Opinion
No. A147811
02-23-2017
In re K.D., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. MARK D., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 3858-DEP)
Mark D. (Mark), father of K.D., a boy who turns thirteen in March 2017, appeals from the juvenile court's February 3, 2016 ruling that the Indian Child Welfare Act (ICWA) did not apply to K.D.'s dependency case, brought pursuant to Welfare and Institutions Code section 300. The court issued its ruling after we reversed a previous ruling to ensure that the Sonoma County Human Services Department (Department) made reasonable inquiry as required by law of Mark and his extended family about K.D.'s possible paternal Native American heritage and gave notice as required by ICWA. Mark argues that after remand, the Department did not satisfy its inquiry duty because it did not make a sufficient effort to interview his mother, K.D.'s paternal grandmother (paternal grandmother) as required by section 224.3, subdivision (c) and California Rules of Court, rule 5.481(a)(4)(A). We agree and reverse the court's ruling.
All statutory references in this opinion are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
I.
Background of the Previous Appeal
As requested by the parties, we take judicial notice of our unpublished opinion in a previous appeal by Mark and K.D.'s mother (mother) from the same dependency proceeding below. (Evid. Code, § 452, subd. (d).) That opinion is In re K.D., filed on September 16, 2015, in case number A143496. The following background facts are from that opinion:
In early 2012, K.D., then almost eight years old, was detained from mother's care. The Department filed a section 300 petition alleging Mark was incarcerated and mother had failed to protect K.D.'s half-brother (brother) from her boyfriend, who was suspected of physically abusing brother. At the first hearing in the case, mother indicated that she had Native American heritage and informed the court that father was " 'Native American as well, but I am not sure how much.' " The court found that ICWA did not apply to the case.
After mother separated from her boyfriend, K.D. was returned to her custody and she received family maintenance services. In December 2012, mother became homeless and placed K.D. in the care of brother's father without informing the Department. The Department filed a supplemental petition alleging mother could not provide a safe and stable living arrangement for K.D., K.D. was placed with his maternal grandparents and the court ordered reunification services for mother.
In February 2014, the court terminated these reunification services and scheduled a section 366.26 hearing to establish a permanent plan for K.D. In September 2014, after additional proceedings regarding matters not relevant here, the court terminated Mark's and mother's parental rights, found that K.D. was likely to be adopted, and ordered adoption as his permanent plan.
In the previous appeal, Mark contended that the Department had reason to know that K.D. had Native American heritage through him, but that the Department, although required by ICWA and state law, had not inquired about this heritage of him or paternal grandmother. In response, the Department requested that we take judicial notice of documentation purportedly showing that it had made sufficient inquiries and provided sufficient ICWA notice to tribes (based on information about mother's own Native American heritage) in April 2015. This documentation included a declaration by a Department social worker, Yesenia Almaras, in which she stated in relevant part: "In April, 2015, social worker Rose Esche, attempted to reach [Mark] and . . . the paternal grandmother, to inquire about any paternal Indian heritage, however neither the biological father nor the paternal grandmother returned those calls."
We declined to take judicial notice of those documents. We concluded that the declaration raised more evidentiary questions than answers, requiring review in the court below first under In re Robert A. (2007) 147 Cal.App.4th 982, since the declaration did not explain how Almaras had personal knowledge of Esche's actions, and did not state how many calls were made or what messages were left. The parties do not indicate that this declaration was further considered below after remand, it is not in the record of the present appeal, and the parties do not point to anything in the record indicating the Department attempted to meet with or attempted to call paternal grandmother to inquire about K.D.'s possible Native American heritage.
We reversed the lower court's ruling so that the juvenile court could ensure that the Department had made reasonable inquiry of Mark and his extended family as to possible Native American heritage and gave notice as required by ICWA.
II.
Events After Remand
After remand, in January 2016, the Department reported to the juvenile court that K.D. "is a friendly and engaging boy who continues to thrive in the care of his potential adoptive parents," who were his maternal grandparents. It maintained its recommendation that the court set adoption as a permanent plan for K.D.
The Department reported to the juvenile court that it had contacted various tribes, the Department of the Interior, and the Bureau of Indian Affairs in an effort to determine if K.D. was enrolled or was eligible for enrollment in a tribe. These notices are not at issue in this appeal.
The Department also reported to the court that on November 3, 2015, the Department sent letters by certified mail to Mark at a prison and to paternal grandmother at a residential address in Santa Rosa, California as part of its duty to inquire regarding K.D.'s Native American heritage, and that Mark responded by letter. The Department submitted these three letters to the juvenile court.
