In re Z.R.
Filed 9/12/13 In re Z.R. CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
In re Z.R.,
a Person Coming Under the Juvenile Court Law.
DEL NORTE
COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
B.R. et
al.,
Defendants and Appellants.
A135645, A136929
(Del Norte County
Super. Ct.
Nos. JVSQ12-6041, JVSQ12-6042, JVSQ12-6043, JVSQ12-6044, JVSQ12-6045,
JVSQ12-6046, JVSQ12-6047, JVSQ12-6048, JVSQ12-6049)
Appellants
J.R. (mother) and B.R. (father) challenge jurisdictional and dispositional
orders as to their nine children. Their
sole argument is that the orders should be reversed because of a failure to
comply with the notice provisions of the Indian
Child Welfare Act of 1979 (25 U.S.C.A. § 1901 et seq.) (ICWA). We disagree and affirm.
I.
Procedural and Factual
Background
This case began when respondent
County Department of Health and Human Services (Department) filed nine
separate juvenile dependency petitions in March 2012
alleging that mother and father had abused their nine children. In jurisdictional orders, the juvenile court
concluded that all nine minors were children described by Welfare and
Institutions Code section 300.
name="_ftnref2" title="">[2] Father filed a premature appeal from these
orders (A135645). Following a
dispositional hearing, the juvenile court adjudged the minors to be dependent
children, ordered that they remain out of their parents’ physical custody, and
ordered family reunification services.
Both mother and father filed a timely appeal from the dispositional
orders (A136929), which we resolve in this opinion.
While
these appeals were pending, further proceedings ensued. At the conclusion of a contested six-month
review hearing, the juvenile court terminated reunification services and set a
selection-and-implementation hearing.
Mother petitioned for extraordinary writ review of this order, which we
denied. (J.R. v. Superior Court (May 8, 2013, A137755) [nonpub.
opn.].) In our opinion denying the petition,
we summarized the reasons for the Department’s involvement in this case, which
we need not repeat here except to say that they involved allegations of incest
and molestation. After we denied the
petition, the juvenile court terminated mother’s and father’s parental
rights. Both parents timely appealed
from that order and that separate appeal remains pending. (A139174.)
In
this opinion, our discussion of the proceedings below is limited to the sole
issue raised: whether the Department
complied with ICWA’s notification provisions.
Early in the proceedings, mother notified the juvenile court that she
might have Native American ancestry.
When the court questioned mother about it at the detention hearing on
March 2, mother responded, “It’s questionable on my mom’s side.†Mother explained that she did not have any
information about a particular tribe, and she had no way to contact her mother
(the maternal grandmother), who was “supposedly deceased, but possibly still
alive, but in the records she’s deceased.â€
The juvenile court directed mother to complete a form used to assist
with the investigation of whether a child in a dependency proceeding may be an
Indian child (ICWA-020), and mother filed one later that day. On the ICWA-020, two boxes are checked: one states, “I have no Indian ancestry as far
as I know,†and the other states, “I may have Indian ancestry.†Handwritten notes indicate that the names of
possible tribes or bands were “UNKNOWN.â€
The same form was filed in all nine cases. About two weeks later, the Department filed
jurisdiction reports stating that ICWA did not apply. In disposition reports filed on June 7,
the Department again asserted that ICWA did not apply.
At
a hearing on June 15, father’s counsel stated that on her way to court she
was “given paperwork that indicates that the mother’s grandfather is
full-blooded Cherokee.†The juvenile
court questioned mother about this, and mother reported that she had learned
from talking with her sister and stepgrandmother as well as doing internet
research that her maternal “grandpa [O.R.] is in the Cherokee tribe, and I
can’t find out my grandma [I.R.]’s maiden name, but she is possibly also and my
dad is a quarter from his dad.†She
stated that O.R. was from “Marysville or whatever, California. And he’s—he’s on the roll.†Father’s counsel stated that she (the
attorney) had “a roll number, identification number†as well as a birth
certificate to help the Department track down information. The juvenile court vacated a scheduled disposition
hearing so that the Department could investigate possible Native American
heritage.
Later
that day, mother filed an additional ICWA-020, stating that she might have
Indian ancestry through the Cherokee tribe.
A few days later, father’s counsel filed three documents regarding
mother’s possible Native American lineage.
One was mother’s birth certificate.
