In re D.F. CA2/7

Filed 9/29/14 In re D.F. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re D.F. et al., Persons Coming Under the B253190
Juvenile Court Law.
(L.A.S.C. No. DK00033)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ERICA P. et al.
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles County,
D. Zeke Zeidler, Judge. Affirmed and remanded.
Lauren K. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant Erica P.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant
and Appellant D. F.
John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and
Respondent.
Appellants, Erica P. (Mother) and D. F. (Father), appeal from orders of the
juvenile court that declared their three children dependents of the court under Welfare
and Institutions Code section 300,1 subdivisions (a) and (b) based on allegations that
Father physically abused Mother; that Mother failed to protect the children from exposure
to the domestic abuse; and that Father’s mental health issues placed the children at risk of
harm. Before this court, the parents challenge the juvenile court’s jurisdictional findings
and disposition orders. Mother assails the court’s jurisdiction findings under section 300,
subdivision (b) pointing out that as of the jurisdiction hearing the abuse had ended, and
argues that given her compliance with the case plan the children were not at a current risk
of harm based on her failure to protect them. Mother also asserts that the evidence
presented did not support the court’s disposition order to remove the children from her
custody. Father separately argues that the court erred in exercising jurisdiction under
section 300, subdivision (a) because there were no allegations or evidence that he abused
the children and his alleged abuse of Mother did not place the children at risk of harm.
Thus, Father asks this court to strike the section 300, subdivision (a) finding from the
petition. Father also asserts that the court erred in finding that the Indian Child Welfare
Act (ICWA) did not apply to the case. He maintains that the information revealed in the
investigation required the Department of Children and Family Services (the Department)
to send an ICWA notice of the proceedings to the Bureau of Indian Affairs and the tribes
he had identified. As we shall explain, we affirm the court’s exercise of jurisdiction and
the disposition orders, and remand for further proceedings with respect to ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
The Department’s Pre-Petition Contact with the Family.
In June 2013, the Department received a report that Father committed physical and
verbal abuse towards Mother and that the children De. F. (then seven years old), Da. F.
1
All further code references, unless indicated otherwise, are to the Welfare and
Institutions Code.
2
(then six years old) and 15-month-old Dominique F. witnessed the domestic violence.
The Department investigated, discovering that Father had accused Mother of infidelity
and grabbed her arm causing a bruise, and that the children observed the incident. Father
also allegedly screamed and yelled profanities at Mother, threatened to beat Mother and
to take the children away from her. As a result, Mother fled with the children to a
domestic violence shelter and obtained a temporary restraining order.2
It was further reported that similar incidents of Father’s verbal abuse towards
Mother in front of the children had been occurring since 2011.
The Department social worker met with Mother, who confirmed she had left the
home due to Father’s abuse. Nonetheless, Mother was not forthcoming with information
about what the children had witnessed and minimized the risk to them. Mother did,
however, describe that Father had a history of mental health issues. She reported that in
2012, Father was hospitalized after exhibiting delusional and paranoid behaviors,
including placing black trash bags on the windows of the home, and disabling the smoke
detectors. Father apparently believed the smoke detectors were surveillance devices and
that his family was being watched. He also prevented the family from leaving the home
out of concern they were being followed. In May 2013, these behaviors re-emerged.
According to De. F., and Da. F., Father often yelled at Mother and called her “bad
names.” They observed Father strike Mother. They also confirmed Father’s strange
behavior in the home and both children told the social worker that Father had struck them
with a belt to discipline them.
The social worker also interviewed Father, who confirmed Mother and the
children left the home in May 2013. Although he admitted that he grabbed Mother’s arm
during an argument, he denied that he hit Mother, and minimized the confrontations
between them. He said that Mother was arguing with him in front of the children and that
she refused to discuss the matter outside so he grabbed her arm to escort her outside. He
2
Mother indicated that she obtained the restraining order against Father because the
domestic violence shelter required her to do so as a condition to her entering the shelter.
