Opinion
E068382
10-31-2017
In re A.B. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.C., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Martin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J260650 & J260651) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
R.C. (mother) appeals the juvenile court's order terminating her parental rights with respect to her five-year-old daughter, A.B., and her nine-year-old daughter, N.B. Her only challenge on appeal is to the sufficiency of the evidence supporting the court's finding the Indian Child Welfare Act (ICWA) did not apply. She seeks a conditional reversal of the order terminating her parental rights pending a new ICWA determination.
Mother also has an infant son, J.C., who is not a party in this matter. He was removed from her at birth and is the subject of a different dependency.
Mother's challenge is based on the fact several ICWA documents were missing from the appellate record at the time she filed her opening brief. After receiving her brief, respondent San Bernardino County Children and Family Services (CFS) filed a motion to augment the record with the missing documents. Because the documents are part of the juvenile court's files and were before the court when it made its ICWA finding, we granted the motion to augment. Mother did not file a reply brief.
CFS asks us to dismiss the appeal as moot in light of the augmented record; however, because the record does not moot all of mother's arguments, we address the appeal on its merits.
Mother's challenge fails for two reasons. First, the record as augmented supports the court's finding. It demonstrates each of the noticed tribes had informed CFS that the children were not Indian children and they did not plan to intervene in the proceedings. Second, any error would have been harmless because the children's permanent plan—adoption by the paternal grandfather—satisfies ICWA's first preference of placement with extended family. (25 U.S.C. § 1915(a).) For these reasons, we affirm the court's ICWA finding and the order terminating mother's parental rights.
I
FACTUAL BACKGROUND
In June 2015, CFS filed petitions alleging A.B. and N.B. were dependents of the juvenile court because father was physically abusive and mother could not adequately supervise and protect them. (Welf. & Inst. Code, § 300, subds. (b) & (j).) The children had been living with father in Big Bear, and when CFS investigated the home, their half sister C.B. had multiple marks and bruises on her body from his most recent abuse. Mother had left the children in his care despite knowing of his violent tendencies. She had a substance abuse problem and a history of being the victim of domestic violence in the children's presence. The court detained the children from the parents and approved CFS's temporary placement with the paternal grandfather.
At the time of the investigation, mother had pending charges for domestic violence and drug possession.
In her ICWA-020 form, mother stated she may be eligible for membership in the "Morongo" tribe. The social worker noted in the jurisdiction/disposition report that father may have Cherokee ancestry. (It is unclear where this information came from, as father never filed an ICWA-020 form, had not made an appearance in the proceedings, and the social worker had not been able to contact him.)
At the jurisdiction/disposition hearing on June 30, 2015, mother waived her trial rights and submitted on CFS's recommendation of family reunification services. The court continued the hearing to give CFS time to send ICWA notice to the tribes.
On July 2, 2015, CFS sent ICWA-030 notice forms to the Bureau of Indian Affairs, Secretary of the Interior, Morongo Band of Cahuilla Mission Indians, United Keetoowah Band of Cherokee Indians, Eastern Band of Cherokee Indians, and Cherokee Nation. Within a week, the Eastern Band of Cherokee Indians and United Keetoowah Band of Cherokee Indians had responded in letters that the children were not enrolled in the tribe and they would not intervene in the proceedings. In a July 15, 2015 letter, Cherokee Nation responded that although the children did not currently me et ICWA's definition of an "Indian child," their maternal grandfather's Indian ancestry made them and mother eligible for enrollment. The tribe attached enrollment applications for the children and said it would not intervene at that time, but reserved the right to revisit that determination if mother or the children became enrolled members.
At the continued jurisdiction/disposition hearing on July 21, 2015, the court found true the section 300, subdivision (b) allegations in the petition against mother, approved her case plan (which included drug testing), and ordered CFS to provide her family reunification services. Mother did not make sufficient progress on her case plan during the reunification period and her visits with the children were inconsistent. Meanwhile, the children were thriving in the paternal grandfather's care. At the 12-month status review hearing in July 2016, the juvenile court terminated mother's services and scheduled a section 366.26 permanency planning hearing. On December 15, 2016, CFS detained mother and father's third child, J.C., at birth because he tested positive for methamphetamines and opiates. From that point forward, the court held parallel hearings for the three children on the same days.
Unlabeled statutory citations refer to the Welfare and Institutions Code.
