In re Elizabeth M. ( 2018 )

Filed 1/22/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ELIZABETH M., a Person B284123
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No. CK95071)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SHAWN M., SR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Daniel Zeke Zeidler, Judge. Conditionally
affirmed.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel, Kim Nemoy, Principal Deputy
Counsel, for Plaintiff and Respondent.
Shawn M., Sr., the father of seven-year-old Shawn M., Jr.,
six-year-old Michael M., five-year-old Elizabeth M. and four-year-
old Gail M., appeals from the order terminating his parental
rights to Elizabeth and Gail under Welfare and Institutions Code
1
section 366.26. Shawn contends the court abused its discretion
in denying the request of the children’s mother, Crystal T., in
which he joined, to continue the selection and implementation
hearing for Elizabeth and Gail to the new date scheduled for
their brothers’ hearing; erred in ruling the sibling relationship
exception to the legislative preference for adoption (§ 366.26,
subd. (c)(1)(B)(v)) did not apply; and failed to comply with the
inquiry and notice requirements of the Indian Child Welfare Act
of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We agree there was an
inadequate investigation of Crystal’s claim of Indian ancestry.
Specifically, although the name of the tribe Crystal identified did
not directly correspond to that of a federally recognized Indian
tribe, the Los Angeles County Department of Children and
Family Services failed to satisfy its affirmative obligation to
interview family members and others who could be expected to
have relevant information concerning the children’s status, and
the juvenile court failed to ensure an appropriate inquiry had
been conducted before concluding ICWA did not apply to these
proceedings. Accordingly, we remand the matter to allow the
Department and the juvenile court to remedy that violation of
federal and state law and otherwise conditionally affirm the
order.
1
Statutory references are to this code unless otherwise
stated.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Dependency Proceedings Prior to the Selection and
Implementation Hearing
The Department filed the original dependency petition in
this case in August 2012, prior to Gail’s birth, alleging that
Shawn had physically abused his older son, then only two years
old, by choking him when he failed to stop crying; Crystal had
observed the abuse and failed to protect her son; and the two
younger children were at substantial risk of suffering physical
and emotional harm because of Shawn’s abusive behavior and
Crystal’s fear of Shawn. (§ 300, subds. (a), (b) & (j).) An
amended petition added the allegation that Shawn’s mental
health condition and criminal history also created a risk of harm
to the children, and a second amended petition added the
allegation that Shawn had struck his younger son with sufficient
force to cause bruising. The juvenile court sustained the second
amended petition in substantial part, removed the children from
the care and custody of their parents, ordered them suitably
placed under the supervision of the Department and directed the
Department to provide family reunification services to Shawn
and Crystal. We affirmed the jurisdiction findings and
disposition order in a nonpublished opinion. (In re Shawn M.
(Sept. 23, 2013, B245323).)
At the six-month review hearing (§ 366.21, subd. (f)) in
April 2013, the Department reported the children were placed
together in foster care. Several weeks later, following Gail’s
birth, the Department filed a new dependency petition alleging
Gail was at risk because of Shawn’s physical abuse of his two
sons, Shawn’s unresolved mental health issues and Crystal’s
substance abuse. (Crystal had tested positive for opioids at the
3
time of Gail’s birth.) The petition was sustained in late July 2013
and Gail was removed from the custody of her parents. The
Department was not able to place Gail in the same foster home as
her three siblings at that time. The four children were placed
together by April 2014.
Reunification services were terminated for the three older
children in July 2014. Reunification services for Gail were
terminated in December 2014, and the case was set for a
February 2015 selection and implementation hearing under
section 366.26. In May 2015 the court granted Crystal’s petition
for modification (§ 388) and returned all four children to Crystal’s
home under the supervision of the Department.
In February 2016 the Department filed a subsequent
petition (§ 342) alleging, in part, that Crystal had physically
abused the children. The children were detained from Crystal,
and ultimately the court sustained an amended version of the
subsequent petition. Initially, the girls were placed together in a
prospective adoptive home; the boys were placed together in a
different home. By May 2016 the children were moved again.
The boys were placed with a prospective adoptive parent, Ms. P.
(their sixth placement); the girls were placed together with a
prospective adoptive family, Mr. and Mrs. M. (Gail’s sixth
placement and Elizabeth’s eighth). The court ordered the
Department to investigate the home of out-of-state relatives
(paternal second cousins in Texas) as a potential placement
option for all four children. The court again scheduled a
section 366.26 selection and implementation hearing.
2. The Selection and Implementation Hearing
The section 366.26 hearing, scheduled for September 13,
2016, was continued six months to March 9, 2017 for completion
4
of a home study for Elizabeth and Gail in their current
prospective adoptive placement and for identification of an
appropriate placement for the two boys. In a last minute
information report to the court submitted several days before the
hearing, the Department explained the second cousins in Texas
had recently stated they were now uncertain whether they were
prepared to go forward with adoption or legal guardianship for
the children. The report also advised the court that the boys’
current caregiver was not interested in adoption.
