S.C.v.A.R. (In re E.R.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICTDec 2, 2019
F079052 (Cal. Ct. App. Dec. 2, 2019)

F079052

12-02-2019

In re E.R., a Person Coming Under the Juvenile Court Law. S.C. et al., Petitioners and Respondents, v. A.R., Objector and Appellant.

Elizabeth A. Klippi, under appointment by the Court of Appeal, for Objector and Appellant. No appearance by Petitioners and Respondents.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BAT-16-003178)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill, Judge. Elizabeth A. Klippi, under appointment by the Court of Appeal, for Objector and Appellant. No appearance by Petitioners and Respondents.

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On December 2, 2016, E.R.'s paternal grandparents filed a petition to declare minor E.R. free from the custody and control of her parents. (Fam. Code, § 7822; Prob. Code, § 1516.5.) Petitioners alleged E.R. had been left in their custody for over two years without provision or support from her parents. Trial on the petition - to determine whether E.R.'s parents had abandoned her (see Fam. Code § 7822) - was continued repeatedly, over the course of more than two years. During that time, E.R.'s mother (appellant; "Mother") claimed she had Yaqui heritage through her grandfather. Mother said her own mother (E.R.'s maternal grandmother) would know the relevant information concerning her Indian heritage. The court directed Mother to speak with maternal grandmother, acquire the information needed for the Indian Child Welfare Act (25 U.S.C. §§ 1901-1923 (ICWA)) notice (form ICWA-030), and provide the information to her counsel who would transmit it to petitioners' counsel.

Petitioners below, respondents on appeal.

The ICWA Notice appearing in the record was attested to by Mother. The Notice was sent to the Yaqui tribe. The Notice contained certain information about Mother, Father, and E.R.'s grandparents. The Notice contained no information about E.R.'s great-grandparents and listed some information about Mother, Father, and grandparents as "UNKNOWN." The Notice also contained a purportedly incorrect birth date for E.R.

The Yaqui tribe eventually responded with a letter indicating that E.R. was not eligible for membership in the tribe.

After a trial on the merits, the court granted petitioners' petition and declared E.R. free from the custody and control of her parents. Mother appeals, claiming the ICWA investigation and Notice were inadequate. We reject these contentions and affirm.

FACTS

Report of the Family Court Services Investigator

The Family Court Services Investigator (the "investigator") prepared a report and filed it with the court on February 27, 2017. The findings and recommendations of the report are described herein.

Petitioners, E.R.'s paternal grandparents, obtained legal guardianship of her on July 25, 2013, when she was four years old. However, according to Paternal Grandmother, the child had been living with them "since infancy." Mother disputed petitioner's claim and said E.R. lived with Mother from birth.

One of the petitioners - E.R.'s paternal grandmother - has the same initials as the minor. Therefore, we will refer to her as Paternal Grandmother to avoid confusion with E.R. herself.

The investigator interviewed E.R. She was able to acknowledge to the investigator that appellant A.R. is her biological mother and that F.R. is her biological father ("Father").

E.R. said Father would visit on occasion, but she was not able to identify the last time she saw him. Petitioners said Father had not visited E.R. in two years.

Father told the investigator he opposed the petition.

E.R. said the last time she saw Mother was when she was five years old. E.R. said, " 'I don't know if I want to see [Mother].' " E.R. also said she would only want to visit Mother if she stopped smoking, did not use foul language, and stopped yelling.

Mother told the investigator she "did not agree" with the petition. Mother admitted the last time she had visited E.R. was in 2015. However, she also claimed to have interest in visiting with E.R. Mother blamed a "language barrier" between her and petitioners as to why it was "difficult[]" to coordinate visits with E.R. Mother claimed Paternal Grandmother had previously failed to bring E.R. to a planned visit and did not answer Mother's phone calls. Paternal Grandmother acknowledged that Mother tried to visit on some occasions. However, on two occasions petitioners were out of town; on one occasion Paternal Grandmother had to cancel; and on another occasion, petitioners had gotten their days "confused." The investigator concluded, "[i]t appears [petitioners] have not followed through with coordinating visits with [Mother]."

