Filed 11/28/18 In re Jazmine S. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Kathleen S. (mother) is the mother of Jazmine S., who is the subject of a dependency proceeding initiated under Welfare and Institutions Code section 300.[1] Mother appeals from the court’s six-month review hearing orders on the ground that the court incorrectly ruled that notice under the Indian Child Welfare Act (ICWA) had been provided as by law. We agree with mother and conditionally reverse to ensure ICWA compliance.

BACKGROUND

I.

The Dependency Proceedings Below

In February 2017, the Napa County Department of Health and Human Services (Department) received a referral that mother had given birth to Jazmine S. At the time, a son of mother and of Jazmine’s father was the subject of an open dependency case in Los Angeles County, having been removed from the parents’ care at birth due to general neglect involving parental drug exposure in September 2015. The parents’ services were terminated regarding this son in May 2017.[2]

In July 2017, the Department received a report that a neighbor of Jazmine’s family had called the police after hearing mother in the middle of the night calling for help and yelling at someone to get out of her home, as well as a baby crying. The responding police officer observed that Jazmine’s parents were under the influence, mother to the point that she could not stand. Mother said she and father had been drinking and argued, but she and father denied having a drinking problem. The investigating social workers observed beer cans, empty bottles of liquor, dirty dishes and clutter in the home, and father appeared to be under the influence of alcohol.

A few days later, the Department filed a petition alleging that Jazmine, then four months old, came within section 300, subdivision (b). The Department alleged regarding mother that she had a lengthy history of substance abuse, had been observed to be so intoxicated by alcohol that she could not stand, had cognitive impairments from a 2003 traumatic brain injury and engaged in conduct that placed Jazmine at a substantial risk of harm. The Department also alleged the parents’ history of domestic violence placed Jazmine at a substantial risk of harm.

The court ordered Jazmine to be detained in foster care. It held a combined jurisdiction and disposition hearing on August 31, 2017. The Department recommended that mother engage in counseling, substance abuse treatment, random urinalysis testing and parenting education, have regular visitations and undergo psychological counseling. Mother did not oppose these recommendations. The court sustained the petition allegations, adopted the Department’s recommendations and scheduled a six-month review hearing.

For a contested six-month review hearing held in March 2018, the Department reported that Jazmine was a healthy child who had developed a close and caring relationship with her resource family. Mother was meeting most of the requirements of her case plan and did well with structure, but it was “unclear if [she] had the cognitive ability to be flexible and think critically when it [came] to the changing needs of her growing child.” Mother had significant cognitive and mental difficulties as discussed in a psychological evaluation that has been filed under seal with this court. The Department recommended that the court order reunification services for another six months.

At the hearing, mother argued she had not been provided with reasonable services because she had waited from December 2017 to February 2018 for the Department to provide her with the doctor’s report on her psychological evaluation and a referral for anger management. The juvenile court found that reasonable services had been provided and that mother had made significant progress, ordered further reunification services, and continued the matter to the twelve-month review hearing.

II.

The ICWA Actions Below

Regarding the Indian Child Welfare Act (ICWA) issues mother raises in this appeal, she indicated at the July 2017 detention hearing that she believed she had Native American ancestry, including through Jazmine’s maternal grandmother and maternal great-grandmother. She stated a first and last name for Jazmine’s maternal great-grandmother, which we refer to here as “Lill [S.],” and stated maternal great-grandmother’s birthdate was January 5 without stating the year. Father was unsure if he had Native American ancestry. The court ordered mother to provide an ICWA form to the Department. The juvenile court found that the ICWA might apply and that ICWA notice was required.

Soon after this detention hearing, mother indicated in writing to the Department that she might have “Modoc” ancestry. In the Department’s August 8, 2017 jurisdiction/disposition report, the reporting social worker wrote that on July 27, 2017, after learning from a Los Angeles social agency that the maternal great-grandmother was a registered member of the Modoc Tribe of Oklahoma (Modoc Tribe), the social worker sent an ICWA notice to the Modoc Tribe regarding Jazmine, and also called the Tribe to try to verify the maternal great-grandmother’s registration with that Tribe (without indicating whether she obtained this verification). The social worker also reported that on August 2, 2017, she spoke to mother and Jazmine’s foster parents about Jazmine’s possible Native American ancestry. At some point, mother indicated she was eligible for membership in the Modoc Tribe but had never felt the need to register, and did not feel she would benefit from connecting with the tribe.

On July 28, 2017, the Department filed with the court a copy of the notice of a child custody proceeding for an Indian child that it mailed on July 27, 2017, to, among others, the Bureau of Indian Affairs and the Modoc Tribe regarding Jazmine. Among other things, the Department listed mother’s complete name, address and birthdate, and listed her tribe as “Modoc Tribe of Oklahoma, Modoc, Continental U.S. Indian Tribes.” It listed the maternal grandmother’s complete name, and information for her address, birthdate and date of death (which date was earlier that month), and listed as her tribe, “Klamath Tribes, Modoc, Continental U.S. Indian Tribes, Modoc Tribe of Oklahoma, Modoc, Continental U.S. Indian Tribes.” For the maternal great-grandmother, the Department listed the same first name (“Lill”), but a different last name than mother had earlier provided (which we state here as “[G.]”); indicated her former and present addresses, date and place of birth, and date and place of death were unknown; and provided a tribal membership number for her. It listed mother’s biological father and biological grandfather as unknown.

