Opinion
E082479
04-15-2024
In re A.J. et al., Persons Coming Under the Juvenile Court Law. v. H.J. et al., Defendants and Appellants. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant, H.J. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant, J.J. Tom Bunton, County Counsel and Landon Villavaso, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Nos. J287023, J287024, Cara D. Hutson, Judge. Conditionally reversed with directions.
Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant, H.J.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant, J.J.
Tom Bunton, County Counsel and Landon Villavaso, Deputy County Counsel for Plaintiff and Respondent.
OPINION
MENETREZ J.
Heather J. (mother) and Jason J. (father) appeal from the juvenile court's order terminating their parental rights to their son A.J. and their daughter Alia J. Both parents argue that the San Bernardino County Department of Children and Family Services (CFS) failed to comply with its duty of initial inquiry under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related state law. Although we recognize that CFS conducted extensive inquiry and notice, we agree with the parents that they have identified an error warranting conditional reversal.
BACKGROUND
Mother and father are married and have four children: The subjects of this appeal-A.J. and Alia J.-who were 14 and 12 years old, respectively, when this case began; an older daughter R.J. (who was 17 years old when this case began); and an adult son, Cody J.
On October 17, 2020, CFS responded to an immediate response referral alleging physical abuse and general neglect. When the social worker arrived at the home, a police officer informed her that mother and father had been arrested for child endangerment. The social worker observed that the family's home was in an "unlivable and hazardous" condition and that the three children had poor hygiene and were dressed in filthy clothing. Alia and A.J. had active lice infestations, and A.J.'s was so severe that he required immediate treatment. The children reported that the parents smoked marijuana and engaged in physical fights in the home, and the children said that they did not feel safe around their parents or their adult sibling, Cody. R.J. had a bruise on the side of her face, and both she and A.J. reported that Cody and their parents would hit them. The social worker interviewed mother in jail, and mother denied the allegations of physical abuse and general neglect. She also reported that she had Navajo ancestry and that father had Cherokee ancestry.
Because the parents were in custody and no arrangements had been made for the children's placement, the social worker determined that there were exigent circumstances to justify removing the minors from home without a warrant, and she took them into temporary custody. On October 20, 2020, CFS filed dependency petitions alleging that the children fell under subdivisions (a) and (b) of Welfare and Institutions Code section 300, based on allegations of excessive corporal punishment, domestic violence, and general neglect. (Unlabeled statutory citations refer to the Welfare and Institutions Code.)
At the detention hearing the following day, the juvenile court asked the parents whether they had any Indian ancestry. Mother told the court, "I have Sioux, Cherokee, and Navajo blood but I do not have my tribal numbers." She said she was not currently eligible for enrollment but was "working on that." Father told the court that his "familial tribes are Cherokee and Onondaga which are one of the five nations of Iroquois." The court asked the department to "follow-up specifically with the named tribes to see if there are intentions to intervene."
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
A few days later, the parents gave the social worker additional information for the ICWA inquiry. Mother reported that her father, Thomas M., was of "Sioux descent," that he was not registered, and that his whereabouts were unknown. She also provided the names of one set of her grandparents and reported that they were of "Navajo Sioux Cherokee descent" and were deceased. Father provided the names of his parents and his grandparents and reported that they were deceased. He said that his father was of "Eraqoui/Lona Gaga Iga" descent, that his mother was of Cherokee descent, and that neither of them was registered.
On the basis of the parents' claims of Navajo, Sioux, Cherokee, and Iroquois ancestry, CFS sent ICWA notices to the Bureau of Indian Affairs (BIA) and 29 tribes. Most of the noticed tribes responded that the children were not tribal members or eligible for membership, and the rest of the tribes did not respond at all.
In January 2021, the juvenile court took jurisdiction over the children under section 300, subdivisions (a) and (b), removed the children from the parents' custody, and ordered family reunification services. Two months later, CFS filed a subsequent petition under section 342, alleging that the parents had failed to protect Alia and R.J. from sexual abuse by Cody and that all three children were therefore at substantial risk of sexual abuse or serious physical harm. In May 2021, the juvenile court sustained the allegations in the section 342 petition. The court bypassed reunification services under section 361.5, subdivision (b)(6) and set the matter for a section 366.26 hearing.
