Opinion
B302059
07-02-2020
In re A.P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. LUIS C., Defendant and Appellant.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Jane Kwon, Principal Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). (Los Angeles County Super. Ct. No. DK12018D) APPEAL from orders of the Superior Court of Los Angeles County, Julie Fox Blackshaw, Judge. Conditionally affirmed and remanded. Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Jane Kwon, Principal Deputy County Counsel for Plaintiff and Respondent.
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Luis C. (father) challenges the juvenile court's order terminating parental rights as to A.P. (minor) under Welfare and Institutions Code section 366.26. Father contends there was insufficient evidence to support the juvenile court's implied determination that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) did not apply. Father contends that respondent Los Angeles County Department of Children and Family Services (Department) failed to adequately investigate the possibility that minor was an Indian child and failed to notify tribes as required under ICWA. We conditionally affirm and remand the case for the limited purpose of compliance with ICWA.
All statutory references are to the Welfare and Institutions Code, unless stated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue raised in father's appeal is ICWA compliance, we focus primarily on the facts and procedural background relevant to that issue. Minor was detained in June 2017 shortly after birth, while dependency proceedings were ongoing with respect to three of Linda G.'s (mother's) children, Cecilia R., Daniel V., and Pedro G. All three are mother's children and are half-siblings to minor. Minor is father's first child.
Mother is not a party to this appeal.
When the Department detained minor, a social worker asked mother about possible Indian ancestry. Mother reportedly made the same statements she made almost two years earlier, in July 2015, with respect to minor's half-siblings. Mother claimed that her grandfather—minor's maternal great grandfather—was 100% Apache. Mother did not know her grandfather's name or any other relatives in the generation before her father. According to mother, neither her father nor her grandfather was registered with the tribe. Minor's father denied any Indian ancestry. The juvenile court ordered the Department to investigate mother's Indian heritage, inquiring whether a prior ICWA finding had been made, presumably with respect to minor's half-siblings. The court noted "for the Department's benefit that they may have much of the information already and the process may go quickly based upon any responses they've gotten in the past and communications in the future."
In the earlier proceedings in 2015, the Department's jurisdiction and disposition report relating to minor's half- siblings, Cecilia R. and Daniel V., stated, "On 7/23/2015, the mother reported that she has Apache heritage. She explained that the heritage is from her paternal side of the family. She reported that her grandfather was Apache. When asked if her grandfather, her father, or she were registered with the tribe, the mother reported no. The mother provided her father's name as Pedro Rodriguez Guzman, but reported not knowing her grandfather's name or names of any additional generations past her father." Eight tribes, the Bureau of Indian Affairs (BIA), and the Secretary of the Interior were notified of earlier proceedings involving minor's siblings Cecilia R., Daniel V., and Pedro G. The notices contained the names and birthdates of the half siblings' parents and maternal grandparents. Five tribes responded the siblings were not enrolled or eligible for membership, and the Department filed return receipts for the remaining three tribes. While the record is not entirely clear, father acknowledges that according to the Department's June 2017 detention report and the July 2017 jurisdiction and disposition report, the juvenile court found ICWA inapplicable to minor's half-siblings in March 2016. Our review of the record does not demonstrate that the Department took any steps—in 2015 or 2017—to contact any of mother's relatives to ask if they had any information about mother's claim of Apache ancestry through her grandfather.
On April 30, 2020, the Department filed a "Motion to take additional evidence on appeal," asking this court to "receive additional evidence" pursuant to its authority under the California Rules of Court, rule 8.252, and the Code of Civil Procedure section 909. Father filed an opposition on May 18, 2020. Because the "additional evidence" offered by the Department consists of documents that were filed in the same dependency proceeding, albeit with respect to minor' siblings, we treat the Department's motion as a motion to augment the record under rule 8.155 of the California Rules of Court, and we grant the motion.
Pedro G. was born November 2015. The Department sent ICWA notices to the Apache Tribe of Oklahoma, Fort Sill Apache Tribe of Oklahoma, Jicarilla Apache Nation, Mescalero Apache Tribe, San Carlos Apache Tribe, Tonto Apache Tribe of Arizona, White Mountain Apache Tribe, and Yavapai-Apache Nation, the Secretary of the Interior, and the BIA in 2015. In 2016, a second set of ICWA notices were sent to the tribes that had not responded to the 2015 notices.
Father filed a motion to augment on February 24, 2020, which we granted on March 11, 2020.
