In re N.S. CA4/2 ( 2015 )

Filed 9/9/15 In re N.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 N.S., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E062930
Plaintiff and Respondent, (Super.Ct.No. SWJ1300538)
v. OPINION
D.S.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge.
Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie
Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
1
On February 5, 2015, the juvenile court terminated defendant and appellant D.S.’
(father) parental rights as to N.S (minor, born August 2013). On appeal, father contends
the Riverside County Department of Public Social Services (the Department) failed to
provide proper notification of the parents’ potential Indian ancestry pursuant to the Indian
Child Welfare Act (ICWA). We affirm.
FACTS AND PROCEDURAL HISTORY
On August 11, 2013, the Department received a referral alleging general neglect
when father and paternal grandmother (PGM) entered mother’s1 home and attempted to
abscond with minor while mother was sleeping. A physical altercation occurred between
father, PGM, mother, and mother’s landlord. Father “was making terrorist death threats
to other residents of the home, and then he fled the scene when he learned the police had
been called.” He pulled a knife out and threatened to stab someone outside the residence
as he fled.
Mother called the police. Law enforcement established an emergency protection
order and advised mother to obtain legal custody and file for a restraining order against
father. The landlord reported father had moved out of the home two months earlier.
Mother alleged father stalked her after he moved out. She had already obtained a
temporary restraining order in March 2013. The landlord reported father had spent the
night two days earlier. Mother reported father had spent the previous night at her
1 Mother is not a party to this appeal.
2
residence. Mother and the landlord reported father used to beat mother even when she
was pregnant.
Mother had three prior unfounded child welfare investigations. Mother admitted a
history of drug use including marijuana and experimentation with methamphetamine. A
saliva test of mother reflected negative for drugs. A subsequent test also resulted in a
negative result. Father had a criminal history including a prior conviction for battery, two
convictions for possession of controlled substances, and a DUI.
The department left minor in mother’s care. PGM requested placement of minor
with her. The Department filed a Welfare and Institutions Code section 3002 dependency
petition alleging father had failed to intervene during the physical struggle over minor (B-
1), father abused controlled substances and had a criminal history with drug related
charges (B-2), father had unresolved mental health issues (B-3), mother failed to
intervene during the physical struggle over minor (B-4), and mother had history of
abusing controlled substances (B-5).
Mother, father, and PGM were present at the detention hearing on August 14,
2013. Both parents had apparently indicated Indian ancestry. The juvenile court queried,
“You both indicate you may have Indian ancestry. [¶] If I can ask each of you separately
if you have specific information as to what tribe it may be?” Mother responded that she
had “no significant information . . . .” The court replied, “I’ll take even insignificant
2 All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
3
information.” Mother responded her “grandma just said that she’s Indian. She doesn’t
know what tribe.”
The court asked father from what tribe he claimed ancestry. Father responded, “I
can find out through my uncle.” The court replied, “If you do, let the Department know,
so we can be sure the tribe gets involved or give them notice to be involved. Other than
that, you have no other specific information?” Father stated he did not. The court found
“ICWA may apply.”
The juvenile court detained minor as to father, allowing minor to remain in
mother’s custody. The court issued a temporary restraining order (TRO) against father
and PGM as to contact with mother and minor with an exemption for supervised visits
with father. The court ordered parents to complete parental notification of Indian status
forms (ICWA-020 forms).
On August 14, 2013, parents both filed ICWA-020 forms indicating each might
have Indian ancestry. Mother indicated her tribe was “unknown.” Father left blank the
portion of the form requesting tribal affiliation.
In the jurisdiction and disposition report filed September 11, 2013, the social
worker noted, “According to the mother . . . she may have Indian heritage, but no one in
her family knows from which tribe she may have descended. She has never been
registered or affiliated with any Indian tribes or taken part in any Indian schools, services,
or functions.”
4
On September 11, 2013, the social worker mailed a notice of child custody
proceeding for an Indian child form to the Sacramento Area Director of the Bureau of
Indian Affairs (BIA). The social worker specified no tribes in the notice. Although
information regarding father and mother was included in the notice, the social worker
indicated no information was available for maternal and paternal grandparents and great
grandparents.