The second contained handwritten notes about mother’s relatives, including
her father’s name and the fact he was “quarter Cherokee,†her grandmother’s
married name, the date of her mother’s “supposed death,†and a comment that her
maternal grandfather was “full blooded Cherokee.†The third listed various Cherokee roll
numbers, including one for someone with the name of mother’s grandfather.
On
June 29, the Department filed a judicial council form used to notify
tribes that a child in a dependency
proceeding may be an Indian child (ICWA-030), along with a list of more
than 50 tribes to which notice had been mailed.
Affairs (BIA). Consistent with
information provided by mother and father, the form identified possible
eligibility for membership in the Cherokee tribe, and the Department mailed
notice to the three Cherokee tribes listed in the then-current version of the
Federal Register. (76 Fed.Reg. 30438,
30461 (May 25, 2011).)
For
reasons that elude us, the ICWA-030 was also sent to dozens of Paiute and Pomo
tribes listed in the Federal Register.
(76 Fed.Reg. 30438, 30461, 30469-30472 (May 25, 2011).) On appeal, the parties shed no light on why
notice was sent to these tribes. The
Department states in its brief that “[t]he record is devoid of information
concerning why the Paiute and Pomo tribes were noticed,†and mother did not
file a reply brief.
On
July 10, the Department filed return receipts from various tribes that had
received the ICWA-030 notice. That same
day, a contested jurisdiction hearing began on supplemental petitions filed as
to seven of the nine children. The
juvenile court sustained the petitions.
County counsel requested the court to schedule the disposition hearing
for the following month, in part to allow time to receive responses to all ICWA
notices. The disposition hearing was then
scheduled for August 24.
Over
the next month, the Department filed letters from various tribal
representatives, all reporting that the minors were not members of, or eligible
for membership in, the tribes. The
Department reported in its disposition report filed on August 29 that the
Department was still awaiting responses from 20 tribes.
After
a continuance because of scheduling issues, the disposition hearing began on
August 31, and the juvenile court inquired about the status of ICWA
notification. Mother’s counsel stated
that mother had informed her that day that “the wrong tribes are being
notified. She’s saying—she’s telling me
it’s a different tribe.†The following
exchange then took place:
“[County
counsel]: Well, there were notices sent
to 52 tribes.
“[Mother’s
counsel]: She’s saying she went through
that list. She’s telling me that it’s a
different tribe, not the ones on the list.
“THE
COURT: Which tribe?
“[Mother’s
counsel]: Tell the court which tribe.
“[Mother]: They are in Oklahoma and Texas, all
the—the eastern states.
“THE
COURT: Well, which specific
tribes are you saying should have been given notice?
“[Mother]: The only reason why I said that was
because last time they were only doing California. We’re not from California.â€
After
more prodding from her attorney, mother stated that the Department should have
notified “Blackfoot.†The court then
stated that “what I’d like is for the mother to sit down with a representative
of the department who is responsible for giving notice. I’d like her attorney to be involved in that
conversation as well as [county counsel] and see [if there are] any other
tribes that she feels need—that should have been addressed. [¶] And if it turns out that there
really [are] such tribes, then you need to be looking at getting an Indian
expert.â€
The
parties returned to court the following week, and county counsel stated it was
her understanding that mother had provided the Department with names of
additional family members and potential tribes.
The social worker stated that mother believed she was affiliated with
“Choctaw, Blackfoot and Cherokee and Pomo and Paiute. Choctaw and Blackfoot have not been noticed
so those will have to be noticed.â€
County counsel acknowledged it was necessary to provide notices to the
additional tribes and stated, “We’re going to need an ICWA expert on board just
in case.†The disposition hearing was
continued until September 28.
On
September 11, the Department filed another ICWA-030, which provided
additional information about mother’s family members. Notice was mailed to the three Cherokee
tribes that previously had been notified, along with the four Blackfoot and
Choctaw tribes listed in the then-current edition of the Federal Register. (77 Fed.Reg. 45816, 45837, 45839
(Aug. 1, 2012).) Later that month,
the Department filed return receipts from all seven noticed tribes. Throughout this time, the Department
continued to file responses from various tribes stating that the minors were
not members of, or eligible for membership in, the tribes.
An
ICWA expert submitted a report based on the expert’s review of the three
Department reports filed as of that date.