The substance of the Department's letters to Mark and paternal grandmother are virtually identical. The letter to paternal grandmother was sent to what the Department understood was her address. According to the Department's counsel representation at the February 3, 2016 session of the subject hearing, Mark's counsel agreed this was paternal grandmother's address. The letter was from Almaras and typed on Department letterhead. In it, Almaras identified herself and stated she was writing "in regards to your grandson [K.D.]" Almaras indicated the Department, "[i]n an effort to determine if [K.D.] is enrolled or eligible for enrollment in a tribe," had contacted various tribes and the Department of the Interior, and received certain responses indicating that K.D. was not a registered tribal member or eligible to be one. She then stated: "In an effort to ensure the correct tribe possibly associated with your family is contacted, could you please let me know of any additional tribes that [K.D.] may be a registered member of or is eligible for membership. If you do not know and there is someone in your family who would have any information please provide me with their name and contact information. Please send any additional information you may have to me in the self-addressed stamped envelope provided. [¶] If I do not hear from you by November 30, 2015, I will assume you have no further information to provide. If you have any questions please contact me . . . ."
The Department reported that it did not receive any response to its letter from paternal grandmother. It later filed with the court a receipt indicating the letter was received on November 6, 2015, by someone who signed the receipt. The signature is illegible.
In Mark's letter, handwritten and dated November 14, 2015, he stated in relevant part that he was never a registered member of a tribe, that he tried to reach out to his mother for information about his "Indian background" but she did not write back, and that his mother did not seem to want to help him in the matter. Mark also wrote that his father had passed away when Mark was four years old and Mark did not have any family or friends who could give him information about his Native American heritage.
Subsequently, the Department filed a memorandum with the court in which Almaras reported that Mark's counsel had referred her to a local attorney who might have more information on Mark's possible Native American ancestry. Almaras called his office and told his receptionist the information she was seeking, but the attorney did not contact Almaras.
At the subsequent hearing on whether the Department had satisfied its ICWA-related inquiry and notice obligations (held in multiple sessions on different days), Mark's counsel argued, among other things, that, given the illegibility of the signature on the certified mail receipt, paternal grandmother might not have received the Department's letter. Mark's counsel also indicated he would provide the Department with the phone number Mark had for paternal grandmother, but there is no indication in the record that the Department attempted to reach her by telephone.
The juvenile court ruled without explanation at the conclusion of the hearing, on February 3, 2016, that ICWA did not apply to the case. It reinstated its previous orders terminating parental rights. Mark subsequently filed a timely notice of appeal from that ruling.
DISCUSSION
Mark argues that we should again reverse the juvenile court's ruling, this time because the Department has not satisfied its ICWA-related duty to inquire of Mark's extended family about K.D.'s Native American heritage, specifically of his mother. The Department contends it satisfied its duty and in any event, its information about Mark's heritage was too uncertain to require that it make these inquiries. We agree with Mark.
I.
The Relevant Legal Standards
"ICWA reflects a congressional determination that it is in the best interests of Indian children to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations. [Citations.] It is intended to protect Indian children and to promote the stability and security of Indian tribes and families. [Citations.] 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(4); Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal definitions].)" (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1385.)
The juvenile court " ' "needs only a suggestion of Indian ancestry to trigger the notice requirement" ' " to Native American tribes under ICWA. (In re J.M. (2012) 206 Cal.App.4th 375, 380.) The social worker is required to gather information for the notice by interviewing the child's parents and extended family members. (In re I.B. (2015) 239 Cal.App.4th 367, 376.)
Along with this notice requirement, the court and the county welfare department "have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . has been[] filed is or may be an Indian child in all dependency proceedings . . . ." (§ 224.3, subd. (a), italics added.) A social worker's duty of inquiry is triggered by having a reason to know that an Indian child is the subject of the proceeding. Circumstances that may provide this reason to know include that "[a] person having an interest in the child . . . 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." (Id., subd. (b)(1).) "If the court [or] social worker . . . knows or has reason to know that an Indian child is involved, the social worker . . . 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 . . . and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224 .2 . . . ." (Id., subd. (c), italics added.) The information required in section 224.2, subdivision (a)(5), which must be in a notice about an "Indian child," includes: "All names known of the Indian child's biological parents, grandparents, and great-grandparents . . . 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." (§ 224.2, subd. (a)(5)(C).)
California Rules of Court, rule 5.481(a)(4)(A) states this "interview" requirement as well: "If the social worker . . . knows or has reason to know that an Indian child is or may be involved, [the social worker] must make further inquiry as soon as practicable by: [¶] (A) Interviewing the parents . . . and 'extended family members' as defined in 25 United States Code section[] . . . 1903(2), to gather the information listed in Welfare and Institutions Code section 224.2(a)(5) . . . ." By these terms, California Rules of Court, rule 5.481(a)(4) makes explicit that "the duty to inquire is triggered by a lesser standard of certainty regarding the minor's Indian child status ('is or may be involved') than is the duty to send formal notice to the Indian tribes ('is involved')." (In re Alice M. (2008) 161 Cal.App.4th 1189, 1200.) Further, one of the ICWA statutes cited in California Rules of Court, rule 5.481(a)(4)(A), 25 United States Code section 1903(2), makes clear this duty extends to grandparents. It defines an "extended family member" to include a person who has reached the age of 18 "who is the Indian child's grandparent." (Italics added.)
