Riverside Cnty. Dep't of Pub. Soc. Servs. v. E.K. (In re K.R.)

• Decision Date: 22 February 2018
• Docket Number: E069276
• Citation: 229 Cal.Rptr.3d 451,20 Cal.App.5th 701
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE K.R. et al., Persons Coming Under the Juvenile Court Law. Riverside County Department of Public Social Services, Plaintiff and Respondent, v. E.K., Defendant and Appellant.

20 Cal.App.5th 701

229 Cal.Rptr.3d 451

IN RE K.R. et al., Persons Coming Under the Juvenile Court Law.

Riverside County Department of Public Social Services, Plaintiff and Respondent,

v.E.K., Defendant and Appellant.

E069276

Court of Appeal, Fourth District, Division 2, California.

Filed February 22, 2018

Elizabeth Klippi, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

McKINSTER Acting P. J.E.K. appeals from an order terminating her parental rights to her three children. The sole issue she raises is lack of compliance with the Indian Child Welfare Act of 1978, or ICWA ( 25 U.S.C. § 1901, et seq. ), and with Welfare and Institutions Code sections 224 et seq. We agree, and we will conditionally reverse the order and remand the matter for compliance with those statutes.

BACKGROUND

Because we address only an ICWA claim, a brief synopsis of the factual and procedural history will suffice.

A petition pursuant to Welfare and Institutions Code section 300 was filed on May 23, 2016, as to the three minors, then age three years, two years, and 20 months, respectively. The children's father, R.R., died of a heroin overdose

on April 24, 2016. The petition alleged that mother was unable to provide adequate care for the children and endangered them as a result of her abuse of controlled substances and her untreated mental health issues.

The petition was sustained on June 15, 2016, and reunification services were ordered. Mother had overdosed on heroin several times before the petition was filed. She overdosed again in August 2016. Ultimately, reunification services were terminated. The children were placed in a prospective adoptive home. Parental rights were terminated on October 2, 2017.

Mother filed a timely notice of appeal on October 5, 2017.

LEGAL ANALYSIS

Mother informed the court that neither she nor the children had Indian ancestry, and at the jurisdiction and disposition hearing, the court found that ICWA does not apply. Later, in response to information that the children might have Cherokee heritage though their father, respondent Riverside County Department of Public Social Services (DPSS) gave notice of the proceedings to three Cherokee tribes and to the Bureau of Indian Affairs.¹

At the six-month review hearing in December 2016, DPSS informed the court that it had received responses from two of the tribes, stating that based on the information provided, the minors were not Indian children. DPSS stated that it was still waiting for a response from the third tribe. Mother made no objection to the sufficiency of the notices, and the court found that the notices were proper. A response was later received from the third tribe, also stating that the children were not Indian children.

At the review hearing in February 2017, mother apparently made no objection to the notices or noticing procedures, and the court found that ICWA does not apply.²

Mother now contends that DPSS did not properly investigate the children's possible Cherokee heritage and that it omitted mandatory information from the ICWA notices sent to the tribes. She contends that the court had a continuing duty through the Welfare and Institutions Code section 366.26 hearing to make ICWA inquiries and that an implied finding was therefore made at that hearing that ICWA does not apply. She contends that the sufficiency of the investigation is therefore cognizable on appeal from the order terminating parental rights.

The Issue Is Cognizable in This Appeal.

