In re D.C.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant M.J.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant C.C.
Dependency Legal Group of San Diego, Tilisha Martin, Carolyn Levenberg and Beth Ploesch for Minors.
M.J. and C.C. appeal the orders entered following the jurisdiction and disposition hearing in the juvenile dependency case of their minor children, D.C., Ce.C., and F.C. M.J. contends the evidence was insufficient to support the court‘s dispositional order removing the minors from her custody under
We conclude the juvenile court erred by finding ICWA inapplicable to this case without providing notice to the tribes in which C.C. claimed potential membership. We therefore vacate the court‘s ICWA finding and remand with directions to provide such notice. In all other respects, we disagree with M.J. and C.C.‘s contentions and affirm.
“In accord with the usual rules on appeal, we state the facts in the manner most favorable to the dependency court‘s order.” (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
On March 24, 2015, the San Diego County Health and Human Services Agency (the Agency) petitioned the juvenile court under
A month earlier, the Agency had received a referral that D.C. had been sexually abused by C.C. The Agency and law enforcement initiated investigations. D.C. disclosed the abuse to a school counselor, who reported that D.C. first said C.C. was “sexually harassing” her. D.C. then said she had had intercourse with C.C.; the last time was three months prior to the conversation. D.C. told the counselor C.C. touched her breasts, her vagina, and her buttocks, as well as forced her to orally copulate him. In a forensic interview, D.C. disclosed multiple acts of penile-vaginal penetration, digital-
C.C. was served with an emergency protective order and left the family home. M.J. agreed to a voluntary safety plan prohibiting any contact between C.C. and the minors pending the Agency‘s investigation. The minors remained in M.J.‘s care.
The Agency continued its investigation. An Agency social worker spoke with the minors’ maternal aunt, to whom D.C. had also disclosed sexual abuse. The maternal aunt reported that D.C. said she had vaginal intercourse with C.C. three times. D.C. told the maternal aunt C.C.‘s abuse was violent, with C.C. hitting D.C. on the head, twisting her neck and wrists, and picking her up. D.C. said she tried to tell M.J. about the abuse a year ago, when C.C. asked M.J. to pull her skirt down or pull it up. D.C. said C.C. responded by “twisting the story around.” The maternal aunt said she believed D.C. and could not see her making up the allegations. The maternal aunt told the Agency she had seen C.C. angry before and witnessed him hitting a car dashboard at a social softball game. D.C. had told the maternal aunt that C.C. kicked in her bedroom door when she took too long to get dressed; the maternal aunt confirmed the door was “jiggly” as a result. The Agency also uncovered text messages D.C. sent to a friend prior to the referral consistent with her disclosures of abuse. In interviews, Ce.C. and F.C. denied
M.J. told an Agency social worker she was concerned D.C. was not telling the truth. M.J. said D.C. had lied about having a boyfriend and may have wanted to get C.C. out of the house because he was more strict with her. M.J. thought some of D.C.‘s disclosures were reminiscent of themes from a movie, “50 Shades of Gray,” which D.C. may have seen. C.C. declined to make a statement and did not discuss the substance of the allegations with the Agency. He said he did not want to have contact with D.C. until ” ‘she gets her head straight.’ ” He wanted to see Ce.C. and F.C. and expressed concern for their well-being.