The court held A.B. and N.B.'s section 366.26 hearing (and J.C.'s jurisdiction/disposition hearing) on January 11, 2017. At the beginning of the section 366.26 hearing, the court noted the Morongo tribe had requested "some additional information" from CFS. For the record, the court explained the parties had just had a lengthy discussion with mother and the relatives present during J.C.'s hearing. "I will note that the agency went beyond what was required of noticing to make contact, find out what information was missing. [¶] . . . I am going to ask that that information provided in the sibling matter be fully looked into on this case and that we renotice and make contact with the Morongo tribe to provide the information received on the sibling matter as it applies to this case so they can make a determination regarding whether or not ICWA might apply. [¶] We are going to have the 030 given to mother. I am going to order that the mother work with her family to see if we can fill in any gaps." The court continued the hearing to give CFS time to renotice the Morongo tribe.
At the continued section 366.26 hearing on February 17, 2017, CFS informed the court Morongo had responded in a January 2017 letter saying the children were not eligible for enrollment. The letter had also said the notice did not include father's date of birth, but CFS told the court the tribe was incorrect on that point. Mother, the maternal grandfather (the relative with documented Cherokee ancestry), and other relatives (including the maternal great-grandmother) were present at the hearing. The court noted CFS had done "everything in its power" to get full and accurate information to the tribes. It also noted despite having advised mother to help CFS fill out the notice forms, she had not done so. The court took a recess for mother to work with CFS on new ICWA-030 notice forms. When the hearing resumed, the court asked mother "to the best of your knowledge, is this all the information we are going to be able to receive about your family history as it relates to Indian heritage?" Mother said yes, but her counsel added mother was still trying to obtain the maternal grandfather's Cherokee enrollment number. The court replied, "I will just note we have been trying to ascertain that. We can't continue to hold the case up. If you ascertain it, you need to get it to the social worker immediately. We asked for it the last time. We've sent the 030 home. We have had everybody look at it again this morning. We have had extensive conversations about it . . . So if there is a way to get it, we need it within the next 24 hours." The court ordered CFS to renotice all of the tribes and continued the hearing.
On February 23, 2017, CFS sent new ICWA-030 notices to the tribes. These notices contained father's date of birth. On February 1, 2017—before CFS had sent out the new notices—Cherokee Nation sent a second letter. This one said the children were not Indian children and it would not have power to intervene until the children or mother "receive[d] membership." It again attached applications for the children. On February 27, 2017, the United Keetoowah Band of Cherokee Indians responded it would not intervene because the children were not eligible for enrollment. A few days later, on March 1, 2017, the Eastern Band of Cherokee Indians responded similarly. The Morongo Band of Cahuilla Mission Indians did not send a follow-up response to its January 13, 2017 letter stating the children were not eligible for enrollment.
At the continued section 366.26 hearing on April 25, 2017, the court again commented on the "extraordinary attempts by the agency to try to make sure that ICWA noticing is appropriate." Regarding the issue of the Cherokee Nation enrollment applications, the court said the social worker "has had difficulty getting ahold of the mother to try to attempt to have assistance in filling out those applications, so my understanding is she went ahead and filled it out on her own and sent it back despite the lack of follow through by the mother." Mother responded she had never received the Cherokee Nation application, and CFS pointed out she had signed for the package containing the application.
The court continued the hearing to give mother a chance to complete the application. It encouraged her to contact Cherokee Nation and provide any missing information, stating, "[a]s I indicated, the Court is making every effort to try to make sure that the tribes . . . can be involved if the children are eligible for enrollment. We have mailed you, and I have a signature card saying you have received it, the application for the enrollment, and I am asking you to follow through with that. We have done that on our side as well. But we can only do so much. They are your children."
In a letter dated May 10, 2017, Cherokee Nation returned the applications to CFS stating it needed further information and it would not intervene because the children were not enrolled. At the continued section 366.26 hearing on May 24, 2017, the court stated it was "satisfied that the ICWA requirements have been met," noting that "as of today's date, with full noticing," Cherokee Nation had indicated it would not intervene. Mother's counsel responded that mother had the Cherokee Nation application and "needs some help completing it." Apparently, mother had reached out to someone from the tribe and they had not responded. The court replied, "the social worker has literally bent over backwards, to include filling out the application, herself, and sending it in. [¶] If the tribe has not responded, that is outside of this Court's ability to do anything about that, other than to find that the noticing has been satisfied, at this point." The court proceeded to the merits of the section 366.26 hearing, terminated mother's and father's parental rights, and selected adoption with the paternal grandfather as the children's permanent plan.
II
DISCUSSION
A. General ICWA Principles
"Congress adopted ICWA in response to concerns '"over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes."'" (In re Abbigail A. (2016) 1 Cal.5th 83, 90 (Abbigail A.), quoting Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 32.) "ICWA addresses these concerns by establishing 'minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.'" (Abbigail A., at p. 90, quoting 25 U.S.C. § 1902.)
