Opinion
E079132
11-21-2022
In re R.S., et al., Persons Coming Under the Juvenile Court Law. v. S.S. et al., Defendants and Appellants. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant S.S. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant R.A. Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Nos. J283639, J289846, Erin K. Alexander, Judge. Affirmed in part and reversed in part.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant S.S.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant R.A.
Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAPHAEL J.
Sh.S. (mother) and R.A. (father) appeal from orders terminating parental rights over the minor children S.S. and R.S. They argue San Bernardino County Children and Family Services (department) did not conduct a sufficient inquiry into R.S.'s possible Indian ancestry under the Indian Child Welfare Act (ICWA). We conditionally reverse the termination of parental rights as to R.S., but otherwise affirm the juvenile court's orders.
R.A. is the father of R.S., but not S.S. S.S.'s alleged father is not a party in this appeal.
Mother does not claim any deficiency in the ICWA inquiry as to S.S.'s ancestry, or any other error as to the termination of her rights to S.S.
"Undesignated statutory references are to the Welfare and Institutions Code. In addition, because 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.).)
I. FACTS
Mother has three children between two fathers: R.S. (born 2017), T.I. (born 2019), and S.S. (born 2021). Tr.I. is T.I.'s presumed father and S.S.'s alleged father.
On December 23, 2019, the department received a referral alleging T.I. was physically abused. At the time R.S. was living with mother, Tr.I., and T.I. On December 27, 2019, the department removed R.S. and T.I. from mother. The department filed a section 300 petition as to R.S. on December 31, 2019.
The court and department then initiated an inquiry into whether R.S. was an Indian child. Father claimed he had Cherokee and/or Blackfeet Tribe ancestry. He told the court he was not enrolled as a member of any tribe but his great-greatgrandmother-paternal great-great-great-grandmother-was an enrolled member of a tribe. He subsequently told the court a paternal great-grandfather was Blackfeet and a paternal great-grandmother is Cherokee. In February 2020 the department spoke to paternal grandmother and paternal great-grandmother E.T. Paternal great-grandmother E.T. provided information for paternal grandfather. The department called and left a message with paternal grandfather but did not receive a response.
The record mistakenly refers to one of R.S.'s paternal great-grandmothers by two different first names, one beginning with E and another with Y. We will refer to her as E.T. where necessary.
Mother stated that she knew of no Indian ancestry. However, the maternal grandfather told the court he had Indian ancestry, possibly Blackfeet Tribe. The maternal grandmother and maternal great-grandmother G.H. also claimed maternal greatgrandmother G.H. was "part Cherokee."
On four occasions between February and September 2020 the department sent updated ICWA-030 (Judicial Council Forms, form ICWA-030 (ICWA-030)) notices to the Bureau of Indian Affairs (BIA), the Blackfeet Tribe, the Eastern Band of Cherokee Indians, the Cherokee Nation, and the United Keetowah Band of Cherokee. As of April 2021, the department had received responses from all four contacted tribes, and all said R.S. did not qualify for membership.
S.S. was born in early July 2021. Later that month the department filed a section 300 petition as to S.S. The petition triggered a new round of ICWA inquiries as to S.S. Initially, mother again denied Indian ancestry. However, in September 2021 mother told the department "she may have Cherokee ancestry but was not sure if she had any [Blackfeet]." The department spoke to maternal great-grandmother G.H. again, and she repeated she had Cherokee heritage. The department also contacted maternal greatgrandfather D.S., who believed his great-great-grandfather-maternal great-great-greatgreat-great-grandfather-belonged to a tribe.
On November 16, 2021, the department sent a fifth and final ICWA-030 regarding R.S. As of January 2022, both the Cherokee Nation of Oklahoma and Eastern Band of Cherokee Indians had responded to the ICWA-030 notice saying neither R.S. nor S.S. was enrolled in either tribe, and that the tribes would not intervene. The other tribes ultimately did not respond within 65 days, and in March 2022 the court reviewed the ICWA inquiry efforts and found ICWA did not apply to either R.S. or S.S.
In May 2022, the court held a 366.26 hearing for both R.S. and S.S. The court said it independently reviewed the ICWA inquiries for R.S. and found the ICWA-030's for the maternal side sufficient. However, the court identified a paternal aunt, R.S.'s relative placements, and paternal cousins as relatives who the department knew about but did not interview. The court also mistakenly said the department had not interviewed the paternal grandmother and a paternal great-grandmother. In fact, the department interviewed both paternal grandmother and paternal great-grandmother E.T. in February 2020. Paternal grandmother was at the hearing, and the court asked her about possible Indian ancestry. She said her grandmother-paternal great-greatgrandmother-had Cherokee heritage. She gave the court contact information for paternal great-grandmother E.T. and a paternal aunt. The court then continued the hearing to allow the department to contact paternal great-grandmother E.T., the identified paternal aunt, and the relatives that R.S. was then living with.