Several weeks later, the Agency learned that M.J. violated the safety plan by allowing C.C. to stay overnight at the family home, with Ce.C. and F.C., while D.C. was away. M.J. told the Agency she “could not remember the fine print of the safety plan” and said it was voluntary. M.J. said Ce.C. and F.C. miss C.C. and ” ‘it‘s not fair they‘re going through this because [D.C.] is doing this. They are safe.’ ” M.J. said D.C. was ” ‘totally fine. She‘s doing what she wants . . . boys call at 2 a.m. . . . she‘s wearing makeup even though she‘s not supposed to.’ ”
The Agency filed the instant petitions. At the detention hearing, the court found the Agency had made a prima facie showing under
At Polinsky, Ce.C. told an Agency social worker C.C. had physically abused her, including by hitting Ce.C. in the face twice with an open hand. Ce.C. also said C.C. hit and kicked F.C. and once slapped D.C. Ce.C. disclosed that C.C. throws and breaks things when angry, including a glass vase. On a scale of one to 10 (with 10 being completely safe), Ce.C. said she feels like “one” when C.C. is mad. When C.C. is not mad, Ce.C. said she feels like “four” because C.C. is “still grumpy and yells a lot.” When Ce.C. is with only M.J., Ce.C. said she feels like a “10.” Ce.C. smiled when she was asked about M.J.
Ce.C. denied any sexual abuse. However, when the Agency social worker asked Ce.C. what M.J. would say if she were sexually abused, Ce.C. said, ” ‘She would get my dad and yell at him a lot or at someone else who‘s doing it.’ ” Ce.C. then became concerned that the social worker had written down the word “dad” and asked the social worker to erase it. Without prompting, Ce.C. said, ” ‘Sometimes when I come home and it‘s just my dad and my sister [D.C.] alone, my sister is crying, and I don‘t know why.’ ” Ce.C. gave several examples, including one incident in which she came home, D.C. and
F.C. did not disclose any physical or sexual abuse. At Polinsky, he told an Agency social worker that he missed his parents. During an exercise called the “Three Houses,” F.C. listed C.C., M.J., his sisters, and his dog in his “House of Good Things.” In his “House of Worries,” F.C. wrote that he did not think he would see C.C. or M.J. for a while. He told the Agency social worker he did not know why the Agency did not think it was safe for him to live with C.C. and M.J.
C.C. told the Agency he did not want to take sexual abuse classes because he would be required to admit abusing D.C. C.C. said D.C.‘s allegations were ” ‘flat out lies’ ” and he had ” ‘no idea’ ” why D.C. would make them. On the day of the last reported incident, C.C. said D.C. had gotten in trouble because she was throwing food and having a lot of ” ‘physical contact’ ” with a boy. C.C. said D.C. is ” ‘boy crazy’ ” and is difficult and defiant. C.C. said he was strict with D.C. but not abusive. C.C. said he did not want to have any visitation with D.C. and did not want any further relationship with her.
D.C.‘s school counselor was not aware of any history of D.C. lying, making up stories, or causing trouble at school. The counselor was also not aware of any mental health or developmental issues. The counselor said M.J.‘s apparent disbelief of D.C.‘s disclosures “hurts” her.
In its assessment, the Agency characterized D.C.‘s allegations as consistent across her various disclosures and at least partially corroborated by Ce.C.‘s statements. The Agency concluded ” ‘the evidence weighs far more heavily that the allegations are true than that they are not.’ ” The Agency believed F.C. and Ce.C. were at risk of sexual and physical abuse by C.C., given D.C.‘s disclosures of sexual abuse and Ce.C.‘s disclosures of physical abuse. The Agency also believed placement with M.J. would be inadequate to protect them, based primarily on M.J.‘s failure to follow the safety plan prohibiting C.C. from seeing the minors. The Agency was troubled that M.J. encouraged Ce.C. and F.C. to keep C.C.‘s visit a secret and concerned M.J. might lead Ce.C. and F.C. to withhold further information regarding threats to their safety.
Prior to trial, the Agency scheduled a team decision-making meeting (TDM) to discuss supervised visitation for the minors. M.J., C.C., the minors’ paternal grandparents, and a family friend attended. M.J. and C.C. declined to discuss the details of D.C.‘s allegations. During the TDM, C.C. disclosed that D.C. made some sort of accusation against him a year ago, and they agreed he and D.C. would not be alone together. However, C.C. said D.C. still wanted to spend time with him. After that disclosure, an Agency social worker said he wanted to respect C.C.‘s wish not to discuss the allegations during the TDM, and M.J. told C.C. he should not talk about it.
