Opinion
E078478
07-21-2022
In re A.R., a Person Coming Under the Juvenile Court Law. v. E.R., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and Appellant. Teresa K.B. Beecham, County Counsel, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. (Super. Ct. No. RIJ2000590) Donald Donnelly, Judge.
Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and Appellant.
Teresa K.B. Beecham, County Counsel, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
Father E.R. (Father) appeals from a juvenile court order terminating his parental rights under Welfare and Institutions Code section 366.26, to A.R., who is 15 years old.Father contends that the Riverside County Department of Public Social Services (DPSS) and the juvenile court failed to comply with the duty of initial inquiry imposed by the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and state statutory provisions (§ 224.2). DPSS concedes this error but argues it is not reversible error because it was not prejudicial. We disagree.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code. Because ICWA uses the term "Indian," we do so on occasion as well, not out of disrespect, but because of the need for clarity and consistency, even though we recognize that other terms, such as "Native American" or "indigenous" are preferrable.
Father does not contend that DPSS or the court failed to satisfy any duty of inquiry with respect to the maternal side of A.R.'s family.
We conclude that the juvenile court and DPSS's failure to inquire of Father and other paternal relatives regarding A.R.'s Native American heritage is prejudicial error. We therefore conditionally reverse the order terminating parental rights and remand the case back to the juvenile court to allow DPSS and the juvenile court to inquire as to Father's Native American ancestry.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 2020, Mother called 911 and reported that M.F. (Step-Father) physically assaulted her in the presence of her five children. Step-Father is the father of four of Mother's children and is A.R.'s step-father. Mother acknowledged there had also been four previous domestic violence incidents. A referral was made to DPSS. That same day, a social worker visited the family home where Mother, her five children, her niece and nephew, and A.R.'s maternal grandfather resided. A.R.'s Father was currently incarcerated with a release date of 2044.
This appeal only concerns A.R. and Father. The other four children and Mother are not parties to this appeal.
Mother told the social worker that Step-Father started using methamphetamines and cocaine four or five months earlier. While working, Mother left the children with Step-Father. Mother admitted relapsing on cocaine in July 2020. Mother stated she had not used methamphetamines for two to three years. However, Mother's drug test the next day was positive for methamphetamines and amphetamines.
The social worker also interviewed A.R., who said she witnessed Step-Father assault Mother that day and on another occasion. A.R. stated that the domestic violence caused her to experience anxiety and shortness of breath.
On September 25, 2020, A.R. and her siblings were placed with their maternal great aunt. DPSS filed a juvenile dependency petition (Petition) on behalf of Mother's five children, and later filed an amended Petition. Two of the amended Petition counts concerned Father and A.R. (§ 300, subds. (b)(1) (failure to protect) and (g) (no provision for support).) The amended Petition alleged Mother and Step-Father had a history of substance abuse, domestic violence, and mental health issues. As to Father, he has a criminal history, is incarcerated with a 2044 release date, and is unable to care for A.R.
Father was not present at the detention hearing, during which the court found that ICWA did not apply. The court ordered no visitation between A.R. and Father, finding it would be detrimental to A.R.
At the contested jurisdiction/disposition hearing on October 30, 2020, Father appeared telephonically. The court continued the hearing to November 9, 2020, so that Father could be present at the hearing. During the continued hearing, Father again appeared telephonically. The court elevated Father's status to a presumed father of A.R. The court further found that notice of the hearing had been given, ICWA did not apply, and removal of A.R. was proper. The court adjudged A.R. a dependent of the court and ordered bypass of reunification services for Father under section 361.5, subdivision (b)(12).
DPSS reported in its six-month hearing report that Mother's five children, including A.R., remained with a maternal great aunt and uncle. At the contested six-month hearing on May 24, 2021, the court terminated Mother and Step-Father's reunification services and set a section 366.26 hearing as to A.R. The court ordered that the children remain as a group in their current placement. The court found that ICWA did not apply. Father was not present at the hearing.
Father appeared telephonically at the section 366.26 hearing on September 21, 2021. The court continued the hearing to allow completion of the adoption assessment. At the continued hearing on December 7, 2021, Father again appeared telephonically. The court continued the section 366.26 hearing, which, on December 14, 2021, was continued once more to January 27, 2022. Father appeared telephonically at the contested section 366.26 hearing on January 27, 2022. Mother and Father objected to termination of parental rights, asserted the parent-child bond exception to adoption, and requested A.R. remain placed with her maternal great aunt and uncle in a legal guardianship (§ 366.26, subd. (c)(1)(a) and (b)(1)). The court found that none of the exceptions to adoption applied and ordered parental rights to A.R. terminated.
