Opinion
C090000
01-29-2020
In re N.C. et al., Persons Coming Under the Juvenile Court Law. TRINITY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. M.L., 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 17JU017B, 17JU017C)
Appellant M.L., mother of the minors, appeals from the juvenile court's orders terminating parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) Her sole contention on appeal is that the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) were not met. (25 U.S.C. § 1901 et seq.) We conditionally reverse and remand the matter for limited proceedings to ensure ICWA compliance.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed recitation of the facts is unnecessary to the resolution of this appeal.
Trinity County Department of Health and Human Services (Department) filed a section 300 petition on behalf of the two minors in this case, based on parents' failure to provide the minors with adequate medical and mental health care, and mother's physically, emotionally, and verbally abusive behavior in front of the minors. An amended petition also alleged mother has substance abuse and mental health problems.
Prior to the detention hearing, minor S.'s father completed ICWA documentation indicating he did not have Indian ancestry. Mother made statements that the minors may be Cherokee or "Mayan" but refused to complete the ICWA documentation. The court ordered mother to complete the ICWA forms at the October 6, 2017 initial/detention hearing, but mother still did not provide the information. At the jurisdiction hearing, the court ordered mother to fill out the forms at the courthouse at close of the hearing. Mother signed the ICWA-020 form stating she "may" have Indian ancestry, but did not identify any tribes or bands, and filled out the Indian Ancestry Inquiry form. It was also discovered that minor N.'s father may have Indian ancestry.
The Department sent ICWA notice to the Bureau of Indian Affairs and numerous tribes, including the Cherokee, Blackfeet, Sioux, Ute, Yaqui, and Cheyenne tribes. The relative information on the ICWA forms provided one maternal great-grandmother's name and maiden name, but gave no information for the other maternal great-grandmother or either maternal great-grandfather. Each of the tribes either responded that neither parents nor the minors were enrolled or eligible, or did not respond to the ICWA notices within 60 days. At a review hearing held on May 24, 2018, the juvenile court found the ICWA did not apply.
We note that mother was not raised by, and did not know the identity of, her biological father.
Parents failed to comply with their service plans and failed to reunify with the minors. The juvenile court terminated reunification services on October 25, 2018, found visitation between mother and the minors detrimental to the minors, and terminated court-ordered visitation. On June 25, 2019, the juvenile court terminated parental rights as to the two minors. Mother appeals the orders terminating her parental rights.
DISCUSSION
Mother contends the orders terminating her parental rights must be reversed because the Department did not fully comply with the inquiry and notice requirements of the ICWA. Although the Department made efforts to provide ICWA notice to numerous tribes, we must conditionally reverse and remand the matter for limited proceedings for further ICWA compliance.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. (See 25 U.S.C. § 1902; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) A major purpose of the ICWA is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." (25 U.S.C. § 1901(3).) The juvenile court and the Department 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. (Cal. Rules of Court, former rule 5.481(a); former § 224.3, subd. (a).)
The Legislature amended several sections of the Welfare and Institutions Code related to the ICWA, effective January 1, 2019. (Assem. Bill No. 3176 (2017-2018 Reg. Sess.).) Hereafter, undesignated statutory references are to the Welfare and Institutions Code sections in effect in 2016 and undesignated rule references are to the California Rules of Court in effect in 2016.
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.) A mere suggestion of Indian ancestry is sufficient to trigger the notice requirement. (In re Robert A., at p. 989.) Notice requirements are construed strictly. (Ibid.)
The ICWA notice must "contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership." (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) It is essential for the Department to provide the Indian tribe with as much information as is known about the child's ancestors, especially the one with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include all of the following information, if known: the child's name, birthplace, and birth date; 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. (25 C.F.R. § 23.11(d) (2015); § 224.2, subd. (a)(5); In re D.W. (2011) 193 Cal.App.4th 413, 417; In re Mary G. (2007) 151 Cal.App.4th 184, 209.) All this information may not be available, even with inquiry of available relatives, but the Department has an ongoing duty to interview the minor's parents and extended family, if known, concerning the child's membership status or eligibility. (§ 224.3, subds. (a) & (c); rule 5.481(a)(4).)
Mother correctly points out that the Department knew the maternal grandmother's name was "Susan" but did not include that information on the ICWA forms. Mother also contends the Department failed to seek additional ancestor identifying information from her relatives. Although mother was uncooperative, the Department did compile some information for the ICWA forms, though the record is silent as to from where that information was obtained. Nonetheless, we must agree that a reasonable construction of the record suggests that the Department failed to perform further inquiry required by section 224.3, subdivision (c), and therefore to provide the notice information mandated by section 224.2, subdivision (a)(5).
We reject mother's contention that the Department failed to make a reasonable inquiry of her to obtain additional information. The record reflects that mother was uncooperative with the Department in its attempts to obtain ICWA information. Eventually, after several court orders, the Department got whatever information mother was willing to provide. If the Department did not extract additional information from mother, it was not for lack of adequate inquiry. --------
Regarding "Susan," the maternal grandmother, the record reflects the Department knew the maternal grandmother's first name and that the surname known to the Department was that of the man who adopted mother (the same as mother's surname), not her maiden name. The Department, however, had contact with mother's family members, including her adoptive father and two of her sisters, who participated in a meeting facilitated by the Department. In fact, the minors' older half sibling was placed with maternal relatives during the pendency of these proceedings. Additionally, mother's adoptive father was present at several hearings and both he, and mother's adult son, filed requests for visitation in the juvenile court. Two maternal relatives, sharing mother's adoptive father's surname, filed a letter with the court, through mother's counsel, providing their current address. It is reasonably likely that one of these relatives may have further identifying information for "Susan," such as her maiden name, birth date, birth place, or former and current addresses. Those relatives may also have some information for the maternal great-grandfather (Susan's father) or other ancestry information. There is no indication in the record that the Department made an effort to inquire of any of these relatives to obtain the necessary ICWA notice information. If such inquiry was made, the Department should have documented the fact for the court as part of its request to find that the ICWA did not apply.
While we recognize the Department made substantial efforts to notify the tribes, and none of the tribes specifically requested additional information, we cannot say that additional ancestry information would not have assisted the tribes, especially since there was such scant information provided about mother's lineage in the ICWA notices that were sent. The Department is obligated to make an effort to obtain identifying ancestry information from mother's relatives or document its attempts for the court to consider in making its ICWA findings.
DISPOSITION
The orders terminating parental rights are reversed conditionally, and the matter is remanded to the juvenile court with directions to order the Department to further comply with the inquiry and notice provisions of the ICWA. If, after proper and complete notice, the minors are found not to be Indian children, the orders terminating parental rights shall be reinstated. If, however, the minors are found to be Indian children as defined by the ICWA and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new section 366.26 hearing and proceed in accordance with the ICWA, including considering any petition filed to invalidate prior orders. (25 U.S.C. § 1914; § 224, subd. (e).)
/s/_________
RAYE, P. J. We concur: /s/_________
HULL, J. /s/_________
RENNER, J.