On August 4, 2017, the Department filed an ICWA compliance document with the court that contained a letter from Regina Shelton of the Modoc Tribe stating that Jazmine was not a member of the Modoc Tribe nor eligible for membership, and that her biological parents also were not eligible. After receiving this letter, the record does not indicate the Department provided another notice of any proceedings in this case to the Modoc Tribe.

On August 7, 2017, the Department filed with the court an amended notice of a child custody proceeding for an Indian child that it mailed to the Klamath General Council on August 7, 2017, regarding Jazmine. It included the same information as the previous notice it sent to the Modoc Tribe and added additional information. The Department added that maternal great-grandmother was known by two last names, providing the name mother had given at the detention hearing (“Lill [S.])” in addition to the name it had provided in its previous notice to the Modoc Tribe (“Lill [G.]”), stated maternal great-grandmother’s year of birth as 1942, and added the “Klamath Tribes” to her list of possible tribes. The Department listed the same tribal membership number for maternal great-grandmother as in the previous notice, but did not indicate to which tribe it applied. On August 15, 2017, the Department filed another form notice of a child custody proceeding for an Indian child (for a different hearing date than the previous notice) mailed to the Klamath General Council regarding Jazmine containing this same information.

Soon thereafter, the Department filed an ICWA compliance document with the court that included a letter from Klamath Tribes Social Services stating that Jazmine was not enrolled and was not eligible for enrollment within the Klamath Tribes based on the information provided, and that the Klamath Tribes would not be intervening in the case. The record does not indicate that the Department provided another notice of any proceedings in this case to the Klamath General Council.

The juvenile court determined on August 31, 2017, as part of its jurisdiction and disposition orders after hearing, that Jazmine might be an Indian child and that ICWA notice of the proceeding had been provided as required by law. After the contested six-month review hearing in March 2018, the court ruled that Jazmine was not an Indian child and ICWA did not apply because the tribal determinations the court had received indicated she was not a member and was not eligible for membership in the tribes.

Mother filed a timely notice of appeal from the court’s order after the contested six-month review hearing, stating in her notice that she was appealing “specifically the finding that reasonable services ‘are being provided.’ ”

DISCUSSION

Mother argues the juvenile court erred in finding that ICWA notice was provided as required by law. She contends the Department’s ICWA notices to the Modoc Tribe and Klamath General Council do not contain sufficient information about Jazmine’s maternal great-grandmother to determine Jazmine’s Indian status, and that the Department did not conduct a sufficient investigation into Jazmine’s possible Native American ancestry because it failed to interview available maternal relatives who could “reasonably be assumed” to have additional relevant information. We agree.[3]

ICWA provides that an “Indian child” is “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).) “The ICWA confers on tribes the right to intervene at any point in state court dependency proceedings.” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) Thus, “[t]he minimum standards established by ICWA include the requirement of notice to Indian tribes in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights ‘where the court knows or has reason to know that an Indian child is involved.’ (25 U.S.C. § 1912(a).)” (Isaiah W., supra, 1 Cal.5th at p. 8.) “ ‘Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents . . . or state agencies.’ ” (Dwayne P., at p. 253.) Only the tribe may determine whether a child is a member or eligible for membership, so there is no generic blood quantum minimum required for, or “remoteness” exception to, the ICWA notice requirements. (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1386–1387.)

ICWA notice requirements are strictly construed. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) Notice “must . . . contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child’s eligibility for membership.” (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) California law tracks ICWA notice requirements. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 56 (Charlotte V.).) It requires notice to the Indian child’s tribe if the social worker or court “knows or has reason to know that an Indian child is involved” in the proceedings. (§ 224.3, subd. (d).) This includes when a person having an interest in the child provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s parents, grandparents or great-grandparents are or were a member of a tribe. (§ 224.3, subd. (b)(1); Isaiah W., supra, 1 Cal.5th at p. 15 [“section 224.3, subdivision (b) sets forth a nonexhaustive list of ‘circumstances that may provide reason to know the child is an Indian child’ ”].) If the court or the social worker “knows or has reason to know that an Indian child is involved, the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents . . . and extended family members to gather the information required . . . .” (§ 224.3, subd. (c).) “[N]otice shall include . . . [a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents . . . , including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.” (§ 224.2, subd. (a)(5)(C).)

