Opinion
E066449
01-25-2017
In re S.P., et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. S.R., Defendant and Appellant.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWJ1400288) OPINION APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed with directions. Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant S.R. (Mother) purportedly appeals from a stipulated order as to her son E.M., Jr. (Junior), at a hearing held pursuant to Welfare and Institutions Code section 366.3. Father is not a party to this appeal. Mother contends that the juvenile court violated the Indian Child Welfare Act (ICWA) and California law in failing to inquire of Father as to his Indian ancestry. For the reasons explained below, we will affirm with directions.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
On April 8, 2014, the Riverside County Department of Public Social Services (DPSS) filed a petition on behalf of 17-year-old S.R., 13-year-old Junior, and newborn S.P. pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provisions for support), based on Mother's abuse of controlled substances, S.P.'s father's use of controlled substances, and the failure to provide support by the fathers of S.R. and Junior.
The petition noted K.S. as S.R.'s father; E.M., Sr. (Father), as Junior's father; and E.P. as S.P.'s father. The petition was later amended on June 10, 2014, omitting the allegation that E.P. lived a transient lifestyle.
In the detention report, the social worker reported that ICWA may apply. The social worker further indicated that both Mother and E.P. denied Indian ancestry, that Father and K.S. had not been interviewed, and it was unknown if either father had Indian ancestry. On April 9, 2014, Mother filed a Parental Notification of Indian Status form (Judicial Council Forms, form ICWA-020 (ICWA-020 form)) stating that she had no Indian ancestry. At the April 9, 2014 detention hearing, the juvenile court found that the children were not Indian children and that ICWA did not apply.
The record does not contain an ICWA-020 form from Father.
In the jurisdictional/dispositional report dated May 13, 2014, the social worker reported that "[o]n April 9, 2014, the [c]ourt found ICWA does not apply."
At the June 10, 2014 jurisdictional/dispositional hearing, the juvenile court found the allegations in the amended petition true and declared the children dependents of the court. Initially, Mother retained custody of the children under family maintenance services. At that time, DPSS was unable to locate Father. The juvenile court again found that the children were not Indian children and that ICWA did not apply.
On September 18, 2014, the children were detained from Mother due to her continued abuse of controlled substances and her failure to participate in services. On September 22, 2014, DPSS filed a section 387 supplemental petition on behalf of the children.
DPSS filed an amended section 387 petition on October 22, 2014.
In the section 387 detention and jurisdictional/dispositional reports, the social worker reported that "[a]t the original [d]etention hearing held on April 9, 2014, the [c]ourt found" that ICWA did not apply to the children.
At the September 23, 2014 detention hearing, the court terminated jurisdiction over S.R., who had turned 18, and formally detained Junior and S.P. The court again found that ICWA did not apply.
Junior's father's whereabouts were unknown until October 28, 2014. Father was found living in Arizona with his girlfriend and his other children. He was contacted on November 19, 2014, via telephone and said that he was interested in being a part of his son's life. He last saw Junior a few months earlier when he was visiting California, and he gave Junior some money and drove him to school. Father and Junior were in contact through Facebook. Father wanted contact with Junior but Mother's family kept him away.
In a status review report dated December 10, 2014, the social worker again reported that "[a]t the original [d]etention hearing held on April 9, 2014, the [c]ourt found" that ICWA did not apply to the children.
At the December 10, 2014 contested jurisdictional hearing on the section 387 petition, Father's counsel noted she had been in contact with Father and that Father requested services. The juvenile court found the allegations in the supplemental petition true and sustained the petition. The court found that Father was entitled to services, and ordered DPSS to provide him with referrals. The court also ordered an investigation of Father's home in Arizona for possible placement of Junior through the Interstate Compact on the Placement of Children (ICPC). DPSS commenced that investigation on January 7, 2015.
The social worker contacted Father on December 29, 2014, and again on January 7, 2015. There is no indication that the social worker inquired of Father regarding his Indian ancestry during these telephone contacts. Father emailed and texted the social worker several pictures of himself and his girlfriend and Junior's half siblings to give to Junior. There is no indication that the social worker inquired of Father concerning his Indian ancestry via email or texts.
