In re P.W. CA4/2

• Court: California Court of Appeal
• Decided: July 27, 2016
• Docket: E065340
• Status: Unpublished

Opinion

Filed 7/27/16 In re P.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re P.W., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E065340

Plaintiff and Respondent, (Super.Ct.No. J254182)

v. OPINION

A.R.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Affirmed.

Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and

Appellant.

Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County

Counsel, for Plaintiff and Respondent.

1 A.R., hereafter referred to as “mother,” appeals from an order terminating her

parental rights to her daughter, P.W.1 The only issue she raises is the juvenile court’s

failure to comply with noticing procedures under the Indian Child Welfare Act, or

ICWA. (25 U.S.C. § 1901 et seq.) We conclude, however, that the information provided

to the court was insufficient to trigger the duty to provide notice. Accordingly, we will

affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On January 21, 2014, the Los Angeles County Department of Children and Family

Services filed a petition alleging P., age six, came within Welfare and Institutions Code

section 300, subdivisions (a), (b), (g) and (j). Specifically, the petition alleged that

mother and her male companion struck P. and her sister, M., with a belt, and left them

with an unrelated caretaker and failed to return. It also alleged mother had an unresolved

drug problem. An amended petition later added an allegation of domestic violence

between mother and her boyfriend.

The children had marks and bruises on their bodies. Mother had left the children

with a friend. The friend was unable to contact mother. M. is autistic and nonverbal.

P. was taking M. to the bathroom and bathing her. P. reported that mother and her

boyfriend would hit her and M. with a belt.

1 The proceedings involved mother’s other daughter, M., as well. However, because M.’s permanent plan was legal guardianship, the court did not terminate parental rights as to her, and this appeal pertains solely to P. P.’s father is also not a party to this appeal.

2 Mother admitted using a belt to spank the children and to smoking marijuana.

However, she said, hitting her daughter in the head with a belt was an accident. The

children were detained.

The social worker recommended reunification services for mother. Mother started

visiting the children. At the jurisdiction and disposition hearing, mother waived her trial

rights, and the court sustained the amended petition. Mother was given family

reunification services. Her case plan included drug testing, a drug treatment program,

and counseling to address anger management and domestic violence. The court then

transferred the case to San Bernardino County.

San Bernardino County accepted the transfer on April 24, 2014. Mother was

present in court. The case was continued to the six-month review hearing, set for

September 24, 2014.

At the six-month review hearing, the social worker recommended additional

family reunification services. Mother was complying with visitation and court ordered

services, and had completed her parenting program. Mother initially tested positive for

marijuana but had since tested clean. She was working and living with her sister. The

children were placed in two separate foster homes. The children had some nightmares

and hyperactivity after the first few visits with mother, but their behaviors were subsiding

as visitation continued. Mother’s progress was found to be substantial. The court

ordered additional family reunification services.

3 On March 24, 2015, at the 12-month review hearing, the court found that mother

had made substantial progress in her case plan and ordered continued family reunification

services. Mother had successfully completed her court-ordered services and continued to

drug test negative. Mother had full-time employment and was living in an apartment.

She was very consistent with her supervised visits with M. and had progressed to

unsupervised day visits. P. had been diagnosed with posttraumatic stress disorder.

Mother had not been offered conjoint counseling because of P.’s ongoing anxiety

regarding visits and reunifying with mother. P. had expressed a desire not to visit

mother, but her behavior during visits was positive. Mother was granted unsupervised

overnight and weekend visitation with M. Visitation with P. continued to be supervised.

Mother set a hearing to address conjoint counseling.

A month later, a child abuse referral came in alleging that mother had sexually

abused P. in the past. P.’s therapist was unwilling to facilitate conjoint counseling until

the sexual abuse allegations were resolved. The court ordered mother’s visits with both

children to be supervised. A subsequent petition was filed alleging past sexual abuse by

mother against P. Mother denied the allegations in the petition.

The case was set for trial on the new petition concurrently with the 18-month

review hearing. The social worker reported that P. had claimed mother put her finger in

P.’s private parts as a punishment. Mother denied the allegations and stated that P. was

lying and was a “psychopath.” Mother also stated she never used physical discipline on

the children. According to mother, the marks on the children were from falling while

4 playing. Mother told the social worker that she originally admitted the abuse to start

services and get her children back. Mother visited P. once during the reporting period.

P. stated that she did not want to visit mother and had anxiety about visits. Mother’s

visits with M. were inconsistent. The social worker recommended visits with M. be

found detrimental due to the sexual abuse allegation and M.’s autism. The social worker

also recommended termination of reunification services and requested a hearing be set to

determine a permanent plan for P. In addition, she recommended a permanent plan of

legal guardianship be ordered for M.

Mother did not attend the hearing. P. was present and told the court she did not

want to live with mother but wanted to be adopted by her current foster parents, with

whom she felt safe and loved. The court sustained the allegations in the petition. The

court suspended visitation with both children and ordered reunification services

terminated. It set a hearing to determine a permanent plan for P.