According to some of the Department's reports, the court found ICWA inapplicable to minor in May 2018. However, the minute order and reporter's transcript for the only May 2018 hearing do not reflect any such finding. In October 2018, the court sustained amended petition allegations against mother and father. Mother was not visiting minor and had not met with the Department since June 2018. Father's participation in reunification services and visitation was minimal, and his services were terminated in December 2018.
The court terminated parental rights as to minor at a section 366.26 hearing in September 2019, with father present. The court made no ICWA findings during the hearing. Father filed a notice of appeal.
DISCUSSION
Father contends we must reverse the September 2019 order terminating parental rights as to minor because the Department failed to comply with the inquiry and notice requirements of ICWA. First, the Department failed to investigate mother's claim that her grandfather was "100% Apache." Second, it failed to send notice to the tribes of the dependency proceedings relating to minor. The Department argues that because it had already satisfied its ICWA inquiry and notice obligations when it sent earlier ICWA notices in connection with minor's half-siblings as part of the same proceedings before the juvenile court, and mother had not provided any new or different information, any error in failing to send new notices was harmless.
"Congress enacted ICWA in 1978 in response to 'rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.' [Citation.]" (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) "In California, . . . persistent noncompliance with ICWA led the Legislature in 2006 to 'incorporate[ ] ICWA's requirements into California statutory law.' [Citations.]" (In re Abbigail A. (2016) 1 Cal.5th 83, 91; see also In re Breanna S. (2017) 8 Cal.App.5th 636, 650 (Breanna S.) [California law "incorporates and enhances ICWA's requirements"].) Both ICWA and California 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); § 224.1, subds. (a) & (b); see also In re Elizabeth M. (2018) 19 Cal.App.5th 768, 783 (Elizabeth M.).)
Noncompliance with ICWA inquiry or notice requirements may be raised by either parent on appeal from an order terminating parental rights, even if the parent did not appeal an earlier order finding the ICWA inapplicable, and even if the appealed order did not contain an express ICWA finding. (Isaiah W., supra, 1 Cal.5th at pp. 9-15 [continuing duty under ICWA]; In re A.M. (2020) 47 Cal.App.5th 303, 314, fn. 4 [absence of express finding does not diminish requirement of a current ICWA finding]; In re A.W. (2019) 38 Cal.App.5th 655, 665 [a non-Indian parent has standing to raise an ICWA violation on appeal].) Because father is appealing from the September 2019 termination of parental rights, and the juvenile court has a continuing duty to determine whether ICWA applies, we apply the federal and state statutes in effect on the date of the hearing. (§§ 224.2, 224.3 [Stats. 2018, ch. 833, §§ 4-7]; In re A.M., supra, 47 Cal.App.5th at p. 321.)
We review the trial court's ICWA findings for substantial evidence. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) We must uphold the 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 court and the Department have an affirmative and continuing duty under the ICWA and related California law to inquire whether a child who is the subject of a dependency proceeding is or may be an Indian child. (Isaiah W., supra, 1 Cal.5th at pp. 7-8.) The scope of the duty of inquiry is defined in regulations promulgated under ICWA (see 25 C.F.R. § 23.107 et seq. (2018)) and sections 224.2 and 224.3. As discussed in two recent cases, In re Austin J. (2020) 47 Cal.App.5th 870, 883 (Austin J.) and In re D.S. (2020) 46 Cal.App.5th 1041, 1048-1049, California law imposes a duty of initial inquiry in every case, and a duty of further inquiry when there is reason to believe a minor may be an Indian child under the ICWA.
The Department's initial duty of inquiry at the beginning of a child welfare proceeding includes "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).) The court must inquire at each party's first appearance, whether any participant in the proceeding "knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) Part of the initial inquiry also includes requiring each party to complete California Judicial Council form ICWA-020, Parental Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
When there is reason to believe that an Indian child is involved in a proceeding, further inquiry is required. (Austin J., supra, 47 Cal.App.5th at p. 883; In re D.S., supra, 46 Cal.App.5th at pp. 1048-1049.) As relevant here, further inquiry includes interviewing parents and extended family members to obtain information such as the names of the child's "biological parents, grandparents, and great-grandparents, . . . 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." (§ 224.2, subd. (e)(1); 224.3, subd. (a)(5)(C).) Less relevant to the facts of this case, the agency engaging in further inquiry is also required to contact the BIA, the State Department of Social Services and any tribes the child may be affiliated with, and anyone else, that might have information regarding the child's membership or eligibility in a tribe. (§ 224.2, subds. (e)(2) & (e)(3).) Before the January 1, 2019 amendments to the Welfare and Institutions Code took effect, the Department was still under a duty of further inquiry, described as follows: "If the court or social worker 'knows or has reason to know' the child is or may be an Indian child, the social worker 'is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members' and 'any other person that reasonably can be expected to have information regarding the child's membership status or eligibility' in order to 'gather the information required.' . . . [Citations.]" (In re N.G. (2018) 27 Cal.App.5th 474, 481.)
