Opinion
F079911
02-19-2020
In re E.W., et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. R.W., Defendant and Appellant.
Susan M. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena R. Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. JVDP-18-000043, JVDP-18-000045, JVDP-18-000046, JVDP-18-000047)
OPINION
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Susan M. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena R. Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and Snauffer, J.
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R.W. (mother), mother of the four minors (E.W., P.W., C.J., and T.W.), appeals from the juvenile court's order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. (§§ 395, 366.26.) She contends the court erred in finding the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq. (ICWA)) did not apply. We conclude the ICWA inquiry and notices to the tribes were insufficient. We reverse and remand for limited ICWA proceedings.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Because mother's sole claim challenges compliance with the ICWA, we limit the background summary to the ICWA-related facts and procedures unless otherwise relevant to the issues on appeal.
In May of 2018, the Stanislaus County Community Services Agency (agency) received a referral that then two-year-old T.W. was taken by ambulance to the hospital after mother's boyfriend, who was babysitting, found the child sleepy and unresponsive and called 911. T.W. was found to have bleeding in the brain and two broken ribs, and she was subsequently diagnosed with a contusion to her liver that appeared to be about three weeks old. She had new and old rib fractures, as well as bruising on an arm and bilateral retinal hemorrhages. A child abuse specialist eventually reported that T.W.'s injuries were indicative of non-accidental trauma. Mother claimed her regular babysitter, not boyfriend, was responsible for T.W.'s injuries.
Tyrone J. was alleged by mother to be the father of three-year-old C.J. and of T.W., but he was not sure and was unaware of DNA results. He stated he had not seen the children in about a year and was not in a position to care for them.
K.B., who lived in Georgia, was the alleged father of nine-year-old Alexander and eight-year-old P.W. He had not seen Alexander since before P.W. was born and had never seen P.W. However, Justin F. was listed on Alexander's birth certificate and was, therefore, his presumed father.
David S., the alleged father of 11-year-old E.W., was not located.
A section 300 petition was filed as to all five children. Allegations under section 300, subdivisions (b)(1), (e), (g), and (j), alleged the injuries to T.W., mother's anger issues, the absences of the fathers, and abuse of a sibling all placed the children at a risk of harm.
At detention on May 30, 2018, mother executed parental notification of Indian status forms (ICWA-020) indicating she "may have Indian ancestry," and listed the Cherokee and Blackfoot tribes. When asked by the juvenile court, mother stated that, according to her father, her father's side was Cherokee and her maternal grandmother was Blackfoot. An ICWA-020 for K.B. was completed indicating no Indian heritage. Tyrone J., David S. and Justin F. did not appear at the hearing. The children were detained and placed with maternal grandmother.
Mother spelled the name of the tribe "Blackfoot" in her form and at the hearing. Statements from the tribe spell the name "Blackfeet," and we will proceed as if mother stated "Blackfeet."
An ICWA-030, completed by the agency on June 19, 2018, was served on the three Cherokee tribes, the Blackfeet tribe, and the Bureau of Indian Affairs (BIA). On the maternal side, the notice contained the name, current address, and birthdate of mother, along with an indication that she was born in California "City unknown." The notice contained maternal grandmother and grandfather's names, birthdates and current addresses, with birthplaces as unknown. It listed one maternal great-grandmother, on mother's maternal side, with current address and birthdate, birthplace unknown. And it listed one maternal great-grandfather, on mother's maternal side, with no birthdate or current address, but listed birthplace as Texas. Nothing is listed for great-grandparents on mother's paternal side. Aside from the reference to Cherokee or Blackfeet in the information for mother, no tribe or band is designated for any individual.
In addressing this issue, both parties reference only ICWA-30 notices for C.J. and T.W., as these two children share both parents (mother and Tyrone J.) with purported Indian heritage. The ICWA-030 notices for E.W. and P.W., neither of whose fathers claimed Indian heritage, contain the same maternal lineage information as their sisters' notices.
When referring to the various relationships, we refer to them by their relationship to the children.
For father Tyrone J., identified as alleged father, the notice listed his name, current address, and date of birth, with birthplace as "City unknown, Missouri." It did not contain any information specifically for other lineal relatives, but under the section for "[o]ther relative information," it listed one paternal aunt with current address and birthdate, as well as three other named individuals with addresses and birthdates, designated as "paternal relatives." No information was provided as to tribe or band.
On July 10, 2018, the agency filed copies of the returned certified mail receipts indicating that all four tribes and the BIA had acknowledged receipt of the notices in a timely fashion.
A week after the notices were sent, mother participated in a social history interview and clarified that she was born in French Camp, California.