The March 2017 hearing was continued to April 5, 2017 for
an update on efforts to identify an adoptive home for the two boys
and for a contested hearing as to the two girls. In its last minute
information report the Department indicated the Texas cousins
were now prepared to go forward with legal guardianship for all
four children, but not adoption. The Department recommended
legal guardianship as to the two boys, based on its lack of success
in finding an adoptive home for all four children and behavioral
issues with the boys. It also recommended that plans for
adoption proceed as to the two girls.
At the hearing the Department reported it had located a
potential adoptive placement for Shawn, Jr. and Michael. To
pursue that possibility and to permit evaluation of the paternal
cousins’ home in Texas through the Interstate Compact on the
Placement of Children (ICPC), and because Shawn, Sr. was
incarcerated and had not been transported to court, the court
again continued the hearing—first to May 30, 2017 and then
again to June 29, 2017. The court also ordered that Elizabeth
and Gail were not to be re-placed absent an emergency.
In last minute reports for the June 29, 2017 hearing the
Department notified the court that the Texas relatives remained
5
interested in placement and permanence for the children, but the
ICPC evaluation of their home was still pending. A different
home with a prospective adoptive placement had been located for
the boys; a tentative move to the new residence was scheduled for
July 12, 2017. The prospective adoptive parent was aware of a
possible relative placement and had acknowledged the relative
placement, if found appropriate and ordered by the court, would
occur. The home study for the girls’ prospective adoptive parents
had been approved.
At the June 29, 2017 hearing the Department
recommended terminating parental rights for all four children.
In response, minors’ counsel, who represented all four children,
requested a continuance of the hearing as to the two boys because
they were not yet in an adoptive placement. She explained, “I do
not feel comfortable with making them legal orphans when there
is—when their current placement does not have any intent in
providing permanence.”
At this point one of the paternal cousins, who had come to
the hearing from Texas, addressed the court and said he and his
wife wanted to adopt all four children and were doing their best
to complete the procedures required for them to do so. Counsel
for Crystal then requested the court continue the entire matter,
so that the ICPC issues could be resolved and the court could
address all four children’s permanent plan on the same date.
Counsel for Shawn, Sr. joined the request.
The court granted the request for a continuance as to
Shawn, Jr. and Michael but denied the parents’ request to
continue the hearing for Elizabeth and Gail, noting they were in
a home with an approved adoptive home study and had been in
that placement for more than a year. The court stated, “Even if
6
the ICPC were approved for placement at this time with the
relatives in Texas, the court would not be inclined to have the
children replaced. While the court has continued to consider
those relatives for placement, the minors’ counsel has already
had the court make an order that the children not be replaced.”
Then, responding to Shawn, Sr.’s comment that he would like all
four children placed together with a relative, the court added, “I
do understand that. And it’s difficult that it’s been—that we
haven’t been successful in getting them placed together at this
point. But the girls now have been in this home for over a year,
and I think that people need to take that into consideration, too,
2
in terms of their stability and bonding and emotional issues.”
Turning to the permanent plan for Elizabeth and Gail, the
court stated it was considering the entire contents of its file, with
specific reference to the section 366.26 report prepared for the
September 2016 hearing and the last minute information report
for the court filed earlier that day. No party submitted any
additional evidence. Counsel for Crystal argued the court should
apply both the parent-child relationship exception (§ 366.26,
subd. (c)(1)(B)(i)) and sibling relationship exception (§ 366.26,
subd. (c)(1)(B)(v)) to the preference for termination of parental
2
After continuing the section 366.26 hearing for Shawn, Jr.
and Michael to August 14, 2017, the court gave the Department
authority to place the two boys with their relatives in Texas if
ICPC approval was received prior to the continued court date.
On August 14, 2017 the boys’ selection and implementation
hearing was continued to December 5, 2017. It appears
Shawn, Jr. and Michael were placed with their paternal cousins
by that date. On December 5, 2017 the section 366.26 hearing
was continued to April 19, 2018 to stabilize their placement.
7
rights if a child is likely to be adopted within a reasonable time.
Shawn, Sr.’s counsel joined both arguments. Counsel for the
Department and minors’ counsel argued neither exception
applied and urged the court to terminate parental rights as to
Elizabeth and Gail. The Department’s counsel added it was the
Department’s position that the four children “should potentially
be with the relatives in Texas.”
The court found the children adoptable and ruled neither
statutory exception to adoption had been established, expressly
stating it could not find the sibling relationship outweighed the
benefit of permanence in adoption. The court terminated
parental rights and directed their counsel to refer Elizabeth and
Gail to the Alliance for Children’s Rights for finalization of the
adoption.