Mother is correct that the juvenile court has a continuing duty to conduct an inquiry when it has received information that a dependent child might be an Indian child, as defined by ICWA, and to provide notice to any relevant tribe. This duty arises both under ICWA itself and under California's parallel statutes, Welfare and Institutions Code sections 224 et seq. ( In re Isaiah W. (2016) 1 Cal.5th 1, 5, 203 Cal.Rptr.3d 633, 373 P.3d 444 ( Isaiah W . ).)³ The purpose of both statutory schemes is to "enable[ ] a tribe to determine whether the child [who is the subject of involuntary proceedings in a state court] is an Indian child and, if so whether to intervene in or exercise jurisdiction over the proceeding." ( Id . at p. 5, 203 Cal.Rptr.3d 633, 373 P.3d 444.) The juvenile court's duty to inquire when it has reason to know that an Indian child is involved in such a proceeding and to provide sufficient notice to any relevant tribe is independent of any obligation on the part of the parents of the dependent child: The court and the agency must act upon information received from any source, not just the parent ( Welf. & Inst. Code, §§ 224.2, subd. (a), 224.3, subd. (b)(1) ), and the parent's failure to object in the juvenile court to deficiencies in the investigation or noticing does not preclude the parent from raising the issue for the first time on appeal from an order entered at any hearing in which the juvenile court determined that ICWA was satisfied or does not apply ( In re Marinna J. (2001) 90 Cal.App.4th 731, 738-739, 109 Cal.Rptr.2d 267 ; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267-1268, 121 Cal.Rptr.2d 820 ). And, because the juvenile court's duty to comply with ICWA's notice requirements is ongoing until it is determined by the relevant tribe, following adequate notice, that the child is not an Indian child ( Isaiah W ., at pp. 6, 11, 203 Cal.Rptr.3d 633, 373 P.3d 444 ), the parent's failure to appeal from an earlier order does not preclude the parent from raising the issue of ICWA compliance in an appeal from a later order, including an order terminating parental rights. ( Isaiah W. , at pp. 6, 14-15, 203 Cal.Rptr.3d 633, 373 P.3d 444.) Accordingly, even though mother did not object at any point below to the sufficiency of the inquiry or of the notice given, the issue is cognizable in this appeal.

Limited Remand for ICWA Compliance Is Necessary.

Mother's contention as to the adequacy of the investigation and of the resulting notices to the Cherokee tribes is also well taken.

Welfare and Institutions Code section 224.3, subdivision (c), provides that if the court or social worker knows or has reason to know that an Indian child is involved in dependency proceedings, the social worker must make further inquiry, as soon as practicable, by interviewing the parents, Indian custodian and extended family members to gather the information required, under Welfare and Institutions Code section 224.2, to be provided to the relevant tribes. As pertinent here, that information includes "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." ( Welf. & Inst. Code, § 224.2, subd. (a)(5)(C).) The social services agency must make a meaningful effort to contact specified family members who might have pertinent information. ( In re Michael V. (2016) 3 Cal.App.5th 225, 235-236, 206 Cal.Rptr.3d 910.)

Here, the notices sent to the three Cherokee tribes included the name of the children's father, R.R., his dates of birth and death, and his birthplace, as well as the names of the tribes he might have been affiliated with. The notices identified R.R.'s father, Alfred John R., as possibly affiliated with the same tribes, and gave his last known address, birth date and birthplace. The notices further identified R.R.'s paternal grandfather, John "Unknown" R., as possibly affiliated with the same tribes, but listed all other information about him as "unknown" or "no information available." (In each instance, the "R." stands for the same surname.)

Mother contends that this information demonstrates that DPSS did not comply with its duty to interview extended family members to gather pertinent information. She points out that both the paternal grandmother and the paternal aunt were readily available and might have been able to provide additional information. She also points out that DPSS had a last known address for the paternal grandfather, Alfred, and asserts that if DPSS had contacted him, Alfred "certainly" "could have supplied some of the biographical information for his father John [i.e., the paternal great-grandfather], the other relative with purported Cherokee heritage." She asserts that DPSS "clearly" performed no such investigation because the paternal great-grandfather's biographical information is essentially blank, including whether he was living or deceased.

Mother is correct that it is likely that the paternal grandfather would have had some information about his father's Indian heritage, and that he could possibly have put DPSS in touch with his father, i.e., the children's paternal great-grandfather, or provided information as to the date and place of his father's birth, as well as further...