In re C.L. CA4/2 ( 2013 )

Filed 6/6/13 In re C.L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 C.L., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E057469
Plaintiff and Respondent, (Super.Ct.No. RIJ120738)
v. OPINION
C.L.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela J. Walls, County Counsel, Anna M. Deckert, Deputy County Counsel, for
Plaintiff and Respondent.
No appearance for minor.
1
C.L. (minor, born August 2009) came to the attention of plaintiff and respondent
Riverside County Department of Public Social Services (the department) on December 2,
2010, upon receipt of a report from law enforcement that minor was living with his
paternal grandparents, who were suspected of operating a methamphetamine lab. Mother
was physically incapacitated and living in an assisted living facility, while father was
incarcerated. After sustaining a juvenile dependency petition filed by the department, the
juvenile court found the Indian Child Welfare Act (ICWA) applied as mother was a
registered member of the Chickasaw Nation, in which minor would also be eligible for
membership. Father reported Indian heritage as well.
On February 7, 2011, the juvenile court removed minor from parents’ custody and
ordered parents’ receive six months of reunification services. On August 8, 2011, the
juvenile court terminated parents’ reunification services. The department initially placed
minor with caregivers through Indian Child and Family Services; however, those
caregivers requested minor be removed; the department subsequently placed minor with
non-Indian foster parents on May 2, 2011. After the Chickasaw Nation intervened and
could not find a placement for minor, it approved termination of parents’ parental rights
and adoption by minor’s foster care parents. On September 7, 2012, the juvenile court
terminated parents’ parental rights and ordered adoption as the permanent plan.
On appeal, father contends the juvenile court erroneously terminated his parental
rights without complying with ICWA with respect to his own purported Indian heritage.1
1 Mother is not a party to the appeal.
2
We agree the department failed to comply with ICWA notification with regard to father’s
purported Indian heritage and, therefore, conditionally reverse the juvenile court’s order
terminating father’s parental rights.
FACTUAL AND PROCEDURAL HISTORY
On December 2, 2010, law enforcement investigated a report that paternal
grandparents were operating a methamphetamine lab at their residence.2 They had
responded to the home six times in the preceding two months, during which they had
conducted arrests. An officer opened the front door of the home and found minor
standing next to two pitbulls without adult supervision. Minor informed the officer
everyone was sleeping. The officer found paternal grandmother asleep in a back
bedroom. Paternal grandfather was talking with someone outside the home. The officer
found a drug pipe and controlled substances on paternal grandfather’s person; paternal
grandparents were both arrested for possession of illegal substances, possession of stolen
property, and passing bad checks.
Minor had been living with paternal grandparents his entire life. At the time of his
delivery, he tested positive for opiates. Mother tested positively for opiates and
marijuana prior to delivery. On January 9, 2010, mother had been involved in an
automobile accident, which left her “non-mobile, non-verbal, and currently quadriplegic
and unaware of her surroundings.” She was reportedly in a “vegetative” state and placed
2 The juvenile court had declared father a dependent of the court between August
3, 1998, and September 21, 2000, due to paternal grandmother’s operation of a
clandestine laboratory in the home.
3
in an assisted living facility, which was required in order to meet her daily needs. Father
was incarcerated and would not be released until May 1, 2011.
The department filed a Welfare and Institutions Code section 3003 petition
alleging father had left minor in the care of paternal grandparents despite knowing of
their criminal history and the inappropriateness of the residence (B-1), mother was unable
to provide care (B-2, G-1), and father was incarcerated (B-3, G-2). Maternal grandfather
reported maternal grandmother was Native American. On December 7, 2010, father filed
an ICWA-020 form indicating he may have Indian ancestry notating only “PGM.” At the
detention hearing, father’s attorney noted, “We have submitted an ICWA-20, and I
believe he’s indicating that he may have Indian ancestry also. It would be on his father’s
side, and he’s not sure of the tribe, your Honor.” Mother was a registered member of
Chickasaw Nation.
The juvenile court found, “there is reason to know that an Indian child is involved
on possibly both the maternal and paternal side[s] of the family. We don’t know the tribe
however. At this time, at least [the department] must provide notice to any identified
tribes and if any are identified later and/or the Bureau of Indian Affairs as required by
law.” Thus, the court found ICWA may apply. It found minor had been placed in an
Indian home pursuant to section 361.31, appointed a guardian ad litem for mother, and
ordered minor detained.