The jurisdiction report indicates that the social worker attempted to contact Tyrone J. on June 18, July 9, and August 10, 2018. He did not respond until August 16, 2018, and was "unsure of how involved he wanted to [be] in this matter." Attached to the jurisdiction/disposition report was an August 16, 2018, due diligence search for relative/family members. While the names of relatives are redacted, the report contained listings for numerous maternal relatives and a paternal aunt and three undesignated relatives for T.W. and C.J. No "valid phone" numbers were listed for any of these relatives, but "connection" letters were sent to each.
Tyrone J. appeared for the first time on August 21, 2018, at the scheduled jurisdiction hearing. He completed an ICWA-020 indicating he "may" have Indian ancestry, but the tribe was "unknown." When asked by the trial court if he had any way of finding out what particular tribe or tribes his family might belong to, Tyrone J. said he "believe[d]" he could and "[p]ossibly" could do it immediately, but that he was "just getting in contact with family members" and did not know what was going on "on the other end" as his family was "on the other side of the country." The juvenile court explained the importance of the timeliness of the information and "direct[ed]" him to do "everything" he could and to let the social worker know of any information received. When asked if he wished to participate in the proceedings, father stated that he was only at the hearing "in support of mom." A contested jurisdiction/disposition hearing was set for September 17, 2018, and the juvenile court directed the agency to send notice to the BIA and, if any further information about tribal affiliation was provided, to the alleged tribes.
On September 6, 2018, the agency sent notice for T.W. and C.J. to the BIA in compliance with the juvenile court order. It contained the same family history listed in the previous notice sent in June 2018.
The contested jurisdiction/disposition hearing was trailed to October 25, 2018. The agency was ordered to resend ICWA notice and to allow ICWA to "perfect" for the tribes previously noticed.
On September 18, 2018, the agency filed the returned certified mail receipt for the BIA indicating receipt on September 10, 2018. The agency also attached a form letter from the BIA indicating the "letter of inquiry" on Tyrone J. was being returned due to failing to designate a tribe and, when "additional information becomes available" to notice the appropriate tribes.
On October 1, 2018, per the juvenile court order, the agency sent ICWA-030 notice for T.W. and C.J. to the three Cherokee tribes and the Blackfeet tribe. It contained the same biographical information as the previous notices.
An addendum report filed for the October 16, 2018, pretrial indicated that, although Tyrone J. was instructed by the juvenile court to obtain further information on tribal affiliation and report to the social worker, he had not done so. He had not had any contact with the agency since his appearance in juvenile court and had not visited his children or contacted any service providers.
On October 19, 2018, the agency filed the certified mail receipts from the BIA and all four noticed tribes indicating that the notices were received by them between October 3 and October 9, 2018. Tyrone J. did not appear at the scheduled October 25, 2018, hearing and the matter was trailed to November 26, 2018, due to juvenile court unavailability.
An addendum report filed November 19, 2018, reported additional instances of abuse by mother as reported by the children. The report stated that Tyrone J. had had no contact with the agency, service providers, or his children.
At the commencement of the jurisdiction/disposition hearing November 26, 2018, the juvenile court found that ICWA notice was properly given and it was unknown whether ICWA applied. Both mother and Tyrone J. were present. The hearing was held over multiple days and, on December 10, 2018, the juvenile court found clear and convincing evidence to sustain the petitions and denied services to mother and all fathers, aside from Justin F. The juvenile court offered reunification services to Justin F., Alexander's presumed father, and bifurcated his case from that of his sisters. A section 366.26 hearing was set for the four girls.
This child is not at issue in this appeal. --------
Mother filed a notice of intent to file writ petition, but it was dismissed on February 14, 2019, due to failure to file a petition.
The agency filed a motion for determination of ICWA applicability dated May 8, 2019. It included letters from the three Cherokee tribes indicating none of the children were considered Indian children for the purposes of the tribes. The Cherokee Nation letter indicated that it had "examined the tribal records regarding the above-named child/children and none of the names provided can be found." The Eastern Band of Cherokee Indians stated it had reviewed its tribal registry and, based on the information received, found the children were neither registered nor eligible to register as a member of the tribe. And the United Keetoowah tribe stated that the children did not meet the necessary requirements to become eligible for enrollment or to be recognized as citizens of the tribe.
Each letter from the tribes indicated that, if further information was obtained, additional inquiry could be made.
No response was received from the Blackfeet tribe. The agency filed a declaration of due diligence indicating that an October 29, 2018, call, a January 24, 2019, e-mail, and a May 2, 2019, follow-up call and e-mail requesting a determination were made, but none returned or received.
