In re S.C.
Filed 7/1/13 In re S.C. CA4/2
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opinion has not been certified for publication or ordered published for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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
In re S.C. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
M.B.,
Defendant and
Appellant.
E057648
(Super.Ct.No.
SWJ005596)
OPINION
APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Reversed with directions.
Jack A. Love, under appointment by the Court of Appeal,
for Defendant and Appellant.
Pamela
J. Walls, County Counsel,
and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Mother
appeals from a juvenile court order terminating her parental rights under
Welfare and Institutions Code section 366.26,
two sons, J.D. (born in 2010) and J.J.D. (born in 2011). Mother contends the juvenile court failed to
ensure proper notice was provided under the Indian Child Welfare Act of 1978
(ICWA) 25 U.S.C. § 1901 et seq.
Because the record on appeal
does not demonstrate compliance with ICWA notice requirements, the order
terminating parental rights is reversed, and the proceedings are remanded to
the juvenile court to allow ICWA notice compliance. If, after proper ICWA notice, a tribe claims
the children are Indian children, the juvenile court shall proceed in
conformity with all the provisions of ICWA.
If no tribe claims that the children are Indian children, the order
terminating parental rights shall be reinstated.
II
FACTS AND PROCEDURAL
BACKGROUND
We primarily discuss only
the facts pertinent to this appeal regarding ICWA notice.
Before initiation of the
instant juvenile dependency proceedings, S.C. was placed in protective custody
and mother received Family Reunification services from March 2006 until June
2007. Ultimately, S.C. was returned to
mother and the juvenile dependency case was dismissed.
In
2009, mother met J.D.’s father (father), lived with him, and became pregnant
with J.D. Mother and father separated in
April 2011. Before separating, mother
became pregnant with J.J.D. J.J.D. was
born in November 2011. It is undisputed
that father is J.J.D.’s biological father.
Detention Hearing
The
Department of Public Social Services (DPSS) initiated the instant proceedings
following a referral of general neglect in December 2010. Mother and father reportedly had engaged in
domestic violence and were both arrested.
S.C. and J.D. were placed in protective custody.
under section 300, as to S.C. and J.D.
At the detention hearing, the juvenile court found S.C. and J.D. came
within section 300, subdivisions (b) (failure to protect) and (g) (no provision
for support), and ordered the children detained in protective custody.
During the detention
hearing, the court found that ICWA “may†apply to S.C. but did not apply to
J.D. DPSS reported that on December 14, 2010, mother and father were asked if the children had
Indian ancestry. Mother said there was
no known Indian ancestry as to S.C. and J.D.
Father also said there was no known Indian ancestry as to J.D. DPSS was unable to ask S.C.’s father if S.C.
had Indian ancestry, since his whereabouts were unknown. The court found that ICWA did not apply to
J.D. and ordered mother, father, and S.C.’s father to complete and submit a
Parental Notification of Indian Status form (ICWA-020).
Jurisdiction and Disposition
Hearing
DPSS
reported in its jurisdiction/disposition report filed in January 2011, that
mother had been released from incarceration and was visiting the children
weekly. S.C.’s father’s whereabouts were
still unknown. Therefore ICWA inquiry
was not made as to S.C. DPSS noted that
during juvenile dependency proceedings in 2006, the court found that ICWA did
not apply to S.C.
In
January 2011, father filed a Parental Notification of Indian Status form stating
he had no Indian ancestry as far as he knew.
In February 2011, DPSS filed ICWA noticing documentation. The documentation included copies of form
ICWA-030, entitled Notice of Child Custody Proceeding for Indian Child,
regarding S.C. The notice identified
mother and S.C.’s father but stated their addresses were confidential. The form stated as to mother that there was
no Indian ancestry through her and Indian ancestry through S.C.’s father was
unknown. Other than S.C.’s parents, no
other maternal or paternal relatives were listed, such as grandparents or
great-grandparents. The form indicated
that notice was sent to Indian Child & Family Services in Temecula, the
Bureau of Indian Affairs (BIA) in Sacramento, and the U.S. Secretary of the
Interior in Washington D.C. A copy of
the return receipt from the BIA in Sacramento was filed with the court.
During
the jurisdiction/disposition hearing in March 2011, DPSS’s attorney told the
court that at the hearing on January 26, 2011, the juvenile court found that
ICWA notice had been provided.
received responses from additional tribes.