3
said that his arguments with Mother never escalated to a physical altercation. He
reported that once the police responded to the home because of an argument, but that no
one was arrested. With respect to his mental health concerns, Father stated that in 2012
he was evaluated and placed on a hospital hold for three or four days, then released. He
claimed that he was not diagnosed or given any medication, nor was he instructed to
return for treatment. He further denied having any current mental health issues.
On July 10, 2013, the Mother and children left the domestic violence shelter and
returned to live with Father. Despite Mother’s report of the abuse, the fact she had
obtained a restraining order against Father, and that she had agreed to a safety plan that
included finding alternative housing, Mother told the social worker that she could not
find a place to live with the children so she decided to reconcile with Father.
Dependency Proceedings.
On July 19, 2013, the Department filed a section 300 petition on behalf of the
children. The petition alleged that the children were individuals described under section
300, subdivisions (a) and (b) based on Father’s domestic abuse of Mother, Father’s
mental instability and Mother’s failure to protect the children.3 The court ordered the
children detained in protective custody.
3
As sustained, the amended petition alleged under section 300, subdivisions (a) and
(b):
“[Under subdivisions (a) and (b-1)] In May 2013, . . . father . . . engaged in a
violent altercation with . . . mother . . . in which . . . father grabbed the mother by the arm
inflicting a bruise to the mother’s arm. On a prior occasion, the father struck the
mother’s abdomen with the father’s hand in the presence of the child [Da. F.]. On a prior
occasion, the father struck the mother in the presence of the child [De. F.]. The mother
failed to protect the children in that the mother knew of the father’s violence and allowed
the children’s father to remain in the children’s home. Such violent conduct by the
children’s father against the mother and the mother’s failure to protect the children
endangers the children’s physical health and safety and place the children at risk of
physical harm, damage, and failure to protect.”
“[Under subdivision (b-2)] In May 2013, . . . father . . . demonstrated bizarre
behavior including paranoia, which renders the father incapable of providing regular care
4
When the Department social worker attempted to interview the children again,
they refused to speak with the investigator. In addition, Mother denied the allegations of
domestic abuse alleged in the petition. According to Mother, Father never “raised his
hand” to her.
She also said that in 2010 Father behaved strangely so the maternal grandfather
called the police, and as a result Father was hospitalized. She did not recall if Father was
diagnosed, but stated that he was not given any medication, and was discharged from the
hospital. She stated he had not exhibited any strange behaviors since 2010. Mother said
even when Father displayed strange behavior he was not abusive but rather protective
towards the family. She said Father acted jealous towards her; Mother did not find his
current behavior bizarre, but instead she thought he was merely insecure. Nonetheless, a
week later, Mother told the social worker that after further reflection, she agreed Father
may have current mental health issues. She also denied having recent contact with him
and was looking for a new apartment. She no longer wanted to reconcile with him.
Mother admitted that she and Father yelled at each other in front of the children.
Father did not show up for his interview with the Department social worker and
missed three visits with the children. He did not make himself available for a further
interview.
By the mid-September 2013 jurisdiction/disposition hearing, Mother completed a
program of domestic violence education and a parenting education program. Mother
cooperated with the Department. Although she was unemployed, she was working on her
undergraduate degree. She also visited the children regularly and acted appropriately
during the visits. Mother admitted that she had not yet found suitable housing.
and supervision of the children. In 2012, the children’s father was hospitalized for
evaluation and treatment of the father’s mental and emotional problems. . . . [M]other . . .
failed to protect the children when the mother knew of father’s mental health history and
allowed the father to reside in the children’s home and have unlimited access to the
children. The father’s mental and emotional problems and the mother’s failure to protect
the children endangers the children’s physical health and safety and places the children at
risk of physical harm, damage, and failure to protect.”
5
The Department submitted a report from the multidisciplinary Assessment Team
(“MAT”). Father refused to participate and cursed at the MAT assessor several times.
The assessor noted concerns that Father had “unmet mental health needs” and Mother
was “unable to recognize that Father’s mental health issues impede his ability to provide
the children with a safe and secure home environment.”