3All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
4
In the jurisdiction and disposition report dated December 30, 2010, the social
worker noted she had spoken with a representative of Chickasaw Nation who confirmed
mother was a registered member and that minor would be eligible for membership as
well. The department requested a continuance for the preparation of an Indian expert
declaration. On January 4, 2011, the department mailed notice of child custody
proceeding for an Indian child. The social worker noted mother’s tribe as Chickasaw
Nation and mailed the notice accordingly. Father’s tribe was listed as “not specified” and
mailed to the Bureau of Indian Affairs.
An addendum report filed February 2, 2011, reflected the department’s receipt of a
letter from Chickasaw Nation confirming mother’s membership and minor’s status as an
Indian child pursuant to ICWA. An Indian expert averred via declaration, “There is no
evidence that the father is a Native American Person.” He recommended removal of
minor’s custody from parents. After sustaining the petition, the juvenile court found an
Indian child was involved and that the department “has provided notice to all identified
tribes as required by law.”
In a status review report filed July 26, 2011, the social worker noted minor’s
Indian family placement had requested minor be removed on May 2, 2011. The
department placed minor in non-Indian foster care. At the six-month review hearing on
August 8, 2011, the juvenile court found good cause existed to deviate from ICWA
regarding placement since the Indian family had requested minor’s removal, and no other
Indian family could be found. The juvenile court terminated parents’ reunification
services and set the section 366.26 hearing.
5
On November 10, 2011, Chickasaw Nation filed a motion to intervene in the
proceedings.4 In subsequent reports filed November 17, 2011, and March 27, 2012, the
department requested continuances of the section 366.26 hearing to allow Chickasaw
Nation to intervene; as of the latter report, Chickasaw Nation had not determined whether
an adoptive placement within its tribe could be located. In an addendum report filed July
20, 2012, the social worker noted Chickasaw Nation had given its approval to proceed
with adoption by the prospective adoptive parents with whom minor had been placed on
May 2, 2011. On September 7, 2012, the juvenile court terminated parental rights and
ordered adoption as the permanent plan.
DISCUSSION
Father contends the juvenile court erroneously terminated his parental rights
without complying with the notification requirements of ICWA with respect to his
alleged Indian heritage. We agree.
The ICWA was enacted “to protect the best interests of Indian children and to
promote the stability and security of Indian tribes and families . . . .” (25 U.S.C.A.
§ 1902.) “The ICWA presumes it is in the best interests of the child to retain tribal ties
and cultural heritage and in the interest of the tribe to preserve its future generations . . .
.” (In re Desiree F. (2000) 83 Cal. App. 4th 460, 469.) To this end, section 1911 of the
ICWA allows a tribe to intervene in state court dependency proceedings. (25 U.S.C.A.
§ 1911(c).)
4 The record does not disclose whether the juvenile court formally ruled on the
motion, but subsequent circumstances indicate it implicitly granted the request.
6
Notice of the proceedings is required to be sent whenever it is known or there is
reason to know that an Indian child is involved. (25 U.S.C.A. § 1912(a); Welf. & Inst.
Code, § 224.2, subd. (a); see In re Desiree F., supra, 83 Cal.App.4th at p. 469.) Notice
serves a twofold purpose: “(1) it enables the tribe to investigate and determine whether
the minor is an Indian child; and (2) it advises the tribe of the pending proceedings and its
right to intervene or assume tribal jurisdiction.” (In re Desiree F., supra, at p. 470.) No
foster care placement or termination of parental rights proceeding may be held until at
least 10 days after the tribe (or the Bureau of Indian Affairs where the tribe is unknown)
receives notice. (25 U.S.C.A. § 1912(a); In re A.B. (2008) 164 Cal. App. 4th 832, 838.)
In addition to the minor’s name, and date and place of birth, if known, the notice is
required to include the “name of the Indian tribe in which the child is a member or may
be eligible for membership, if known.” (§ 224.2, subd. (a)(5)(B).) The notice is also
required to contain “[a]ll names known of the Indian child’s biological parents,
grandparents, and great-grandparents, . . . as well as their current and former addresses,
birthdates, places of birth and death, tribal enrollment numbers, and any other identifying
information, if known.” (§ 224.2, subd. (a)(5)(C).)
Juvenile courts and child protective agencies have “‘an affirmative and continuing
duty to inquire whether a [dependent] child . . . is or may be an Indian child.’ [Citation.]”
(In re H.B. (2008) 161 Cal. App. 4th 115, 121; § 224.3; Cal. Rules of Court, rule 5.481.)
As soon as practicable, the social worker is required 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
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eligibility. (§ 224.3, subd. (c); In re Shane G. (2008) 166 Cal. App. 4th 1532, 1539; Cal.
Rules of Court, rule 5.481(a)(4).)