II.
Analysis
Mark argues that the Department's requirement under section 224.3, subdivision (c) and California Rules of Court, rule 5.481(a)(4)(A) to "interview" grandmother cannot be satisfied by anything other than "direct verbal contact" and plainly does not mean " 'send a letter.' " Mark further argues that "the [Department's] failure to even try to interview the [parental grandmother], when her address was known and her phone number was either known or accessible, cannot . . . comport with the intent" of section 224.3, subdivision (c) or with our direction in our previous appeal.
We do not further address Mark's characterization of our opinion in the previous appeal other than to note that the vagueness of the Department's tardy evidentiary submission on the interview issue to us was a basis to deny its request that we take judicial notice of this submission. To the extent he argues we held anything other or more than that on the interview issue, he is mistaken.
When the Legislature passes a statute, it is presumed that "every word, phrase and provision employed in the statute is intended to have meaning." (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1206-1207.) "Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage." (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22; see also People v. Cobb (2010) 48 Cal.4th 243, 253 ["courts should, if possible, accord meaning to every word and phrase in a statute to effectuate the Legislature's intent"].) " 'An interpretation that renders statutory language a nullity is obviously to be avoided.' " (Tuolomne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1039.)
The word "interview" has been defined as "a meeting face to face: a private conversation," and "a formal meeting for consultation." (Webster's 3d New Internat. Dict. (2002) pp. 1183-1184.) Nonetheless, we are not blind to the elasticity of the term in modern times, and do not discount the possibility that, faced squarely with the issue, a court could define it to include a "written" interview. (See, e.g., People v. Newton (1970) 9 Cal.App.3d Supp. 24, 26-27 [referring to an expert witness's obtaining " '2000 written interviews' " in the course of his surveying]; Mills v. Health Care Serv. Corp. (7th Cir. 1999) 171 F.3d 450, 458 [referring to a company's "oral and written interviews"].)
Section 224.3 was enacted in 2006, and it became effective on January 1, 2007. (Stats. 2006, ch. 838, § 32.)
We, however, do not need to decide this question of statutory interpretation because the Department did not show that it sufficiently attempted to satisfy its interview requirement regarding paternal grandmother, whether or not this requirement can be satisfied by written as well as verbal inquiry.
The court ruled that ICWA did not apply. We review this determination for substantial evidence. (See In re E.W. (2009) 170 Cal.App.4th 396, 403-404.) In doing so, we keep in mind that it was premised on the court's implicit conclusion that the Department satisfied its interview requirement, or at least did all it could reasonably have been expected to do to satisfy the requirement. (See In re Louis S. (2004) 117 Cal.App.4th 622, 630 ["Notice is meaningless if no information or insufficient information is presented to the tribe to make that determination"]; In re K.M. (2009) 172 Cal.App.4th 115, 119 (K.M.) [rejecting the argument that an agency should have interviewed a child's great-grandmother because the agency "did all that can or should be reasonably expected of it to meet its obligation to the child, to the family, to the tribes and to the court"].)
There is no substantial evidence that the Department made all reasonable efforts to satisfy its interview requirement regarding paternal grandmother. It is reasonable to expect the Department would have first tried to reach paternal grandmother by phone, since the back and forth of a verbal interview, whether in person or by phone, allows follow-up questions and clarifications that would inevitably yield information more efficiently than a written interview (or two or three). It is equally reasonable to expect that the Department, if it could not reach paternal grandmother by phone, would have attempted to leave messages about the reason for its calls and how to contact the Department.
Similarly, it is reasonable to expect that the Department, if such efforts via phone were unsuccessful, would have attempted to contact paternal grandmother in writing and asked her to call the Department for an interview or, if she could or would not, to answer written interview questions. It is equally reasonable to expect the Department would have ensured paternal grandmother received such a written communication, and that any written interview would have asked questions designed to elicit all the information called for by section 224.2, subdivision (a)(5). This includes not only who might have information about K.D.'s Indian heritage but also "[a]ll names known of the Indian child's biological . . . grandparents, and great-grandparents . . . 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." (§ 224.2, subd. (a)(5)(C).)
None of this occurred here. The Department merely sent the paternal grandmother a letter by certified mail with a self-addressed envelope, asked her if she had information about K.D.'s Indian heritage and knew of "someone in your family" who had such information, told her to call if she had questions and stated that the Department would assume she had no such information if she did not contact it. The record does not establish that paternal grandmother actually received this letter. The letter does not comport with the substance of the Department's interview requirement. Also, the Department's decision to take paternal grandmother's silence as indicating she did not have the information requested renders her failure to contact the Department insignificant since her silence could equally mean she did not receive the letter.
