In re Joseph M. CA2/3 ( 2015 )

Filed 10/14/15 In re Joseph M. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re JOSEPH M., et al., Persons Coming B260753
Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK05392)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
T.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Akemi D. Arakaki, Judge. Affirmed with directions.
Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the County Counsel, Mary C. Wickham, Interim County Counsel,
Dawyn R. Harrison, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy
County Counsel, for Plaintiff and Respondent.
___________________________________________
INTRODUCTION
Mother T.M. appeals from the juvenile court’s jurisdictional and dispositional
orders removing her sons Joseph and Jeremiah and ordering suitable placement. Mother
does not challenge the substantive findings made by the court, but contends the orders
must be reversed because the Department of Children and Family Services
(Department) failed to comply with the notice requirement of the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.). We agree the Department failed to comply
with ICWA and remand the matter with directions to the court to ensure the
Department’s compliance with ICWA’s notice requirement. We affirm the orders in all
other respects.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts Giving Rise to the Petition
Mother has two children: Joseph1 and Jeremiah. At the time the Department
filed the petition in this case, Joseph was 16 years old and Jeremiah was three years old.
The boys have different fathers; neither father is currently in contact with mother or the
boys.
The Department learned of the family on June 3, 2014, when it received
a referral stating that mother had left the two boys alone at a hotel for six hours without
any food or money. The referral indicated mother was a prostitute with a long history
of drug use, and that the boys were sometimes present when mother was in her hotel
room with a customer. When an emergency response case worker arrived at the hotel,
the boys were no longer there. The case worker learned that mother dropped the boys
off at a restaurant while she went to visit a customer and, after several hours, had not
returned. Joseph called a family friend, who picked the boys up from the restaurant and
took them to his home. The case worker visited the children at the friend’s home and,
after interviewing Joseph, immediately removed both boys and placed them in foster
care.
1
Joseph also goes by the name R. He is referred to as Joseph in this opinion.
2
The Department filed a petition on June 6, 2014, alleging jurisdiction on multiple
grounds and seeking to remove the boys from mother. More particularly, the petition
alleged that mother previously assaulted Joseph; mother has a history of drug abuse and
is a current user of methamphetamine which renders her unable to care for the boys;
mother made an inappropriate plan for the boys by leaving them in care of an unrelated
male adult and by failing to return at the agreed upon time; and, on prior occasions
mother failed to provide the boys with sufficient food leaving them hungry. On the
basis of these allegations, the Department asserted jurisdiction under Welfare and
Institutions Code section 300, subsections (a), (b), (g) and (j).2 The court detained both
boys and ordered suitable placement.
During the Department’s initial investigation, Joseph confirmed that mother was
using drugs, particularly methamphetamine, on a regular basis and that mother used
almost all the money she earned or borrowed to buy drugs rather than food. In addition,
Joseph stated that the family’s living situation was unstable because mother did not
always have enough money to pay for a hotel room. When they did stay at a hotel,
mother used the room to meet customers, during which time Joseph would take
Jeremiah out of the room and walk around the block for an hour or more. If they had
a suite, the boys would stay in the next room while mother used the bedroom.
Joseph told the assigned case worker he had not been to school during the past
year, and that he spent most of his time caring for his younger brother. He expressed
frustration over the unstable living situation, his inability to attend school regularly, the
burden of caring for his three-year-old brother, and mother’s drug use. Joseph told one
social worker that he loved and missed mother, but did not want to reunify with her
because he wanted to make a better life for himself. However, Joseph later recanted,
stating that he had lied about his mother’s drug use and prostitution in court and to the
Department, and wanted to reunify with her.
2
All further section references are to the Welfare and Institutions Code.
3
At the adjudication hearing on October 28, 2014, the court found that Joseph’s
initial description of events was truthful and sustained the Department’s petition,
finding jurisdiction under section 300, subdivisions (b), (g) and (j). The court left the
order for suitable placement in place and ordered the Department to evaluate
out-of-state placement with the maternal grandmother. The court also ordered mother
to enroll in a full-time drug and alcohol treatment program and submit to weekly
random drug testing.
