In re D.S. CA3

Filed 7/7/21 In re D.S. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
In re D. S., a Person Coming Under the Juvenile Court C093165
Law.
SAN JOAQUIN COUNTY HUMAN (Super. Ct. No.
SERVICES AGENCY, STKJVDP20160000208)
Plaintiff and Respondent,
v.
M. L.,
Defendant and Appellant.
This is the second appeal filed by mother (M. L.) after termination of her parental
rights. (Welf. & Inst. Code,1 § 366.26.) In the previous appeal, this court conditionally
reversed and remanded for limited proceedings to ensure compliance with the Indian
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
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Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). In this appeal from the juvenile
court’s orders reinstating the orders terminating her parental rights and freeing the minors
for adoption, she again contends the juvenile court and the San Joaquin County Human
Services Agency (Agency) failed to comply with the requirements of the ICWA. Mother
having refused to cooperate in securing ICWA compliance and having further failed to
object to ICWA compliance at the limited ICWA proceeding on remand, we find her
claim forfeited and affirm the orders terminating her parental rights.
BACKGROUND
Because the sole issue on appeal is ICWA compliance upon remand, we provide
an abbreviated factual and procedural background.
On May 4, 2016, the Agency filed a section 300 petition on behalf of D. (then age
seven) and W. (then age three). The petition was also filed on behalf of the minors’ two
siblings, who are not subjects of this appeal. The petition alleged the minors and their
siblings came within section 300, subdivisions (b) (failure to protect), (e) (severe physical
abuse), (g) (no provision for support), (i) (cruelty), and (j) (abuse of sibling). The minors
were detained. Mother stated she did not know if she had Native American ancestry but
said she would check with her family. She completed an ICWA-020 form claiming
possible Native American ancestry but not listing a tribe. Thereafter, during a June 3,
2016 interview, mother stated her paternal grandmother was “full blood” Native
American and her maternal grandmother has Native American heritage from Mississippi,
but mother did not know with what tribes either were affiliated.
The juvenile court took jurisdiction, adjudged the minors dependents, ordered
them removed from parental custody, and provided parents reunification services. The
ICWA-030 notice, filed with the court on September 21, 2016, contained information for
mother, minors’ fathers, the minors’ maternal grandmother and grandfather, and the
minors’ maternal great-grandmother and great-grandfather. This information included
the fact that the maternal grandmother resided in Sacramento, but did not provide an
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address. It also did not provide the deceased maternal grandfather’s birth date or date of
and place of death, the name and city of residence for the maternal great-grandmothers,
the names and place of death of the deceased maternal great-grandfathers, and it provided
only the state of Mississippi as the birthplace for one of the maternal great-grandmothers.
As no tribe affiliation had been provided, the ICWA-030 notice was sent only to
the Bureau of Indian Affairs (BIA). The response from the BIA indicated that it did not
determine tribal eligibility, nor did it maintain a comprehensive list of persons possessing
Indian blood. The response stated that it was the responsibility of the person claiming
Indian ancestry to establish a tribal affiliation. As a result of the unspecified tribal
affiliation, the BIA determined that the notice contained insufficient or limited
information to determine tribal affiliation or support that the minor was an Indian child
within the meaning of the ICWA. Subsequently, the Agency’s February 16, 2017, status
review report stated that the ICWA did not apply. The parties submitted the ICWA
matter on the record and the juvenile court made the finding the ICWA did not apply on
February 22, 2017.
On March 27, 2017, the juvenile court terminated parents’ reunification services
due to their minimal progress and participation. The minors had several placements but
have been in their prospective adoptive home since August 2018 and have formed a close
bond. The juvenile court ordered parental rights terminated, freeing the minors for
adoption, on August 26, 2019.
Mother appealed. (In re D.S. et al. (July 13, 2020, C090287) [nonpub. opn.].) She
argued the minors were not adoptable and the juvenile court and Agency had failed to
comply with the ICWA inquiry and notice requirements because the Agency did not
establish it had attempted to obtain the ancestry and tribal information missing from the
ICWA notice from her relatives. As the record reflected, mother had living relatives, and
there was no indication in the record that the Agency had made effort to inquire of these
relatives to obtain the necessary ICWA notice information, we agreed that reversal was
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required. We held the evidence supported the finding the minors are adoptable but
conditionally reversed and remanded for the limited purpose of ensuring ICWA
compliance. Remittitur issued on September 14, 2020.