The court stated that it was going to adopt the ICWA findings included
in DPSS’s jurisdiction/disposition hearing report. The March 2011 minute order for the hearing
states that the court found that S.C. and J.D. were not Indian children and
ICWA did not apply to them. The minute
order further states that the court found there was reason to know that an
Indian child was involved and DPSS had provided notice to all identified tribes
and the BIA, as required. The minute
order adds that, by law, proof of “such notice must be filed with this
court. ICWA may apply.â€
Six-Month Review as to S.C.
and J.D.
DPSS
reported in its six-month hearing report filed in September 2011, that ICWA did
not apply. At the six-month review
hearing in October 2011, the juvenile court ordered reunification services for
mother and terminated services for father.
No mention was made regarding ICWA compliance.
Detention and Jurisdiction
as to J.J.D., on Second Juvenile Dependency Petition
In
November 2011, mother gave birth to J.J.D.
Several days after J.J.D.’s birth, DPSS filed a juvenile dependency
petition as to J.J.D., under section 300, subdivisions (b), (g) and (j) (abuse
of sibling). Juvenile dependency
proceedings as to mother’s other children, S.C. and J.D., remained
pending. J.J.D. was detained in
protective care shortly after his birth.
The Indian Child Inquiry
Attachment (ICWA Form 010(A)) to the juvenile dependency petition as to J.J.D.,
stated that on November 23, 2011, mother told DPSS that she may have Native
American ancestry but she did not provide any other details. Mother indicated “she has some Native
American ancestry but not enough to be recognized for ICWA eligibility.†Father’s whereabouts were unknown. Therefore he was not interviewed regarding
his Native American ancestry. The social
worker noted that on March 14, 2011, the court found that ICWA did not apply to
the family. DPSS concluded that ICWA did
not apply.
At
the November 2011 detention hearing, the juvenile court found that J.J.D. came
within section 300, subdivisions (b), (g), and (j), but allowed J.J.D. to
reside with mother. When asked if J.J.D.
had any Indian ancestry, mother’s attorney said there was Indian ancestry
through mother. Counsel for DPSS said
that she believed that since J.D.D was not being removed from mother, ICWA was
not triggered. The court agreed, finding
that J.J.D. was not an Indian child and ICWA did not apply because J.J.D. would
not be removed at that time. The court
ordered mother and father to file ICWA Form 020(A) regarding J.J.D.
That same day, mother filed
ICWA Form 020(A), stating that she may have Indian ancestry and named the tribe,
“Shashone.†Father also filed Form
ICWA-020, entitled Parental Notification of Indian Status, which stated that he
had no Indian ancestry as far as he knew.
DPSS
reported in its December 2011 jurisdiction/disposition report regarding J.J.D.,
that ICWA did not apply. DPSS noted that
in November 2011, the court found ICWA was inapplicable. Mother completed another form entitled,
Parental Notification of Indian Status, ICWA-020, indicating that she may have
Shoshone Indian ancestry. Father also
completed the same form and indicated he did not have any Indian ancestry. DPSS further reported that “The tribe had
previously been contacted regarding [mother’s] eligibility for enrollment and
it was determined that she was not eligible.â€
In
January 2012, DPSS filed an amended petition regarding J.J.D., alleging that
mother had been arrested for domestic violence.
The juvenile court ordered J.J.D. detained and removed from mother’s
care. During the jurisdiction hearing in
February 2012, as to J.J.D., the juvenile court sustained the petition.
Disposition Hearing as to
J.J.D. and 12-Month Review as to S.C. and J.D.
In
May 2012, during the 12-month review hearing regarding S.C. and J.D., the
juvenile court terminated reunification services, set a section 366.26 hearing
(.26 hearing), and reduced visitation to twice a month. S.C. and J.D. were ordered removed from
maternal grandmother’s home because she had permitted the children to have
unsupervised contact with mother. The
court ordered S.C. and J.D. placed together in the foster home where J.J.D. had
been residing since his removal from mother in January 2012. Reunification services as to S.C. and J.D. were terminated.
At the May 2012 disposition
hearing regarding J.J.D., the court adjudged J.J.D. a dependent of the court,
denied reunification services under section 361.5, set a .26 hearing on the
same date as S.C. and J.D.’s .26 hearing, and ordered supervised visitation
reduced to twice a month. The court made
no findings regarding ICWA during the May 12-month review hearing or
disposition hearing, other than through adopting DPSS’s recommendations. However, the minute orders for the two
hearings state that the juvenile court found the children were not Indian
children and ICWA did not apply.
