Opinion
G054775 C/w G055186 C/w G054946
01-17-2018
In re AVA L., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JORDAN A., Defendant and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. Melissa A. Chaitin, under appointment by the Court of Appeal, for Minor Ava L.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DP026276-001) OPINION Appeal from orders of the Superior Court of Orange County, Dennis J. Keough, Judge. Conditionally reversed and remanded with directions. Motion to take additional evidence. Denied. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. Melissa A. Chaitin, under appointment by the Court of Appeal, for Minor Ava L.
* * *
Jordan A. (father) appeals from May 2017 juvenile court orders terminating his parental rights (Welf. & Inst. Code, § 366.26; all references to this code unless otherwise noted) to his daughter, Ava L. (born in June 2015). Father contends the juvenile court and Orange County Social Services Agency (SSA) failed to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) because the notices sent to the relevant tribes and governmental agencies contained insufficient and incorrect information concerning Ava's ancestry. For the reasons expressed below, we will conditionally reverse the judgment and remand with directions to provide adequate ICWA notification.
I
FACTUAL AND PROCEDURAL BACKGROUND
In June 2015, SSA took newborn Ava into protective custody and filed a petition (§ 300, subd. (b)) alleging she had suffered or was at substantial risk of suffering serious physical harm or illness as a result of the inability of her parents to supervise or protect her, or to provide regular care due to mental illness and substance abuse. Specifically, the petition alleged mother Jenny L. (born in 1993), a prior dependent child, had been a chronic substance abuser since age 15 with a history of drug-related criminal behavior. She was chronically homeless and suffered from mental health issues. She did not obtain prenatal care and used methamphetamine until the seventh month of her pregnancy, claiming she did not know she was pregnant. Late in the pregnancy, mother contacted a private adoption agency, ostensibly to place Ava for private adoption. The agency provided her and a boyfriend - not Ava's father - with a motel room. Mother later claimed she only used the adoption agency to obtain a stable place to live with her boyfriend, and threatened to kill herself if she could not keep the child. While hospitalized for the birth, she was combative with hospital staff and refused to take direction on caring for the child.
Mother has not appealed.
According to the petition and detention report, mother stated she had conceived Ava as the result of a rape while she was high on methamphetamine and marijuana. She refused to identify the father, but described him as a 51 year old with other children. Mother reported she was "full-blooded Vietnamese," denied Native American heritage on her Parental Notification of Indian Status (ICWA-020) form.
SSA placed Ava in a concurrent planning foster home on June 18, 2015. Three days after the detention hearing, mother stated there were two potential biological fathers, including a second man named "Jordan [A]." Mother stated Jordan did "a lot of drugs" and his phone number "constantly changes." She communicated with both men using social media. Mother advised the court she had no reason to believe either man had Native American heritage.
Both potential fathers appeared in court for a pretrial hearing in July 2015. Jordan, who had a history of methamphetamine use and criminal behavior beginning as a juvenile, denied Native American heritage "as far as [he knew]" on the ICWA-020 form. The court authorized paternity testing for both men, and noted at this point there was "no indication" ICWA applied.
On September 15, 2015, mother pleaded no contest to the allegations of the petition. Jordan, an alleged biological father at this juncture, submitted to the allegations of the petition as amended. The court ordered reunification services for mother, including parenting education, counseling, substance abuse testing and treatment, 12-step meetings and a mental health evaluation (Evid. Code, § 730). The case plan did not include Jordan, whose paternity had not been established.
The social worker's interim report for the November 16, 2015 progress review noted paternity testing completed in late September showed Jordan was Ava's biological father. The court made a finding to this effect.
The court found Jordan to be Ava's presumed father approximately a year later, in September 2016.
In November 2015, father notified the social worker he had moved to Ohio. He also for the first time suggested the paternal grandfather, David A., as a placement resource if reunification failed. Around this same time, David and his wife, F.C., learned about Ava's existence and contacted the social worker.
In March 2016, the paternal grandparents, who sought Ava's placement and had been visiting Ava since December 2015, provided a Relative Information statement (JV-285) identifying two great-great-great grandparents, Jerry S. and Mary A., as Native American. Counsel requested a continuance of the six-month review to provide tribal notification. The court denied the request to continue the six-month review hearing, but directed the paternal grandfather and father to meet with SSA's ICWA social worker and provide family history information. The court directed SSA to investigate and to notify appropriate tribes and the Bureau of Indian Affairs (BIA).