During the MAT assessment it was also reported that Mother was residing at her
parents’ home, which was not suitable for the children. According to the MAT assessor,
the children appeared bonded to Mother and were affectionate with her.
Mother was receiving counseling and was fully compliant with the case plan and
motivated to reunify with the children. The domestic violence case manager wrote a
letter in support of Mother in which the manager expressed that she did not understand
why the children had not been released to Mother. However, in an interview with the
social worker the day before Mother completed the program, Mother denied Father ever
abused her, denied there was any domestic violence between them, and denied having
any problems in that regard despite moving out of the home, relocating herself and the
children to a domestic violence shelter, and requesting a restraining order against Father.
The court continued the matter for the Department to conduct an investigation
under the ICWA, and to send notices if necessary. At the time of the original detention
hearing, the completed ICWA-020 form indicated Father may have Native American
ancestry in Cherokee, Blackfoot, or Blackfeet tribes. At the detention hearing, Father
stated that though he was not affiliated with a tribe, his grandparents had Cherokee and
either Blackfoot or Blackfeet ancestry.
On November 6, 2013, the court tried the matter. The court received in evidence
the Department reports, documents from the parents indicating Mother’s completion of
domestic violence and parenting programs, her positive participation in services during
her 30-day stay at the domestic violence shelter, as well as positive reports, diplomas,
letters, and articles regarding Father’s participation in higher education. The court
received stipulated testimony from Father. The parties stipulated that if called to testify,
Father would state the incidents involving his hospitalization for mental health issues
6
occurred in 2010, not 2012. He also said that he was hospitalized in 2012 after being
assaulted, but not for mental health reasons.
Mother testified during the hearing that Father grabbed her arm and asked to talk
to her outside. She denied that he left a bruise on her arm. She testified that although she
and Father argued, their arguments never escalated into physical violence. She left the
home and obtained a restraining order against Father because it was required by the
shelter. She denied Father ever abused her.
Mother further testified that when she left the shelter, she went to a friend's home,
and was unable to reach the social worker. Mother contacted Father to tell him she and
the children needed a place to stay and asked him if she could stay at his sister’s home.
Mother denied moving back in with Father when she left the shelter. She claimed she
never resided with Father again after the restraining order was issued. With respect to
Father’s mental health, she claimed she was not aware of Father having a condition; she
stated he acted bizarrely for a time but after the doctors took him off Vicodin, Father no
longer acted strangely.
The court sustained an amended petition under section 300, subdivisions (a) and
(b). The court did not find Mother credible based on her changing her prior statements in
which she expressed fear of Father and her efforts to flee to a domestic violence shelter
with the children.
With respect to the disposition, the court received stipulated testimony from
Mother that she completed her domestic violence and parenting programs, the restraining
order against Father was still in effect, and she currently resided with the maternal
grandmother. Mother disputed the information that the grandparents’ home was
unsuitable and requested that they be released to her custody or, alternatively, that she be
permitted unmonitored contact with them. The children’s attorney joined the
Department’s recommendation and asked for an order that the Department reassess the
parenting and domestic violence program Mother attended out of concern that the day
before Mother completed the program, she still denied there was any violence in the
home.
7
The court declared the children dependents, removed them from parental custody,
and ordered the Department to provide family reunification services including monitored
visitation. In reference to the letter of support from the domestic violence case manager,
the court explained: “The letter on Project Peacemaker’s letterhead, the case manager is
very adamant that it is a travesty of injustice to keep the mother away from the children
and is beyond the scope of decency, but I don’t know what they are hearing in their
program from her, but everything we are hearing here is that she’s in full denial of any
risk posed to the children.” The court “stayed” the orders for a further ICWA
investigation.
On December 11, 2013, the court conducted the continued hearing. The
Department submitted a report informing the court that the social worker had interviewed
Father. Father denied having an Indian registration card, did not know anyone in his
family who had an Indian registration card, was not aware of any relatives having
“documented” Indian ancestry. He also denied that Mother had any Indian ancestry.
The court asked whether any party believed the ICWA investigation was
insufficient or had any objection to the court finding the investigation complete. Father
did not object. The court lifted the stay, entered the disposition orders, and found the
ICWA did not apply.