Later, in another conversation with the Agency, C.C. provided further details about the accusation. C.C. said D.C. had told M.J. that C.C. told D.C. to take off her skirt. C.C. denied making the statement; he said he only told D.C. to flip down her skirt to avoid showing her underwear. Regarding Ce.C.‘s comments about abuse, C.C. said, ” ‘I don‘t want to say Ce.C. is making it up, but she could be saying what you want to hear.’ ” C.C. claimed D.C. had punched him, pushed him, and slammed the door in his face. C.C. did not say anything about these incidents because he was embarrassed.
The minors had mixed experiences at Polinsky. D.C. left Polinsky at night without permission multiple times. On one occasion, she smelled like alcohol when she returned. On other occasion, she had been smoking marijuana. D.C. told the Agency she
F.C. refused to go to sleep, kicked and hit Polinsky staff, and tried to grab the ” ‘private body areas’ ” of Polinsky staff. F.C. threatened suicide and was placed on a psychiatric hold. He was not hospitalized. F.C.‘s psychiatrist recommended additional psychotropic medication. (He was already taking Adderrall.) F.C.‘s schoolteacher reported his behavior had been difficult but similar to the time before he was placed in Polinsky. Prior to the case, F.C. had been diagnosed with attention deficit hyperactivity disorder and oppositional defiance disorder. D.C. also reported F.C. acted about the same as at home.
The Agency reported that C.C. had called D.C.‘s school several times. School officials felt C.C. was harassing them and were concerned D.C. might become aware of C.C.‘s calls. The Agency therefore recommended limiting C.C.‘s educational rights to the minors and vesting educational rights solely with M.J. The Agency also reported that M.J. did not start any services until two months after the minors were detained.
At the contested jurisdiction and disposition hearing, the juvenile court received several Agency reports into evidence and heard testimony from an Agency social worker. Among other things, the social worker explained that D.C.‘s defiant behaviors were not surprising, given the sexual abuse she suffered. The social worker believed M.J. had not demonstrated any progress addressing the protective issues in the case, including because she had delayed accessing services. Although it was not formally entered into evidence, the court also reviewed a video recording of D.C.‘s forensic interview.
DISCUSSION
I
C.C. challenges the juvenile court‘s jurisdictional findings under
We review the court‘s jurisdictional findings for substantial evidence. ” ‘In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. “In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court‘s determinations; and we note that issues of fact and credibility are the province of the trial court.” [Citation.] “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations] ’ “[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate].” ’ [Citation.]” [Citation.]’ ” (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) ” ‘Substantial evidence is evidence that is “reasonable, credible, and of solid value“; such that a reasonable trier of fact could make such findings.’ ” (In re S.A. (2010) 182 Cal.App.4th 1128, 1140; see In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.) “The appellant has the
As to D.C., it cannot reasonably be questioned that her disclosures, if believed, reveal sexual abuse under
C.C. argues the juvenile court could have avoided a true finding on the Agency‘s petition based on sexual abuse by making a true finding based on C.C. and M.J.‘s failure
As to F.C., we likewise conclude the evidence supported the juvenile court‘s jurisdictional finding under
In I.J., the Supreme Court considered dependency petitions filed on behalf of a sexually abused 14-year-old girl and her four siblings, twin 12-year-old boys, a nine-year-old girl, and a boy about to turn eight years old. (I.J., supra, 56 Cal.4th at p. 771.) The girl‘s father forcibly raped the older daughter, fondled and digitally penetrated her vagina, and forced her to watch pornographic videos with him. (Ibid.) Jurisdiction over the daughters had been affirmed by the Court of Appeal and was not at issue in the Supreme Court. (Id. at p. 772.) As to the sons, although there was no evidence the father had abused them or even that they were aware of their father‘s behavior, the Supreme Court affirmed the juvenile court‘s finding that the sons were placed in substantial risk of abuse or neglect by the father‘s actions. (Id. at pp. 771, 778.) ” ‘Although the danger of sexual abuse of a female sibling in such a situation may be greater than the danger of sexual abuse of a male sibling, the danger of sexual abuse to the male sibling is nonetheless still substantial.’ ” (Id. at p. 780.)
