Del Norte Cnty. Dep't of Health & Human Servs. v. A.R. (In re N.R.)
| Decision Date | 13 August 2019 |
| Docket Number | A156099 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re N.R., a Person Coming Under the Juvenile Court Law. DEL NORTE COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. A.R. et al., Defendants and Appellants. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Del Norte County Super. Ct. No. JVSQ17-6067)
N.R. (father) and A.R. (mother), the parents of two-year-old N.R., appeal from a juvenile court order terminating their parental rights under Welfare and Institutions Code section 366.26.1 Father claims the Del Norte County Department of Health & Human Services (Department) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). Mother claims the juvenile court erred by (1) denying her request for additional time to complete her case plan and (2) terminating parental rights before her mother, P.B. (grandmother), could be assessed for placement. We reject mother's claims but conditionally reverse the order terminating parental rights and remand to ensure compliance with ICWA-related requirements.
FACTUAL AND PROCEDURAL
Some of the following discussion is drawn from our prior opinion denying mother's petition for extraordinary writ review of the juvenile court's order setting a selection-and-implementation hearing. (A.R. v. Superior Court (Oct. 29, 2018, A154959) [nonpub. opn.].)
In March 2017, N.R. was born prematurely and tested positive for THC and morphine. That May, mother brought him to the emergency room with a skull fracture, stating that she had fallen asleep and accidentally dropped him. She "admitted to using . . . [m]orphine the night of the injury" and to waiting until the next day to take the baby to the hospital because she was afraid that the Department would get involved. At the time, father was in jail due to domestic violence against mother.
The Department filed a petition seeking juvenile court jurisdiction over N.R. under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (g) (no provision for support) based on his injury while in mother's care, mother's substance abuse and "unmet mental health needs," domestic violence between the parents, and father's incarceration. The juvenile court sustained allegations under section 300, subdivisions (a) and (b), adjudged N.R. a dependent child, and ordered that the parents receive reunification services. N.R. remained in the care of the same foster parents with whom he was placed after he left the hospital at nine weeks old.
At the January 2018 six-month review hearing, the juvenile court found that mother had not been provided with reasonable reunification services. It was undisputed that she had "some underlying mental issue," such as a learning disability, and the court found that the case plan did not adequately address that issue. The court ordered that both parents receive additional services. Six months passed, and in July 2018, at the twelve-month status review hearing, the court terminated both parents' services. The court also scheduled a selection-and-implementation hearing under section 366.26.
The November 2018 section 366.26 report recommended adoption as N.R.'s permanent plan. The report included an adoption assessment by the California Department of Social Services (CDSS) indicating that grandmother, an Oregon resident, was in the process of being assessed as an adoptive parent. At the November 5 hearing, the juvenile court granted the Department a continuance to allow grandmother's assessment to be completed. Then, after holding an evidentiary hearing, the court denied mother's section 388 petition seeking additional reunification services.
By the time of the rescheduled section 366.26 hearing on December 10, 2018, grandmother's assessment was still pending, and according to the Department this meant she was "not an option for placement." After hearing testimony about the delay, the juvenile court determined it was appropriate to postpone its consideration of the issue for 90 days so that Oregon could complete its assessment.2 Mother unsuccessfully requested that the section 366.26 hearing itself also be continued to allow Oregon to act, and the court ordered adoption as N.R.'s permanent plan and terminated parental rights.
Father claims that the Department failed to comply with ICWA notice requirements because it neglected to contact all of the appropriate tribes.3 We agree.
The May 2017 detention report indicated that the maternal grandfather reported "they have Cherokee heritage" and father and the paternal grandmother reported "they have Cherokee, Chiricahua, and Apache heritage." On May 9, the same day as the detention hearing, father filed an ICWA-020 form, "Parental Notification of Indian Status," on which he checked the box indicating he might have Indian ancestry. Next to the box he wrote, apparently referring to N.R.'s paternal grandmother, "Unknown: Mother has information." Mother also filed an ICWA-020 form on which she checked a box indicating that she might have Indian ancestry, specifying "Apache, Cherokee, Chiricahua."
At the detention hearing, the juvenile court directed father to fill out an ICWA-020 form. After the court realized father had already done so, the following exchange occurred:
Our record does not reflect why the juvenile court thought father might have Chickasaw or Comanche ancestry, as father did not list these tribes on his ICWA-020 form, and the record does not show that any of N.R.'s other relatives reported such ancestry either.
Two weeks later, the Department filed an ICWA-030 form, "Notice of Child Custody Proceeding for Indian Child," stating that N.R. was or might be eligible for membership in the Cherokee or Chiricahua tribes. The Department sent ICWA notices to the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians, and the Fort Sill Apache Tribe of Oklahoma, as well as the Secretary of the Interior and the Sacramento area director of the Bureau of Indian Affairs (BIA).
By the time the disposition hearing was held in late July 2017, the Department had received responses from the Eastern Band of Cherokee Indians and the Fort Sill Apache Tribe, both of which indicated that N.R. was ineligible for enrollment. In its letter, the Fort Sill Apache Tribe, whose letterhead identifies it as the "Fort Sill-Chiricahua-Warm Spring Apache Tribe," stated it is not the only federally recognized Apache tribe and provided contact numbers for seven other Apache tribes. At the hearing, the Department's counsel observed that "[t]he tribes were all noticed more than 60 days ago[,] . . . [s]o we're fine to proceed even without the [other] letters." The juvenile court then found that N.R. "may be an Indian child" and that "notice of the hearing and of the right of the tribe to intervene was provided as required by law."
The Department later received negative responses from the Cherokee Nation and the United Keetoowah Band of Cherokee Indians, and the Department's November 2018 section 366.26 report stated that ICWA did not apply. At the section 366.26 hearing the following month, the Department's counsel confirmed in response to the juvenile court's question that the case did "not involve an Indian child."
We start by discussing our standard of review and the applicable law. We review a juvenile court's determination that ICWA does not apply for substantial evidence, which requires us to review "factual findings in the light most favorable to the . . . order" and to " 'indulge in all legitimate and reasonable inferences to uphold [it].' " (In re H.B. (2008) 161 Cal.App.4th 115, 119-120.) The failure to comply with ICWA's notice requirements "may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child." (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.) In addition, "any failure to comply with a higher state standard, above and beyond what . . . ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error." (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
An "Indian child" is defined as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) The purpose of ICWA is "to protect the best interests of Indian children and to promote the stability and security of Indian tribes." (25 U.S.C. § 1902.) "ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) To further these goals, tribes may take jurisdiction over or intervene in state dependency proceedings. (25 U.S.C. § 1911(a) & (c).)
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