Opinion
B320202
04-03-2023
In re D.G. et al., Persons Coming Under the Juvenile Court Law. v. K.G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK59399, Stephanie Davis, Judge Pro Tempore.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
CURREY, J.
INTRODUCTION
K.G. (mother) appeals from the juvenile court's orders terminating her parental rights with respect to her son, D.G., and her daughter, I.G., under Welfare and Institutions Code section 366.26. She contends the orders must be conditionally reversed because the Department of Children and Family Services (Department) failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA).
All further undesignated statutory references are to the Welfare and Institutions Code.
As discussed below, we conclude any deficiencies in the Department's initial inquiry into the children's Indian ancestry through their maternal lineage were harmless. However, we agree with mother that the Department did not discharge its duty of further inquiry with respect to D.G.'s paternal lineage and, had it done so, the Department might have obtained information relating to whether D.G. is an Indian child. Thus, we conditionally affirm the order terminating parental rights, and remand the case to the juvenile court with directions to ensure the Department complies with the provisions of ICWA and related state law.
We limit our discussion of the background to the facts relevant to the issues before us on appeal.
E.S. (father) and mother are the parents of D.G. The identity of I.G.'s father is unknown. When this case was initiated in February 2017, D.G. was two years old and I.G. was a newborn. The family came to the Department's attention on the date of I.G.'s birth, when it received a referral alleging neglect by both parents. The reporting party related mother had tested positive for methamphetamines at the time of I.G.'s birth.
Father is not a party to this appeal.
On February 25, 2017, a Department social worker interviewed mother in person. During her interview, mother denied having Indian ancestry.
On March 1, 2017, the Department detained both children from the parents. Five days later, on March 6, 2017, the Department filed a petition on the children's behalf under section 300, subdivisions (a), (b), and (j). The same day, mother filled out and filed a Parental Notification of Indian Status form (ICWA-020). In the form, mother denied knowledge of Indian ancestry under penalty of perjury. At the detention hearing, also held March 6, 2017, the juvenile court asked mother if she had Indian ancestry and she again denied having any. Consequently, the juvenile court found ICWA did not apply as to mother.
On April 10, 2017, father filed a Parental Notification of Indian Status form (ICWA-020) indicating he might have Indian ancestry through the Blackfoot Tribe of Oklahoma. At the detention hearing as to father held the same day, father reported to the juvenile court that he did not have a tribal membership number nor did he or his family members receive tribal benefits. Father also reported that his deceased grandmother had a tribal membership number. He claimed, however, that any family members who had information regarding his grandmother's Indian heritage were also deceased. In response, the juvenile court ordered the Department to interview any available paternal relatives that could be found regarding possible Indian ancestry and include the results in the jurisdiction report. It also ordered the Department "to notice the Bureau of Indian Affairs and/or the identifying tribes." Subsequently, the court ordered the Department to submit "copies of the notices, return receipts, and any correspondence" at the next court date.
In its April 2017 addendum to its jurisdiction/disposition report, the Department reported father had provided information about paternal grandmother, whom he believed was part of the Blackfoot tribe. Later that month, the Department served notice on the Blackfoot Tribe, the Bureau of Indian Affairs, and the Secretary of the Interior. The notices included the name of paternal grandmother, the city where she resided, her tribe, and her year of death. The notices did not include paternal grandmother's maiden name, date of birth, place of birth, or tribal membership or enrollment number.
In July 2017, the juvenile court ordered the Department to file an update on ICWA notices by August 2017. In its August 2017 addendum report, the Department reported it had received return receipts from the Blackfoot Tribe, the Bureau of Indian Affairs, and the Secretary of the Interior but had not received response letters. The Department subsequently filed signed Certified Mail Receipts from the Bureau of Indian Affairs, the Secretary of the Interior, and the Blackfoot Tribe with the juvenile court.
In March 2018, the juvenile court found it did not have reason to know D.G. and I.G. are Indian Children as defined under ICWA and did not order any further notice to any tribe or the Bureau of Indian Affairs.