Several months later, in October 2022, the social worker attempted to interview R.J. and Cody about possible Indian ancestry but was able to speak only with R.J., who denied having any Indian ancestry. Mother and father told the social worker that they did not have any contact information for Cody and that he would not know anything about their family's Indian ancestry in any event.
By that point in the proceedings, R.J. had turned 18, and the juvenile court had ordered extended foster care services for her and vacated her section 366.26 hearing.
In January 2023, the social worker followed up with the parents to see if they could provide additional information regarding their claims of Indian ancestry. Father provided an enrollment number of J4011, which he said was for membership in the Catawba tribe. He also mentioned that he had one sibling, a brother named James.
At a hearing that same month, the juvenile court asked the parents follow-up questions regarding their claims of Indian ancestry. Mother provided a phone number for the maternal grandfather, whom she had previously been unable to locate. She also confirmed that no other family members were likely to have knowledge about her family's Indian ancestry. Father provided a phone number for James and explained that James had given him the enrollment number and that the number belonged to his third great-grandfather, George J. The juvenile court ordered CFS to follow up with James but did not mention the maternal grandfather.
The social worker spoke with James in April 2023. He "confirmed his enrollment number as J4011" and said that father himself had never been enrolled in a tribe. The same day, CFS sent informal letters of inquiry to three Cherokee tribes and the BIA. On May 9, 2023, CFS received a letter from one of the tribes, the Eastern Band of Cherokee Indians, stating that Alia and A.J. were neither registered nor eligible for membership. The rest of the tribes did not respond. On September 12, 2023, CFS sent informal letters of inquiry to the Catawba Indian Nation; the Ramah Navajo Chapter of the Navajo Nation; the Navajo Nation of Arizona, New Mexico, and Utah; and the regional director of the BIA's Navajo regional office.
At the section 366.26 hearing on October 10, 2023, CFS recounted its ICWA investigation and asked the court to find that the statute did not apply. CFS informed the court that it had not received any responses to the second group of informal inquiries sent out the previous month but argued that it was "safe to assume that [any responses] would once again result in [a report of] the children not being eligible members of the tribe." The court found that ICWA did not apply, found that the children were likely to be adopted, and terminated parental rights.
DISCUSSION
Mother and father argue that CFS prejudicially erred by failing to ask two available extended family members-the maternal grandfather and the adult brother- about the children's potential Indian ancestry. We agree that the failure to interview the maternal grandfather was prejudicial.
To be an Indian child within the meaning of ICWA, a child must be either (1) a member of a federally recognized tribe or (2) eligible for membership and the biological child of a member. (25 U.S.C. § 1903(4).) The child welfare department and the juvenile court have an "'affirmative and continuing duty to inquire' whether a child in a dependency proceeding 'is or may be an Indian child.'" (In re Ricky R. (2022) 82 Cal.App.5th 671, 678 (Ricky R.), quoting § 224.2, subd. (a).) "The duty to inquire consists of two phases-the duty of initial inquiry and the duty of further inquiry." (Ibid.)
"The duty of initial inquiry applies in every dependency proceeding." (Ricky R., supra, 82 Cal.App.5th at p. 678.) The child welfare department's "duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (a).) In addition, "[f]ederal 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) (2022).)" (Ricky R., at pp. 678-679.) Similarly, "[s]tate 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).)" (Id. at p. 679.)
In addition, under subdivision (b) of section 224.2, "[i]f a child is placed into the temporary custody of a county welfare department pursuant to section 306," the department must ask "extended family members" about the child's Indian status. "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).)" (Ricky R., supra, 82 Cal.App.5th at p. 679.)
If the child welfare department fails to comply with its duty of inquiry under state law, the error is prejudicial and warrants conditional reversal if "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.)
