Opinion
A157748
01-17-2020
In re K.K., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. P.K., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 5646DEP)
P.K. (Father) appeals from an order terminating his parental rights as to his son, K.K. His sole contention is that the Sonoma County Human Services Department (the Department) failed to investigate the Native American heritage of K.K.'s mother and provided deficient notice to the relevant tribes as required by the federal Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (the Act)) and related California law. We agree. We therefore conditionally reverse the order terminating parental rights and direct the juvenile court to ensure compliance with the Act's inquiry and notice requirements.
BACKGROUND
A.
The Act protects Native American children and promotes the stability and security of Native American tribes and families by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. § 1901 et seq.; In re Isaiah W. (2016) 1 Cal.5th 1, 7-8 (Isaiah W.).) When there is reason to believe a child in a dependency case is an "Indian child," the Act requires that the child's tribe be notified of the proceeding and its right to intervene. (25 U.S.C. § 1912(a); see also Welf. & Inst. Code, § 224.3, subd. (b).) An "Indian child" is an unmarried person under age eighteen who is either "a member of an Indian tribe" or is eligible for membership and is the biological child of a tribe member. (25 U.S.C. § 1903, subd. (4); see also In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1166 ("A child may qualify as an Indian child . . . even if neither of the child's parents is enrolled in the tribe.") The required notice facilitates a determination of whether the child is an Indian child and allows the tribe an opportunity to intervene. (Isaiah W., supra, 1 Cal.5th at p. 8.) When an Indian child is involved, the Act imposes certain procedural protections, including heightened evidentiary requirements before parental rights may be terminated or a foster care placement may be ordered. (25 U.S.C. § 1912, subds. (b) - (f).) Our legislature has codified and supplemented the Act's requirements in state law. (§§ 224.2, 224.3; Isaiah W., supra, 1 Cal.5th at p. 9.)
Undesignated statutory references are to the Welfare and Institutions Code unless otherwise noted.
B.
Shortly after K.K.'s birth, the Department filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300. The petition alleged K.K. was at risk of harm because his parents, Father and S.C. (Mother), had substance abuse problems and could not adequately protect and care for him.
Around this time, K.K.'s maternal grandfather (Grandfather) was in touch with the Department on at least two occasions regarding his interest in having K.K. placed with him and left his contact information. One of K.K.'s maternal uncles (Uncle) - Grandfather's son - was also in contact with the Department. The Department determined that Grandfather was not an acceptable placement option because of his criminal history.
Father does not claim Native American heritage. Because Mother reported she may have Cherokee heritage, the Department sent notices of the dependency proceeding to three Cherokee tribes. The notices indicated that Grandfather and his deceased parents (Great Grandmother and Great Grandfather) were Cherokee, and reported information about them such as their birthdates and addresses. However, the notices omitted other information concerning these relatives, such as their tribal membership or enrollment information, Great Grandmother's maiden name, and Grandfather's former address.
The Eastern Band of Cherokee Indians and Cherokee Nation each responded to the Department by letter indicating that "based on the information exactly as provided by you," K.K. was not considered an "Indian child" in relation to the tribe. Both letters stated that "[a]ny incorrect or omitted" family information "could invalidate this determination."
In a report filed with the juvenile court in October 2018, the Department asserted that the Act was held inapplicable in two prior dependency cases involving K.K.'s siblings.
In December 2018, after 60 days had passed from the time the Department sent the notices, the juvenile court concluded that the Act does not apply. The court reasoned that no tribe had found K.K. eligible for membership or no response was received. The court also sustained the petition, declared K.K. a dependent of the court, and concluded he should be removed from his parents' custody.
Ultimately, the court terminated Father and Mother's parental rights on May 14, 2019, and referred K.K. for adoption.
DISCUSSION
Father contends that the juvenile court's determination that the Act is inapplicable was erroneous because the Department failed to interview relevant family members to gather information required for the notices or failed to document any efforts to do so. He also asserts the court failed to ensure the Department conducted an adequate inquiry prior to deeming the Act inapplicable. Because we agree that the Department and court erred, we reverse.
Section 224.2, subdivision (a) of the Welfare and Institutions Code imposes on the court and the county welfare department "an affirmative and continuing duty to inquire whether a child" in a dependency proceeding "is or may be an Indian child." (§ 224.2, subd. (a); see also § 224.2 subds. (b), (e), (j); Isaiah W., supra, 1 Cal.5th at pp. 10-12.) When there is "reason to believe that an Indian child is involved," the court or social worker "shall make further inquiry regarding the possible Indian status of the child," including "[i]nterviewing the parents, Indian custodian, and extended family members to gather the information required in" section 224.3, subdivision (a)(5). (§ 224.2, subd. (e)(1); see also § 224.2, subd. (e)(3).) Section 224.3, subdivision (a)(5)(C) in turn mandates that the notice to a tribe include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, 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." Accordingly, the Department has an affirmative and continuing duty to interview all family members likely to have information about K.K.'s Native American ancestors. (See In re N.G. (2018) 27 Cal.App.5th 474, 482 (N.G.); In re K.R. (2018) 20 Cal.App.5th 701, 707 (K.R.); In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397 (A.G.) The juvenile court likewise "has a responsibility to ascertain that the agency has conducted an adequate investigation and cannot simply sign off on the notices . . . without doing so." (K.R., supra, 20 Cal.App.5th at p. 709.) We review independently whether, on the undisputed facts, the Act's requirements have been satisfied. (In re Michael V. (2016) 3 Cal.App.5th 225, 235 & fn. 5 (Michael V.).)