3. ICWA Notice and Inquiry
The original dependency petition, filed August 17, 2012,
included an Indian Child Inquiry Attachment, Judicial Council
form ICWA-010(A), for Shawn, Jr., Michael and Elizabeth,
prepared by the Department’s social worker, reporting that each
child may have Indian ancestry. In addition, on the same date
both Shawn, Sr. and Crystal submitted a Judicial Council form
ICWA-020, Parental Notification of Indian Status, checking the
box stating, “I may have Indian ancestry” and inserting “Redtail”
3
as the tribe’s name. In its detention report the Department
noted ICWA’s potential application to the case but incorrectly
asserted, “[M]other indicated that there is no Indian Heritage in
3
California Rules of Court, rule 5.481(a)(2) requires the
court, at the first appearance of a parent in any dependency case,
to order the parent to complete Judicial Council form ICWA-020.
8
her family, however, father indicated that [his] family is part Red
Tail.” At the detention hearing, however, the court correctly
observed that both Shawn and Crystal had identified their
possible Indian ancestry and ordered the Department to give
notice to the “Redtail Tribe,” the Bureau of Indian Affairs and the
Secretary of the Interior.
On September 7, 2012 the Department sent ICWA notices
to the Secretary of the Interior and to the Sacramento Area
Director of the Bureau of Indian Affairs (BIA). As it had done in
its detention report, the Department’s ICWA notices erred in
asserting that Crystal was “NOT Indian,” while indicating Shawn
may be affiliated with the Red Tail tribe. The notices contained
no names or other biographical information for any of the
children’s paternal or maternal relatives other than Crystal and
Shawn. No notice was sent directly to a tribe identified as “Red
Tail.”
The BIA responded on October 9, 2012 that the
Department’s notice contained insufficient information to
determine a tribal affiliation. In a last minute information report
to the court for a November 2, 2012 progress hearing, the
Department submitted the BIA’s response and stated a
dependency investigator had reviewed the list of federally
4
recognized tribes, which did not include a Red Tail tribe.
4
The Department’s last minute information report stated,
“On 10/29/2012, DI Wilson received a correspondence from the
United States of America Department of Interior stating the
notice received contains insufficient information or limited
information to determine Tribal Affiliation. On 10/29/2012,
DI Wilson reviewed the list of Indian tribes which did not include
a ‘Red Tail’ tribe.”
9
At the November 2, 2012 progress hearing the court found
there was no reason to know Shawn, Jr., Michael and Elizabeth
were Indian children as defined by ICWA and ruled ICWA did
not apply to the case.
When Gail was detained in May 2013 Crystal filed another
ICWA-020 form, again stating she may have Indian ancestry,
5
naming the tribe as “Red Tail Indians.” At the detention
hearing the court ordered the Department to investigate Crystal’s
claim but nonetheless found ICWA did not apply at that time,
apparently based on the November 2, 2012 ICWA finding as to
the other three children, which the Department had noted in its
detention report along with its assertion that ICWA did not apply
to the case.
Interviewed on June 3, 2013 Crystal reported “she had Red
Tail Indian on her father’s side of the family but she did not know
who it was.” Mother told the social worker she had received this
information from “grandmother Ms. Boursarrd.” (Although not
entirely clear from the record, it appears the relative identified is
Crystal’s grandmother, Gail’s great-grandmother.) Nothing in
the record suggests the Department ever interviewed Ms.
Boursarrd or any of Crystal’s other relatives regarding the
6
family’s possible Indian ancestry.
5
The Indian Child Inquiry Attachment, included with the
section 300 petition for Gail checked the box stated, “The child
has no known Indian ancestry.”
6
In its jurisdiction/disposition report for Gail, filed on
July 22, 2013, the Department stated it had not yet interviewed
Ms. Boursarrd concerning the child’s possible Indian ancestry
through Crystal.
10
On July 22, 2013, Shawn, Sr. who was incarcerated, filed
his new ICWA-020 form in connection with the detention of Gail,
once again identifying his possible ancestry as a Red Tail Indian.
Shawn added the tribe may have been located in Florida or
Louisiana. At a progress hearing on that date, the court ordered
the Department to interview Shawn, “including ICWA
investigation addressing father’s Indian ancestry.”
The record does not contain any supplemental report
regarding investigation of Crystal or Shawn, Sr.’s possible Indian
ancestry although both maternal and paternal relatives were
7
present in court at various proceedings. The section 366.26
report submitted for the September 13, 2016 selection and
implementation hearing simply recites that the court had found
ICWA did not apply to Shawn, Jr., Michael and Elizabeth on
November 2, 2012, and as to Gail on May 8, 2013. Similarly, no
further ICWA findings or orders were made by the court at Gail’s
jurisdiction hearing on July 29, 2013 or thereafter. The June 29,
2017 order terminating Shawn, Sr.’s and Crystal’s parental
rights as to Elizabeth and Gail does not refer to ICWA.
7
Specifically, neither the status review report for Gail’s six-
month review hearing (§ 366.21, subd. (e)) filed on January 13,
2014—the first hearing for her following the disposition
hearing—nor the October 17, 2013 and January 13, 2014 reports
filed in connection with hearings for the three older children,
reflect Shawn, Sr. had been interviewed concerning his Indian
ancestry as had been ordered by the court on July 22, 2013. All
three reports, however, stated ICWA did not apply.
