In re Blaze E.

Filed 8/2/06 In re Blaze E. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant challenges the order of the juvenile court terminating his parental rights to Blaze E. pursuant to Welfare and Institutions Code section 366.26.[1] He contends that his statutory right to be present at the section 366.26 hearing was violated and that the court did not comply with the Indian Child Welfare Act (ICWA). We remand for proper notice under the ICWA.

Background

Blaze E. was born in October 2004 and removed from his mother, Ms. E., at birth due in part to Ms. E.'s longstanding and ongoing substance abuse problems. At the detention hearing, the court ordered a paternity test to determine if appellant was Blaze's father, appointed counsel for appellant, who was present, and authorized monthly visitation between Blaze and appellant. At the jurisdiction/disposition hearing in November 2004, the court ordered Blaze removed from Ms. E. and appellant with family reunification services for Ms. E., and supervised monthly visitation for appellant. Blaze and his older sister Elizabeth were placed in a non-relative foster home.

In April 2005, having received confirmation of his paternity of Blaze, appellant filed a section 388 petition. He asked the court "that he be elevated to presumed or legal father and given Family Reunification services and increased visitation." On May 3, 2005, appellant's counsel advised the court that appellant was "in custody at the Santa Cruz County Jail, and she was not able to get him transported" for the hearing on his petition. The court continued the matter to May 13 and ordered appellant to be transported. Appellant was present on May 13 and the matter was continued to June 9.

On June 9, the matter was continued to June 10 at which time appellant's counsel advised the court that "she [did] not know why the minor's father [was] not present" and she requested a continuance. The court denied the request for a continuance and denied appellant's section 388 petition without a hearing. The court then held the six-month review hearing and, consistent with the recommendation of the social worker, terminated reunification services to Ms. E. and set the matter in October for a hearing under section 366.26 to determine a permanent plan for Blaze and Elizabeth.

The report prepared for the section 366.26 hearing said that Blaze had been living with his current foster parents since he was a few days old and that they wanted to adopt both him and Elizabeth. The report stated that Blaze did not have "a relationship of any kind" with appellant and that appellant "ha[d] not participated in visits for the past six months." The report noted that the current caregivers were the prospective adoptive parents but that "just prior to this hearing relatives of both minors have come forward and have requested that they be considered for placement and adoption. The Agency is in the process of assessing and clearing these relatives."

On October 7, 2005, appellant's counsel appeared and told the court that appellant was in custody in Santa Clara County. She said, "I was not aware of that until this week. I will have transport orders for the Court to sign today." When the court asked counsel if appellant wanted to be present for a settlement conference, counsel said that he would. The court said, "So that's easy enough." The court continued the matter to November 9. The record contains the order to produce commanding the Director of the Santa Clara County Jail to deliver appellant to the custody of the Santa Cruz County Sheriff for transportation to the November 9 hearing "unless the prisoner executes the attached waiver or refuses to be transported."

On November 9, appellant was not present. His counsel told the court, "My client is in custody in Santa Clara. I'm aware he has a federal hold so he was not transported for today." Counsel requested a continuance. The court said, "My understanding is he still has pending criminal charges in Santa Clara that have not disposed yet. He is not a sentenced prisoner. . . . I'm going to deny the request for a continuance. Even though he does have a federal hold, I don't believe he will be transported to this jurisdiction, and if he is an unsentenced prisoner, it's more than likely that will not happen as well based on that."

Counsel told the court, "I did speak with him because he was concerned about his transportation for today. He did want to come. He had requested that his son be placed with his sister. She had looked forward to the Agency requesting placement. He wanted his son placed with her. He is not in agreement with parental rights being terminated unless his child is with relatives."

The court found Blaze and Elizabeth adoptable, terminated parental rights, and ordered a permanent plan of adoption.

Penal Code Section 2625

Appellant contends, "Proceeding with the section 366.26 hearing in the incarcerated parent's absence was statutory error requiring reversal." Penal Code section 2625, subdivision (b) requires that an incarcerated parent be given notice of any hearing to terminate parental rights under section 366.26. (See In re Julian L. (1998) 67 Cal.App.4th 204, 208.) Penal Code section 2625, subdivision (d) provides that if the incarcerated parent indicates to the court he or she desires to be present, no proceeding may be held under section 366.26 "without the physical presence of the prisoner or the prisoner's attorney" unless the parent waives his or her presence. In In re Jesusa V. (2004) 32 Cal.4th 588, our Supreme Court confirmed that this statute requires the incarcerated parent's physical presence unless waived.[2] (Id. at pp. 623-624.)