On May 14, 2019, the juvenile court ruled on the agency's motion. It granted the motion except as to the Blackfeet tribe, requesting further information on whether the Blackfeet tribe had responded to the May 2, 2019, contact. In response, the agency sent notice of the upcoming July 1, 2019, section 366.26 hearing to the Blackfeet and BIA.
On June 17, 2019, the agency received a letter from the Blackfeet tribe stating that the children were not Indian children as to their tribe. The letter from the Blackfeet tribe indicated that research did not find the children or other persons listed on the tribal rolls. It further noted that, since 1962, a blood quantum of 1/4 Blackfeet blood was required for enrollment. The agency then filed a second motion for determination of ICWA eligibility dated June 26, 2019. On July 1, 2019, the juvenile court signed the order finding that ICWA did not apply to the proceedings.
At the commencement of the section 366.26 hearing on July 9, 2019, the juvenile court stated that ICWA did not apply. The section 366.26 report recommended termination of parental rights as to all four girls and placement for adoption. They continued to live with their maternal grandmother, who wished to adopt them. She was a Resource Family Approval (RFA) home. E.W. and P.W. both reported that they wanted to be adopted by their grandmother; C.J. and T.W. were too young to understand adoption. The juvenile court terminated mother and all fathers' parental rights, finding the beneficial parent/child relationship exception to adoption did not apply.
DISCUSSION
Mother contends the juvenile court and the agency failed their continuing duty of ICWA inquiry despite the availability of information ascertainable by the agency with reasonable diligence. She claims the information contained in some or all of the ICWA notices regarding the minors' relatives was deficient because it lacked the following "necessary" information: mother's place of birth, which was provided to the social worker a week after the initial ICWA notices were sent; as well as information regarding maternal great-grandmothers and great-grandfathers, especially from her paternal side, as it was her father's family that had Cherokee lineage. She also contends the ICWA-030 was deficient in that it did not list Tyrone J.'s birthplace and no information on any paternal grandparents or great-grandparents. The agency argues the juvenile court's ICWA finding was based on all information known to the agency, which information was included in the reports and entered into evidence without objection. The agency further argues it complied with the ICWA's inquiry requirements and was not required to know the parents or their relatives had additional information that had not already been provided and, in any event, any failure of ICWA notice was harmless error.
Because the primary purpose of the ICWA is to benefit the tribes, a parent does not forfeit a claim of ICWA inquiry or notice violation by failing to raise it in the juvenile court. (In re Isaiah W. (2016) 1 Cal.5th 1, 9-15.) As we explain, the record demonstrates the ICWA inquiry and notice here was either incomplete or inadequate or both.
"The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. [Citation.]" (In re K.M. (2009) 172 Cal.App.4th 115, 118-119.) When the juvenile court knows or has reason to know that a child involved in a dependency proceeding is an Indian child, the ICWA requires that notice of the proceedings be given to any federally recognized Indian tribe of which the child might be a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 989.) "At that point, the social worker is required, as soon as practicable, to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility." (In re Michael V. (2016) 3 Cal.App.5th 225, 233; see Cal. Rules of Court, rule 5.481(a)(4)(A).)
ICWA notice must include all of the following information, if known: the child's name, birthplace, and birthdate; the name of the tribe in which the child is enrolled or may be eligible for membership; names and addresses (including former addresses) of the child's parents, grandparents, and great-grandparents, and other identifying information; and a copy of the dependency petition. (§ 224.3, subd. (a)(5)(A)-(H); In re D.W. (2011) 193 Cal.App.4th 413, 417; In re Mary G. (2007) 151 Cal.App.4th 184, 209.)
Here, on May 30, 2018, in response to a question by the juvenile court, mother indicated she had Indian ancestry, stating she believed she had Cherokee on her father's side and Blackfeet on her mother's side through a maternal great-grandparent. She completed an ICWA-020 that same date stating she "may have" Cherokee and Blackfeet ancestry. Tyrone J. appeared for the first time on August 21, 2018, at the scheduled jurisdiction hearing. He completed an ICWA-020 indicating he "may" have Indian ancestry, but the tribe was "unknown," an assertion he repeated at the hearing.
The agency sent notices to three Cherokee tribes and one Blackfeet tribe containing the information, presumable, provided by the parents. An addendum report filed for the October 16, 2018, pretrial provides the only detail regarding the efforts taken by the agency to inquire about possible Indian heritage. The report states that, although Tyrone J. was instructed by the juvenile court to obtain further information on tribal affiliation and report to the social worker, he had not done so. He had not had any contact with the agency since his appearance in juvenile court and had not visited his children or contacted any service providers. The record contains no information regarding any other efforts made by the agency to obtain more information from mother, Tyrone J. or any of the relatives, despite the fact that mother, Tyrone J., and maternal grandparents were present during various hearings throughout the proceedings and the agency had numerous contacts with maternal grandmother.
