Opinion
B326349
09-26-2023
In re M.J. et al., a Person Coming Under the Juvenile Court Law. v. P.H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20CCJP04961A-B Brett Bianco, Judge. Affirmed in part and remanded with instructions.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MORI, J.
Father, P.H., appeals from an order terminating his parental rights to his children, M.J. and M.H. (the children) under Welfare and Institutions Code section 366.26. His sole contention is that the Department of Children and Family Services (Department) and the court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We agree that the Department did not comply sufficiently with ICWA's statutory requirements. Therefore, we conditionally affirm the order and remand the matter to ensure compliance with ICWA and state law.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On September 1, 2020, the Department filed a section 300 petition on the children's behalf. The petition alleged that father and nonparty mother had a history of engaging in domestic violence in the children's presence, that father abused alcohol, and that M.J.'s biological father's [J.W.] whereabouts were unknown. Attached to the petition was an Indian Child Inquiry Attachment (ICWA-010 form) for M.J. and M.H. The form stated that an inquiry as to M.J.'s Indian ancestry was not made and M.H. had no known Indian ancestry. However, the form did not identify who was questioned about M.H.'s ancestry.
Mother is deceased.
At the detention hearing, father was found to be M.H.'s presumed father. He filed an ICWA-020 Parental Notification of Indian Status form in which he denied Indian ancestry. In M.J.'s matter, J.W. was found to be her alleged father, but J.W. could not be located. The court found it did not have reason to know that M.J. or M.H. were Indian children as defined by ICWA.
At the combined jurisdiction and disposition hearing, the court sustained the petition, and the children were declared dependents of the court. M.H. was removed from father's custody, and the court ordered that father receive family reunification services in her case. The children were placed in foster care before eventually being placed with their maternal grandmother.
In June 2021, father filed a request in M.J.'s case to elevate his paternity status to that of her presumed father. Father simultaneously filed an ICWA-020 form in M.J.'s case claiming no Indian ancestry. The court found father to be M.J.'s presumed father and ordered that he receive reunification services with the same case plan ordered in M.H.'s case.
Father continued to receive reunification services until the 18-month review hearing, where the services were terminated after the court found father did not make substantial progress with his case plan. The court set a section 366.26 hearing for M.J. and M.H.
Thereafter, in July 2022, father reported possible Indian heritage with the Blackfeet tribe and indicated the children's paternal great-grandmother would have further information. Father stated he would reach out to the paternal greatgrandmother, and the social worker obtained her and the paternal grandmother's names. The record is silent regarding any further efforts by the Department to contact paternal relatives about Indian ancestry.
At the permanency planning hearing held in August 2022, the Department requested a continuance to investigate father's statements relating to possible Indian heritage, which the juvenile court denied after noting father previously denied Indian ancestry in this and a prior dependency action. The court believed father was trying to "manipulate the system" and delay the proceedings. At a later hearing, the court ordered the Department to interview maternal relatives concerning Indian ancestry. The social worker interviewed multiple maternal relatives, none of whom provided contact information for anyone who might know more about the family's heritage.
In M.H.'s case, the Department sent notices to the Blackfeet Tribe of Montana, the Bureau of Indian Affairs (BIA), and the United States Secretary of the Interior, none of which contained any information about the paternal grandmother or great-grandmother except for their names. In response, the Department received a letter from the Blackfeet tribe stating that M.H. was not enrolled or eligible for enrollment in the tribe. The Department sent additional notices to the Blackfeet Tribe of Montana, multiple Choctaw tribes, BIA, and the Secretary of Interior, but none of the forms listed the paternal greatgrandmother's name. The Department received letters from the Choctaw Nation of Oklahoma and Mississippi Band of Choctaw Indians indicating that the children were not Indian children pursuant to ICWA.
On January 12, 2023, the court held the section 366.26 hearing. The court terminated father's parental rights and set adoption as the permanent plan. Moreover, the court found it had no reason to know M.J. or M.H. were Indian children. Father timely appealed the order.
DISCUSSION
A. Legal Principles
"ICWA was enacted to curtail 'the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement' [citation], and 'to promote the stability and security of Indian tribes and families by establishing . . . standards that a state court . . . must follow before removing an Indian child from his or her family' [citations]." (In re Dezi C. (2022) 79 Cal.App.5th 769, 780, review granted Sept. 21, 2022, S275578 (Dezi C.).) Whether ICWA applies depends on whether the child who is the subject of the custody proceeding is an Indian child. (In re Abbigail A. (2016) 1 Cal.5th 83, 90.) Both ICWA and state statutory law define an "Indian child" as a child who is either a member of an Indian tribe or 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); accord, § 224.1, subds. (a), (b).)
Our state Legislature incorporated ICWA's requirements into California statutory law in 2006. (In re Abbigail A., supra, 1 Cal.5th at p. 91.)