Subdivision (a) of Penal Code section 2625 states, "For the purposes of this section only, the term 'prisoner' includes any individual in custody in a state prison, the California Rehabilitation Center, or a county jail, or who is a ward of the Department of the Youth Authority or who, upon a verdict or finding that the individual was insane at the time of committing an offense, or mentally incompetent to be tried or adjudged to punishment, is confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private treatment facility." (Italics added.) Appellant argues that because he was a prisoner in the Santa Clara County Jail, and thus in the custody of the Santa Clara County Sheriff at the time of the section 366.26 hearing, he was a prisoner within the meaning of Penal Code section 2625 despite having a federal hold on him. Respondent, citing In re Maria S. (1997) 60 Cal.App.4th 1309, argues that "the federal nature of appellant's custody . . . did not trigger the coverage of Penal Code section 2625, and the juvenile court was entitled to proceed as it did."

In In re Maria S., upon which Jesusa V. relied, the court held that although Penal Code section 2625 establishes a procedure through which state prisoners in California are able to attend dependency hearings, there is no procedure facilitating the attendance of out-of-state or federal prisoners. The court said that the absence of such a procedure did not require the juvenile court to suspend dependency proceedings. In making its decision, the court looked to the child's compelling rights to a stable and loving family. (Maria S., supra, 60 Cal.App.4th at p. 1313.)

Appellant argues, "although [appellant] may have been subject to a federal hold, a California county sheriff had actual custody over him and was the entity responsible for the expense, logistics and security issues involved in transporting him to the county where the section 366.26 hearing was scheduled." Appellant asserts, "the juvenile court erred in this case when it allowed the section 366.26 hearing to proceed without verification from the Santa Clara County Sheriff that it was unable or unwilling to produce the prisoner at the hearing."

We are troubled by the juvenile court's failure to enforce its transportation order. When counsel first informed the court that appellant was in custody in Santa Clara County, the court said that it would be "easy enough" to secure appellant's presence at the next hearing. Yet in denying appellant's counsel's continuance request at the time of the section 366.26 hearing, the court seemed to rely as much on appellant's "pending criminal charges" and status as "an unsentenced prisoner" as on the federal hold in shrugging off the Santa Clara County Sheriff's non-compliance with the court's order to produce appellant. Penal Code section 2625 makes no distinction between sentenced and un-sentenced prisoners. The record here gives us no basis for understanding either the Santa Clara County Sheriff's refusal to transport a prisoner who is subject to a federal hold or awaiting sentencing or the juvenile court's resignation to this state of affairs. The juvenile court was statutorily required to issue an order for appellant's temporary removal from Santa Clara County and his production on the date of the section 366.26 hearing in juvenile court. In the absence of a sufficient reason for excusing the juvenile court's decision to decline to enforce that order and to proceed with the section 366.26 hearing in appellant's absence, we cannot say that there was no error.

A violation of Penal Code section 2625, however, is subject to a harmless error analysis. (Jesusa V., supra, 32 Cal.4th. at pp. 624-625.) Accordingly, the involuntary absence of an incarcerated parent from a dependency proceeding is reversible only if it is reasonably probable the result would have been more favorable to the parent absent the error. (Ibid.) The court there found the statutory violation harmless as there was no showing as to what additional evidence would have been presented had the incarcerated parent been present. (Ibid.)

