Opinion
E074560
08-11-2020
In re J.H. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.H., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J279825, J279826, J279827, J279828 & J279829) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Conditionally reversed and remanded with directions. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
J.H. (Father) appeals from the juvenile court's dispositional order denying him reunification services and visitation as to his five children. Father's sole contention on appeal is that the order must be reversed because the San Bernardino County Children and Family Services (CFS) failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and with Welfare and Institutions Code section 224 et seq. CFS agrees. For the reasons explained herein, we conditionally reverse the judgment and remand the matter with directions CFS and the juvenile court comply with the inquiry and, if applicable, the notice provisions of the ICWA statutes. If after such compliance the juvenile court finds the children are not Indian children, the judgment denying Father reunification services and visitation shall be reinstated.
J.H. (Mother) is not a party to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of CFS in January 2019, after a 10-day referral was received alleging sexual abuse of H.H. The family lived in Morongo Valley and consisted of Father, Mother, and their five children: 16-year-old H.H., 14-year-old Ju.H., 12-year-old Jo.H., nine-year-old Joy.H., and seven-year-old Jou.H. H.H. reported that Father, on at least four occasions, got into bed with her, partially removed her clothes, and touched her naked breasts, thighs, and buttocks. Father made Mother sleep on the couch and made H.H. sleep with Father in the master bedroom. When confronted by Mother, Father denied remembering anything about the events described by H.H. Father was arrested by the Morongo Basin Sheriff's Department on December 27, 2018, for lewd acts on H.H. Mother refused to cooperate with law enforcement and blamed H.H. for breaking up the family. Father was eventually sentenced to three years in state prison.
On January 4, 2019, a social worker went to the family home to investigate the allegations. Mother denied the social worker access to the home and the opportunity to interview the children. The children were home schooled and did not have access to the outside world. All the children were eventually detained from Mother and Father on February 14, 2019. After the children were detained, the social worker learned from the children that some of them had not seen a medical professional since birth. Mother contacted the social worker demanding to know why the children were detained and refused to answer questions relating to ICWA.
On February 19, 2019, petitions were filed on behalf of the children pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (c) (serious emotional damage), (d) (sexual abuse), (g) (no provision for support), and (j) (abuse of sibling). The petitions were later amended in March and July 2019.
On February 20, 2019, both parents filled out ICWA-020 forms indicating they have no Indian ancestry. The parents also filled out a "Parent: Family Find and ICWA Inquiry" (ICWA Inquiry) form provided by CFS. In this form, the parents provided contact information for the maternal grandmother and paternal grandfather. The maternal grandfather and maternal grandmother also filled out the ICWA Inquiry form, providing their contact information, their date of birth, and contact information for a maternal aunt. The maternal grandfather indicated Native American ancestry through the Cherokee tribe with the tribe/band as unknown.
The detention hearing was held on February 20, 2019. At that time, both parents denied Native American ancestry when asked by the juvenile court. The maternal grandparents were also present at the detention hearing, and the maternal grandfather indicated Cherokee ancestry. County counsel requested the court to clarify the maternal grandfather's claim. When the court inquired of the maternal grandfather as to his Native American ancestry, the maternal grandmother interjected stating her maternal grandmother (the children's maternal great-great grandmother) was Cherokee. The court ordered CFS and the family to go over the ICWA-030 notice together. The court also found prima facie standards for formally removing the children from the parents' custody and provided Mother with supervised visitation. The court denied Father visitation, finding it detrimental to the children's well-being.
In a jurisdictional/dispositional report dated March 13, 2019, the social worker reported that ICWA may apply and specifically listed Cherokee as a possible tribe. The maternal grandfather was interviewed and was not able to provide further information about his Cherokee ancestry nor was he able to provide additional relatives. He stated he was not a registered member and was not certain of his Cherokee ancestry. However, the social worker was continuing to collect additional information to complete the ICWA-030 notice.
At the initial combined jurisdictional/dispositional hearing on March 13, 2019, CFS's counsel noted ICWA needed to be addressed. The juvenile court responded by stating, "They definitely need to interview the father as well."
On June 26, 2019, ICWA-030 notices were mailed to Mother, Father, and the Sacramento Area Director for the Bureau of Indian Affairs (BIA). Notices were not sent to any tribe. Under the names of the maternal grandmother and maternal grandfather, the portion requesting information regarding tribe or band and location indicated "No information available." Under Mother's name, this information stated, "Bureau of Indian Affairs, No Tribe Specified, No Tribe Specified."
On July 11, 2019, CFS filed a signed declaration of due diligence with attached certified receipts and return receipts. The declaration indicated notice was complete to Mother, Father, and the Federal Office Building Bureau of Indian Affairs in Sacramento (BIA).
On September 18, 2019, CFS filed a final signed ICWA declaration of due diligence that stated a response had been received from the BIA indicating they were unable to determine tribal affiliation. The letter from the BIA was dated July 9, 2019, and concluded they were unable to assist because the notice contains insufficient information.
On September 18, 2019, the juvenile court signed an ICWA findings and orders concluding that notice had been conducted as required by ICWA and that ICWA did not apply.
The further contested jurisdictional/dispositional hearing was held on December 4, 2019. At that time, the juvenile court received the ICWA final due diligence and signed it. The court's minute order indicates the court found that ICWA may apply and that noticing requirements under ICWA had been initiated. The court found true the allegations in the second amended petitions and declared the children dependents of the court. Father was denied reunification services and visitation with the children. Mother was provided with reunification services and supervised visitation.