III.
DISCUSSION
Father contends the juvenile court erred in terminating his parental rights because the juvenile court and DPSS failed to comply with their duty of initial inquiry under ICWA and section 224.2. DPSS concedes the error but contends it was harmless. The sole issue is thus whether the error was prejudicial. We conclude that, under the facts of this case, the failure to inquire and investigate constitutes prejudicial error, requiring reversal.
Federal regulations implementing ICWA require that state courts, at the commencement of a juvenile dependency proceeding, "ask each participant in an emergency or voluntary or involuntary 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) (2022).) Under California law, the court and county child welfare department also "'have an affirmative and continuing duty to inquire whether a child,' who is the subject of a juvenile dependency petition, 'is or may be an Indian child.' [Citations.] The child welfare department's initial duty of inquiry 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 and where the child, the parents, or Indian custodian is domiciled.' (§ 224.2, subd. (b).)" (In re Austin J. (2020) 47 Cal.App.5th 870, 883.) State courts must also "instruct the parties 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) (2022).)
Here, Mother informed a social worker during a telephone conversation the day after A.R. was taken into protective custody that Mother's family had no Native American ancestry. At the detention hearing, the court found ICWA did not apply and that there had been a sufficient inquiry regarding ICWA. Father was not present at the detention hearing. He was incarcerated, with a 2044 release date. There therefore was no inquiry of Father at the detention hearing as to A.R.'s paternal Native American ancestry.
There was also no inquiry of Father regarding Native American ancestry at any of the subsequent hearings during which he appeared telephonically. He appeared telephonically on October 30, 2020, at the contested jurisdiction hearing; on September 21, 2021, during which the court found ICWA did not apply; on December 7, 2021, at the contested section 366.26 hearing; and on January 27, 2022, at the continued contested section 366.26 hearing, during which the juvenile court ordered parental rights terminated. DPSS concedes it and the juvenile court erred in not inquiring regarding Father's Native American ancestry.
A. Forfeiture of Inquiry Objection
Father did not object in the lower court to the juvenile court and DPSS's failure to inquire regarding his Native American ancestry. Nevertheless, there was no forfeiture of the objection. (In re Isaiah (2016) 1 Cal.5th 1, 9, 13 (Isaiah); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267-1268 [failure to raise ICWA notice error in juvenile court does not forfeit the claim on appeal]; In re Marinna J. (2001) 90 Cal.App.4th 731, 733 [same]; Dwayne P. (2003) 103 Cal.App.4th 247, 251 ["given the court's continuing duty throughout the dependency proceedings to ensure the requisite notice is given [citation], and the protections the ICWA affords Indian children and tribes, the parents' inaction does not constitute a waiver or otherwise preclude appellate review."])
This is because even though the child has a need for a permanent, stable home and early resolution of ICWA notice issues is preferrable, federal and state statutes were clearly written to protect the integrity and stability of Indian tribes despite the potential for delay in placing a child. (Isaiah, supra, 1 Cal.5th at p. 12; see also In re Benjamin M. (2021) 70 Cal.App.5th 735, 745 (Benjamin M.).) State law and ICWA recognize the continuing importance of properly determining a child's Native American status, even when a dependency proceeding has progressed beyond the initial stages or is on appeal. (Isaiah, supra, at pp. 12-13; §§ 224.2, 224.3, and 224.4; 25 U.S.C. §§ 1911(c), 1914.) Therefore, Father's inquiry objection, raised for the first time in this court, has not been forfeited.
B. Prejudicial Error
DPSS argues that, even assuming DPSS and the juvenile court erred in failing to fulfill their duties of inquiry as to Father's Native American ancestry, Father has failed to show such error was prejudicial. The parties agree that state law applies here because DPSS failed to comply with its initial duty of inquiry under state law. As we noted in Benjamin M., such initial inquiry could have triggered additional duties and heightened requirements. (Benjamin M., supra, 70 Cal.App.5th at p. 742; see also In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.) "Because the failure here 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." (Benjamin M., supra, at p. 742.)
