In re A.M.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Prabhath D. Shettigar, Deputy County Counsels, for Plaintiff and Respondent.
INTRODUCTION
A.M. (Mother) appeals from the juvenile court’s order terminating her parental rights as to her two children, 11-year-old A.M. and six-year-old J.T., Jr. (J.T.).1 On appeal, Mother argues (1) the order terminating her parental rights must be reversed because the Riverside County Department of Public Social Services (DPSS) failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (
II
FACTUAL AND PROCEDURAL BACKGROUND
On December 2, 2017, DPSS received an immediate response referral with allegations of general neglect and sexual abuse. It was reported that Mother had allowed her two sons to go into a hotel room for hours with an 18-year-old male stranger who sexually abused them. After Mother discovered the sexual abuse, she failed to report the
When the social worker interviewed the boys, A.M. disclosed that he attended the third grade at an elementary school in Beaumont, but could not recall the last time he had attended school. He and J.T. had previously lived “with their father someplace far away as well.” A.M. “believed they were living in Los Angeles with his father.” They had “lived in a number of homes with friends.” A.M. also reported Mother did not have much money so they had stayed in more than five or six homes with people willing to help them, “and all while he was eight years old.” He and his family moved into their present hotel two days prior, but previously had lived with “various friends, family members of friends, and people they did not know before.” A.M. also disclosed several incidents of domestic violence involving Mother and her significant other. J.T. stated that he “reside[d] with friends, his mother, his brother, his dad, ‘Uncle Grandpa,’ and ‘Batman.’”
The social worker also interviewed and drug tested Mother due to her behavior. Mother drug tested positive for methamphetamine and amphetamine. Mother admitted to smoking methamphetamine. She reported that she had been diagnosed with anxiety, depression, and attention deficit hyperactivity disorder (ADHD) and was not on medication. When asked about her residence plan, Mother stated that she and her boys will stay with a friend in Victorville or she will find another place to go for the night. Her safety network consisted only of J.L., also known as “‘Batman,’” because her former
When questioned about the children’s placement, Mother informed the social worker that J.T.’s father resided in Arizona and is the only father A.M. had ever known.3 Mother reported there was a family law case open in Las Vegas, Nevada. Father J.T. did not bring the boys back to Mother on time after a visit earlier this year. Mother did not believe Father J.T. could care for the children, because he was not stable and had a problem with alcohol.
The social worker thereafter contacted Father J.T. He stated that he lived in Arizona with relatives but was unable to provide a physical address, because he had just moved in. He and the paternal grandmother had been primarily caring for the children since they were babies. The children were with his mother for more than a year and with him for approximately five months in Las Vegas earlier this year. He also stated that Mother came to get A.M. and left with both children after a visit and that Mother has had the children in her care for only a few months. Father J.T. admitted having a drug and alcohol history and wanted the children to be released to him. He also agreed to contact the paternal grandmother to discuss possible placement of the children in her care.
Regarding ICWA, Mother was “unsure if she [was] of American Indian descent” and “denied that she or the children [were] registered with a tribe.” Fathers J.T. and R.O. denied American Indian ancestry. At the detention hearing, both Mother and Father J.T. indicated having no American Indian ancestry. However, in Mother’s ICWA-020 form, she checked the box indicating that she was or may be a member of, or eligible for membership in a federally recognized Indian tribe and wrote the tribe’s name as “unknown.” She also checked the box indicating that one or more of her parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe and wrote “MGF, MGA[C.M.]” beside the box. In Father J.T.’s ICWA-020 form, he stated that he had no Indian ancestry.
On December 6, 2017, the juvenile court formally removed the children from parental custody and found that ICWA may apply. The court authorized an Interstate Compact for Placement of Children (ICPC) with the state of Arizona and directed DPSS to continue with their assessment of relatives for placement.
