In re Z.P.
Filed 12/31/08 In re Z.P. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re Z.P., a Person Coming Under the Juvenile Court Law. | |
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. B.H., Defendant and Appellant. | E045736 (Super.Ct.No. RIJ111647) OPINION |
In re B.H., On Habeas Corpus. | E046693 (Super.Ct.No. RIJ111647) |
APPEAL from the Superior Court of Riverside County. Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Reversed with directions.
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Kenneth Fernandez, Judge. Petition denied.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minor.
Mother appeals the termination of her parental rights (Welf. & Inst.[1]Code, 366.26) respecting her now five-year-old son, Z.P.[2] She contends that the juvenile court of Kern County, where jurisdiction was originally established, erred in finding that the Indian Child Welfare Act (ICWA, or the Act) did not apply, without complying with the notice provisions of the Act. She also has filed a petition for writ of habeas corpus to present additional evidence of mothers Indian heritage.
We agree that the juvenile court erred in finding ICWA did not apply without any investigation by the social services agency, so we do not need to consider evidence outside the record. We reverse and remand with directions solely to ensure compliance with ICWA.
BACKGROUND
In 2005, mother went to Bakersfield without the permission of her parole officer, and subsequently informed her parole officer that she had been using drugs. After testing positive for methamphetamine use, she was returned to prison for violating her parole, and a dependency petition ( 300) was filed in Kern County. The petition alleged neglect, in that mother was unable to prove regular care for the child due to her substance abuse and multiple parole violations ( 300, subd. (b)), and that, because she was incarcerated, mother was unable to arrange for care of Z.P. ( 300, subd. (g).)
The jurisdictional hearing was conducted in Kern County, where the court made a true finding on the neglect allegation ( 300, subd. (b)) but dismissed the failure to arrange care allegation. ( 300, subd. (g).) At the jurisdictional hearing, the court inquired if mother and father had Indian heritage. Mother indicated she did have Indian heritage, but could not identify the tribe. Nevertheless, the juvenile court found there was insufficient evidence to establish the child is a member of, or eligible for membership in, a federally recognized Indian Tribe, and held that ICWA did not apply. The Kern County Superior Court ordered reunification services for mother, and subsequently ordered the case transferred to Riverside County, after determining that Riverside was the county of the parents residence. At some point, Z.P. was placed in the relative home of his paternal great-grandmother.
After numerous transfers and retransfers of the case between Riverside County and Kern County, the Riverside court conducted a status review hearing. The juvenile court received, without objection, evidence that mother had been released from custody but her whereabouts were unknown and she had neither visited Z.P. regularly nor contacted DPSS. Z.P. remained with his paternal great-grandmother, was bonded to her, and she was interested in adopting the child. At the hearing, the court terminated reunification services to the mother and ordered that a hearing be held to select and implement a permanent plan of adoption.
On February 27, 2008, after denying mothers petition to modify the prior court order terminating reunification services, the juvenile court terminated parental rights of both parents. Mother appealed.
DISCUSSION
Mother argues the judgment must be reversed because the juvenile court erroneously found ICWA does not apply. We agree.
ICWA seeks to protect Indian children and promote stability of Indian tribes and families. ICWA is implemented in California, in part, through section 224.3, subdivision (a), which provides that the court and social services officials have an affirmative and continuing duty to inquire whether a child may have Indian heritage and to take further steps if there might be such heritage. Pursuant to subdivision (c) of section 224.3, when the court or social worker has reason to know that an Indian child is involved, the social worker is required to make further inquiry, by interviewing the parents, and extended family members to gather information.
The purpose of ICWA notification requirements is to give tribes the opportunity to investigate and determine whether a child is an Indian child, and to advise the tribe of the pending proceeding and its right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) The failure to give any or proper ICWA notice will foreclose a tribes ability to participate. To that end, notice requirements are strictly construed and DPSS and the court have a continuing duty of inquiry until such time as the court finds a child is not an Indian child. (In re I.G. (2005) 133 Cal.App.4th 1246, 1254; Cal. Rules of Court, rule 5.481(a).)
ICWA provides that when a dependency court has reason to know the proceeding involves an Indian child, the Department must notify the Indian childs tribe. (25 U.S.C. 1912, subd. (a).) The federal statute goes on to provide that if the tribes identity or location cannot be determined, notification must be provided to the Bureau of Indian Affairs (BIA). (25 U.S.C. 1912, subd. (a).) The specific reference to situations in which the tribes identity or location cannot be determined, requiring notification to the BIA means that a parents lack of information about his or her specific Indian heritage does not excuse the court from ordering compliance with ICWA and does not excuse DPSS from investigating further.
It is the agencys responsibility to obtain as much information as possible about the childs potential Indian background and to provide that information to the relevant tribe or, if the name of the tribe is not known, to the BIA. (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Failure to provide notice in a manner consistent with ICWA mandates reversal. (Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 416; In re Junious M. (1983) 144 Cal.App.3d 786, 796.)
At the jurisdictional hearing in this case, the juvenile court reviewed the information provided by mother on the JV-130 form, Parental Notification of Indian Status, in which mother indicated she may have Indian ancestry. Counsel for the Department of Public Social Services (DPSS) asked for additional information about mothers Indian heritage, and mothers counsel indicated mother did not know the identity of the tribe. Based on the information available, the court concluded ICWA did not apply. This was erroneous.
DPSS argues the issue was forfeited by mothers failure to raise it in the trial court. We disagree. The prevailing view is that the forfeiture doctrine does not bar consideration of ICWA notice issues on appeal, unless the issue is raised as a successive challenge where the parent was aware of the inadequacy of the notice in the trial court and could have brought it to the courts attention. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1196, citing, among other authorities, In re X.V. (2005) 132 Cal.App.4th 794, 804.)
Because the court and DPSS had reason to believe Z.P. had Indian heritage, it was error to find that ICWA did not apply, without making the necessary inquiries of mother and the numerous relatives available. We must therefore remand the case with directions to conduct the appropriate inquiry, provide notice to the tribes or the BIA, and then determine whether ICWA applies.
DISPOSITION
The judgment is reversed for the limited purpose of complying with ICWA notice requirements. On remand, mother is directed to provide DPSS with all information available to her regarding her Indian ancestry, including the names of the tribes and the names of the ancestors from whom mother claims Indian ancestry. DPSS is directed to provide the required notice to the BIA. If after receiving proper notice, an Indian tribe intervenes, the trial court shall proceed in accordance with ICWA. If no Indian tribes
intervene after receiving proper notice, the judgment shall be reinstated. The petition for writ of habeas corpus is denied as moot.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Ramirez
P. J.
s/Hollenhorst
J.
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[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.
[2] Father is not a party to this appeal. He is serving a sentence of 50 years to life.
