Opinion
F072329
02-07-2017
In re F.T., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. STEPHANIE H., Defendant and Appellant.
Roshni Mehta, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 516454)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Roshni Mehta, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Before Levy, Acting P.J., Kane, J. and Poochigian, J.
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INTRODUCTION
Appellant Stephanie H. (mother) appeals from the Welfare and Institutions Code section 366.26 order terminating her parental rights to her daughter, F.T., born in September 2011. Mother's sole claim is that the juvenile court erred when it found that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) did not apply because the finding was not supported by adequate inquiry or notice on the part of the juvenile court and the Stanislaus County Community Services Agency (department). On March 1, 2016, this court affirmed the order terminating parental rights. Mother appealed and on October 26, 2016, the California Supreme Court remanded the case with directions to vacate the decision and reconsider the case in light of In re Isaiah W. (2016) 1 Cal.5th 1 (Isaiah W.). Once again, we affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. --------
FACTS AND PROCEDURAL HISTORY
Since mother does not challenge the juvenile court's jurisdictional finding, dispositional ruling, or findings supporting its decision to select adoption as the permanent plan and terminate parental rights, a detailed summary of the evidence supporting these rulings is unnecessary. The department detained F.T. in October 2012 after she was brought to the emergency room for unexplained injuries, including a near drowning, bruises, and lacerations, for the fifth time in a period of four months. The department petitioned on October 26, 2012, pursuant to section 300 to have F.T. declared a dependent of the juvenile court.
The petition filed by the department included a completed Indian Child Inquiry Attachment form (ICWA-010(A)), which contained a mark in the box next to the statement, "The child may have Indian ancestry." Mother completed a Parental Notification of Indian Status form (ICWA-020), stating she may have Cherokee and Navajo ancestry. The father also completed an ICWA-020 form, stating he had no known Indian ancestry.
A completed Notice of Child Custody Proceedings for Indian Child (ICWA-030) was completed by the department, giving notice of the jurisdiction and disposition hearing. That form indicated that F.T. might have Cherokee ancestry; no mention of Navajo ancestry was made on the form. The completed form was served on mother, the father, the Bureau of Indian Affairs (BIA), the Secretary of the Interior (Secretary), the Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians. An amended ICWA-030 was filed and served on the same tribes, the BIA, and the Secretary.
The combined jurisdiction and disposition report filed November 15, 2012, notes that F.T. may have Indian ancestry because mother reported having Cherokee and Navajo ancestry.
A jurisdictional hearing was held January 31, 2013. The juvenile court found that F.T. came within the provisions of section 300, subdivision (b). The disposition hearing was held on that same day, F.T. was declared a dependent, and mother was offered reunification services. Mother was informed by the juvenile court that she had a right to file an appeal and that if she had any questions about her appeal rights, to "discuss those with your attorney."
On May 28, 2013, a second amended ICWA-030 was filed and this second amended ICWA-030 was served on the Cherokee Nation of Oklahoma, the Navajo Nation, and the Ramah Navajo School Board, as well as the BIA and the Secretary.
The status review report filed May 31, 2013, reflects the responses from the tribes. The Cherokee Nation of Oklahoma requested additional information, which was provided. The Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians responded that F.T. is not an Indian child. The Navajo Nation and the Ramah Navajo School Board had not yet responded.
At the section 366.21, subdivision (e) hearing held on June 26, 2013, mother was present with her attorney. The juvenile court found that proper notice had been given and that the ICWA did not apply to F.T. The juvenile court informed mother that she had the right to appeal if she had "any objections" and that she had "60 days in which to file the appeal."
Services were offered to mother for 12 months; a 12-month review report was filed by the department. At the 12-month review hearing on December 12, 2013, services were ordered continued for mother. At the 18-month review hearing, services were continued for mother. On September 26, 2014, F.T. was returned to mother's care.
On February 27, 2015, a first amended section 387 petition was filed. The section 387 petition alleged that while placed with mother, F.T. had obtained bruises on her body five different times, including on the side of her head and her jawline. It also was alleged that mother had: (1) been receiving services since October 2012; (2) minimally engaged in services; (3) failed to provide a safe sleeping environment for F.T.; (4) been told numerous times to clean the home in which F.T. and mother were living; and (5) missed multiple appointments for services for F.T., including doctor's appointments. A social worker had also reported the smell of marijuana in the home during a visit.
At the detention hearing on the section 387 petition, F.T. was detained. A contested jurisdiction hearing concluded on April 16, 2015. The allegations of the section 387 petition were found true. F.T. was placed back into the foster home in which she had lived prior to being returned to mother. The foster parents indicated a desire to adopt F.T.; they also had F.T.'s younger half-sister in their home. At the section 366.26 hearing on August 6, 2015, the juvenile court terminated mother's parental rights.