The court and the parties must follow ICWA's procedural and substantive requirements when an "Indian child" is involved. An "Indian child" is "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).)
Notice to the tribe is one of ICWA's procedural requirements. "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), italics added.)
The tribe may intervene "at any point in the proceeding." (25 U.S.C. § 1911(c).) Under certain circumstances, the court must "transfer such proceeding to the jurisdiction of the tribe." (25 U.S.C. § 1911(b).) If the proceeding is not transferred, the party seeking to remove an Indian child must "satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (25 U.S.C. § 1912(d).) Among other substantive requirements, "[a]ny placement of an Indian child must follow the preferences set out in ICWA." (Abbigail A., supra, 1 Cal.5th at p. 91, citing 25 U.S.C. § 1915.) "In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families." (25 U.S.C. § 1915(a); see also In re Autumn K. (2013) 221 Cal.App.4th 674, 703 [describing ICWA's adoption placement preferences as "[t]he most important substantive requirement [of the statute] imposed on state courts"].)
We review a juvenile court's finding as to whether ICWA applies for substantial evidence. (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.)
B. Substantial Evidence Supports the Court's ICWA Finding
In her opening brief, mother points out the appellate record does not contain the ICWA-030 notices CFS sent to the tribes in February 2017. She argues this warrants conditional reversal of the order terminating her parental rights and remand for a new ICWA determination because without the notices we cannot tell whether CFS provided the tribes with father's date of birth and whether CFS renoticed the Morongo tribe. However, after mother filed her brief, we augmented the appellate record with the notices, which render both of her concerns unfounded. CFS sent a notice to the Morongo tribe and the notices contained father's date of birth.
Mother also points out Cherokee Nation's second letter, the one dated February 1, 2017, predated the second round of noticing, but we fail to see the issue. Like its first letter, Cherokee Nation's second letter informed CFS that while neither A.B. nor N.B. was an Indian child, they could apply for membership. Cherokee Nation never complained about the amount of information in the notice. Rather, because of the maternal grandfather's Indian ancestry—a certificate of degree of Indian blood states he "is of 1/16 degree Cherokee Indian blood"—the children were always eligible to apply for membership. In other words, the issue was not with the amount of information CFS included in the notice, but with mother's failure to help CFS complete membership applications for her children.
Relatedly, mother contends CFS failed to make reasonable efforts to help her complete the applications. She argues the social worker "did not begin to assist [her] with the application process until at least after February 2017, perhaps even later," and if CFS had properly noticed the tribes in the first place, she would have had a "larger window" to complete the applications. We are not persuaded. Mother's counsel would have been aware of the first Cherokee Nation letter from July 2015 allowing the children to apply for membership. Additionally, the court gave mother plenty of time to complete the applications, as well as plenty of encouragement. The court continued the section 366.26 hearing for an entire month to give her a second chance to assist the social worker in completing the applications. The fact mother did not do so is not a reflection of CFS's efforts, but her own. As the court observed several times over the course of the dependency, CFS was making extraordinary efforts to determine whether ICWA applied. CFS, not mother, filled out the application forms and submitted them to Cherokee Nation. Thus, any failure to obtain tribal membership falls on mother.
In sum, the appellate record demonstrates CFS diligently noticed the four tribes the parents mentioned having a possible ancestral link to, and each of those tribes responded in no uncertain terms they would not intervene because neither A.B. nor N.B. was an Indian child. We therefore conclude the court's ICWA finding is supported by substantial evidence.
Furthermore, even if we had found an ICWA violation, it would have been harmless. "'An appellant seeking reversal for lack of proper ICWA notice must show a reasonable probability that he or she would have obtained a more favorable result in the absence of the error.'" (In re Autumn K., supra, 221 Cal.App.4th at p. 715.) ICWA's first adoptive placement preference is with extended family, which is what the court chose here when it ordered as the children's permanent plan adoption with the paternal grandfather, who has lived near and taken care of the children for their entire lives. (25 U.S.C. § 1915.) As this court has previously noted, ICWA is not a "'get out of jail free' card." (In re Rebecca R (2006) 143 Cal.App.4th 1426, 1431.) "Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way." (Ibid. [no reversal required for alleged ICWA violations if parent cannot demonstrate prejudice].)
III
DISPOSITION
We affirm the juvenile court's ICWA finding and the order terminating mother's parental rights.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: MILLER
Acting P. J. FIELDS
J.