Riverside Cnty. Dep't of Pub. Soc. Servs. v. S.A. (In re N.G.)

27 Cal.App.5th 474

238 Cal.Rptr.3d 304

IN RE N.G., a Person Coming Under the Juvenile Court Law.

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

v.S.A., Defendant and Appellant.

E070338

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

Filed September 21, 2018

Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.

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

OPINION

FIELDS, J.

I. INTRODUCTION

Defendant and appellant, S.A. (Mother), is the mother of N.G., a boy born in 2005. Mother appeals from the April 5, 2018, judgment terminating parental rights to N.G., then age 13. ( Welf. & Inst. Code, § 366.26.)¹ Mother claims only that the juvenile court erroneously failed to ensure that plaintiff and respondent, Riverside County Department of Public Social Services (DPSS), fully investigated N.G.’s paternal lineal ancestry and gave adequate notices of the proceedings to all federally recognized Cherokee tribes and to the Bureau of Indian Affairs (BIA), pursuant to the Indian Child Welfare Act (ICWA) ( 25 U.S.C. § 1901 et seq. ) and related California law ( Welf. & Inst. Code, § 224 et seq. ).

We agree Mother’s claim has merit and conditionally reverse the judgment. We also conclude that DPSS must be ordered to further investigate N.G.’s paternal lineal ancestry, and include any newly discovered information concerning N.G.’s paternal lineal ancestry in the ICWA notices to all federally recognized Cherokee tribes, the BIA, and all previously noticed tribes. DPSS must also inquire whether N.G. may have maternal lineal ancestry and, if so, send additional ICWA notices, as appropriate.

II. BACKGROUND

On March 17, 2011, N.G. was taken into protective custody, and N.G.’s father, J.G., filed a Parental Notification of Indian Status form (ICWA-020) indicating he may have Blackfeet or Navajo Indian ancestry. On the form, J.G. placed a question mark next to the tribes’ names and wrote "not exactly sure." Also on March 17, N.G.’s paternal grandfather, R.G., reported that R.G.’s grandfather (N.G.’s great-great-grandfather) was Native American, and R.G. believed his grandfather’s tribe was "out of Michigan."

On March 29, 2011, DPSS sent ICWA notices (Notice of Child Custody Proceeding for Indian Child (ICWA-030) ) to the Blackfeet Tribe of Montana, the Navajo Nation, the Colorado River Indian Tribes, and the Colorado River Tribal Council (the March 2011 ICWA notices). The March 2011 ICWA notices included J.G.’s and R.G.’s full names and dates of birth, J.G.’s current address and one former address, and stated R.G. lived in "Corona, California." The March 2011 ICWA notices included no other identifying information concerning N.G.’s paternal lineal ancestors. (§ 224.2, subd. (a)(5)(C).)

In response to the March 2011 ICWA notices, the Blackfeet Tribe and the Navajo Nation said they were unable to verify that N.G. was an Indian child or eligible for membership in their tribes based on the information in the ICWA notices. The Colorado River Indian Tribes responded that N.G. was not an enrolled member of the tribes nor eligible for enrollment in the tribes.

On April 21, 2011, the court found "good" ICWA notice had been given and that ICWA did not apply to the Blackfeet Tribe. On October 25, 2011, the court found ICWA did not apply, and on April 3, 2012, the court found N.G. was not an Indian child. But on April 18, 2011, before the court made any of these findings, DPSS reported that, on April 11, 2011, J.G. told the social worker that, a year earlier, J.G. had been in contact with "paternal cousins" who were registered members of "the Cherokee tribe," and J.G. and his father, R.G., "may have" Cherokee ancestry. J.G. said that neither he nor R.G. were registered members of any Indian tribe. J.G. was killed in a motorcycle accident in August 2012.

The record does not show that any ICWA notices were given to any federally recognized Cherokee tribes or the BIA. Nor does the record indicate that DPSS attempted to interview J.G., R.G., the paternal cousins, or any other persons in order to obtain, if known, the full names, dates and places of birth and death, current and former addresses, and other identifying information concerning N.G.’s paternal lineal ancestors. (§ 224.2, subd. (a)(5)(C); In re Karla C. (2003) 113 Cal.App.4th 166, 175, 6 Cal.Rptr.3d 205.)