The reasoning and conclusion of I.J. applies equally to this case. Here, as in I.J., C.C.‘s behavior was ” ‘aberrant in the extreme[.]’ ” (Id. at p. 778.) C.C. had sexual intercourse with his own daughter, digitally penetrated her anus and
C.C. points out that the abused child in I.J. was slightly younger than D.C. when the abuse started (11 years old versus 12) and the child in I.J. was abused for a longer time period (three years versus one). These factual differences provide no basis to distinguish I.J. and do not undermine the juvenile court‘s jurisdictional findings. C.C. also points to evidence that F.C. felt safe with him, missed him, and cried because he would not see C.C. or M.J. for a while. F.C.‘s subjective feelings, however, do not dictate the juvenile court‘s assessment of the risk to him. As in I.J., the record amply supports the juvenile court‘s findings of substantial risk of abuse based on C.C.‘s prolonged and severe sexual abuse of D.C. (See I.J., supra, 56 Cal.4th at p. 778.)
II
M.J. challenges the court‘s dispositional order removing Ce.C. and F.C. from her custody. M.J. does not contend the court erred in removing D.C. C.C. joins in M.J.‘s challenge.
“By requiring clear and convincing evidence of the risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child‘s safety,
We review the juvenile court‘s dispositional order under the same standard of review as the court‘s jurisdictional findings, which we have already explained. (Hailey T., supra, 212 Cal.App.4th at p. 146 [“The standard of review of a dispositional order on appeal is the substantial evidence test.“]; see I.J., supra, 56 Cal.4th at p. 773.) The burden remains on the appellant to show “there is no evidence of a sufficiently substantial nature to support the court‘s findings or orders.” (Hailey T., at p. 147.)
M.J. contends her conduct was not as egregious as the conduct of the parent in R.V., who violated a court order and had ongoing mental health and substance abuse issues. (See R.V., supra, 208 Cal.App.4th at p. 842.) R.V. did not imply, however, that its facts constituted the minimum showing required for removal. The facts here are also sufficient to support removal for the reasons we have discussed.
M.J. also emphasizes contrary evidence, including her separation from C.C. and her participation in services. Under the applicable standard of review, however, “we do
III
C.C. contends the court erred by requiring him to admit sexual abuse of D.C. in various forms as part of his case plan. The service objectives of his case plan included the following: “[C.C.] will write a list of triggers that led him to sexually touch [D.C.]” and “[C.C.] will write a letter of apology to each of his children explaining his role in the sexual abuse and what exactly he is doing to commit to ensure that none of the children are ever sexually abused in the future.” C.C.‘s case plan also required him to participate in group therapy for “perpetrators of sexual abuse” with an approved therapist. C.C. told the Agency he was required to sign a form “basically admitting that he had abused a child” to participate in group therapy.