At a contested dispositional hearing on January 15, 2015, the juvenile court confirmed that neither S.P. nor Junior were Indian children and that ICWA did not apply. Mother and Father were provided with reunification services.
In a status review report dated July 15, 2015, the social worker again reported that "[a]t the original [d]etention hearing held on April 9, 2014, the [c]ourt found" that ICWA did not apply as to the children, Junior and S.P. Mother was not compliant with her case plan and continued to abuse drugs. Father's home was denied approval through ICPC due to Father having outstanding warrants. The social worker spoke with Father on June 25, 2015. Father stated that he had taken care of his outstanding warrants. Father, however, did not visit or telephone Junior during the reunification period. Meanwhile, Junior was placed with non-relative family members who were willing to provide long-term foster care for him. Junior indicated that he did not want to be adopted but favored long-term foster care with his non-relative family members.
At the August 20, 2015 contested review hearing, the juvenile court found that ICWA did not apply, continued reunification services to the parents, and set a 12-month review hearing as to Junior for November 23, 2015. The court terminated the parents' services and set a section 366.26 hearing as to S.P.
There is no minute order in the record regarding the November 23, 2015 hearing and no 12-month review report as to Junior. Most of the remaining reports and documents in the record pertain to S.P. In a section 366.26 report dated December 18, 2015, and a status review report dated June 20, 2016, the social worker reported that "[a]t the original [d]etention hearing held on April 9, 2014, the [c]ourt found" that ICWA did not apply to the child, S.P. There was no mention of whether or not ICWA applied as to Junior in these reports.
On December 18, 2015, the juvenile court confirmed a 12-month review hearing pursuant to section 366.21, subdivision (f), as to Junior to be held on January 12, 2016. However, there is no January 12, 2016 minute order in the record or a 12-month review report as to Junior.
Nonetheless, in a section 366.3 post permanent plan status review report dated July 12, 2016, as to Junior, the social worker reported that Mother denied having any Indian ancestry on April 6, 2014. As such, the social worker again reported that "[a]t the original [d]etention hearing held on April 9, 2014, the [c]ourt found" that ICWA did not apply to the child, Junior.
The court has deemed part of the record on appeal: (1) Welfare and Institutions Code section 366.3 post permanent plan status review report dated July 12, 2016, as to E.M.; (2) July 12, 2016 minute order as to E.M.; (3) Stipulation—Post Permanency Planning Hearing and Order as to E.M. filed July 12, 2016, which were missing from the record on appeal.
On July 12, 2016, the juvenile court held a combined hearing pursuant to sections 366.3 as to Junior and 366.26 as to S.P. After the court denied Mother's oral section 388 motion, the court found S.P. adoptable, that no exceptions to adoption applied, and terminated parental rights as to S.P. The parties proceeded by stipulation regarding Junior. In pertinent part, the parties stipulated that Junior would be continued as a dependent of the court; that Junior would continue to reside with his non-relative family members; and that the likely date by which DPSS would finalize Junior's placement would be on January 10, 2017.
On July 14, 2016, Mother filed a timely notice of appeal from the July 12, 2016 hearing regarding S.P. as to the denial of Mother's section 388 oral motion and termination of parental rights.
II
DISCUSSION
A. Appealability
Preliminarily, we must consider whether Mother's ICWA challenge is properly before us. It is clear that Mother filed a notice of appeal as to S.P., not as to Junior. The notice of appeal that was filed specifically states it is in regard to S.P. and that the order appealed from is the oral section 388 motion and section 366.26 hearing terminating parental rights on July 12, 2016. As to the section 366.3 review hearing regarding Junior, the parties proceeded by stipulation.
While a notice of appeal is to be liberally construed in favor of its sufficiency (Cal. Rules of Court, rule 8.100; Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960-961), "a notice specifying a certain part of the judgment brings up only that part of the judgment." (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112.) Mother's notice specifically refers to the hearing held on July 12, 2016, the denial of Mother's oral section 388 motion, and the termination of parental rights as to S.P. Junior's case pursuant to section 366.3 proceeded by way of stipulation on July 12, 2016. Mother has not sought to amend her notice of appeal to specifically include Junior's case.
