Opinion
A146946
08-19-2016
In re NICHOLAS E., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff and Respondent, v. L.E., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43035)
L.E. (mother) appeals from an order after dispositional hearing removing her son from her custody and adjudging him a dependent of the court. Mother contends the Solano County Department of Health and Social Services (Department) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) because its notice to the Bureau of Indian Affairs (BIA) omitted available family history information. We agree, and remand with directions to order the Department to comply with ICWA's notice requirements.
BACKGROUND
On May 27, 2015, the Department filed a juvenile dependency petition on behalf of newborn Nicholas. It was alleged mother was unable to provide for Nicholas due to her extensive history of substance abuse and undiagnosed mental health issues (Welf. & Inst. Code, § 300, subd. (b)), and an older child had a history of child welfare proceedings in Nevada (id., subd. (j)).
In a detention report filed the same day, the Department noted mother "reported she has Native American Ancestry on her mother's side," although she did not know the tribe. Her mother (grandmother), however, stated that she had no Native American ancestry.
A social worker spoke with grandmother by telephone on May 25, 2015. Grandmother reported that neither of her parents had Native American ancestry. She provided the Department her parents' names, but "would not provide" additional information regarding her mother and "did not want to provide" any additional information regarding her father. Grandmother further stated that she did not believe mother's father had any Native American ancestry, and she "refused to provide" his contact information.
The juvenile court ordered Nicholas detained. In an order filed June 1, 2015, the juvenile court marked a box indicating the Department "has made active inquiries to obtain information regarding the child's Indian ancestry."
In a jurisdiction/disposition report filed June 29, 2015, the Department noted that mother completed paperwork with the child protective services in Clark County, Nevada in 2012 in which she indicated she had no known Native American heritage. At the jurisdictional hearing on July 2, 2015, the juvenile court sustained the petition.
In a written order filed July 8, 2015, the court found, "There is reason to believe the child may be of Indian ancestry, and the notice of the proceedings was provided to the Bureau of Indian Affairs as required by law." In an order filed September 15, 2015, the court found the child "may be an Indian child, and notice of the proceeding and the right of the tribe to intervene was provided as required by law."
On July 14, 2015, a Department social worker filed a declaration in support of an expedited homestudy for grandmother, who resided in Georgia, under the Interstate Compact on the Placement of Children (ICPC). The social worker wrote that grandmother had traveled to Solano County to attend a court hearing, visit Nicholas, and facilitate his placement in her home. The declaration included grandmother's address in Georgia.
On September 18, 2015, the Department filed an ICWA compliance document with a copy of a certified mail receipt showing the BIA received mail on August 3, 2015. In our record, the compliance document does not include a copy of the material sent to the BIA, but presumably the Department sent a copy of the "Notice of Child Custody Proceeding for Indian Child" (ICWA-030 form) that it filed in the juvenile court July 28, 2015. The ICWA-030 form included grandmother's name but not her address, birth date, or birth place.
In an addendum report filed October 21, 2015, the Department reported that the Georgia Division of Family and Children Services (DFCS) had issued a denial of placement with grandmother "due to safety concerns in her home." However, the DFCS wrote that grandmother "could be a recommendable choice for the placement" if the identified concerns were addressed. Grandmother told a social worker her home would be ready for another home inspection in October 2015. The Department recommended placement with grandmother upon approval under the ICPC process.
At a dispositional hearing on November 19, 2015, the Department informed the court that the Georgia DFCS had not conducted a second inspection of grandmother's home, and Nicholas could not be placed with grandmother without the DFCS's approval. The juvenile court declared Nicholas a dependent child of the court, ordered him to remain removed from mother's custody, and ordered reunification services for mother.
In a written order following the dispositional hearing filed November 30, 2015, the juvenile court marked a box indicating Nicholas "may be an Indian child, and notice of the proceeding and the right of the tribe to intervene was provided as required by law."
On December 3, 2015, mother filed a notice of appeal from the juvenile court's dispositional order.
DISCUSSION
Mother contends the juvenile court erred by issuing a dispositional order in the absence of compliance with the notice requirements of ICWA. The Department does not argue the ICWA-030 form sent to the BIA was adequate, but claims no notice was required in the first place.
"ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. [Citations.] If there is reason to believe a child that is the subject of a dependency proceeding is an Indian child, ICWA requires that the child's Indian tribe be notified of the proceeding and its right to intervene. (25 U.S.C. § 1912(a); see also Welf. & Inst. Code, § 224.3, subd. (b).)" (In re A.G. (2012) 204 Cal.App.4th 1390, 1396.) When, as in the current case, the tribe cannot be determined, notice must be sent to the BIA. (25 U.S.C. § 1912, subd. (a).)
"Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies. . . . Without notice, these important rights granted by the Act would become meaningless." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)
"It is essential to provide the Indian tribe [or BIA] with all available information about the child's ancestors, especially the one with the alleged Indian heritage. [Citation.] Notice . . . must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data." (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) "To fulfill its responsibility, the [Department] has an affirmative and continuing duty to inquire about, and if possible obtain, this information. [Citations.] Thus, a social worker who knows or has reason to know the child is Indian 'is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required . . . .' That information 'shall 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.' ([Welf. & Inst. Code,] § 224.2, subd. (a)(5)(C).) Because of their critical importance, ICWA's notice requirements are strictly construed." (In re A.G., supra, 204 Cal.App.4th at pp. 1396-1397, italics added.)
Here, the ICWA-030 form listed mother's name, three former addresses, and her birth date, but not birth place. Grandmother's name was listed, but the Department wrote, "No information available" for her current and former addresses, birth date, and birth place. Yet, by July 14, 2015, the Department knew grandmother's current address in Georgia. Further, a social worker reported that grandmother had travelled to Solano County "to do all things necessary to facilitate the placement of the child in her home." A Department social worker easily could have asked grandmother for additional information such as her birth date and place, but we see nothing in the record indicating such information was requested. Under these circumstances, the Department failed to fulfill its continuing duty to obtain information in compliance with ICWA inquiry and notice requirements. (In re A.G., supra, 204 Cal.App.4th at p. 1397 [where agency failed to obtain information from relatives who were already involved in the dependency proceedings and failed to identify these relatives in its notices to the tribes, "[e]rror was obvious."].)
The Department does not claim the ICWA-030 form sent to the BIA met the requirements of ICWA. Instead, it argues mother's statement that she had Native American ancestry was too vague and speculative to trigger the notice requirements. We are not persuaded.
The Department relies on In re O.K. (2003) 106 Cal.App.4th 152, in which the paternal grandmother said, apparently referring to the father of the minors, " 'the young man may have Indian in him' " because " 'where [we're] from it is that section so I don't know about checking that.' " The juvenile court made a finding that there was no reason to believe the minors were Indian children. (Id. at p. 155.) The Court of Appeal concluded there was no violation of ICWA's notice requirements because the information the paternal grandmother provided "was insufficient to give the court reason to believe that the minors might be Indian children." (Id. at p. 157.) Here, in contrast, mother "reported she has Native American Ancestry on her mother's side." This is not vague or speculative on its face, and was sufficient to trigger the duty to inquire and to provide notice. Moreover, the juvenile court found there was reason to believe Nicholas may be of Indian ancestry. This finding was supported by substantial evidence, mother's statement.
The Department next points to evidence that grandmother said she did not have Indian ancestry, that mother previously filled out paperwork in 2012 in which she attested she had no Indian ancestry, and that mother had mental health issues that rendered her unreliable. The Department argues this evidence "gave no reason to believe Nicholas was an Indian child under ICWA." But the juvenile court consistently found that Nicholas "may be an Indian child" and that notice was provided as required by law. As mother argues, it is not our role to reevaluate or set aside this finding. (In re Matthew S. (1988) 201 Cal.App.3d 315, 321 ["We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court."].) Given the juvenile court finding that ICWA notice was required, the Department had a duty to inquire and provide adequate notice.
Mother contends the dispositional order must be conditionally reversed. However, "the only order which would be subject to reversal for failure to give notice would be an order terminating parental rights." (In re Brooke C. (2005) 127 Cal.App.4th 377, 385-386 [affirming dispositional order and remanding with directions to comply with ICWA's notice requirements].) There is no need to reverse the dispositional order in this case.
DISPOSITION
The dispositional order is affirmed, and the matter is remanded to the juvenile court with directions to order the Department to comply with the notice and inquiry provisions of ICWA. After proper notice under ICWA, if it is determined that this child is an Indian child and ICWA applies to these proceedings, mother is entitled to petition the juvenile court to invalidate orders that violated ICWA. (See 25 U.S.C. § 1914; Cal. Rules of Court, rule 5.486 [petition to invalidate orders].) Should any of the identified tribes determine that the child is an Indian child, or other information show the child to be an Indian child as defined by ICWA, the juvenile court shall conduct new jurisdiction and disposition hearings in conformity with ICWA.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.