2. Facts Relating to ICWA Notice
At the outset of the proceedings, mother advised the Department that she
believed her mother was half Cherokee Indian. Mother later filed her ICWA-020 form,
titled “Parental Notification of Indian Status,” and checked the box to indicate she “may
have Indian ancestry.” Mother wrote in the space provided, “Cherokee – MGM.” The
court subsequently ordered the Department to investigate mother’s Indian heritage claim
and provide “notice to the tribe, if necessary.”
The Department attempted to contact mother regarding her Indian heritage claim,
but she failed to return several phone calls from the assigned case worker. However,
the Department successfully contacted the maternal grandmother, Mary Anne C.
Mary Anne was unable to provide any detailed information about the family’s Indian
heritage. She told the case worker, “ ‘I’m not really sure if we have Cherokee heritage;
it’s all hearsay. I was also told we might be from, what do you call it, Persia, or what do
you call it? I think we have a little bit of everything.’ ” The Department included this
information in its jurisdiction/disposition report dated July 25, 2014. There is no
indication in the record before us that the Department gave notice of the dependency
proceeding to the Bureau of Indian Affairs or any Indian tribe. Further, there is no
evidence the Department ever brought this information to the court’s attention, or that
the court decided whether ICWA notice was required in this case. However, in the
court’s October 28, 2014 case plan, the court checked the box indicating ICWA does
not apply.
4
Mother timely filed a notice of appeal from the jurisdictional and dispositional
orders on December 5, 2014.
CONTENTION
Mother contends the juvenile court’s jurisdictional and dispositional orders must
be reversed because the Department failed to provide written notice of the dependency
proceedings to the Bureau of Indian Affairs and federally registered Cherokee Indian
tribes, as required under ICWA.
DISCUSSION
1. Relevant Law
“Congress enacted ICWA in 1978 to protect Indian children and their tribes from
the erosion of tribal ties and cultural heritage and to preserve future Indian generations.
[Citations.] Because ‘ “the tribe has an interest in the child which is distinct from but on
a parity with the interest of the parents” ’ [citation], a tribe has the right to intervene in
a state court dependency proceeding at any time [citation].” (In re Nikki R. (2003)
106 Cal. App. 4th 844, 848.)
Under section 224.3, the juvenile courts and the social services departments have
an affirmative and continuing duty to inquire whether a dependent child is or may be an
Indian child. (§ 224.3, subd. (a); In re Christian P. (2012) 208 Cal. App. 4th 437, 451.)
Accordingly, if the juvenile court or the social worker “knows or has reason to know
that an Indian child is involved,” the social worker must “make further inquiry
regarding the possible Indian status of the child . . . by interviewing the parents . . . and
extended family members . . . and contacting . . . any other person that reasonably can
be expected to have information regarding the child’s membership status or eligibility.”
(§ 224.3, subd. (c); see also Cal. Rules of Court, rule 5.481(a)(4).3) Section 224.3,
subdivision (b), provides in pertinent part: “The circumstances that may provide reason
to know the child is an Indian child include, but are not limited to, the following: [¶]
(1) A person having an interest in the child, including . . . a member of the child’s
3
All further rule references are to the California Rules of Court.
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extended family provides information suggesting the child is a member of a tribe or
eligible for membership in a tribe . . . . ” (§ 224.3, subd. (b)(1); rule 5.481,
subd. (a)(5)(A).) When a juvenile court “knows or has reason to know that an Indian
child is involved” in a dependency case, it must ensure the child’s tribe receives notice
of the proceedings and its right to intervene. (25 U.S.C. § 1912(a); §§ 224.2, subd. (a),
§ 224.3, subd. (d); rule 5.481, subd. (b); see also In re Christian P., supra,
208 Cal.App.4th at p. 451.)
We review de novo whether the information provided by mother in this case
triggered ICWA’s notice requirement. (Dwayne P. v. Superior Court (2002)
103 Cal. App. 4th 247, 254 (Dwayne P.).) Failure to give notice under ICWA is subject
to harmless error analysis. (In re Christian P., supra, 208 Cal.App.4th at p. 452.)