As the dissent in A.C. notes, the inquiry violation is not only a matter of state law. (In re A.C. (2021) 65 Cal.App.5th 1060, 1074, fn. 1.) "The federal duty of inquiry was imposed by regulations promulgated in 2016. (In re T.G. (2020) 58 Cal.App.5th 275, 289; Indian Child Welfare Act Proceedings, 81 Fed.Reg. 38778, 38779, 38802-38803, 38856 (June 14, 2016).)" (In re A.C., supra, at p. 1074, fn. 1.) In A.C., the dissent noted that "[t]his point would appear to vitiate much of the majority opinion's analysis, which is based on cases that predate the creation of the federal duty of inquiry and expressly rely on the absence of such a duty. (Maj. opn., ante, at p. 1069 [citing In re S.B. (2005) 130 Cal.App.4th 1148, In re Noreen G. (2010) 181 Cal.App.4th 1359, In re H.B. (2008) 161 Cal.App.4th 115, In re N.E. (2008) 160 Cal.App.4th 766, and Rebecca R. [(2006) 143 Cal.App.4th 1426], which was decided in 2006].)" (In re A.C., supra, 65 Cal.App.5th at p. 1074, fn. 1.)
"The usual test for prejudicial state law error is whether, '" after an examination of the entire cause, including the evidence"' (People v. Watson (1956) 46 Cal.2d 818, 836), we are 'of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' (Ibid.; see Benjamin M., supra, 70 Cal.App.5th at p. 742 [Watson standard applies to agency's failure to comply with initial duty of inquiry under California's ICWA-related law].)" (In re S.S. (2022) 75 Cal.App.5th 575, 581.)
The court in In re S.S., supra, 75 Cal.App.5th at pages 581-582, noted that, "[although an appellant ordinarily has the burden of establishing prejudice [citation], a parent's ability to make this showing based upon the record in failure-to-inquire cases can be problematic 'when the record is inadequate because of the social services agency's failure to document its inquiries.' (A.C., supra, 65 Cal.App.5th at p. 1070.) Some courts have addressed this problem by requiring an appellant who asserts a breach of the duty of inquiry to, at a minimum, make an offer of proof or other affirmative assertion of Indian heritage on appeal. (Id. at p. 1069; In re Noreen G. [, supra,] 181 Cal.App.4th [at p.] 1388; In re H.B.[, supra,] 161 Cal.App.4th [at p.] 122; In re N.E.[, supra,] 160 Cal.App.4th [at p.] 769; In re Rebecca R. [, supra,] 143 Cal.App.4th [at pp.] 1430-1431; but see In re Y.W. (2021) 70 Cal.App.5th 542, 556 [a parent 'does not need to assert he or she has Indian ancestry to show a child protective agency's failure to make an appropriate inquiry under ICWA and related law is prejudicial'].)"
In Benjamin M., we rejected such a requirement. (Benjamin M., supra, 70 Cal.App.5th at pp. 742-743, 745.) "Here, instead of a mere duty to disclose, the agency has a duty to gather information by conducting an initial inquiry, where the other party- here a parent 'acting as a surrogate for the tribe' [Citation]-has no similar obligation. At any point, the agency could still gather the required information and make it known. Until the agency does so, however, we cannot know what information an initial inquiry, properly conducted, might reveal." (Id. at pp. 742-743.)
As we explained in Benjamin M, "[requiring a parent to prove that the missing information would have demonstrated 'reason to believe' would effectively impose a duty on that parent to search for evidence that the Legislature has imposed on only the agency. A parent challenging ICWA compliance cannot always easily obtain the missing information, even when that missing information is about a parent's possible Indian ancestry. [] Furthermore, the right at issue in the ICWA context is as much an Indian tribe's right to 'a determination' of a child's Indian status as it is a right of any sort of favorable outcome for the litigants already in a dependency case. [Citation.] In this ICWA context, it would frustrate the statutory scheme if the harmlessness inquiry required proof of an actual outcome (that the parent may actually have Indian heritage)." (Benjamin M, supra, 70 Cal.App.5th at pp. 743-744, fn. omitted.)
We concluded in Benjamin M., "that in ICWA cases, a court must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Benjamin M., supra, 70 Cal.App.5th at p. 744; see also In re N.G. (2018) 27 Cal.App.5th 474, 482, 484-485 (N.G.) [conditional reversal of order terminating parental rights and remand where Native American ancestry inquiry, investigation, and notice deficient as to both parents]; In re H.V. (2022) 75 Cal.App.5th 433, 438 (H.V.) [court conditionally reversed jurisdiction/disposition orders based on a finding of prejudicial error where the agency failed its duty of initial inquiry by not inquiring of mother's relatives regarding child's Native American ancestry].)
