Filed 4/4/18 In re D.M. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re D.M., a Person Coming Under the Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,

Plaintiff and Respondent,

v.

N.M.,

Defendant and Appellant.

F076183

(Super. Ct. No. 517363)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Ruben` A. Villalobos, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
N.M. (mother) appeals from the juvenile court’s order terminating her parental rights to the minor, D.M. (Welf. & Ins. Code, § 366.26). Mother contends the juvenile court erred when it terminated her parental rights without compliance to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We will reverse and remand for limited ICWA proceedings.
FACTS AND PROCEEDINGS
Because the sole challenge on appeal is to the lack of the juvenile court’s ICWA determination, a detailed recitation of the facts and non-ICWA related procedural history is unnecessary to our resolution of this appeal. Relevant facts will be discussed where pertinent and necessary to our discussion of the issue raised.
On September 18, 2015, the Stanislaus County Community Services Agency (Agency) filed a juvenile dependency petition pursuant to section 300, subdivisions (b) and (j) alleging newborn D.M. was at substantial risk of harm due to mother and father’s child welfare history in Stanislaus County, including nine referrals, a voluntary family maintenance case, and a dependency involving the minor’s three older siblings, in which reunification services were terminated in January 2015 due to mother and father’s non-compliance with their case plan and the failure to alleviate the conditions that led to the removal of the children. The petition also alleged mother had previous drug use and a history of mental health issues.
At the September 21, 2015, detention hearing, both mother and father were present and D.M. was ordered detained. Both mother and father submitted ICWA-20 forms claiming Indian heritage: father reported he had Cherokee and Blackfeet heritage and mother that she had Shawnee, Blackfeet, and Cherokee heritage. The juvenile court found that ICWA might apply and jurisdiction and disposition was set for October 26, 2015.
The jurisdiction/disposition report filed by the Agency stated ICWA “does or may apply.”
Amended ICWA notice, to correct the name of the paternal great grandfather, was sent to the Blackfeet, Shawnee and Cherokee tribes on October 13, 2015. The “green cards” mail receipts of the notices by the tribes were filed October 23, 2015, indicated that the last of the designated tribes to receive the notice received it on October 19, 2015. On October 26, 2015, the dependency court determined that ICWA notice had not been timely, continued the matter to November 20, 2015, and ordered new notice be sent.
The third set of ICWA notices were sent to the Shawnee, Cherokee, and Blackfeet tribes on October 30, 2015. Green cards for all noticed tribes were filed November 13, 2015, indicating that the last tribe to receive notice received it on November 3, 2015.
At the contested jurisdictional hearing November 20 and 24, 2015, the juvenile court noted that all ICWA green card receipts had been returned in a timely fashion, but it was “unknown” whether ICWA applied. The juvenile court found the petition true, removed D.M. from mother and father’s custody and, despite the Agency recommendation to the contrary, ordered reunification services for both parents.
On January 5, 2015, the Agency submitted a motion for a determination that ICWA did not apply to the case. It attached all Shawnee, Cherokee, and Blackfeet tribes’ responses indicating that the minor was not ICWA eligible as to each tribe. On January 8, 2016, the juvenile court found that ICWA did not apply.
Both the May 18, 2016, six-month and December 13, 2016, 12-month status review reports state ICWA “does not apply.” At the December 13, 2016, review hearing, the juvenile court terminated services for both parents and set a section 366.26 hearing for April 13, 2017. Both parents filed notices of intent to file writ, but did not follow through and the matters were dismissed by this court as abandoned.
The section 366.26 report recommended termination of parental rights and adoption as the permanent plan for D.M.
On April 13, 2017, the date scheduled for the section 366.26 hearing, counsel for father asked for a continuance because she had just filed an updated ICWA-20 form indicating father had Choctaw heritage. Counsel explained father had provided her with “actual physical pictures of registration cards for his great grandfather who was a Choctaw member,” information father had just found on ancestry.com. Because father’s previous ICWA-20 form listed other tribes, but not Choctaw, the juvenile court continued the matter to May 22, 2017, in order to send notice to the Choctaw tribes.
On May 22, 2017, the hearing was again continued, this time because ICWA notice had not gone out in a timely fashion - the Agency had been waiting for additional information from father and, once that was received, the ICWA clerk “went out on leave.” The hearing was continued to July 11, 2017.
On May 26, 2017, the Agency sent ICWA notice to the Bureau of Indian Affairs (BIA) and the three Choctaw tribes: the Choctaw Nation of Oklahoma, the Mississippi Band of Choctaw Indians, and the Jena Band of Choctaw. On page 2 of the ICWA-30 form, under “additional information,” the Agency asked the tribes to review the attachment, which included additional extended family information. The attachment indicated that the Agency’s family connections worker had done extensive work on father’s family genealogy and listed paternal relatives back to the minor’s great great grandparents, including the minor’s great great grandfather, O.B., who was born in Oklahoma and reportedly an enrolled member of the Choctaw tribe. Attached were copies of O.B.’s WWI draft registration card and census documents. No tribal registration cards were presented.
On June 20, 2017, the Agency filed the green card receipts indicating all three tribes and the BIA had received the notices as of June 2, 2017.
On July 11, 2017, neither parent appeared at the section 366.26 hearing. The juvenile court denied mother’s counsel’s request for a continuance due to mother’s unexplained absence. The Agency gave a verbal update indicating it had received three letters indicating the minor was not ICWA eligible, but had not yet received a letter from the Jena Band of Choctaw.
The juvenile court found proper notice had been given. It further found that it was “unknown” if ICWA applied, as the Jena Band of Choctaw had not yet replied. The court then found D.M. was adoptable and terminated mother and father’s parental rights.