However, we shall construe Mother's notice of appeal liberally in favor of its sufficiency as properly noticing an appeal from the judgment incorporating Junior's section 366.3 hearing. "It is axiomatic that notices of appeal will be liberally construed to implement the strong public policy favoring the hearing of appeals on the merits. [Citation.] This policy is especially vital where the faulty notice of appeal engenders no prejudice and causes no confusion concerning the scope of the appeal. [Citation.]" (Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc., supra, 64 Cal.App.4th at pp. 960-961.) To this end, we may construe a notice of appeal as being from a different order than the one specified in the notice. (Ibid.) We may even construe a notice of appeal from one appealable order as also being from an earlier, separately appealable order. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413, fn. 9 [notice of appeal from order terminating parental rights construed to include previous order denying section 388 petition]; Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 282, fn. 1 [notice of appeal from judgment of dismissal construed to include previous order denying preliminary injunction].) Accordingly, we will construe the notice of appeal as being from the stipulation order concerning Junior.
B. ICWA
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Jullian B. (2000) 82 Cal.App.4th 1337, 1344.) "An 'Indian child custody proceeding' . . . is defined by section 224.1, subdivision (c), as 'a "child custody proceeding" within the meaning of Section 1903 of [ICWA], including a proceeding for temporary or long-term foster care or guardianship placement, termination of parental rights, preadoptive placement after termination of parental rights, or adoptive placement.' " (In re J.B. (2009) 178 Cal.App.4th 751, 757.) ICWA defines an Indian child as any unmarried person who is under age 18 and is either: (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C.A. § 1903(4).)
In general, when a court "knows or has reason to know that an Indian child is involved" in a juvenile dependency proceeding, the court must give the Indian child's tribe notice of the pending proceedings and its right to intervene. (25 U.S.C.A. § 1912(a); In re S.B. (2005) 130 Cal.App.4th 1148, 1157 (S.B.).) Our state's statute similarly provides: "If the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved" in the dependency proceeding, notice is required. (§ 224.2, subd. (a); In re Alice M. (2008) 161 Cal.App.4th 1189, 1197.) "The Indian status of the child need not be certain to invoke the notice requirement." (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) "The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement." (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
As a prelude to notice, the law also imposes a duty of inquiry. According to the federal guidelines, the court is required to " 'make inquiries to determine if the child involved is a member of an Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe.' " (S.B., supra, 130 Cal.App.4th at p. 1158, quoting 44 Fed. Reg. 67588 (Nov. 26, 1979), italics omitted.) Pursuant to California law, both the court and the agency "have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child" for ICWA purposes. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a); In re K.M. (2009) 172 Cal.App.4th 115, 118-119.) Specifically, in dependency cases, the social worker "must ask the child, if the child is old enough, and the parents, Indian custodian or legal guardians whether the child is or may be an Indian child . . . . " (Rule 5.481(a)(1).) In addition, "At the first appearance by a parent . . . in any dependency case . . . the parent . . . or guardian if available, [must] complete Parental Notification of Indian Status (form ICWA-020)." (Rule 5.481(a)(2), italics omitted.)
All further rule references in this opinion are to the California Rules of Court. --------
Mother argues that the trial court and DPSS never made the inquiry of Junior's father. DPSS responds that this issue cannot be reviewed because the record on appeal is inadequate. Specifically, DPSS claims that because the minute orders and social worker reports regarding Junior's 12-month review hearing and the stipulation or the social worker's report regarding the section 366.3 hearing as to Junior are missing from the record, this court is unable to review the ICWA issue raised by Mother.
"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; accord, In re Alice M., supra, 161 Cal.App.4th at p. 1195.) This is true even if the appellant is not the parent claiming Indian heritage. (In re B.R. (2009) 176 Cal.App.4th 773, 779.) "A parent is permitted to litigate the ICWA notice issue to protect the tribe's interest in the proceedings and because it is in the best interest of the child [who] is the subject of the dependency." (In re Justin S., at p. 1435.)
