Cite as
2015 DJDAR 2169Published
Feb. 25, 2015Filing Date
Feb. 23, 2015Summary
Three years before dependency proceedings began involving Father, Mother, and their two minor children (Minors), Father submitted to the Ventura County Human Services Agency (HSA) an ICWA-020 form claiming potential Eskimo heritage. Had this potential heritage been confirmed, the Indian Child Welfare Act (ICWA) would have applied in the proceedings, requiring certain determinations. However, at the time of the proceedings, the HSA informed the juvenile court that the ICWA did not apply; the juvenile court then, after proceedings, terminated Father and Mother’s parental rights. Subsequently, the HSA admitted that its advisement was an error, as the Noorvik Native Community informed the HSA that Minors were indeed lineal descendants of an Eskimo tribe.
Reversed and remanded. The ICWA reflects Congress’ belief that it’s in Indian children’s best interest to retain tribal ties and cultural heritage, and it is in the interest of tribes to preserve future generations. In re Desiree F. ICWA requirements demand that, before terminating parental rights to an Indian child, a juvenile court must find that “active efforts” were made to provide services designed to prevent the breakup of the Indian family, and that parents’ continued custody is likely to result in “serious emotional or physical damage.” In re Jonathon S. This latter finding must be supported by evidence beyond a reasonable doubt, including expert testimony. Because the juvenile court found the ICWA inapplicable, it did not apply these requirements before terminating Father and Mother’s parent rights. Since the HSA admits this determination was in error, the matter must be remanded for a new hearing in compliance with the ICWA.
Opinion by Justice Perren.
— Brian Cardile
In re H.G., et al., Persons Coming Under the Juvenile Court Law.
VENTURA COUNTY HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
B.G., et al.,
Defendants and Appellants.
2d Juv. No. B255712
(Super. Ct. Nos. J068715 & J069080)
(Ventura County)
California Courts of Appeal
Second Appellate District
Division Six
Filed February 24, 2015
Since the start of these dependency proceedings, the juvenile court and Ventura County Human Services Agency (HSA) have believed the Indian Child Welfare Act (ICWA) does not apply. (25 U.S.C. § 1901 et seq.) Evidence submitted for the first time on appeal, however, establishes that the children, who are of Eskimo descent, are Indian children under ICWA. We discuss the remedy.
Father and mother appeal from the order terminating parental rights to their two minor children (minors) and selecting adoption as the permanent plan. (Welf. & Inst. Code, § 366.26.)1 Three years ago, father submitted an ICWA-020 form claiming possible Eskimo heritage. HSA informed the juvenile court that ICWA does not apply to Eskimo families. The juvenile court agreed and found ICWA inapplicable. HSA concedes this was error. The federal definition of "Indian" includes "Eskimos and other aboriginal peoples of Alaska." (25 U.S.C. § 479; In re B.R. (2009) 176 Cal.App.4th 773, 783.)
To avoid a remand to ensure ICWA notice compliance, HSA sent ICWA-030 form notices to four native entities, including the Noorvik Native Community (NNC), a federally-recognized Alaskan Indian tribe. NNC responded by confirming minors are lineal descendants of their paternal grandmother, who is a tribe member. It stated minors "have a chance at getting enrolled within [NNC]" and provided application information. Father subsequently submitted a letter from NNC, dated November 5, 2014, which states: "The [NNC] has accepted the enrollment application from [father and minors]. [All three] are lineal descendants of a tribe member. [Father and minors] are now enrolled members of the [NNC]."2
ICWA reflects a congressional determination that it is in the best interests of Indian children to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations. (25 U.S.C. § 1902; see In re Desiree F. (2000) 83 Cal.App.4th 460, 469; § 224, subd. (a).) ICWA defines "Indian child" as a child who is either a member of an Indian tribe or eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4); In re Junious M. (1983) 144 Cal.App.3d 786, 796; see § 224.1, subd. (a).) Now that NNC has confirmed minors are tribe members, the parties agree they are Indian children under ICWA. (25 U.S.C. § 1903(4); § 224.3, subd. (e)(3).)
Before terminating parental rights to an Indian child, the juvenile court must satisfy ICWA requirements. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339 (Jonathon S.).) Among other things, it must find that "active efforts" were made to provide services designed to prevent the breakup of the Indian family, and that parents' continued custody of minors "is likely to result in serious emotional or physical damage." (25 U.S.C. § 1912(d), (f); Jonathon S., at p. 339.) The latter finding shall be "supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses." (25 U.S.C. § 1912(f); Jonathon S., at p. 339; In re Riva M. (1991) 235 Cal.App.3d 403, 410.) "These heightened requirements . . . apply regardless of whether the tribe [chooses] to intervene [in the case]." (Jonathon S., at p. 339; Riva M., at p. 410.)
Having found ICWA inapplicable, the juvenile court did not consider these requirements before terminating parental rights. (See 25 U.S.C. § 1912(d), (f); Jonathon S., supra, 129 Cal.App.4th at p. 339.) NNC also was not afforded an opportunity to intervene. (See 25 U.S.C. § 1912(a); In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425-1426.) Accordingly, as HSA now concedes, the order terminating parental rights must be reversed and the matter remanded for a new section 366.26 hearing in compliance with ICWA.3 (Jonathon S., at pp. 342-343; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111; see In re Francisco W. (2006) 139 Cal.App.4th 695, 709-711.) We recognize our decision further delays permanency for minors, "but cannot conclude that the prospect of such a delay excuses non-compliance at the expense of those that ICWA is intended to protect." (In re Alice M. (2008) 161 Cal.App.4th 1189, 1197.) We urge the juvenile court and the parties to expedite resolution of these proceedings on remand.
The order terminating parental rights is reversed and the matter remanded to the juvenile court with instructions to conduct a new section 366.26 hearing in conformity with the provisions of ICWA and applicable state law.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
Bruce A. Young, Judge
Superior Court County of Ventura
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant Father.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant Mother.
Leroy Smith, County Counsel, Joseph J. Randazzo, Patricia McCourt, Assistant County Counsel, for Plaintiff and Respondent.
1 All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
2 We previously granted HSA's unopposed motion to augment the record with documents demonstrating ICWA compliance and father's unopposed motion requesting that we accept, as evidence on appeal, the November 5, 2014, letter from NNC. (See Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252(c).)
3 At oral argument, parents requested that we also reverse the dispositional order. We lack authority to do so. (Jonathon S., supra, 129 Cal.App.4th at pp. 340-342.) In light of our decision, we do not reach parents' contentions that the juvenile court erred by finding the beneficial exception to adoption does not apply and by failing to select a legal guardianship as the permanent plan.
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390