P.’s selection and implementation hearing was held on January 25, 2016. The

social worker recommended termination of parental rights. There had been no visits

between mother and P. during the reporting period, and P. stated that she no longer

wanted to have visits with M., either. Mother was not present in court. The court

terminated parental rights as to P. and placed her with a prospective adoptive family.

Mother filed a timely notice of appeal.

5 LEGAL ANALYSIS

THE DUTY TO PROVIDE NOTICE UNDER ICWA DID NOT ARISE

Background

Mother contends that reversal is required because San Bernardino County

Children and Family Services and the juvenile court failed to provide notice of the

proceedings under ICWA to the relevant tribes before terminating her parental rights.

ICWA provides that in involuntary proceedings pertaining to the removal of

children from their parents if “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 of the pending proceedings. (25 U.S.C. § 1912(a).) The act defines “Indian child”

as “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).) As it applies to minors, the

Welfare and Institutions Code adopts that definition in its statutory scheme for

implementation of ICWA, “unless the context requires otherwise.” (Welf. & Inst. Code,

§ 224.1, subd. (a).)

In this case, mother filed a “Parental Notification of Indian Status” (form ICWA-

020) stating that as far she knew, she did not have Indian ancestry. The detention report

stated that ICWA does not apply because mother stated that she does not belong to a tribe

but might have Apache heritage. At the detention hearing in Los Angeles County, the

6 court inquired as to mother’s heritage. Mother’s attorney reported that mother had stated

that she had “heard” that she had some “family history,” but to her knowledge, she had

no “American Native” heritage. In response to the court’s question, mother stated that

any Indian heritage was on her mother’s side. She agreed with the court’s

characterization of the family history as “folklore” or “something that’s been passed

down.” She stated that she had no information regarding her parents or grandparents ever

being registered members of any tribe or if they had ever received any services.

The court ordered the social services agency to contact the maternal grandmother

to “determine whether there’s any additional information which would lead the court to

believe there’s any American Indian heritage that is sufficient to trigger the Indian Child

Welfare Act.” The court found that ICWA was not implicated at that point, but that the

finding was subject to reevaluation if further information was developed.

In the jurisdiction and disposition report, the Los Angeles County social worker

reported that she had spoken to the maternal grandmother, who reported that she might

have Cherokee ancestry. The grandmother had no “ancestry information” available, but

stated that she would call her mother (the maternal great-grandmother). At the

jurisdiction and disposition hearing, there was no discussion of the applicability of

ICWA, and the court did not make any further order concerning its applicability. The

case was then transferred to San Bernardino County.

The initial report and all subsequent reports prepared by San Bernardino County

Children and Family Services (hereafter referred to as “the agency”) stated that ICWA

does not apply. There was no discussion of ICWA at any of the San Bernardino hearings.

7 There is no report that contains any reference to efforts to obtain further information from

the maternal grandmother concerning her possible Indian heritage.

Forfeiture

The agency contends that mother has forfeited review of this contention by failing

to raise it in the juvenile court in a timely manner so that the court could have complied

with the requirements of ICWA. It notes that mother did not raise the question of ICWA

compliance at the jurisdiction and disposition hearing, did not raise it in an appeal from

that order, and had never raised it at all in the proceedings in San Bernardino County. It

relies on the familiar rule that appellate review is not available if an issue could have

been raised in the trial court but was not. (In re Marriage of Arceneaux (1990) 51 Cal.3d

1130, 1138.) However, the purpose of ICWA is to promote the protection and

preservation of Indian tribes and their resources, including their children and families,

which Congress found to be vital to the continued existence and integrity of the tribes.

(25 U.S.C. § 1901.) The protection of this interest is at the core of ICWA. (Mississippi

Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 52.) Accordingly, the tribe

has “an interest in the child which is distinct from but on a parity with the interest of the

parents.” (Ibid.) The purpose of ICWA’s notice requirement is “to enable the tribe to

determine whether the child is an Indian child and to advise the tribe of its right to

intervene” (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267) and, thus, protect the

tribal interests recognized by Congress in enacting ICWA. In the absence of adequate

inquiry and/or notice, the tribes have no voice in the proceedings and cannot act to

protect their own rights. (Samuel P., at p. 1267; In re Kahlen W. (1991) 233 Cal.App.3d

8 1414, 1421.) For this reason, the majority of appellate opinions have rejected claims of

forfeiture based on parental inaction prior to the termination of their parental rights. (See

cases collected in Guardianship of D.W. (2013) 221 Cal.App.4th 242, 249.) We agree

with this reasoning and hold that mother’s inaction did not forfeit appellate review.