At a hearing on September 16, 2013, mother, PGM, and paternal great
grandmother (PGGM) were present. Father was not present. The department asked the
court to “make a finding we do have good ICWA notice.” No one interposed an
objection. The court spoke with PGM regarding reissuance of the TRO. The court
reissued the TRO, but permitted supervised visits between minor and PGM if such visits
were assessed by the department as appropriate.
An addendum report filed October 10, 2013, reflected mother had participated in
services, but father’s whereabouts were unknown. At the jurisdiction and disposition
hearing on October 16, 2013, neither parent was present; however, PGM and PGGM
were. The department requested the court find good ICWA notice.
The juvenile court found the allegations in the petition true and sustained the
petition. The court additionally found there “is good ICWA notice for this hearing.” It
further found ICWA may apply to the proceedings. The court dismissed the TRO as to
PGM and let it lapse as to father without prejudice to the department or mother
5
requesting its reinstatement. The court removed minor from and ordered reunification
services for father.
In an addendum report filed December 4, 2013, mother reported father had been
calling her, dropping by her residence, and harassing her. On October 27, 2013, father
had reportedly punched mother in the face. Mother tested negative for drugs on
November 14, and 21, 2013. Father tested positive for amphetamine and marijuana.
PGM had supervised visits with minor at the Department on October 30, and November
20, 2013.
On December 9, 2013, the department filed a section 387 supplemental petition
apparently alleging mother had endangered minor by having contact with father.3 The
detention report reflects that, “According to the mother . . . she may have Indian heritage,
but the tribe is unknown. She has never been registered or affiliated with any Indian
tribe. She has never attended any Indian school or participated in any Native American
activities.” On December 5, 2013, mother had spent the night at father’s house. On
December 5, 2013, social workers conducted an emergency relative assessment of MGM,
but her home did not meet their criteria. The social worker took minor into protective
custody.
At the supplemental detention hearing on December 10, 2013, mother and PGM
were present. Father was not present even though he had been ordered to appear the day
3 The supplemental petition makes no allegations. The supplemental detention
report provided the basis for the supplemental petition, but still failed to explicitly
elucidate the exact allegation.
6
before. The social worker’s plan was to return minor to mother’s custody once she
relocated. The court detained minor but authorized her return to mother once deemed
appropriate. The court found ICWA might apply and ordered mother to complete another
ICWA-020 form. The court issued a three-year restraining order against father.
The supplemental jurisdiction and disposition report filed January 6, 2014,
reflected minor remained out of mother’s custody. The department’s attorney requested
the court find ICWA did not apply. Father had been arrested for criminal threats with
respect to the initiating incident; he was placed on probation. On October 27, 2013,
father was charged with infliction of corporal injury on a cohabitant and contempt of
court. A bench warrant issued for father on January 2, 2014.
The report finally indicated the allegation against mother in the supplemental
petition, that mother had failed to participate in her case plan, had returned to the home of
father who had harassed her, and had further contact with father (S-1). Mother had
moved into a domestic violence shelter. MGGM was being assessed for placement of
minor.
At the hearing on January 13, 2014, mother and MGM were present. Upon the
motion of the department’s attorney, the court dismissed the supplemental petition
without prejudice.
On March 6, 2014, an attorney for the department filed another supplemental
petition.4 Police reported an incident occurring between parents on February 28, 2014.
4 This petition also fails to specify any allegations.
7
Mother reported calling PGM for a ride. When PGM arrived, father was in the car.
Mother got into the car where father began arguing with her and punched her in the face
several times. Mother texted PGM requesting that she not tell the officer what happened.
PGM reported mother had spent the night at her house, at which father lived, the night
before. PGM, father, and mother were out together all that day when father and mother
engaged in an argument during which father hit mother several times.
The social worker spoke with both PGM and MGGM on March 4, 2014. A
protective custody warrant was issued when mother refused to speak with the social
worker. Parents were not present at the supplemental detention hearing on March 7,
2014. The court detained minor, found ICWA might apply, ordered parents to file
additional ICWA-020 forms, and issued a bench warrant as to mother.
On March 19, 2014, the department’s attorney filed the BIA’s response to the
notice of child custody proceedings regarding an Indian child. The notice, dated
September 9, 2013, read, “The Bureau of Indian Affairs does not determine tribal
eligibility nor do we maintain a comprehensive list of persons possessing Indian blood.