On December 15, 2017, DPSS filed an ICWA-030 Notice of Child Custody Proceeding (ICWA notice) as to each child. In the ICWA notice, DPSS included each child’s name, date and place of birth, and attached each child’s birth certificate. The ICWA notices also included Mother’s name, former address, and date and place of birth,
DPSS mailed the ICWA notices by certified mail on December 14, 2017, to the BIA. On December 29, 2017, the BIA acknowledged receipt of the ICWA notices and indicated that it is returning the “letter of inquiry due to insufficient information to determine tribal affiliation (
Mother disclosed that she was raised in the foster care system due to her biological parents not being involved in her life. She was placed in legal guardianship at the age of 18 months until she was 11 years old, and then was placed in group homes until she was emancipated from the system. She moved to Arizona in 2009 and remained there until August 29, 2016. She had been diagnosed with bipolar, depression, and ADHD, and had been prescribed multiple psychotropic medications.
Father J.T. reported that he was born in California, moving to Arizona shortly after his birth, returning to California for the second half of high school. He met Mother in 2009 and they moved in together with his family in 2011 until the end of their relationship in 2014. Mother then moved out and became a transient, while he kept the children. In the summer of 2017, Mother took the children back to California with her. He contacted law enforcement but “was informed he had no grounds to claim she kidnap[ped the children] since there was no court order from family law.” He reported that he “filed the paperwork but was unable to follow through with it due to the mother’s
The social worker received a telephone call from a family member who reported the last time they had contact with the children was “during the summer of 2017” and that they were informed Mother “‘stole’” the children from Las Vegas by hopping on a Greyhound bus. The family member also stated the last known location for Mother and children was them residing in Indio, California. The family member expressed a concern that the parents had been unable to keep a stable home for the children.
On December 21, 2017, Father J.T. informed the social worker that he had completed and submitted “family law orders” regarding J.T. after Mother “took his son without question.” “He reported because the mother’s whereabouts were unknown, he was unable to successfully serve her with the documents.” He had received numerous messages on Facebook that the children were in Tucson, Arizona, but denied refiling the paperwork due to Mother then moving to Barstow and her allowing him to see the children. Mother was unaware of whether there were family law orders in place for J.T. She noted receiving documents in the mail a few days before her birthday in 2016 but the documents told her she did not have to appear in court. She believed Father J.T. “did not appear either and child support was established at that hearing.”
Father J.T. also stated that A.M. was not attending school in Las Vegas and he was not aware if the child was attending school in either California or Arizona. He believed A.M. was enrolled in an elementary school in Barstow. The social worker attempted to
DPSS was unable to locate relatives for the children and placed them in foster care. DPSS eventually submitted an ICPC request on behalf of the paternal grandmother.
On January 8, 2018, Mother was arrested for robbery and was in jail.
On January 9, 2018, the juvenile court found “good ICWA notice” and continued the contested jurisdictional hearing for a placement assessment. The court authorized an ICPC with the paternal grandmother in Nevada.
On February 14, 2018, Mother was sentenced to two years in state prison for assault with a deadly weapon causing great bodily injury and evading a police officer.
At the contested jurisdictional/dispositional hearing held February 15, 2018, the juvenile court found the allegations in the first amended petition true and declared the children dependents of the court. Custody was removed from the parents and reunification services were ordered for Mother and Father J.T. Father R.O. was denied services under
On July 10, 2018, Mother reported that she “may have Blackfoot Tribe ancestry” but that she was not registered. The social worker noted that it had been over six months since Mother first reported affiliation with the Blackfeet tribe and that she was not registered. However, Mother had not made any attempts to follow up on this
On July 12, 2018, Mother reported that it was she who had initially completed and submitted family law orders for J.T., because Father J.T. had attempted to keep J.T. from her. However, Mother did not follow through with filing the papers. There were no family law orders in place at that time.
After Mother was released from custody on July 27, 2018, she enrolled in a drug treatment program. She also participated in some of her services while incarcerated, and was taking prescription medication for depression and anxiety. She did not have stable housing or employment.
Father J.T. did not participate in any services during the review period. In addition, he was “‘hearing voices in his head.’” The state of Arizona denied his ICPC due to Father J.T.’s lack of compliance with the ICPC process. Several attempts were made by Arizona’s ICPC unit to conduct a home study of Father J.T.’s residence, but he did not cooperate. Therefore, the ICPC referral was denied and closed. Father J.T. said that he was homeless and currently staying at a friend’s home in Arizona.