2. Mother Provided Sufficient Information to Trigger ICWA’s
Notice Requirement
Mother contends she provided sufficient information to trigger ICWA’s notice
requirement. We agree.
“The determination of a child’s Indian status is up to the tribe; therefore, the
juvenile court needs only a suggestion of Indian ancestry to trigger the notice
requirement. [Citations.]” (In re Nikki R., supra, 106 Cal.App.4th at p. 848.) Further,
because the right to intervene is meaningless unless the tribe receives notification,
ICWA’s notice requirements are strictly construed. (In re Desiree F. (2000)
83 Cal. App. 4th 460, 474-475.)
On her ICWA-020 form, mother checked the box indicating she “may have
Indian ancestry” and listed “Cherokee – MGM” in the space provided. This declaration,
without more, triggered ICWA’s notice requirement. (See, e.g., In re Alice M. (2008)
161 Cal. App. 4th 1189, 1198 [mother’s indication on Parental Notification of Indian
Status form the child may be eligible for membership in the “Navajo–Apache” tribes,
standing alone, “gave the court reason to know that [the child] may be an Indian child”];
In re J.T. (2007) 154 Cal. App. 4th 986, 993-994 [notice requirement triggered by
references to Cherokee and Sioux heritage]; In re Damian C. (2009) 178 Cal. App. 4th
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192, 199 [mother’s reference on her ICWA-020 form to Pasqua Yaqui heritage
sufficient to trigger notice requirement]; Dwayne P., supra, 103 Cal.App.4th at p. 257
[parents’ statements that the child has “Cherokee Indian heritage” sufficient to trigger
notice requirement].)
Contrary to the Department’s assertion, Mother’s inability to provide more
specific information about her family’s Indian heritage did not relieve the Department
of its notice obligation under ICWA. “ICWA . . . is designed to protect Indian children
and tribes notwithstanding the parents’ inaction. [Citations.]” (Dwayne P., supra,
103 Cal.App.4th at p. 258.) Further, the cases cited by the Department in which the
courts held ICWA notice was not required are inapplicable here. For example, in
In re O.K. (2003) 106 Cal. App. 4th 152, both the mother and grandmother of the minor
child indicated that the family might have some Indian ancestry. But there, the mother
did not identify any specific tribe and the most definite information provided was from
the paternal grandmother who stated, “ ‘I’m not understanding that too well, but the
boy—the young man may have Indian in him. I don’t know my family history that
much, but where were [sic] from it is that section so I don’t know about checking
that.’ ” (Id. at p. 155.) Here, by contrast, mother affirmatively asserted on her
ICWA-020 form that she may have Cherokee Indian heritage; as explained, ante,
nothing more is required to trigger the tribal notice requirement under ICWA or
California law.
In re Shane G. (2008) 166 Cal. App. 4th 1532, also relied upon by the
Department, is inapposite. There, the minor’s grandmother stated that the minor’s
great-great-great-grandmother was a Comanche princess. However, the court
concluded no ICWA notice was required, not because the information provided by the
family was too vague, but because the Comanche tribe “requires a minimum blood
quantum for membership that exclude[d] [the minor]. [fn. omitted]” (Id. at p. 1539.)
Further, the Department cites In re Z.N. (2009) 181 Cal. App. 4th 282, as holding
that a parent’s statements that the minor’s maternal grandmother was Cherokee and the
paternal grandmother was part Apache did not trigger ICWA’s notice requirement
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because that information “did not suggest that the [minors] were . . . eligible for
membership as children of a member [of an Indian tribe].” (Id. at p. 298.) To the extent
the opinion may be susceptible to the Department’s interpretation, we note that the
majority of courts have reached the opposite conclusion, as discussed, ante. In any
event, the court went on to hold, in the alternative, that any notice error was necessarily
harmless because the tribes at issue rejected mother’s claim in response to ICWA notice
in a companion case involving another of mother’s children. (Id. p. 298, 301-302.)
