Opinion
E081158
09-01-2023
In re M.D. et al., Persons Coming Under the Juvenile Court Law. v. A.R. et al., Defendants and Appellants. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant A.R. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant J.G. Gregory P. Priamos, County Counsel, and Larisa R-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ2000100 Mona M. Nemat, Judge. Conditionally reversed and remanded with directions.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant A.R. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant J.G.
Gregory P. Priamos, County Counsel, and Larisa R-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
A.R. (Mother) and J.G. (Father) are the parents of A.G. Mother is also the mother of M.D. and D.D. The parents appealed from a judgment terminating their parental rights as to the children. (Welf. &Inst. Code, § 366.26.) Mother and Father filed an opening brief contending that the Riverside County Department of Public Social Services (the Department) and the juvenile court failed to adequately comply with the inquiry requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.; Cal. Rules of Court, rule 5.480 et seq.) On August 15, 2023, the parties filed a joint application and stipulation for a conditional reversal of judgment and remand. After our own careful review of the entire record, we conclude that the Department and the juvenile court did fail to adequately comply with the inquiry requirements of ICWA, and we reverse with directions.
The father of D.D. and M.D. is deceased.
All future statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Mother and Father resided with the paternal great-grandparents, a paternal aunt, and a paternal uncle. The children were detained on February 10, 2020, from Father due to domestic violence, leaving them in Mother's care. A dependency petition on behalf of the children was filed on February 13, 2020, pursuant to section 300, subdivision (b)(1) (failure to protect). Both parents denied Native American ancestry both orally and through signed ICWA-020 Parental Notification of Indian Status (ICWA-020) forms. The Department reported that an ICWA inquiry of the parents gave them no reason to believe the children were Indian children.
The detention hearing was held on February 14, 2020. Mother, Father, and a paternal great-aunt were present. The juvenile court noted that it had both Mother's and Father's signed ICWA-020 forms, and found the Department had conducted a sufficient ICWA inquiry and that ICWA did not apply to the case. The court did not personally inquire of the parents or the paternal great-aunt.
On July 11, 2020, the children were detained from Mother due to her mental health, substance abuse, and allowing Father access to the children, and a first amended petition was filed. On July 13, 2020, Mother again denied Native American ancestry for herself and her deceased husband C.D. (the older children's father). The Department was unable to inquire of Father again due to his refusal to speak with them. The Department received information from paternal relatives that Father was residing with the paternal aunt and a paternal cousin and contacted the paternal cousin to confirm Father's residency.
At the July 15, 2020, detention hearing on the amended petition, the juvenile court noted ICWA did not apply to the case, found the Department had conducted a sufficient ICWA inquiry, and detained the children from Mother. The court did not personally inquire of the parents as to their Native American ancestry. Mother was present and requested that the children be placed with the maternal grandmother. The children were subsequently placed together with the maternal grandmother, who denied having any Native American ancestry when questioned by the social worker during monthly visits.
On July 30, 2020, Mother again denied having any Native American ancestry for herself and her deceased husband. On this same date, Father also denied having any Native American ancestry.
The jurisdictional/dispositional hearing was held on August 6, 2020. The parents were present in court. The juvenile court found true the allegations in the first amended petition as amended, declared the children dependents of the court, and provided the parents with reunification services. The court also found the Department had conducted a sufficient ICWA inquiry and that ICWA did not apply.
Father's reunification services were terminated on October 25, 2021, following a contested 18-month review hearing, at which the parents were present. The juvenile court found the Department had made a sufficient ICWA inquiry and that there was no new information to indicate ICWA may now apply.
The children were removed from the maternal grandmother on December 3, 2021, due to her health issues, and placed together in a foster home.
At a hearing on April 19, 2022, the maternal grandmother, two maternal aunts, and one maternal uncle were present. The juvenile court did not question these relatives as to their Native American ancestry.
A contested 18-month review hearing as to whether Mother's services should be terminated was held on July 11, 14, and 22, 2022. During those hearings, the maternal great-grandfather, the maternal grandmother, Father, and Mother were present, but the juvenile court made no ICWA inquiry of the parents or the relatives. The court found that ICWA did not apply as to the children, the Department had made a sufficient ICWA inquiry, and that there was no new information to indicate ICWA may now apply. The court terminated Mother's reunification services and set a section 366.26 hearing.
