In re N.D. ( 2020 )

Filed 3/16/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re N.D. et al., Persons 2d Juv. No. B300468
Coming Under the Juvenile (Super. Ct. Nos. 19JV00160
Court Law. & 19JV00161)
(Santa Barbara County)
SANTA BARBARA COUNTY
CHILD WELFARE SERVICES,
Plaintiff and Respondent,
v.
N.A.,
Defendant and Appellant.
N.A. (Father) appeals the juvenile court’s disposition
order removing his children from his custody and continuing
their placement in foster care. (Welf. & Inst. Code,1 § 361, subd.
(c)(1).) Father contends the order must be reversed due to
noncompliance with the inquiry and notice requirements of the
1 Further
unspecified statutory references are to the
Welfare and Institutions Code.
Indian Child Welfare Act (ICWA). (§ 224 et seq.; 25 U.S.C. §
1901 et seq.) We conditionally reverse and remand for the
limited purpose of ensuring ICWA compliance.
FACTUAL AND PROCEDURAL HISTORY
Santa Barbara County Child Welfare Services (CWS)
filed an amended juvenile dependency petition alleging that
Father’s one-month-old twin children were at substantial risk of
harm based on their “failure to thrive.” The petition also alleged
that Father had a criminal history, including domestic abuse, and
was on probation. The children were removed from parental
custody and placed in a foster home.
At the detention hearing, Father said he had Native
American Indian heritage, but he was unable to identify the
correct tribe. Father believed his heritage was through his
paternal grandmother. He provided CWS and the juvenile court
with the names of his father and grandmother.
The jurisdiction report stated that CWS “obtained
ancestry information,” including birth certificate information. It
obtained the names, dates of birth, and other information for
Father, his paternal grandparents, and his paternal great-
grandparents. CWS also mailed Father an ICWA questionnaire
and attempted to call him. At the jurisdiction hearing, the court
found true the allegations in the amended petition and declared
his two children dependents of the court pursuant to section 300.
The disposition report stated that ICWA “does or may
apply.” CWS contacted Father and the twins’ mother,2 who both
said they had Native American heritage but did not know the
tribes in which that heritage existed. The report recommended
the children remain in foster care.
2 Mother is not a party to this appeal.
2
At the disposition hearing, the juvenile court made no
rulings on whether ICWA applied, nor did it make a ruling that
the ICWA notice process was complete. It adopted CWS’s
recommendation and ordered the children to remain in foster
care. It also ordered reunification services for Father.
DISCUSSION
Under ICWA, CWS has a “continuing duty to inquire
whether a child [in a section 300 proceeding] is or may be an
Indian child.” (§ 224.2, subd. (a).) If CWS has “reason to know
that the child [might be] an Indian child,” it must “make further
inquiry” into the child’s status “as soon as practicable.” (§ 224.2,
subds. (c), (d) & (e).) CWS must send ICWA notices that include
information listed in the statute to any tribe in which the child
may be a member or eligible for membership, based on the
parents’ claims. (§ 224.3, subd. (a)(3) & (5).) The juvenile court
must then “[t]reat the child as an Indian child” until it has
determined ICWA does not apply. (25 C.F.R. § 23.107(b)(2)
(2016); see In re S.B. (2005) 130 Cal.App.4th 1148, 1157 [federal
regulations implementing ICWA are binding on state courts].)
Father argues CWS failed to comply with ICWA
requirements and the juvenile court did not make findings on
whether ICWA applied. He contends the court was “not
authorized to proceed with foster care placement until ICWA
notice has been sent and received.” He is correct.
“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 child’s tribe.” (25
U.S.C. § 1912(a); see also § 224.3, subd. (a).) “No foster care
3
placement or termination of parental rights proceeding shall be
held until at least ten days after receipt of notice by the parent or
Indian custodian and the tribe or the Secretary [of the Interior].”
(25 U.S.C. § 1912(a).) “‘[F]oster care placement’” means “any
action removing an Indian child from its parent or Indian
custodian for temporary placement in a foster home . . . where
the parent or Indian custodian cannot have the child returned
upon demand, but where parental rights have not been
terminated.” (25 U.S.C. § 1903(1)(i); see also § 224.1, subd.
(d)(1)(A).)3
In In re Jennifer A. (2002) 103 Cal.App.4th 692, 708-
709 (Jennifer A.), our colleagues in the Fourth Appellate District
remanded a case based on the failure to comply with ICWA notice
requirements. Because the disposition hearing was an
“‘involuntary proceeding’” in which foster care placement was a
“possible” option (and one recommended by the Orange County
Social Services Agency), the agency “had the obligation to comply
with the ICWA notice requirements.” (Id. at p. 700.)
Here, CWS had reason to know the children might be
Indian children. Accordingly, CWS was required to comply with
ICWA notification requirements at least 10 days before the
disposition hearing, because the hearing was an involuntary
proceeding in which CWS “was seeking to have the temporary
placement continue[d].” (Jennifer A., supra, 103 Cal.App.4th at
pp. 700-701; 25 U.S.C. § 1912(a).) Where the tribe “cannot be
determined,” CWS was required, at a minimum, to send notice to
3 “Foster care placement does not include an emergency
placement of an Indian child pursuant to [s]ection 309.” (§ 224.1,
subd. (d)(1)(A).)
4
the Bureau of Indian Affairs. (Jennifer A., at pp. 702-703; 25
U.S.C. § 1912(a); § 224.3, subd. (a).)
Citing to In re M.R. (2017) 7 Cal.App.5th 886, 904,
CWS argues that Father’s contention is premature. There, the
Court of Appeal held the father’s challenge was premature where
the ICWA investigation was “still ongoing” after the disposition
hearing. (Ibid.) But M.R. is distinguishable. In that case, the
child was placed with another parent, and not foster care, at the
disposition hearing. The department thus “never sought long-
term foster care placement or termination of . . . parental rights.
[Citation.] ICWA and its attendant notice requirements do not
apply to a proceeding in which a dependent child is removed from
one parent and placed with another. [Citations.]” (Ibid.)
Because CWS sought continuance of foster care
placement here, it was required to complete its ICWA inquiry
and notification process at least 10 days before the disposition
hearing.
DISPOSITION
The matter is conditionally reversed and remanded to
the juvenile court for the limited purpose of allowing CWS to
comply with ICWA. If after proper inquiry and notice, it is
determined that ICWA does not apply, the court’s disposition
order shall be reinstated.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J. PERREN, J.
5
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Patricia K. Saucier, under appointment by the Court
of Appeal, for Defendant and Appellant.
Michael C. Ghizzoni, County Counsel, Lisa A.
Rothstein, Deputy County Counsel, for Plaintiff and Respondent.