In March 2019, mother indicated she had a sister (maternal aunt). The record does not reflect whether the Department interviewed maternal aunt regarding possible Indian Ancestry. In August 2019, the Department spoke to paternal aunt, K.O., regarding father's whereabouts. The record does not reflect whether the Department asked her about Indian ancestry. In July 2021, the Department spoke to the father's adult daughter, T.S. The record does not reflect whether the Department asked her about possible Indian ancestry.
At the section 366.26 hearing in March 2022, the juvenile court again addressed ICWA. It confirmed that on March 21, 2018, it made ICWA findings as to mother, father, and the children that ICWA did not apply. The court further found that on January 27, 2022, it again made findings with respect to father that ICWA did not apply. Finally, the court confirmed it received I.G.'s birth certificate with the identification of a father unknown. Consequently, it found ICWA did not apply to I.G.'s unknown father.
DISCUSSION
I. Applicable Law and Standard of Review
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 . . . must follow before removing an Indian child from his or her family." (In re Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.).) Both ICWA and the Welfare and Institutions Code 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, subds. (a) and (b) [incorporating federal definitions].)
Our state Legislature incorporated ICWA's requirements into California statutory law in 2006. (In re Abbigail A. (2016) 1 Cal.5th 83, 91.)
The juvenile court and the Department have "an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9, 11-12.) This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.
The duty to inquire whether a child is an Indian child begins with "the initial contact," i.e., when the referring party reports child abuse or neglect that jumpstarts the Department's investigation. (§ 224.2, subd. (a).) The Department's 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. (Id. subd. (b).) Similarly, the juvenile court must inquire at each parent's first appearance whether he or she "knows or has reason to know that the child is an Indian child." (Id. subd. (c).) The juvenile court must also require each parent to complete Judicial Council form ICWA-020, Parental Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).) The parties are instructed to inform the court "if they subsequently receive information that provides reason to know the child is an Indian child." (25 C.F.R. § 23.107(a); § 224.2, subd. (c).)
A duty of further inquiry is imposed when the Department or the juvenile court has "reason to believe that an Indian child is involved" in the case. (§ 224.2, subd. (e); Austin J., supra, 47 Cal.App.5th at pp. 883-884; In re D.S. (2020) 46 Cal.App.5th 1041, 1048-1049.) "'[F]urther inquiry' 'includes: (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and State Department of Social Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that might have information regarding the child's membership or eligibility in a tribe.'" (Austin J., supra, at p. 883; § 224.2, subd. (e)(2); Cal. Rules of Court, rule 5.481(a)(4).) When the Department or the juvenile court has "reason to know" an Indian child is involved, formal ICWA notice is sent to the relevant tribes. (In re D.S., supra, at p. 1052.)
We review a juvenile court's ICWA findings for substantial evidence. (In re Josiah T. (2021) 71 Cal.App.5th 388, 401; In re S.R. (2021) 64 Cal.App.5th 303, 312.)
II. Analysis
a. Inquiry into Mother's Ancestry
Mother appears to contend the Department failed to fulfill its duty of initial inquiry under section 224.2, subdivision (b) because it did not ask maternal aunt whether the children had Indian heritage. The Department responds any ICWA error was harmless. For the reasons discussed below, we agree with the Department.
Alternatively, the Department contends mother forfeited her argument that it failed to fulfill its duty of initial inquiry because she failed to raise the issue in the juvenile court. Because we hold any initial inquiry error harmless, we need not address the Department's alternative contention.
California appellate courts have formulated several different tests for deciding whether a defective initial inquiry is harmless. Unless and until our Supreme Court weighs in on the matter, Division Four of this court will apply the rule set forth in In re Dezi C. (2022) 79 Cal.App.5th 769, 777, review granted, Sept. 21, 2022, No. 275578 (Dezi C). There, our colleagues in Division Two of this court stated: "[A]n agency's failure to conduct a proper initial inquiry into a dependent child's American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding." (Dezi C, supra, at p. 779.)
Here, mother denied Indian ancestry during an interview with the Department in February 2017. Further, through her response on her ICWA-020 form, she denied having Indian heritage under penalty of perjury. Finally, at the detention hearing in March 2017, the juvenile court asked mother if she had Indian ancestry and, again, she denied.