The investigator's report also summarized Mother's "history with Kern County Child Protective Services" as follows:

"[Mother] had allegations for general neglect dated on August, 13, 2009, December 11, 2012, March 31, 2014. April 4, 2014, August 28, 2014, March 27, 2015, June 24, 2015, September 3, 2015, and December 4, 2015, which were all evaluated out of unfounded. [Mother] had allegations for sexual abuse on December 11, 2012 and it was evaluated out. Furthermore, [Mother] had allegations for general neglect January 11, 2016 and it was substantiated for being under the influence of substance use. The children were detained and placed in placement with CPS. Additionally, [Mother] had allegations for general neglect during the birth of her last child September 20, 2016 and it was substantiated. The newborn was detained by CPS."

The investigator also concluded that E.R. was bonded to petitioners.

Petitioners both reported that they do not have any Native American heritage. Petitioner S.R. reported that, to his knowledge, neither Mother nor Father had Native American heritage.

The investigator ultimately concluded that Father had "abandon[ed]" E.R. under Family Code section 7822. However, as to Mother, the investigator concluded she had tried to contact petitioners regarding visits and did not have an "intent to abandon" E.R. Therefore, the investigator recommended that the court declare E.R. free from the custody and control of Father, but not Mother.

May 2017 Hearing

At a hearing on May 5, 2017, the court appointed separate counsel for Mother, Father, and E.R. The court then continued the hearing in order to give newly-appointed counsel an opportunity to meet with their clients.

December 2017 Hearing

At the continued hearing on December 15, 2017, the court asked counsel whether they were prepared to proceed. Mother's and Father's counsel each indicated they were not ready to proceed.

Mother's counsel said his client had informed her she has "American Indian heritage of the Yaqui tribe with her grandfather." Mother's counsel said he provided Mother with "the ICWA forms to fill out." "[Mother] has advised me she can get those back to me next week and we'll forward those on to the other counsel."

Father's counsel said Father lives in Kansas. Father's counsel had not yet been able to speak with Father.

The court said, "[I]t sounds to me like we need to continue this to the readiness calendar to give you time to give notice under the Indian Child Welfare Act and give [Father's counsel] time to speak to [Father] and give anybody who wants to talk to [minor's counsel] time to do that."

The court told petitioners' counsel: "[E]ven though you're gonna get information from [Mother's counsel], you're gonna have to take the laboring [oar] in sending the ICWA notice." Petitioners' counsel responded, "Yes. Once [Mother's counsel] gives me the 030 form, Your Honor, I'll need at least 60 days."

Presumably, counsel was referring to Judicial Council Form No. ICWA-030, entitled "Notice of Child Custody Proceeding for Indian Child."

March 2018 Hearing

On March 9, 2018, a continued hearing was held. Mother was personally present for the hearing.

Mother's counsel stated, "My client has indicated that the Yaqui Tribe of Arizona is - that her - a grandfather has Yaqui heritage." Petitioners' counsel said he did not have any 030 forms in his files. Mother's counsel said he did not have "copies of a 030 in my file either." Mother's counsel said he was not sure whether he had asked his client to fill out the forms or not. Mother's counsel said Mother told him that the Yaqui Tribe is from New Mexico. Counsel was not sure whether that is the same tribe "as the Arizona tribe that we had previously indicated." The court asked Mother whether there was anyone in her family who would know which tribe they were related to. Mother responded, "My mom does." The court said it will print "the form" so that Mother's counsel could go over it with Mother.

The court said the hearing could not go forward today because petitioners' counsel still needed to provide ICWA notice. The court told Mother that in order for ICWA notice to be effective, petitioners' counsel needed to know "as much about your family history as you have the ability to know and find out about. Does that make sense?" Mother replied, "Yes." The court continued,

"So you have some work cut out for you. And you have to do it quickly because you have to give that information to [petitioners' counsel] so he then can then [sic] send notice to all of the tribes that the child may have heritage with."

"So, for instance, if you go to your mom and you say, 'Mom, where does our Indian heritage come from?' [¶ ]And she's [sic] says, 'Well, we've got some Yaqui heritage and we got some Navajo heritage and something.' He's got to know all that.

