In re R.B., D050749 (Cal. App. 1/2/2008)

• Decision Date: 02 January 2008
• Docket Number: D050749
• Court: California Court of Appeals Court of Appeals
• Parties: In re R.B. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. H.T., Defendant and Appellant.

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In re R.B. et al., Persons Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. H.T., Defendant and Appellant.

D050749

Court of Appeals of California, Fourth Appellate District, Division One

January 2, 2008

NOT TO BE PUBLISHED

Appeal from judgments of the Superior Court of San Diego County, No. EJ2511A-B, James Lauer, Jr., Juvenile Court Referee. Dismissed in part, reversed in part and remanded with directions.

O'ROURKE, J.

H.T. (H.) appeals from judgments terminating parental rights to her children, R.B. (R.) and K.T. (K.), under Welfare and Institutions Code section 366.26.¹ H. asserts the court erred when it did not inquire of K.'s father whether K. is or may be an Indian child under the Indian Child Welfare Act (ICWA), title 25 United States Code section 1901 et seq., as required by California Rules of Court, rule 5.664(d), then rule 1439(d).² H. does not raise any issue with respect to R., and we dismiss the appeal as to R.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2004 the San Diego County Health and Human Services Agency (Agency) removed six-year-old R. and three-year-old K. (children) from the custody of their mother, H. The Agency alleged the children were at substantial risk of serious physical harm or illness because of H.'s inadequate supervision. (§ 300, subd. (b).)

At the initial hearing, H. completed a paternity questionnaire for each child. She alleged James B. was R.'s father. She did not know James's whereabouts, and did not know whether he had American Indian heritage. H. declared that K.'s father was Edward C. and paternity testing confirmed the biological relationship. She stated that Edward had helped support both children but was currently incarcerated. H. did not know whether Edward had American Indian heritage.

With respect to her own heritage, H., through counsel, stated: "There does not appear to be any American Indian heritage." The court found that H. did not know whether she had American Indian heritage and she did not indicate the children had American Indian heritage. The court determined ICWA did not apply (December 2004 finding).

The Agency conducted several due diligence searches for James, R.'s alleged father. James's whereabouts remained unknown throughout the proceedings, and paternity was not established.

The Agency located Edward at a California state prison shortly before the January 6, 2005, jurisdiction hearing. Edward waived his appearance until he was released from custody.

H. submitted to jurisdiction. (§ 300, subd. (b).) At the disposition hearing, the court removed the children from parental custody, placed them in foster care and ordered a plan of family reunification services for H. Because of R.'s needs for special services, the children were placed in separate foster homes.

The social worker interviewed Edward after his release from prison in March 2005. Her detailed report of the interview does not indicate she asked him whether he had any American Indian heritage. On March 30 Edward appeared in court for the first time and requested reunification services. The minute order does not show the court asked Edward whether K. is or may be an Indian child, or made findings concerning ICWA.³

Despite an extended period of services, H. did not show she could safely care for the children. Edward stabilized his situation, and the Agency supported his efforts to regain custody of K. However, Edward came to believe it would be emotionally detrimental to K. to remove her from the foster home and did not contest the Agency's recommendation to terminate parental rights. He supported K.'s proposed adoption by her foster parent, who also wanted to adopt R.

H. contested the recommendations and argued the beneficial parent-child exception applied to preclude termination of parental rights.

The court found that the children were adoptable and the beneficial parent-child exception did not apply, and terminated parental rights. The court did not make any inquiry or findings as to ICWA.

DISCUSSION

I. The Appeal As to R. Is Abandoned

H.'s appeal is based solely on alleged ICWA violations as to K. She does not raise any argument to support a theory the court erred when it terminated parental rights as to R. We treat her appeal as to R. as abandoned.⁴ (In re Barbara R. (2006) 137 Cal.App.4th 941, 949; see In re Randall's Estate (1924) 194 Cal. 725, 728-729.)

