Filed 12/15/17 In re S.S. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


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

HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
O.H.,
Defendant and Appellant.




A151268

(Humboldt County
Super. Ct. No. JV150087)


O.H. (Mother) appeals from the juvenile court order terminating her parental rights to her son, S.S. (Minor). Arguing that the court erred in not applying the relative placement preference at disposition, Mother asks us to order that Minor be placed in the home of his aunt T.S. Mother also argues that the juvenile court violated the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and that the matter should be remanded for compliance with ICWA. We conclude that Mother forfeited her claim of error as to relative placement by failing to raise the issue in the juvenile court, and that her ICWA claim has merit. Therefore, we will remand the matter for the limited purpose of compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2015, the Humboldt County Department of Health and Human Services (the Department) filed a dependency petition under Welfare and Institutions Code section 300, subdivision (b), alleging that Minor, then age 2, was at risk of harm due to his parents’ unwillingness or inability to care for him. The juvenile court order terminating Mother’s parental rights also terminated the parental rights of Minor’s presumed Father (Father), who is not a party to this appeal. We limit our discussion of the facts to those relevant to the ICWA and relative placement issues Mother raises on appeal.
A. Detention
In its detention report, the Department stated the following with respect to ICWA: “[ICWA] does not apply. The mother has reported there is no known Native American ancestry. It is requested the finding be made that ICWA does not apply as to this child. The mother will be provided an ICWA020[ ] to complete and file with the Court at the initial hearing. The alleged father[ ] will be provided an ICWA020 to complete and file with the Court.” With respect to relative placement, the Department stated that Minor’s maternal grandmother had been identified as a relative to consider for placement, and further stated that “due to her recent history with Child Welfare Services, it is unlikely she could pass background requirements for placement.”
At the detention hearing, Honorable Christopher G. Wilson presiding, the juvenile court appointed counsel for the parents, each of whom entered a general denial and submitted to detention. Father requested that Minor be placed with a paternal aunt, E.S., and Mother requested that Minor be released to his maternal grandmother.
The juvenile court found that a prima facie showing had been made that Minor was described by section 300 and continued detention was necessary. The court found that ICWA did not apply and ordered the parents to complete and file ICWA-020 forms. The court also ordered the Department to investigate the parents’ requests for placement. Pending further order, the court vested temporary placement, care, custody and control of Minor with the Department for further detention in foster, shelter or suitable relative foster care.
Father’s ICWA-020 form was filed the day after the detention hearing. Father checked the box indicating, “I may have Indian ancestry” and next to that wrote, “maternal relatives.” He did not provide requested information about name of tribe or band.
B. Jurisdiction
The Department’s jurisdiction report, dated nine days after the detention hearing, stated with respect to ICWA: “[ICWA] does not apply. The mother has reported there is no known Native American ancestry. The father has not reported that he has any Native American ancestry that would come under ICWA. The finding that ICWA does not apply was made at the Detention Hearing held on 04/20/2015.” The jurisdiction report said nothing about placing Minor with relatives.
The jurisdiction hearing was the first hearing held after Father submitted his ICWA-020 form. At that hearing, Honorable W. Bruce Watson presiding, the parties informed the court that they had reached a settlement as to the allegations in the petition. The court sustained the petition, as amended, and found by clear and convincing evidence that Minor was described by section 300. Neither Mother nor her counsel made any statement about placing Minor with relatives. The court said nothing on the record about ICWA, the written jurisdiction findings said nothing about ICWA, and the written orders said nothing specific about ICWA, but stated that all previous orders not modified by the jurisdiction order remained in effect.
C. Disposition
In the disposition report, the Department again stated that Mother reported no known Native American ancestry and Father had not identified any Native American ancestry that would come under ICWA. The Department reported that Minor had been placed in a foster home, that the foster parents were “working with [Minor] on behavior concerns” and following up with medical appointments, and that neither parent was then capable of caring for Minor. Minor’s aunt T.S. had been assessed and found eligible for placement.
At the hearing, Honorable Thomas P. Breen presiding, the Department reported that the parties had reached an agreement to submit on the disposition report with an interim-review hearing set about 30 days’ later to address the parents’ progress “and any change in recommendation regarding return of the child to mother’s care specifically.” Judge Breen noted that the court had previously found that ICWA did not apply, and went on to find that no new information had been received regarding Indian ancestry. The court declared Minor a ward of the court, ordered that he be placed in foster care or in the home of a suitable relative or non-relative extended family member, and ordered reunification services in accordance with the case plan that was prepared in consultation with Mother. Neither Mother nor her counsel made any statement about placing Minor with relatives. The court scheduled an interim review for July 2015, and a six-month review hearing for December 2015.
