In re Baby Boy W., 012221 CAAPP1, A159211

Docket NºA159211
Opinion JudgeBanke, J.
Party NameIn re Baby Boy W., a Person Coming Under the Juvenile Court Law. v. S.V. et al., Defendants and Appellants. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent,
Judge PanelWe concur: Margulies, Acting P.J., Sanchez, J.
Case DateJanuary 22, 2021
CourtCalifornia Court of Appeals

In re Baby Boy W., a Person Coming Under the Juvenile Court Law.

CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent,

v.

S.V. et al., Defendants and Appellants.

A159211

California Court of Appeals, First District, First Division

January 22, 2021

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. J1900115

Banke, J.

A.J. (Mother) and S.V. (Father) appeal from orders following jurisdiction and disposition hearings declaring Baby Boy W. (minor) a dependent, ordering him removed from parents' custody, and ordering reunification services. Parents' sole contention on appeal is that the juvenile court erred by not complying with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). We affirm.

BACKGROUND1

In February 2019, the Contra Costa County Children and Family Services Bureau (Bureau) filed a petition alleging Mother was unable to provide regular care for the minor, then 21 days old, due to her history of substance abuse and because the minor's umbilical cord tested positive for methamphetamines, and further alleging Mother's parental rights had been terminated as to minor's half-sibling, C.W. (Welf. & Inst. Code, § 300, subds. (b) & (j).) Attached to the petition was California Judicial Council form ICWA-010 for minor.2 Boxes were checked indicating minor “may have Indian ancestry.” Maternal Grandmother reported to the social worker that C.W. was “a citizen of the Muscogee (Creek) Nation.”

The report prepared for the detention hearing recounted that the juvenile court had made a finding the previous year that ICWA applied to C.W., and that C.W. had “ ‘a Citizenship ID card with the Muscogee (Creek) Nation.' However, his ancestry was through his father and not through the half-siblings' shared parent, Mother.3

The juvenile court detained minor and set the matter for a jurisdiction hearing.

Mother filled out an ICWA-020 form.4 She identified tribes of which she was a member or was eligible for membership, as the Gull Bay First Nation Ojibway and Cherokee tribes. She also identified these as the tribes in which she might have Indian ancestry. She additionally confirmed C.W. was “a member of Muscogee Creek Nation, ” and identified both the tribe name and band. As to the “[n]ame and relationship of ancestor(s)” she wrote, “son, grandparents dad side Cherokee.”

Several months later, minor's Father filled out an ICWA-020 form indicating he had “no Indian ancestry.”

In a memo, filed June 2019, the Bureau requested that an “ICWA compliance hearing” be scheduled.5

That same month, at an interim hearing on immunizations, the County expressed frustration Mother had not yet filled out the ICWA-030 form the Bureau had sent her.[6] The Bureau explained that Mother had “previously... filled out an ICWA-020. What the Bureau does is take the -020 and we do further investigation. We say, Tell me about your mother. Tell about your grandmother. [The ICWA-030 is] a lengthy form that [the social worker has to finish completing]... and send to all the tribes that the mother indicates she may be a part of. [¶] [The social worker] had the previous ICWA-020 from [Mother's] previous child.... She said, Are there any updates? If so, please provide them and update us if there is any new information. We have yet to hear back from [Mother]. [¶] So when we send this information to the Bureau of Indian Affairs as well as any new tribes that she indicates she may be a part of, if that information is incomplete, it falls back on us.”

The court then directed its attention to Mother's counsel, stating Mother “needs to cooperate with this.” The Bureau needs “Mother's cooperation to give them all the details about who the people are that they need to talk to to identify which tribes. Your client has a history of doing whatever she can to not cooperate.”

At the end of the hearing, the court rescheduled the jurisdiction hearing. It also set a tentative date for the disposition hearing, which the court also ordered as the “ICWA compliance date.”

Mother then filled out a second ICWA-020 form indicating she was a member of or may be eligible in the “Gull Bay Band, ” that she “may have Indian ancestry” with the “Cherokee, Ojibway, Chippawa” tribes and bands. She also stated minor “may be a member of, or eligible for membership in” the “Gull [B]ay [B]and, Muscogee Creek Nation, Cherokee” tribes or bands. This time when checking the box indicating, “One or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe, ” she listed only minor's half-sibling when prompted for the “Name and relationship of ancestor(s).”

