In re S.B.
| Decision Date | 30 June 2005 |
| Docket Number | No. E036823.,E036823. |
| Citation | 130 Cal.App.4th 1148,30 Cal.Rptr.3d 726 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re S.B., a Person Coming Under the Juvenile Court Law. San Bernardino County Department Of Children's Services, Plaintiff and Respondent, v. Jeannie V., Defendant and Appellant. |
Ronald D. Reitz, County Counsel, and Ramona E. Verduzco, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, Riverside, for Minor.
Jeannie V. (mother) appeals from an order terminating parental rights to her daughter, S.B. At the preceding hearing, at which the juvenile court set the termination hearing, the social worker learned for the first time that S.B. had Indian ancestry. At that point, the social worker attempted to give notice pursuant to the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (the ICWA). Although the notice did not comply fully with all applicable requirements, it did reach the Cherokee Nation (the Tribe), and the Tribe did respond. As a result, the mother and S.B. became members of the Tribe; the Tribe intervened; and, with the Tribe's approval, S.B. was placed with Indian foster parents who wanted to adopt her.
In the published portion of this opinion, we consider the mother's contention that the juvenile court and the social worker complied only belatedly with their duty under the ICWA to inquire into S.B.'s Indian ancestry. We will reject this contention for three reasons. First, the mother waived it by failing to raise it at the first opportunity; although a parent cannot waive an Indian tribe's rights under the ICWA, the parent can waive his or her own rights. Second, the fact that the social worker's reports stated that the ICWA did not apply, along with the fact that the ICWA check boxes on the petition were left blank, constituted sufficient evidence that an inquiry was made. Third, at least as to the mother, the asserted error was harmless. The detention hearing did not involve a foster care placement within the meaning of the ICWA; hence, the substantive provisions of the ICWA did not apply. The jurisdictional/dispositional hearing did involve a foster care placement, and we may assume the review hearings did as well, but there is no reasonable probability that, if the substantive provisions of the ICWA had been applied, the mother would have enjoyed a more favorable result.
In the unpublished portion of this opinion, we find no other error. Accordingly, we will affirm.
When this dependency proceeding was originally filed, S.B. was two, going on three. She is now five.
On November 7, 2002, because both of her parents were found to be under the influence of drugs, and because of hazardous conditions in the home, S.B. was detained. On November 8, 2002, the San Bernardino County Department of Children's Services (the Department) filed a dependency petition concerning her. Initially, she was placed in a group foster home. Within weeks, however, she was moved to a foster family home.
Both the report for the detention hearing and the report for the jurisdictional/dispositional hearing stated, "The Indian Child Welfare Act does not apply."
On December 2, 2002, at the jurisdictional/dispositional hearing, the parents submitted on the social worker's reports. The juvenile court found jurisdiction based on failure to protect. (Welf. & Inst.Code, § 300, subd. (b).) It ordered reunification services.
On January 14, 2004, at the 12-month review hearing, the juvenile court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26 hearing). At that same hearing, however, the social worker learned (apparently from the mother, but possibly from the maternal grandmother, who was at the hearing) that S.B. had Indian heritage.
On February 2, 2004, after obtaining the necessary information from the maternal grandmother, the social worker mailed a form SOC 318 to the Bureau of Indian Affairs (the BIA). That form would have provided information about S.B.'s ancestry. There is no indication, however, that the social worker sent a form SOC 319, which would have provided notice of the dependency proceeding. (See In re C.D. (2003) 110 Cal.App.4th 214, 223-226, 1 Cal. Rptr.3d 578.)
On February 18, 2004, the juvenile court held a "notice review" hearing. The maternal grandmother appeared and stated that she was a member of the Tribe. Counsel for the Department indicated that it was going to give notice pursuant to the ICWA.
Meanwhile, the Tribe responded to the notice already sent to the BIA. In a letter dated February 20, 2004, it confirmed that the maternal grandmother was a member of the Tribe and that S.B. was eligible for membership. A membership application was enclosed. The letter also stated: "The Cherokee Nation is not empowered to intervene in this matter unless the child/children or eligible parent(s) apply and receive membership."
