Opinion
E067933
10-25-2017
In re C.B., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent; v. R.M. et al., Defendants and Appellants.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant R.M. (mother). Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant J.B. (father). 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J254143) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Reversed. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant R.M. (mother). Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant J.B. (father). Jean-Rene Basle, County Counsel and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
Mother, R.M., and father J.B., lost custody of their children when police responded to an incident between mother and the boyfriend of mother's adult daughter. San Bernardino County Children and Family Services (CFS) responded and found the conditions of the home filthy and unsanitary. Mother and father worked on their case plan, and for a short time the children were returned to her custody, except for C.B., whose needs were greater due to developmental delays and chronic MRSA infection. The permanent plan for most of the children was legal guardianship, but CFS recommended adoption for C.B. because mother never achieved the ability to properly supervise and monitor him. At a hearing pursuant to Welfare and Institutions Code, section 366.26, parental rights were terminated and both parents appealed.
There were seven children involved in the dependency, two of which had a different father, J.R. This appeal involves only the status of C.B., so J.R. and the other children will only be mentioned as necessary for context.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
On appeal, both parents seek reversal on the ground of noncompliance with the Indian Child Welfare Act (ICWA), insofar as the record fails to include copies of the notices sent to Indian Tribes and the Bureau of Indian Affairs (BIA). We reverse for the limited purpose of complying with ICWA.
BACKGROUND
Due to the nature of the question presented for review, a detailed history of the family circumstances is unnecessary.
In April 2014, the minor, C.B., then age three, was detained from his parents upon a report of caretaker absence after his mother was arrested for a domestic violence disturbance involving the boyfriend of mother's adult daughter. In addition to C.B., there were six other children in the home, ranging in ages from 10 years to 2 years of age. The home was unsanitary with animal feces on the floor of the common areas, a large quantity of wet, dirty clothes, and a cockroach infestation. A dependency petition was filed alleging that the children came within the provisions of section 300, subdivision (b), due to mother's involvement in the domestic violence incident, her failure to provide adequate housing, father's criminal history, and his unknown capacity or willingness to care for the children.
The children were detained in foster care at the detention hearing, at which time mother informed the court she may have Indian heritage, specifically Blackfoot, Cherokee and Shoshone ancestry. It was learned that father had an arrest history based on a warrant, and during that arrest he was found in possession of methamphetamine, resulting in an additional charge. Following mediation, an agreement was reached whereby mother and father agreed to submit on the petition with slight changes to the first allegation relating to the domestic violence incident.
On June 12, 2014, CFS filed a Due Diligence Declaration regarding its compliance with ICWA. Copies of the notices sent to the tribes were not filed. On June 13, 2014, at the combined jurisdiction and disposition hearing, the minor and his siblings were declared dependents, and were removed from the parents' custody. The court found that noticing under ICWA had been initiated.
Respondent filed a request that we take judicial notice of the ICWA declaration of due diligence dated April 28, 2017, and that we dismiss the parents' appeals as moot. The documents appended to the request for judicial notice are identical to documents bearing the same title and caption found in the Supplemental Clerk's Transcript, so the request for judicial notice is cumulative. We therefore deny that request as duplicative and deny the motion to dismiss the appeals.
On July 11, 2014, the court issued written findings and orders that notice had been conducted as required by ICWA and that the required 65 days had passed without affirmative responses from the tribes. The court ordered that ICWA did not apply.
By the time of the six-month review, in December 2014, five of the children had been returned to mother's custody, leaving three-year-old C.B., and his four-year-old sister, B.B. in foster care. C.B. was found to have developmental delays and recurrent staph infections. By March 2015, the children who had been returned to mother's care were removed again.
The original minutes indicated that the children were re-removed pursuant to a true finding on a section 387 supplemental petition. However, the minutes were corrected to delete any reference to a 387 petition. The record does not include any supplemental or subsequent petition, so the reasons for the re-removal are unclear, but were apparently related to an incident in which mother lost track of her two-year-old child, who wandered off for two hours dressed only in a diaper.