Section 366.26 Hearing as to
S.C., J.D., and J.J.D.
At the .26 hearing on
October 25, 2012, S.C. testified she did not want to live with mother or visit
her, and would not feel sad if she never saw her again. Mother did not testify. The juvenile court found the three children
were adoptable, rejected the beneficial parent-child relationship exception (§
366.26, subd. (c)(1)(B)(i)), and terminated parental rights as to the three
children.
III
ICWA NOTICE
Mother
appeals from the order terminating her parental rights over S.C., J.D., and
J.J.D. (the children). She contends that
substantial evidence did not support the juvenile court’s finding
that proper notice was given under the ICWA. We
agree. Although DPSS reported in several
hearing reports that it had complied with IWCA notice requirements, there was
no evidence that DPSS provided notice to the Shoshone tribes. Because DPSS’s compliance with ICWA notice
provisions was deficient, this matter must be remanded to allow compliance with
ICWA notice requirements.
“Congress passed the ICWA in
1978 ‘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. . . .â€â€™ [Citations.]â€
(In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1164.) If the court “knows or has reason to know
that an Indian child is involved†in a dependency proceeding, the social worker
or probation officer shall provide notice to the child’s tribe. (§§ 224.2, subd. (a), 224.3, subd. (d).)
Pursuant
to section 224.2, subdivision (a) “(3) Notice shall be sent to all tribes of
which the child may be a member or eligible for membership, until the court
makes a determination as to which tribe is the child’s tribe in accordance with
subdivision (d) of Section 224.1, after which notice need only be sent to the
tribe determined to be the Indian child’s tribe. [¶]
(4) Notice, to the extent required by federal law, shall be sent to the
Secretary of the Interior’s designated agent, the Sacramento Area Director,
Bureau of Indian Affairs. If the
identity or location of the parents, Indian custodians, or the minor’s tribe is
known, a copy of the notice shall also be sent directly to the Secretary of the
Interior, unless the Secretary of the Interior has waived the notice in writing
and the person responsible for giving notice under this section has filed proof
of the waiver with the court.†(§ 224.2,
subd. (a)(3), (4).)
“specified†information, including “[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, birthdates, places of birth and death, tribal enrollment
numbers, and any other identifying information, if known.†(§ 224.2, subd. (a)(5)(C).)
“If
the court or the Department ‘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, and to do so as soon as
practicable, by interviewing the parents, Indian custodian, and extended family
members . . . , contacting the Bureau of Indian Affairs . . . [,] the tribes
and any other person that reasonably can be expected to have information
regarding the child’s membership status or eligibility.’ (§ 224.3, subd. (c); see Cal. Rules of Court,
rule 5.481(a)(4).) The circumstances
that may provide reason to know the child is an Indian child include, but are
not limited to, ‘A person having an interest in the child, including the child,
an officer of the court, a tribe, an Indian organization, a public or private
agency, or a member of the child’s extended family provides information
suggesting the child is a member of a tribe or eligible for membership in a
tribe or one or more of the child’s biological parents, grandparents, or
great-grandparents are or were a member of a tribe.’ (§ 224.3, subd. (b)(1).)†(In re Gabriel G., supra, 206
Cal.App.4th at pp. 1165-1166.)
Because “‘failure to give proper notice of a dependency
proceeding to a tribe with which the dependent child may be affiliated
forecloses participation by the tribe, [ICWA] notice requirements are strictly
construed.’†(In re Karla C.
(2003) 113 Cal.App.4th 166, 174; see also In
re Robert A. (2007) 147 Cal.App.4th 982, 989.) The juvenile court’s findings whether
re E.W. (2009) 170 Cal.App.4th 396, 403-404.)
Here, the record does not
show that DPSS fully complied with ICWA notice requirements. The juvenile court’s findings of ICWA notice
compliance are premised on determinations that during previous juvenile
dependency proceedings, there was compliance with ICWA notice requirements and
that mother’s children do not have Indian ancestry. But, “[t]o enable the juvenile court to review
whether sufficient information was supplied, [DPSS] must file with the court
the ICWA notice, return receipts and responses received from the tribes. [Citation.]â€
(In re Robert A., supra, 147
Cal.App.4th at p. 989.) This was not
done in the instant case as to the Shoshone tribe or BIA after J.J.D. was born
and a second juvenile dependency petition was filed as to J.J.D. Without reviewing such documentation, this
court has no way of determining whether proper ICWA notice was provided.
