Opinion
F085843
07-12-2023
In re S.H., a Person Coming Under the Juvenile Court Law. v. DESIREE S., Defendant and Appellant. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant. Diane Freeman, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kings County Super. Ct. No. 22JD0055, Melissa R. D'Morias, Judge.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant.
Diane Freeman, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Appellant Desiree S. (mother) is the mother of S.H. (the child), who is the subject of this dependency case. Mother challenges the juvenile court's orders issued at a Welfare and Institutions Code section 366.26 hearing that resulted in her parental rights being terminated. Mother contends the juvenile court and the Kings County Human Services Agency (agency) failed to comply with the duty of inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because errors occurred during the agency's initial inquiry. The agency concedes that it failed to conduct an adequate inquiry into the potential Indian ancestry of the child, and it does not oppose remand for the limited purpose of conducting further ICWA inquiry. We agree with the parties and conditionally reverse the juvenile court's orders terminating parental rights and remand for proceedings to ensure ICWA compliance.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
"[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, 739, fn. 1.)
FACTUAL AND PROCEDURAL BACKGROUND
The sole issue on appeal concerns ICWA; therefore, we primarily restrict our facts to those bearing on that issue.
In May 2022, the agency filed a petition alleging the child was described by section 300, subdivisions (b) and (g). The allegations involved the unresolved substance abuse problems of mother and Pete H. (father), the child's father. The petition further alleged that father was incarcerated and unable to arrange for the care of the child. The Indian Child Inquiry Attachment form (ICWA-010(A)) indicated the agency asked both parents about the child's Indian status, and the parents gave the agency no reason to believe the child is or may be an Indian child.
At the detention hearing held on May 3, 2022, mother and father were present and appointed counsel. Both parents denied having any Indian ancestry when questioned by the agency's counsel. The child's maternal aunt and paternal grandmother were also present for the hearing, but the paternal grandmother was only identified as the child's care provider. The maternal aunt denied having any Indian ancestry.
The child was detained from the custody of her parents and a jurisdiction and disposition hearing was set for May 19, 2022. The juvenile court also found ICWA was not applicable based upon the parents' denial of Indian ancestry. Both parents completed Parental Notification of Indian Status forms (ICWA-020), which provided no circumstances suggesting the child may be an Indian child.
The agency's jurisdiction and disposition report recommended that the allegations in an amended petition be found true and both parents be provided family reunification services. The child was placed with the paternal grandmother and her half sibling, J.R., who had also been removed from mother's care. The ICWA status section of the report described the juvenile court's previous finding that ICWA was not applicable at the detention hearing without any additional information.
At the combined jurisdiction and disposition hearing held on May 19, 2022, both parents were present along with the child's paternal great-aunt, paternal cousin, paternal grandmother, maternal aunt, maternal uncle, and maternal grandmother. Both parents submitted on the agency's recommendation, and no inquiries were made of the present family members regarding Indian ancestry. The juvenile court sustained the allegations in the amended petition and ordered mother and father to participate in family reunification services.
The agency's report for the six-month review hearing, dated October 28, 2022, recommended that mother and father's family reunification services be terminated and a section 366.26 hearing be set. The ICWA status section of the report documented efforts by the social worker to inquire of the child's family in an "ICWA inquiry log." According to the social worker's log, the child's maternal grandmother denied having any Indian ancestry in her family. A conversation with the paternal grandmother was documented about the identity of certain relatives, but there is no indication that the social worker discussed possible Indian ancestry in her family. Mother failed to participate in her services and missed numerous visits with the child.
At the six-month review hearing held on November 8, 2022, mother was present along with the child's paternal aunt, paternal grandmother, and maternal uncle. The agency's counsel asked the present family members if they had any Indian ancestry, and the family members all responded negatively by shaking their heads. The juvenile court terminated mother's family reunification services and set a section 366.26 hearing for February 28, 2023.
The agency's section 366.26 report, dated February 17, 2023, recommended the juvenile court terminate the parental rights of mother and father and order a plan of adoption for the child. The child remained placed in the home of the paternal grandmother, and she was committed to providing the child with a permanent plan of adoption. The ICWA status section of the report requested that the juvenile court reiterate its prior finding that ICWA was not applicable based upon its reporting that no additional information was provided to suggest the child may be an Indian child.
At the section 366.26 hearing held on February 28, 2023, the child's mother and maternal uncle were present. The agency's counsel inquired of the maternal uncle regarding the possibility of the child having Indian ancestry, and he responded "No, not from the mother's side. [¶] And I don't think from the father." The juvenile court once again found that ICWA was not applicable to the child. It then followed the agency's recommendation and terminated the parental rights of mother and father and selected a plan of adoption.