In Benjamin M., supra, 70 Cal.App.5th 735, the father never appeared in court in the juvenile dependency proceedings and could not be located. However, the agency had information which would have enabled it to contact paternal relatives for purposes of obtaining meaningful information about paternal Native American ancestry. The mother appealed termination of parental rights on the ground the agency failed to fulfill its duty of initial inquiry into the child's paternal Native American ancestry. We held such failure constituted prejudicial error requiring conditional reversal and remand to allow ICWA compliance. (Id. at p. 739.)
We declined in Benjamin M., to apply the rule espoused in cases such as A.C., supra, 65 Cal.App.5th 1060, requiring a parent to establish prejudicial error by showing that he or she would have claimed Native American ancestry. (Id. at p. 1069; Benjamin M., supra, 70 Cal.App.5th at p. 745.) We held in A.C., that the father had not shown prejudicial error because the father had not claimed in the juvenile court, in his appellate opening brief, in his reply brief, or at oral argument that he had any Native American ancestry. (A.C., supra, at p. 1065.) We concluded in A.C. that, "[b]ecause he has not managed to clear this rather low hurdle, there is no reason to suppose that, absent the error, the outcome would have been any different. And, more to the point, there is no reason to reverse and remand for a further inquiry, which would not only entail effort and expense, but would also delay permanency for A.C." (Id. at p. 1065.)
We rejected the A.C. requirement in Benjamin M., concluding that the agency's noncompliance with the duty to inquire was prejudicial error even though neither parent had claimed Father had Native American ancestry. We reasoned in Benjamin M., that the information the paternal relatives would have given likely would have shed meaningful light on whether there was reason to believe the child was a Native American child. Therefore the failure to inquire as to the paternal relatives was prejudicial. In Benjamin M., we noted that, while we could not know how the paternal relatives would answer an inquiry regarding Native American ancestry, a paternal relative's answers were likely to bear meaningfully on the determination of paternal Native American ancestry. (Benjamin M., supra, 70 Cal.App.5th at pp. 744-745.)
We therefore conclude Father does not have an affirmative duty to make a factual assertion on appeal regarding his Native American ancestry, which he cannot support with citations to the record. (Benjamin M., supra, 70 Cal.App.5th at p. 744; N.G., supra, 27 Cal.App.5th at p. 484; Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 846.) Instead, on this record, which demonstrates that the juvenile court and DPSS failed to discharge their inquiry duties, we conclude, as the court did in Benjamin M., that Father's claim of ICWA error was prejudicial error and reversible because the probability of obtaining meaningful information is reasonable in the context of ICWA, where Father was never asked whether he had any Native American ancestry, despite appearing telephonically in court several times. (Benjamin M., supra, at p. 744; see also N.G., supra, 27 Cal.App.5th at pp. 484-485.)
Applying Benjamin M.'s test here, we conclude both factors supporting a finding of prejudicial error are satisfied. (See also H.V., supra, 75 Cal.App.4th at p. 438.) It is undisputed DPSS and the juvenile court did not fulfill their duties of initial inquiry of Father as to A.R.'s paternal Native American ancestry. In addition, the record indicates that "there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." DPSS and the juvenile court could have asked Father about his Native American ancestry but failed to do so during his telephonic court appearances.
Even though the juvenile court found during the various hearings that ICWA did not apply, such findings were made before the juvenile court and DPSS inquired of Father as to his and A.R.'s Native American ancestry. "Section 224.3(e)(3) implicitly recognizes that any finding of ICWA's inapplicability before proper and adequate ICWA notice has been given is not conclusive and does not relieve the court of its continuing duty under section 224.3(a) to inquire into a child's Indian status in all dependency proceedings." (Isaiah, supra, 1 Cal.5th at p. 11.)
We recognize the instant case is factually similar to A.C., supra, 65 Cal.App.5th 1060. In both cases, the juvenile court and agency overlooked inquiring regarding paternal Native American ancestry. In both cases, the fathers were not present at the initial detention hearing but later appeared in the proceedings and could have been asked about their Native American ancestry during subsequent proceedings. But as in Benjamin M., we conclude such error was prejudicial because it was not Father's burden or obligation to provide the information absent an inquiry or request, and the probability of obtaining meaningful paternal Native American ancestry information, upon asking Father, is reasonable. (Benjamin M., supra, 70 Cal.App.5th at p. 744; N.G., supra, 27 Cal.App.5th at p. 484; Isaiah, supra, 1 Cal.5th at pp. 11-12; H.V., supra, 75 Cal.App.4th at p. 438 [Mother does not have an affirmative duty to make a factual assertion on appeal that she cannot support with citations to the record"]; § 224.2, subd. (a).)