"If she says, 'We've got Navajo heritage, but it comes from this particular tribe,' he has to know that because there's a million Navajo tribes - not literally, but there's a lot. And he's going to need to know things about your family like where the Indian heritage might come from. You don't have to know where it comes from, but he needs to know everything you know. [¶] "Does that make sense to you?

"[Mother:] Yes.

"THE COURT: And he's going to have to know dates of birth and where people were born -- that sort of thing. [¶] "So I'm going to give you this information. This is homework. Okay. And I'm going to say - does your mom live here?

"[Mother:] Yeah.

"THE COURT: Wonderful. So I'm going to say sit down with your mom and anybody else in your family who might have this information, and we'll have you ... [¶] ... [¶] give this information to [your counsel] who will the[n] get it over to [petitioners' counsel]."

The court then replaced Mother's lawyer with another lawyer in the courtroom for reasons unrelated to this case. The court asked Mother if she could give the requested information to her new lawyer "by Monday or Tuesday of next week." Mother responded affirmatively.

June 2018 Hearing

At the June 8, 2018, hearing, Mother was again present. Petitioners' counsel said that the week prior to the hearing he could not find the 030 form in his file. However, Mother's counsel informed petitioners' counsel that he had mailed the form to petitioners' counsel's office in March. Mother's counsel also gave him a copy of the Notice before the present hearing on June 8, 2018. Petitioners' counsel acknowledged, "it is entirely possible it got filed in the black hole in my office, and I apologize that [Mother's counsel] sent it to me but I don't have it in the file." Petitioners' counsel said he would send out the ICWA Notice "today."

The court asked Mother's counsel, "So with respect to the ICWA notice, my notes indicate it is the Yaqui tribe; is that correct?" Mother's counsel responded, "That's correct, Your Honor." The court confirmed with petitioners' counsel that he now had all he needed to send ICWA notice. Petitioners' counsel agreed and told the court he would send notice that day. The court set a continued hearing for August 31, 2018.

ICWA Notice

An ICWA notice (form ICWA-030), was sent to the Pasqua Yaqui Tribe's ICWA representative in Tucson, Arizona (the "Notice"). The caption listed petitioners' counsel; but the Notice's declaration was signed by Mother. This is consistent with the prior discussions described above, wherein Mother would fill in the information for the form, and petitioners' counsel would send the Notice to the tribe.

The declaration of mailing indicates the Notice was sent on June 1, 2018. However, that appears to be an error because petitioners' counsel indicated at the hearing on June 8, 2018, that he would sent out the Notice that day (i.e., June 8, 2018).

Minor's Information

The Notice included the minor's full name, place of birth and date of birth. The date of birth listed on the Notice had the same month as the date of birth listed on the birth certificate, but a different day and year.

Mother's Information

Mother claims there was some missing information concerning Father but does not raise them on appeal because he did not claim Indian ancestry.

The Notice identified Mother's first and last name, her current street address (without a city or state), and her birth date. Under former address, the form reads, "UNKNOWN." Under the heading "Birth date and place," only Mother's birth date is listed.

Maternal Grandmother's Information

The Notice lists maternal grandmother's first and last names, current address, birth date, and birth place. Under former address and tribal membership, the Notice states "UNKNOWN."

Maternal Grandfather's Information

The Notice lists maternal grandfather's first, middle and last names, birth date, and state of birth. The Notice says "UNKNOWN" as to address, tribe, and tribal membership/enrollment number.

Paternal Grandmother's Information

The Notice lists paternal grandmother's first and last name, current address, birth date, and birth place. Under "Tribe or band, and location," it says, "DOES NOT APPLY." The same notation appears under former address, and tribal membership.

Paternal Grandfather's Information

The Notice lists paternal grandfather's first, middle and last names, current address, birth date, and birth place. Former address is listed as "UNKNOWN." The notation "DOES NOT APPLY" appears under tribe, and tribal membership/enrollment number.

Great-grandparent Information

The Notice listed "UNKNOWN" as to all information pertaining to great-grandparents.