The department then spoke to multiple paternal relatives, most of whom said they either had no knowledge of any Indian ancestry or repeated their previous claims to Indian ancestry. The paternal relatives identified a paternal great-aunt the department had not previously contacted but were unable to provide her contact information. However, the department spoke to paternal grandfather for the first time. He informed them that his grandmother-paternal great-grandmother M.M.-had Cherokee ancestry from Oklahoma but was not registered with the tribe. He provided paternal greatgrandmother M.M.'s full name, which did not match the name used in any ICWA-030 notice.
In June 2022 the court held a further contested 366.26 hearing. It introduced the reports concerning the department's inquiry attempts for both R.S. and S.S. It noted "[t]here have been no affirmative responses," to the ICWA-030 notices, "and we have documentation of ongoing ICWA inquiry of all available relatives." It also noted that the department had recently obtained paternal great-aunt's contact information and that "we did try to reach [paternal great-aunt] this morning and left a message." There is no record of any other attempt to contact the paternal great-aunt. Nevertheless, the court found that, though there was reason to believe R.S. was an Indian child, "[t]here was ongoing efforts and informal noticing, no affirmative responses, no reason to know, and ICWA does not apply." It then terminated mother's parental rights over R.S. and S.S. and father's parental rights over R.S.
Mother and father each appealed the orders terminating parental rights.
II. ANALYSIS
Mother and father argue only that the court erred in concluding that the department conducted a sufficient inquiry into whether ICWA applied to R.S.
"[W]e review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court's order. [Citations.] 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 A.M. (2020) 47 Cal.App.5th 303, 314 (A.M.).)
ICWA requires that if a court knows or has reason to know an Indian child is involved in a dependency action, it must require the party seeking termination of parental rights to notify the tribe or Indian custodian about the proceedings and their right to intervene in those proceedings. (In re Isaiah W. (2016) 1 Cal.5th 1, 5.) "There are two separate ICWA requirements . . .: the obligation to give notice to a tribe, and the obligation to conduct further inquiry to determine whether notice is necessary." (A.M., supra, 47 Cal.App.5th at p. 315.) To determine whether such notice is necessary, California law imposes "an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child" on the court and the department. (§ 224.2, subd. (a); see Benjamin M., supra, 70 Cal.App.5th at pp. 741-742.)
The department always has an initial duty to inquire into whether a child is an Indian child. (In re J.S. (2021) 62 Cal.App.5th 678, 686 (J.S.); see § 224.2, subd. (b).) But the law requires further inquiry only" 'when "the court, social worker, or probation officer has reason to believe that an Indian child is involved [or, under Cal. Rules of Court, rule 5.481(a)(4), 'may be involved'] in a proceeding ...." '" (J.S., at p. 686.)
" 'When that ["reason to believe"] threshold is reached, the requisite "further inquiry" "includes: (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and State Department of Social Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that might have information regarding the child's membership or eligibility in a tribe." '" (Ibid.) Extended family members include adults who are the child's stepparents, grandparents, aunts, uncles, brothers, sisters, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
In short, "[i]f the initial inquiry gives the juvenile court or the agency 'reason to believe' that an Indian child is involved, then the juvenile court and the agency have a duty to conduct 'further inquiry' [citation], and if the court or the agency has 'reason to know' an Indian child is involved, ICWA notices must be sent to the relevant tribes." (Benjamin M., supra, 70 Cal.App.5th at p. 742.)
The parents argue the department's further inquiry, including contact with the potentially relevant tribes, was defective because the department: (1) failed to interview paternal great-grandmother E.T., (2) failed to interview the identified paternal great-aunt, and (3) provided the wrong last name for paternal great-grandmother M.M. in notices to the tribes.
A. Alleged Failure to Interview Paternal Great-Grandmother
The parents' first contention is not supported by the record, as the department interviewed paternal great-grandmother E.T. in February 2020. Though the department's report does not expressly state that the department asked her about potential Indian heritage, in context it is sufficiently clear that the social worker spoke to her about Indian ancestry. Paternal grandmother-who claimed she had Indian ancestry-was present when the department spoke to paternal great-grandmother E.T. The department asked E.T. for information about R.S.'s paternal relatives, and she provided a phone number for paternal grandfather. The juvenile court could reasonably infer that the department's inquiry about father's family history was for ICWA purposes, and that paternal greatgrandmother E.T. was asked about Indian ancestry and provided any information she had.
The department would have done better to make E.T.'s response about Indian ancestry express in the report. But even assuming the department somehow failed to obtain an express answer from paternal great-grandmother E.T. about her knowledge of her Indian ancestry, that error would not be prejudicial in this context. Although "readily obtainable," the information was not "likely to bear meaningfully upon whether the child is an Indian child" in light of other evidence that the department obtained. (Benjamin M., supra, 70 Cal.App.5th at pp. 742, 744.) E.T. provided information about other family members, and there is no reason to conclude that the information was incomplete. In the fifth and final ICWA-030 that the department sent to the tribes regarding R.S., the department provided the full names, birthdates, and places of birth for all the direct descendants between paternal great-grandmother and R.S., including paternal greatgrandmother E.T., as well as paternal great-grandfather. The tribes used this information to conclude R.S. was not an Indian child and they would not intervene. We therefore cannot conclude that paternal great-grandmother E.T. could provide any additional information which would bear meaningfully on whether R.S. is an Indian child.