The record does not include a reporter’s transcript of the interim review hearing, held before Honorable Richard E. Kossow. The court’s minutes do not indicate that Mother or her counsel made any statement about placing Minor with relatives.
D. Six-Month Review
In the report prepared in December 2015 for the six-month review hearing, the Department stated that the court previously found that ICWA does not apply and that no new information had been received regarding Indian ancestry. The Department reported that three months earlier Minor was placed in a second foster home, after his first foster family gave notice because of issues with Minor’s behavior. With respect to placement with relatives, the Department reported that maternal grandmother came forward but was not approved for placement, and that a paternal aunt, who was not identified by name, “expressed interest but has not followed through with the approval process.” The Department recommended that reunification serves be terminated and a section 366.26 permanency planning hearing be scheduled.
On the date scheduled for the six-month review, Mother’s counsel requested that a contested hearing be set. Dates were then set for pretrial and a contested hearing. At the pretrial conference, the court set a date for the filing of issue statements. Mother’s issue statement said nothing about placing Minor with relatives.
Judge Wilson, who had presided over the detention hearing, also presided over the six-month review hearing. At the review hearing, Mother asked that the Department “do anything they can” to have Minor placed with maternal grandmother. According to Mother’s counsel, maternal grandmother indicated that she had “started an appeal process to overcome the apparent barrier to that placement.” Neither Mother nor her counsel made any statement about placing Minor with any other relatives.
As Judge Breen had done at the disposition hearing, Judge Wilson noted that the court had previously found that ICWA did not apply and that there was no new information about Indian ancestry. The court terminated reunification services to Mother and Father and set a section 366.26 permanency planning hearing for June 2016.
E. Section 366.26 Hearing
In its report prepared for the section 366.26 hearing, the Department stated that no new information had been received regarding Indian ancestry. With respect to relatives and extended family who might qualify to adopt Minor, the Department reported that Minor’s aunt T.S. “expressed interest, but her circumstances prevent her from taking placement.” Maternal grandmother had not been approved for placement. Minor’s second foster placement was not a concurrent placement, and Minor was moved to a third foster home in April 2016, which was considered a concurrent placement. Minor had settled in well, and his foster parents were interested in adopting him. The Department recommended terminating Mother’s and Father’s parental rights.
Judge Wilson, who had presided over the detention and six-month review hearings, presided over the section 366.26 hearing on June 13, 2016. At that hearing, neither Mother nor her counsel made any statement about Minor’s placement. Mother argued that the beneficial relationship exception to adoption should apply (see § 366.26, subd. (c)(1)(B)(i)).
As he did at the six-month review hearing, Judge Wilson said, “The Court previously found that [ICWA] does not apply. There is no new information received regarding Indian ancestry.” The juvenile court rejected Mother’s beneficial relationship argument, terminated Mother’s and Father’s parental rights, and ordered that Minor be placed for adoption.
With our permission, Mother filed a notice of appeal on June 15, 2017. By then, Minor’s adoption had become final and the dependency proceeding had been terminated.
DISCUSSION
A. Relative Placement
Mother argues that the juvenile court erred by failing to follow the relative placement preference set forth in section 361.3, and in delegating to the Department the decision whether Minor would be placed with his aunt T.S., who the Department “found eligible for placement” in advance of the disposition hearing. “ ‘Section 361.3 gives “preferential consideration” to a relative’s request for placement, which means “that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).)’ (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) . . . [¶] The Agency is required to assess those relatives seeking placement according to the factors described in section 361.3, subdivision (a) (placement factors) . . . . When considering whether to place the child with a relative, the juvenile court must apply the placement factors, and any other relevant factors and exercise its independent judgment concerning the relative’s request for placement. ([Id. at p. 1033].)” (In re Isabella G. (2016) 246 Cal.App.4th 708, 719, fn. omitted.) We conclude that Mother has forfeited this issue by failing to raise it in the juvenile court.
It is a general rule, applicable in dependency cases as in others, that an issue not raised at the trial court level is forfeited and may not be raised for the first time on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293 (S.B.).) In particular, appellate courts apply the forfeiture rule to issues of relative placement in dependency cases. (In re A.K. (2017) 12 Cal.App.5th 492, 500 [father forfeited claim by failing to raise relative placement objection at § 366.26 hearing]; In re Casey D. (1999) 70 Cal.App.4th 38, 54 [relative placement is an “intensely factual issue,” which may not be raised for the first time on appeal].) “The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” (S.B., supra, 32 Cal.4th at p. 1293.)