Courts are split on whether the duty to inquire of extended family members under section 224.2, subdivision (b) is triggered if the child welfare department takes the child into custody pursuant to a protective custody warrant. (E.g., In re Robert F. (2023) 90 Cal.App.5th 492, 500, review granted July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672, 678, review granted July 26, 2023, S280572; In re Delila D. (2023) 93 Cal.App.5th 953, 961, review granted Sept. 27, 2023, S281447; In re Jerry R. (2023) 95 Cal.App.5th 388, 404.) Our Supreme Court is reviewing the issue. (In re Ja.O. (2023) 310 Cal.Rptr.3d 728.)
We need not decide the issue in this case, because CFS did not seek a protective custody warrant for the children. Rather, CFS took them into temporary custody without a warrant under section 306. The agency was required to ask extended family members about the children's Indian status as part of the initial inquiry. (§§ 224.2, subd. (b), 306, subd. (a)(1), (2).) Although CFS asked some extended family members (i.e., Rhiannon and the paternal uncle) about the children's possible Indian ancestry, it did not, as the parents point out, make the same inquiry of the maternal grandfather or Cody, the adult brother. CFS thus failed to comply with its duty of initial inquiry, and the juvenile court's finding that CFS had conducted a sufficient ICWA inquiry therefore was not supported by substantial evidence. (In re Dominick D. (2022) 82 Cal.App.5th 560, 566 [ICWA findings are reviewed for substantial evidence].)
Moreover, CFS's failure to inquire of the maternal grandfather was prejudicial. Mother reported that the maternal grandfather had Sioux ancestry, and she eventually provided his phone number to CFS. The maternal grandfather was therefore readily available, and he likely possessed information that would bear meaningfully on whether the children are Indian children, particularly given mother's claim that he has Sioux ancestry. (Ricky R., supra, 82 Cal.App.5th at p. 680; Benjamin M., supra, 70 Cal.App.5th at p. 744.)
The failure to interview Cody, however, was not prejudicial. Mother and father did not know where Cody was or how to contact him, and they both said that he would not know anything about their family's Indian ancestry anyway. He consequently was neither readily available nor likely to possess information that would bear meaningfully on the inquiry.
In arguing that conditional reversal is unnecessary, CFS contends that interviewing the maternal grandfather "would not have shed meaningful light upon whether the children were Indian children or had Sioux Indian ancestry," because (1) any information he might provide "would merely be superfluous [to the information] already provided by the mother," and (2) the 14 federally recognized Sioux tribes have already received ICWA notice containing the information mother provided, and none of the tribes responded that the children were members or eligible for enrollment. Although we acknowledge that CFS conducted extensive inquiry and notice in this case, we are not persuaded that their efforts rendered the error harmless. Mother was not in contact with the maternal grandfather but claimed that she had Indian ancestry through him. He consequently was likely to possess information that she did not have and that could confirm or refute her claim, help identify the proper tribe, help identify other relatives who might have relevant information, and so forth. All such information would likely bear meaningfully on the minors' status as Indian children. (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
Moreover, the record does not support CFS's assertion that the notices provided to the tribes included "a detailed account of the children's maternal lineal ancestry." Mother knew the names of only a few of her relatives, and for each of those relatives- including the maternal grandfather-she lacked basic biographical information like birthdates, birth places, and current addresses. The limited information provided by mother makes it more likely that the maternal grandfather would possess information that would bear meaningfully on the determination of the children's Indian status.
For all of these reasons, we conditionally reverse the order terminating parental rights and remand for a proper ICWA inquiry.
Because we conditionally reverse, we need not address the parents' contention that the juvenile court failed to wait a "sufficient" amount of time after the second group of informal inquiries were sent. The juvenile court will be conducting further proceedings on remand, and by now the time has been more than sufficient.
DISPOSITION
The order terminating parental rights is conditionally reversed. On remand, the juvenile court shall order CFS to comply with its duty of initial inquiry under subdivision (b) of section 224.2 and, if applicable, the duty of further inquiry (§ 224.2, subd. (e)) and the duty to provide notice to the proper tribes (25 U.S.C. § 1912(a); § 224.3). If, after the court finds that CFS has complied, the court determines that ICWA does not apply, then the court shall reinstate the order terminating parental rights. If the court determines that ICWA applies, then it shall proceed in conformity with ICWA and related California law.
We concur: MILLER Acting P.J., FIELDS J.