This kind of information must be obtained from the tribe itself, if tribal affiliation can be
determined. It is the responsibility of the person claiming Indian ancestry to establish
tribal affiliation.” The letter further reflected that “if additional information on tribal
affiliation becomes available on the child[] cited above[,] you are advised to notify the
appropriate tribe[s] directly of their right to intervene in the above proceedings.”
8
On March 20, 2014, an attorney with the department filed an ex parte application
for recall of the warrant. On March 7, 2014, the social worker had gone to the homes of
both PGM and MGGM. With information she obtained, she tracked mother down to a
motel where minor was eventually found and placed into protective custody. Mother
admitted she had been evading the social worker. The court recalled the warrant.
In the supplemental jurisdiction and disposition and six-month review report filed
April 3, 2014, the social worker recommended parents’ reunification services be
terminated. The report noted, again, that, “On December 26, 2013, [mother] stated that
she has been told by her grandmother that she has Native American ancestry, but does not
know tribal affiliation.” An additional child welfare referral against mother had been
received by the department on February 28, 2014, from mother’s older child alleging
mother had not been feeding or caring for minor and that mother had been witnessed
shoplifting. The referral was deemed inconclusive.
The social worker spoke with PGM by phone on March 10, 2014, and met with
MGGM on March 18, 2014. Mother had participated only marginally in reunification
services and had completed none. Father had participated in no services. “On March 25,
2014, a Concurrent Planning Review (CPR) was held and the recommendation was
adoption. The child will likely be placed with the maternal great-grandmother . . . .”
On April 10, 2014, another notice of child custody proceeding for Indian child was
sent to the BIA. Again, while information on mother and father was reflected in the
9
notice, the notice indicated no information was available for the maternal or paternal
grandparents or great-grandparents.
An addendum report filed May 2, 2014, reflected father had been incarcerated
since April 14, 2014. Multiple attempts to contact mother had proven ineffectual;
mother’s whereabouts were unknown. At the May 7, 2014, jurisdiction and disposition
hearing on the supplemental petition, mother was not present. Father, PGM, and MGGM
were present. The juvenile court found the S-1 allegation true and terminated
reunification services as to both parents.5
On July 31, 2014, PGM filed a section 388 petition requesting increased visitation
or placement of minor with her. On September 10, 2014, the department’s attorney filed
notice of BIA’s latest response letter. The letter dated April 22, 2014, reflected the same
language contained in the previous letter. It also read, “The notice received contains
insufficient or limited information to determine Tribal Affiliation.”
In an addendum report filed September 24, 2014, the social worker recommended
the juvenile court deny PGM’s section 388 petition. Social workers had placed minor
with MGGM on September 19, 2014. On May 8, 2014, the social worker submitted a
relative assessment of PGM for placement of minor. She was awaiting the results of a
live scan of paternal great grandfather (PGGF) who lived in the home.
5 Father filed a late notice of intent to file a writ petition, which was dismissed by
this court on June 23, 2014, in case no. E061198.
10
On August 11, 2014, department personnel held a team decision meeting at the
department with mother, PGM, paternal great-grandmother (PGGM), PGGF, and
MGGM. MGGM was identified as minor’s prospective adoptive parent. At the hearing
set on September 29, 2014, for PGM’s section 388 petition, PGM withdrew her petition
without prejudice.
In the October 21, 2014, selection and implementation report, the social worker
recommended parents’ parental rights be terminated. The social worker reiterated that
mother had previously indicated vague Native American Ancestry. On October 8, 2014,
the social worker “spoke with the [MGGM] . . . regarding [the minor] and ICWA. The
[MGGM] stated that [the minor] has no Indian heritage. The [MGGM] stated that there
ha[ve] been ‘rumors in the family regarding ICWA without any evidence.’” Numerous
inquiries and searches had failed to result in departmental contact with mother. At the
selection and implementation hearing on February 5, 2015, at which neither parent
appeared, the juvenile court terminated parents’ parental rights.