The expert concluded that active efforts were being made to provide the
family with a variety of reunification services (Cal. Rules of Court,
rule 5.484(c)) and that the children should not be returned to their
parents at that time because to do so would cause the children psychological,
emotional, and physical harm.
At
a hearing on September 28, the court and mother’s counsel expressed doubt
that ICWA applied, seeing as no tribe had indicated the minors were eligible
for membership. But because not all
tribes had responded to the Department’s notices and fewer than 60 days had
passed since notice had been provided (§ 224.3, subd. (e)(3)), the
juvenile court indicated it would proceed as if ICWA applied. This meant that a qualified expert witness
would testify under section 224.6, subdivision (b) whether continued
custody of the children by the parents was likely to result in serious
emotional and physical damage, and the court would take into consideration
evidence about prevailing tribal social and cultural standards. Mother was willing to submit the ICWA
expert’s declaration in lieu of live testimony (§ 224.6, subds. (b)(1),
(e)), but father was not. The court
therefore continued the disposition hearing until October 2 when the ICWA
expert was available to testify.
At
the continued hearing, the ICWA expert testified that it was his understanding
that neither the minors nor the parents were enrolled in an Indian tribe and
that they “[we]ren’t necessarily involved with or part of the Native
community.†He opined, consistent with
his written report, that active efforts were being made to help the family
reunify and that continued out-of-home placement for the minors was appropriate
in light of the serious allegations that previously had been sustained. The witness had testified in more than 100
cases as an ICWA expert, and he stated, “I’d also like to comment on the fact
that just the amount of work that went into trying to contact all these tribes,
this is the first time I’ve seen so much extensive work with so many tribes
trying to make contact with so many tribes.
I’ve never seen that before.†He
acknowledged on cross-examination that different tribes have “different
cultures and social rules,†but he stated that incest and molestation were “not
appropriate in any tribal sense or any family sense. So based on that alone I know all the tribes
I’ve had contact with or had knowledge of in my work, that’s not a part of our
collective social standard or customs.
So I feel comfortable speaking on that.â€
At
the close of evidence, a discussion ensued whether the expert’s testimony was
sufficiently linked to a particular tribe.
County counsel acknowledged that it would have been appropriate to
provide expert testimony about the culture of a particular tribe if one tribe
had been identified with ties to the family.
She argued that, since no such tribe had been located, the Department
had met its burden in this case. Counsel
then requested the juvenile court to make appropriate findings, including those
necessary in an Indian child custody proceeding, because of the “potential†applicability
of ICWA. (§ 361, subd. (c)(6)
[continued custody with parent or Indian custodian likely to result in serious
emotional or physical damage to Indian child].)
Mother’s counsel responded, “I think we’re just in agreement. I think there’s a presumption there’s always
a tribe that is identified in these ICWA cases.
I don’t think ICWA law have [sic]
these situations where—consider the situation where there’s not a tribe to
consider. But if there had been a tribe
I think the expert has to be knowledgeable in that tribe’s culture and social
aspects. If one is eventually identified
then we’d argue [the expert] is not qualified,†unless it was the tribe in
which he was enrolled.
The
juvenile court found that “the children may be Indian children, although I
doubt it at this point. But, therefore,
the Act may apply.†The court found by
clear and convincing evidence that continued custody of the children in their
parents’ home was likely to result in serious emotional or physical damage to
the minors, and it adjudged all nine minors to be dependent children and
ordered reunification services. Over the
next month, the Department filed seven additional letters from Indian tribes
stating that the minors were not considered to be Indian children.
II.
Discussion
Mother (joined by father, who did
not file a separate brief) argues that the dispositional orders must be
reversed because the Department failed to provide proper notice to all relevant
federally recognized Indian tribes. In
her opening brief, she summarizes the importance of ICWA and the various duties
it imposes on social services agencies, but she identifies only a few specific
notification errors supposedly made in these proceedings. First, in an argument made for the first time
on appeal and that contradicts her contentions below, mother claims that three
tribes should have been, but were not, notified of the proceedings. Second, and again for the first time on
appeal, she argues that there were deficiencies in some of the notices that
were sent to the other tribes. Far from
revealing ICWA error, our review of the record leads us to conclude that the
Department and juvenile court did more
than what was required to comply with the statute.