A twelve-month review occurred in May 2015. The five children who had been re-removed from mother's custody were placed together in one foster home, B.B. was placed in a second home, while C.B. remained in a third home. Although the parents were working and progressing on their plan, they had not progressed far enough to withdraw CFS supervision. During the review period leading up to the 12-month review hearing, C.B. continued to have problems with staph infections, was nonverbal, and at three years of age was not potty trained. The review hearing took place on June 4, 2015, at which time the parents were granted an additional six months of services.
In September 2015, CFS submitted a report for the 18-month permanency review hearing. By this time, C.B.'s staph infections were diagnosed as MRSA and at age four, he was just beginning to speak in sentences, although he was still not potty trained. The parents continued to be cooperative with services, but mother did not seem able to maintain a watchful eye on the children, particularly the youngest. However, father was terminated from drug treatment due to nonattendance. Father had also tested positive for methamphetamine, and had missed a test due to his job. While the children could not be returned home, the social worker noted the parents had made much progress, recommending further services to resolve issues. The same information was relayed in another report submitted in October 2015, for the 18-month review hearing.
MRSA refers to methicillin-resistant Staphylococcus aureas. (Taber's Cyclopedic Medical Dictionary, 20th Ed. (2005) p. 1393.)
In November 2015, however, the social worker recommended terminating services for the parents because they could not demonstrate readiness for return of the children. Father had not attended or completed drug treatment and had not submitted to drug testing since the last reporting period, and mother had not demonstrated improved ability to supervise the children while father worked. The social worker indicated an intent to seek legal guardianship for the children at the section 366.26 hearing. The 18-month review hearing took place on January 5, 2016, extending to January 6, 2016, when the court terminated services.
In May 2016, the social worker filed a section 366.26 report recommending legal guardianship for all of the children except C.B., because the caretakers of the other six children were willing to commit to being appointed as guardians. As for C.B., the social worker requested 120 days to find a concurrent planning home for him. C.B. had been in his current placement only since March 2016, so it was too soon to assess his placement for the long term.
In August 2016, the social worker requested an additional 120 days so that the Children's Adoptive Services could complete a home assessment. In addition to having MRSA, C.B. was diagnosed as hyperactive, for which he was prescribed Clonodine by a pediatric psychiatrist, and was determined to have hearing loss in his left ear. During periods in which he had MRSA outbreaks, he was unable to have contact with his family, in order prevent transmission of the infection to siblings. Family visits were reduced to once per month after services were terminated, so contact with his family had been minimal. He had been in his current placement since March 2016 and appeared to be bonded to the caregiver, who was willing to adopt C.B. CFS's current recommendation for C.B. was adoption, but additional time was needed to complete a home study.
A follow up report was submitted in December 2016, recommending termination of parental rights. The section 366.26 hearing was conducted on February 2, 2017, where the court found by clear and convincing evidence that the minor was likely to be adopted. Although both parents objected to the severance of the parent-child relationship, neither parent offered any affirmative evidence, so the court terminated parental rights. Both parents appealed.
DISCUSSION
Mother indicated that she might have Indian ancestry early in the process. However, the record on appeal does not include copies of any notices sent to the tribes, despite the fact father's counsel requested augmentation, including "Any and all documents pertaining to the Indian Child Welfare Act (ICWA), including the appellant's 020 Forms, all noticing done by the agency, including mail receipts, returned green cards and any other documentation, including emails, regarding the ICWA."
The augmented record includes two copies of the declaration of due diligence, filed on June 14, 2014. That declaration lists the various tribes to which CFS stated it sent notices, along with a summary of any response received from any tribe, in addition to copies of some unsigned receipts for certified mail, and response letters from the BIA (one per child) acknowledging receipt of the notices, and letters from some tribes indicating that the children are not Indian children. Lacking are copies of the actual notices sent to the tribes, or any return receipts.
The record contains some unexecuted receipts, but without the actual notices, it is difficult to tell if all were accounted for, or if they were actually received by the individual tribes. Only four tribes responded by letter, where the declaration indicates that notice was sent to approximately 25 different tribes.