The parents timely filed their appeals.
DISCUSSION
On appeal the parents claim that several of the juvenile dependency court’s
findings and orders must be reversed. However, before we discuss the merits of the
parent’s respective contentions, we address a preliminary matter relating to the exercise
of dependency jurisdiction.
In this court the parents do not assail the court’s exercise of jurisdiction under
section 300, subdivision (b-2) based on the findings that Father’s mental instability
rendered Father incapable of providing care and supervision of the children and that
Mother failed to protect the children despite Mother’s awareness of Father’s mental
health history. In addition, neither parent has challenged the court’s exercise of
8
jurisdiction under subdivision (b-1) based on the finding that Father physically abused the
Mother in the children’s presence. Where, as here, a dependency petition alleges
multiple grounds for its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over
the minor if any one of the statutory bases for jurisdiction that are enumerated in the
petition is supported by substantial evidence. (In re Alexis E. (2009) 171 Cal. App. 4th
438, 451.) As a result, “an appellate court may decline to address the evidentiary
support for any remaining jurisdictional findings once a single finding has been found to
be supported by the evidence.” (In re I.A. (2011) 201 Cal. App. 4th 1484, 1492.)
This notwithstanding, we will reach the merits of the Mother’s contentions with
respect to the sustained jurisdictional findings that relate to her under section 300,
subdivision (b-1), namely that she failed to protect the children from exposure to
domestic violence, because those findings could affect her rights in the future in other
contexts, or if dependency proceedings were ever initiated again with regard to the
children. (See In re J.K. (2009) 174 Cal. App. 4th 1426, 1431-1432 [holding that appeals
in dependency matters are not moot if the error asserted may affect the outcome of a
subsequent proceeding].)4
A. Jurisdictional Findings
We review the jurisdictional findings for “any substantial evidence, whether or not
contradicted, which will support the conclusion of the trier of fact.” (In re David M.
(2005) 134 Cal. App. 4th 822, 828 [jurisdictional findings]; Angela S. v. Superior Court
(1995) 36 Cal. App. 4th 758, 762 [dispositional orders].) “Under the substantial evidence
rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts
in the evidence or determine where the weight of the evidence lies.” (In re Diamond H.
(2000) 82 Cal. App. 4th 1127, 1135, disapproved on another ground in Renee J. v.
Superior Court (2001) 26 Cal. 4th 735, 748-749, fn. 6.) Where there is more than one
4
We do reach the merits of Father’s contentions with respect to the section 300,
subdivision (a) findings because he has not demonstrated how he has suffered any
prejudice—how those findings could affect his rights in other proceedings.
9
inference which can reasonably be deduced from the facts, the appellate court is without
power to substitute its decisions for those of the trier of fact. Under this standard, we
review the evidentiary record in the light most favorable to the order. (In re Diamond H.,
supra, 82 Cal.App.4th at p. 1135.)
Mother attacks the juvenile court’s jurisdiction findings under section 300,
subdivision (b-1) as they pertain to her conduct—the failure to protect the children from
exposure to Father’s acts of domestic abuse directed at Mother.5 Mother stated that by
the time of the jurisdiction hearing in September 2013 she had completed programs in
domestic violence and parent education, and an emergency domestic violence shelter
program. She pointed to letters from her treaters and claimed that she had gained insight
into the issues that led to the Department’s intervention as well as improved her parenting
skills. She further maintained that she would no longer have contact with Father, was
looking for an apartment and had complied with the case plan. Consequently, Mother
argues there was no evidence by the time of the hearing to indicate that her conduct
would cause a substantial harm to the children.
To warrant jurisdiction under that subdivision, there must be evidence of “three
elements: (1) neglectful conduct by the parent in one of the specified forms; (2)
causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of
such harm or illness.” (In re Rocco M. (1991) 1 Cal. App. 4th 814, 820.)