We review factual findings in the light most favorable to the trial court's order. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.).) Indeed, "[w]e must indulge in all legitimate and reasonable inferences to uphold the [judgment]. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed." (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Our deference to the factfinder, of course, is not without limit. The substantial evidence standard requires evidence that is " 'reasonable in nature, credible, and of solid value.' " (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.) A judgment is not supported by substantial evidence if it is based solely upon unreasonable inferences, speculation, or conjecture. (Cf. People v. Anderson (1968) 70 Cal.2d 15, 23-24.)
Here, there is no direct evidence in the record indicating that the social workers, the court, or anyone ever asked Junior's father once his whereabouts were known about any possible Indian ancestry or tribal affiliation. Although the record on appeal does not contain the minute order of the January 12, 2016 12-month review hearing and the 12-month review report, there is sufficient evidence in the record to infer the inquiry concerning Father's Indian heritage was not made in this case. The social worker consistently reported that at the April 9, 2014 original detention hearing, the juvenile court found ICWA "does not apply" as to the children, Junior and S.P. In addition, the juvenile court repeatedly found that the children were not Indian children and that ICWA did not apply. The court and DPSS from the inception of the case believed ICWA did not apply, despite no evidence showing any inquiry into Father's possible Indian ancestry. Once Father's whereabouts were known, the social worker was in continual contact with Father. However, there is no evidence in the record to suggest the social worker inquired of Father regarding any possible Indian ancestry or tribal affiliation. Following Father's whereabouts and appearance in the case, the social worker simply returned to the practice of stating that the court had found ICWA did not apply at the original detention hearing in every report. There is also no evidence to suggest that once the 366.3 hearing as to Junior and the 366.26 hearing as to S.P. were set, the social worker or the court thereafter inquired of Father's possible Indian ancestry. In fact, in the July 12, 2016 section 366.3 post permanent plan status review report, the social worker reported that Mother denied having any Indian ancestry on April 6, 2014; and that "[a]t the original [d]etention hearing held on April 9, 2014, the [c]ourt found" that ICWA did not apply to the child, Junior. Thus, based on the record before us, even if the record is devoid of the minute order and report as to Junior's 12-month hearing, there is no evidence to suggest these records would show the social worker or the court fulfilled the duty of inquiry of Father.
In re J.N. (2006) 138 Cal.App.4th 450 (J.N.) is instructive. That case was governed by the amended court rule imposing a specific duty of inquiry on the social worker. In J.N., the appellant father submitted a "form JV-130," but the mother did not. (Id. at p. 460) The minutes of the detention hearing indicated that the court inquired of the father about the child's Indian heritage, and concluded that the court had no reason to know that the child may be an Indian child for purposes of ICWA. (Id. at pp. 460-461.) The mother first appeared at the jurisdictional/dispositional hearing, and was not asked about her heritage. According to the Court of Appeal, the "social study prepared for disposition states that mother is of 'Caucasian descent' and father 'is of Caucasian descent with no known American Indian heritage,' but none of the social study reports state that mother was asked whether she had any Indian ancestry." (Id. at p. 461.) Based upon these facts, the Court of Appeal concluded: "It is apparent from the record that mother was never asked whether she had any Indian ancestry." (Ibid.)
The facts in the present case are analogous to those in J.N. First, in our case, as in J.N., the dependency proceeding began after January 2005 and is therefore governed by the amended rule. As in J.N., Mother in this case submitted an ICWA-020 form, but Father did not. Finally, the inference of no parental inquiry from the detention report appears to be even stronger in this case than the inference drawn from the report in J.N. In this case, the detention report indicated that both Mother and S.P.'s father denied Indian ancestry and that Father had not been interviewed and it was unknown if he had Indian ancestry. In the jurisdictional/dispositional report, the social worker stated "[o]n April 9, 2014, the [c]ourt found ICWA does not apply." Once Father was located and made his appearance following detention and jurisdiction, the social worker simply returned to the practice of stating that the court had found ICWA did not apply at the original detention hearing in every report. Based on the foregoing, we conclude that under the particular facts of this case as disclosed by the record, it is not reasonable to infer that the social worker asked Father about his or Junior's Indian ancestry or tribal affiliation.