11
DISCUSSION
1. The Juvenile Court Did Not Abuse Its Discretion in
Denying the Request To Continue Elizabeth and Gail’s
Section 366.26 Hearing
The juvenile court has the power to “control all proceedings
during the hearings with a view to the expeditious and effective
ascertainment of the jurisdictional facts and the ascertainment of
all information relative to the present condition and future
welfare of the person upon whose behalf the petition is brought.”
(§ 350, subd. (a)(1); see Renee S. v. Superior Court (1999)
76 Cal. App. 4th 187, 193.) Continuances are discouraged in
dependency cases. (In re Emily D. (2015) 234 Cal. App. 4th 438,
448; In re Giovanni F. (2010) 184 Cal. App. 4th 594, 604.)
Nonetheless, the juvenile court may continue a dependency
hearing upon a showing of good cause, provided the continuance
is not contrary to the interest of the child. (See § 352, subd. (a)
[“[N]o continuance shall be granted that is contrary to the
interest of the minor. In considering the minor’s interests, the
court shall give substantial weight to a minor’s need for prompt
resolution of his or her custody status, the need to provide
children with stable environments, and the damage to a minor of
prolonged temporary placements.”]; In re A.M. (2008)
164 Cal. App. 4th 914, 925.) We review an order denying or
granting a continuance for abuse of discretion. (See Giovanni F.,
at p. 605 [reviewing order denying continuance]; In re Mary B.
(2013) 218 Cal. App. 4th 1474, 1481 [reviewing order granting
continuance].) “To show abuse of discretion, the appellant must
demonstrate the juvenile court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in
12
a miscarriage of justice.” (In re Joey G. (2012) 206 Cal. App. 4th
343, 346.)
Here, the juvenile court acknowledged, as a general matter,
it was desirable to try to place all four children together and, to
that end, it would be preferable to decide the permanency options
for all of them at the same time. However, as the court
emphasized, the two young girls had been residing in an
approved adoptive home for more than one year. Permanency
plans for the boys, on the other hand, remained uncertain at the
time of the June 29, 2017 selection and implementation hearing.
Giving greater weight to the girls’ need for stability and
maintenance of their emotional bond to their prospective adoptive
parents than to the still-hypothetical possibility of placement
together with their siblings in Texas, the court concluded
delaying the section 366.26 hearing was not in the girls’ best
interest. That decision was neither arbitrary nor irrational and
did not constitute an abuse of discretion.
2. The Juvenile Court Did Not Err in Ruling Shawn, Sr.
Had Not Established the Sibling Relationship Exception
to Termination of Parental Rights
a. Governing law and standard of review
The express purpose of a section 366.26 hearing is “to
provide stable, permanent homes” for dependent children.
(§ 366.26, subd. (b).) If the court has decided to end parent-child
reunification services, the legislative preference is for adoption.
(In re S.B. (2009) 46 Cal. 4th 529, 532 [“[i]f adoption is likely, the
court is required to terminate parental rights, unless specified
circumstances compel a finding that termination would be
detrimental to the child”]; In re Celine R. (2003) 31 Cal. 4th 45, 53
[“if the child is adoptable . . . adoption is the norm”]; see In re
Marilyn H. (1993) 5 Cal. 4th 295, 307 [once reunification efforts
13
have been found unsuccessful, the state has a “compelling”
interest in “providing stable, permanent homes for children who
have been removed from parental custody”].) When the court
finds by clear and convincing evidence the child is likely to be
adopted, the statute mandates judicial termination of parental
rights unless the parent opposing termination can demonstrate
one of six enumerated exceptions applies. (§ 366.26,
subd. (c)(1)(B); see Celine R., at p. 53 [“court must order adoption
and its necessary consequence, termination of parental rights,
unless one of the specified circumstances provides a compelling
reason for finding that termination of parental rights would be
detrimental to the child”]; In re Matthew C. (1993) 6 Cal. 4th 386,
392 [when child adoptable and declining to apply one of the
statutory exceptions would not cause detriment to the child, the
decision to terminate parental rights is relatively automatic].)
The purpose of the sibling exception is to preserve
longstanding sibling relationships that serve as “anchors for
dependent children whose lives are in turmoil.” (In re Erik P.
