Opinion
F084312
10-27-2022
In re A.P. et al., Persons Coming Under the Juvenile Court Law. v. A.W., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Alexandria M. Ottoman, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. Nos. JD141668-00, JD141669-00, JD141670-00, JD141671-00 Christie Canales Norris, Judge.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo A. Raison, County Counsel, and Alexandria M. Ottoman, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Appellant A.W. (mother) appealed from a judgment terminating her parental rights as to her now 22-month-old twins, A.M. and M.M., two-year-old daughter, Ah.M., and four-year-old daughter, A.P. (Welf. &Inst. Code, § 366.26.) Mother contends the Kern County Department of Human Services (department) failed to comply with its duty of inquiry under the Indian Child Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). Therefore, there was insufficient evidence to support the juvenile court's finding the ICWA did not apply. The department concedes error and requests a conditional reversal and remand for ICWA compliance. We accept the concession and remand for proceedings to ensure ICWA compliance.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
Dependency proceedings were initiated in December 2020 when the department filed a dependency petition pursuant to section 300, subdivisions (b) and (j), alleging the children suffered or were at a substantial risk of suffering serious physical harm or illness as a result of the failure of their mother and alleged father, Mark M., to protect them from domestic violence and substance abuse.
Mother appeared at the continued detention hearing on December 16, 2020, and testified that Mark was the father of all four children, but Javier P. was listed as A.P.'s father on the birth certificate. The court found that Mark was the presumed father but included Javier on A.P.'s dependency petition as an alleged father in an abundance of caution. The court also noted that mother filed a "Parental Notification of Indian Status" (ICWA-020), indicating that she did not have any Indian status and asked her under oath whether she had any Indian heritage. Based on her negative responses, the court found there was "no information indicating or suggesting that the children are members of or eligible for membership in any federally recognized Indian tribe that falls within the Indian Child Welfare Act." However, the court deferred making an ICWA finding until it could inquire of Javier. The court ordered the children detained and the department placed them in foster care.
Javier appeared with counsel at the jurisdictional hearing in February 2021, and the juvenile court elevated him to presumed father status. Javier also filed an ICWA-020 form, indicating that he did not have any Indian heritage and the court found the ICWA did not apply. The court sustained allegations the children were described under section 300, subdivisions (b) and (j) and set the matter for disposition.
At the dispositional hearing in May 2021, the juvenile court reversed its finding that Javier was a presumed father and dismissed him from the case. The court removed the children from parental custody, ordered mother to participate in reunification services and denied services for Mark.
By the six-month review hearing in January 2022, mother had only partially complied with her services plan. The juvenile court terminated her reunification services at the six-month review hearing and terminated parental rights at the section 366.26 hearing the following May.
DISCUSSION
Mother contends the department and the juvenile court failed to comply with their duty of initial inquiry under section 224.2, subdivision (b). We concur.
"The duty of initial inquiry applies in every dependency proceeding. [Citation.] Federal regulations require state courts to ask each participant 'at the commencement' of a child custody proceeding 'whether the participant knows or has reason to know that the child is an Indian child.' (25 C.F.R. § 23.107(a) (2022).) State law requires the court to pursue an inquiry '[a]t the first appearance in court of each party' by asking 'each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child.' (§ 224.2, subd. (c).) In addition, when [the department] takes a child into temporary custody, the [department] must ask 'the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child,' and reporting party 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).)" (In re Ricky R. (2022) 82 Cal.App.5th 671, 678-679.)
Additionally, the department is required by California Rules of Court 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."
Rule references are to the California Rules of Court.
The record reflects that at various times during the proceedings, the department was in contact with or had access to the maternal and paternal grandparents, maternal great-grandmother, and maternal and paternal aunts. Yet there is no evidence in the record that the department asked any of these relatives whether the children were or could be Indian children, and, if so, what responses were received. Consequently, we conclude the department failed to discharge its duty of initial inquiry, which it does not dispute, and as such, the juvenile court's finding the ICWA was inapplicable was not supported by substantial evidence.
DISPOSITION
The juvenile court's finding that the 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 the ICWA applies, the court shall vacate its existing order and proceed in compliance with the ICWA and related California law. If the court instead finds that the ICWA does not apply, its ICWA finding shall be reinstated. In all other respects, the court's order terminating parental rights is affirmed.
[*]Before Detjen, Acting P. J., Smith, J. and Snauffer, J.