Mother’s whereabouts were unknown when N.G. was taken into protective custody in March 2011 and neither Mother nor J.G. received reunification services. But DPSS and Mother were in contact in June 2011 and in February 2012, and the record does not show that Mother ever completed or that DPSS ever asked Mother to complete a Parental Notification of Indian Status form (ICWA-020), or whether DPSS ever asked Mother, any other maternal relatives, or any other persons whether N.G. may have any maternal Indian ancestry. DPSS was in contact with a maternal uncle, E.J., in August 2011, but the record does not show that DPSS asked E.J. whether N.G. may have maternal Indian ancestry, or if so whether DPSS asked E.J. for identifying information concerning N.G.’s maternal lineal ancestors.

N.G. was placed in foster care in March 2011. In September 2017, N.G. was placed in a prospective adoptive home with his godmother. On April 5, 2018, the court terminated parental rights and placed N.G. for adoption. Mother appeals from the judgment terminating parental rights.

III. DISCUSSION

Mother claims only that the juvenile court erroneously failed to ensure that DPSS fully investigated N.G.’s paternal lineal ancestry and sent ICWA notices to all federally recognized Cherokee tribes and the BIA, after N.G. informed DPSS in April 2011 that N.G. may have Cherokee ancestry. We agree. On remand, the court must ensure that DPSS fully investigates N.G.’s paternal lineal ancestry and includes any newly discovered information in the ICWA notices to all federally recognized Cherokee tribes, the BIA, and the previously noticed tribes. DPSS must also inquire whether N.G. may have maternal Indian ancestry and, if so, send additional ICWA notices, as appropriate.

A. ICWA and Related California Statutes, Overview

1. ICWA’s Notice Requirements

ICWA provides: "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 [here, DPSS] 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).) ICWA also requires child welfare agencies to notify the BIA of the proceedings, if the juvenile court knows or has reason to know the child may be an Indian child but the identity of the child’s tribe cannot be determined. ( 25 U.S.C. §§ 1903(11), 1912(a) ; In re Michael V. (2016) 3 Cal.App.5th 225, 232, 206 Cal.Rptr.3d 910 ( Michael V. ).)²

An "Indian child" is a child who is either a member of an Indian tribe or 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).) An ICWA notice "enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives the required notice." ( Isaiah W. , supra , 1 Cal.5th at p. 5, 203 Cal.Rptr.3d 633, 373 P.3d 444 ; 25 U.S.C. § 1912(a) ; see Welf. & Inst. Code, § 224.2, subd. (d).) The juvenile court is not authorized to determine ICWA does not apply until (1) "proper and adequate" ICWA notice has been given, and (2) neither a tribe nor the BIA has provided a determinative response to the notice within 60 days of receiving the notice. ( Welf. & Inst. Code, § 224.3, subd. (e)(3) ; Isaiah W. , supra , at p. 11, 203 Cal.Rptr.3d 633, 373 P.3d 444.)

An ICWA notice must include, among other things, (1) the Indian child’s name, birthdate, and birthplace, if known; (2) the name of the Indian tribe in which the child is a member or may be eligible for membership, if known; and (3) specific identifying information concerning the child’s lineal ancestors, including "[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents ... 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." ( § 224.2, subd. (a)(5)(A)-(C).)

An ICWA notice is also required to include known identifying information concerning the child’s great-great-grandparents and even older lineal ancestors. ( 25 C.F.R. § 23.111(d) (2018).) There is "no general blood quantum requirement or ‘remoteness’ exception to ICWA notice requirements," particularly when there is no indication that the child’s tribe or potential tribe has a blood quantum requirement for membership. ( In re Breanna S. (2017) 8 Cal.App.5th 636, 650 ; In re Kadence P. (2015) 241 Cal.App.4th 1376, 1386-1387, 194 Cal.Rptr.3d 679.) Thus, it is " ‘necessary to provide as much information as is known on the Indian child’s direct lineal ancestors .’ ( 25 C.F.R., § 23.11(b), (2003).)" ( In re Karla C. , supra , 113 Cal.App.4th at p. 175, 6 Cal.Rptr.3d 205, italics added.)

2. The Duty of Inquiry

Juvenile courts and child protective agencies have "an affirmative and continuing duty to inquire" whether a child for whom a section 300 petition has been filed is or may be an Indian child. ( § 224.3, subd. (a) ; In re M.R. (2017) 7 Cal.App.5th 886, 904, 212 Cal.Rptr.3d 807.) If the court or social worker "knows or has reason to know" the child is or may be an...