(2002) 104 Cal. App. 4th 395, 404.) “To show a substantial
interference with a sibling relationship the parent [or sibling
granted standing] must show the existence of a significant sibling
relationship, the severance of which would be detrimental to the
child. Many siblings have a relationship with each other, but
would not suffer detriment if that relationship ended. If the
relationship is not sufficiently significant to cause detriment on
termination, there is no substantial interference with that
relationship.” (In re L.Y.L. (2002) 101 Cal. App. 4th 942, 952,
fn. omitted.) The court should consider “the nature and extent of
the relationship, including whether the child and sibling were
raised in the same house, shared significant common experiences
14
or have existing close and strong bonds. [Citation.] If the court
determines terminating parental rights would substantially
interfere with the sibling relationship, the court is then directed
to weigh the child’s best interest in continuing that sibling
relationship against the benefit the child would receive by the
permanency of adoption.” (Ibid.; accord, In re Celine R., supra,
31 Cal.4th at p. 61.) “[T]he concern is the best interests of the
child being considered for adoption, not the interests of that
child’s siblings.” (In re Naomi P. (2005) 132 Cal. App. 4th 808,
822; see Celine R., at pp. 49-50.) “The court must balance the
beneficial interest of the child in maintaining the sibling
relationship, which might leave the child in a tenuous
guardianship or foster home placement, against the sense of
security and belonging adoption and a new home would confer.”
(L.Y.L., at p. 951; accord, In re D.M. (2012) 205 Cal. App. 4th
283, 293.)
The parent has the burden of proving the statutory
exception applies. (In re Breanna S. (2017) 8 Cal.App.5th 636,
646; In re Bailey J. (2010) 189 Cal. App. 4th 1308, 1314; In re
Derek W. (1999) 73 Cal. App. 4th 823, 826.) The court’s decision a
parent has not carried this burden may be based on either or both
of two component determinations—whether a beneficial sibling
relationship exists and whether the existence of that relationship
constitutes “a compelling reason for determining that
termination would be detrimental to the child . . . .” (§ 366.26,
subd. (c)(1)(B); see In re K.P. (2012) 203 Cal. App. 4th 614, 622;
Bailey J., at p. 1314.) When the juvenile court finds the parent
has not established the existence of the requisite beneficial
relationship, our review is limited to determining whether the
evidence compels a finding in favor of the parent on this issue as
15
a matter of law. (Breanna S., at p. 647; In re I.W. (2009)
180 Cal. App. 4th 1517, 1527-1528.) When the juvenile court
concludes the benefit to the child derived from preserving the
sibling relationship is not sufficiently compelling to outweigh the
benefit achieved by the permanency of adoption, we review that
determination for abuse of discretion. (In re J.S. (2017)
10 Cal.App.5th 1071, 1080; see K.P., at pp. 621-622; Bailey J.,
at pp. 1314-1315.)
b. Shawn, Sr. failed to demonstrate the girls’
relationship with their brothers outweighed the
benefits of permanency through adoption
For the first several years of their lives, the girls were
placed with their brothers in foster care. In May 2015—just after
Elizabeth’s third birthday and Gail’s second—all four children
were temporarily returned to the custody of their mother.
However, from February 2016 until the section 366.26 hearing at
the end of June 2017—16 months—the girls had not lived with
8
their brothers. Beyond this minimal information describing
when the children had been living together, no evidence was
presented concerning the nature or quality of the girls’
relationship with their brothers as of the June 2017 selection and
8
As discussed, Elizabeth was detained from Crystal in
August 2012 when she was three months old and placed in foster
care with her brothers. Less than a year later Gail, a newborn,
was removed from Crystal’s custody. Initially, Gail was not
placed with her siblings, but the four children were together by
April 2014. They remained together in foster care until May
2015 when they were all returned to Crystal’s care under the
supervision of the Department. When they were again removed
from Crystal in February 2016, the two girls were not placed with
their brothers.
16
implementation hearing. Indeed, counsel for Crystal conceded
while arguing for the sibling relationship exception, “[T]hey have
been separated for quite some time, and I know, perhaps, there’s
no existing bond at the moment . . . .”
The evidence before the court certainly did not compel a
finding that Elizabeth and Gail had a significant sibling bond
with Shawn, Jr. and Michael, let alone that termination of
parental rights would substantially interfere with their
continuing relationship. To the contrary, nothing in the record
suggested Elizabeth and Gail’s relationship with their brothers,
whatever it may have been, would be severed if they were
adopted by their current caregivers. (See In re Jacob S. (2002)
104 Cal. App. 4th 1011, 1019, disapproved on another ground in
In re S.B., supra, 46 Cal.4th at 537, fn. 5 [absence of evidence
that relationships among siblings would necessarily cease upon
termination of parental rights supported juvenile court’s
conclusion sibling bond exception did not apply].)
Without directly evaluating the extent of any sibling bond
that may have existed between Elizabeth and Gail, on the one
hand, and their brothers, on the other, the juvenile court
concluded, “While the children were placed in the same home as
the boys up until 16 months ago, the court cannot find that . . .
the sibling relationship outweighs the permanence in adoption.”
