Opinion
C082427
01-05-2017
In re S.I., a Person Coming Under the Juvenile Court Law. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.P., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13JVSQ2655302)
S.P., mother of the minor S.I., appeals from the juvenile court's March 4, 2016, order selecting guardianship as the permanent plan for S.I. (the March 4, 2016, order). (Welf. & Inst. Code, §§ 395, 366.26.) She contends there was a failure to comply with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We shall vacate the March 4, 2016, order and remand for the limited purpose of permitting the juvenile court to comply with the inquiry and notice provisions of the ICWA.
Mother's notice of appeal does not identify the order from which she is appealing. Construing the notice liberally, as we are required to do, we presume she appeals from the juvenile court's March 4, 2016, order selecting guardianship as the permanent plan for S.I., as it is the order to which she refers in her briefing. (Cal. Rules of Court, rule 8.100(a)(2).)
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
A. The First Petition
In August 2006, the Shasta County Department of Health and Human Services (the Department) filed a dependency petition regarding three-year-old S.I. and his seven-day-old brother. The Department alleged the children were at risk due to mother's mental health condition and because both parents had substance abuse and anger management issues preventing them from being able to care for the children properly. The juvenile court detained both children; S.I. was placed with his maternal grandmother, with whom he already was living.
At the detention hearing, mother indicated she may have Indian ancestry—specifically, Cherokee. Father indicated he did not have Indian ancestry. The court directed the Department to provide ICWA notice "to the tribes identified during the hearing and the Bureau of Indian Affairs."
The Department sent ICWA notices to the Bureau of Indian Affairs (BIA), the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians. The notice included some information for mother and father, as well as the maternal grandmother, but nothing about the maternal great-grandparents.
Other than father's mother's name, the notice did not include information regarding father's side of the family, but he did not claim any Indian ancestry. --------
On November 6, 2006, and again on December 20, 2006, the Cherokee Nation of Oklahoma advised that, based on the information given, S.I. was not an Indian child. The Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians also found that, based on the information given, S.I. was not an Indian child. The juvenile court thus found the ICWA did not apply.
In January 2007, S.I. and his brother were placed with their father.
In August 2007, the juvenile court terminated its jurisdiction over the children and granted legal and physical custody of both boys to their father. B. The Second Petition
In March 2013, the Department filed a second petition regarding S.I., now 10 years old, and two of his brothers, six and four years old. The Department alleged the children were at risk due to mother's mental health issues and her incarceration, as well as father's criminal history, his noncompliance with drug treatment, and his use of corporal punishment, and the parents' history of domestic violence. The petition included notice that the children may have Cherokee ancestry. The juvenile court detained the children and later placed them in foster care.
Again, the Department sent ICWA notices to the BIA, the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians. The ICWA notices provided some information for mother, father, and the maternal grandmother but, again, no information for the maternal great-grandparents.
The Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians each replied that, based on the information provided to them, S.I. was not an Indian child. In April 2013, however, the Cherokee Nation of Oklahoma asked for additional information in order to verify S.I.'s Indian heritage. Specifically, the tribe asked for information regarding "maternal great[-]grandparents and paternal grandparents[,] also paternal great[-]grandparents complete names and dates of birth."
A social worker from the Department responded to the request from the Cherokee Nation of Oklahoma. She indicated father was not claiming any Indian ancestry and had no contact with the Department. She also cataloged her efforts to locate information relative to mother's family: (1) Her attempts to reach mother by phone were unsuccessful, as the number was not accepting calls and there was no option to leave a message, (2) she spoke with the maternal grandfather who said any Indian ancestry would be from the maternal grandmother's side, not his, and (3) she spoke with the social worker assigned to S.I.'s case who told her that S.I.'s maternal grandmother was now dead and that she had left messages with mother over the previous month that had not been returned.
On November 13, 2013, at the six-month review hearing, the juvenile court found the ICWA did not apply. The court also ordered another six months of reunification services for mother.
On February 21, 2014, the juvenile court terminated reunification services for mother.
On October 3, 2014, the juvenile court ordered that S.I. remain a dependent of the court and continued his placement in foster care. S.I. remained in foster care after the review hearing in April 2015.
Prior to the permanency hearing, the Department spoke with several of S.I.'s relatives regarding placement. In August 2015, V.R., the maternal great-grandmother's second cousin, contacted the department saying she was interested in having S.I. placed with her "until the maternal great[-]grandmother could be approved." She received the case worker's number from the maternal great-grandmother, C.T.