On remand, the Agency was ordered to make further ICWA inquiry. The social
worker tried to obtain information from mother on August 14, August 25, September 15,
September 24, October 1, October 7, October 13, and October 27, 2020. Mother said she
would be present at an October 28, 2020, ICWA compliance hearing to provide ICWA
information, but she failed to appear. The matter was continued to November 4, 2020,
again, for the specific reason of mother to provide ICWA information. When the matter
was called, mother’s counsel reported that she had just spoken with mother, who was
present in the courthouse, and did not know where she went. Her counsel reported that
she had asked mother about any Native American heritage and mother was going to
communicate with the social worker but that had not yet occurred. The court trailed the
matter to allow mother to appear. When the matter was recalled, mother’s counsel
reported that, although the social worker had seen mother in the interim, mother was once
again, not present. The matter was trailed again to allow for mother to appear. When the
matter was called for the third time, mother’s counsel reported she could not find mother
or reach mother on her cell phone.
The Agency argued that mother has the information regarding her maternal great-
grandparents and ancestry, if there is any, and was just not participating or assisting the
Agency in finding this information. It requested the juvenile court move forward, find
the ICWA does not apply, and reinstate the orders terminating parental rights. The
juvenile court then asked mother’s counsel for “any comment.” Counsel responded that
she was not sure why mother had left. Counsel had explained to mother the appeal came
back solely on the issue of ICWA. Mother had really been hoping that the court would
allow her to have visitation with the minors while the case was reopened. Counsel then
objected to terminating mother’s parental rights again and requested the court “give her
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another chance.” Counsel did not argue that the Agency had not made adequate ICWA
inquiry efforts, nor did counsel object to findings that the Agency had made adequate
inquiry under the ICWA or that the ICWA does not apply. Counsel did not argue that the
contact information for any of mother’s relatives was known to the Agency and that the
Agency could, therefore, obtain ICWA information without the assistance of mother.
Instead, counsel simply noted that “unfortunately, I can’t force her to give up that
information to the [A]gency, but I will say she wants to see her children and does not
want her parental rights to be terminated.”
The juvenile court found the Agency had looked into the alleged Native American
ancestry more thoroughly and had made continual attempts to obtain more information
but that the holder of the information, if there is any such information, does not appear to
want to provide it. The juvenile court then found that the ICWA does not apply and
reinstated its previous orders terminating parental rights and freeing the minors for
adoption. Mother filed a timely notice of appeal from these orders on December 1, 2020.
DISCUSSION
Mother contends we must reverse the termination of her parental rights and
remand for a second time because the Agency’s efforts of further ICWA inquiry on
remand were once again inadequate. She argues that, despite her lack of cooperation, the
Agency did not sufficiently establish it attempted to locate and contact mother’s relatives
to obtain the information missing from the original ICWA notices. And for a second
time, she raises her contention of ICWA inquiry error without first raising it in the
juvenile court. Gamesmanship, such as mother’s in this case, is particularly
reprehensible in the juvenile dependency arena. (In re Amber F. (2007) 150 Cal.App.4th
1152, 1156.)
Generally, the forfeiture doctrine does not bar consideration of ICWA inquiry and
notice issues not raised in the juvenile court. “ ‘The notice requirements serve the
interests of the Indian tribes “irrespective of the position of the parents” and cannot be
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[forfeit]ed 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.” (In re Justin S. (2007)
150 Cal.App.4th 1426, 1435.)
But where, as here, a case is remanded to the juvenile court for the purpose of
curing ICWA inquiry and notice defects and the parent is represented by counsel at the
postremand compliance hearing and counsel raises no objection to the further attempts at
the ICWA compliance, an exception to the general rule applies. “We do not believe
Congress anticipated or intended to require successive or serial appeals challenging
ICWA notices for the first time on appeal. . . . ‘[A]t some point, the rules of error
preservation must apply or parents will be able to repeatedly delay permanence for
children through numerous belated ICWA notice appeals and writs.’ ” (In re X.V. (2005)
132 Cal.App.4th 794, 804-805.) These principles apply here.
Although mother absented herself from the ICWA compliance hearing, she was
represented by counsel and her counsel failed to raise any objections to the Agency’s
attempts at further ICWA inquiry or notice at the hearing. In fact, counsel indicated that,
despite being informed that the sole issue on remand was ICWA compliance, mother’s
attention was limited to seeking to have visitation reinstated during the period on remand
and to object to termination of her parental rights. Thus, mother has forfeited any
continued contentions surrounding the Agency’s attempts at ICWA inquiry in this, her
second appeal.
Furthermore, “[a]s a matter of respect for the children involved and the judicial
system, as well as common sense, it is incumbent on parents on remand to assist the
Agency in ensuring proper notice is given.” (In re X.V., supra, 132 Cal.App.4th at
p. 804, italics added.) Here, no less than 10 attempts were made to gain mother’s
assistance in obtaining further ICWA information, if any there was. Yet, instead of
assisting the Agency in ensuring proper inquiry and notice under the ICWA, mother
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affirmatively refused to assist the Agency and played what appears to be a game of cat
and mouse, with the purpose of prolonging these proceedings, attempting to obtain new
visitation orders, and delaying permanence for these minors who have been in the
dependency system for over five years.
DISPOSITION
The orders of the juvenile court terminating parental rights are affirmed.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Renner, J.
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