That ruling, which was supported by minors’ counsel, was well
within the court’s broad discretion. The evidence demonstrated
the two girls, who had been in multiple foster placements during
their short lives, were now thriving in a stable placement and
had developed a strong emotional bond with their current
caregivers, who had been approved to adopt them. In light of the
girls’ significant interest in maintaining that home, the court was
17
fully justified in finding the sense of security and belonging that
adoption would bring outweighed any possible disruption in
Elizabeth and Gail’s relationship with their brothers, Shawn, Jr.
and Michael. (See In re Valerie A. (2007) 152 Cal. App. 4th 987,
1014 [application of the sibling relationship exception to
termination of parental rights “will be rare, particularly when the
proceedings concern young children whose needs for a competent,
caring and stable parent are paramount”]; see also In re D.M.,
supra, 205 Cal.App.4th at p. 293; In re L.Y.L., supra,
101 Cal.App.4th at p. 951.)
3. The Department Failed To Comply With Its Affirmative
Duty To Inquire Whether the Children May Be Indian
Children Within the Meaning of ICWA
a. The ICWA inquiry and notice requirements
ICWA reflects a congressional determination to protect
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal
standards a state court must follow before removing an Indian
child from his or her family. (25 U.S.C. § 1902; see In re
Isaiah W. (2016) 1 Cal.5th 1, 7-8 (Isaiah W.); In re W.B. (2012)
55 Cal. 4th 30, 47.) For purposes of ICWA, an “Indian child” is an
unmarried individual under age 18 who is either a member of a
federally recognized Indian tribe or is eligible for membership in
a federally recognized tribe and is the biological child of a
member of a federally recognized tribe. (25 U.S.C. § 1903(4)
[definition of “‘Indian child’”] & (8) [definition of “‘Indian tribe’”];
see Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal
definitions].)
As the California Supreme Court explained in Isaiah W.,
notice to Indian tribes is central to effectuating ICWA’s purpose,
18
enabling a tribe to determine whether the child involved in a
dependency proceeding is an Indian child and, if so, whether to
intervene in or exercise jurisdiction over the matter. (Isaiah W.,
supra, 1 Cal.5th at p. 8.) Notice to the parent or Indian custodian
and the Indian child’s tribe is required by ICWA in state court
proceedings seeking foster care placement or termination of
parental rights “where the court knows or has reason to know
that an Indian child is involved.” (25 U.S.C. § 1912(a).)
Similarly, California law requires notice to the parent, legal
guardian or Indian custodian and the Indian child’s tribe in
accordance with section 224.2, subdivision (a)(5), if the
Department or court “knows or has reason to know that an
Indian child is involved” in the proceedings. (§ 224.3, subd. (d);
see In re Breanna S., supra, 8 Cal.App.5th at p. 649; In re
Michael V. (2016) 3 Cal.App.5th 225, 232; Cal. Rules of Court,
rule 5.481(b)(1) [notice is required “[i]f it is known or there is
reason to know that an Indian child is involved in a proceeding
listed in rule 5.480,” which includes all dependency cases filed
9
under section 300].)
As this court has discussed in several recent cases,
although ICWA itself does not define “reason to know,” California
9
If the court has reason to know an Indian child may be
involved in the pending dependency proceeding but the identity
of the child’s tribe cannot be determined, ICWA requires notice
be given to the BIA. (25 U.S.C. §§ 1903(11), 1912(a); see
Isaiah W., supra, 1 Cal.5th at p. 8; In re Breanna S., supra,
8 Cal.App.5th at p. 650, fn. 7.) California has a similar notice
requirement. (§ 224.2, subd. (a)(4); Isaiah W., at p. 9.)
19
10
law, which incorporates and enhances ICWA’s requirements,
identifies the circumstances that may constitute reason to know
the child is an Indian child as including, without limitation, when
a person having an interest in the child, including 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); see In re Breanna S., supra, 8 Cal.App.5th at p. 650;
accord, In re Michael V., supra, 3 Cal.App.5th at p. 232.)
In addition, new federal regulations to implement ICWA
specify a court has “reason to know” the child is an Indian child if
“[a]ny participant in the proceeding, officer of the court involved
in the proceeding, Indian Tribe, Indian organization, or agency
informs the court that it has discovered information indicating
that the child is an Indian child.” (25 C.F.R. § 23.107(c)(2).)
These regulations apply to section 366.26 hearings to terminate
parental rights initiated on or after December 12, 2016, even if
the child has been involved in dependency proceedings prior to
11
that date. (25 C.F.R. §§ 23.2, 23.143.)
10
“In 2006, with the passage of Senate Bill No. 678 (2005-
2006 Reg. Sess.) (Senate Bill No. 678), the Legislature
incorporated ICWA’s requirements into California statutory law.
(Stats. 2006, ch. 838, § 1, p. 6536.) The primary objective of
Senate Bill No. 678 was to increase compliance with ICWA. . . .
To accomplish this goal, Senate Bill No. 678 revised and recast
several provisions of the Family, Probate, and Welfare and
Institutions Codes.” (In re W.B., supra, 55 Cal.4th at p. 52.)
11
The new federal regulations apply to any child custody
proceeding initiated on or after December 12, 2016. (25 C.F.R.