Mother filed a notice of appeal from the order terminating parental rights on September 16, 2015. The sole issue raised in this appeal is that the juvenile court's finding that ICWA does not apply is not supported by substantial evidence.
On December 29, 2015, the parties filed a "STIPULATION TO IMMEDIATE LIMITED REMAND" with this court. In the stipulation, they agreed to an immediate remand of this case to the juvenile court to provide ICWA notice to the Cherokee Nation, the United Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, the Navajo Nation, the Ramah Navajo School Board, and the Colorado River Indian Tribes. It appears to contemplate that the judgment terminating parental rights is set aside, to be reinstated if the tribes respond that F.T. is not an Indian child, but reinstatement is only after mother is provided an opportunity to be heard.
By order filed December 31, 2015, this court deferred ruling on the parties' stipulation pending consideration of the appeal on the merits.
In a letter dated January 11, 2016, the department notified this court it would not file a respondent's brief.
This court affirmed the termination of parental rights in an opinion filed March 1, 2016. Mother appealed from that opinion to the California Supreme Court.
On May 4, 2016, the department filed a motion for determination of ICWA applicability in the juvenile court. The motion listed the tribes, the Secretary, and the BIA, as having been served with ICWA-030 in February 2016. The motion also listed the responses, as well as the lack of response from some tribes, and noted that more than 60 days had passed since the tribes received the ICWA notice. On May 6, 2016, the juvenile court granted the department's motion and issued an order that the ICWA did not apply in F.T.'s case.
On October 26, 2016, the California Supreme Court directed that our opinion be vacated and the case reconsidered in light of Isaiah W., supra, 1 Cal.5th 1. No party submitted a supplemental brief after remand, as allowed by California Rules of Court, rule 8.200(b).
On December 20, 2016, on this court's own motion, pursuant to California Rules of Court, rule 8.155(a)(1)(A), we ordered the record on appeal be augmented to include the additional information (ICWA mail receipts) filed in the juvenile court on February 29, 2016, and the motion for determination of ICWA applicability, copies of ICWA documents, and the order filed May 6, 2016.
DISCUSSION
Mother argues the juvenile court's finding that the ICWA did not apply requires reversal and remand because the finding is not supported by substantial evidence. We disagree. I. ICWA
The ICWA was enacted to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture ...." (25 U.S.C. § 1902.) To achieve this purpose, the ICWA requires notice be given to the child's tribe "where the court knows or has reason to know that an Indian child is involved ...." (25 U.S.C. § 1912(a).) The tribe's response will determine if the child is an Indian child. (Ibid.; see In re Desiree F. (2000) 83 Cal.App.4th 460, 470 ["one of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child."].) An Indian tribe means a federally recognized Indian tribe. (25 U.S.C. § 1903(8).)
State law imposes on both the juvenile court and the county welfare agency "an affirmative duty to inquire whether a dependent child is or may be an Indian child." (In re Nikki R. (2003) 106 Cal.App.4th 844, 848; § 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a).) If the agency or the court "knows or 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" to facilitate the provision of notice. (§ 224.3, subd. (c); see In re Alice M. (2008) 161 Cal.App.4th 1189, 1200.)
The ICWA defines an Indian child as "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 H.B. (2008) 161 Cal.App.4th 115, 120, citing 25 U.S.C. § 1903(4).) The necessity of a biological tie to the tribe is underlined by the ICWA definition of a "'parent'" as "any biological parent or parents of an Indian child ...." (25 U.S.C. § 1903(9).) II. Standing to Challenge ICWA Notice
Mother contends the juvenile court's finding that the ICWA does not apply is not supported by proof of proper notice or inquiry to all relevant Indian tribes. Mother acknowledges that she failed to appeal from prior orders of the juvenile court's finding that the ICWA was inapplicable to F.T. Mother requested that we revisit and overrule our opinion in In re Pedro N. (1995) 35 Cal.App.4th 183 (Pedro N.), which applies waiver and forfeiture to parents who wait until the termination of parental rights to first make an ICWA challenge. (Pedro N., supra, at pp. 185, 189.)
In Pedro N., we held that a parent who fails to challenge a juvenile court's action timely regarding the ICWA is foreclosed from raising ICWA issues, once the juvenile court's ruling is final, in a subsequent appeal from later proceedings. The proper time to raise such issues is after the disposition hearing. The juvenile court's rulings and findings at the disposition hearing are appealable upon a timely notice of appeal. We noted in Pedro N. that the parent there was represented by counsel and failed to appeal the juvenile court's orders from the disposition hearing. (Pedro N., supra, 35 Cal.App.4th at pp. 185, 189-190.)