DISCUSSION
Father contends department personnel provided statutorily insufficient notice
regarding parents’ ancestry to meet the requirements of ICWA. The department responds
father forfeited the issue by failing to raise it below. We hold ICWA notice was not
forfeited by father’s failure to object. Nonetheless, although we agree the notice was
lacking in information known to, or easily obtainable by, personnel at the department, we
hold that any error in the sufficiency of the notice was harmless.
11
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. § 1912(a); Welf. & Inst.
Code, § 224.2, subd. (a); see In re Desiree F. (2000) 83 Cal. App. 4th 460, 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.” (Desiree F., at p. 470, italics added.)
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. § 1912(a); In re A.B. (2008) 164 Cal. App. 4th 832, 838.)
“ICWA allows an Indian tribe to intervene in dependency proceedings, to ‘protect the
best interests of Indian children and to promote the stability and security of Indian tribes
and families . . . .’ [Citation.] ICWA contains specific notice requirements that apply
when the juvenile court knows or has reason to know that an Indian child is involved.
[Citation.] The Indian tribe determines whether the child is an Indian child, and its
determination is conclusive. [Citation.] The juvenile court ‘“needs only a suggestion of
Indian ancestry to trigger the notice requirement.”’ [Citations.]” (In re J.M. (2012) 206
Cal. App. 4th 375, 380.)
In addition to the child’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,
12
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).) “A ‘social worker has “a duty to
inquire about and obtain, if possible, all of the information about a child’s family
history”’ required under regulations promulgated to enforce ICWA. [Citation.]” (In re
Robert A. (2007) 147 Cal. App. 4th 982, 989.) “ICWA notice requirements are strictly
construed and must contain enough information to be meaningful. [Citation.]” (In re
J.M. (2012) 206 Cal. App. 4th 375, 380.)
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
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) 208 Cal. App. 4th 437, 451.)
“A notice violation under ICWA is subject to harmless error analysis. [Citation.]
‘An appellant seeking reversal for lack of proper ICWA notice must show a reasonable
13
probability that he or she would have obtained a more favorable result in the absence of
the error.’ [Ciation.]” (In re Autumn K. (2013) 221 Cal. App. 4th 674, 715.)
“The generally accepted rule in dependency cases is that the forfeiture doctrine
does not bar consideration of ICWA notice issues on appeal. [Citation.] ‘As this court
has held, “[t]he notice requirements serve the interests of the Indian tribes ‘irrespective of
the positions of the parents’ and cannot be waived by the parent.” [Citation.] A parent in
a dependency proceeding is permitted to raise ICWA notice issues not only in the
juvenile court, but also on appeal even where, as here, no mention was made of the issue
in the juvenile court.’ [Citation.]” (In re Alice M. (2008) 161 Cal. App. 4th 1189, 1195.)
Here, there is abundant evidence in the record that personnel from the department
had ample information or access to information regarding MGM, MGGM, PGM, PGGM,
and PGGF before they first sent notice to BIA on September 11, 2013; in the interim
between the sending of the first and second notices, the latter on April 10, 2014; and/or
after sending the second notice. Thus, substantial evidence fails to support the court’s
finding the ICWA notice was good since the indication in the notices that no information
regarding parents’ relatives was available was erroneous.
PGM was one of the individuals involved in the incident giving rise to the juvenile
dependency proceedings. She initially requested placement of minor with her. PGM was
present at the initial detention hearing on August 14, 2013, when the juvenile court
directly queried parents about their purported Native American ancestry. The court
issued a TRO against PGM on that date.
14
On September 16, 2013, PGM and PGGM were both present in court. The court
spoke directly with PGM. On October 16, 2013, both PGM and PGGM were in court.
PGM had supervised visits with minor at the department’s offices on October 30, and
November 20, 2013. On December 5, 2013, the department’s social workers conducted
an emergency placement relative assessment of MGGM. PGM was present at the hearing
on December 10, 2013.
On January 6, 2014, the social worker indicated she was continuing to assess
MGGM for placement of minor. MGM was present at the hearing on January 13, 2014.
The social worker spoke with both PGM and MGGM on March 4, 2014. On March 7,
2014, the social worker went to the homes of both PGM and MGGM. After a planning
meeting on March 25, 2014, the social worker determined that minor would likely be
placed with MGGM. At the hearing on May 7, 2014, PGM and MGGM were present.