5
That provision reads in pertinent part as follows: “Any child who comes within
any of the following descriptions is within the jurisdiction of the juvenile court which
may adjudge that person to be a dependent child of the court: [¶¶] (b)(1) The child has
suffered, or there is a substantial risk that the child will suffer, serious physical harm or
illness, as a result of the failure or inability of his or her parent or guardian to adequately
supervise or protect the child, or the willful or negligent failure of the child’s parent or
guardian to adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left, or by the willful or negligent failure of the parent or
guardian to provide the child with adequate food, clothing, shelter, or medical treatment,
or by the inability of the parent or guardian to provide regular care for the child due to the
parent’s or guardian’s mental illness, developmental disability, or substance abuse. . . .”
(§ 300, subd. (b).)
10
We conclude there was sufficient evidence to support the finding alleged in (b-1).
Even though by the time of the jurisdictional hearing, Mother no longer lived with Father
and had completed domestic violence classes and parenting programs, these matters must
be viewed in the full context of the case. “[T]he question under section 300 is whether
circumstances at the time of the hearing subject the minor to the defined risk of harm.”
(In re Rocco M., supra, 1 Cal.App.4th at p. 824; italics in original.) A showing of prior
harm is sufficient to support the initial exercise of jurisdiction under section 300,
subdivision (b). (In re J.K. (2009) 174 Cal. App. 4th 1426, 1434-1439.) Nonetheless, the
court may consider past events when determining whether a child presently needs the
juvenile court’s protection. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135; In re
Troy D. (1989) 215 Cal. App. 3d 889, 899-900.) A parent’s past conduct is a good
predictor of future behavior. (In re Petra B. (1989) 216 Cal. App. 3d 1163, 1169-1170.)
“Facts supporting allegations that a child is one described by section 300 are cumulative.”
(In re Hadley B. (2007) 148 Cal. App. 4th 1041, 1050.) Thus, the court “must consider all
the circumstances affecting the child, wherever they occur.” (Id. at pp. 1048, 1049.)
Notwithstanding Mother’s completion of programs and classes and the letters of
support attesting to Mother’s progress, as the juvenile court recognized, the day before
she completed the domestic violence program, Mother denied the physical abuse.
Initially, however, in June 2013, Mother described to the Department social worker the
instances of physical abuse and verbal abuse by Father and both Da. F. and De. F.
confirmed the abuse. However, once the Department filed the dependency petition, the
Mother changed her story—she denied that Father had ever abused her and minimized his
conduct and behavior. Her denials persisted throughout the proceedings, including
during her testimony at the jurisdictional hearing. Mother’s steadfast refusal to
acknowledge the abuse by Father undermines her claims of insight and her credibility.
Moreover, although in May 2013 Mother fled with the children and obtained the
restraining order against Father, she did so only because the domestic violence shelter
required her to obtain the order as a condition to her entering the shelter. Indeed, she
reconciled with the Father in June of 2013, and without court intervention, it does not
11
appear Mother would have left him. (See In re Carlos T. (2009)174 Cal.App.4th 795,
800, 806 [affirming the exercise of jurisdiction based on substantial risk where although
father was incarcerated he denied responsibility for having previously abused both
children, the mother denied responsibility for allowing the abuse to occur, and “there
[was] every reason to believe that [the] father would resume his sexual abuse of [the
minors] without the state intervening to prevent him from obtaining access to them”].)
Mother’s lack of insight goes to the heart of the allegations against her in the
petition, that is, that she failed to protect her children from exposure to an environment of
domestic abuse. Mother’s lack of awareness, notwithstanding Mother’s participation in
programs and classes, posed an ongoing risk of harm for the children, which in our view,
supports the court’s finding under section 300, subdivision (b-1). Accordingly, the
court’s exercise of jurisdiction under section 300, subdivision (b-1) was proper.
