IN RE L.L.

No. E066793.

In re L.L., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. R.L., Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Two.


Attorney(s) appearing for the Case

Lori A. Fields , under appointment by the Court of Appeal, for Defendant and Appellant.

Gregory P. Priamos , County Counsel, James E. Brown , Guy B. Pittman , and Carole Nunes Fong , Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

McKINSTER, J.

Appellant R.L. (father) is the father of L.L. (the child). The sole issue on appeal is father's contention that the Riverside County Department of Public Social Services (DPSS) failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). DPSS concedes, and we agree. We remand the case for the limited purpose of directing the juvenile court to order DPSS to comply with ICWA. In all other respects, we affirm.

PROCEDURAL BACKGROUND

Because father's claim does not require us to discuss the case's history in depth, we will give only an abbreviated summary of relevant facts and procedure.

On September 1, 2015, DPSS filed a Welfare and Institutions Code1 section 300 petition on behalf of the child, who was only a few days old. The petition alleged that the child came within the provisions of section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The petition included the allegations that the child's mother (mother)2 had an open dependency case with another child, and that she had a substance abuse history. It also alleged that both father and mother were currently on juvenile probation. A social worker filed a detention report and stated that father was a high school student who lived at home with his parents (the paternal grandparents). Father said he and mother were no longer together; however, they planned on co-parenting the child. Father and mother (the parents) both denied Native American ancestry.

The court held a detention hearing on September 2, 2015. The court ordered that the child remain in the custody of the parents.

The social worker filed a jurisdiction/disposition report on September 16, 2015, recommending that the court declare the child a dependent and the parents be provided with reunification services.

The court held a jurisdiction hearing on September 22, 2015, and father appeared. The court ordered him to take a paternity test and continued the matter.

The court held a contested jurisdiction hearing on January 13, 2016, and neither parent was present. DPSS filed a first amended petition reflecting a few changes with regard to mother. County counsel informed the court that the paternity test results indicated father was the child's biological father. The court found father to be the presumed father of the child. The court sustained the petition and adjudged the child a dependent of the court. It ordered physical custody to be retained by mother, under a plan of family maintenance. The court removed the child from father's custody and ordered him to participate in reunification services.

The social worker subsequently reported that during an interview on March 22, 2016, father stated that his great grandparents had Native American ancestry, which included the Apache and Yaqui tribes.

On March 24, 2016, the social worker filed a section 387 petition, alleging that the previous disposition was not effective in that mother continued to abuse controlled substances and engage in criminal activities. The court held a hearing on the petition on March 25, 2016. Mother did not appear at the hearing, but father and the paternal grandmother did. The court removed the child from mother's custody and temporarily placed her in the care of DPSS. The court acknowledged that ICWA may apply and set a jurisdiction/disposition hearing for May 2, 2016.

The social worker filed a jurisdiction/disposition report and stated that, during an interview on April 7, 2016, father reported that he had Native American ancestry on his father's side of the family. That same day, the social worker spoke with the paternal grandfather, who confirmed that he had Native American Indian ancestry. He said he would call the social worker back with information after he talked with his father.

On April 12, 2016, DPSS sent ICWA notices to the Bureau of Indian Affairs and U.S. Secretary of the Interior, as well as multiple Apache and Yaqui Indian tribes.3 DPSS received several letters from the tribes stating that the child was not a member of their tribes.

The court held a hearing on May 2, 2016, and sustained the section 387 petition. The court removed the child from mother's custody and ordered reunification services for mother.

The court held a six-month review hearing with regard to father on July 13, 2016, and the matter was set for contest.

The contested six-month review hearing was held on August 31, 2016. Father and the paternal grandmother appeared. County counsel recommended that the court terminate father's reunification services, due to his lack of compliance with the case plan. Counsel also asked to confirm mother's six-month review hearing for November 20, 2016. The court found that ICWA notice had been given as required by law, and the child was not an Indian child. It further found that father failed to participate regularly in his case plan, and there was no substantial probability of return to him. The court thus terminated his reunification services. The court continued the child as a dependent, noting that she was currently placed with the maternal great-great-grandmother.