The Department acknowledges that, assuming it had a duty to interview paternal grandmother, it had an obligation under K.M. to do all it reasonably could have done to interview her. It contends it did so by attempting to contact her by phone and letter. This is incorrect. The record does not indicate the Department made any effort to contact paternal grandmother by phone.
The Department contends without providing a citation to the record that it attempted to reach paternal grandmother by phone. This is an apparent reference to what Almaras stated in the declaration that the Department asked us to take judicial notice of in the previous appeal. We cannot consider that declaration here because we declined to take judicial notice of it in the previous appeal, we did not rely on it in our previous opinion, it is not in the record of the present appeal, and no one has requested that we take judicial notice of it here. Even if the declaration were properly before us, Almaras's hearsay description of another social worker's attempt to call paternal grandmother is too vague to establish that the Department acted in compliance with its interview requirement.
As for its letter, the Department's contentions do not go beyond what we have already addressed, except for its contention that we should presume the letter was delivered to paternal grandmother pursuant to Code of Civil Procedure section 1020. That provision states: "Any notice required by law, other than those required to be given to a party to an action or to his attorney . . . may be given by sending the same by registered mail with proper postage prepaid addressed to the addressee's last known address with request for return receipt, and the production of a returned receipt purporting to be signed by the addressee shall create a disputable presumption that such notice was received by the person to whom the notice was required to be sent." This contention is unpersuasive for three reasons: First, it applies to a notice required by law, not an interview required by section 224.3, subdivision (a) and California Rules of Court, rule 5.481(a)(4)(A); second, even if Code of Civil Procedure section 1020 did apply to the letter, the signature on the return receipt is illegible and, therefore, does not "purport[] to be signed by the addressee"; and, third, even if the letter was delivered, it failed to seek the information required by law, as we have also discussed.
The Department also argues that it had no interview requirement to begin with because it did not have a "reason to know" K.D. was or might be an Indian child, given that the only relevant information it purportedly had was Mark's "speculation" that he had Indian heritage. The Department contends that mere speculation is not sufficient to trigger a department's duty to inquire, based on case law regarding ICWA-related notice and inquiry requirements. (See In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520-1521 [noting that both the federal regulations and state law "require more than a bare suggestion that a child might be an Indian child" and that father had retracted his initial, tentative claim of Indian heritage]; In In re Hunter W. (2011) 200 Cal.App.4th 1454, 1468-1469 [mother's claim that she "may" have Indian heritage through her father and deceased paternal grandmother, without being able to provide any other information, was too speculative to trigger ICWA-related inquiry and notice requirements]; In re J.D. (2010) 189 Cal.App.4th 118, 123, 125 [ICWA notice not required because paternal grandmother's statement to the Department that her grandmother referred to Native American ancestry was "too vague, attenuated and speculative to give the dependency court any reason to believe the children might be Indian children"]; In re O.K. (2003) 106 Cal.App.4th 152, 153-157 [ICWA notice not required, as grandmother's statement in court that father "may have Indian in him" was too vague and speculative].)
This "no inquiry requirement" argument lacks merit. The cases the Department cites (two of which discussed statements by extended family members to the Department or the court, unlike here) involved statements that were on their face speculative or, in the case of the father in In re Jeremiah G., were retracted. That is not the case here. The Department ignores that it had additional information that K.D. might be an Indian child. As we recounted in our opinion in the previous appeal, mother stated in the first hearing of the proceedings that father was "Native American as well"; her only speculation was that she was "not sure how much." As indicated by our discussion in that opinion, this triggered the Department's duty to inquire of Mark and his extended relatives. Mother was "[a] person having an interest in the child . . . [who] provide[d] 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." (See § 224.3, subd. (b)(1).)
Also, contrary to the implication of the Department's contentions, Mark did not write anything in his letter to the Department that was speculative, or that contradicted or rendered mother's statement that he had Native American heritage speculative; rather, Mark merely wrote that he was not a registered member of a tribe. Further, Mark's reference in his letter to his efforts to contact paternal grandmother about his "Indian" background suggests he thought she had relevant information about such a background, further indicating the Department had a duty to inquire under the circumstances.
In short, there is no substantial evidence that the Department complied with its duty to inquire of Mark's paternal grandmother about Mark's Native American heritage by interviewing her, including no substantial evidence that it made all reasonable efforts to do so. Therefore, the juvenile court's ICWA ruling must be reversed.
DISPOSITION
The ruling appealed from is reversed and this matter is remanded to the juvenile court for further proceedings consistent with this opinion.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.