Opinion
C095820
05-09-2023
Guardianship of the Person of K.C., a Minor. v. C.C., Objector and Appellant; A.C., Petitioner and Respondent, K.C., Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. STK-PR-GP-2020-0001334
DUARTE, ACTING P.J.
C.C., mother of the minor K.C., appeals from the probate court's judgment removing the minor from mother's custody and granting legal guardianship to paternal grandmother A.C., under Probate Code section 1510.
Undesignated statutory references are to the Probate Code.
Mother contends the court violated her right to due process by failing to order that she be provided a copy of the confidential investigation report and recommendation concerning the proposed guardianship pursuant to section 1513. She further contends the court failed to comply with the inquiry and notice requirements under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA), because the court-appointed investigator and the court failed to inquire as to mother's heritage or the heritage of any known relatives, and the court made no findings as to whether the minor is an Indian child.
We agree with the second claim, and will conditionally reverse the judgment and remand for limited proceedings to ensure compliance with the ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
As we later discuss in more detail, we are limited to the record provided to us on appeal, which does not include a reporter's transcript.
On December 11, 2020, A.C. (grandmother) filed a petition for appointment of guardian referencing the two-year-old minor. The petition alleged that the minor had been living with grandmother for "8-9 months," that mother's last known whereabouts were in the custody of Kern County jail, and that the father was in custody in San Joaquin County jail. Grandmother further requested the trial court excuse any notice requirements for the parents. In the child information attachment, grandmother attested that the father had agreed to her guardianship request, but mother's position was unknown. She represented the minor was not a member of, or eligible for membership in, one or more Indian tribes recognized by the federal government under the ICWA, but also that she did not know or have reason to know whether he is or may be an Indian child. She included the names of the parents and the paternal grandparents as relatives, but indicated the maternal grandparents' names and addresses were unknown. Finally, she represented an Indian child inquiry concerning the minor had already been made, and the minor had no known Indian ancestry. There were no attachments supporting these claims.
On February 11, 2021, a confidential investigator's report was filed pursuant to section 1513. During a hearing on the matter on February 25, 2021, mother appeared on her own behalf and objected to the petition, also providing the names of the maternal grandparents. The court continued the hearing, provided mother with a copy of the pleadings, and ordered that the temporary orders and letters of temporary guardianship were to remain in effect. The minute order from the hearing reflects that the court ordered the clerk to send a copy of the court investigator's report to counsel for the minor, but does not reflect an order to send a copy of the report to mother or grandmother. Nor does the minute order reflect whether mother requested access to the report or that such a request was considered and denied.
On April 6, 2021, mother filed an objection to the petition. On April 29, 2021, the court ordered weekly telephone or video visits between mother and the minor and set a status hearing.
On November 4, 2021, the court held a settlement conference with the parties, and ordered an exchange of witnesses and a description of the copies of evidence to be presented at trial by December 3, 3021. The court further indicated that if no party provided for a court reporter, the court would "use the court's recording system."
On January 5, 2022, the matter was called for trial. Mother and grandmother represented themselves, respectively. There was no court reporter, and there is no indication in the record provided to us that the matter was electronically recorded. The minor's counsel asked the court to consider the court investigator's report under section 1513, and the court indicated it would do so, but the minute order is silent on whether the report was provided to any of the other parties. Mother and grandmother testified.
On February 7, 2022, the court issued a written ruling granting the petition, appointing grandmother guardian of the minor. The court noted that it considered the court investigator's report, among other evidence and the testimony and briefs, in reaching its decision.
Mother filed a timely notice of appeal. After multiple continuances in the briefing schedule at mother's request, the case was deemed fully briefed in February 2023, and assigned to this panel on February 24, 2023. Grandmother did not file a respondent's brief.
DISCUSSION
I
Probate Code Section 1513Mother first claims the probate court failed to order that she receive a copy of the confidential court investigator's report as she argues is required by section 1513, subdivision (d), and as a result she was denied due process. As we next explain, we see no error on the face of the record.
Section 1513, subdivision (a) provides that, unless waived by the court for good cause, a court investigator "shall make an investigation and file with the court a report and recommendation concerning each proposed guardianship." Section 1513, subdivision (d) provides: "All reports authorized by this section are confidential and shall only be made available to persons who have been served in the proceedings or their attorneys. The clerk of the court shall make provisions to limit access to the reports exclusively to persons entitled to receipt. The reports shall be made available to all parties entitled to receipt no less than three court days before the hearing on the guardianship petition." In Tracy A. v. Superior Court (2004) 117 Cal.App.4th 1309 (Tracy A.), the parent's counsel requested a copy of the confidential court investigator's report, and the request was denied. (Id. at pp. 1312-1313.) The clerk allowed counsel to view the document but did not provide a copy. (Ibid.) The court of appeal held that "in order to fulfill the evident policy behind [section 1513, subdivision (d),] the probate court should modify its practices to allow persons served in a guardianship proceeding to receive a copy of any relevant report and to receive it a sufficient time before any hearing to permit proper preparation for that hearing," reasoning that the denial of access to the report amounted to a denial of procedural due process. (Id. at p. 1318.)
Mother cites Tracy A. in support of her contention that she was denied due process, reasoning that "there is not substantial evidence that the report was provided to [mother]." We first note that the statutory language of section 1513, subdivision (d), requiring that the report "shall only be made available to persons who have been served," does not necessarily require the probate court to sua sponte provide a copy of the report to all parties entitled thereto absent any request. The Tracy A. court observed: "[I]t is true [section 1513, subdivision (d)] does not require a report be 'served' upon petitioner or other persons served in the proceeding. But it does mandate those reports be made available to such persons and that they receive them. Thus, at a minimum, petitioner and others in her category are entitled to timely receipt when they request a copy of the report." (Tracy A., supra, 117 Cal.App.4th at p. 1320.) However, we need not discuss this issue further to resolve the instant case, given the state of the record and the corresponding standard of review, which we next describe.
