Filed 8/12/15 In re Jesus S. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re JESUS S., JR., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                                                F070395

         Plaintiff and Respondent,                                               (Super. Ct. No. 513133)

                   v.
                                                                                         OPINION
JESUS S., JR.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Valli
Israels, Judge.
         Caitlin U. Christian, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey
D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Kane, Acting P.J., Detjen, J. and Smith, J.
                                    INTRODUCTION
       Appellant Jesus S., Jr., was the subject of a Welfare and Institutions Code section
6021 petition. The juvenile court found that the Indian Child Welfare Act (ICWA; 25
U.S.C. § 1900 et seq.) did not apply and removed Jesus from his father’s care, delegating
to the probation department the selection of an appropriate placement.
       Jesus contends, and the People concede, the delegation of authority over the
selection of an appropriate placement was unauthorized. Jesus also contends the juvenile
court failed to comply with ICWA before ordering an out-of-home placement. We agree.
                    FACTUAL AND PROCEDURAL SUMMARY
       On October 11, 2012, Jesus’s father (father) filed Judicial Council form
ICWA-020 stating that he (father) “may have Indian ancestry” and that the tribe was
“unk.” The form specifically states that the form is “not intended to constitute a complete
inquiry into Indian heritage.” The record does not contain any evidence demonstrating
that any further inquiry as to Indian ancestry, or notice to any tribe or the Bureau of
Indian Affairs (BIA), was made.
       On October 18, 2012, after Jesus admitted to committing a misdemeanor burglary
in Stanislaus County, his case was transferred to Alameda County. On November 9,
2012, he admitted to committing a felony burglary in Alameda County. The case was
then transferred back to Stanislaus County, where Jesus resided, for disposition on both
petitions.
       On December 11, 2012, Jesus was adjudged a ward of the juvenile court pursuant
to section 602 and placed on probation.
       On three occasions (February 2013 and February and June 2014) Jesus admitted to
violations of probation and his wardship was continued. His violations included truancy,


       1Allfurther statutory references are to the Welfare and Institutions Code unless
otherwise specified.


                                             2.
drug use, and failure to report to his probation officer. On September 11, 2014, another
petition was filed alleging Jesus again had violated probation by failing to report to his
probation officer as directed for July, August, and September 2014 and by failing to
attend school.
         On October 8, 2014, the juvenile court continued Jesus as a ward of the court,
continued him on probation, and removed him from his father’s care, pursuant to section
727, subdivision (a). The juvenile court ordered Jesus be placed in out-of-home care. A
prepermanency status review hearing was scheduled for February 25, 2015, and a
permanency planning hearing was scheduled for October 8, 2015.
         Also at the October 8, 2014, hearing, the juvenile court found that ICWA did not
apply.
         On October 23, 2014, the probation office filed a report stating that placement was
pending. Jesus had been referred to Tahoe Turning Point and the probation office was
waiting for the outcome of Jesus’s interview. The juvenile court continued the hearing
on placement review to November 7, 2014, stating, “You will or will not be here at the
next hearing, depending on whether you’re placed.”
         Jesus filed his appeal on October 28, 2014.
                                       DISCUSSION
         Jesus contends the juvenile court’s order directing the probation department to
select his placement constituted an unauthorized delegation of authority. He also
contends the juvenile court erred in finding that ICWA notice requirements had been
satisfied.
I.       Out-of-Home Placement
         Jesus contends the juvenile court’s order directing the probation department to
select a suitable out-of-home placement for him was an unauthorized delegation of
authority. The People concede the issue.