ANALYSIS

The Record Shows That ICWA Inquiry and Notice Requirements Were Not Met

Father contends that this court should reverse the court's finding that ICWA did not apply. Specifically, he argues that DPSS failed to comply with the inquiry and notice requirements of ICWA, and the matter should be remanded for compliance. DPSS concedes.

A. Requirements under ICWA

"The social worker has `a duty to inquire about and obtain, if possible, all of the information about a child's family history'" required under ICWA regulations. (In re S.M. (2004) 118 Cal.App.4th 1108, 1115-1116.) "[W]here 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, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a); see In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264-1265.) "One of the primary purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. [Citation.] Notice is meaningless if no information or insufficient information is presented to the tribe. [Citation.] The notice must include . . . information about the Indian child's biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, birthdates, places of birth and death, current and former addresses, tribal enrollment numbers, and/or other identifying information. [Citations.]" (S.M., at pp. 1115-1116, fn. omitted.)

When the notice sent is inadequate, the finding that ICWA does not apply should be vacated and the matter should be remanded to the juvenile court with directions to order compliance with the ICWA notice provisions. (In re Damian C. (2009) 178 Cal.App.4th 192, 199.) "If, after proper inquiry and notice, no response is received from a tribe indicating [the child is an] Indian child[], all previous findings and orders shall be reinstated." (Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 268.) If a tribe claims the child is an Indian child, the juvenile court shall proceed in conformity with all provisions of ICWA. (In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)

B. The ICWA Notices Sent to the Tribes Were Deficient

The record shows the ICWA notices sent failed to provide the tribes with sufficient identifying information. Father first claimed he had Native American ancestry through his great grandparents, and later added that he had Native American ancestry on his father's side of the family. The notices included the names, birthdates, and birth places of mother and father, and the names and birthdates of the maternal grandmother and great grandmother, and the name of the maternal grandfather. They also included the names, addresses, and birthdates of the paternal grandparents, and just the name of the paternal great grandmother.

DPSS concedes that the social worker should have made further inquiry with the paternal relatives. Father, who was a minor, was living with the paternal grandparents, and the social worker had contact with them at various times throughout the case. The paternal grandmother attended court hearings with father on March 25, 2016, May 2, 2016, and August 31, 2016. Nonetheless, there is no indication the social worker asked the paternal grandparents for their former addresses or birth places, as such information was missing from the ICWA notices. Furthermore, there was no information provided in the notices for three out of the four paternal great-grandparents. The name of one paternal great-grandmother was listed, but the remaining categories of information simply stated "no information available" or "unknown." We note that the social worker spoke with the paternal grandfather, who confirmed he had Native American ancestry and said he would call the social worker back with information, after he talked to his father (the paternal great-grandfather). As DPSS concedes, there is no indication regarding any follow-up to this conversation.

We conclude that DPSS failed to comply with ICWA inquiry and notice requirements. Thus, the matter must be remanded for proper ICWA compliance. (In re Christian P. (2012) 208 Cal.App.4th 437, 452; see Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406, 1410.)

DISPOSITION

The juvenile court's finding that ICWA is not applicable is vacated. The case is remanded to the juvenile court with directions to order DPSS to comply with the inquiry and notice requirements of ICWA. If, after proper inquiry and notice, no response is received from a tribe indicating the child is an Indian child, the inapplicability finding shall be reinstated. If a tribe determines the child is an Indian child, the juvenile court shall proceed in conformity with all provisions of ICWA, and the child, her parents, and the tribe may petition the court to invalidate any orders that violated ICWA. In all other respects, the judgment is affirmed.

RAMIREZ, P. J. and FIELDS, J., concurs.

FootNotes


1. All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
2. Mother is not a party to this appeal.
3. The tribes included the Apache Tribe of Oklahoma, Jicarilla Apache Nation, Fort Sill Apache Tribe of Oklahoma, Mescalero Apache Tribe, Pascua Yaqui Tribal Council, Tonto Apache Tribe of Arizona, Yavapai-Apache Nation, San Carlos Apache Tribe, White Mountain Apache Tribe, and Apache Tribe of Oklahoma.

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