Opinion
F084770
02-22-2023
In re K.M. a Person Coming Under the Juvenile Court Law. v. DIANE M., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Carolyn S. Hurly, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County Super. Ct. Nos. 21CEJ300169-1, 21CEJ300169-2 Todd Eilers, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Carolyn S. Hurly, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
Before Detjen, Acting P. J., Pena, J. and Snauffer, J.
OPINION
THE COURT [*]
Diane M. (mother) appeals from an order terminating her parental rights to her now nine-year-old daughter, K.M., and 21-month-old son, J.G. (collectively the children), under Welfare and Institutions Code section 366.26. Her sole contention on appeal is that the Fresno County Department of Social Services (department) and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because extended family members were not asked about the children's possible Indian ancestry. The department concedes error, which we accept.
Statutory references are to the Welfare and Institutions Code.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, fn. 1.)
As we discuss more fully below, we review a juvenile court's ICWA findings under a hybrid substantial evidence/abuse of discretion standard, reviewing for substantial evidence whether there is reason to know a child is an Indian child, and for abuse of discretion a juvenile court's finding that a department exercised due diligence and conducted a "proper and adequate" ICWA inquiry. Further, we will reverse only on a showing that any ICWA error was prejudicial. Applying this standard, we conclude there is not substantial evidence in the record to support the court's finding that the children are not Indian children, and the court abused its discretion by concluding that the department exercised due diligence and conducted an adequate ICWA inquiry. We further conclude the court's ICWA error was prejudicial, conditionally reverse the finding that ICWA does not apply and remand for full compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral
On May 5, 2021, the department received a referral that mother gave birth prematurely to J.G. She tested positive for amphetamine a week before and admitted smoking methamphetamine four nights and five days prior to being admitted to the hospital. Prior to that, she had not used methamphetamine in over eight years. Mother identified her boyfriend, Thomas G., as the father of her children. He was not listed on their birth certificates. He and mother had a history of domestic violence and he was on probation for a domestic violence charge that did not involve mother. Then seven-year-old K.M. was staying with her paternal aunt, Irene G. Mother said her mother was deceased and her father lived in Mexico.
Over the next several days, the social worker attempted contact with Thomas to spot test him and assess the family home but was unable to coordinate with Thomas because of his work schedule. Irene told the social worker that Thomas did not work.
On May 10, 2021, social workers conducted a team decision making meeting (TDM) with mother and paternal aunts Irene and Tammy G. in attendance. Irene and Tammy stated mother and Thomas lived with Adrian G., the paternal grandmother, who they believed was helping mother obtain methamphetamine. They were aware that Thomas was using drugs.
B. Detention
Following the TDM, the department obtained a protective custody warrant for the children and filed a dependency petition on their behalf, alleging they came within the juvenile court's jurisdiction under section 300, subdivision (b)(1) (failure to protect).
The parents appeared at the detention hearing on May 14, 2021, and were appointed counsel. Mother stated she did not have Indian heritage but Thomas said it was possible that he did. The juvenile court ordered the department to notify any tribe identified within 15 days. The court ordered the children detained, ordered the department to offer the parents services and set the matter for a jurisdiction and disposition hearing (combined hearing) on June 16, 2021. The department placed the children with their paternal grandfather and step grandmother.
On May 24 and 25 and June 1, 2021, a social worker attempted to contact Thomas to inquire about his Indian ancestry but was unable to reach him. In its report for the combined hearing, the department indicated ICWA may apply.
C. Combined Hearing
Neither parent appeared at the combined hearing on June 16, 2021. The juvenile court exercised its dependency jurisdiction over the children, ordered them removed from parental custody and ordered mother to complete reunification services. The court found that Thomas's whereabouts were unknown and ordered paternity testing for him. Since he had not elevated his paternity status beyond that of alleged father, the court did not order reunification services for him. (§ 361.5, subd. (a).) The court found ICWA did not apply and set a six-month review hearing for December 15, 2021.
Sometime around June 16, 2021, Thomas claimed to have Indian heritage with the Blackfeet tribe on his maternal side.