Father contends the court and the Department did not comply with their duties under the ICWA because the Department did not attempt to locate or interview any of mother's extended relatives. Mother's statement that her grandfather was "100% Apache" was sufficient to give the Department and the court "reason to believe" minor was an Indian child, triggering the duty of further inquiry. (In re D.S., supra, 46 Cal.App.5th at p. 1052; § 224.2, subd. (e).) Mother's parents and siblings are among those "extended family members" whom the Department must interview, if possible, to gather information to determine whether the proceeding involves an Indian child. (See Cal. Rules of Court, rule 5.481(a)(4)(A); 25 U.S.C. § 1903(2) [defining "'extended family member'" to include "the Indian child's grandparent, aunt or uncle"].) The Department must make a good-faith attempt to locate and interview extended family members who can reasonably be expected to have information concerning a child's membership status or eligibility. (In re D.S., supra, at pp. 1052-1053; see also Breanna S., supra, 8 Cal.App.5th at p. 652.) However, it "is not required to 'cast about' for information or pursue unproductive investigative leads. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.)" (In re D.S., supra, at p. 1053.)
The record before us does not document that the Department asked mother if she had any living relatives who might have additional information about her Apache grandfather and his tribal status and affiliation. (In re K.R. (2018) 20 Cal.App.5th 701, 708-710 [agency cannot rely on absence of documentation to argue that appellant's claim of ICWA error must fail on appeal].) Because the Department failed to document the further inquiry efforts required under section 224.2, subdivision (e), there is insufficient evidence to support the court's implied determination that ICWA was inapplicable to the case.
Although failure to comply with ICWA notice requirements is generally prejudicial error, if an agency fails to comply with a higher standard imposed by state law, the error may be considered harmless unless the appellant can show that he or she was prejudiced by the error. (Breanna S., supra, 8 Cal.App.5th at p. 653.) The challenge with the record before us is that until the Department documents its efforts to engage in the further inquiry required under section 224, subdivision (e), it is impossible to determine whether notice is required. (See, e.g., Austin J., supra, 47 Cal.App.5th at p. 884 ["The duty to provide notice is narrower than the duty of inquiry"]; In re A.M., supra, 47 Cal.App.5th at pp. 321-323 [mother provided information requiring further inquiry, but notice not required because persons who might have information were either deceased or could not be located].) Because the record does not contain specific evidence of further inquiry by the Department, we are unable to, and therefore do not consider, whether the failure to send an ICWA notice identical to those sent for minor's half siblings was harmless error. (See In re N.G., supra, 27 Cal.App.5th at p. 483 [deficiencies in ICWA notices may be harmless in some circumstances].) Instead, we conditionally affirm the court's order under section 366.26 terminating father's parental rights and remand the matter for the juvenile court to direct the Department to document its efforts to identify and contact mother's extended family, and, if appropriate, to send ICWA notices to the relevant tribes and the BIA, in accordance with the ICWA and California law. (See Breanna S., supra, 8 Cal.App.5th at p. 656.) If the juvenile court finds minor is an Indian child, the juvenile court must conduct a new section 366.26 hearing and any necessary further proceedings in compliance with the ICWA and California law. If not, the juvenile court shall reinstate the section 366.26 order.
To the extent the Department's further inquiry reveals the names and other identifying information of mother's relatives who were not identified in the prior ICWA notices sent with respect to minor's half-siblings, the juvenile court can determine whether notice to the BIA and any tribes is required. (§ 224.3, subd. (a)(5)(C); see In re E.H., supra, 26 Cal.App.5th at pp. 1069, 1071 [names and other identifying information of an Indian child's "direct lineal ancestors" must be provided "if such information may be relevant in establishing the minor's American Indian heritage"]; see also In re C.B. (2010) 190 Cal.App.4th 102, 147 ["'"[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child's direct lineal ancestors"'"].)
DISPOSITION
The September 16, 2019 order terminating parental rights as to A.P. is conditionally affirmed. The matter is remanded to the juvenile court with directions that if the Department is unable to demonstrate that it satisfied the duty of further inquiry under section 224.2, subdivision (e), it shall conduct such inquiry and file documentation of its efforts. Based on the information obtained by such further inquiry, the court shall determine whether notice is required. If notice is required and a tribe responds that A.P. is an Indian child, then the order terminating parental rights shall be vacated, and further proceedings conducted under the ICWA.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.