In re J.H. CA3

Filed 2/2/22 In re J.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
----
In re J.H., a Person Coming Under the Juvenile Court C094809
Law.
K.B., (Super. Ct. No. 21FL000141)
Plaintiff and Respondent,
v.
J.H.,
Defendant and Appellant.
Father of the minor J.H. appeals from the trial court’s July 2021 order freeing
minor from father’s custody and control and freeing minor for adoption by maternal
grandmother. (Fam. Code, § 7822; Prob. Code, § 1516.5.) Father contends reversal is
required because the court failed to comply with the inquiry and notice requirements
under the Indian Child Welfare Act (the ICWA). (25 U.S.C. § 1901 et seq.) We will
reverse and remand.
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FACTUAL AND PROCEDURAL BACKGROUND
Minor was born in September 2015. In October 2015, he moved with mother and
father to Oregon. When minor was one year old, he, father, and mother moved in with
maternal grandmother in California. Minor began experiencing seizures when he was 18
months old and currently requires medication twice a day. Minor was also diagnosed
with autism when he was three years old.
In January 2018, mother left minor in the care of maternal grandmother. Maternal
grandmother was granted legal guardianship of minor in January 2019. Father stopped
participating in supervised visits with minor in October 2019 and has not had any contact
with minor since then. Father stopped paying child support at the end of 2019.
In March 2021, maternal grandmother filed a petition to declare minor free from
the custody and control of father. (Fam. Code, § 7820 et seq.) She asked that minor
remain in her custody. She stated mother had consented to the adoption and father had
abandoned minor.
Later that month, the trial court appointed counsel for father, who lived in Oregon,
and ordered the probation department to prepare a report. (Fam. Code, § 7850.)
In April 2021, maternal grandmother filed an amended petition further alleging
minor should be freed from father’s custody under Probate Code section 1516.5 because
she had legal guardianship of minor for more than two years without father having any
custody of minor.
Maternal grandmother also filed an ICWA-020 form (Parental Notification of
Indian Status) informing the trial court she had no reason to know or believe that minor
was an Indian child. Maternal grandmother’s counsel also filed an attachment stating that
his ongoing inquiry into minor’s status had given him reason to believe minor is or may
be an Indian child. He had contacted the Paskenta Band of Nomlaki Indians via letter to
ask whether the parents or minor was an enrolled member or was eligible for enrollment.
Counsel stated that he had been informed that either mother or father claimed, “some
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ancestral connection to your Tribe,” although maternal grandmother did not. Counsel’s
letter included the names of maternal grandmother, minor, father, and mother, along with
minor’s birthdate.
During a hearing later that month, the trial court granted the request of maternal
grandmother to continue the matter for 90 days, so as to give the tribe time to respond to
counsel’s letter. Counsel informed the trial court that minor was not an enrolled member
of the tribe, nor did he reside on the reservation.
The July 2021 report from the probation department did not address the ICWA
inquiry or minor’s status as an Indian child, and there were no further filings from
maternal grandmother (or any other party) on the issue.
During the July 2021 hearing, neither counsel nor the trial court addressed whether
the tribe had responded to the letter from maternal grandmother’s counsel. After hearing
argument from counsel and testimony from father, maternal grandmother, and paternal
great-grandmother, the trial court granted maternal grandmother’s petition. The trial
court ordered minor free of father’s custody and control and freed minor for adoption.
On appeal, maternal grandmother seeks to introduce additional evidence,
including: (1) an August 9, 2021, e-mail from a representative of the Paskenta Band of
Nomlaki Indians to a social worker with the Department of Social Services confirming
that mother is not an enrolled member of the tribe and (2) a November 2021 e-mail from
a representative of the Paskenta Band of Nomlaki Indians stating that mother, father, and
minor are not enrolled members of the tribe and are not eligible for membership.1 In her
motion, maternal grandmother acknowledges that “[i]nformation regarding the minor’s
and father[’s] and mother’s tribal status was not available at the time of trial.”
1 In the interests of justice, we grant maternal grandmother’s request to admit the
additional evidence. (Code Civ. Proc., § 909.)
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DISCUSSION
I
Father contends the trial court failed to comply with the inquiry and notice
requirements of the ICWA. Maternal grandmother responds that neither the trial court
nor the probation department were required to comply with the ICWA’s requirements
because this was not a dependency proceeding in a juvenile court. However, both
Probate Code section 1516.5 and Family Code sections 7820 and 7822 permit a petitioner
to seek an order freeing a child from a parent’s custody and care.2 As courts have
explained, the filing of such a petition imposes upon the court, the probation department,
and the petitioner (maternal grandmother) the affirmative and continuing duty to inquire
whether minor was or might be an Indian child. (See In re Noreen G. (2010)
181 Cal.App.4th 1359, 1387, citing Cal. Rules of Court, rule 5.481(a)(1) [noting that the
ICWA permits states to provide a higher standard of protection to the rights of the parent
of an Indian child].)3 In addition, if a probation officer or petitioner has reason to believe
that an Indian child may be involved in such a petition, Rule 4.481(a)(4) imposes an
obligation to make further inquiry about a child’s Indian status, including interviewing
the parents and contacting the Bureau of Indian Affairs, the Department of Social
Services, and the tribe.
Maternal grandmother next argues that the issue is forfeited because father did not
raise it in the trial court. However, as courts have explained, a parent cannot forfeit or
waive the ICWA notice requirements because they serve the interests of the Indian tribes.
(In re Noreen G., supra, 181 Cal.App.4th at p. 1385.)
2 We further note that Probate Code section 1516.5, subdivision (d), provides: “This
section does not apply to . . . any Indian child.”
3 Undesignated rule references are to the California Rules of Court.
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Finally, maternal grandmother argues any error was harmless because her counsel
substantially complied with the requirements and intent of the ICWA. She argues that
her counsel’s April 2021 letter was sufficient to satisfy the intent of the ICWA, especially
since her additional evidence (including the November 2021 e-mail from the
representative of the Paskenta Band of Nomlaki Indians indicating that father, mother,
and minor are not enrolled members or eligible for membership in the tribe) suggests the
outcome would not differ in the trial court. We disagree. Despite maternal
grandmother’s contentions, her counsel indicated in his April 2021 filing that he had
reason to believe the minor was or might be an Indian child. Even with the additional
evidence, it is unclear why her counsel believed that. It is also unclear which tribes
mother or father indicated she or he might have ancestry with, and whether counsel
properly contacted the Bureau of Indian Affairs or the Department of Social Services, in
order to properly reach out to those tribes. Despite giving a 90-day continuance for
counsel to complete the ICWA inquiry, the trial court failed to inquire about the issue
during the July 2021 hearing, and counsel failed to address it. In sum, we cannot
conclude from this record that maternal grandmother, the probation department, or the
trial court complied with its obligation to inquire and provide notice regarding minor’s
status as an Indian child. The appropriate remedy is to remand the issue for further
proceedings.
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DISPOSITION
The trial court’s orders freeing minor from father’s custody and control are
reversed and the matter is remanded to the court for limited proceedings to determine
compliance under the ICWA. If, at the conclusion of those proceedings, no tribe
indicates the minor is an Indian child within the meaning of the ICWA, then the trial
court shall reinstate the orders. In all other respects, the judgment is affirmed.
\s\ ,
BLEASE, Acting P. J.
We concur:
\s\ ,
HULL, J.
\s\ ,
HOCH, J.
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