It is not clear from the record when Thomas informed the department of his Blackfeet heritage. According to the department, he made that claim at the detention hearing on June 16, 2021. However, the hearing on June 16, 2021, was the combined hearing, not the detention hearing and Thomas did not attend the combined hearing. Since the only information available in the record regarding the detention hearing is the clerk's transcript, which indicates Thomas stated only that he had "possible" Indian heritage, we presume he identified Blackfeet as his tribe of heritage at some point during the day of the combined hearing but not at the hearing.
D. ICWA Notice
On July 9, 2021, the department sent a "NOTICE OF CHILD CUSTODY PROCEEDING FOR INDIAN CHILD" (ICWA-030) to the Blackfeet tribe. Under the section of the ICWA-030 reserved for additional information concerning the biological father, the department stated that the ICWA liaison attempted multiple times in June 2021 to contact Thomas by telephone without success. On June 22, 2021, the liaison spoke to Mary Ann G., the children's paternal step grandmother. Mary Ann told the liaison she would have to speak to mother and hung up. On June 24, 2021, the liaison spoke to Irene S., the children's paternal aunt. Irene said they did not have any Indian heritage as far as she knew but provided another telephone number for Thomas. On June 25, 2021, the liaison left a message for Thomas to contact the department. He had not returned her call before the department mailed off the ICWA-030. The department listed Mary Ann as father's biological mother with no additional information. The department indicated there was no information available for the paternal grandfather. As to mother, the ICWA-030 stated that the liaison was unable to contact mother and none of her relatives made themselves available.
For the first and only time among its many references to Irene, the department refers to her as Irene S. instead of Irene G. There is, however, no reason to believe based on the totality of the record that father has two sisters named Irene. Rather, the record is replete with references to only two paternal aunts, Tammy and Irene. We therefore presume that father has only one sister named Irene who was asked and answered that the children did not have any Indian ancestry.
On July 15, 2021, the Blackfeet tribe notified the department that the children were not eligible for enrollment in the tribe and therefore were not "Indian" children as defined by ICWA.
E. Six-Month Review Hearing
By the six-month review hearing, the children had been placed with their paternal aunt Tammy and her husband Martin, who were willing to provide the children a plan of legal guardianship. Mother used methamphetamine throughout the reunification period, had not begun any of her court-ordered services and did not regularly visit the children. The department recommended the juvenile court terminate her reunification services.
Neither parent appeared at the six-month review hearing on December 15, 2021. The court terminated mother's reunification services and set a section 366.26 hearing for April 13, 2022.
F. Contested Hearing Under Sections 388 and 366.26
On April 11, 2022, mother filed a section 388 petition asking the juvenile court to reinstate reunification services and place the children with her. She entered a residential drug treatment program on March 7, 2022, and had maintained her sobriety since. She applied to live at a sober living facility with the children.
On April 12, 2022, the juvenile court summarily denied mother's section 388 petition because it did not establish new evidence or a change of circumstances.
The parents appeared at the section 366.26 hearing on April 13, 2022. Thomas was in custody. The department requested a 60-day continuance because Tammy and Martin wanted to adopt the children. The juvenile court set a contested hearing for July 27, 2022.
On July 20, 2022, mother filed a second section 388 petition, requesting reunification services and more frequent visitation. Mother alleged that she completed drug treatment, maintained a sobriety date of March 7, 2022, completed a parenting class and was attending therapy. The juvenile court scheduled a hearing on her petition on July 27, 2022, the date set for the section 366.26 hearing.
The parents appeared at the hearing on July 27, 2022. Thomas remained in custody. The juvenile court found he was the children's biological father. Mother testified she maintained her sobriety and strove to be a better parent by completing a parenting class and participating in mental health therapy. The children were loving to her at visitation and she and they were bonded. She had a job prospect and the support of her father.
The juvenile court denied mother's section 388 petition, found the children were likely to be adopted and terminated parental rights.
DISCUSSION
A. ICWA and the Indian Child
Congress enacted ICWA" 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture ....'" (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) Both ICWA and state law define an" 'Indian child'" as "any unmarried person who is under age eighteen and 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); § 224.1, subd. (a) [adopting federal definition].)