In fact, as set out in detail by mother, the agency had contact with maternal grandmother "four times before the first ICWA-030 notices were sent in June 2018" ; "five more missed opportunities" before the September 2018 ICWA-030 notices were sent; and "12 additional opportunities" before the last notices were sent on May 31, 2019.
Maternal grandfather also had contact with the agency in May 2018, and appeared in court November 26, 2018.
And, as noted previously, the agency had contact with Tyrone J., and first spoke to him on May 23, 2018, a month before the first ICWA-030 notices were sent. He was contacted again twice before the second set of notices were mailed. He also appeared in court five additional times before the last ICWA-030 notices were sent. There was, however, also evidence that Tyrone J. was not forthcoming, vague and unhelpful regarding his participation in the case or his desire to parent.
Despite all of these instances in which the agency could have added additional information to the ICWA-030, the last ICWA-030 notices sent were identical to the first.
Section 224.2, subdivision (a), imposes "an affirmative and continuing duty to inquire" whether a child is or may be an Indian child. Continuing inquiry was particularly important here, where mother indicated their potential Indian ancestry was through the maternal grandmother and grandfather, but little information about those two relatives was initially provided by mother. "It is essential to provide the Indian tribe with all available information about the child's ancestors, especially the ones with the alleged Indian heritage. [Citation.] Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.]" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; accord In re Louis S. (2004) 117 Cal.App.4th 622, 631 ["The Agency must provide all known information to the tribe, particularly that of the person with the alleged Indian heritage"]; In re J.M. (2012) 206 Cal.App.4th 375, 381.)
Here, the notices failed to include sufficient information regarding mother, Tyrone J. and maternal grandparents, among others, that would allow the tribes or the BIA to determine the children's membership or eligibility for membership. Unfortunately, the extent, if any, to which the agency attempted to obtain more information from the mother or maternal relatives, or any other relatives, cannot be ascertained from this record.
The agency argues that any failure of ICWA compliance is harmless error, stating that the only information mother provided that should have been included in the ICWA-030 was her own birthplace. Error is not presumed. It is mother's obligation to present a record that affirmatively demonstrates error. (In re D.W., supra, 193 Cal.App.4th at pp. 417-418.) "[E]rrors in an ICWA notice are subject to review under a harmless error analysis. [Citation.]" (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414.) If we conclude the juvenile court did not comply with the ICWA provisions, we "reverse only if the error is prejudicial." (In re A.L. (2015) 243 Cal.App.4th 628, 639.)
We first question whether the agency had a duty to inquire under ICWA as to Tyrone J. We note that Tyrone J. was considered an alleged father. He explained that he did not have a relationship with mother, that they "hung out" a few times, there was "alcohol involved" and mother got pregnant. While father did have a DNA test for child support purposes, he was unsure of the results. He is not listed on T.W. or C.J.'s birth certificate. The ICWA defines "parent" as "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child ...." (25 U.S.C. § 1903(9).) The ICWA expressly excludes from the definition of "parent" an "unwed father where paternity has not been acknowledged or established." (Ibid.) Without such evidence, the agency had no duty to conduct any inquiry under ICWA. In any event, we find the lack of information on Tyrone J. nonprejudicial. He made only the barest of allegations that he "may" have Indian heritage without specifying any possible tribe or band. And he provided absolutely no useful information, even though he was admonished by the juvenile court on the importance of doing so.
As to mother, there certainly was a duty to inquire and the agency failed to adequately do so. However, we question whether this lack of information was prejudicial. The ICWA provides that when an Indian child is put into an adoptive placement, "a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families." (§ 1915(a).) Here, the children were not adopted as yet, but they were placed during the entire dependency with maternal grandmother, who wished to adopt them. Maternal grandmother's home had been RFA approved and she wished to adopt the children, "not only [to] reduce the trauma of separation from their family, but [it] would also keep a connection to their family and to the family's cultural traditions."
We can surmise that the relevant Indian tribe, if identified, would agree with the placement of the children with maternal grandmother. However, that decision is not ours. Because ICWA confers on tribes the right to intervene at any point in state court dependency proceedings, if it so chooses (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253), we cannot say the failure of ICWA compliance was harmless. Therefore, we must remand for limited ICWA proceedings.
DISPOSITION
The juvenile court's order terminating parental rights is reversed and the matter is remanded to the juvenile court for limited proceedings to determine compliance under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.). If, at the conclusion of those proceedings, no tribe indicates any one of the minors is an Indian child within the meaning of the Indian Child Welfare Act, then the juvenile court shall reinstate the order terminating parental rights. In all other respects, the order is affirmed.