Neither parent had any in-person visitation with the children. However, Mother had weekly monitored telephone contact with the children. Father called the children once in the past six months but did not speak to them.
On August 15, 2018, the juvenile court found ICWA did not apply, continued reunification services for Mother, and terminated services for Father J.T.
On December 14, 2018, the children were placed with the paternal grandmother in Nevada. The children were thriving and doing well in the paternal grandmother’s home. The paternal grandmother was nurturing and loving towards the children and their emotional and physical needs were being met.
On February 8, 2019, the juvenile court found that ICWA did not apply, terminated Mother’s reunification services, reduced the parents’ visitation to once per month, and set a section 366.26 hearing.
In its section 366.26 hearing report, DPSS noted that during “this reporting period, no new information has been provided to suggest that ICWA applies to the children.” The children continued to thrive in their placement with the paternal grandmother. The paternal grandmother was nurturing toward the children, attended to all their needs, and the children appeared to be bonded to her. The paternal grandmother desired to adopt the children. Father J.T. had not visited the children, but called them “sporadically.” Since
On September 5, 2019, Mother filed section 388 petitions, seeking return of the children to her care on family maintenance services. Mother alleged that she had completed her case plan, maintained visitation, and shared a strong bond with the children.
On September 6, 2019, DPSS reported that Mother was sentenced to state prison for a term of three years and that her release date was scheduled for March 2021. DPSS also noted that the children were doing well and were stable in their placement with the paternal grandmother who desired to adopt them.
The combined section 388 and section 366.26 hearings were held on September 6, 2019. Mother was present in custody. DPSS submitted on its reports and all counsel stipulated that Mother’s stipulated testimony could apply for both hearings. The juvenile court denied Mother’s section 388 petitions for failing to state either changed circumstances or best interest of the children. The court also terminated parental rights and found the children adoptable.
On September 30, 2019, Mother filed a timely notice of appeal, challenging the orders made at the September 6, 2019 hearings.
DISCUSSION
A. Compliance with ICWA
Mother contends the order terminating parental rights must be reversed because DPSS did not comply with the inquiry and notice requirements of ICWA, resulting in incomplete ICWA notices being sent.4 We disagree.
1. Standard of Review
“The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. [Citation.]” (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.) When, as is the case here, the facts are undisputed, we review independently whether the requirements of ICWA have been satisfied. (In re J.L. (2017) 10 Cal.App.5th 913, 918 (J.L.).) However, we review the juvenile court’s ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court’s order. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; In re H.B. (2008) 161 Cal.App.4th 115, 119-120.) We must uphold the court’s orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.)
“Congress enacted ICWA in 1978 in response to ‘rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’” (Isaiah W., supra, 1 Cal.5th at pp. 7-8.) “ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family. [Citations.] For purposes of ICWA, an ‘Indian child’ is an unmarried individual under age 18 who is either a member of a federally recognized Indian tribe or is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. [Citations.]” (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 783 (Elizabeth M.).)
There are two separate ICWA requirements which are sometimes conflated: the obligation to give notice to a tribe, and the obligation to conduct further inquiry to determine whether notice is necessary. Notice to a tribe is required, under federal and state law, when the court knows or has reason to know the child is an Indian child. (Elizabeth M., supra, 19 Cal.App.5th at p. 784.) In contrast, prior to January 2019, the department was to make further inquiry if it “knows or has reason to know that an Indian child is or may be involved” in the case. (Cal. Rules of Court, rule 5.481(a)(4), italics added.)