We
begin with an overview of ICWA, which was enacted to “ ‘protect the best
interests of Indian children and to promote the stability and security of
Indian tribes and families.’ †(
113 Cal.App.4th 166, 173-174, quoting 25 U.S.C. § 1902.) Under ICWA, an “ ‘Indian child’ â€
is a person who is 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. (25 U.S.C. § 1903(4).) “ICWA protects the interests of Indian children
and promotes the stability and security of Indian tribes by establishing minimum
standards for, and permitting tribal participation in, dependency actions. [Citations.]
If there is reason to believe a child that is the subject of a
dependency proceeding is an Indian child, ICWA requires that the child’s Indian
tribe be notified of the proceeding and its right to intervene.†(In re
A.G. (2012) 204 Cal.App.4th 1390, 1396; see 25 U.S.C. § 1912(a).) These notice requirements are strictly
construed because a tribe’s right to intervene is meaningless if the tribe is
unaware of the proceeding. (
Turning
to her specific arguments, mother first claims that the Department erroneously
neglected to notify one Paiute tribe and two Pomo tribes. At the time the notices were sent, the
Federal Register recognized 28 Paiute tribes.
(76 Fed.Reg. 30438, 30470 (May 25, 2011).) Although notices were sent to 27 of these
tribes, mother contends that the Department failed to notify one of them—the
Northwestern Band of Shoshoni Nation in Pocatello, Idaho. The Federal Register also recognized 24 Pomo
tribes. (76 Fed.Reg. 30438, 30471
(May 25, 2011).) Although notices
were sent to 22 of these tribes, mother contends that the Department failed to
notify two of them—the Buena Vista Rancheria of Me-Wuk Indians in Sacramento
and the California Valley Miwok Tribe in Stockton.
On
the record before us, however, we cannot conclude that the Department was under
an obligation to send notice to any of the Paiute or Pomo tribes and certainly
not these specific ones. As discussed
above, mother never identified Paiute or Pomo tribes on the ICWA-020 forms she
completed, and there is nothing in the record showing that she ever claimed
that she was a member of them. (
122 [knowledge of Indian connection is matter “ ‘wholly within the
appealing parent’s knowledge and disclosure is a matter entirely within the
parent’s present control’ â€].) We
recognize that a disposition report filed on August 29 (weeks after the
first ICWA-030 forms were filed) stated that mother had at some unspecified
time mentioned possible affiliation with the two tribes. But the accuracy of this statement in the
report cannot be confirmed in the record and, given the evidence and course of
proceedings that are contained in the
record, it is clear that no error occurred.
The
record shows that even though mother never identified Paiute or Pomo heritage
on her ICWA-020 forms, the Department, for whatever reason, provided notice to
almost all Paiute and Pomo tribes. At a
hearing on August 31, mother’s counsel stated that mother “informs me
today that the wrong tribes are being
notified. She’s saying—she’s telling
me it’s a different tribe,†and
mother then indicated that the Blackfoot
tribe should be notified. (Italics
added.) Mother told the court that
notices should be directed to tribes “in Oklahoma and Texas, all the—the
eastern states,†and she complained that California tribes had been notified
even though “[w]e’re not from California.â€
In doing so, she failed to identify either the Pomo or Paiute tribes,
disavowed any problem with the notices that had been sent to tribes in western
states (including the three Paiute and Pomo tribes she identifies on appeal),
and expressly disavowed membership in tribes located in California (such as the
two Pomo tribes she identifies on appeal).
It
is true that at a hearing about a week later, a social worker reported that she
had met with the parents and that “she indicated they believe it’s Choctaw,
Blackfoot and Cherokee and Pomo and Paiute.â€
But it is unclear from our review of the transcript who, exactly,
indicated mother’s possible Pomo and Paiute affiliation. Mother was silent on the issue at the
hearing, and the social worker could easily have been repeating information
from the file. When the juvenile court
asked for further information, the social worker did not mention either tribe,
but instead stated, “The notes I have from last Friday[’s hearing] had said
they did not mention Sioux when I met with them. They said it was Choctaw.†(Italics added.) We also note that when the Department sent
out a second round of ICWA-030 notices that included the additional information
from mother about her family members, they were sent to the same three Cherokee
tribes previously noticed in addition to the new tribes identified by mother,
presumably to provide the most complete information to all relevant Indian
tribes. The fact that they were not
directed to any Paiute and Pomo tribes suggests that there was no reason to
notify them.