In arguing that he has suffered prejudice, appellant points out that his counsel told the court that appellant wanted Blaze to be placed with appellant's sister. Appellant argues, "Even though there was no requirement for the court to give preference to consideration of a relative placement at the time of the section 366.26 hearing, the issue of relative placement might arise in the future should Blaze's current placement fail. Should that occur after termination of parental rights, [appellant] would have no opportunity to offer input as to the appropriateness of placing Blaze with the paternal aunt." This assessment of prejudice is unpersuasive for two reasons. First, the asserted prejudice would not even occur unless the adoptive placement failed and there is nothing in the record to support such speculation. Second, appellant's "input" about placement with his sister would have been irrelevant to the determination the court was to make at the section 366.26 hearing. If the child is found to be adoptable, "the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances--actually, exceptions to the general rule that the court must choose adoption where possible--'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 53.) On this record, it is clear that Blaze was adoptable and that none of the statutory exceptions applied. Appellant has not established that his presence at the hearing at which his parental rights were terminated would have resulted in a more favorable outcome. Any violation of the requirements of Penal Code section 2625 was therefore harmless.

The Indian Child Welfare Act

Appellant contends, "The court failed to ensure compliance with the Indian Child Welfare Act." We agree.

Applicable Law

"The ICWA is designed to protect the interests of Indian children, and to promote the stability and security of Indian tribes and families. It sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody." (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) For purposes of the ICWA, an Indian child is defined as an unmarried person under the age of 18 who is: (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.A. § 1903(4); Cal. Rules of Court, rule 1439(a)(1)(A) & (B).)

"Under the ICWA, where a state court 'knows or has reason to know' that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. (25 U.S.C. § 1912(a).) The court and the social services agency have 'an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child.' [Citation.]" (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.) Because the determination of a child's Indian status is a matter for the tribe, "the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the court and the county welfare department have an affirmative duty to inquire whether a dependent child is or may be an Indian child. [Citation.]" (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)

In Samuel P., we explained: "[A]fter a petition has been filed in a section 300 proceeding, if the court knows or has reason to know that the child is or may be an Indian child, the child's tribe 'must be notified of the pending petition and the right of the tribe to intervene in the proceedings.' [Citation.]" (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.) "If the information in the record shows there may be Indian ancestry, even though the child may not be an Indian child within the meaning of the ICWA, the court is required only to send notice of the proceedings to the identified tribe or tribes or to the Bureau of Indian Affairs (BIA), and to make further inquiry regarding the possible Indian status of the child. [Citation.]" (Ibid.) "The notice must include the names of the child's ancestors and other identifying information, if known, and be sent registered mail, return receipt requested. [Citation.] When proper notice is not given, the dependency court's order is voidable. [Citations.]" (In re Brooke C. (2005) 127 Cal.App.4th 377, 384.) The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.)

It is now widely accepted that in order "[t]o satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [the Department] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. ([Cal. Rules of Court, r]ule 1439(f).) Second, [the Department] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor's status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to [the] BIA." (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; see also In re Karla C. (2003) 113 Cal.App.4th 166, 175-176, 178.)

Often, in the case of children under the jurisdiction of the juvenile court, official tribal affiliation for the child or the parents is not known. What is known is anecdotal, incomplete information about family history. To assist in gathering appropriate information and establishing possible tribal affiliation, "[t]wo forms have been issued by the State of California Health and Welfare Agency and the Department of Social Services to comply with the ICWA. They are entitled 'Request for Confirmation of Child's Status as Indian' (form 'SOC 318') and 'Notice of Involuntary Child Custody Proceedings Involving an Indian Child' (form 'SOC 319')." (In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1108.)

Recently, reviewing courts have insisted that social service agencies obtain, if possible, more complete information. The court in In re C.D. (2003) 110 Cal.App.4th 214, held that "notice to a tribe under the ICWA must include not only the information provided in connection with form SOC 319, but also the information set forth in the BIA Guidelines at 25 Code of Federal Regulations part 23.11(d)(3), if such information is known, including the name of a child's grandparents. Therefore, form SOC 319 fails to provide sufficient notice of dependency proceedings to a tribe under the ICWA when an agency knows additional information about a child's family history, such as the names of the grandparents. The agency (DCFS in this case) has a duty to inquire about and obtain, if possible, all of the information about a child's family history included on form SOC 319 and in 25 Code of Federal Regulations part 23.11(d)(3)." (In re C.D., supra, 110 Cal.App.4th at p. 225, fn. omitted.) The court suggested that the agency should also send form SOC 318, which includes spaces for some of the information required in the Code of Federal Regulations. (Id. at pp. 225-226.)

