Opinion
A155682
12-21-2018
In re A.R., a Person Coming Under the Juvenile Court Law. M.B., Petitioner, v. SUPERIOR COURT OF THE COUNTY OF ALAMEDA, Respondent. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JD-028398-02)
M.B. (Mother) seeks writ relief from an order terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. She contends the Alameda County Social Services Agency (Agency) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA; 25 U.S.C. 1901 et seq.). We deny the petition on the merits.
BACKGROUND
The Agency filed a dependency petition regarding A.R. in June 2017. The petition alleged Mother, a minor herself and the subject of a guardianship, suffered from depression and had attempted suicide. A.R., 10 months old at the time, was placed in foster care.
A.R.'s maternal grandmother, with whom Mother and A.R. lived, reported "there may be Native American ancestry in her family but she does not have any other information." The court ordered Mother to submit an ICWA "Parental Notification of Indian Status" form. Mother did so in June 2017, indicating "I have no Indian ancestry as far as I know."
The Agency sent notice of the dependency proceeding to the Bureau of Indian Affairs and the Secretary of the Interior, providing A.R.'s name and date of birth, Mother's name and other names by which she was known, and her date and place of birth. Under Mother's "[t]ribal membership or enrollment number," the Agency indicated the Eastern Band of Cherokee Indians, United Keetoowah Band of Cherokee, Cherokee Nation and Bureau of Indian Affairs. Under Mother's "[t]ribe or band," the Agency stated "Bureau of Indian Affairs, No Tribe Specified."
The Bureau of Indian Affairs responded with a form letter indicating there was "insufficient information to determine tribal affiliation . . . or you have not identified a tribe."
Following a jurisdictional and dispositional hearing, the court found true the allegation under Welfare and Institutions Code section 300, subdivision (b), struck the allegation under section 300, subdivision (g), and adjudged A.R. a dependent child. The court ordered A.R. "shall be under the supervision of the mother," and ordered family maintenance services. The court found that ICWA did not apply.
The Agency filed a supplemental petition in February 2018. This petition alleged Mother had contacted the social worker and "reported that although it is a difficult decision she did not feel that she could continue caring for [A.R.]" Mother reported she was "overwhelmed in caring for her daughter," and "unhappy with her living situation." A.R. had been "informally placed" with her former foster parent since the beginning of January 2018. The court ordered A.R. detained.
At a subsequent hearing, the court found true the allegations in the supplemental petition and ordered reunification services for Mother. The Agency's report indicated that the court had previously found, in September 2017, that ICWA did not apply. The court made no further findings regarding ICWA.
In August 2018, the Agency submitted a report for the six month review hearing. A.R. was still in foster care. The Agency reported Mother had been "inconsistent in following the visitation plan." Mother was still in high school, but did not attend consistently, nor did she consistently participate in individual therapy. Mother had been hospitalized the previous month for an infection and had expressed suicidal ideation while there.
The Agency initially recommended continued reunification services, but changed its recommendation and sought termination of reunification services and the setting of a Welfare and Institutions Code section 366.26 hearing.
At the contested hearing, Mother did not dispute that reasonable services had been provided. Mother's counsel, while "not minimizing the fact that [Mother] did miss a substantial part of her other case plan," asserted she had "re-engaged" in services in the two weeks prior to the hearing and had been "really looking at how can she really continue this transition now that she's 18."
The court terminated reunification services and set a Welfare and Institutions Code section 366.26 hearing.
DISCUSSION
Adequacy of Inquiry and Notice
Mother asserts the Agency failed to conduct a sufficient inquiry under ICWA and did not provide enough information in the notices it did send.
"The federal Indian Child Welfare Act of 1978 . . . provides: '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.' (25 U.S.C. § 1912(a).) This notice requirement, which is also codified in California law (Welf. & Inst. Code, § 224.2 . . .), enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives the required notice." (In re Isaiah W. (2016) 1 Cal.5th 1, 5.)
The purpose of the ICWA notice provisions is "to enable the tribe or the [Bureau of Indian Affairs] to investigate and determine whether the child is in fact an Indian child. [Citation.] Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership. [Citations.] [¶] . . . [B]oth the federal ICWA regulations (25 C.F.R. § 23.11(d)(3) (2008)) and [Welfare and Institutions Code] section 224.2, subdivision (a) require the agency to provide all known information concerning the child's parents, grandparents and great-grandparents. . . . [O]mission of information concerning non-Indian relatives is [not] necessarily prejudicial . . . [because it is] typically less relevant to the tribe's determination of the child's eligibility for membership than information concerning the child's Indian ancestors." (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)
In general, the lack of compliance with the notice requirements of ICWA requires remand to the juvenile court, but not reversal of a jurisdictional or dispositional order. " '[V]iolation of the notice required by the ICWA is not jurisdictional error . . . the only order which would be subject to reversal for failure to give notice would be an order terminating parental rights.' " (In re Veronica G. (2007) 157 Cal.App.4th 179, 187.) Thus, where there is an ICWA notice violation, the "appropriate remedy is to remand for ICWA compliance." (Id. at p. 188; see In re Damian C. (2009) 178 Cal.App.4th 192, 199 (Damian C.) ["Although we conclude the matter must be remanded with directions to the court to ensure ICWA compliance, we decline to reverse the jurisdictional and dispositional orders."].)