In
her second argument, mother contends that a few of the notices sent to the
dozens of Paiute and Pomo tribes that were given notice were deficient for
technical reasons.
title="">[5] She notes that 10 Paiute and Pomo tribes
failed to respond to the notices that were sent to them, and she argues their
notices were insufficient because they were addressed to “ICWA Representativeâ€
or “ICWA Coordinator†instead of the specific contact persons listed in the
Federal Register. For example, a notice
was sent to the “ICWA Representative†at the Lone Pine Paiute Shoshone
Reservation in Lone Pine instead of “Kathy Bancroft, Enrollment Committee
Chairperson.†(76 Fed.Reg. 30438,
30469-30474 (May 25, 2011).) We
recognize that there is support for the argument that ICWA notices must be sent
to the designated tribal representative named in the Federal Register. (§ 224.2, subd. (a)(2) [notice
shall be provided to tribal chairperson or designated agent for service];
Cal.App.4th 1189, 1201 [improper ICWA notice where designated person not
noticed and tribe failed to respond; fact that social services department
received signed return receipts insufficient to demonstrate actual notice]; but
cf. In re N.M. (2008) 161 Cal.App.4th
253, 268 [substantial evidence of proper notice even though notices addressed
to “ ‘ICWA Representative’ †instead of designated representative;
mandating “literal compliance solely by reference to the names and addresses
listed in the last published Federal Register would exalt form over
substanceâ€].) But we need not decide the
issue in this case because, again, we cannot conclude on the record before us
that the Department had an obligation to send notices to these tribes in the
first place. Accordingly, we decline to
reverse the dispositional orders or require the Department to re-serve these
tribes with notices directed to named representatives.
Mother
also argues that the response received from one of the tribes, the Redwood
Valley Rancheria in Redwood Valley, was insufficient evidence that the tribe
received actual notice because the response was sent to the Department on a
plain piece of paper that was unsigned.
We decline mother’s invitation to deem this an unacceptable
response. (In re William K. (2008) 161 Cal.App.4th 1, 12 [social worker
under no duty to elicit particular response from noticed tribe].)
Finally,
we cannot conceive how reversing the dispositional orders would serve any
legitimate purpose because the juvenile court proceeded as if ICWA applied. Mother
claims that “it was important for a proper determination in this case that the
Indian expert be knowledgeable in tribal customs as they pertain to family
organization and childrearing practices of the Paiute, Pomo, or Cherokee tribes,
and have extensive knowledge of prevailing social and cultural standards and
childrearing practices within any of those tribes,†and suggests the outcome
might have been different if an expert familiar with a particular tribe
affiliated with her family had been called to testify. This argument fails for at least two
reasons. First, mother does not
challenge the expert’s testimony that incest and molestation (the reasons for Department
intervention) are unacceptable in any tribe, and she cannot claim that the
juvenile court failed to consider this under section 224.6. Second, she does not affirmatively claim on
appeal that she has Paiute or Pomo heritage.
In short, even if we were to assume that there were errors in some of
the notices, we would conclude that they were harmless. (In re
N.E. (2008) 160 Cal.App.4th 766, 771 [no prejudice where appealing
party does not suggest in his appellate brief that he has Indian heritage];
Cal.App.4th 1426, 1431 [no prejudice in absence of appealing parent’s
affirmative representation of Indian heritage].)
We
are sympathetic to an argument made by one of the minor’s attorneys at the
close of the disposition hearing that “[t]his case is sort of like a poster
child for ICWA abuse. I think most of
the tribal representatives that I’ve dealt with feel like they would really
rather see ICWA saying there must be some relationship before ICWA comes into
play. But the current state of the law—I
think the department did a remarkable job of trying to find somebody. And so I—I support what they’ve done. And I think they’ve met the
requirements.†We agree that the
Department met its legal obligations under ICWA, and we commend both the
Department and the juvenile court for the way they handled this aspect of the
proceedings. (In re N.M., supra,
161 Cal.App.4th at p. 269 [social services agency “made heroic
efforts to give ICWA noticeâ€].)
III.
Disposition
Appeal A135645 is dismissed. The dispositional orders appealed from in
A136929 are affirmed.
_________________________
Humes,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
name="_ftn1" title="">[1]
All further date references are to the
2012 calendar year.
name="_ftn2" title="">[2]
All statutory references are to the Welfare and Institutions Code.