B. Disposition Order
On appeal, Mother argues that the evidence before the lower court was insufficient
to support the juvenile court’s dispositional orders removing the children from her
custody and requiring her visitation to be monitored.6
After the juvenile court finds a child to be within its jurisdiction, the court must
conduct a dispositional hearing. At the dispositional hearing, the court must decide
where the child will live while under the court's supervision. Before the juvenile court
may order a child physically removed from his or her parent, it must find, by clear and
convincing evidence, that “[t]here is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of the minor if the minor
were returned home, and there are no reasonable means by which the minor’s physical
health can be protected without removing the minor from the minor’s parent’s or
6
Subsequent to the disposition proceedings, in June 2014, the court modified the
visitation order to allow for Mother to have unmonitored visits with the children.
Consequently, Mother’s challenge to the order requiring monitored visits is moot.
12
guardian’s physical custody. . . .” (§ 361, subd. (c)(1)7; see In re Heather A., supra, 52
Cal.App.4th at p. 193.) At the dispositional phase of dependency proceedings the burden
of proof is clear and convincing evidence. (See § 361; In re Sheila S. (2000) 84
Cal. App. 4th 872, 881.)
“The parent need not be dangerous and the minor need not have been actually
harmed before removal is appropriate. The focus of the statute is on averting harm to the
child.” (In re Diamond H., supra, 82 Cal.App.4th at p. 1136 [disapproved on other
grounds in Renee J. v. Superior Court (2001) 26 Cal. 4th 735, 748, fn. 6].) “In this
regard, the court may consider the parent’s past conduct as well as present
circumstances.” (In re Cole C. (2009) 174 Cal. App. 4th 900, 917 (Cole C.).) “The
juvenile court has broad discretion to determine what would best serve and protect the
child’s interest and to fashion a dispositional order in accordance with this discretion.”
(In re Jose M. (1988) 206 Cal. App. 3d 1098, 1103-1104.)
“Whether the conditions in the home present a risk of harm to the child is a factual
issue.” (In re N.M. (2011) 197 Cal. App. 4th 159, 170.) The court’s dispositional finding
is also subject to a sufficiency of the evidence standard of review. (Kimberly R. v.
Superior Court (2002) 96 Cal. App. 4th 1067, 1078.) That is, “we draw all reasonable
inferences from the evidence to support the findings and orders of the dependency court;
we review the record in the light most favorable to the court’s determinations; and we
note that issues of fact and credibility are the province of the trial court.” (In re Heather
A., supra, 52 Cal.App.4th at p. 193.) Evidence of past conduct may be probative of
7
The guidelines and limitations for removal of a child from the custody of the
parents are set forth in section 361. Section 361 provides, in pertinent part: “(c) A
dependent child may not be taken from the physical custody of his or her parents . . .
with whom the child resides at the time the petition was initiated, unless the juvenile
court finds clear and convincing evidence of any of the following circumstances listed in
paragraphs (1) to (5) . . . .” (§ 361, subd. (c)(1).)
13
current conditions, particularly where there is reason to believe the conduct will continue
in the future. (See In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
Here, Mother claims that the dispositional order was infirm because the
dependency court failed to consider less drastic measures than removal. Mother
maintains that the juvenile court did not adequately consider alternative, reasonable
means by which the children could be protected without removing them from her home.
“Before the court removes a child from parental custody, it must find there are no
reasonable means by which the child’s physical health can be protected without removal.
[Citation.] Although the court must consider alternatives to removal, it has broad
discretion in making a dispositional order. [Citation.]” (Cole C., supra, 174 Cal.App.4th
at p. 918; § 361, subd. (d.).)
The record reflects, and the court found, the Department had made reasonable
efforts to eliminate the need for removal of the minors from parental custody. Even
before the proceedings in the summer of 2013, the Department made efforts to assist
Mother in retaining custody by developing a safety plan, but Mother failed to abide by
the plan and even after obtaining a restraining order against him she returned to the
family home with the children to live with Father. As summarized above, between the
time of detention and the time of the dispositional hearing, Mother participated in classes,
programs and services and yet still failed to acknowledge the abuse that she had suffered;
she denied the abuse and minimized Father’s mental instability. In addition, Mother did
not have suitable housing; she lived with her parents in a home that was not appropriate
for the children.
In sum, in our view, the court properly concluded that no reasonable means short
of removal of the minors would be adequate to protect the minors’ well-being, given the
risk of harm.