Although the notice requirement has always been triggered by a court having “‘reason to know’” a child may be an Indian child, for many years the term was undefined under federal law. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 650.) It was not until 2016 that the Department of the Interior promulgated regulations defining “‘reason to know.’” (
Under the federal regulations, there is “reason to know” a child is an Indian child if “(1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child; [¶] (2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child; [¶] (3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child; [¶] (4) The court is informed that the domicile or residence of the child, the child’s
State law, however, defined “reason to know” in 2006. (Senate Bill No. 678, Stats. 2006, ch. 838, §§ 31, 32 (2005-2006 Reg. Sess.);
But now, as amended by Assembly Bill No. 3176, which became effective on January 1, 2019, the Welfare and Institutions Code’s definition of “reason to know” conforms to the definition provided by federal regulations. (
In addition,
“If the notice duty is triggered under ICWA, the notice to a tribe must include a wide range of information about relatives, including grandparents and great-grandparents, to enable the tribe to properly identify the children’s Indian ancestry. [Citation.] Any violation of this policy requires the appellate court to vacate the offending order and remand the matter for further proceedings consistent with ICWA requirements. [Citation.]” (In re J.D. (2010) 189 Cal.App.4th 118, 124 (J.D.).) Federal regulations
ICWA provides that a state may provide “a higher standard of protection to the rights of the parent” than the rights provided under ICWA. (
In this case, DPSS sent ICWA-030 notices to the BIA in December 2017. At the six-month review hearing on August 15, 2018, and 12-month review hearing on February 8, 2019, the juvenile court found that ICWA did not apply. At the 12-month review hearing, the court terminated Mother’s reunification services and set a section 366.26 hearing. In finding ICWA did not apply, the court stated that proper notice had been given as required by law, a “sufficient inquiry” had been made, and there was “no information to show that ICWA may now apply.” Mother did not challenge the order from the 12-month review hearing by filing a writ petition.
In December 2017, July 2018, and February 2019, the social worker continued to inquire of Mother as to her Indian ancestry. Mother initially reported in her ICWA-020 form that the maternal grandfather had Indian ancestry but did not know the tribe’s name. Later, on December 21, 2017, Mother stated that she was told she had “Blackfoot and Cherokee tribe affiliation but was not registered, however, [she] planned to register with them on the day of contact.” On July 10, 2018, Mother reported that “she may have Blackfoot Tribe ancestry. However, she is not registered.” During the dependency proceedings, Mother had no additional or new information to provide as to her Indian ancestry. In addition, Mother’s biological parents were deceased and DPSS was unable to locate relatives with the exception of Mother’s former foster sibling. On September 6, 2019, at the section 366.26 hearing, the juvenile court implicitly found that ICWA did not
DPSS argues that under Isaiah W., the current ICWA statutes apply because the notice of appeal was filed from the September 6, 2019 order terminating parental rights. Mother responds that the statutes in effect at the time DPSS sent the defective notices to the BIA in December 2017 apply. She also asserts that retroactive application of amended
In Isaiah W., supra, 1 Cal.5th 1, the juvenile court found ICWA did not apply at the jurisdictional/dispositional hearing. The mother did not appeal from that order or otherwise object to the court’s ICWA finding. (Id. at p. 6.) Nearly one year later, the court terminated the mother’s parental rights and again found ICWA did not apply. The mother appealed the court’s order terminating her parental rights on the ground that the court had reason to know the minor was an Indian child but failed to order the department to comply with the ICWA notice requirements. (Id. at pp. 6-7.) The Court of Appeal denied relief, finding the mother forfeited her right to appeal from the
The Supreme Court explained: “The plain language of [former
While the facts of Isaiah W. differ from those in this case in some respects, it is nonetheless instructive. Here, the juvenile court explicitly found that ICWA did not apply at the six-month review hearing held on August 15, 2018. At that hearing, the court continued Mother’s reunification services. The juvenile court also explicitly found that ICWA did not apply at the contested 12-month review hearing on February 8, 2019. By February 2019, current ICWA statutes were in effect. At that hearing, the court also terminated reunification services and set a
Therefore, similar to Isaiah W., on September 6, 2019, the juvenile court had a duty to determine whether the children were Indian children based on the circumstances existing on September 6, 2019, and not based on the facts or law that existed in December 2017 when the ICWA notices were sent. The determinative factor is not when the ICWA-030 notices were mailed to the relevant tribes, but when the
Mother relies on In re A.W. (2019) 38 Cal.App.5th 655, which was decided in 2019 and applied the statute in effect at the time of the defective notice. The court there rejected an argument that the revised language of
The issue before us then is whether the juvenile court and DPSS complied with the inquiry and notice provisions of the current ICWA statutes. We agree with DPSS that the present statute is not being applied retroactively because the juvenile court has a continuing duty to determine whether ICWA applies. Since Mother is appealing from the findings made at the September 6, 2019
4. Duty of Inquiry and Duty to Notice Under Current ICWA Statutes
Mother argues DPSS failed to comply with the ICWA notice requirements because it omitted Mother’s grandfather’s (the children’s great-grandfather) name, C.M., on the ICWA-030 notices. She also faults DPSS in failing to send ICWA notices to the Blackfeet and Cherokee tribes after Mother informed the social worker that “she believed she had Blackfoot and Cherokee heritage.”