B. The Duty to Inquire and the Reason to Believe Versus the Reason to Know
"Notice to Indian tribes is central to effectuating ICWA's purpose, enabling a tribe to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in, or exercise jurisdiction over, the matter." (In re T.G. (2020) 58 Cal.App.5th 275, 288.) "[A]n adequate investigation of a family member's belief a child may have Indian ancestry is essential to ensuring a tribe entitled to ICWA notice will receive it." (Id. at p. 289.)
"ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal regulations implementing ICWA, however, require that state courts 'ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.' [Citation.] The court must also 'instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.'" (In re Austin J. (2020) 47 Cal.App.5th 870, 882-883.)
1. Initial Inquiry
Section 224.2, subdivision (a) imposes an affirmative and continuing duty of the department to inquire whether a child for whom a petition under section 300 has been filed is or may be an Indian child and to inquire during the initial contact by asking the party reporting the child abuse or neglect whether the party has any information that the child may be an Indian child. If the child is placed in the temporary custody of the department, the department must inquire whether the child is an Indian child. "Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child ._" (§ 224.2, subd. (b).) Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
Section 224.2, subdivision (c) requires the juvenile court to ask each participant at their first appearance in the proceedings whether the participant knows or has reason to know that the child is an Indian child. "The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child" (§ 224.2, subd. (c)) and require each party to complete an ICWA-020 form (Cal. Rules of Court, rule 5.481(a)(2)(C)).
References to rules are to the California Rules of Court.
2. Reason to Believe
If the initial inquiry gives the juvenile court or department a "reason to believe that an Indian child is involved," then their duty to "make further inquiry regarding the possible Indian status of the child" is triggered. (§ 224.2, subd. (e).) Further inquiry includes, but is not limited to, interviewing the parents and extended family members to obtain the name, birth date and birthplace of the Indian child, the name of the Indian tribe in which the child is or may be a member, all names known of the Indian child's biological parents, grandparents, and great-grandparents, including maiden, married, and former names or aliases, as well as current and former addresses, birth dates, places of birth and death, tribal enrollment information of direct lineal ancestors of the child and any other identifying information if known. (§§ 224.2, subd. (e)(2) &224.3, subd. (a)(5)(A)-(C).)
3. Reason to Know
Section 224.2, subdivision (d) sets forth six circumstances, any one of which if satisfied, establishes a reason to know the child is an Indian child. Those circumstances are as follows: (1) A person having an interest in the child, including the child, informs the court that the child is an Indian child; (2) the child, the child's parents, or Indian custodian resides on a reservation; (3) any participant in the proceedings informs the court that it has discovered information indicating the child is an Indian child; (4) the child gives the court reason to know that the child is an Indian child; (5) the court is informed that the child is or has been a ward of a tribal court or (6) the court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe.
4. Duty to Know Requires Notice
"The duty to provide notice is narrower than the duty of inquiry. Although the duty of inquiry applies to every 'child for whom a petition under Section 300 . . . may be or has been filed' [citation], and the duty of further inquiry applies when there is a 'reason to believe that an Indian child is involved in a proceeding' [citation], the duty to provide notice to Indian tribes applies only when one knows or has 'reason to know . . . an Indian child is involved,' and only 'for hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement.'" (In re Austin J., supra, 47 Cal.App.5th 870, 884.)
An Indian tribe's determination that a child is or is not a member of, or eligible for membership in, that tribe is conclusive. Information that the child is not enrolled, or is not eligible for enrollment in the tribe is not determinative unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom. (§ 224.2, subd. (h).)
5. Documentation of Inquiries is Required
Additionally, the department is required by the rules to document its inquiries. Rule 5.481(a)(5) provides: "The petitioner must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status, as well as evidence of how and when this information was provided to the relevant tribes. Whenever new information is received, that information must be expeditiously provided to the tribes."
6. ICWA Finding Implicates Reason to Know and Proper Inquiry
If the juvenile court makes a finding that proper and adequate further inquiry and due diligence have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that ICWA does not apply, subject to reversal if the court subsequently receives information providing reason to believe the child is an Indian child. (§ 224.2, subd. (i)(2).) If the court receives such information, it must direct the social worker or probation officer to conduct further inquiry. (§ 224.2, subd. (j).)
