Charles W. v. Superior Court

Filed 3/6/07 Charles W. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert J. Anspach, Judge.

Michelle R. Trujillo, for Petitioner.

No appearance for Respondent.

B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452 [formerly rule 38-38.1]) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to his son C. He also contends the juvenile court erred in failing to ask him whether he had any American Indian heritage, as required by the Indian Child Welfare Act (ICWA; 25 U.S.C.  1901 et seq.) While we will affirm the courts dispositional orders and findings, we agree the court erred in failing to comply with ICWA. Accordingly, we will remand the matter directing respondent to vacate the section 366.26 hearing and to comply with the ICWA.

STATEMENT OF THE CASE AND FACTS

C. is the second child born to petitioner and Katherine,^[2]a married couple. Their first child, M., a daughter, was removed from their custody in August 2005 because she was malnourished and had been physically abused. M.s neglect and maltreatment were attributed to petitioner and Katherines substance abuse, petitioners violent propensity and Katherines mental illness. The juvenile court assumed dependency jurisdiction and, on the basis of petitioners testimony that he had no American Indian heritage, found ICWA did not apply. The court also provided petitioner and Katherine six months of reunification services but discontinued them after they failed to comply. In August 2006, the court terminated their parental rights as well.

In September 2006, Katherine gave birth to C. At the time, Katherine was incarcerated on forgery charges and petitioner was incarcerated on charges of grand theft auto. A social worker from the Kern County Department of Human Services (department) took C. into protective custody at the hospital and filed a dependency petition on C.s behalf alleging he was at risk of nonaccidental physical abuse because of the abuse inflicted on M. While at the hospital, the social worker asked Katherine if either she or petitioner had any American Indian ancestry. Katherine stated petitioner did but that she did not.

The juvenile court detained C. pursuant to the dependency petition. At the detention hearing, the court inquired of Katherine as to C.s Indian heritage. The court found no evidence that C. was a member or eligible for membership in any federally recognized Indian tribe and found ICWA did not apply. The court also declared petitioner, who was not present, to be C.s presumed father and set the jurisdictional hearing.

Petitioner and Katherine were present at the jurisdictional hearing when the court found the allegations in the petition true and adjudged C. a dependent child. The court also ordered visitation and set the dispositional hearing.

In its dispositional report, the department recommended the court deny petitioner and Katherine reunification services pursuant to section 361.5, subdivision (b)(10) and (b)(11) because they failed to reunify with M. and their parental rights as to her were terminated. The department also reported that, despite petitioners previous denial of Indian heritage, he subsequently claimed to have Cherokee and Apache Indian ancestors on a questionnaire completed for the department. Real party in interest concedes the department failed to act on that information by complying with ICWA notice requirements.

On November 20, 2006, the court conducted the dispositional hearing. Petitioner testified he was primarily a recovering alcoholic but used methamphetamine for about a year and marijuana for about 15 years. He admitted his past mistakes but asked for services to reunify with C., claiming he changed after the court terminated his parental rights to M. He testified he was attending a 12-Step program in jail and believed he could complete a reunification plan within eight months to a year after he was released from custody, which was scheduled to occur in March 2007.

Following argument, the court ordered C. removed from parental custody and denied both parents reunification services pursuant to section 361.5, subdivision (b)(10). The court also set a section 366.26 hearing for March 20, 2007. This petition ensued.

DISCUSSION

Petitioner raises three claims of error: (1) the juvenile court failed to ascertain his paternity status, (2) the social worker demonstrated prejudice against him by revealing his alcoholism in a mediation report, and (3) the court erred in failing to inquire about his American Indian heritage. With respect to paternity, the appellate record does not support petitioners claim. The court deemed him C.s presumed father and accorded him all the rights and benefits of that status. Nor does the record support petitioners contention the social worker was prejudiced against him. The only example petitioner offers of prejudice is the social workers alleged disclosure in the mediation report that he is an alcoholic. Since mediation is confidential and the appellate record does not contain the report, we cannot verify that such a disclosure was made. However, if it was, we can reasonably infer that petitioner revealed his alcoholism during mediation as he did during his testimony at the dispositional hearing. Consequently, to the extent that petitioners alcoholism was prejudicial at all, it was no more prejudicial as revealed by the social worker than it was as revealed by petitioner himself. Moreover, it is more reasonable to infer that the social worker reported the fact of petitioners alcoholism to the court because of its relevance to the case rather than out of malice.

With respect to the courts failure to inquire about petitioners American Indian heritage, real party in interest properly concedes this error. 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.) As relevant here, the department and the juvenile court have an affirmative duty to inquire at the outset of dependency actions whether the juvenile subject of the proceedings is an Indian child. (Cal. Rules of Court, rule 5.664(d) (rule).) If, after the petition is filed, the court knows or has reason to know that an Indian child is involved, notice of the pending proceeding and the right to intervene must be sent to the tribe or to the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (25 U.S.C.  1912(a); Rule 5.664(f).) Failure to comply with the notice provisions and to make a determination whether ICWA applies is prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)

In this case, the department had reason to believe that petitioner had American Indian heritage but failed to ask him directly. In addition, the department failed to notify the BIA of pending dependency proceedings. The departments failure to comply with ICWA necessitates remand but only for the limited purpose of allowing the juvenile court to comply with ICWA.

DISPOSITION

Let an extraordinary writ issue, directing respondent court to vacate its order entered on November 20, 2006, setting a section 366.26 hearing for March 20, 2007. Respondent court is further directed to ensure that the department inquires as to petitioners Native American heritage and gives notice of the underlying proceedings in compliance with ICWA to the BIA and any identified tribes. (25 U.S.C.  1912.) Respondent court shall document its efforts to provide notice by filing such documentation and any and all responses received with the trial court. (See In re H.A. (2002) 103 Cal.App.4th 1206, 1214-1215.) If any tribe responds by confirming that the child is or may be eligible for membership within 60 days of sending proper notice under ICWA to the BIA and any identified tribes (Rule 5.664(f)), the court shall proceed pursuant to the terms of ICWA. If no tribe so responds, the court may reinstate its order setting the section 366.26 hearing.

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^*Before Harris, Acting P.J., Cornell, J., and Kane, J.

^[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

^[2] Katherine did not file an extraordinary writ petition from these proceedings.