Pascua Yaqui Tribe's June 2018 Letter

In a letter dated June 26, 2018, the Pascua Yaqui Tribe responded to the Notice. The Tribe determined that the minor and her Mother are not members of the Pascua Yaqui Tribe, nor did they have applications for membership pending. The letter said, "[b]ecause the identity of the father is unknown, an enrollment verification could not be done on the father." The letter continued, "It is requested that the Tribe be provided with the father's name/DOB/SSN/family tree, so a thorough enrollment verification can be completed." The letter concluded that "it cannot be determined that the child is not eligible for enrollment at this time ...."

Petitioners' Counsel's Letter to Pascua Yaqui Tribe

In a letter dated July 11, 2018, petitioners' counsel informed the tribe of the Father's name, date of birth, social security number and parents' names.

Pascua Yaqui Tribe's August 2018 Letter

In a letter dated August 30, 2018, the Pascua Yaqui Tribe informed petitioners' counsel that neither the minor, Mother nor Father were members of the tribe. The tribe concluded that based on the family information provided and current enrollment records, "the child is not eligible for membership."

August 31, 2018, Hearing

Mother did not appear at the August 31, 2018, hearing. Her counsel represented that she was in labor.

The court asked whether there was any issue with the ICWA notices sent on August 1. Mother's counsel, minor's counsel and the court each stated on the record that they agreed the ICWA notice that had been sent was sufficient.

The court stated it was prepared to make a finding that ICWA does not apply. The court asked if counsel had any "issue" with such a finding. Mother's counsel said, "The only thing I see on the letter, Your Honor, is the birthday is wrong with the child. If that has any affect [sic] on the enrollment."

The following exchange ensued:

"THE COURT: It should not.

"[Petitioners' counsel:] They were trying to determine if the father or mother would be eligible, so I don't think that should be a problem.

"THE COURT: I don't either. They're not saying that the child missed eligibility by the period of time between her purported date of birth and real date of birth. They're saying that the mother and father are not members of the tribe.

"[Mother's counsel:] If the Court has no objection neither do I."

Minor's counsel also stated she had no objection to the court's proposed finding that ICWA did not apply. The court formally made the ICWA finding and then confirmed the matter for trial.

February 1, 2019, Trial

The trial on the issue of abandonment (see Family Code § 7822) was held on February 1, 2019. Mother and petitioners testified.

After trial, the court found that Mother and Father had abandoned the minor and that it was in the minor's best interests to be adopted by petitioners. Mother appeals.

DISCUSSION

The sole issue Mother raises on appeal is whether the court and parties complied with the investigatory and noticing requirements of ICWA. Petitioners (respondents on appeal) have not filed a brief with this court. I. Law

California Rules of Court, rule 5.481 applies to cases where a party seeks a declaration freeing a child from the custody or control of one or both parents. (Cal. Rules of Court, rule 5.481(a).) Under that rule, if there is reason to know that an Indian child is involved in the proceeding, the petitioners must send a "Notice of Child Custody Proceeding for Indian Child" (form ICWA-030) to the child's tribe. (Cal. Rules of Court, rule 5.481(b)(1).) Additionally, petitioners have a duty to interview the child's parents and extended family members to gather information to prepare the ICWA notice. (Cal. Rules of Court, rule 5.481(a)(4)(a).) The information to be sought includes the child's name, birth date, and birthplace; the name of the tribe of which the child may be eligible for membership; all known names of the Indian child's biological parents, grandparents, great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known. (Former Welf. & Inst. Code, § 244.2, subd. (a)(5).) II. Discussion

All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

A. The Fact that Some Information was "Missing" from the Notice did not Establish Insufficient ICWA Inquiry

Mother claims the ICWA investigation in this case must have been inadequate because the ICWA Notice sent to the Pascua Yaqui Tribe was "full of errors and omissions." But the record makes clear that Mother is the one who filled out the information in the ICWA Notice. Indeed, she signed the declaration at the end of the Notice attesting the facts contained therein were true and correct. The fact that several items were marked as "unknown" presumably indicates that Mother herself did not have the information.

