Opinion
F084964
03-16-2023
In re A.H., a Person Coming Under the Juvenile Court Law. v. ANGELA R., Defendant and Appellant. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent,
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County, No. JVDP-21-000142 Annette Rees, Judge.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Angela R. (mother) appeals from the juvenile court's order terminating her parental rights to her now two-year-old daughter, A.H., pursuant to Welfare and Institutions Code section 366.26. The sole issue on appeal is whether the Stanislaus County Community Services Agency (agency) and the juvenile court failed to conduct an adequate inquiry into A.H.'s potential Indian ancestry, as required by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). The agency concedes that its investigation under ICWA was deficient as to mother and stipulates to an immediate limited reversal and remand to the juvenile court for ICWA compliance. We accept the agency's concession and reverse.
Statutory references are to the Welfare and Institutions Code.
"[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.).)
FACTUAL AND PROCEDURAL BACKGROUND
On July 21, 2021, the agency received an emergency referral, which alleged that mother posted a photo on social media of her bruised face. She allegedly told the reporting party that Angel H., her boyfriend, hit her and took their child, then 10-month-old A.H., with him. Both parents were homeless.
Mother admitted there was ongoing domestic violence between her and Angel (father). He previously broke her nose and more recently, gave her a black eye. On July 24, 2021, the agency took A.H. into protective custody.
On July 27, 2021, the agency filed a dependency petition, alleging under section 300, subdivision (a) (serious physical harm) that A.H. had a cigarette burn on her chest when taken into protective custody, under subdivision (b)(1) (failure to protect) that the parents engaged in domestic violence and struggled with substance abuse and homelessness and under subdivision (g) (no provision for support) that father's whereabouts were unknown. He was listed as A.H.'s alleged father.
On July 28, 2021, the parents completed and signed a "PARENTAL NOTIFICATION OF INDIAN STATUS" (ICWA-020) form. Mother indicated she did not have any Indian ancestry. Father stated A.H. was or may be a member of or eligible for membership in the Apache tribe. That same day, the parents appeared at the detention hearing and were appointed counsel. The juvenile court confirmed the parents' responses on the ICWA-020 and directed the agency to conduct further inquiry in regard to ICWA. The court struck the section 300, subdivision (g) allegation, found father to be A.H.'s presumed father, ordered A.H. detained and set a date in September 2021 for the jurisdiction and disposition hearing. The agency placed A.H. in foster care.
The agency identified maternal and paternal relatives through the Youth Connections database for possible placement, which yielded addresses for 10 maternal and 20 paternal relatives. On July 30, 2021, an agency social worker sent letters to those relatives.
According to the social workers' service logs, one of the social workers spoke to the maternal grandmother and a maternal aunt regarding placement on July 23, 2021. The service logs also record that on August 26, 2021, a social worker spoke to a maternal aunt regarding placement. Since the service log does not identify the "aunt" by name, there is no way of knowing whether the aunt who telephoned on July 23 is the same aunt who spoke to the social worker on August 26. In any event, there is no indication that the social worker inquired about A.H.'s Indian status while speaking to any of these maternal relatives.
During the month of August 2021, various relatives submitted "Relative Information" (JV-285) forms requesting placement or contact with A.H. Among those relatives were the maternal grandmother, a maternal great-grandmother, a maternal great-grandfather and multiple maternal aunts. Paternal relatives also submitted ICWA-285 forms requesting visitation, while other paternal relatives were in direct contact with the agency by telephone.
On September 1, 2021, the agency filed a "NOTICE OF CHILD CUSTODY PROCEEDING FOR INDIAN CHILD" (ICWA-030) form, which it sent to eight Apache tribes and the Bureau of Indian Affairs (BIA). Regarding mother, the agency provided the name and address of the maternal grandmother and grandfather and the name, year of birth and country of birth of a maternal great-grandmother and maternal great-grandfather.
On October 5, 2021, the juvenile court convened the jurisdiction and disposition hearing. By that time, five of the Apache tribes had notified the agency that A.H. was not an Indian child. The court confirmed the BIA and the tribes received notice of the proceedings and found ICWA may apply. The court adjudged A.H. a dependent child as alleged in the petition, ordered her removed from parental custody, ordered reunification services for the parents and set a six-month review hearing for March 29, 2022.