At a November 17, 2022, hearing, the paternal grandmother, maternal aunt, and the maternal grandmother were present in court and were not questioned by the juvenile court as to their Native American ancestry. At a March 17, 2023, hearing, a maternal great-aunt was present and was not questioned by the juvenile court or the Department about Native American ancestry.
At a hearing on April 18, 2023, four paternal great-aunts and two paternal greatuncles were present. The juvenile court inquired of these relatives as to their Native American ancestry. All the relatives present indicated that they had no Native American heritage.
On April 21, 2023, following a contested section 366.26 hearing, the juvenile court found the children were adoptable, no exceptions to termination of parental rights applied, and terminated parental rights. Mother and Father timely appealed.
STIPULATION
A stipulated reversal under Code of Civil Procedure section 128, subdivision (a)(8), is permissible in a dependency case when the parties agree that reversible error occurred, and the stipulated reversal will expedite the final resolution of the case on the merits. (In re Rashad H. (2000) 78 Cal.App.4th 376, 380-382.) In the stipulation, the parties agree that the juvenile court erred under section 224.2 subdivision (c), when it failed to inquire of the parents and a paternal great-aunt who were present in court on February 14, 2020, two maternal aunts and one maternal uncle present in court on April 19, 2022, and a maternal great-aunt present in court on March 17, 2023 as to their Native American ancestry, that substantial evidence did not support the juvenile court's findings that ICWA did not apply, and that a conditional reversal of the judgment is appropriate with directions to the juvenile court to make a proper ICWA inquiry.
The juvenile court and the department have an "affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child." (§ 224.2, subd. (a).) "The duty to inquire consists of two phases-the duty of initial inquiry and the duty of further inquiry." (In re Ricky R. (2022) 82 Cal.App.5th 671, 678.) The duty of initial inquiry applies in every dependency proceeding. (In re Austin J. (2020) 47 Cal.App.5th 870, 883-884.) 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).) 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 agency must ask "the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child," and the 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).)
Here, the parties agree that the juvenile court failed to inquire of the parents and the paternal great-aunt present in court on February 14, 2020, two maternal aunts and one maternal uncle present in court on April 19, 2022, and a maternal great-aunt present in court on March 17, 2023. It also appears that the juvenile court failed to inquire of the paternal grandmother, a maternal aunt, and the maternal grandmother present in court on November 17, 2022. The record also shows that the Department failed to inquire of the known and readily available relatives with the exception of the maternal grandmother. A conditional reversal is therefore appropriate given the Department's and juvenile court's failure to inquire of the known relatives concerning their Native American ancestry. (See, e.g., In re Benjamin M. (2021) 70 Cal.App.5th 735, 744; In re A.B. (2008) 164 Cal.App.4th 832, 839.)
DISPOSITION
The order terminating parental rights is conditionally reversed as to both parents. On remand, the juvenile court shall inquire of the parents and the known relatives (§ 224.2, subd. (c)) as noted above and order the Department to comply with the duty of initial inquiry (§ 224.2, subd. (b)) of the paternal and maternal relatives and, if applicable, the duty of further inquiry (§ 224.2, subd. (e)) and the duty to provide notice to the pertinent tribes (25 U.S.C. § 1912(a); § 224.3). If the court determines that ICWA does not apply-either (1) because the court and the Department have conducted a sufficient inquiry of the parents and the maternal and paternal relatives, and there is no reason to believe the children are Indian children, or (2) because the Department's inquiry reveals reason to know they are Indian children, notice was sent to the pertinent tribes, and the tribes' responses show that they are not Indian children or there is no response-then the juvenile court is directed to reinstate all previous findings and the order terminating parental rights. If the juvenile court determines that ICWA applies, the court is directed to conduct a new section 366.26 hearing in conformity with the provisions of ICWA and related California law.
Pursuant to the parties' stipulation, the clerk of this court is directed to issue the remittitur immediately. (Cal. Rules of Court, rule 8.272(c)(1).)
We concur: McKINSTER J., MILLER J.