C. ICWA
Father contends the juvenile court failed to ensure compliance with the mandates
of ICWA (25 U.S.C. § 1901 et seq.). He argues the Department should be required to
give notice to applicable Indian tribes regarding the dependency proceedings.
14
1. Background
At the outset of the proceedings the parents completed the ICWA-020 form.
Mother disclosed she had no Native American ancestry, and Father indicated that his
grandparents were Native American. When questioned at the detention hearing Father
affirmed that: “I know for a fact that my grandmother is ‘Blackfoot,’ and my grandfather
is Cherokee.” The court ordered: “The [D]epartment is to investigate Indian ancestry on
the father’s side. The [D]epartment is to notice all . . . federally recognized Cherokee and
the Blackfeet if the investigation indicates that is needed. Notice if triggered.”
Thereafter, when the Department interviewed Father about his heritage, the social worker
reported that Father stated that: “he did not have an Indian registration card and did not
know anyone in his family who had an Indian registration card. The father stated he was
not aware of any relative who had documented Indian heritage.”
At the continued jurisdiction/disposition hearing in December 2013 the court
noted the results of the interview and inquired whether: “anyone think that’s not a
sufficient ICWA investigation? Any objection to the court finding that the ICWA
investigation is complete?” Father did not object, and the court found the investigation
was complete and that ICWA did not apply. ~(RT 65-66; CT Rule 8 p. 7.
2. Applicable Law
The purpose of ICWA is to “‘protect the best interests of Indian children and to
promote the stability and security of Indian tribes and families.’” (In re Karla C. (2003)
113 Cal. App. 4th 166, 173-174, quoting 25 U.S.C. § 1902; see also In re Suzanna L.
(2002) 104 Cal. App. 4th 223, 229; In re Santos Y. (2001) 92 Cal. App. 4th 1274, 1299.)
“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, a most important
resource.” (In re Desiree F. (2000) 83 Cal. App. 4th 460, 469.) For purposes of ICWA,
an “Indian child” is a child who is either a member of an Indian tribe or is eligible for
membership in an Indian tribe and is the biological child of a member of an Indian tribe.
(25 U.S.C., § 1903, subd. (4).)
15
ICWA provides, “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 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” of the pending proceedings and its
right to intervene. (25 U.S.C., § 1912, subd. (a); see In re S.B. (2005) 130 Cal. App. 4th
1148, 1157.) This notice “enables the tribe to investigate and determine whether the
minor is an Indian child” and “advises the tribe of the pending proceedings and its right
to intervene or assume tribal jurisdiction.” (Desiree F., supra, 83 Cal.App.4th at p. 470.)
Failure to provide the necessary notice requires invalidation of actions taken in violation
of ICWA. (Id. at p 472.)
California law contains its own notice requirements (§ 224.2, subd. (a)(5)) where
the juvenile court or the Department knows or has reason to know that the dependency
proceedings involve an Indian child. (§ 224.3, subd. (d).) The state also imposes a
“continuing duty in dependency proceedings to inquire whether a child might be an
Indian child.” (In re J.D., supra, 189 Cal.App.4th at p. 123; Cal. Rules of Court, rule
5.481(a).) If the protections provided by state law are greater than the protections
provided by ICWA, state law governs. (§ 224, subd. (d); accord, 25 U.S.C., § 1921; In re
H.B. (2008) 161 Cal. App. 4th 115, 120.)
Neither ICWA nor the governing federal regulations define the term “reason to
know.” (In re S.B., supra, 130 Cal.App.4th at p. 1158.) California law provides guidance
in making this determination, however. Section 224.3, subdivision (b), provides: “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 the child, an
officer of the court, a tribe, an Indian organization, a public or private
agency, or a member of the child’s extended family provides
information suggesting the child is a member of a tribe or eligible for
membership in a tribe or one or more of the child’s biological
parents, grandparents, or great-grandparents are or were a member of
a tribe.
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“(2) The residence or domicile of the child, the child’s parents, or
Indian custodian is in a predominantly Indian community.
