequently, a second notice of the hearing was sent to the Blackfeet tribe. The ICWA notice that was sent contained the same information as the first notice sent to the Blackfeet tribe. A mailing receipt for the Blackfeet tribe was attached, but there was no mailing receipt for the BIA.
The Department prepared a six-month status review report. According to the report, the children had been removed from Christine J.'s home on September 18, 2018, because Christine J. was unable to obtain approval "by the RFA unit." The children were subsequently placed in a licensed foster home in Santa Cruz County.
On February 13, 2019, the Department filed an ICWA attachment to the social worker's report. The report stated that the Department had received a response from the Blackfeet tribe, and both children were not eligible for enrollment. The Department also received a response from the Cherokee Nation, and both children were not eligible for enrollment.
The following day, the juvenile court determined that three tribes had responded and concluded that the children were not eligible for membership. Moreover, more than 60 days had passed and the remaining tribe, the United Keetoowah Band of Cherokee Indians, had not responded. Therefore, the juvenile court determined that the ICWA did not apply to the children's proceedings.
At the six-month review hearing on March 20, 2019, the juvenile court terminated the parents' reunification services. Father had not engaged in services or contacted the Department, and mother had only minimally participated in services.
By the time of the section 366.26 hearing, the children had been placed in a prospective adoptive home. At the contested section 366.26 hearing, both parents testified. After the hearing, the juvenile court found that the children were likely to be adopted and the parents did not meet their burden to show that a statutory exception to adoption applied. The juvenile court terminated mother's and father's parental rights.
Mother and father appealed.
DISCUSSION
1. The ICWA
"[The] ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family. [Citations.] For purposes of [the] ICWA, an ' "Indian child" ' is a child who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (In re Michael V. (2016) 3 Cal.App.5th 225, 231-232.)
Thus, the ICWA establishes minimum standards requiring notice to Indian tribes for any involuntary proceeding in state court to place a child in foster care or to terminate parental rights if the court either knows or has reason to believe the child is an Indian child. (In re Isaiah W. (2016) 1 Cal.5th 1, 8.) The notices required by the ICWA serve two purposes: to determine whether a child is an Indian child and to ensure an Indian tribe knows it has a right to intervene or exercise jurisdiction in custody proceedings involving Indian children. (Id. at pp. 8-9.)
The requirements of the ICWA are codified in California law. Under section 224.3, subdivision (a), "[i]f the court, a social worker, or probation officer knows or has reason to know . . . that an Indian child is involved" in a dependency proceeding, notice is required. The notice to potentially affected tribes must include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C).) The ICWA also requires that the BIA be noticed in cases where the identity or location of the tribe cannot be determined. (25 U.S.C. § 1912(a).)
Both the court and the agency "have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child" for ICWA purposes. (§ 224.2, subd. (a).) Furthermore, "[i]f the court, social worker, or probation officer has reason to believe that an Indian child is involved in the proceeding," it is required that they make "further inquiry regarding the possible Indian status of the child." (§ 224.2, subd. (e).) Further inquiry includes, but is not limited to, interviewing the parents and extended family members, contacting the BIA and the State Department of Social Services for assistance in identifying names and contact information of the tribes in which the child may be a member, and contacting tribes that may reasonably have information regarding the child's membership. (Ibid.)
The juvenile court is required to determine whether proper notice was given under the ICWA and whether the ICWA applies to the proceedings. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.) We review the trial court's findings for substantial evidence. (In re E.W. (2009) 170 Cal.App.4th 396, 404.) Deficiencies in the ICWA's inquiry and notice requirements can be deemed harmless error if, even had proper notice been given, the child would not have been found to be an Indian child. (Id. at p. 402.)
2. Conditional Reversal is Required
Mother and father filed separate briefs, each arguing that there were deficiencies with the Department's inquiry into the children's Indian ancestry and with the Department's ICWA notice. Mother and father also join in each other's arguments.
Together, mother and father argue that there is nothing in the record reflecting that the Department made inquiries with relatives about their Indian heritage. Furthermore, both parents argue that the ICWA notices were deficient because they lacked easily obtainable information, such as mother's current address, mother's date of birth, information about the children's maternal grandmother, the maternal grandfather's date of birth and complete address, information about three of the children's great-grandparents, more information about one of the children's great-grandparents, Christine J.'s address and place of birth, and information about Sharon D. and Gerry D. Moreover, the social worker did not sign the declaration on the ICWA notices that all information about the relatives, Indian custodian, and the children were provided to the tribes, and it is unclear whether the BIA received the required notice.
The Department submitted a non-opposition letter in response to mother's and father's opening briefs. The Department concedes that "there were inadvertent omissions in the notices, which County staff intends to remedy." Therefore, the Department states that it does not oppose remand for the limited purpose of ensuring its compliance with the ICWA.
Based on our review of the record, we agree with the parties that the Department did not comply with the ICWA's inquiry and notice requirements. As mother and father point out, there is nothing in the record that indicates that the Department fulfilled its continuing duty to make inquiries into the children's Indian ancestry. The Department was provided information about living relatives who may have Indian ancestry, Gerry D. and Rick C., but there is no indication that the Department followed up with these family members and asked them about their tribal affiliation. The record also reflects that the Department did not provide adequate information about the relatives in the notices that it sent to the tribe, omitting readily ascertainable identifying information that could have assisted the tribes with identifying the children, such as addresses and birthdates. Furthermore, it is unclear whether the BIA was properly noticed.
Therefore, the juvenile court erred when it held that the ICWA's notice requirements were met and the ICWA did not apply, and we agree with the parties that a conditional remand is required. (See In re A.B. (2008) 164 Cal.App.4th 832, 839.) Although errors in the ICWA notices are subject to a harmless error analysis, given the state of the record, we cannot say that the Department's failure to comply with the ICWA was harmless. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455 ["Notice is meaningless if no information is provided to assist the tribes and the BIA in making [their] determination" of whether the child involved in the dependency proceedings is an Indian child].)
DISPOSITION
The juvenile court's order is reversed for the limited purpose of ensuring compliance with the inquiry and notice requirements of the ICWA. On remand, the juvenile court shall order the Department to fully comply with the ICWA. If, after proper notice is given, any tribes identify the children as Indian children, the juvenile court shall proceed in accordance with the ICWA. If no tribes identify the children as Indian children, the juvenile court shall reinstate its order terminating parental rights.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Mihara, J.