In light of the September 18, 2019 ICWA findings and orders, these findings appear to be in error.
On January 16, 2020, Father filed a timely notice of appeal.
III
DISCUSSION
Father contends that the juvenile court and CFS failed to comply with the inquiry and notice requirements of the ICWA. Father also asserts that CFS failed to give notice to the three federally recognized Cherokee tribes. CFS concedes the matter should be remanded because the record is not clear if the maternal grandmother or maternal aunt were interviewed, the notices were inadequate, and the notices were not sent to the Cherokee tribes.
"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 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 any unmarried person 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 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, 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 (A.M.) [absence of express finding does not diminish requirement of a current ICWA finding]; In re A.W. (2019) 38 Cal.App.5th 655, 664-665 [a non-Indian parent has standing to raise an ICWA violation on appeal].) Because Father is appealing from the December 2019 dispositional orders, 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]; A.M., at p. 321.)
We review the juvenile 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 CFS 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 (D.S.), California law imposes a duty of initial inquiry in every case, and a duty of further inquiry when there is reason to believe a child may be an Indian child under the ICWA.
CFS'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; D.S., supra, 46 Cal.App.5th at pp. 1048-1049; A.M., supra, 47 Cal.App.5th at p. 321-323.) As relevant here, further inquiry includes interviewing parents, grandparents, aunts, uncles, 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." (§ 224.3, subd. (a)(5)(C).) 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).)
Father contends the court and CFS did not comply with their duties under the ICWA because CFS did not attempt to interview the maternal grandmother or the maternal aunt and CFS did not document where the information in the ICWA-030 notices regarding the maternal great-grandparents originated. The maternal grandparents' statements that they had Cherokee Indian ancestry was sufficient to give CFS and the court "'reason to believe'" the children were Indian children, triggering the duty of further inquiry. (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 CFS 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"].) CFS 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. (D.S., at pp. 1052-1053; see Breanna S., supra, 8 Cal.App.5th at p. 652.) However, CFS "is not required to 'cast about' for information or pursue unproductive investigative leads. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.)" (D.S., at p. 1053.)
Although the record before us shows CFS interviewed the maternal grandfather, the record does not document that CFS interviewed the maternal grandmother or the maternal aunt who may have additional information about their Cherokee ancestry. (In re K.R. (2018) 20 Cal.App.5th 701, 708-710 (K.R.) [agency cannot rely on absence of documentation to argue that appellant's claim of ICWA error must fail on appeal].) The social services agency is obligated "to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status." (Id. at p. 709.) The juvenile court "has a responsibility to ascertain that the agency has conducted an adequate investigation and cannot simply sign off on the notices as legally adequate without doing so." (Ibid.) Because CFS failed to document the further inquiry efforts required under section 224.2, subdivision (e), there is insufficient evidence to support the court's determination that ICWA was inapplicable to the case. (See § 224.2, subd. (e); K.R., at p. 709 ["[O]nce there is sufficient information to believe that the children might be Indian children within the meaning of ICWA and the California statutes, 'responsibility for compliance' with those statutes 'falls squarely and affirmatively' on both the social services agency and the court."].)
Although failure to comply with ICWA notice requirements is generally prejudicial error, if a social services 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 CFS 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"]; 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 CFS, we are unable to, and therefore do not consider, whether the failure to send ICWA notices to the Cherokee tribes with adequate information was harmless error. (See In re N.G. (2018) 27 Cal.App.5th 474, 483 [deficiencies in ICWA notices may be harmless in some circumstances].) Instead, we conditionally reverse the court's dispositional orders and remand the matter for the juvenile court to direct CFS to document its efforts to identify and contact Mother's parents, siblings, and 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., at p. 656.) If the juvenile court finds the children are Indian children, the juvenile court must conduct a new dispositional hearing and any necessary further proceedings in compliance with the ICWA and California law. If not, the juvenile court shall reinstate the dispositional orders.
There is "reason to know" a child is an Indian child if "(1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child; [¶] (2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child; [¶] (3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child; [¶] (4) The court is informed that the domicile or residence of the child, the child's parent, or the child's Indian custodian is on a reservation or in an Alaska Native village; [¶] (5) The court is informed that the child is or has been a ward of a Tribal court; or [¶] (6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe." (25 C.F.R. § 23.107(c); accord, § 224.2, subd. (d).)
To the extent CFS's further inquiry reveals the names and other identifying information of Mother's relatives who were not identified in the prior ICWA notices sent, the juvenile court can determine whether notice to the BIA and the Cherokee tribes is required. (§ 224.3, subds. (a)(5)(C); 224.2, subd. (d); Elizabeth M., supra, 19 Cal.App.5th at p. 784 [Notice to a tribe is required, under federal and state law, when the court knows or has reason to know the child is an Indian child.]; see In re E.H. (2018) 26 Cal.App.5th 1058, 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."'"].)
IV
DISPOSITION
The December 4, 2019 dispositional orders are conditionally reversed. The matter is remanded to the juvenile court with directions that if CFS 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, notice must be sent in accordance with the ICWA, and if a tribe responds that the children are Indian children, then the dispositional orders shall be vacated, and further proceedings conducted under the ICWA. In all other respects, the juvenile court's orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. RAPHAEL
J.