" '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.' [Citation.] [Welfare and Institutions Code] [s]ection 224.3, subdivision (a) places an 'affirmative and continuing duty' on the court and county welfare department in a dependency proceeding to 'inquire whether a child . . . is or may be an Indian child. . . .' Thus, 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, Indian custodian, and extended family members . . . and contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility.' ([Welf. & Inst. Code,] § 224.3, subd. (c).)" (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466 (Hunter W.).)
However, a vague, attenuated, or speculative assertion of possible tribal ancestry does not necessarily trigger ICWA's protections. (In re J.L. (2017) 10 Cal.App.5th 913, 923; Hunter W., supra, 200 Cal.App.4th at p. 1468 [no duty to inquire further when mother said she "may have Indian ancestry through her father," but could not identify a tribe or a relative who was a tribe member, and could not identify others who knew more]; In re J.D. (2010) 189 Cal.App.4th 118, 123, 125 [no duty when paternal grandmother said she was told by her own grandmother she had Indian ancestry, but could not identify the tribe and had no living relatives to provide additional information]; In re O.K. (2003) 106 Cal.App.4th 152, 157 [no reason to believe minor was an Indian child when paternal grandmother said father " 'may have Indian in him' " without basing this on any known Indian ancestors].)
Mother cites Damian C., supra, 178 Cal.App.4th 192 and In re Alice M. (2008) 161 Cal.App.4th 1189 (Alice M.) as counterpoints to the cases just cited. In Damian C., a mother's notification of Indian status stated: " 'Pasqua Yaqui—enrollment is currently closed' " and that the maternal grandfather was " 'descended from tribe.' " (Damian C., at p. 195.) When interviewed, the grandfather said he was not involved in tribal activities. He had heard conflicting accounts about whether his own father, the minor's great grandfather who was still living but out of contact, was Yaqui or Navajo. (Id. at pp. 195-196.) The appellate court concluded the agency had reason to know the minor might be an Indian child, which triggered further inquiry and notice to Yaqui and Navajo tribes. (Id. at p. 199.)
Similarly, in Alice M., the minor's mother indicated in the JV-130 form that Alice "is or may be a member of, or eligible for membership in, an Apache and/or Navajo tribe." (Alice M., supra, 161 Cal.App.4th at p. 1198.) The court concluded, "The ambiguity in the form and the omission of more detailed information, such as specific tribal affiliation or tribal roll number, do not negate appellant's stated belief that Alice may be a member of a tribe or eligible for membership." (Ibid.)
In this case, A.R.'s maternal grandmother stated only "there may be" some Indian ancestry, but did not identify a tribe, a tribe member or potential tribe member in her family tree, or a living relative to contact. The maternal grandmother stated she had no other information. Mother, in turn, stated, "I have no Indian ancestry as far as I know." Thus, unlike in Damian C. and Alice M., there was no tribe or potential tribe member identified to investigate. Given that the maternal grandmother's scant information was both speculative and non-specific, the Agency had no duty to inquire further.
The Agency filed a request for judicial notice of two documents filed in an earlier dependency proceeding involving Mother when she was a minor, to demonstrate any error was harmless. Those documents are an "excerpt of the 366.26 WIC report filed on March 3, 2011," and a "Notice of Child Custody Proceeding For Indian Child" with responses from the Bureau of Indian Affairs and from three Cherokee tribes indicating Mother was not a member of the tribe or eligible for membership. We deny the request for judicial notice. "While judicial notice may be taken of court records (Evid. Code, § 452, subd. (d)), the truth of matters asserted in such documents is not subject to judicial notice." (Board of Pilot Commissioners v. Superior Court (2013) 218 Cal.App.4th 577, 597.) Moreover, given our conclusion, we need not reach the issue of harmless error.
Apparently realizing that, on this record, the Agency had no duty to provide ICWA notice, Mother maintains it "would be improper to now second guess the necessity of ICWA notice." She urges, instead, that "the issue in the present case is not whether ICWA notice and/or inquiry was necessary," but whether the notice the Agency provided was sufficient. This is so, she claims, because the "Agency and presumably the trial court . . . determined that there was sufficient information to conclude that they knew or had reason to know that A.R. was an Indian child and [t]he Agency therefore sent ICWA notice." The sufficiency of the notice is, however, a moot point, given that the Agency was not required to send any ICWA notice at all. We therefore need not, and do not, consider whether the notices it sent were adequate.
DISPOSITION
The petition for an extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Kelly, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.