After this cause was submitted for decision, the California Supreme Court

addressed this issue in In re Isaiah W. (July 7, 2016, S221263) ___ Cal.4th ___ [2016

Cal.Lexis 4742]. In that case, the court stated: “We agree with the majority view among

the Courts of Appeal that ‘given the court’s continuing duty throughout the dependency

proceedings to ensure [that] the requisite notice is given [citation], and the protections the

ICWA affords Indian children and tribes, the parents’ inaction does not constitute a

waiver or otherwise preclude appellate review’ [citation]” of a contention that the

juvenile court failed to give notice as required by ICWA. (In re Isaiah W., supra, ___

Cal.4th ___ [2016 Cal.Lexis 4742 at p. *20].) Accordingly, we reject the agency’s

contention that the issue is forfeited.

Notice

Mother contends that the information she provided to the juvenile court at the

detention hearing, and that her mother confirmed afterward, was sufficient to trigger the

court’s duty to order noticing under ICWA. We disagree.

Notice is required if the court has “reason to know that an Indian child is

involved.” (25 U.S.C. § 1912(a); see Welf. & Inst. Code, § 224.2, subd. (a).) The

circumstances under which a dependency court has reason to know a child is an Indian

child are set forth in California Rules of Court, rule 5.481(a)(5), and include, as relevant

9 here, where “[t]he child or a person having an interest in the child, including an Indian

tribe, an Indian organization, an officer of the court, a public or private agency, or a

member of the child’s extended family, informs or otherwise provides information

suggesting that the child is an Indian child to the court [or] the county welfare

agency . . . .” Vague or speculative information, such as a statement that a child “may

have” Indian ancestry, does not give the court any reason to believe that the child is an

Indian child. (In re J. D. (2010) 189 Cal.App.4th 118, 124, and cases cited therein.) The

information provided by mother and the maternal grandmother that P. “might” have

Apache or Cherokee ancestry is not sufficient to trigger the notice requirement.

We also reject any implication in mother’s briefing that either the court or the

social service agency in either Los Angeles County or San Bernardino County had a duty

to pursue any additional information that the maternal great-grandmother might have

been able to provide. Upon receiving information that suggests that a child is or may be

an Indian child, a social services agency has a duty to inquire of the parent and the child’s

extended family members to obtain any further information that is available to assist the

court in determining whether notice to a tribe or tribes, or to the Bureau of Indian Affairs

(BIA), is required. (Cal. Rules of Court, rule 5.481(a)(4)(A).) Under both ICWA and

California law, “extended family member” includes the child’s “grandparent, aunt or

uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second

cousin, or stepparent.” (25 U.S.C. § 1903(2); accord, Welf. & Inst. Code, § 224.3,

subd. (c) [adopting ICWA definition of extended family member].) It does not include

great-grandparents. Accordingly, although the maternal great-grandmother might have

10 had additional information, the social workers had no statutory duty to pursue it directly

with her. Nor, did the social workers have a duty to conduct an independent investigation

for further information. (In re C.Y. (2012) 208 Cal.App.4th 34, 41.)

Nevertheless, even though no duty to provide notice arose based on the

information provided by mother and the maternal grandmother, mother correctly notes

that after the case was transferred to San Bernardino County, both the agency and the

court had an ongoing obligation to make inquiry into P.’s possible Indian status. Welfare

and Institutions Code section 224.3, subdivision (a), provides that both the court and the

county welfare department have “an affirmative and continuing duty . . . in all

dependency proceedings” to inquire whether the child is or may be an Indian child. The

duty of inquiry continues throughout the proceedings in the dependency court. It ceases

only when the court has provided proper notice to the relevant Indian tribes and to the

BIA, and either the tribes “respond that the minor is not a member or not eligible for

membership, or if neither the BIA nor any tribe provides a determinative response within

60 days.” (In re Isaiah W., supra, ___ Cal.4th ___ [2016 Cal.Lexis 4742 at pp. *24].)

“At that point, the court is relieved of its duties of inquiry and notice ([Welf. & Inst.

Code,] § 224.2, subd. (b)), unless the BIA or a tribe subsequently confirms that the child

is an Indian child (§ 224.3[, subd.] (e)(3)).”2 (Id. at p. *23].) Accordingly, even though

the Los Angeles County court did not have a duty to notice any tribe or the BIA based on

2 Presumably, even after a negative response from noticed tribes, the court’s duty to inquire, and if warranted to give notice, would arise anew if the court later receives new information sufficient to give it reason to know the child is an Indian child.

11 the information mother and the maternal grandmother provided, the duty to inquire

continued after the case was transferred to San Bernardino County. It was error,

therefore, for the agency to report that ICWA does not apply, and it was error for the

juvenile court to fail to inquire whether there was any reason to know that P. was an

Indian child. Mother did not, however, seek to bring to the court’s attention any further

information that would give the court reason to know that P. was an Indian child, and she

does not represent on appeal that any such information existed. Moreover, her reference

to the ongoing duty to inquire appears to be a typographical error, in that she otherwise

limits her argument to the contention that a duty to give notice existed, based on the

information that was presented to the court.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

RAMIREZ P. J.

MILLER J.