The California Supreme Court, on July 7, 2016, issued Isaiah W., supra, 1 Cal.5th 1 and held that "'parents' inaction does not constitute a waiver or otherwise preclude appellate review'" of a challenge to an ICWA finding. (Id. at p. 13.) Isaiah W. explicitly disapproved our holding in Pedro N. (Isaiah W., supra, at p. 14.) Therefore, mother may challenge the ICWA finding in this appeal.
III. ICWA Does Not Apply
In the instant action, the juvenile court's initial finding that the ICWA was inapplicable to F.T. was made at the hearing conducted June 26, 2013. At that hearing, the court had before it the amended ICWA-030 and the social study report noting that the Cherokee Nation of Oklahoma had requested, and been provided, further information; both the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians had responded that F.T. is not an Indian child; and the Navajo Nation and the Ramah Navajo School Board had not yet responded.
Subsequently, on February 11, 2016, the department mailed ICWA notices, ICWA-030, to the Secretary, BIA, and multiple tribes. The tribes notified were the Cherokee Nation of Oklahoma, Eastern Band of Cherokee Indians, United Keetoowah Band of Cherokee, Navajo Nation, Ramah Navajo School Board, Colorado River Indian Tribes, and Navajo Region Director. Proof of receipt of the ICWA notice by all of the tribes, the Secretary, and the BIA was filed with the juvenile court.
On February 23, 2016, the Cherokee Nation of Oklahoma responded that F.T. is not an Indian child. The United Keetoowah Band of Cherokee responded on February 12, 2016, that there was no evidence indicating F.T. is an Indian child.
The Ramah Navajo School Board responded on March 28, 2016, that they could not confirm or deny that F.T. is an Indian child, as they did not have access to the Navajo Nation Census Office data. The Ramah Navajo School Board stated in their letter they would forward the information on F.T. to the Navajo Nation ICWA Office for a determination. The Navajo Nation thereafter responded that they were "unable to verify the child's eligibility for tribal membership enrollment with the Navajo Nation" and were closing their file.
The Eastern Band of Cherokee, who had previously responded that F.T. is not an Indian child, did not respond to the February 2016 ICWA notice. The Colorado River Indian Tribes also did not respond to the February 2016 notice. The BIA responded that eligibility for enrollment was determined by each individual tribe.
On May 4, 2016, the department filed a motion for determination of ICWA applicability. The motion listed the tribes, the Secretary, and the BIA, as having been served with ICWA-030 in February 2016. The motion also listed the responses, as well as the lack of response from some tribes, and noted that more than 60 days had passed since the tribes received the ICWA notice. On May 6, 2016, the juvenile court granted the department's motion and issued an order that the ICWA did not apply in F.T.'s case.
Mother indicated she might possibly be connected to the Cherokee and/or Navajo tribes and the department notified every possible Cherokee and Navajo tribe, the Secretary, and the BIA. After notification, most tribes responded that there was no evidence to indicate F.T. is an Indian child; two tribes did not respond after a lapse of 60 days from the date of receipt of notice. Section 224.3, subdivision (e)(3) provides that the juvenile court may determine the ICWA does not apply if proper notice has been provided and neither a tribe nor the BIA has provided a determinative response within 60 days after receiving the notice. When the tribes and BIA have responded that the child is not an Indian child, or have failed to provide a determinative response within 60 days, then the juvenile court may find that ICWA does not apply. (Isaiah W., supra, 1 Cal.5th at p. 15.)
Although several tribes had responded by June 26, 2013, that ICWA did not apply, it arguably was error for the juvenile court to make a determination on that date. (§ 224.3, subd. (e)(3).) As of June 26, 2013, the three Cherokee tribes had received notice more than 60 days prior to the hearing; the Navajo tribes had not. The second amended ICWA notices had only been served in May 2013 on the Navajo tribes.
However, any error was harmless. The subsequent renotification to all possible tribes of the Cherokee and Navajo nations, plus the Secretary and BIA in February 2016, provided ICWA notice. Although two tribes did not respond to the ICWA notices mailed in February 2016 as of May 2016, the responses from all the other tribes verified there was no evidence that F.T. is an Indian child.
Substantial evidence, albeit after the initial determination, supports the juvenile court's determination that F.T. is not an Indian child and ICWA does not apply to these proceedings. (Isaiah W., supra, 1 Cal.5th at pp. 14-15.) F.T. has been in the dependency system since 2012; a family was ready and willing to adopt F.T. and provide her a stable, loving home as of August 6, 2015; and adoption procedures were initiated. No purpose would be served by remanding this case for yet another round of ICWA notices to the tribes; the result will be the same. After four years, F.T. needs permanency and stability with her prospective adoptive parents.
DISPOSITION
The order terminating parental rights is affirmed.