On June 18, 2004, the mother filed a "motion to invalidate jurisdictional, dispositional, 366.21(e) and 366.21(f) findings and orders for failure to comply with the Indian Child Welfare Act and Welfare & Inst. Code section 360.6." (Capitalization altered.)
On July 2, 2004, the prospective adoptive parents indicated that they had changed their minds about adoption; they asked that S.B. be removed from their home.
On or about July 15, 2004, both the mother and S.B. became members of the Tribe. On July 27 (or 29), 2004, the Tribe filed a "Notice of Intervention." (Capitalization altered.)
On August 9, 2004, S.B. was placed with a family that wanted to adopt her. The prospective adoptive mother had both Cherokee and Navajo ancestry; the prospective adoptive father had both Cherokee and Cheyenne ancestry. Although not members of any tribe, they were "actively involved in cultural events" such as powwows. The Tribe took the position that, although it would have preferred a placement in the home of members of the Cherokee Nation, S.B.'s current placement was in her best interest because she "has adjusted to her community [and] school environment, and she will be raised attending cultural events with her foster/adoptive parents...."
On August 26, 2004, the juvenile court denied the mother's motion to invalidate prior orders. It then proceeded to hold a contested section 366.26 hearing. For purposes of the ICWA, it specifically found, beyond a reasonable doubt, that continued custody of the child by the parents was likely to cause serious emotional or physical damage to the child (see 25 U.S.C. § 1912(f)) and, by clear and convincing evidence, that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family (see 25 U.S.C. § 1912(d)). It also found that S.B. was adoptable and that none of the exceptions to termination of parental rights applied. It therefore terminated parental rights.
The mother filed a timely notice of appeal. The Tribe has been given notice of the appeal, including copies of all of the briefs. It has notified us, however, that it does not wish to participate in the appeal.
The mother contends the juvenile court should have granted her motion to invalidate previous findings and orders because the juvenile court and the Department had failed to inquire into whether S.B. was an Indian child.
Among the stated purposes of the ICWA are "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture...." (25 U.S.C.1902.)
In general, the ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(1)-(3), 1912-1918, 1920, 1921.) "Indian child" is defined as a child who 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).)
We are concerned with three types of ICWA provisions, which we will call the "notice provisions," the "substantive provisions," and the "enforcement provision."
First, under the notice provisions, if "the court knows or has reason to know that an Indian child is involved," the social services agency must "notify ... the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a).) "If the identity or location of ... the tribe cannot be determined," the notice need only be given to the BIA. (Ibid.) "No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by ... the tribe or the [BIA]." (Ibid.)
Second, under the substantive provisions, the Indian child's tribe has "a right to intervene at any point in the proceeding." (25 U.S.C.1911(c).) As a condition of any foster care placement or termination of parental rights, the court must find "that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (25 U.S.C. § 1912(d).) The court also must find, based at least in part on the "testimony of qualified expert witnesses," that "the continued custody of the child by the parent ... is likely to result in...
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Table of Cases
...197 (1984) . . . . . . . . . . . . . . . . . . . . . 48.07 Ryan; State v., 146 Wash. 114, 261 P. 775 (1927) . 64.05 S S.B., In re, 130 Cal. App. 4th 1148, 30 Cal. Rptr. 3d 726 (2005) 16.12 S.B.R., In re Custody of, 43 Wn. App. 622, 719 P.2d 154 (1986) . . . . . . . . . . . . . . . . 15.03[1......
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§16.12 Emergency Jurisdiction
...history confirms, Congress intended this section to apply to emergency removals and placements of all Indian children. In re S.B., 130 Cal. App. 4th 1148, 1163-64, 30 Cal. Rptr. 3d 726 (2005) (emphasis in original); see also H.R. Rep. No. 1386, at 25...