On April 19, 2016, SSA filed a "Notice of Child Custody Proceeding for Indian Child" (ICWA-030). The notice reflected the ICWA social worker interviewed father and the paternal grandfather concerning their ancestry. The notice contained information on Ava's ancestors, including her paternal great grandfather, Mark A., and noted she might be eligible for membership in Navajo, Papago and Apache tribes. The notice did not include information on the great-great-great grandparents, Jerry S. and Mary A. Although one section of the form identified Jordan as the biological father, another section stated it was "unknown" whether father was "named on [the] birth certificate," had "acknowledged parentage," or whether there had "been a judicial declaration of parentage." SSA mailed the ICWA notices, return receipt requested, to the relevant governmental agencies, and to various Apache, Navajo, and Papago tribes.
On October 13, 2016, SSA filed a green card receipt of mailing and a response letter from the White Mountain Apache Tribe in Arizona, which noted enrollment in the tribe required one-half degree or more Indian blood and one-quarter degree or more of White Mountain Apache blood. On March 22, 2017, SSA filed a response letter from the Navajo Nation tribe dated October 20, 2016, stating it had been unable to verify Ava's eligibility for tribal membership enrollment based on the ancestry information provided. SSA filed no other response letters or green card receipts.
The parents did not reunify with Ava, who remained placed with the foster parents for adoption. In January 2017, the court set a section 366.26 hearing, and found ICWA did not apply. In May 2017, the juvenile court terminated parental rights.
II
DISCUSSION
ICWA Compliance
Father contends we must reverse the orders made at the May 2017 section 366.26 hearing terminating parental rights because the record does not demonstrate compliance with ICWA. Because Ava's biological great-great-great grandparents were her direct lineal ancestors, SSA should have included known information about them to the relevant tribes and governmental entities. We cannot say the failure to do this was harmless.
As noted above, the paternal grandparents advised SSA in March 2016 that Ava's great-great-great grandfather, Jerry S., was a full-blooded Native American Indian, "descended from Arizona," and Ava's great-great-great grandmother, Mary A., was a full-blooded Navajo Indian, "descended of Apache Indians." The grandparents attached Jerry's death certificate, showing his dates and places of birth and death, as well as identifying him as "Indian." The letter also provided Mary's dates of birth and death, noting her father was Apache and Papago Indian.
On April 19, 2016, SSA filed a copy of its ICWA notice. The notice did not mention Jerry and Mary, and traced Ava's ancestry only as far back as her paternal great grandfather, Mark A. SSA also stated on the notice it was "unknown" whether father was "named on [the] birth certificate," had "acknowledged parentage," or whether there had "been a judicial declaration of parentage." As noted, DNA testing completed in late September 2015 established Jordan as Ava's biological father. The court subsequently found him to be Ava's presumed father.
On October 13, 2016, SSA filed a green card receipt of mailing and a response letter from the White Mountain Apache Tribe in Arizona, which noted enrollment in the tribe required one-half degree or more Indian blood and one-quarter degree or more of White Mountain Apache blood. On March 22, 2017, SSA filed a response letter from the Navajo Nation dated October 20, 2016. The tribe stated it had been unable to verify Ava's eligibility for tribal membership enrollment based on the ancestry information provided. SSA filed no other response letters or green card receipts.
Father complains ICWA compliance was lacking because the notices did not identify and include information about the paternal great-great-great grandparents Jerry S. and Mary A., the notices misinformed the tribes and the BIA about father's status as Ava's biological father, and SSA failed to provide return receipts for most of the tribes and the BIA.
"Congress passed the ICWA in 1978 'to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children "in foster or adoptive homes which will reflect the unique values of Indian culture. . . ."' (Citations.)" (In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1106 (Jeffrey A.).) The ICWA's procedural and substantive requirements must be followed in involuntary child custody proceedings when an 'Indian child' is involved. An 'Indian child' is defined by the ICWA as 'any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 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(4).)" (Ibid.)
"Among the procedural safeguards included in the ICWA is the provision for notice. The ICWA provides in part: '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, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe . . . .' (25 U.S.C. § 1912(a).) 'Notice shall be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the child is not an Indian child.' (Cal. Rules of Court, rule 1439(f)(5).)" (Jeffrey A., supra, 103 Cal.App.4th at pp. 1106-1107, fn. omitted.)
A child may qualify as an Indian child even where neither parent is currently enrolled. (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 207-208; see also § 224.3, subd. (e)(1).) A tribe determines whether a child is a member of the tribe or is eligible for enrollment in a tribe. (25 U.S.C. 1903(5); § 224.3, subds. (c), (e)(1); In re Francisco W. (2006) 139 Cal.App.4th 695, 702 (Francisco W.) [tribe determines whether the child is an Indian child and its determination is conclusive]; see also Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32 [Indian tribe final arbiter of its membership rights].)
The 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. (In re Robert A. (2007) 147 Cal.App.4th 982, 989 (Robert A.).) The notice sent to the Indian tribes must contain enough identifying information to be meaningful. (Ibid.) "It is essential to provide the Indian tribe with all available information about the child's ancestors, especially the ones with the alleged Indian heritage." (Francisco W., supra, 139 Cal.App.4th at p. 703; In re Louis S. (2004) 117 Cal.App.4th 622, 631 [agency must provide all known information to the tribe; particularly that of the person with the alleged Indian heritage].) ICWA notice requirements are strictly construed because failure to provide the tribe with proper notice of a dependency proceeding involving a dependent child who may have tribal affiliation forecloses participation by the tribe. (Robert A., 147 Cal.App.4th at p. 989.) SSA must file with the court the ICWA notice, return receipts and responses received from the tribes to enable the juvenile court to review whether it received sufficient information. (Ibid.)
Relying on In re J.M. (2012) 206 Cal.App.4th 375 (J.M.), SSA responds ICWA notices need not include information concerning great-great-great grandparents. (Id. at p. 381 ["notice is required to include information about ancestors no more remote than the dependent child's great-grandparents"]; see § 224.2, subd. (a)(5)(c) [notice must include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known"].) SSA asks us to follow J.M., while recognizing courts have reversed ICWA findings based on the omission of known ancestral information more removed than great-grandparents. (See In re Kadence P. (2015) 241 Cal.App.4th 1376, 1386-1387 (Kadence P.) [ICWA applied to child based on great-great-great-grandparents heritage; distinguishing J.M. where "tribe's own judicially noticed constitution and membership criteria . . . made clear that that such attenuated relationship would not be sufficient to make child member of tribe"]; In re S.E. (2013) 217 Cal.App.4th 610, 615-616; In re C.B. (2010) 190 Cal.App.4th 102, 146-147.) SSA also concedes federal ICWA regulations require notice to include, "If known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents . . . ." (25 C.F.R. § 23.111(d)(3), italics added; see also 25 C.F.R. § 23.111(e) ["[t]o establish Tribal identity, as much information as is known regarding the child's direct lineal ancestors should be provided"], italics added; see also former 25 C.F.R. 11(b) (eff. May 2014 to December 2016) ["In order to establish tribal identity, it is necessary to provide as much information as is known on the Indian child's direct lineal ancestors including, but not limited to, the information delineated at paragraph (d)(1) through (4) of this section"], italics added.)
Because Jerry S. and Mary A. were Ava's direct lineal ancestors, SSA's notice was defective in failing to include known information about them. SSA asserts failure to provide the information did not result in prejudice because such "attenuated ancestral information" rarely results in a child being deemed a tribal member. A similar claim was rejected in Kadence P., which distinguished J.M. on the point: "As to the remoteness of [the child's] possible connection to the . . . tribes, although the suggestion of [Native American] ancestry was based on information about her great-great-great-grandparents, nothing was presented to the juvenile court or included in the record on appeal concerning the membership rules for those tribes. It could well be, for example, that membership under tribal rules is passed to successive generations, as a matter of right, through bilineal or double descent without regard to intermarriage or blood quantum and that the absence of formal enrollment does not affect tribal membership. Under those circumstances [the child] could be an Indian child within the meaning of ICWA." (Kadence P., supra, 241 Cal.App.4th at pp. 1386-1387 [noting in fn. 9 that section 224.3, subd. (b)(1), neither limits the generations from which relevant information may be obtained nor creates a general remoteness exception to ICWA notice requirements].)
Because we conclude SSA's notice was defective for failing to include known information about Ava's Native American ancestors Jerry S. and Mary A., we need not resolve whether the notice's potentially confusing statements concerning Jordan's status as Ava's father would separately warrant reversal. Presumably, SSA will not repeat this error in its future notice. Also, as noted, on remand SSA must supply return receipts showing the notices were mailed and received by the relevant tribes and governmental entities. (Robert A., supra, 147 Cal.App.4th at p. 989.)
SSA moves to take additional evidence on appeal (Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252(c)(1), including a declaration from an SSA ICWA supervisor (Exhibit A), an SSA ICWA tracking log (Exhibit B), and return receipts and response letters received from various tribes (Exhibit C). The proffered evidence reflects SSA did receive receipts and response letters from most of the tribes noticed in April 2016. The additional evidence does not establish SSA's April 2016 ICWA notice was adequate or provide another basis to affirm. Indeed, as many of the responses note, the tribe can only make a decision based on the ancestor information provided. Because the evidence does not render the appeal moot, we deny the motion to take additional evidence on appeal. (See In re Zeth S. (2003) 31 Cal.4th 396, 405.) --------
III
DISPOSITION
The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions to order SSA to comply with the notice provisions of ICWA and to file copies of all required documentation with the juvenile court. If, after proper inquiry and notice, no response is received or no tribe claims that Ava is an Indian child, all previous findings and orders shall be immediately reinstated. If any tribe determines that Ava is an Indian child within the meaning of ICWA, the juvenile court shall proceed in conformity with all provisions of ICWA. In all other respects, the orders are affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. MOORE, J.