In addition, the analysis in Benjamin M. is based on, and is consistent with, current case law which indicates that the juvenile court and DPSS's complete failure to inquire as to a parent's Native American ancestry, when the parent is available to provide such information, constitutes prejudicial error. (See Benjamin M., supra, 70 Cal.App.5th at p. 740 fn. 4; see also In re A.R. (2022) 77 Cal.App.5th 197, 207 [reversal should be required in all cases where ICWA requirements have been ignored, which is "consistent with the recognition that parents are effectively acting as 'surrogate[s]' for the interests of Native American tribes when raising this issue on appeal"]; In re Dezi C. (2022) 79 Cal.App.5th, 769, 779 [applies "Reason To Believe" rule, in which an agency's failure to conduct a proper initial inquiry into a dependent child's American Indian ancestry 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," e.g., when "the record indicates that the agency never inquired into one of the two parents' heritage at all."])
Under federal and state law, the court and DPSS were required to inquire of Father regarding his Native American ancestry and failed to do so. (ICWA, 25 C.F.R. § 23.107(a) (2016), and § 224.2, subd. (c).) Such prejudicial error requires conditional reversal of the order terminating parental rights and remand of the case back to the juvenile court to allow DPSS and the juvenile court to inquire regarding whether Father has any Native American ancestry.
IV.
DISPOSITION
The judgment terminating parental rights to A.R. is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry and notice provisions of ICWA and sections 224.2 and 224.3. On remand, the court must inquire of Father as to paternal Native American ancestry, and ensure that DPSS fully investigates and takes reasonable steps to ascertain whether A.R. has paternal Native American ancestry and gives ICWA notices, as appropriate.
If ICWA notices are required and given under sections 224.2 and 224.3, and the tribes or the Bureau of Indian Affairs do not respond to the ICWA notices, or respond that A.R. is not a Native American child, the judgment terminating parental rights to A.R. shall immediately be reinstated and further proceedings shall be conducted, as appropriate. If any tribe or the Bureau of Indian Affairs determines A.R. is a Native American child, the court shall proceed accordingly.
I CONCUR: MCKINSTER J.
Ramirez, P. J, Concurring
I concur in the court's opinion. However, because the court declines to follow In re A.C. (2021) 65 Cal.App.5th 1060 (A.C.) - and because I was the author of A.C. - I want to explain what may appear to be inconsistency on my part.
In 2006, In re Rebecca R. (2006) 143 Cal.App.4th 1426 [Fourth Dist., Div. Two] (Rebecca R.) held that an agency's asserted failure to carry out its duty to inquire was harmless where the parent did not "make an affirmative representation of Indian heritage" on appeal. (Id. at pp. 1430-1431.)
When we decided A.C., Rebecca R. was stare decisis in our division. What's more, three of our sister courts had followed it. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1388 [First Dist., Div. One]; In re H.B. (2008) 161 Cal.App.4th 115, 121 [Second Dist., Div. Seven]; In re N.E. (2008) 160 Cal.App.4th 766, 769-771 [Fourth Dist., Div. Three].) Only one case had come to a different conclusion, but it was decided before Rebecca R., and it resolved the issue in a footnote, with almost no analysis. (In re J.N. (2006) 138 Cal.App.4th 450, 461 & 461, fn. 6 [Fifth Dist.].) Familiar rules of precedent counselled that we follow Rebecca R.
Since then, however, it is as if A.C. declared, "Let a thousand flowers bloom." The near-unanimity that prevailed has shattered into a welter of conflicting harmless error standards. (In re Dezi C. (2022) 79 Cal.App.5th 769, 777-778, and cases cited.) In this division alone, In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.) disagreed with A.C. and thus, implicitly, with Rebecca R. As a result, only a year after A.C. was decided, it is no longer stare decisis, and it is no longer supported by stare decisis.
There is a reason for this breakdown of consensus: The issue of when, if ever, an agency's failure to inquire can be deemed harmless pits the interests of parents and of Indian tribes squarely against the interests of abused and neglected children (in permanency) and the interests of the judicial system itself (in efficiency and finality). As a matter of both law and policy, it is not clear where to draw the line between them.
At this point, I suspect our Supreme Court will need to step in to resolve the issue. I acquiesce in the court's opinion, because Benjamin M. is this division's latest word on the subject, and because A.C. has had its chance to persuade and has not done so (although it may have one last chance if and when the Supreme Court reaches the issue).