Here, the Department filed notices omitting information concerning K.K.'s Native American ancestors, and nothing in the record suggests that the Department interviewed anyone other than Mother to try to obtain the missing information. Indeed, although Grandfather - whose parents both reportedly had Cherokee heritage - was in contact with the Department at least twice, the Department apparently failed to ask him about his mother's maiden name or his own former address, information he presumably would have provided if asked. He might also have information about his parents' tribal membership or enrollment, but the Department marked these fields "No information available" on the notices. Uncle could also have relevant information and was in touch with the Department, but there is no indication that the Department interviewed him concerning his Cherokee family members. The Department's failure to fulfill its duty of inquiry, as well as the juvenile court's failure to ensure the Department satisfied that duty, was error. (See A.G., supra, 204 Cal.App.4th at p. 1397 [error where notices failed to provide information regarding extended family and agency's reports failed to indicate any efforts to investigate child's Indian heritage]; N.G., supra, 27 Cal.App.5th at pp. 481-482 [conditional remand where record did not indicate the agency asked grandfather or other relatives for information concerning Native American ancestors]; K.R., supra, 20 Cal.App.5th at p. 707 [similar]; Michael V., supra, 3 Cal.App.5th at pp. 235-236 [similar]).
The Department's position is troubling. It contends it substantially complied with the Act's notice requirements because it gave the tribes "sufficient information to determine whether [K.K.] was eligible for tribal membership and provided them the opportunity to" join the proceedings. Having failed to conduct a proper investigation, however, the Department has no idea if it omitted information that would have changed the tribes' position. And by failing to concede its obvious errors, the Department has delayed resolution of the issue, to the possible detriment of K.K.'s welfare.
Similarly, we reject the Department's argument that any deficiencies in the notices were harmless. Because both the investigation and the notices were deficient, "we simply cannot know whether" the Department "would have discovered information sufficient to enable any of the previously noticed tribes to determine" whether K.K. is an Indian child. (N.G., supra, 27 Cal.App.5th at p. 485). The affirmative duty to gather relevant information concerning Native American ancestors is critical to ensuring that the notice requirements are satisfied in a meaningful way; otherwise, very little of the required information would ever be "known." (§ 224.3, subd. (a)(5)(C); see, e.g., In re Francisco W. (2006) 139 Cal.App.4th 695, 703 ["It is essential to provide the Indian tribe with all available information about the child's ancestors, especially the one with the alleged Indian heritage."]; In re Breanna S. (2017) 8 Cal.App.5th 636, 654 (Breanna S.) [rejecting argument that deficiencies in notice and investigation were harmless because "[w]e cannot say with any degree of confidence that additional information" concerning Native American ancestors would not have affected the tribe's determination].)
The Department asserts that the error should be deemed harmless because Father failed to raise this issue in juvenile court and does not affirmatively represent that further inquiry would have turned up more information. But a parent's failure to object in trial court is irrelevant, as both the Department and the court have an affirmative duty to inquire as to Indian child status independent of the parent. (See K.R., supra, 20 Cal.App.5th at p. 706; see also Isaiah W., supra, 1 Cal.5th at pp. 10, 14-15.) Nor is there any requirement that Father make an affirmative representation on appeal that further inquiry into K.K.'s heritage would be fruitful given that Mother already asserted her Cherokee heritage in the trial court. (See A.G., supra, 204 Cal.App.4th at p. 1401 [rejecting such an argument as "meritless" where agency's duty was clearly triggered because one parent asserted Native American heritage in juvenile court].)
The Department also contends that any error was not prejudicial because two of the three noticed tribes responded that K.K. is not an Indian child and their determination is conclusive. But, once again, the two tribes made their determinations based on incomplete information. (See Breanna S., supra, 8 Cal.App.5th at p. 654.) Moreover, they did not determine whether K.K. is an Indian child with respect to the third tribe.
Finally, the Department argues that because K.K.'s siblings were found not to be Indian children in their dependency proceedings, there can be no prejudice here. (Compare In re Z.N. (2009) 181 Cal.App.4th 282, 298-302 [taking judicial notice of documents from siblings' cases to conclude that notice failure was harmless where minor's siblings were determined not to be Indian children and parent did not argue notices in their cases were deficient], with In re Jonathan D. (2001) 92 Cal.App.4th 105, 111 [explaining that previous determination that siblings were not Indian children is "not dispositive" in minor's case because such determination is made on an individual basis, and concluding notice failure was prejudicial].) However, neither the judgments nor the notices from K.K.'s siblings' cases are part of the record, and the Department has not requested that we take judicial notice of any such documents. Absent such information, we cannot assess the Department's assertion that there is no reason the outcome for K.K. would be different from his siblings' cases. (Cf. A.G., supra, 204 Cal.App.4th at p. 1400 [judgment regarding Indian child status is not res judicata in sibling's case where inadequate notice occurred in either litigation].)
DISPOSITION
The order terminating parental rights is conditionally reversed. The juvenile court is directed to order the Department to investigate K.K.'s potential Native American heritage, obtain complete and accurate information about K.K.'s Cherokee relatives, and provide corrected notices to the relevant tribes. If a tribe intervenes after receiving proper notice, the court shall proceed in accordance with the Act. If no tribes intervene after receiving proper notice, the order terminating parental rights shall be reinstated.
/s/_________
BURNS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.