Thus, the court concluded that halting the dependency proceedings to require the agency
to give notice of mother’s Indian heritage claim would have been futile. (Ibid.)
Moreover, we reiterate the well-established rule, recognized by the court in In re Z.N.,
that the determination of a minor’s status as an Indian child is to be made exclusively by
the Indian tribes and their decision on that issue is conclusive. (§ 224.3, subd. (e)(1);
and see In re Z.N., supra, 181 Cal.App.4th at p. 302.) The Department’s proper role is
to facilitate the tribes’ evaluation process by collecting the information the Legislature
has deemed significant and passing that information along to the tribes and the Bureau
of Indian Affairs. (See In re I.B. (2015) 239 Cal. App. 4th 367, 376 [“The social worker
in a child dependency case is statutorily required to interview the child’s parents and
extended family members to gather the information required for the ICWA notice.
(§ 224.3, subd. (c).)”], fn. omitted.)
Finally, we see no evidence on the record before us that mother ever retracted her
claim of Indian heritage, and we do not construe the maternal grandmother’s statement
that she was unsure whether the family has Cherokee Indian heritage as a retraction or
a contradiction of mother’s claim. (Cf. In re Jeremiah G. (2009) 172 Cal. App. 4th 1514,
1521 [holding ICWA notice unnecessary where parent initially claimed, but then
retracted, Indian ancestry claim].)
In sum, mother’s claim of possible Cherokee Indian ancestry on her ICWA-020
form triggered the Department’s duty to give written notice of the dependency
proceedings to the Bureau of Indian Affairs and all federally registered Cherokee Indian
tribes.
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3. Harmless Error Analysis
“ ‘A notice violation under ICWA is not jurisdictional in the fundamental sense,
but instead is subject to a harmless error analysis. [Citation.]’ ” (In re Christian P.,
supra, 208 Cal.App.4th at p. 452.) Here, mother argues that we must reverse the
jurisdictional and dispositional orders because, she claims, she might have obtained
a more favorable outcome during the proceedings below if the court applied the
additional requirements applicable to removal of an Indian child from parental custody.
(See § 361, subd. (c)(6) [setting forth additional findings required before removal of an
Indian child from parental custody].) We disagree. The Department’s evidence plainly
supported removal of the children from mother’s care and custody. Further, the court
rejected the only evidence weighing against removal (Joseph’s recantation of his prior
statements regarding mother’s drug use and prostitution) based solely upon its
assessment of witness credibility – a finding we do not disturb. (See Kelly v.
CB & I Constructors, Inc. (2009) 179 Cal. App. 4th 442, 452 [appellate court will not
reassess the credibility of witnesses or reweigh the evidence].)
We conclude, however, that the Department must provide notice of these
dependency proceedings to the Bureau of Indian Affairs and all federally registered
Cherokee tribes. Rather than reverse the court’s orders, we remand in order to allow the
juvenile court to ensure the Department complies with ICWA’s notice requirement.
(In re Christian P., supra, 208 Cal.App.4th at p. 452 [“[T]he proper remedy here is
a limited remand to allow [the Department] to comply with ICWA, with directions to
the trial court that depend on the outcome of such notice.”] )
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DISPOSITION
We affirm the jurisdictional and dispositional orders of the juvenile court. The
matter is remanded to the court with directions to order the Department to comply with
sections 224.2 and 224.3. If, after proper notice, a tribe determines that the children are
Indian children, the tribe, a parent or the children may petition the juvenile court to
invalidate any orders that violate ICWA.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
ALDRICH, Acting P. J.
JONES, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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