As previously noted, the agency is required to provide notice if it knows or has “reason to know” the child is an Indian child. (
Mother argues “the list of ‘reasons to know’ should not be read in a restrictive fashion” and that “[i]n conformity with prior case law, when, as here, the parent lists a grandfather’s name as a member of an Indian tribe [citation] and subsequently provides the names of the Blackfoot and Cherokee tribes [citation], that is more than enough to establish a ‘reason to know’ the child may be eligible for membership in those tribes [citation], triggering the notice requirement.” We disagree. Prior case law pre-dates the 2016 enactment of the new federal regulations defining “reason to know” and the 2019 amendments to the California statutes distinguishing between “reason to know” and “reason to believe.” (See In re D.C. (2015) 243 Cal.App.4th 41, 62; In re Kadence P. (2015) 241 Cal.App.4th 1376, 1387-1388 (Kadence P.); In re B.H. (2015) 241 Cal.App.4th 603, 606-607 (B.H.); see
That said, the information Mother provided was sufficient to require further inquiry, as the juvenile court ordered. Likewise, the information gave the juvenile court and DPSS reason to believe that an Indian child was involved and, thus, the additional inquiry should have, at minimum, included interviews with Mother’s extended family members. (
Nonetheless, in this case DPSS could not have obtained any further information from any other maternal relatives. Both maternal grandparents were deceased. In addition, Mother was raised in foster care due to her biological parents not being involved in her life and had no contact with any relatives. She was placed in legal guardianship at the age of 18 months until she was 11 years old. She then was placed in group homes until she was emancipated. Mother’s support system consisted of her significant other and her former foster family. In addition, she did not provide DPSS with information as to any maternal relative for Indian ancestry or placement for the children. No maternal relative appeared at any hearing or participated in this matter.
ICWA does not obligate the court or DPSS “to cast about” for investigative leads. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.) There is no need for further inquiry if no one has offered information that would give the court or DPSS reason to believe that a child might be an Indian child. This includes circumstances where parents “fail[ ] to provide any information requiring followup” (S.B., supra, 130 Cal.App.4th at p. 1161; see B.H., supra, 241 Cal.App.4th at p. 608; In re C.Y. (2012) 208 Cal.App.4th 34, 42), or if the persons who might have additional information are deceased (J.D., supra, 189 Cal.App.4th at p. 124), or refuse to talk to DPSS. (In re K.M. (2009) 172 Cal.App.4th 115, 119.)
B. Compliance with the UCCJEA
Mother also argues that all orders on this matter must be reversed because the juvenile court failed to comply with the UCCJEA. Specifically, she argues that California did not have subject matter jurisdiction on the date DPSS filed its petition on December 5, 2017, because California was not the children’s “‘home state’” and neither Nevada nor Arizona5 had declined jurisdiction or been contacted. We disagree.
The UCCJEA (
There are several pertinent provisions within the UCCJEA. First, Mother points to the definition of “home state,” found in
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
“(2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the grounds
that this state is the more appropriate forum under [Family Code] [s]ection 3427 or 3428, and both of the following are true:
“(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
“(B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships. [¶] . . . [¶]
“(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).”
A juvenile court’s determination as to its authority to exercise jurisdiction under the UCCJEA may be raised on appeal for the first time. (In re Gloria A. (2013) 213 Cal.App.4th 476, 481.) We review the facts establishing jurisdiction for substantial evidence. (In re Aiden L. (2017) 16 Cal.App.5th 508, 520Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1287.)