20
Judicial Council form ICWA-020, Parental Notification of
Indian Status, which the juvenile court must order a parent to
complete at his or her first appearance in the dependency
proceeding (Cal. Rules of Court, rule 5.481(a)(2)), often provides
the court and the child protective agency with the first
information “suggesting” or “indicating” the child involved in the
proceeding is or may be an Indian child. But the burden of
developing that information does not rest primarily with the
parents or other members of the child’s family. Juvenile courts
and child protective agencies “have an affirmative and continuing
duty to inquire whether a child for whom a petition under
Section 300 . . . is to be, or has been, filed is or may be an Indian
child in all dependency proceedings . . . .” (§ 224.3, subd. (a); see
Isaiah W., supra, 1 Cal.5th at pp. 9, 10-11; In re Michael V.,
supra, 3 Cal.App.5th at p. 233.) And once the agency or its social
worker has reason to know an Indian child may be involved, the
social worker is required, as soon as practicable, to interview the
child’s parents, extended family members, the Indian custodian,
if any, and any other person who can reasonably be expected to
have information concerning the child’s membership status or
eligibility. (§ 224.3, subd. (c); Michael V., at p. 233: In re
§ 23.143.) A “child-custody proceeding” includes any action, other
than an emergency proceeding, that may culminate in foster care
placement, termination of parental rights, a preadoptive
placement or an adoptive placement. (25 U.S.C. § 1903(1);
25 C.F.R. § 23.2.) “An action that may culminate in one of these
four outcomes is considered a separate child-custody proceeding
from an action that may culminate in a different one of these four
outcomes. There may be several child-custody proceedings
involving any given Indian child. Within each child-custody
proceeding, there may be several hearings.” (25 C.F.R. § 23.2.)
21
Kadence P. (2015) 241 Cal. App. 4th 1376, 1386; see also Cal.
Rules of Court, rule 5.481(a)(4)(A).) “[T]he duty to inquire is
triggered by a lesser standard of certainty regarding the minor’s
Indian child status . . . than is the duty to send formal notice to
the Indian tribes.” (In re Alice M. (2008) 161 Cal. App. 4th 1189,
1200; see In re Breanna S., supra, 8 Cal.App.5th at p. 652.)
b. The Department did not adequately investigate
Crystal’s claim of Indian ancestry
In the two ICWA-020’s she filed in August 2012 and May
2013 and then again when she was interviewed in June 2013
following Gail’s detention, Crystal reported her family was in
part Red Tail Indian. Nonetheless, apparently based solely on
the dependency investigator’s determination that Red Tail was
not a federally recognized tribe, the Department conducted no
further investigation of Crystal’s possible Indian ancestry; and
12
the juvenile court found that ICWA did not apply to the case.
Federal and state law require more.
12
As discussed, at the detention hearing for Shawn, Jr.,
Michael and Elizabeth, the juvenile court ordered the
Department to give notice of both Shawn, Sr. and Crystal’s
identification of Red Tail ancestry to the BIA. In violation of that
order the Department stated in its notice that Crystal had no
Indian ancestry. Moreover, without any showing that the
information was not reasonably ascertainable, the notice sent to
BIA omitted any biographical information concerning the
children’s maternal and paternal grandparents and great-
grandparents, as required by federal and state law. (See
25 C.F.R. former § 23.11(a), (d)(3) (2014); Welf. & Inst. Code,
§ 224.2, subd. (a)(5)(C); see also In re Breanna S., supra,
8 Cal.App.5th at p. 651.) Under these circumstances it is hardly
surprising the BIA responded that the notice contained
insufficient information to determine a tribal affiliation.
22
To be sure, ICWA applies only to children with the required
13
relationship to a federally recognized tribe. Absent information
indicating a child may be a member of, or eligible for membership
in, a federally recognized tribe, formal ICWA notice is not
required. However, when a parent or other family member has
informed a dependency investigator or the juvenile court of the
child’s possible Indian ancestry, the use of a tribal name that
does not correspond to that of a federally recognized tribe—or
saying “Indian” but providing no tribal name at all—does not,
without more, relieve the child protective agency of its
affirmative obligation to interview family members and others
who could be expected to have relevant information concerning
the child’s status or the court of its duty to ensure an appropriate
inquiry has been conducted before concluding ICWA does not
apply to the case. (See In re Michael V., supra, 3 Cal.App.5th at
pp. 235-236 [statement by children’s mother that she had been
told maternal grandmother was “full-blood Indian” with no
reference to a specific tribe obligated Department to contact other
relatives to inquire if they might have information regarding
children’s possible Indian ancestry]; cf. In re Louis S. (2004)
117 Cal. App. 4th 622, 627, 632 [maternal grandmother told social
worker she was eligible for membership in the Chiricahua Tribe,
13
The BIA does not maintain a publicly available list of all
federally recognized Indian tribes. It does publish in the Federal
Register an internet address linking to a list of agents designated
by federally recognized tribes for service of ICWA notices. (See
82 Fed.Reg. 12986 et seq. (March 8, 2017) [Indian Child Welfare
Act; Designated Tribal Agents for Service of Notice]; List of
Designated Tribal Agents by Tribal Affiliation (updated 11/28/15)
[as of Jan. 22, 2018].)