Since social workers have no duty under federal law to ask extended family members about possible tribal membership, the error, if any, is an error of state law. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.)
C. Standard of Review
As recently set forth in our decision in K.H., "[t]he juvenile court's finding that ICWA does not apply to the proceeding rests on two elemental determinations, 'subject to reversal based on sufficiency of the evidence.' (§ 224.2, subd. (i)(2).) The court must find there is 'no reason to know whether the child is an Indian child,' which is dependent upon whether any of the six circumstances set forth in subdivision (d) of section 224.2 apply. [Citation.] This inquiry is essentially factual and, therefore, is reviewed for substantial evidence. [Citations.] Under this standard, 'a reviewing court should "not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." [Citation.] The determinations should "be upheld if .. supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence."' [Citations.] The standard recognizes that '[t]rial courts "generally are in a better position to evaluate and weigh the evidence" than appellate courts' [citation], and 'an appellate court should accept a trial court's factual findings if they are reasonable and supported by substantial evidence in the record' [citation]. '[I]f a court holds an evidentiary hearing, it may make credibility determinations, to which an appellate court would generally defer.'" (In re K.H. (2022) 84 Cal.App.5th 566, 601 (K.H.).)
"The juvenile court must also find a 'proper and adequate further inquiry and due diligence ...I (§ 224.2, subd. (i)(2).) While we review the court's factual findings on the second element for substantial evidence as well, we agree with [In re] Ezequiel G. [(2022) 81 Cal.App.5th 984] that, consistent with the reasoning in [In re] Caden C. [(2021) 11 Cal.5th 614], a hybrid standard of review is appropriate. (Ezequiel G., supra, 81 Cal.App.5th at pp. 1004-1005.) The inquiry is ultimately discretionary because it requires the juvenile court to 'engage in a delicate balancing of various factors in assessing whether the agency's inquiry was proper and adequate within the context of ICWA and California law, and whether the agency acted with due diligence." (K.H., supra, 84 Cal.App.5th at p. 601.)
" 'Review for abuse of discretion is subtly different [from review for substantial evidence], focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when"' "the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination."' " [Citation.] But"' "[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court" '" [Citations.] [¶] While each standard here fits a distinct type of determination under review, the practical difference between the standards is not likely to be very pronounced.'" (K.H., supra, 84 Cal.App.5th at p. 602.)
"Review of the juvenile court's findings under the foregoing standards is deferential, but' "an appellate court [nevertheless] exercises its independent judgment to determine whether the facts satisfy the rule of law."' [Citations.] Where the material facts are undisputed, courts have applied independent review to determine whether ICWA's requirements were satisfied. [Citations.] In this case, because we are confronted with an undeveloped record, the outcome is the same irrespective of the standards of review applied." (K.H., supra, 84 Cal.App.5th at p. 602.)
D. The Department Failed to Conduct an Adequate Initial Inquiry and the Juvenile Court Erred in Finding ICWA Did Not Apply
The evidence concerning the possibility that the children have Indian ancestry consisted of Thomas's statement that he may have Blackfeet heritage on his maternal side. During the proceedings, the department had contact with two paternal aunts, Irene and Tammy, and information that Thomas and mother lived with the paternal grandmother. Irene told the ICWA liaison the family did not have Indian ancestry as far as she knew. The ICWA liaison did not ask Tammy or attempt to identify and interview the paternal grandmother. Mother contends, therefore, the department's initial inquiry was inadequate. We concur. Tammy and the paternal grandmother are extended family members that the department was required to interview regarding Indian ancestry under section 224.2, subdivision (b). Either the department did not interview them or did but failed to document it. In any case, according to the record before us, the department failed to satisfy its duty of inquiry. The fact that the department served formal notice on the Blackfeet tribe does not cure the inadequacy of its initial inquiry since the ICWA-030 does not provide any information about the paternal grandmother even though she was available to provide it. As a result, the juvenile court's finding that ICWA did not apply was not supported by substantial evidence that the department conducted an adequate, proper, and duly diligent inquiry, and its contrary conclusion was an abuse of discretion.