DISCUSSION
Mother contends the juvenile court and agency failed to adequately discharge their duty of initial inquiry by failing to inquire of the child's available extended family regarding possible Indian ancestry. The agency concedes this point, and we accept their concession.
A. Applicable Law
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) In any "proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe . . . have a right to intervene" (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224, subd. (e)). An" 'Indian child'" is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) &(8); see § 224.1, subd. (a) [adopting federal definitions].)
In every dependency proceeding, the agency and the juvenile court have an "affirmative and continuing duty to inquire whether a child is or may be an Indian child ._" (Cal. Rules of Court, rule 5.481(a); see § 224.2, subd. (a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The continuing duty to inquire whether a child is or may be an Indian child "can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice." (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
All further references to rules are to the California Rules of Court.
The initial duty to inquire arises at the referral stage when the reporting party is asked whether it has "any information that the child may be an Indian child." (§ 224.2, subd. (a).) Once a child is received into temporary custody, the initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance of each parent to ask whether he or she "knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) The court must also require each parent to complete form ICWA-020. (Rule 5.481(a)(2)(C).)
Next, a duty of further inquiry arises when the agency or the juvenile court has "reason to believe" the proceedings involve an Indian child but "does not have sufficient information to determine that there is reason to know that the child is an Indian child." (§ 224.2, subd. (e).) As recently clarified by the Legislature, a "reason to believe" exists when the juvenile court or agency "has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (Id., subd. (e)(1).)
If there is a reason to believe an Indian child is involved, the juvenile court or the agency "shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (§ 224.2, subd. (e).) Further inquiry includes, but is not limited to, "[i]nterviewing the parents, Indian custodian, and extended family members," and contacting the Bureau of Indian Affairs, the State Department of Social Services, and the tribes and any other person who may have information. (§ 224.2, subd. (e)(2)(A)-(C).)
The final duty component arises when the court or agency has" 'reason to know'" the child is an Indian child. (In re D.F., supra, 55 Cal.App.5th at p. 567.) A "reason to know" exists if one of the following circumstances is present: "(1) A person having an interest in the child ... informs the court that the child is an Indian child[;] [¶] (2) The residence ... of the child [or] the child's parents ... is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding ... informs the court that it has discovered information indicating that 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[es] an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d)(1)-(6).)
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. If the court receives such information, it must direct the social worker or probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)
B. Standard of Review
Where the juvenile court finds ICWA does not apply to a child after completion of an initial inquiry, "[t]he finding implies that . . . social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry." (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) We review the juvenile court's ICWA findings for substantial evidence. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) We must uphold the juvenile court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.) The appellant "has the burden to show that the evidence was not sufficient to support the findings and orders." (Ibid.)
C. Analysis
Pursuant to its duty under section 224.2, the agency asked each parent whether they had any Indian heritage. The child's mother and father both denied having any knowledge of Indian ancestry in their families. The child's paternal cousin and great-aunt were both present at the May 19, 2022 hearing, but neither the juvenile court nor agency directed any inquiry toward either of them. Based upon this information, the juvenile court found ICWA was not applicable. However, the agency was required under section 224.2, subdivision (b) to ask available extended family members about the child's possible Indian ancestry.
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).) The agency and juvenile court both had the paternal cousin and great-aunt available to them during the proceedings as they attended one of the hearings where the agency's counsel made no inquiries of relatives. The agency either failed to ask the paternal cousin and great-aunt about Indian ancestry or did not document it.
Under the circumstances, we conclude the agency did not fulfill its statutory duty of inquiry. (§ 224.2, subd. (b).) As a result, the juvenile court's finding that ICWA did not apply was not supported by substantial evidence that the agency conducted an adequate, proper, and duly diligent inquiry, and its contrary conclusion was an abuse of discretion. Because the failure in this case concerned the agency'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 of justice'].)" (In re Benjamin M., 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.'" (In re K.H. (2022) 84 Cal.App.5th 566, 606-607 (K.H.).)
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.)
People v. Watson (1956) 46 Cal.2d 818, 836.
As we explained in K.H., " 'ICWA compliance 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 agency, 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 In re A.R., supra, 11 Cal.5th 234,] 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 tribes under ICWA and California law are to be meaningfully safeguarded, as was intended by Congress and our state Legislature." (K.H., 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 agency'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 is prejudicial.
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the court with directions to order the agency to comply with the inquiry and documentation provisions set forth in section 224.2, subdivisions (b) and (e), 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 proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, the court shall reinstate its ICWA finding. In all other respects, the court's orders terminating mother's parental rights are affirmed.
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] Before Pena, Acting P. J., Meehan, J. and DeSantos, J.