As explained by the court in Karla C., supra, 113 Cal.App.4th at page 175, in order " '[t]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child's direct lineal ancestors.' (25 C.F.R. § 23.11(b) (2003).)" The federal regulations require ICWA notice to include, if known, (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child's parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. (25 C.F. R. § 23.11(d)(3) (2003).) (Ibid.) The other identifying information may include: maiden, married and former names or aliases, birth dates, places of birth and death, current and former addresses, and tribal enrollment numbers. (See In re S.M. (2004) 118 Cal.App.4th 1108, 1116; 25 C.F.R. § 23.11(a), (d).)

Discussion

Appellant argues, "The trial court did not ensure adequate information had been provided to the relevant tribes to ensure compliance with the ICWA." Appellant told the Agency that he has no Indian heritage. Ms. E. had told the Agency that she may have Choctaw heritage so the Agency, for Elizabeth's case, noticed the Bureau of Indian Affairs and the three Choctaw tribes. The Agency received negative determinations for Elizabeth. Nevertheless, in April 2005, the Agency sent notices as to Blaze to the same entities that were noticed in Elizabeth's case. By the time of the section 366.26 hearing, the three Choctaw tribes had responded with negative determinations as to Blaze and the court made a finding that the ICWA did not apply.

Appellant notes that as to Ms. E., her address in Watsonville and her date of birth were listed on the notices but that "No other information was provided. Not even her place of birth was included." As to Blaze's maternal grandmother, her name and date of birth were provided but "Neither her address, her place of birth, nor any other information was listed." As for Blaze's maternal grandfather, only his name and a post office box address were listed. Appellant argues, "The Agency made no attempt to provide other relevant information it already had in its possession or could easily have obtained from the mother or other maternal relatives."

Respondent assets, "The single fact identified by appellant that appears in the record but which was not in the mailed notice was the mother's place of birth (which was Santa Cruz according to the jurisdiction/disposition report). From this vantage point it is unknown whether this was an inadvertent omission, or whether the earlier statement about her place of birth had been called into question and so was omitted as not being a certainty." Respondent argues, "appellant has not shown that any result other than what occurred would have likely followed upon any additional notices: no fact indicating that a tribe would have responded differently than it did, and no indication that termination of parental rights would not be the court's order."

Here, the Agency was obliged to investigate Blaze's family history by undertaking a reasonable effort to obtain all of the information described in 25 Code of Federal Regulations part 23.11(d)(3) and to give proper notice to all identified tribes and the BIA area director of all the information listed in part 23.11, to the extent the information was known or could be reasonably obtained. If the noticing deficiencies here were procedural, such as a failure to comply with rules about the timing of the notices, the error might not be prejudicial. However, when, as here, the record shows that the omitted information concerned the family members from whom the Indian heritage derived, we have no basis for determining that the notice error was harmless. The order terminating parental rights must be conditionally reversed, subject to reinstatement if it is ultimately determined that Blaze is not an Indian child within the meaning of the ICWA.

Disposition

The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions that the Santa Cruz County Human Resources Agency provide proper notice to all three Choctaw tribes and the Bureau of Indian Affairs. The Agency is directed to file proof of receipt of such notice by the tribes and the Bureau of Indian Affairs, along with a copy of the notice and any responses. If, after receiving notice as required by the ICWA, no response indicates that Blaze is an Indian child, or the responses received indicate that he is not an Indian child within the meaning of the ICWA, the order terminating parental rights shall be immediately reinstated. If any tribe determines that Blaze is an Indian child within the meaning of the ICWA, the juvenile court shall conduct further proceedings applying the provisions of the ICWA, Welfare and Institutions Code section 360.6, and rule 1439 of the California Rules of Court.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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

[2] Subdivision (d) of section 2625 explains: "Upon receipt by the court of a statement from the prisoner or his or her attorney indicating the prisoner's desire to be present during the court's proceedings, the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner's production before the court. No proceeding may be held under Part 4 (commencing with Section 7800) of Division 12 of the Family Code or Section 366.26 of the Welfare and Institutions Code and no petition to adjudge the child of a prisoner a dependent child of the court pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j) of Section 300 of the Welfare and Institutions Code may be adjudicated without the physical presence of the prisoner or the prisoner's attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or his or her designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding."