In re Michael T.

Filed 8/13/08 In re Michael T. CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Appellant, David T., the father of the minor Michael T., appeals from the order of the juvenile court terminating his parental rights. (Welf. & Inst. Code, 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends the juvenile court and the Placer County Department of Health and Human Services (DHHS) failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) by inadequately inquiring into the minors Indian heritage. We shall reverse the order.

BACKGROUND

The minor was placed into protective custody on May 3, 2005, after his mother was expelled from a homeless shelter for testing positive for methamphetamine and bringing alcohol onto the premises. Both parents have extensive criminal and child welfare records, including the termination of their parental rights over the minors twin siblings.

DHHS filed a petition alleging jurisdiction pursuant to section 300, subdivisions (b) and (j) based on the parents history of drug use and homelessness, the mothers current use of drugs, and the termination of parental rights over the minors two siblings.

At a May 26, 2005 pretrial conference, the mother told the court neither she nor appellant, who had not yet been located, had any Indian heritage. The disposition report stated the juvenile court made a finding based on this that the Indian Child Welfare Act does not apply. However, there was no mention of this finding in the transcripts or the minutes of the conference.

The juvenile court found appellant was the minors father on June 1, 2005. On August 23, 2005, the juvenile court sustained the petition, continued removal, and ordered services for the mother but no services for appellant, who had not yet been located. At the dispositional hearing, the mother told the juvenile court she thought appellant was in custody at Duel Vocational Institute.

Services were extended to the mother at the six and

twelve-month hearings, but the court terminated services and set a section 366.26 hearing at the 18-month hearing on December 6, 2006. Services were terminated because of the mothers continued problems with homelessness and that she had just disappeared.

Appellant was not located before any of these hearings in spite efforts of DHHS to find him. DHHS eventually found appellant, notifying him on January 5, 2007, of the section 366.26 hearing to be held on March 7, 2007. According to the June 27, 2007 status review report, appellant was incarcerated at Duel Vocational Institute.

There is no mention in the record of any effort to contact appellant with regard to his possible Indian heritage. The only other substantive reference to appellant in the social workers reports is in the section 366.26 report, which stated he had not contacted DHHS to request visits with the minor, but the mother allowed appellant to accompany her on one visit, his only visit with the minor in the last two years. The report concluded that because appellant had not been available to the minor because of his long history of substance abuse and criminal convictions, terminating his parental rights would be in the minors best interests.

The juvenile court granted DHHS request to withdraw the section 366.26 motion at the March 7, 2007 hearing. The mother was subsequently arrested and continued to have problems with homelessness.

On June 27, 2007, the juvenile court set an October 3, 2007 section 366.26 hearing. Appellant subsequently filed a notice of intent to file a writ petition to review the juvenile courts decision, but there is no record of him filing the petition.

Appellant was notified of the new section 366.26 hearing. The juvenile court issued an order to transport appellant to the scheduled hearing, but appellant waived the transportation order and his right to personally appear at the hearing.

At the October 3 hearing the matter was continued to October 30, 2007, for a contested hearing. At the contested hearing, the court terminated the parents parental rights and set long-term guardianship with a relative as the permanent plan.

DISCUSSION

Appellant, filing in propria persona,^[1]argues, I have Native American Heritage in the Hopa or Hoopa tribe, Klamoth [sic] River. The Hoopa tribe is federally registered. The social worker never asked me if I had Indian heritage and DHHS should have inquired whether I had Indian heritage under section 224.3, subdivision (a). We agree.

The notice provisions of the ICWA state, in part: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. (25 U.S.C. 1912(a).)

The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all dependency proceedings. ( 224.3, subd. (a).) As part of this duty, the social worker is required to interview parents to accumulate information to be included in the notice which is sent to the tribe. ( 224.3, subd. (c).) Even after a determination by the court that the ICWA does not apply, if information which was not included in the original notices is subsequently received, new notices will be required. ( 224.3, subd. (f).)

The juvenile court and DHHS had a duty to ask the parents whether the child is or may be an Indian child[.] (Cal. Rules of Court, rule 5.481(a)(1).) There is no indication DHHS ever inquired appellant about his Indian heritage. The mother was asked about her Indian heritage in May 2005 and told the court neither she nor appellant had any. DHHS then concluded the ICWA did not apply to the minor, but it made this decision before locating and contacting appellant. Once appellant was found, DHHS made no further inquiry and did not change its position regarding his alleged lack of Indian heritage.

If the parent, Indian custodian, or guardian does not appear at the first hearing, or is unavailable at the initiation of a proceeding, the court must order the person or entity that has the inquiry duty under this rule to use reasonable diligence o find and inform the parent, Indian custodian, or guardian that the court has ordered the parent, Indian custodian, or guardian to complete Parental Notification of Indian Status (form ICWA-020). (Cal. Rules of Court, rule 5.481(a)(3).) Once appellant was located in prison, the juvenile court and the DHHS had a duty to inform him of his obligation to complete the form. This was not done, and we conclude the juvenile court and the DHHS did not satisfy their duty of inquiry into appellants Indian heritage.