The 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. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912; In re Holly B. (2009) 172 Cal.App.4th 1261, 1266.) If there is reason to believe the child that is the subject of the dependency proceeding is an Indian child, ICWA requires notice to the child's Indian tribe of the proceeding and of the tribe's right of intervention. (25 U.S.C. § 1912(a); see also Welf. & Inst. Code, § 224.2, subd. (b).)
"Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families [because] it ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies." (In re Kahlen W. (1991) 233 Cal. App. 3d 1414, 1421.) It is only after proper and adequate notice has been given and neither a tribe nor the BIA has provided a determinative response within 60 days that section 224.3(e)(3) authorizes the court to determine that ICWA does not apply. (In re Isaiah W. (2016) 1 Cal.5th 1, 11.)
In Isaiah, the California Supreme Court also held that due to the continuing nature of the duty to inquire if a child is an Indian child, the issue of the propriety of the court's finding that ICWA does not apply is not forfeited and may be raised on appeal from a subsequent order. (Isaiah W., supra, 1 Cal.5th at p. 11.) --------
California Rules of Court, rule 5.481(b), requires the social worker or the court to send the Notice of Child Custody Proceeding for Indian Child (form ICWA-030) to the parent, guardian, Indian custodian, and the child's tribe. Rule 5.482(b) requires that "[p]roof of notice filed with the court must include Notice of Child Custody Proceeding for Indian Child (form ICWA-030), return receipts, and any responses received from the Bureau of Indian Affairs and tribes." (See In re Marinna J. (2001) 90 Cal.App.4th 731, 739, fn.4.) The Rules of Court parallel the requirements of the federal "Guidelines for State Courts; Indian Child Custody Proceedings," 80 Federal Register 10146, 10153 (Feb. 25, 2015), require that an original or a copy of each ICWA notice be filed with the juvenile court along with any return receipts. (Guidelines, supra, 80 Fed.Reg., at p. 10154.)
The ICWA notice, the return receipts, and responses of the Bureau or tribe, if any, must be filed with the juvenile court. (In re Karla C. (2003) 113 Cal.App.4th 166, 175-176; see also In re H.A. (2002) 103 Cal.App.4th 1206, 1214-1215.) A statement in a social worker's report that he or she sent ICWA notice is not sufficient evidence of compliance with notice requirements. (In re Karla C., supra, at p. 178.) Absent evidence demonstrating the adequacy of the notice, a tribe's nonresponse may not be deemed tantamount to a determination that the minor is not an Indian child. (In re Karla C., supra, 113 Cal.App.4th at p. 178.)
In order to allow proper review of the adequacy of the notice, the record must include the notices and the executed receipts, evidencing the fact that the notices were actually received by the tribal entities. The social worker's due diligence declaration tells us nothing of the factual information provided to the tribes, from which we could determine whether the information was complete and accurate. We must therefore reverse the trial court's order and finding that ICWA does not apply, and remand with directions to file all notices sent and return receipts received from the tribes, if any. If CFS does not have copies of the original notices or return receipts, CFS is ordered to re-notice the tribes, and wait the statutory period, after which the juvenile court shall conduct a hearing at which it will make the appropriate findings and orders.
Because the parents raise no substantive challenges to the order terminating parental rights to C.B., if the juvenile court ultimately determines that ICWA does not apply after the tribes have been properly notified and given an opportunity to respond and/or intervene, the judgment terminating parental rights shall be reinstated. (In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)
DISPOSITION
The order of the juvenile court terminating parental rights is vacated, and the matter is reversed and remanded to the juvenile court with directions to order compliance with the ICWA inquiry and notice provisions. Specifically, the court must order DPSS to give proper notice to the Shoshone, Cherokee and Blackfeet tribes. Inquiry should be made of Mother, the maternal grandparents, or any other maternal family members, for information relating to names, addresses, birthdates and places of birth, of the maternal grandparents and maternal great-grandparents, to be provided in the notices.
After notice has been properly provided to the tribes, the court shall conduct a hearing at which the court shall determine if the child is an Indian child. If no tribe intervenes or claims the children are Indian children within the meaning of ICWA, and within the statutory time frame, the court shall make a finding the child is not an Indian child, and shall reinstate the original order terminating parental rights. If the juvenile court finds that the children are Indian children, it shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with ICWA and related federal and state law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.