23
described as a branch of the Apache Tribe; Chiricahua is not a
federally recognized tribe; social worker should have determined
which branches of the Apache Tribe may have absorbed members
of the Chiricahua Tribe].)
Just as notice to Indian tribes is central to effectuating
ICWA’s purpose, an adequate investigation of a family member’s
belief a child may have Indian ancestry is essential to ensuring a
tribe entitled to ICWA notice will receive it. Oral transmission of
relevant information from generation to generation and the
vagaries of translating from Indian languages to English combine
to create the very real possibility that a parent’s identification of
the family’s tribal affiliation is not accurate. ICWA and state law
place the duty with the child protective agency in the first
instance, not the child or his or her parent, to determine whether
additional information exists that may link a child with Indian
ancestry to a federally recognized tribe. In this case, for example,
although there is no federally recognized Red Tail tribe (or,
apparently, any other tribe by that specific name), Red Tailed
Hawk is one of the seven clans of the Cherokee Nation—a
14
federally recognized tribe. Because the Department neither
14
See Cherokee Nation, Our Government [as of Jan. 22, 2018]; Native Americans
of Georgia Cherokee Tribe [as of Jan. 22, 2018].)
We advised the parties the court intended to take judicial
notice that Red Tailed Hawk was one of the seven clans of the
Cherokee Nation and provided them with internet addresses for
websites documenting that fact. We now take judicial notice of
24
interviewed the children’s great-grandmother concerning their
possible Indian ancestry, even though Crystal had said she may
have additional information, nor, as far as the record reveals,
spoke to anyone else in the family who might have relevant
information on this issue, we cannot know whether Elizabeth and
Gail have Cherokee ancestry or the overlap between the names
Red Tail and Red Tailed Hawk is simply a coincidence.
We acknowledge the court in In re K.P. (2009)
175 Cal. App. 4th 1, 5 rejected the contention a child protective
agency “must investigate any possible affiliation with a tribe
which is not federally recognized.” That may well be a correct
statement of the law in situations in which the child’s only
possible Indian ancestry relates to a specific tribe known not to
be federally recognized (for example, a state-recognized tribe or
one of Canada’s First Nations bands or communities). In other
circumstances, however, when no tribal name has been provided
or the name given, although not for a federally recognized tribe,
cannot be definitely matched to any other known tribe, as was
the case here, the agency must pursue all reasonable
investigative leads. That is the teaching of Isaiah W., supra,
1 Cal.5th 1, decided by the Supreme Court several years after
In re K.P., which emphasized the affirmative and continuing
nature of the child protective agencies’ duty to inquire whether a
child in dependency proceedings may be an Indian child.
(Isaiah W., at pp. 9, 10-11.)
Because the Department did not adequately investigate
Crystal’s claim of Indian ancestry—indeed, other than send a
that information. (See Evid. Code, §§ 452, subd. (h), 459,
subds. (a) & (c).)
25
deficient notice to the Secretary of the Interior and the BIA,
which incorrectly stated Crystal had no Indian ancestry, it did
not investigate it at all—we remand the matter for the juvenile
court to direct the Department to conduct a meaningful inquiry
into that claim, including making genuine efforts to locate family
members who might have information bearing on Elizabeth and
15
Gail’s possible Indian ancestry. If that investigation produces
any additional information substantiating Crystal’s claim, notice
must be provided to any tribe that is identified or, if the tribe
cannot be determined, to the BIA. The Department thereafter is
to notify the court of its actions and file certified mail return
receipts for any ICWA notices sent, together with any responses
received. The court shall then determine whether the ICWA
inquiry and notice requirements have been satisfied and whether
Elizabeth and Gail are Indian children. If the court finds they
are Indian children, it shall conduct a new section
366.26 hearing, as well as all further proceedings, in compliance
with ICWA and related California law. If not, the court’s
original section 366.26 order remains in effect. (See In re
Michael V., supra, 3 Cal.App.5th at p. 236.)
15
Conscientious adherence to ICWA inquiry and notice
requirements is in the best interest of all parties to a dependency
case because a violation renders the proceedings, including an
adoption following termination of parental rights, vulnerable to
collateral attack if the dependent child is, in fact, an Indian child.
(See 25 U.S.C. § 1914.) “‘To maintain stability in placements of
children in juvenile proceedings, it is preferable to err on the side
of giving notice and examining thoroughly whether the juvenile is
an Indian child.’” (In re D.C. (2015) 243 Cal. App. 4th 41, 63;
accord, In re Breanna S., supra, 8 Cal.App.5th at pp. 653-654.)
26
DISPOSITION
The section 366.26 order of the juvenile court is
conditionally affirmed. The matter is remanded to the juvenile
court for full compliance with the inquiry and notice provisions of
ICWA and related California law and for further proceedings not
inconsistent with this opinion.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.
27