Here, Mother failed to raise the issue of whether Minor should be placed with T.S. in the juvenile court. She could have raised it at the disposition hearing, the interim review, and the six-month review hearing, but she did not. And she could have raised it in her issue statement for the section 366.26 hearing and at the hearing itself, but she did not. She could have filed a petition under section 388 requesting a change in Minor’s placement, but she did not. The only issue Mother ever raised before the juvenile court with regard to relative placement was her request that Minor be placed with his maternal grandmother, the denial of which Mother does not challenge on appeal. Accordingly, Mother has forfeited any claim that the juvenile court erred in not placing Minor with T.S, and we do not reach her arguments on the merits.
B. ICWA
Neither Mother nor Father raised any ICWA-related objection below. On appeal Mother argues that the Department and the juvenile court “did not do enough to determine” whether ICWA applies to this case, in view of the information provided by Father in his ICWA-020 form that he may have Indian ancestry.
1. Applicable Law and Standard of Review
“ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Jullian B. (2000) 82 Cal.App.4th 1337, 1344.) ICWA defines an Indian child as any unmarried person who is under age 18 and is either (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)” (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538 (Shane G.).)
“When a court ‘knows or has reason to know that an Indian child is involved’ in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child’s tribe notice of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); §§ 224.3, subd. (d), 290.1, subd. (f), 290.2, subd. (e), 291, subd. (g), 292 subd. (f), 293, subd. (g), 294, subd. (i), 295, subd. (g), 297; subd. (d); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941.) Alternatively, if there is insufficient reason to believe a child is an Indian child, notice need not be given. (In re O.K. (2003) 106 Cal.App.4th 152, 157; In re Aaron R. (2005) 130 Cal.App.4th 697, 707.)” (Shane G., supra, 166 Cal.App.4th at p. 1538.) When the identity or location of the tribe cannot be determined, notice is to be given to the Bureau of Indian Affairs. (25 U.S.C. § 1912(a); In re Kahlen W., supra, 233 Cal.App.3d at p. 1422.)
“The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) 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 biological parents, grandparents, or great-grandparents are or were a member of a tribe. [¶] (2) The residence or domicile of the child, the child’s parents, or Indian custodian is in a predominantly Indian community; [¶] (3) The child or the child’s family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service.” (§ 224.3, subd. (b)(1)-(3).)
If “circumstances indicate a child may be an Indian child, the social worker must further inquire regarding the child’s possible Indian status. Further inquiry includes interviewing the parents, Indian custodian, extended family members or any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility. (§ 224.3, subd. (c).) If the inquiry leads the social worker or the court to know or have reason to know an Indian child is involved, the social worker must provide notice. (§§ 224.3, subd. (d), 224.2, subd. (a)(5)(A)-(G).)” (Shane G., supra, 166 Cal.App.4th at p. 1539.)
We review the juvenile court’s findings whether ICWA applies for substantial evidence. (In re E.W. (2009) 170 Cal.App.4th 396, 404.) Accordingly, “[w]e review factual findings in the light most favorable to the juvenile court’s order. [Citation.] Indeed, ‘[w]e must indulge in all legitimate and reasonable inferences to uphold the [judgment]. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.’ [Citation.] Our deference to the fact finder, of course, is not without limit. The substantial evidence standard requires evidence that is ‘ “reasonable in nature, credible, and of solid value.” ’ [Citation.] A judgment is not supported by substantial evidence if it is based solely upon unreasonable inferences, speculation or conjecture. [Citation.]” (In re H.B. (2008) 161 Cal.App.4th 115, 119-120.)
2. Analysis
Mother claims that the Department “fell short . . . in its inquiry of [F]ather’s Indian ancestry and its reporting of that inquiry to the juvenile court.” She does not claim that the record shows that notice to any tribe or to the Bureau of Indian Affairs is necessarily required in the case. Instead, she argues that in view of Father’s statement that he may have Indian ancestry and his reference to “maternal relatives” on his ICWA-020 form, the juvenile court’s finding that ICWA does not apply must be supported by more than just the Department’s repeated statements that ICWA does not apply and its statement in the jurisdiction report that Father “has not reported that he has any Native American ancestry that would come under ICWA.” We agree.
By informing the Department and the juvenile court that he might have Indian ancestry on his mother’s side, Father provided information suggesting that one or more of Minor’s biological grandparents or great-grandparents are or were members of a tribe. (§ 224.3, subd. (b)(1).) Therefore, the Department was obligated to further inquire about Minor’s possible Indian status. (§ 224.3, subd. (c).) But the Department’s statement in the jurisdiction report is fairly read as a characterization of Father’s ICWA-020 form and nothing more. The Department’s statement in the jurisdiction report tells us what Father did not report, not what he did report, or when or where he reported it, or what he was asked. It does not constitute substantial evidence that the Department made the necessary inquiry. And nothing in the record suggests that the juvenile court specifically inquired of the Department or of Mother or Father as to any ICWA issues, or that ICWA was even mentioned at the jurisdiction hearing. And although the juvenile court judges who presided at subsequent hearings adopted the Department’s recommended ICWA findings, nothing in the record suggests any inquiry or colloquy on the subject. Accordingly, we find no substantial evidence in the record to support the juvenile court’s finding that ICWA did not apply.