On May 8, 2014, the social worker submitted a relative assessment of PGM for
placement of minor. PGGF apparently lived in the home and the social worker was
awaiting the results of a live scan on him. Minor was placed with MGGM on September
19, 2014. PGM filed a section 388 petition on July 31, 2014. On August 11, 2014,
department personnel held a meeting at which PGM, PGGM, PGGF, and MGGM were in
attendance.
Here, the department personnel and the juvenile court failed the continuing duty to
inquire about and obtain all of the information about minor’s family history with respect
to ICWA notification. Indeed, as noted above, department personnel had direct contact
15
with PGM, PGGM, PGGF, and MGGM. Some of the relatives appeared in court, some
were being evaluated for placement, some were live scanned, some were contacted by
phone, and some were contacted at home. Indeed, some of the relatives’ addresses are
included in the instant record. There is no indication the department personnel availed
itself of any of these opportunities to inquire about the parent’s purported Native
American ancestry as to all the aforementioned relatives or those relatives’ personal
information prior to, in between, and after sending out both notices to BIA. Moreover,
the department clearly failed to include some information it did have in the notices sent
regarding some of the relatives’ names and addresses. Thus, the ICWA notices sent
failed to comply with ICWA requirements.
Nonetheless, father has failed to show there is a reasonable probability that he
would have obtained a more favorable result in the absence of the error. All inquires
with respect to parents indicated only that they purportedly had Indian ancestry of
unknown tribal affiliation. MGGM later said the only evidence of Indian ancestry of
which she was aware were rumors. She asserted minor had no Indian heritage. (In re
O.K. (2003) 106 Cal. App. 4th 152, 154, 157 [Grandmother’s indication that “the mother
‘may have Indian ancestry’” insufficient to trigger duty of further inquiry.].)
Even as to father’s ancestry, there is no indication whatsoever that inclusion of his
family’s information in the BIA notifications would have resulted in a more favorable
outcome. The BIA’s letters expressly reflect the BIA “does not determine tribal
eligibility nor do we maintain a comprehensive list of persons possessing Indian blood.
16
This kind of information must be obtained from the tribe itself, if tribal affiliation can be
determined. It is the responsibility of the person claiming Indian ancestry to establish
tribal affiliation.” The letter further reflected that “if additional information on tribal
affiliation becomes available on the child[] cited above[,] you are advised to notify the
appropriate tribe[s] directly of their right to intervene in the above proceedings.” Thus,
further information regarding parents’ heritage would not have allowed BIA to make a
determination of Indian ancestry or tribal affiliation.
Even the language of the letters reading that the “notice received contains
insufficient or limited information to determine Tribal Affiliation[]” cannot reasonably be
interpreted as meaning that if BIA had parents’ relatives’ information, it could then make
a determination of parents’ Indian ancestry.6 Rather, when read in context with the letter
as a whole, it simply means that without at least some vague tribal indication from
6 On August 13, 2015, father filed a notice indicating he would be arguing the
applicability of In re I.B. (2015) ___ Cal.App.4th ___ [2015 Cal.App.LEXIS 686] to the
instant case at oral argument. On September 1, 2015, he did so. We find In re I.B.
factually distinguishable. Although, like this case, the department’s personnel failed to
provide adequate information in the initial ICWA, or in a subsequent notice, the parents
in I.B. had provided the department with information regarding specific tribal affiliation
from which they claimed ancestry. (Id. at pp. 4-5, 17.) One tribe, which was initially
noticed, indicated that the notice did not contain sufficient information so that the tribe
could make a determination of whether the child was an Indian child for purposes of
ICWA. (Id. at pp. 8-17.) The court held that the department had failed to comply with its
notification duty because the additional information obtained by the department was
critical for the tribes to determine whether the child was eligible for membership. (Id. at
p. 18.) Here, parents provided no information pertaining to ancestry from any specific
tribe; thus, the additional information which should have been included in the notice
would have made no difference because BIA would still not have been able to determine
minor’s tribal affiliation, if any.
17
parents or their relatives, specific tribal affiliation would be impossible to determine.
There is no reasonable probability father would have obtained a more favorable result
had the department included parents’ relatives’ information in the notices to BIA.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
KING
J.
MILLER
J.
18