B. Failure to Interview Paternal Great-Aunt
As to the parents' second contention, we agree that failure to contact the paternal great-aunt was error. Though great-aunts are not listed as extended family members for purposes of ICWA, the statutory list of people the department must contact to satisfy the duty of further inquiry is not exhaustive. Part of that duty involves "[i]nterviewing the parents, Indian custodian, and extended family members to gather the information" required for a formal ICWA notice, as specified under section 224.3, subdivision (a)(5). (§ 224.2, subd. (e)(2)(A).) Section 224.3, subdivision (a)(5), requires such notice include great-grandparents' names, addresses, birth dates, places of birth and death, and any tribal information. (§ 224.3, subd. (a)(5).) The duty of further inquiry also requires the department to contact "any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility," in a tribe. (§ 224.2, subd. (e)(2)(C).) Thus, to the extent certain family members have information which is required for formal notice or which would inform the underlying question about R.S.'s status as an Indian child, failing to question them may constitute prejudicial error even if they are not "extended family members" under ICWA.
Here, paternal grandfather told the department his mother and paternal greataunt's sister-paternal great-grandmother M.M.-had Cherokee ancestry. Despite this, the department did not obtain further information about paternal great-grandmother M.M. after learning about this claim. Moreover, because the department sent the final ICWA-030 before it contacted paternal grandfather, that notice did not have paternal greatgrandmother M.M.'s birthdate, current address, full last known address, phone number, suspected tribal affiliation, her correct last name (as discussed below) or even information regarding whether she is alive or dead. The paternal great-aunt might have some or all of this information, all of which the department is required to seek as part of its further inquiry and which would inform whether R.S. is an Indian child by way of paternal great-grandmother M.M.
This information was also readily obtainable, as the department had paternal greataunt's phone number and was able to call her and leave a message. While under some circumstances calling and leaving a message may satisfy the department's duty of inquiry, that was not the case here. Either the department or the court called paternal great-aunt just once, the same day as the final hearing on terminating parental rights. Paternal great-aunt's failure to answer one attempted call does not constitute sufficient reason to believe she was unreachable or that the information she had was not readily obtainable. Nor did the department or the court give her sufficient time to respond to the message before finding ICWA did not apply and terminating parental rights.
Accordingly, there is ample reason to believe that the information she has is readily available, and little reason to believe it is not.
Therefore, we conclude it was prejudicial error not to interview paternal great-aunt because she was a readily obtainable source for information likely to bear on whether R.S. is an Indian child.
C. Error in ICWA-030 Notices
Finally, related to the second contention, the department also failed to conduct a sufficient further inquiry because its ICWA-030 notices did not have paternal greatgrandmother M.M.'s correct last name. The department urges us to consider this harmless error because these notices were only informal notices designed to assist the department in its further inquiry, not the formal notices contemplated by federal ICWA law. As such, they argue, the contents of the informal notice are not statutorily defined and should not be held to the same standard as formal notices.
Whether formal or informal, however, a notice that does not provide correct information is hardly a notice at all. Without correct information about paternal greatgrandmother M.M., the noticed tribes had false information when they decided whether R.S. was an Indian child, and both the court and the department relied on these decisions in determining R.S. is not an Indian child.
We also note that, in addition to having incorrect information about greatgrandmother M.M., the notices contained little information about paternal grandfather's family generally. The notices included father and paternal grandfather's full names, birthdates, and birthplaces. However, they omitted any addresses associated with paternal grandfather or his parents, and paternal great-grandfather and paternal greatgrandmother M.M.'s birthdates. The record does not demonstrate that the department had this precise information, so the failure to include it was not alone error. But the paucity of information suggests that M.M.'s true name could have meaningfully aided the tribes in making an accurate determination as to Indian ancestry.
We further conclude that the department's failure to provide paternal greatgrandmother M.M.'s correct name once they knew her correct name was error that was not harmless. A new response from the tribes based on correct information was readily obtainable by serving a new ICWA-030. The tribe's responsive information about whether R.S. is an Indian child of course would bear meaningfully on whether R.S. is an Indian child.
Accordingly, we conditionally reverse the juvenile court's order terminating parental rights as to R.S. and remand to permit the department to complete its further inquiry, including making a diligent attempt to interview the paternal great-aunt and investigate the paternal grandfather's parents and potential Indian heritage. The department should then update its ICWA-030 to correct great-grandmother M.M.'s name and include any new information before providing informal notice to any relevant tribes.
III. DISPOSITION
The order terminating mother's and father's parental rights to R.S. is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry provisions of ICWA and of sections 224.2 and 224.3-and, if applicable, the notice provisions as well-consistent with this opinion. If, after completing the further inquiry, neither the department nor the court has reason to know that R.S. is an Indian child, the order terminating parental rights as to R.S. shall be reinstated. If the department has reason to know that R.S. is an Indian child, the court shall proceed accordingly. In all other respects, the judgment is affirmed.
We concur: MILLER, Acting P. J. SLOUGH, J.