Although DPSS initially
provided ICWA notice to BIA in January or February 2011, the notice was
provided before mother disclosed after J.J.D.’s birth that she believed she had
Shoshone ancestry. Up to that point
there had been no notice of any specific tribes. Notice was only provided to the BIA. Therefore, DPSS was required to notify the
Shoshone tribes as to all three children.
The record on appeal does not show this was ever done.
The record shows that in
November 2011, after J.J.D. was born, mother submitted to the court form
ICWA-030, stating that she believed she had Shoshone ancestry. The court stated that since it was allowing
J.J.D. to remain with mother, ICWA did not apply. ICWA did, however, apply because there was
the possibility the children would ultimately be removed from mother. In fact, all three children were removed from
mother and, when J.J.D. was removed, the court erroneously assumed that ICWA
did not apply because the court had previously found ICWA did not apply. Under ICWA, DPSS was required to provide
notice to the Shoshone tribes.
Even though there were
previous juvenile dependency proceedings involving mother’s children, during
which the court found there was no Indian ancestry, later, mother disclosed new
information regarding Shoshone Indian ancestry.
We therefore reject DPSS’s attempt to bootstrap this case to other
juvenile dependency proceedings and ICWA findings made before mother disclosed
in November 2011, at the inception of separate proceedings involving J.J.D.,
that she believed she had Shoshone ancestry.
“It is important to not lose sight of the fact that ICWA notices in
separate dependency cases are not fungible evidence—even when the separate
cases involve half siblings who share the same parent with Indian
heritage.†(In re Robert A., supra, 147 Cal.App.4th at p. 990.) “This inquiry obligation exists in every
dependency case: ‘The court and the
county welfare department have an affirmative duty to inquire whether a child
for whom a petition under [Welfare and Institutions Code] section 300 is to be,
or has been, filed is or may be an Indian child.’ (Cal. Rules of Court, rule 1439(d).)†(In re
Antoinette S. (2002) 104 Cal.App.4th 1401, 1409.)
Because mother provided
particular identifying information that J.J.D. might have Indian ancestry
through mother, DPSS was required to provide ICWA notice to Shoshone tribes to allow the tribes to
determine if the children are Indian children.
DPSS was also required to provide the court with specific
received by, these tribes. (
at p. 990; In re Alice M. (2008) 161 Cal.App.4th 1189, 1200; Cal. Rules
of Court, rules 5.481(b)(1), 5.482(b).)
Such proof includes ICWA “notices, any responses it received and proof
of required postal receipts to allow the court to determine if there was proper
and adequate notice before deciding the ultimate issue—whether ICWA
applied.†(Robert, at p. 990.) DPSS did none of these
filed as to J.J.D., and after mother declared she had Shoshone ancestry. Therefore the court’s finding that ICWA did
not apply as to S.C., J.D., and J.J.D. cannot stand, since this court is unable
to verify that there was proper ICWA notice or that Shoshone tribes received
actual notice of the instant proceedings.
(In re Asia L. (2003) 107
Cal.App.4th 498, 508-509.)
Under these circumstances,
this case must be remanded to the juvenile court with directions to order DPSS
to comply with ICWA notice requirements, including providing proper notice of
the proceedings to Shoshone tribes. We
therefore conditionally reverse the juvenile court’s order terminating parental
rights. (In re Gabriel G., supra,
206 Cal.App.4th at p. 1168 [limited reversal appropriate to ensure that ICWA
requirements are met]; see also In re
Asia L., supra, 107 Cal.App.4th at p. 509.)
If, after proper notice, the court finds that the children are Indian
children, the court shall proceed in conformity with the ICWA. If it is determined on remand that the
children are not Indian children, the order shall be reinstated.
iv
Disposition
The order of October 25,
2012, terminating parental rights is reversed as to S.C., J.D., and J.J.D, and
the proceedings are remanded to the juvenile court with directions to order
DPSS to comply with ICWA notice requirements, and to file all required
documentation with the juvenile court for that court’s inspection. If, after proper notice, a tribe claims any
of the children are Indian children, the juvenile court shall proceed in
conformity with all the provisions of ICWA.
If no tribe claims that S.C., J.D., or J.J.D. are Indian children, the
order terminating parental rights shall be reinstated.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
references are to the Welfare and Institutions Code.