“‘The [trial] court must determine whether proper notice was given under ICWA
and whether ICWA applies to the proceedings. [Citation]. We review the trial court’s
findings for substantial evidence. [Citation.]’ [Citation.]” (In re Christian P. (2012) 207
Cal. App. 4th 1266, 451.)
Here, substantial evidence fails to support the juvenile court’s determination that
the department had given proper notice regarding father’s claim of Indian heritage.
Father filed an ICWA-020 form indicating he may have Indian ancestry stemming,
presumably, from the paternal grandmother.5 Father’s counsel also notified the court at
the detention hearing that father had Indian heritage of unknown origin through his
paternal side.6 The juvenile court explicitly noted there was reason to believe minor had
Indian heritage on both sides of his family and the department had the responsibility to
“provide notice to any identified tribes and if any are identified later and/or the Bureau of
Indian Affairs as required by law.”
5 The department contends father’s notation of “PGM” on his ICWA-020 form
means his own paternal grandmother, rather than minor’s. Either way, the department
had an obligation to inquire into any of father’s purported Indian heritage and provide as
much information as it could reasonably obtain to any identified tribe or the Bureau of
Indian Affairs.
6 If “PGM” in father’s ICWA-020 meant father’s paternal grandmother, than his
counsel’s statement that he claimed Indian heritage through his father’s side would be
consistent. If father meant minor’s paternal grandmother, counsel’s statement would be
inconsistent. Nevertheless, the department had the obligation, and opportunity, to further
inquire.
8
This it did not do. With respect to father, the notice of child custody proceeding
for an Indian child listed paternal grandmother’s current address as only “California.” It
listed her former address as “unknown.” Although it listed her birth date, it listed her
birth place as “unknown.” Likewise, the notice listed paternal grandfather’s current
address as only “California” and his former address as “[no] information available.” The
notice reflected paternal grandfather’s birth date, but listed his place of birth as
“Unknown possibly Los Angeles, CA.” The notice did not give any information
regarding more removed relations of consanguinity on either side of father’s family.
The lack of current or former addresses in the notice for paternal grandparents is
particularly glaring as the department responded to their address in taking protective
custody of minor which, at minimum, would reflect their former, if not, current address.
Moreover, the social worker interviewed paternal grandparents on December 27, 2010,
nearly three weeks after father had filed his ICWA-020 form indicating Indian heritage,
his counsel’s statement father had Indian ancestry, and the juvenile court’s order that the
department provide proper notification regarding both sides of minor’s family. Thus, the
department had ample opportunity to inquire of paternal grandparents regarding their
current and former addresses, their places of birth, any tribal affiliations, and any
information regarding their parents and grandparents that would be pertinent to the
ICWA notification.
Indeed, even after the department issued its ICWA notice, it continued to have
contact and information regarding paternal grandmother’s location. The department’s
report filed July 26, 2011, reflects paternal grandmother engaged in weekly visits with
9
father and minor at the department’s offices ending on May 11, 2011. A report filed
November 17, 2011, reflected the department knew paternal grandmother was in a federal
penitentiary. Thus, even if the department could be excused in providing an initially
inadequate ICWA notice, it failed its continuing duty to make the requisite inquires and
subsequent notice.
Contrary to the department’s contention, we cannot hold the error harmless
because there is no information that father did not have Indian heritage. If he did, and
was eligible for membership, minor may have qualified as an Indian child via a different
tribe, which could have intervened and potentially found an Indian family placement for
him, unlike Chickasaw Nation. Thus, the department failed to provide adequate notice
pursuant to ICWA requiring conditional reversal. (In re Gabriel G. (2012) 206
Cal. App. 4th 1160, 1168; In re A.G. (2012) 204 Cal. App. 4th 1390, 1393-1394.)
DISPOSITION
The orders terminating parental rights and ordering adoption as the permanent
plan for minor are conditionally reversed and a limited remand is ordered as follows:
Upon remand, the juvenile court shall direct the department to make further inquiries
regarding minor’s paternal Indian ancestry, if any, pursuant to section 224.1 and send
ICWA notices to all relevant tribes and the BIA in accordance with ICWA and California
law. The department shall thereafter file certified mail, return receipts, for the ICWA
notices, together with any responses received. If no responses are received, the
department shall so inform the juvenile court. The juvenile court shall determine whether
the ICWA notices and the duty of inquiry requirements have been satisfied and whether
10
minor is an Indian child on his paternal side. If the juvenile court finds minor is not an
Indian child on his paternal side, it shall reinstate the orders terminating parental rights
and placing minor for adoption. If the court finds minor is an Indian child on his paternal
side, it shall conduct all further proceedings in compliance with the ICWA and related
California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RICHLI
Acting P. J.
KING
J.
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