The provisions of C.C.‘s case plan requiring him to admit sexually abusing D.C. are reasonable. These provisions were recommended by the Agency social worker responsible for the minors. The juvenile court was well within its discretion to determine that the case plan, including the disputed provisions, was designed to eliminate the protective issues surrounding the minors—including C.C.‘s repeated and violent sexual abuse of D.C. C.C. argues that the disputed provisions are “therapeutic exercises” that the Agency and juvenile court are unqualified to administer. His argument provides no basis for us to find an abuse of discretion in this case, however, where the Agency specifically recommended the disputed provisions. The Agency has both institutional experience (in itself) and individual experience (in its supervising social worker) with sexual abuse cases. Given the Agency‘s recommendation, and on the current record, we
C.C. also contends the disputed provisions violate his constitutional rights against compelled self-incrimination. It is well-settled, however, that C.C. automatically receives use immunity for statements made in court-ordered therapy: “The California Constitution requires that a person proceeding simultaneously in the criminal courts for child abuse and the juvenile court regarding a dependency of the abused minor should not only be granted use immunity for his or her testimony at dependency proceedings that constitutes an admission to the acts at issue in the criminal case against him or her but also for such statements made during court-ordered therapy.” (In re Jessica B. (1989) 207 Cal.App.3d 504, 521; see In re Lamonica H. (1990) 220 Cal.App.3d 634, 650 [“[W]e find any admissions [father] makes during the course of treatment ordered as part of the reunification plan would be immune from use in criminal proceedings which might be brought against him.“]; In re Candida S. (1992) 7 Cal.App.4th 1240, 1250.) Based on this use immunity, a dispositional order requiring participation in therapy does not
C.C. questions whether this immunity would apply to the list of triggers and letters of apology identified in the case objectives portion of his case plan. We conclude it does. As the Agency points out, C.C.‘s case plan includes a single recommended service: sexual abuse therapy. The case objectives are to be completed as part of that therapy. Because use immunity applies to his “course of treatment ordered as part of the reunification plan” (In re Lamonica H., supra, 220 Cal.App.3d at p. 650), the immunity would apply to the identified case objectives as well. The juvenile court was not required to make an order specifically conferring use immunity in connection with C.C.‘s case plan. (Ibid.; In re Jessica B., supra, 207 Cal.App.3d at p. 521; see In re Candida S., supra, 7 Cal.App.4th at pp. 1250-1251 [holding that the juvenile court is not required to inform parents of use immunity].) The court did not err by including the disputed provisions in C.C.‘s case plan.
IV
C.C. also contends the court erred by limiting his educational rights to Ce.C. and F.C. “Parents have a constitutionally protected liberty interest in directing their children‘s education. [Citations.] However, when a child is a dependent child, a court may limit a parent‘s ability to make educational decisions on the child‘s behalf . . . .” (In re R.W. (2009) 172 Cal.App.4th 1268, 1276.) “In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any
Here, the evidence showed that C.C. called D.C.‘s school multiple times and harassed school officials. The juvenile court was entitled to find C.C.‘s behavior especially troubling given his statement he did not want a relationship with D.C. The juvenile court could reasonably have determined that an order limiting C.C.‘s educational rights was necessary before he began to harass officials at Ce.C. and F.C.‘s school as well. Just as in other areas of dependency law, the juvenile court need not wait until harm occurs before making orders to protect the minors. (Cf. In re Cole C., supra, 174 Cal.App.4th at p. 917.)
C.C. claims Ce.C. and F.C. will be harmed by his inability to participate in their educational decisions. The Agency counters that the juvenile court specifically ordered M.J. to share educational information with C.C. and ordered the Agency to determine whether C.C. could participate in some school activities. We do not reweigh this evidence bearing on the minors’ best interests, however, and will not substitute our judgment for that of the juvenile court in this regard. On the evidence presented, the juvenile court was entitled to find that an order limiting C.C.‘s educational rights was
V
M.J. challenges the court‘s finding that ICWA does not apply. She contends the court erred by not providing notice of the proceedings to the Indian tribes in which C.C. claimed potential membership or eligibility for membership. C.C. joins in this challenge as well.
As we have noted, M.J. and C.C. adopted the children following a prior dependency case with the Agency. The Agency informed the juvenile court that ICWA did not apply based on a finding to that effect in the minors’ prior dependency case. The juvenile court found that ICWA did not apply in this dependency case as well, but it required C.C. to submit a “Parental Notification of Indian Status” form (ICWA-020) disclosing any Indian heritage. (M.J. had already submitted an ICWA-020 form claiming no Indian heritage.) C.C.‘s form contained the following statement: “I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe.” His form listed the Cherokee Nation and an unspecified “Apache” tribe as the tribes in which C.C. claimed potential membership or eligibility for membership. C.C.‘s form does not appear to have prompted any discussion or reconsideration of the ICWA finding in the juvenile court.