Nothing in the record suggests any reason to believe mother's knowledge of her heritage is incorrect, or that the children might have Indian ancestry through their maternal relatives. Mother has not proffered additional evidence. (See Dezi C, supra, 79 Cal.App.5th at p. 779, fn. omitted [for purposes of evaluating whether defective initial inquiry is harmless, "the 'record' includes both the record of proceedings in the juvenile court and any proffer the appealing parent makes on appeal"].) Under these circumstances, we conclude any deficiencies in the Department's initial inquiry into the children's Indian ancestry through their maternal relatives were harmless, and do not warrant reversal.
b. Inquiry into Father's Ancestry
Mother appears to contend the Department failed to discharge its duty of further inquiry into D.G.'s Indian heritage through his paternal lineage. Specifically, she argues the Department failed to interview paternal relatives about whether D.G. had Indian heritage. We agree the Department did not comply with its further inquiry duty and that the error was not harmless.
The purpose of interviewing extended family members as part of further inquiry is "to gather the information required in paragraph (5) of subdivision (a) of Section 224.3." (§ 224.2, subd. (e)(2)(A).) Such information includes: "All names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C).)
Here, the record reflects that the Department spoke only to father about D.G.'s possible Indian ancestry. Father identified possible Blackfoot ancestry, provided some information about his grandmother (whom he believed was a tribe member), and denied he was a registered member of the tribe. Based on this information, the Department sent notices to the Blackfoot tribe, the Bureau of Indian Affairs, and the Secretary of the Interior in April 2017. As noted above, the notices did not include paternal grandmother's maiden name, date of birth, place of birth, or tribal membership or enrollment number. The record also reflects that the Department had conversations with paternal aunt, K.O., in August 2019 and father's adult daughter in July 2021. There is, however, no indication that the Department asked either relative about the family's heritage or paternal grandmother's purported Blackfoot ancestry.
The Department asserts that any error is harmless under Dezi C, supra, 79 Cal.App.5th 769, because "the record in this case contains nothing providing a reason to believe [D.G. is an] "Indian child[ ]" under the ICWA." We find Dezi C. factually distinguishable. There, both the mother and father attested that they had no Indian heritage. (Dezi C, supra, 79 Cal.App.5th at p. 786.) In her appeal, the mother pointed to "nothing else in the juvenile court's record indicating that she or father ha[d] any American Indian heritage. And mother ma[de] no proffer on appeal that either parent ha[d] any such heritage." (Ibid.) On those facts, the appellate court found the Department's failure to conduct an adequate inquiry was harmless. (Ibid.)
Here, by contrast, father identified potential Blackfoot heritage. Moreover, additional paternal relatives were available and cooperative with the Department in the case. Thus, this is not an instance in which the Department had no further leads, or the persons who might have additional information were deceased or refused to talk to the Department. (See In re AM. (2020) 47 Cal.App.5th 303, 323 ["ICWA does not obligate the court or [the Department] 'to cast about' for investigative leads."]; see also In re J.D. (2010) 189 Cal.App.4th 118, 124 [no error where no living relatives with further information]; In re KM. (2009) 172 Cal.App.4th 115, 119 [no error where family was hostile to inquiry].) We, therefore, cannot say the Department adequately satisfied its duty of further inquiry in the absence of documentation showing efforts to gather the necessary information for the tribes.
DISPOSITION
The order terminating parental rights with respect to I.G. is affirmed. The order terminating parental rights with respect to D.G. is conditionally affirmed. The case is remanded to the juvenile court with directions to order the Department to comply with the provisions of ICWA and California law consistent with this opinion. If, after the Department adequately discharges its duty of further inquiry with respect to D.G.'s parental lineage, the court finds he is an Indian child, it shall conduct a new section 366.26 hearing, as well as further proceedings in compliance with ICWA and related California law. If not, the juvenile court's original order terminating parental rights will remain in effect.
We concur: COLLINS, Acting P.J., STONE, J.[*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.