“The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. [Citation.] We review the trial court’s findings for substantial evidence.” (In re E.W. (2009) 170 Cal.App.4th 396, 403–404.) In applying the substantial evidence test, we “resolve all conflicts and make all reasonable inferences from the evidence to uphold the court’s orders, if possible.” (In re David M. (2005) 134 Cal.App.4th 822, 828.)

Mother bases her ICWA claim on two categories of failure by the Department. She contends, first, that the Department failed to provide all known information regarding maternal great-grandmother in its ICWA notices and, second, that the Department failed to sufficiently inquire about Jazmine’s possible Native American ancestry from relatives because it did not inquire of other available maternal relatives besides mother. According to mother, “[i]t is reasonable to assume that someone would know whether maternal great grandmother was still alive and her complete date of birth. As a result, the information provided about maternal great grandmother was incomplete and insufficient for tribes to determine if Jazmine was an Indian child.”

The Department responds that substantial evidence indicates it provided proper ICWA notice because it inquired of the parents whether Jazmine might have Native American ancestry. It points out that mother stated at the detention hearing and subsequently that she believed she had Modoc Tribe ancestry through maternal grandmother and maternal great-grandmother; that the Department followed up with mother for additional information; that it could not make ICWA inquiries of maternal grandmother because she had recently passed away; that through its contact with a Los Angeles child welfare agency, it learned maternal great-grandmother was a Modoc Tribe member and obtained her membership number; and that it contacted Jazmine’s maternal step-grandfather, uncle and maternal aunt, acknowledging that the record does not reflect if it asked about Jazmine’s possible Native American heritage.

The Department further contends that it “provided notice with all of the information it had” to the Modoc Tribe. It further contends that, “[i]n an abundance of caution,” it also provided notice to the Klamath General Council “because the Modoc peoples are currently divided between Oregon and Oklahoma and are enrolled in either of two federally recognized tribes, the Klamath Tribes in Oregon and the Modoc Tribe of Oklahoma.” The Department also argues that even if its ICWA inquiry and notice were insufficient, mother fails to show how any of the missing information on its notices would have made a difference given the information the Department included on the notices, particularly maternal great-grandmother’s tribal membership number.

As for mother’s contention that the Department’s ICWA inquiries of Jazmine’s relatives were insufficient, the Department points out that its social worker had contact with mother’s step-father, brother and sister-in-law. The Department asserts it may have asked about Jazmine’s Native American ancestry and provided the tribes and other parties with all known information, and that the burden is on mother to show otherwise.

In support of its arguments, the Department relies heavily on Charlotte V., supra, 6 Cal.App.5th 51. In Charlotte V., the mother of Charlotte argued that the termination of her parental rights should be reversed because the social service agency failed to provide sufficient information about Charlotte’s relatives to the Blackfeet Nation. The agency sent two notices containing information about mother, father, and Charlotte’s grandmother and uncle. They showed the mother’s name, address, birth date and place, and tribal affiliation. They also included a copy of her tribe identification card, which included her physical characteristics, her degree of Blackfeet ancestry and “blood,” and indicated she had lived on a reservation or federal trust land in Browning, Montana for several years and had Charlotte immunized in an Indian health clinic or a United States Public Health Service hospital in Browning. (Charlotte V., supra, 6 Cal.App.5th at p. 55.) The agency’s ICWA notices also included the name of the maternal grandmother without other identifying information. (Ibid.) In its second notice, the agency added the maternal grandfather’s name and address and a maternal uncle’s identifying information. (Ibid.) The agency indicated that other information about Charlotte’s grandparents and great-grandparents was “ ‘unknown,’ ” but identified them as affiliated with the “ ‘Blackfeet Tribe of Montana” except for maternal grandfather, whose tribal affiliation was stated as “ ‘not applicable.’ ” (Id. at p. 57.) The Blackfoot tribe responded twice, apparently to each notice, that it could not find Charlotte, her mother or the other relatives in its tribal rolls, and that it would review its rolls again if more ancestry information was provided. (Id. at p. 55.)

Charlotte’s mother argued that the notices were deficient because, among other things, they excluded all information about Charlotte’s maternal grandmother except for her name, and any information about Charlotte’s great-grandparents, all of whom had Indian ancestry. (Charlotte V., supra, 6 Cal.App.5th at pp. 57–58.) The mother claimed the agency could have gotten this information from Charlotte’s grandfather, uncle and cousin, but failed to do so. (Id. at p. 58.)

The court held there was substantial evidence to support the juvenile court’s finding that the agency had provided proper ICWA notice to the tribe. The court held that since Charlotte claimed Indian ancestry from her mother, the information the agency provided to the tribe was sufficient for meaningful review. (Charlotte V., supra, 6 Cal.App.5th at p. 57.) The court also stated, “nder federal and state law, additional information regarding Charlotte’s grandmother and great-grandparents, from whom Mother claims Indian ancestry, was required to be provided only if known. There is no indication in the record, however, that any other requisite information was known by DCFS and not provided to the tribe.” (Ibid.)

[u]

STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.

In re Jazmine S. (A154010)