The policy statement underlying ICWA reads as follows: “The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the
ICWA defines an “Indian child” 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[.]” (
In proceedings that potentially involve an Indian child, ICWA requires notice on any affected Indian tribe: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child‘s tribe . . . of the pending proceedings and of their right of intervention. . . .” (
” ‘The determination of a child‘s Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.’ (In re Nikki R. (2003) 106 Cal.App.4th 844, 848 . . . ; [citation]; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 258 . . . [providing exhaustive analysis of the issue and concluding the ‘minimal showing’ required to trigger notice under the ICWA is merely evidence ‘suggest[ing]’ the minor ‘may’ be an Indian].) ‘Given the interests protected by the [ICWA], the recommendations of the [federal] guidelines, and the requirements of our court rules, the bar is indeed very low to trigger ICWA notice.’ ” (In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.)
The issue here is whether C.C.‘s statement that he is or may be a member of an Indian tribe, or eligible for membership in an Indian tribe, was sufficient information to trigger the notice requirements of ICWA, i.e., whether it provided “reason to know that an Indian child is involved” under ICWA. (See
The Court of Appeal in B.R. considered whether a biological father‘s statement that his adoptive father (the dependent minors’ parental grandfather) was one-fourth Apache Indian was sufficient to require ICWA notice. (B.R., supra, 176 Cal.App.4th at pp. 777, 778.) The trial court indicated that the social services agency would notify the Apache tribes “if required by law,” but the agency did not do so. (Id. at pp. 778-779.) Other tribes were notified, but none appeared in the proceedings. (Ibid.) The trial court subsequently found ICWA did not apply. (Id. at p. 779.)
The Court of Appeal found error: “The trial court left it to the [social services agency] to determine whether the minors were Indian children for purposes of the ICWA, rather than letting the Apache tribes make that determination by ordering that notice be sent to the tribes. It is true that in this case the minors were not the biological children of a parent with Indian blood. They are the grandchildren by adoption of an ancestor with Indian blood. But the definition of ‘Indian child’ under the ICWA does not by its terms automatically exclude such children. To the contrary, the ICWA focuses on ‘membership’ rather than racial origins. It protects children who are ‘members of or eligible for membership in’ federally recognized Indian tribes. ([
B.R. relied heavily on In re M.C.P. (Vt. 1989) 571 A.2d 627 (M.C.P.). In M.C.P., the Supreme Court of Vermont considered whether ICWA notice was required under facts similar in relevant respects to those presented here: “[T]he juvenile‘s [adoptive] father, R.P., testified that he is Mohawk Indian and that his people were from the St. Regis Reservation in New York. With respect to the juvenile, the father testified that while she is not currently a member of the Mohawk Tribe, she could be eligible for membership in the tribe.” (Id. at p. 632.) The court agreed, on this evidence, the dependent child did not appear to be an Indian child because the child was neither (1) a member of an Indian tribe nor (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (Id. at pp. 632-633; see
The court explained, however, that this determination did not end the inquiry: “The notice provision,
The court determined the adoptive father‘s statement that he was a member of an Indian tribe was sufficient to trigger ICWA‘s notice provisions: “[W]e believe that the statute as interpreted in the Guidelines7 requires that the trial court give notice to the Saint Regis Mohawk Indian Tribe. The father‘s membership in this tribe alone gives the trial court reason to know that the juvenile could be a member of the tribe and thus be an Indian child. Cf. Trentadue & DeMontigny, The Indian Child Welfare Act of 1978: A Practitioner‘s Perspective, 62 N.D.L.Rev. 487, 505 (1986) (some tribes ‘extend membership to any descendent of a member regardless of Indian blood quantum‘). Although the father testified that the juvenile was eligible for membership, but not a member, we cannot find that evidence to be conclusive. The tribe, not the father, is the arbiter of its membership and as the commentary to the guidelines states is the best source of information on whether the juvenile is a member. The father is not necessarily knowledgeable about tribal membership, and his interests may diverge from those of the tribe.” (M.C.P., supra, 571 A.2d at p. 634.)