                                              3.
       The juvenile court ordered Jesus removed from the custody of his father, effective
as of the hearing date of October 8, 2014, and placed in “suitable out-of-home
placement” pursuant to section 727, subdivision (a). The probation department was
ordered to select “the placement setting that is the least restrictive or most family like, the
most appropriate available in close proximity to the parents’ home, the environment best
suited to the minor’s special needs and interests.” The juvenile court further specified
that placement options should first be with “suitable relatives,” followed in order of
preference by tribal members, foster care, group care, and residential treatment. Jesus
was ordered detained in juvenile hall until the probation department selected a suitable
placement.
       A placement decision is “particularly fact intensive and requires a fully informed
analysis by the juvenile court of the minor’s needs and the programs’ services.” (In re
Khalid B. (2015) 233 Cal.App.4th 1285, 1291.) Consequently, the juvenile court may not
delegate to the probation department the authority and discretion to select a minor’s
placement. (In re Debra A. (1975) 48 Cal.App.3d 327, 330.)
       The October 8, 2014, order itself, paragraph 6 on page 4 of the standard form
order, specifies that “additional placement findings and orders must be attached” if out-
of-home placement is ordered. No documents were attached.
       The matter must be remanded for the juvenile court to determine an appropriate
placement.
II.    ICWA Compliance
       Jesus contends the juvenile court erred by failing to comply with ICWA
requirements before setting a permanency planning hearing and ordering an out-of-home
placement. The People contend ICWA does not apply or that insufficient information
was provided to trigger ICWA notice requirements. We conclude the issue cannot be
fully resolved based on the record before us and will need to be addressed on remand.



                                              4.
        Judicial Council form ICWA-020 was filed on October 11, 2012, stating that
father “may have Indian ancestry” and that the tribe was “unk.” The form specifically
states that the form is “not intended to constitute a complete inquiry into Indian heritage.”
The record does not contain any evidence demonstrating that any further inquiry as to
Indian ancestry, or notice to any tribe, the BIA, or the Secretary of the Interior, was
made.
        Subsequently, when the juvenile court ordered the probation department to select
an appropriate out-of-home placement at the October 8, 2014, hearing, the juvenile court
specifically stated that the probation department should consider placement with tribal
members. Yet, a few moments later, the juvenile court found that ICWA did not apply.
        ICWA does not apply in most juvenile delinquency cases. (In re W.B. (2012) 55
Cal.4th 30, 47 (W.B.).) When applicable, ICWA imposes notice, procedural rules, and
enforcement requirements. (W.B. at p. 48.) With respect to notice, if the identity or
location of a minor’s tribe cannot be determined, then notice is to be given to the BIA.
(Ibid.) After notice has been given, a minor’s tribe has the right to intervene in
proceedings. (Id. at pp. 48-49.) ICWA imposes various procedural and substantive
requirements on state court proceedings. (W.B. at p. 49.)
        The guidelines published by the BIA to guide state courts in properly
implementing ICWA state that “‘most juvenile delinquency proceedings are not
covered’” by ICWA. (W.B., supra, 55 Cal.4th at p. 50.) There are exceptions, however,
and, according to ICWA guidelines, ICWA applies to “‘status offenses, such as truancy
and incorrigibility, which can only be committed by children, and to any juvenile
delinquency proceeding that results in the termination of a parental relationship.’” (W.B.
at p. 50.)
        Section 224.3, subdivision (a) provides that a juvenile court and the probation
department have an affirmative and continuing duty to inquire whether a minor subject to
a section 601 or 602 petition and under a juvenile warship is an Indian child if that minor

                                             5.
is at risk of entering foster care or is in foster care. (W.B., supra, 55 Cal.4th at p. 53.)
Reading section 224.3, subdivision (a), together with ICWA provisions, it follows that
there is “no duty of notice, or any other ICWA procedures, in most delinquency cases
alleging adult criminal conduct.” (W.B., at p. 54.) “A narrow exception applies when the
court decides to place a delinquent ward outside the home for reasons other than the
ward’s criminal conduct.” (Ibid.) As the California Supreme Court summarized in W.B.:

       “In all juvenile delinquency proceedings, including those alleging adult
       criminal conduct, the court and the probation department have a duty to
       inquire about Indian status as soon as they determine that the child is in
       foster care or is at risk of entering foster care due to conditions in the
       child’s home. [Citation.] Notice pursuant to ICWA is generally not
       required in a delinquency proceeding premised on conduct that would be
       criminal if committed by an adult. However, if at the disposition stage or at
       any point in the proceedings, the court contemplates removing an Indian
       child from the parental home based on concerns about harmful conditions
       in the home, and not based on the need for rehabilitation or other concerns
       related to the child's criminal conduct, notice is required and all other
       ICWA procedures must be followed.” (Id. at p. 55.)
       Here, Jesus’s probation violations that triggered the hearing leading to out-of-
home placement were truancy and failure to report to the probation officer. In ordering
out-of-home placement, the juvenile court found: “The parent or guardian is incapable of
providing or has failed or neglected to provide proper maintenance, training, and
education for the minor.” The juvenile court also found: “The minor has been tried on
probation and has failed to reform. The welfare of the minor requires that custody be
taken from the minor’s parent or guardian.” When addressing Jesus, the juvenile court
stated, “this is not a punishment,” and further stated it would allow Jesus to be in a
“stable place.” The juvenile court noted that with an out-of-home placement, Jesus
would not have “to be worried about where [his] next meal is coming from,” or the
“housing situation,” or “any of that.”




                                               6.
       The juvenile court’s findings seem to indicate that out-of-home placement was
ordered based entirely upon conditions in the home and incorrigibility, which would
require all ICWA procedures be followed. (W.B., supra, 55 Cal.4th at pp. 55, 59.)
If this was the case, the record before us did not disclose substantial evidence supporting
the juvenile court’s finding that ICWA did not apply. (In re E.W. (2009) 170
Cal.App.4th 396, 403-404.)
       At a minimum, the probation department would have to interview Jesus’s family
members (§ 224.3, subd. (c)) in order to prepare a notice that included all of the required
information (§ 224.2, subd. (a)(5)). Both state and federal law requires the probation
department to attempt to obtain information about Jesus’s biological family, including
parents, grandparents, and great-grandparents, in order to include this information on
notices sent to determine if Jesus was in fact an Indian child. (§ 224.2, subd. (a)(5)(C);
25 C.F.R. § 23.11.) Indian status need not be certain in order to invoke the duty to
inquire and give notice. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.)
       Documentation needs to be filed with the juvenile court evidencing efforts to
determine Jesus’s Indian status and of notices to potential tribes, the BIA, and/or the
Secretary of the Interior. (§ 224.2, subds. (a), (c); 25 U.S.C. §§ 1912(a), 1913.) The
Judicial Council promulgates standard forms to facilitate the inquiry and notice
requirements. (See, e.g., Judicial Council form ICWA-030.)
       Notice is meaningless if no information or insufficient information is presented to
the tribe or the BIA to allow a determination to be made regarding Jesus’s Indian status.
(In re S.M. (2004) 118 Cal.App.4th 1108, 1116.) A deficit notice under ICWA usually is
prejudicial. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411.)
       If, however, out-of-home placement is in fact being based upon conduct
committed by Jesus that would be criminal if committed by an adult, and thus ICWA
would not apply, this does not appear to be reflected in the juvenile court’s comments.



                                             7.
          On remand, the juvenile court needs to clarify whether out-of-home placement is
being ordered based upon conduct that would be criminal, in which case ICWA would
not apply, or, if out-of-home placement is being ordered based upon conditions in the
home, then ICWA would apply and proof of compliance with ICWA notice requirements
must be filed with the juvenile court. (§ 224.2, subd. (c); W.B., supra, 55 Cal.4th at
p. 55.)
                                       DISPOSITION
          The provision of paragraph 6 of the October 8, 2014, terms of probation and order
requiring an unspecified out-of-home placement is stricken and the matter is remanded
for further proceedings consistent with this opinion.




                                              8.