Because the inquiry is foundational to ICWA compliance, the claim can be raised for the first time on appeal. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739.) The DHHS contends we should nonetheless decline to address the inadequate inquiry on appeal in light of the recently added section 224, subdivision (e), which provides: [a]ny Indian child, the Indian childs tribe, or the parent or Indian custodian from whose custody the child has been removed, may petition the court to invalidate an action in an Indian child custody proceeding for foster care or guardianship placement or termination of parental rights if the action violated Sections 1911, 1912, and 1913 of the Indian Child Welfare Act.

The department asserts the appropriate remedy for a violation of the notice requirement under the ICWA is an evidentiary hearing before the juvenile court over whether it complied with the notice provisions of the ICWA. This, DHHS contends, ensures adequate notice while eliminating the need to take evidence ex parte, and the expedient of overturning the juvenile court for a limited purpose.

The point is not well taken. Section 224 and several other provisions related to the ICWA were part of Senate Bill No. 678, which was enacted in 2006. (Stats. 2006, ch. 838, 157.) [N]othing in the bill text or stated legislative purpose suggests that the Legislature intended to override or reject the California courts interpretation of ICWA notice requirements. [Citation.] (In re Alice M. (2008) 161 Cal.App.4th 1189, 1199.) Indeed, the legislative counsels digest to SB 678 states the bill only would revise, recast, and expand various provisions of state law to, among other things, apply to certain children who do not come within the definition of an Indian child for purposes of the Indian Child Welfare Act, and would provide that a parent, Indian custodian, or tribe may intervene in child custody proceedings involving children with Indian ancestry, as specified. (Stats. 2006, ch. 838.) This and other provisions in the bill do not suggest an intention to scale back ICWA procedures, but an intent to expand, or at least broadly apply, ICWA protection. Absent clear language regarding the intent to abrogate existing law, we find no reason to reject years of established and well-reasoned case law. (In re Alice M., supra, 161 Cal.App.4th at pp. 1199-1200.)

The inquiry requirement, which is not mandated by the ICWA, may be harmless error. (In re H.B. (2008) 161 Cal.App.4th 115, 121 (H.B.).) [A]ny failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162 (S.B.).) However, the termination of a parents rights does not render inadequate notice harmless since the standard for removal of a child from parental custody and the type of foster placement are affected when an Indian child is the subject of dependency proceedings, as is the standard for termination of parental rights. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.)

A failure to inquire is harmless where the tribe intervened and did not seek to set aside the juvenile courts prior orders. (S.B., supra, 130 Cal.App.4th at pp. 1162-1166.) The error is also harmless where the parent tells the social worker that she does not have Indian ancestry and makes no affirmative representation of Indian ancestry, either in the dependency court or on appeal[.] (H.B., supra, 161 Cal.App.4th at pp. 121-122.) Where the record did not show the department made the ICWA inquiry of the father, and the father made no claim on appeal that he in fact had Indian heritage, but argued that the failure to inquire required reversal, the inquiry error was held harmless. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431; accord In re N.E. (2008) 160 Cal.App.4th 766, 770-771.)

Appellants claim is readily distinguished from these examples of harmless error. He was never asked about his Indian ancestry, and, when he addressed the issue on appeal, he asserted he had ancestry in an federally recognized tribe.^[2] Since the tribe has never been notified, it has not had the opportunity to intervene.

We refuse to speculate about what [appellants] response to any inquiry would be, and thus can not find the error to be harmless. (In re J.N. (2006) 138 Cal.App.4th 450, 461.) The order terminating appellants parental rights must be reversed and the matter remanded to the juvenile court for a proper inquiry in accordance with ICWA.

DISPOSITION

The orders terminating parental rights are reversed, and the matter is remanded to the juvenile court for the limited purpose of satisfying the inquiry and notice requirements of ICWA. The court is directed to order DHHS to make a full inquiry of appellants Indian heritage and to provide required notices to the Hoopa tribes. If there is no response, or if the tribes determine that the minor is not an Indian child, the juvenile court shall reinstate the orders. However, if the

tribes determine that the minor is an Indian child, the juvenile court shall conduct a new selection and implementation hearing in conformance with all the provisions of ICWA.

MORRISON , J.

We concur:

SCOTLAND, P.J.

DAVIS , J.

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^[1] Appellant was appointed counsel, who could not find any arguable issues on appeal for appellant (Declaration of Roni Keller, filed February 6, 2008) and was allowed to withdraw pursuant to In re Sade C. (1996) 13 Cal.4th 952.

^[2] The Hoopa Tribe is federally recognized for the purposes of the ICWA. (See 71 Fed.Reg. 43802 (August 2, 2006); 68 Fed.Reg. 68181 (Dec. 5, 2003).)