In July 2015, S.M., mother's half sister, contacted the Department and expressed her interest in fostering S.I. S.M. also provided the Department with contact information for mother's other sister and mentioned there was another maternal relative living in Alaska. She gave the Department the name of the relative living in Alaska, but indicated she did not have any contact information for him.
The Department spoke with the maternal great-aunt, J.W., about placement for S.I., but J.W. indicated she was unable to take him. The Department also reached out to C.B., S.I.'s maternal uncle, but he did not return their calls. The Department got C.B.'s number from S.I.'s maternal great-grandmother, C.T.
On March 4, 2016, the juvenile court adopted the recommendations of the Department and selected guardianship as the permanent plan for S.I. Mother appeals.
II. DISCUSSION
Mother contends the Department and the juvenile court did not comply with the inquiry and notice provisions of the ICWA by failing to contact any family members other than mother about information on the maternal great-grandmother. We agree.
Congress passed the ICWA "to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children 'in foster or adoptive homes which will reflect the unique values of Indian culture . . . .' [Citations.]" (In re Levi U. (2000) 78 Cal.App.4th 191, 195.)
A social worker has "an affirmative and continuing duty to inquire whether a child [in a section 300 proceeding] is or may be an Indian child." (§ 224.3, subd. (a).) Furthermore, if the social worker "has reason to know that an Indian child is involved, the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required" to be provided in the ICWA notice. (§ 224.3, subd. (c).)
Mother claimed Cherokee heritage. Despite her claim, mother provided the Department with very little information regarding her ancestry. The Department, however, had contact with several people who could have provided the missing information including mother's half sister, the maternal great-aunt, and the maternal great-grandmother. Indeed, according to their own report, the Department not only knew the name of the maternal great-grandmother but appeared to be considering her for placement.
Under these circumstances, it was error for the Department not to include information regarding the maternal great-grandmother in the ICWA notices or to inquire further with the other maternal relatives about the maternal great-grandfather, particularly after the Cherokee Nation of Oklahoma specifically asked for additional information.
The Department argues the error is harmless because mother does not show it is reasonably probable that further inquiry would have led to a different result. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) ICWA error is harmless when a parent claims he or she was never asked about Indian heritage during the dependency but fails to state on appeal that he or she has Indian heritage. (See, e.g., In re N.E. (2008) 160 Cal.App.4th 766, 770-771; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.) Error in ICWA notice also "may be held harmless when the child's tribe has actually participated in the proceedings [citation] or when, even if notice had been given, the child would not have been found to be an Indian child, and hence the substantive provisions of the ICWA would not have applied [citations]." (In re S.B., supra, at p. 1162, fn. omitted.)
This case does not present the situation found in these harmless error cases. Mother made a claim of Indian heritage in the trial court and continues to assert that claim on appeal. The error here was easy for the Department to avoid as it had contact with several potential sources of information about the maternal great-grandparents, including the maternal great-grandmother herself.
The maternal grandmother was the minor's custodian until after the ICWA notices were sent. She is now deceased so the Department missed the opportunity to ask her; however, the Department knew the maternal great-grandmother's name and was in contact with the maternal great-aunt and the maternal aunt. If any of these family members has additional information regarding maternal relatives, the Department will be able to interview them and include that contact information in a revised notice to the tribes. Certainly, the maternal great-grandmother's information can be included in revised notices.
The Department's error was not harmless, as it overlooked what are potentially the best sources of information regarding mother's claim of Indian heritage. A failure to conduct a proper ICWA inquiry requires a limited reversal of the section 366.26 orders and a remand for proper inquiry and any required notice. (In re A.B. (2008) 164 Cal.App.4th 832, 839; In re D. T. (2003) 113 Cal.App.4th 1449, 1454-1456.)
III. DISPOSITION
The March 4, 2016, orders setting guardianship as the permanent plan for S.I. are reversed, and the matter is remanded to the juvenile court for the limited purpose of satisfying the inquiry and notice requirements of the ICWA. The court is directed to order the Department to make a full inquiry of C.T., J.W., and S.M. regarding mother's claim of Indian heritage and all other relevant inquiries that may result from their answers. If additional relevant information regarding mother's claim of Indian heritage is obtained, the Department is to provide additional notice to the BIA and the relevant tribes. If there is no response, or if the tribes and the BIA determine that the minor is not an Indian child, the juvenile court shall reinstate the orders. However, if the tribes or the BIA determine that the minor is an Indian child, the juvenile court shall conduct a new selection and implementation hearing in conformance with all the provisions of the ICWA.
/S/_________
RENNER, J. We concur: /S/_________
RAYE, P. J. /S/_________
BLEASE, J.