Under state law, 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.) "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 Y.W. (2021) 70 Cal.App.5th 542, 552.) The duty of initial 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, subds. (a), (b).)
"Extended family members" include adults who are the child's "grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2); § 224.1, subd. (c) [adopting federal definition].)
"We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence." (In re H.V. (2022) 75 Cal.App.5th 433, 438.) Where the Department's inquiry was erroneous, "we must assess whether it is reasonably probable that the juvenile court would have made the same ICWA finding had the inquiry been done properly." (Dezi C., supra, 79 Cal.App.5th at p. 777.) "If so, the error is harmless and we should affirm; otherwise, we must send it back for the Department to conduct a more comprehensive inquiry." (Ibid.)
California appellate courts have formulated several different tests for deciding whether a defective initial inquiry is harmless. (See Dezi C., supra, 79 Cal.App.5th at pp. 777-779.) For the reasons stated in Dezi C., we apply the "reason to believe" rule articulated therein. (Id. at pp. 779-785.) Under this rule, "an 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." (Id. at p. 779.)
B. The ICWA Finding as to Father was Prejudicial Error
Father contends that the Department failed to fulfill its duty of initial inquiry required by ICWA and related state law. We agree and conclude that the error was not harmless.
While father first indicated that he had no known Indian ancestry, father later told the Department's social worker that the children's paternal great-grandmother would have more information about father's reported ancestry with the Blackfeet tribe. Father gave the social worker the paternal grandmother's and great-grandmother's names, and the social worker interviewed father's paternal cousin and the children's older paternal half-sibling, but the record does not show that the social worker ever followed up with paternal relatives about familial Indian ancestry. The duty of inquiry required that the Department interview, among others, extended family members from father's side. (§ 224.2, subd. (b); In re G.H. (2022) 84 Cal.App.5th 15, 30-31 [inadequate inquiry where welfare department did not attempt to contact paternal grandmother, despite father's suggestion she may have information about family's Indian ancestry].)
But see In re Y.W., supra, 70 Cal.App.5th at p. 542 [parents may not know their possible relationship with or connection to an Indian tribe]; In re S.R. (2021) 64 Cal.App.5th 303, 314 [tribal affiliations are easily lost].
We previously granted the Department's motion to take additional evidence and judicial notice of a Last-Minute Information report filed with the juvenile court on April 14, 2023, documenting an ICWA update, and the court's April 18, 2023, minute orders finding that ICWA still did not apply. Notably, neither the report nor minute orders suggest that any additional inquiry has been made of paternal relatives regarding possible Indian heritage.
Neither the Department nor the children appealed from the order terminating father's parental rights. The Department filed a letter stating that at the section 366.26 hearing it requested a continuance to address issues relating to ICWA, and that it would not be filing a respondent's brief. Similarly, the children's counsel filed a letter providing that the children "are also not a proper respondent based on the minors' position in the trial court."
Because the Department did not satisfy its initial duty of inquiry, we must conditionally affirm and remand unless the error is harmless. Under Dezi. C., there is "reason to believe" that the children may be Indian children within the meaning of ICWA, such that the absence of further inquiry was prejudicial. (Dezi C., supra, 79 Cal.App.5th at p. 779.) "[A] reviewing court would have 'reason to believe' further inquiry might lead to a different result if the record indicates that someone reported possible American Indian heritage and the agency never followed up on that information." (Ibid.) That is precisely what happened here, as father reported possible Indian heritage on his family's side, but there is no indication the Department ever followed up with any paternal relatives. Moreover, several paternal relatives were available and cooperative with the Department.
Regarding M.J., father acknowledges that he is not her biological father. However, the record does not indicate that ICWA was found not to apply in her case on this basis. (See In re C.A. (2018) 24 Cal.App.5th 511, 519 [finding ICWA notice not required for presumed father who was not biological or adoptive father]; Adoptive Couple v. Baby Girl (2013) 570 U.S. 637, 671 [under ICWA, "[t]he statutory definition of parent 'does not include the unwed father where paternity has not been acknowledged or established'"].) The issue has not been briefed and is not properly before us. Upon remand, any concerns regarding whether father is M.J.'s "parent" as defined by ICWA, and thus whether ICWA applies through father's lineage, can be addressed.
DISPOSITION
The order terminating father's parental rights is conditionally affirmed. The matter is remanded with instructions to the Department and the juvenile court to conduct any necessary ICWA inquiry as to available paternal relatives as soon as practicable. If that inquiry reveals evidence of Native American heritage, then the Department and the court must comply with the additional ICWA requirements, including, if applicable, the notice requirements of section 224.3. If it does not, then the order shall stand.
We concur: CURREY, P. J. COLLINS, J.