We are not persuaded by the Department’s argument that the juvenile court could properly infer that the Department complied with its duty of inquiry from the repeated statements in the Department’s reports that ICWA did not apply. The two cases on which the Department relies for this argument are distinguishable. We begin with In re E.H. (2006) 141 Cal.App.4th 1330, where the social worker noted in the detention report that “ICWA might apply because E.H.’s ancestry at that time was unknown.” (Id. at p. 1332, italics added.) No statement was ever made by any party that E.H. or her parents had Indian ancestry (id. at pp. 1332-1333), and in subsequent reports, the social worker stated that ICWA did not apply. (Id. at p. 1334.) From that, the juvenile court could infer that the necessary inquiry had been made. (Id. at p. 1334.) Here, in contrast, the Department’s detention report stated flatly that ICWA did not apply even before any information was received from Father.
In the other case, In re S.B. (2005) 130 Cal.App.4th 1148, the agency’s petition left unchecked the boxes on the Judicial Council form that would indicate that ICWA might apply, and then represented affirmatively in its reports from the outset that ICWA did not apply. (Id. at pp. 1160-1161.) The juvenile court could properly conclude that the agency had made the necessary inquiry. (Id. at pp. 1161-1162.) But in In re S.B., as in In re E.H., there was no statement from either parent that they or their child might have Indian ancestry. (Id. at p. 1161.) Here, Father’s statement on his ICWA-020 form undercuts any inference from the Department’s repeated conclusory statements that the necessary inquiry was made.
Nor are we persuaded that any failure to comply with ICWA was harmless. The Department argues that because Mother does not claim that the substantive provisions of ICWA apply and does not describe any harm or prejudice from the alleged failure to comply with ICWA she has not demonstrated a miscarriage of justice that requires reversal. This argument is flawed, because it fails to acknowledge the purpose of ICWA to protect the interests of Indian tribes, and role of inquiry and, if necessary, notice, in protecting those interests. Furthermore, the two cases on which the Department relies are distinguishable. In In re N.E. (2008) 160 Cal.App.4th 766, inquiry and notice errors were harmless where they pertained to the possible Indian heritage of a parent who made no suggestion in the juvenile court or on appeal that he had any such heritage. (Id. at p. 770.) Here, in contrast, Father’s ICWA-020 form suggested that he might have Indian heritage. The department cites In re Cheyanne F. (2008) 164 Cal.App.4th 571, 577, which held that the omission of required information on an ICWA notice sent to a tribe is harmless where there is no basis to believe that providing the information would have produced different results about the minors’ Indian heritage. Here, however, we are not concerned with the omission of information from ICWA notice, but rather with the apparent failure to conduct the inquiry which would lead to ICWA notice. Father’s statement on his ICWA-020 form that he may have Indian ancestry provides a basis to believe that inquiry in response to that form may have produced different results.
It may be that the Department did in fact respond to Father’s ICWA-020 form with the required inquiry and can readily provide the juvenile court with substantial evidence to support a finding that ICWA does not apply. But on the record as it stands, there is no substantial evidence to support that finding.
It cannot be overstated that we are greatly troubled by taking any steps that could affect the child’s permanence with his adoptive family. It has been almost two years since reunification services were terminated, and more than a year and a half since Minor was placed with the foster parents whose adoption of him was approved earlier this year. We have no reason to believe that there will be any change with respect to Mother’s parental rights, which were terminated by the order that provides the occasion for this appeal.
Unfortunate situations like this need not occur, and this child deserves better. Attorneys practicing dependency law in the juvenile court must be sufficiently familiar with ICWA to point out any flaws in the record regarding inquiry and notice so they can be addressed promptly. The Department must not only comply with ICWA, but must provide the juvenile court with an adequate record on which to base its findings. If an ICWA-020 form suggests any Indian ancestry, the juvenile court must determine what further inquiries were made. (See § 224.3, subd. (a).) And juvenile court judges must not assume that a finding made at one hearing—including a finding made by a different judge—can be unquestioningly repeated at a subsequent hearing.
DISPOSITION
The order terminating Mother’s parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the Department to conduct an ICWA inquiry (if the Department has not done so already) and provide sufficient information for the juvenile court to determine whether ICWA applies, and, if necessary following the inquiry and determination, to order ICWA notice and conduct any further proceedings in compliance with ICWA. If the juvenile court finds that ICWA does not apply or if, after notice is provided, no tribe claims Minor to be an Indian child, the order terminating Mother’s parental rights shall be reinstated.
 









_________________________
Miller, J.


We concur:


_________________________
Richman, Acting P.J.


_________________________
Stewart, J.








A151268, Humboldt County Dept. of Health & Human Services v. O.H.