II. Introduction

H. contends the Agency and the court did not meet their duty to inquire of Edward whether K. is or may be an Indian child. She maintains the court erred when it did not order Edward to complete the mandatory form, Parental Notification of Indian Status (Juvenile Court) (form JV-130), as required by rule 1439(d)(3), now rule 5.664(d)(3).⁵ H. asserts this error requires this court to reverse the judgment terminating parental rights to K. and remand the case to the trial court to comply with inquiry provisions under section 224.3 and rule 5.664(d), and if applicable, to provide ICWA notice. (§§ 224.2, 224.3, subd. (d); 25 U.S.C. § 1912.) H. contends she does not have to show the lack of inquiry was prejudicial.⁶

The Agency acknowledges the record does not expressly establish that the court ordered Edward to complete form JV-130. The Agency contends H. lacks standing to raise the issue of inadequate notice or, alternatively, has forfeited the issue on appeal by not raising the issue in the trial court. The Agency submits that the record, taken as a whole, establishes that it and the court satisfied the duty to inquire whether K. is or may be an Indian child. In the event this court finds inadequate inquiry, the Agency argues reversal is not required because the record does not contain any evidence to show K. is or may be an Indian child; therefore, H. has not shown that "a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)

III. Duty of Inquiry

In 1978 the United States Congress resolved to protect and preserve Indian tribes and their resources and, to accomplish that purpose, passed ICWA. (25 U.S.C. §§ 1901, 1902.) ICWA was specifically designed to help Indian children retain their familial, tribal and cultural ties. (In re Crystal K. (1990) 226 Cal.App.3d 655, 665.) It sets forth minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes. (25 U.S.C. § 1902.)

Under the notice provision of ICWA, if "the court knows or has reason to know that an Indian child is involved," the agency must "notify . . . the Indian child's tribe . . . of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a).) Because the lack of " 'proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe," notice requirements are strictly construed.' " (In re Karla C. (2003) 113 Cal.App.4th 166, 174.)

Where the state provides a higher level of protection to the rights of a parent or Indian custodian of an Indian child than federal law, ICWA directs state and federal courts to apply the higher state standard. (25 U.S.C. § 1921; see § 224, subd. (d).) ICWA was adopted in California effective January 1, 1995, as rule 1439. (10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 522, p. 640.)

At the time K.'s dependency proceedings were initiated in December 2004, rule 1439(d) provided: "The court and the county welfare department have an affirmative duty to inquire whether a child . . . is or may be an Indian child. (1) Section 1(l) or 1(m) of the Juvenile Dependency Petition (Version One ) (JV-100) . . . must be checked if there is reason to know the child may be a member of or eligible for membership in a federally recognized Indian tribe or if there is reason to believe the child may be of Indian ancestry." Here, the social worker did not check sections l(l) or l(m) on the section 300 petitions filed for R. and K.

Effective January 1, 2005, the Judicial Council amended rule 1439(d) to place on the court and agency "an affirmative and continuing 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." (Rule 1439(d), italics added; see Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines) (44 Fed.Reg. 67584, 67586, § A(1) (Nov. 26, 1979)).) The amended rule also directed the social worker to ask the parents whether the child may be an Indian child or may have Indian ancestors and instructed the court to order the parent to complete form JV-130, Parental Notification of Indian Status, at the first appearance by a parent in any dependency case. (Rule 1439(d)(2), (3).) This rule was in effect at the time of Edward's first appearance on March 30, 2005.

Effective January 1, 2007, the Legislature codified ICWA notice requirements set forth in the BIA Guidelines, rule 1439(d) and case law in a comprehensive reorganization of statutes related to the application of ICWA. (Sen. Bill No. 678 (2005-2006 Reg. Sess.) § 31; 10 Witkin, Summary of Cal. Law (2007 supp.) Parent and Child, § 526, pp. 100-101; cf. In re J.T. (2007) 154 Cal.App.4th 986, 993; see BIA Guidelines, supra, 44 Fed.Reg. at p. 67588, § B.5(a); rule 5.664; In re A.C. (2007) 155 Cal.App.4th 282, 286.) Here, at the time of the section 366.26 hearing, this reorganization, including section 224.3, was in effect.

Section 224.3, subdivision (a) imposes an "affirmative and continuing duty" on the court and agency "to inquire whether the child for whom a petition . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings . . . ." 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...