We find B.R. and M.C.P. persuasive and instructive on the facts here. As in those cases, we conclude ICWA notice was required even though the minors in this case have
Like B.R. and the Vermont Supreme Court in M.C.P., we are mindful that failure to give notice renders the dependency proceedings (including any future termination of parental rights) vulnerable to collateral attack if the minors are in fact Indian children. (See
The Agency contends “the evidence reveals that [the minors] are not members of an Indian tribe, nor are they the biological children of a member of a tribe.” But the Agency‘s position “fails to ‘distinguish between a showing that may establish a child is an Indian child within the meaning of the ICWA and the minimal showing required to trigger the statutory notice provisions.’ ” (In re Antoinette S., supra, 104 Cal.App.4th at p. 1407.) “The conclusion, based on the evidence available, that the juvenile is not an Indian child does not . . . end the inquiry.” (M.C.P., supra, 571 A.2d at p. 633.) The potential for ICWA notice must still be considered. The relevant question is not whether the evidence currently supports a finding that the minors are Indian children; it is whether the evidence triggers the notice requirement of ICWA so that the tribes themselves may make that determination. The Agency does not persuasively address that question.
The Agency primarily relies on In re Francisco D. (2014) 230 Cal.App.4th 73. In that case, the Court of Appeal affirmed the juvenile court‘s finding that ICWA did not apply. (Id. at p. 84.) Francisco D. focused on the ultimate question of whether ICWA applied, rather than whether notice was required: “[T]he evidence indicates that Francisco is not a member of an Indian tribe, nor is he the biological child of a member of a tribe. Thus, Francisco cannot satisfy the definition of an Indian child. Based on the plain language of the statute, ICWA is inapplicable to his dependency case, regardless of adoptive Mother‘s own Indian tribal membership.” (Id. at pp. 83-84.) The court
The other cases cited by the Agency are similarly inapplicable. In re Jose C. (2007) 155 Cal.App.4th 844 explicitly did not consider notice: “The question here does not involve notice because the [Indian tribe] was properly noticed and responded.” (Id. at p. 849.) In re E.G. (2009) 170 Cal.App.4th 1530, 1533 considered notice based on a claim of Indian ancestry by an alleged father later excluded as the dependent minor‘s biological father. In re E.G. found notice unnecessary based on that exclusion. (Ibid.) Here, C.C. was not a mere alleged father; he was the minors’ adoptive father. And, “[t]o the extent E.G. suggests in dictum that no ICWA notice is ever required unless the minor is shown to potentially have Indian blood, we respectfully disagree with it.” (B.R., supra, 176 Cal.App.4th at p. 785, fn. omitted; see In re Hunter W. (2011) 200 Cal.App.4th 1454,
Because the juvenile court did not provide ICWA notice, we vacate the juvenile court‘s ICWA findings and remand for proper notice. We decline to reverse the jurisdictional and dispositional orders because there is not yet a sufficient showing that the minors are Indian children. (See In re Hunter W., supra, 200 Cal.App.4th at p. 1467.) If the minors are determined to be Indian children, an interested party may petition the court to invalidate any orders shown to have violated ICWA. (
DISPOSITION
The juvenile court‘s orders finding ICWA inapplicable to these dependency proceedings are vacated. In all other respects, the challenged orders are affirmed. The matter is remanded to the juvenile court with directions to require the Agency to provide proper ICWA notice, to determine the applicability of ICWA based on that notice and any further inquiry, and for further proceedings consistent with this opinion.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
ORDER CERTIFYING OPINION FOR PUBLICATION
THE COURT:
The opinion in this case filed December 4, 2015, was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a) for publication is granted.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and
McCONNELL, P. J.
Copies to: All parties