Although mother is not the parent with alleged Indian heritage, she has standing to raise the issue of ICWA compliance. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.)
E. The ICWA Error is Prejudicial and Reversible
"Because the failure in this case concerned the [department's] duty of initial inquiry, only state law is involved. Where a violation is of only state law, we may not reverse unless we find that the error was prejudicial. (Cal. Const., art. VI, § 13 ['No judgment shall be set aside . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage ofjustice'].)" (In re BenjaminM., supra, 70 Cal.App.5th at p. 742.)
" '[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice' [citations], and California law generally interprets its constitutional miscarriage of justice requirement 'as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.'" (K.H., supra, 84 Cal.App.5th at pp. 606-607.)
However, in In re A.R. (2021) 11 Cal.5th 234, the Supreme Court "recognized that while we generally apply a Watson likelihood-of-success test to assess prejudice, a merits-based outcome-focused test is not always appropriate because it cannot always adequately measure the relevant harm. [Citation.] In other words, where the injury caused by the error is unrelated to an outcome on the merits, tethering the showing of prejudice to such an outcome misplaces the measure, at the expense of the rights the law in question was designed to protect." (K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)
As we explained in K.H.," 'ICWAcompliance presents a unique situation ...." (K.H., supra, 84 Cal.App.5th at p. 608.) "ICWA is not directed at reaching, or protecting, a specific outcome on the merits." (Id. at p. 609.) Rather," '[t]he purpose of ICWA and related California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child, and whether the tribe wishes to intervene in the proceedings' [citation], and an adequate initial inquiry facilitates the information gathering upon which the court's ICWA determination will rest." (K.H., at p. 608.) Yet "while the appealing party is usually a parent, parents do not bear the burden of gathering information in compliance with ICWA [citations], and parents may raise the claim of error for the first time on appeal." (Ibid.) Further, the ultimate determination whether a child is an Indian child rests with the tribe, not with a parent, the department, or the juvenile court. (K.H., at p. 596.)
"[I]f the inquiry is inadequate at the outset, the likelihood that the opportunity to gather relevant information will present itself later in the proceeding declines precipitously." (K.H., supra, 84 Cal.App.5th at p. 609.) Thus, "the relevant injury under ICWA is not tied to whether the appealing parent can demonstrate to the juvenile court or a reviewing court a likelihood of success on the merits of whether a child is an Indian child [, under a standard Watson analysis]. The relevant rights under ICWA belong to Indian tribes and they have a statutory right to receive notice where an Indian child may be involved so that they may make that determination. It necessarily follows that[, in the context of ICWA and consistent with A.R.,] the prejudice to those rights lies in the failure to gather and record the very information the juvenile court needs to ensure accuracy in determining whether further inquiry or notice is required, and whether ICWA does or does not apply. Many cases do not proceed beyond the inquiry at the first stage in the compliance process and, therefore, ensuring adequacy and accuracy at this step is critical if the rights of the tribes under ICWA and California law are to be meaningfully safeguarded, as was intended by Congress and our state Legislature." (Id. at p. 591.)
As we explained in K.H., "where the opportunity to gather the relevant information critical to determining whether the child is or may be an Indian child is lost because there has not been adequate inquiry and due diligence, reversal for correction is generally the only effective safeguard." (K.H., supra, 84 Cal.App.5th at p. 610.) Here, the department's inquiry, "fell well short of that required to gather the information needed to meaningfully safeguard the rights of the tribes, as intended under ICWA and California law." (Id. at p. 620.) "Where a record is silent or nearly silent with respect to an ICWA inquiry at the first step, a finding of harmlessness necessarily rests on speculation" and "is at odds with the statutory protections that ICWA and California law intend to afford Indian children and Indian tribes." (Id. at p. 611.) Therefore, the error in this case is prejudicial.
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the department to comply with the inquiry and documentation provisions set forth in section 224.2, subdivision (b) and rule 5.481(a)(5). If, after determining that an adequate inquiry was made consistent with the reasoning in this opinion, the court finds that ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, its ICWA finding shall be reinstated. In all other respects, the court's order terminating parental rights is affirmed.