A month later, at the contested jurisdiction hearing, the Bureau first addressed ICWA. The Bureau explained it had sent Mother an ICWA-030 form to fill out, as well as C.W.'s ICWA-030 forms “to make it easier for her” to fill out minor's form. The day of the hearing, Mother sent back the form, which stated at the top “ ‘Please do not file this. I'm still working on it. Not complete.' ” However, the court observed, Mother had not filled in any information, and told counsel, “We need data. We need the information of grandparents, about great-grandparents. Where is that?” Mother's counsel explained, “[Mother] can provide the dates for grandparents, birthdays, et cetera... when she got all of that exact information, and I can forward it to County Counsel.” The court replied, “she was sitting outside for the better part of half an hour, at least 45 minutes, with this form; correct?” “[T]he concern I have is that [Mother] has not always been as cooperative in providing information and providing accurate information.... [¶]... [¶] Federal law and state law require that we give notice to the Indian tribes, which requires that parents provide information of who the parents are, who the grandparents are.... And this is information she has access to, and some of which I'm sure she had as she sat outside. [¶] So I'm having, again the experience of [Mother] that she's just not being cooperative, and she's trying to be obstructive rather than cooperative.” When asked when Mother “will... be able to have provided all of this information, ” her counsel stated August 1. The court ordered Mother to “complete [the] ICWA information and a fully executed ICWA 30 form, as well as correct any information and provide accurate information for any corrections on the ICWA 30 form that was provided to her.... She shall provide that to the bureau by August the 1st at 5:00 p.m.”

After county counsel asked the court to take judicial notice of Mother's “criminal history” and “dependency and termination of Mother's services” to minor's half-sibling, counsel for Mother and Father asked for a continuance. The court granted the continuance but expressed “concern[] about the delays on this ICWA issue” and suggested “we keep that August 6 date, have that be a date for the contested jurisdiction hearing. We can then, at that time, set a hearing if we need to for the ICWA compliance once we have ICWA notices that have been sent out.” County counsel responded, “I did want to let the court know that we have sent out our ICWA notice and our ICWA 030s based on information that we had up until, I think, last Tuesday, and that information was submitted and mailed out to all of the tribes that have been indicated by the mother up until today because she did file an ICWA 020. And so we filled out all of the information based on what she filed in her ICWA 020. She filed two separate ones with conflicting information, but we included all of that information, and we included all of the information from her previous child's case in regards to her because-which she was-she herself had no Native American ancestry, it was the child's biological father who had it. [¶] So for this purpose, I just want to let the court know we have sent ICWA 030s out. Once we get the mother's revised version, we will send out an amended version, if applicable.” The court replied, “Mother will provide that information to the bureau by 5:00 p.m. on August 1st.”

The jurisdiction hearing was held over the course of several days (August 6, August 29, September 11, and October 7). At the October 7 hearing, the court began by stating, “We're here today to continue the contested juvenile jurisdiction hearing in this case. And also for an ICWA hearing, though I understand there were some issues with respect to some of the notices having to be resent. So the ICWA issue is not yet ripe; is that correct?” County counsel stated, “The Court cannot find that does not apply, but the Court can find that notice was proper today.” The court replied, “I have here an extensive list of... trial exhibits, Exhibits Number 1 through 64. And I honestly have not had the opportunity to review all of Mother's representations with respect to claimed tribal affiliation... so I'm not sure I can find that notice was proper without going through all of these exhibits.... [¶] So she has claimed Vavle [sic] First Nation, Ojibwa, Cherokee, Muscogee Creek Nation, and Chippewa tribe. Is that correct?” “Okay. And it appears that those tribes have all been given notice. Is that your understanding?” County counsel replied, “Yes your Honor, with the last tribe being noticed on that September date.” The court found “notice has been given as required by law, ” as it did “appear that notice” was given but that “we do have several notices as to which the 60 days has not yet run, ” although “quite a few [tribes] have confirmed that the child is not a member of those tribes.” The court then scheduled a hearing for an ICWA determination.

At the November 18 ICWA compliance and disposition...

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