As set forth above, California law requires the court in a dependency case to order the parents to complete the ICWA-020 form utilized in this case at their first appearance. (Rule 5.481(a)(2).) Here, Father through counsel first appeared at the jurisdictional/dispositional hearing on the section 387 petition in December 2014. The court did not mention the ICWA-020 form, let alone order Father to complete it. There is nothing in the record to indicate that Father was told of or provided with the form, or told to complete the form at any point in the proceedings. Nor does the record disclose any excuse or justification for the court's failure to make the required order. By failing to do so, the court erred.
In addition to the specific duties imposed upon the social worker in rule 5.481(a)(1) and upon the court in rule 5.481(a)(2), the Rules of Court (and, as of Jan. 2007, Welf. & Inst. Code, § 224.3) impose upon both the social worker and the court the more generally phrased "affirmative and continuing duty to inquire whether a child . . . may be an Indian child." (Rule 5.481(a).) We do not need to decide whether this language requires that an inquiry be made at each hearing. Here, the record before us indicates that the court made no effort to inquire of Father at any hearing or otherwise. Thus, even under a narrow interpretation of the rule, the affirmative and continuing duty requirement was not satisfied.
However, we determine whether the error was harmless. As discussed above, the J.N. court found that the mother was never asked about her Indian ancestry. The court concluded reversal was required, and explained, because it "refuse[d] to speculate about what mother's response to any inquiry would be . . . ." (J.N., supra, 138 Cal.App.4th at p. 461.) In Rebecca R., supra, 143 Cal.App.4th at p. 1431, this court rejected the appellant father's reliance on this aspect of J.N., stating: "The sole reason an appellate court is put into a position of 'speculation' on the matter is the parent's failure or refusal to tell us. Father complains that he was not asked below whether the child had any Indian heritage. Fair enough. But, there can be no prejudice unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry. [¶] Father is here, now, before this court. There is nothing whatever which prevented him, in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not. [¶] In the absence of such a representation, the matter amounts to nothing more than trifling with the courts. [Citation.] The knowledge of any Indian connection is a matter wholly within the appealing parent's knowledge and disclosure is a matter entirely within the parent's present control. The ICWA is not a 'get out of jail free' card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands." (Rebecca R., supra, 143 Cal.App.4th at p. 1431, italics omitted.) In the absence of an affirmative representation, the court concluded, "there can be no prejudice and no miscarriage of justice requiring reversal." (Ibid.)
Rebecca R. is distinguishable. Essential to Rebecca R.'s prejudice analysis is the fact that the father was complaining on appeal that he was not asked about his Indian ancestry. Here, Mother does not argue that she was not asked about her Indian heritage. Indeed, she indicated below that she does not have any Indian ancestry. Rather, she contends that Father was not asked about his Indian heritage. Thus, unlike the situation in Rebecca R., we cannot say that the "knowledge of any Indian connection is a matter wholly within the appealing parent's knowledge . . . ." (Rebecca R., supra, 143 Cal.App.4th at p. 1431.) Indeed, there is nothing in the record to indicate that Mother has any knowledge of Father's ancestry. Father, the parent who presumably does have knowledge about his ancestry, is not before this court. There is no basis for concluding that Mother could make the kind of representation or offer of proof called for in Rebecca R. Under these circumstances, a remand is required.
III
DISPOSITION
We order a limited remand with directions, as follows: The juvenile court is directed to order DPSS to ask Junior's father whether the child may be an Indian child or may have Indian ancestors. If, following such inquiry, the court knows or has reason to know that the child may be an Indian child, the court shall order DPSS to give notice in compliance with ICWA and related federal and state law. Once the juvenile court finds that there has been substantial compliance with the notice requirements of ICWA, it shall make a finding with respect to the child as to whether the child is or is not an Indian child. (See 25 U.S.C.A. § 1903(4).) If at any time within 60 days after notice has been given there is a determinative response that the child is an Indian child, the juvenile court shall find the child is an Indian child. (Welf. & Inst. Code, § 224.3, subd. (e).) The court shall set a new section 366.3 hearing and conduct all further proceedings in compliance with ICWA and all related federal and state law. If there is no determinative response within 60 days after notice has been given, or if there is a response that the child is not an Indian child, the juvenile court shall find the child is not an Indian child. (§ 224.3, subd. (e)(3).) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.