“(3) The child or the child’s family has received services or benefits
from a tribe or services that are available to Indians from tribes or the
federal government, such as the Indian Health Service.”
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).)
3. Analysis
Respondent argues that the dependency court properly concluded that ICWA
notice was not triggered in this case. Respondent maintains that the court had no reason
to know that the children were Native American based on Father’s statements to the
social worker and his silence8 at the hearing when the court asked whether there were any
objections to the sufficiency and completeness of the investigation. We disagree.
Only a minimal showing is required to trigger the ICWA notice requirements.
(Dwayne P. v. Superior Court (2002) 103 Cal. App. 4th 247, 254, 258.) If anyone related
to the case suggests that a child has Indian ancestry, notice should be given. “Synonyms
for the term suggest include ‘imply,’ ‘hint,’ ‘intimate’ and ‘insinuate.’ [Citation.]” (Id.
at p. 254.) “The Indian status of the child need not be certain to invoke the notice
8
Respondent properly recognizes that Father has not forfeited his complaint
regarding ICWA. Indeed, the generally accepted rule in dependency cases is that the
forfeiture doctrine does not bar consideration of ICWA notice issues on appeal. (See,
e.g., In re Marinna J. (2001) 90 Cal. App. 4th 731, 739.) “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 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.” (In re Justin S. (2007) 150 Cal. App. 4th 1426, 1435.)
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requirement. [Citation.]” (In re Desiree F., supra, 83 Cal.App.4th at p. 471; In re
Kahlen W. (1991) 233 Cal. App. 3d 1414, 1422; In re Junious M. (1983) 144 Cal. App. 3d
785, 793.) “Enrollment is not required in order to be considered a member of a tribe;
many tribes do not have written rolls. While enrollment can be one means of establishing
membership, it is not the only means, nor is it determinative.” (In re Desiree F., supra,
83 Cal.App.4th at pp. 470-471.) ICWA applies to children who are eligible for
membership in an Indian tribe, even if not enrolled. (Id. at p. 471.) Section 224.3,
subdivision (e )(1) also specifically provides that “[i]nformation that the child is not
enrolled in the tribe is not determinative of status as an Indian child.” A child may
qualify as an Indian child within the meaning of the ICWA even if neither of the child’s
parents is enrolled in the tribe. (Dwayne P., supra, 103 Cal.App.4th at p. 258.)
Here, Father maintained that his grandparents had Indian American ancestry and
he identified the tribes from which they were descended. Father has never disavowed his
Native American ancestry. In our view, the fact that Father later stated that he did not
have “registration cards” and did not have “documented” ancestry did not relieve the
Department of its obligation to provide notice to the Bureau of Indian Affairs and to
those tribes he had previously identified. Consistent with Dwayne P., Father provided
sufficient indication of Indian status to trigger notice under ICWA. The Department’s
failure to provide notice requires this matter be remanded to the juvenile dependency
court for reconsideration after proper statutory notice is given.
To accomplish this limited remand, it is not necessary to reverse or vacate the
juvenile court’s disposition order. (In re Brooke C. (2005) 127 Cal. App. 4th 377, 385-
386; accord, Tina L. v. Superior Court (2008) 163 Cal. App. 4th 262, 268; In re Veronica
G. (2007) 157 Cal. App. 4th 179, 188.) After proper notice under ICWA, if it is
determined that the children are Indian children and ICWA applies to these proceedings,
Father is entitled to petition the juvenile court to invalidate orders that violated ICWA.
(See 25 U.S.C., § 1914; In re Veronica G., supra, 157 Cal.App.4th at p. 188.)
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DISPOSITION
The jurisdiction findings under section 300, subdivision (b) and disposition orders
of the juvenile court are affirmed.
The matter is remanded to the juvenile court for compliance with ICWA
notification requirements and for further proceedings not inconsistent with this opinion.
On remand, the court is also directed to modify the jurisdictional order by striking the
allegations under section 300, subdivision (a) of the petition.
WOODS, Acting P. J.
We concur:
ZELON, J.
SEGAL, 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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