In the absence of a reporter's transcript or other record of the trial court's proceedings, the appeal is treated as an appeal on the judgment roll. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.) On such an appeal, the evidence is conclusively presumed to support the trial court's findings. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) This court's review is necessarily "limited to determining whether any error 'appears on the face of the record.'" (Id. at pp. 324-325.)
The record provided to us on this appeal does not show error. As we have described, the minute order from the hearing at issue does not indicate whether mother was provided with a copy of the report; it also does not reflect a request for it. We have no reporter's transcript. Thus, we cannot conclude that mother requested a copy of the confidential court investigator's report, or that any such request was denied. We cannot even conclude that mother was not provided with the report; we simply do not know. Even mother's appellate brief is equivocal on the subject, claiming that "[t] here is no indication that [the report] was provided to [mother] or any of the other parties." No error appears on the face of the record.
II
ICWA
Mother next contends the probate court and its appointed investigator failed to adequately inquire of her or any maternal relatives to determine if the minor had Indian ancestry under the ICWA. She further argues that the court failed to make findings on the application of the ICWA in this case. We agree, and will conditionally reverse and remand the matter for ICWA compliance, including entry of the required findings.
A. Applicable Law
" 'The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. [Citations.] A major purpose of the ICWA is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." '" (In re G.A. (2022) 81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056.) An" 'Indian child'" is a child who "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." (25 U.S.C. § 1903(4).) The ICWA and its notice requirements apply to guardianships under the Probate Code. (Cal. Rules of Court, rule 7.1015; see also Cal. Rules of Court, rule 5.480; Prob. Code, § 1459.5 [Welf. &Inst. Code, §§ 224.3 through 224.6 apply to proceedings where ICWA applies, including guardianship proceedings where the proposed guardian is not the natural parent or Indian custodian of the proposed ward]; Guardianship of D.W. (2013) 221 Cal.App.4th 242, 249 [applying the ICWA where biological aunt petitioned for guardianship].)
"[S]ection 224.2 creates three distinct duties regarding ICWA ....First, from the [court's] initial contact with a minor and his [or her] family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the [court] 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone 'knows or has reason to know that the child is an Indian child']; id., subd. (d) [defining circumstances that establish a 'reason to know' a child is an Indian child]; § 224.3 [ICWA notice is required if there is a 'reason to know' a child is an Indian child as defined under § 224.2, subd. (d)].)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1384; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
B. Failure to Make ICWA Findings
Mother argues the probate court erroneously failed to make ICWA findings, including whether the minor is an Indian child. We agree. The court made no findings as to whether the ICWA applied before granting the guardianship petition and appointing grandmother guardian. No ICWA findings were made at any point in the proceeding. "[C]ourts have made clear it is error for a court applying the Welfare and Institutions Code to fail to determine whether ICWA applies." (Adoption of M.R. (2022) 84 Cal.App.5th 537, 541, opn. mod. Oct. 26, 2022, citing In re Jennifer A. (2002) 103 Cal.App.4th 692, 704-705.) The court's failure to make an ICWA finding was error.
C. Adequacy of the Inquiry
Mother further argues the ICWA inquiry was inadequate here because there was no documented inquiry of mother or any of mother's family members. Mother's claim is supported by the limited record provided to us. Indeed, the record is devoid of any efforts of inquiry at all beyond grandmother's bare (and at times conflicting) representation that the minor was not a member of, or eligible for membership in, one or more Indian tribes recognized by the federal government under the ICWA. While grandmother also claimed that an Indian child inquiry concerning the minor had already been made and the child had no known Indian ancestry, there were no attachments supporting this claim. Accordingly, we agree that the probate court was required to make additional efforts to inquire about possible Native American ancestry from mother and maternal relatives and its failure to do so was error. (See In re Y.W. (2021) 70 Cal.App.5th 542, 554; In re A.C. (2022) 75 Cal.App.5th 1009, 1016-1018.) Given grandmother's failure to respond to mother's claims on appeal and the remedial purpose underlying the ICWA and related California law intended to protect third party rights, we apply the analytical framework set forth by the California Supreme Court in In re A.R. for assessing harm, and we conclude the error is prejudicial. (In re A.R. (2021) 11 Cal.5th 234, 252-254 [determining whether an error is prejudicial requires viewing the error through the lens of the remedial purpose of the law at issue].)
We therefore conclude that we must conditionally reverse and remand this case for compliance with the inquiry and notice provisions of the ICWA. After further inquiry, the court shall enter findings on the ICWA and, if it finds the child is not an Indian child, it shall reinstate the judgment. If it finds the child an Indian child, it shall conduct a new trial and proceed in accordance with the ICWA.
DISPOSITION
The judgment is conditionally reversed and remanded for the limited purpose of compliance with the ICWA, including the probate court's entry of findings related to the ICWA at the conclusion of the inquiry. If, after proper and complete inquiry, the minor is found not to be an Indian child falling within the provisions of the ICWA, the judgment shall be reinstated. However, if a tribe determines the minor is an Indian child as defined by the ICWA and the court determines the ICWA applies to this case, the court is ordered to conduct a new trial and proceed in accordance with the ICWA. The parties shall bear their owns costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: Boulware Eurie, J., McAdam, J. [*]
[*]Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.