DISCUSSION
Mother contends the juvenile court erred in terminating her parental rights without first making a determination about the applicability of the ICWA. She asserts the error was prejudicial requiring reversal for further proceedings. We agree.
The purpose of ICWA is to protect the interests of Indian children and promote 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 Levi U. (2000) 78 Cal.App.4th 191, 195-196.) The juvenile court and the Agency have “an affirmative and continuing duty to inquire” whether a child is, or may be, an Indian child. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a).) 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 the BIA if the tribal affiliation is not known. (§ 224.2, subd. (a); see rule 5.481(b); 25 U.S.C. § 1912.)
Notice requirements are construed strictly. (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) Where notice has been given, any error in notice is subject to harmless error review. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.)
“Aside from its notice provisions, the ICWA applies only to Indian children. [Citations.] Only when information before the juvenile court is sufficient to show that the child is a member of a tribe, or is eligible for membership and is the child of a member, does [rule 5.482(c)(2)] require compliance with all of the provisions of the ICWA.” (In re L.B. (2003) 110 Cal.App.4th 1420, 1427.) It is up to the tribe to determine whether a child is, or is not, a member and thus an Indian child. (§ 224, subd. (c); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255.)
Mother has standing to raise ICWA compliance issues, without regard to her own heritage. (In re O.C. (2016) 5 Cal.App.5th 1173, 1180, fn. 5; accord, In re B.R. (2009) 176 Cal.App.4th 773, 779-780.) Moreover, issues pertaining to ICWA notice or a juvenile court’s finding that a child is not an Indian child may be raised on appeal from the order terminating parental rights, even where the party failed to raise ICWA issues at the section 366.26 hearing or when the court made its initial ICWA finding. (In re Isaiah W. (2016) 1 Cal.5th 1, 15; In re B.R., supra, at pp. 779–780.)
Here, as of April 13, 2017, the original date of the section 366.26 selection and implementation hearing, the Agency and the juvenile court had information provided by father’s counsel that father might have Choctaw heritage through a great great grandfather who was a Choctaw member. In light of this new information (father’s previous ICWA-20 form listed other tribes but not Choctaw), the juvenile court continued the matter to May 22, 2017, in other to send notice to the Choctaw tribes.
Due to various delays, it was not until May 26, 2017, that the Agency sent ICWA notice to the BIA and the three Choctaw tribes, the Choctaw Nation of Oklahoma, the Mississippi Band of Choctaw Indians, and the Jena Band of Choctaw. On June 20, 2017, the Agency filed the green card mail receipts indicating all three tribes and the BIA had received the notices as of June 2, 2017.
The selection and implementation hearing was ultimately continued to July 11, 2017. At the hearing, the Agency gave a verbal update indicating it had received three letters indicating the minor was not eligible, but had not yet received a response from the Jena Band of Choctaw. The juvenile court found proper notice had been given. It further found that it was “unknown” if ICWA applied, as the Jena Band of Choctaw had not yet replied. The court then found D.M. was adoptable and terminated mother and father’s parental rights.
“If after notice has been provided as required by federal and state law and neither the tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, then the court may determine that the Indian Child Welfare Act does not apply to the proceedings .…” (Rule 5.482(c)(1); see also § 224.3, subd. (e)(3).) Lack of timely response allows the court to infer the ICWA does not apply with respect to the nonresponding tribe. (§ 224.3, subd. (e)(3).)
At the time of the juvenile court’s termination of parental rights, the 60-day response period required by rule 5.482(c)(1) had not yet elapsed. That is, as of July 11, 2017, D.M.’s ICWA eligibility as to the Jena Band of Choctaw was still pending.
While there is no requirement under the ICWA for the court to wait 60 days from notice to the tribes to hold a section 366.26 hearing, there are good reasons to do so. Since the Jena Band of Choctaw had yet to respond as of July 11, 2017, the juvenile court could not definitely rule the ICWA did not apply to the minor at the section 366.26 hearing, which was held less than 60 days after the tribe was notified. Under the ICWA, when the court has reason to believe the minor is an Indian child, in addition to notifying the relevant tribes within 10 days of any hearing, termination of parental rights is not allowed “in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (25 U.S.C. § 1912(f).) In other words, to terminate parental or custodial rights to an Indian child, the court must find detriment (i.e., that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child) beyond a reasonable doubt.
In contrast, California law, as applied to non-ICWA cases, has no requirement closely analogous to title 25 United States Code section 1912(f). Instead, while a finding that returning the child would be detrimental must be made at every hearing at which the child is either removed from parental custody or not returned, at the dispositional hearing, the finding must be supported by clear and convincing evidence (§ 361, subd. (c)); at a review hearing, it must be supported by a preponderance of the evidence (§§ 366.21, subds. (e)-(f), 366.22, subd. (a)); and the setting of a section 366.26 hearing, at which return of the child is no longer an issue, occurs as a matter of course if reunification services are not offered or are unsuccessful after the statutorily set reunification periods. At none of these hearings in non-ICWA cases is the juvenile court required to make any findings beyond a reasonable doubt.
Here, until the juvenile court could determine the ICWA did not apply to the minor, the provisions of title 25 United States Code section 1912(f) applied to the termination proceedings. The court plainly could not have made that determination on July 11, 2017, when it terminated parental rights.
DISPOSITION
The juvenile court’s judgment terminating parental rights is reversed and the matter is remanded for limited proceedings to determine ICWA compliance. If, at the conclusion of those proceedings, no tribe indicates D.M. is an Indian child within the meaning of the ICWA, then the juvenile court shall reinstate the order terminating parental rights. In all other respects, the judgment is affirmed.