Nonetheless, Mother insists it was petitioners' job to provide information about her own grandparents; information even she apparently did not know. It is true that there was a duty to seek information about E.R.'s maternal great-grandparents from Mother. (See Cal. Rules of Court, rule 5.481(a)(4)(A) & former § 224.2, subd. (a)(5).) But that duty was satisfied when Mother agreed in open court to provide the information required for the ICWA-030 form. When Mother provided that form to petitioners, through counsel, she indicated "unknown" as to many items, including information about the maternal great-grandparents. Petitioners were only required to obtain "known" information about relatives from Mother. (See Cal. Rules of Court, rule 5.481(a)(4)(A) & former § 224.2, subd. (a)(5)(C).) If Mother herself did not have that information, then that information would not be considered "known" under any reasonable understanding of that word.

Therefore, Mother is incorrect to argue the Notice did not contain the information required by former section 224.2, subdivision (a)(5). That statute only requires "known" information about the minor's relatives. The "missing" information was apparently not "known" even after the court's directive that Mother provide the information she and maternal grandmother had.

Moreover, Mother volunteered that it was her own mother (E.R.'s maternal grandmother) who would know about any Indian heritage. The court directed Mother to speak with maternal grandmother about the information needed for the ICWA notice. Mother agreed to do so. Thus, the court would have reasonably concluded that the subsequently prepared ICWA Notice contains the information known to Mother and maternal grandmother. It is unclear what other investigatory efforts Mother believes the court and/or petitioner should have undertaken. The court sought and obtained the information known to Mother and maternal grandmother. That effort yielded no information about E.R.'s maternal great-grandparents, so there does not appear to have been any way to contact any maternal great-grandparents for more information.

The only other identified maternal relative who could have additional relevant information would have been E.R.'s maternal grandfather. But the form - again, presumably filled out by Mother with information supplemented by maternal grandmother - did not list his address, or any other way to contact him. Mother has not shown that any failure to interview maternal grandfather was a result of inadequate investigatory efforts by petitioners.

Mother cites In re Breanna S. (2017) 8 Cal.App.5th 636, a dependency case where the appellate court noted that it is a social worker's duty to seek out ICWA information, rather than a parent's duty to volunteer it. But here, the relevant information was sought from Mother (and from maternal grandmother, through Mother).

Mother did not brief ICWA issues as to Father "because father did not claim Indian ancestry."

Mother claims that if she had been asked about the ICWA Notice she "[c]ertainly" would not have agreed it was complete and correct, because the Notice was even missing information about her. This position is untenable, considering Mother signed a declaration under penalty of perjury that the information in the ICWA Notice was "true and correct."

B. Minor's Incorrect Birth Date was Harmless

Finally, Mother notes that E.R.'s birth date listed on the ICWA notice differs from what is apparently on her birth certificate. We find this error harmless.

Under ICWA, an "Indian child" is an unmarried minor who is either (1) a member of a tribe or (2) eligible for membership in a tribe. (25 U.S.C. § 1903(4).) The purpose of an ICWA notice is to enable the tribe to determine whether the minor is a member or eligible for membership. Thus, in order to establish prejudice with respect to inaccurate information on an ICWA notice, the parent must show that the error could "thwart a search" for membership or eligibility by the tribe. (In re D.W. (2011) 193 Cal.App.4th 413, 418.)

An inaccurate birth date could potentially be prejudicial if Mother was claiming E.R. was a member of a tribe. It is conceivable that a search of a tribe's actual members might be done by birth date of the member. Thus, an incorrect birth date might thwart a search of the tribe's membership rolls. But here, no one contends that E.R. was actually a member of any Indian tribe. Consequently, E.R. would be an Indian child, if at all, because she was eligible for membership in a tribe through her Mother's lineage. And there is no reason to think the minor's birth date is necessary for the tribe to determine eligibility through the minor's maternal lineage. (Cf. Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.) Therefore, we conclude the error was harmless.

More likely, however, the search would be done by enrollment number. --------

DISPOSITION

The judgment is affirmed.

/s/_________

POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
SMITH, J.