In mid-October 2021, the agency received letters from two Apache tribes that A.H. was not an Indian child. The BIA office in Sacramento responded on December 7, 2021, acknowledging the child custody proceedings and the agency's request for assistance in identifying A.H.'s possible tribal affiliation. It also acknowledged that the agency notified the Apache tribes based on its inquiry with the family and directed the agency to follow up with the tribes if they did not respond. On February 8, 2022, the agency received a letter from the eighth Apache tribe stating A.H. was not an Indian child.
On October 21, 2021, A.H. was placed with a paternal relative.
On February 24, 2022, the agency submitted a motion asking the juvenile court to find ICWA did not apply. The motion was approved on February 25, 2022.
In its report for the six-month review hearing, the agency recommended the juvenile court terminate reunification services and consider a permanent plan of adoption for A.H. with her paternal relative. With regard to ICWA, the agency reported simply that the court found ICWA did not apply on February 25, 2022.
On March 29, 2022, the juvenile court convened a six-month review hearing, found ICWA did not apply and set the matter for a contested hearing on May 3, 2022. On May 3, the court again found ICWA did not apply, terminated reunification services and set a section 366.26 hearing for August 23, 2022.
Mother appeared at the section 366.26 hearing on August 23, 2022. The juvenile court found ICWA did not apply and terminated parental rights.
DISCUSSION
Mother contends there were various extended family members the agency could have interviewed regarding her Indian ancestry but either did not inquire or inquired and did not document it. Therefore, she argues, the agency failed to fulfill its duty of initial inquiry under ICWA and the juvenile court erred in finding ICWA did not apply. We concur.
A. ICWA Inquiry Duties, Generally
Congress enacted ICWA to address concerns regarding the separation of Indian children from their tribes through adoption of foster care placement with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Under California law adopted pursuant to ICWA, the juvenile court and the agency have an "affirmative and continuing duty to inquire" whether a child "is or may be an Indian child." (§ 224.2, subd. (a).) An" 'Indian child'" is defined in the same manner as under federal law, i.e., as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 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); accord, § 224.1, subd. (a) [adopting the federal definition].)
"Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case. These requirements are sometimes collectively referred to as the duty of initial inquiry." (Benjamin M., supra, 70 Cal.App.5th at p. 741.)
Federal regulations implementing ICWA require courts to ask participants in a dependency case whether they know or have reason to know the child is an Indian child and to instruct the parties to inform the court" 'if they subsequently receive information that provides reason to know the child is an Indian child.'" (BenjaminM., supra, 70 Cal.App.5th at p. 741.)
California law, however, "more broadly imposes on [the agency] and [the] juvenile court[] (but not parents) an 'affirmative and continuing duty to inquire' whether a child in the dependency proceeding 'is or may be an Indian child.'" (BenjaminM., supra, 70 Cal.App.5th at pp. 741-742, quoting § 224.2, subd. (a).) That duty to inquire "begins with [the] initial contact . . . and obligates the juvenile court and [the agency] to ask all relevant involved individuals whether the child may be an Indian child." (In re T.G. (2020) 58 Cal.App.5th 275, 290, citing § 224.2, subds. (a)-(c).)
Under the statute, when the agency takes a child into its temporary custody, its duty of initial inquiry "includes, but is not limited to, 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).) ICWA defines" 'extended family member'" by "the law or custom of the Indian child's tribe" or, absent such law or custom, as "a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2); § 224.1, subd. (c) [extended family member "defined as provided in [§] 1903" of ICWA.)
The juvenile court, in turn, at a party's first appearance, must ask "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)) and require each party to complete an ICWA-020 form (Cal. Rules of Court, rule 5.481(a)(2)(C)). "The parties are instructed 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) (2020); § 224.2, subd. (c).)" (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
All further rule references are to the California Rules of Court.
If that initial inquiry gives the juvenile court or agency a "reason to believe that an Indian child is involved," then their duty to "make further inquiry regarding the possible Indian status of the child" is triggered. (§ 224.2, subd. (e).) If that further inquiry results in a reason to know the child is an Indian child, then the formal requirements of section 224.3 apply. (§§ 224.2, subd. (f) &224.3, subd. (a)(5).)
Additionally, the agency is required by the rules to document its inquiries. Rule 5.481(a)(5) provides, "The petitioner must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status, as well as evidence of how and when this information was provided to the relevant tribes. Whenever new information is received, that information must be expeditiously provided to the tribes."
The juvenile court may find ICWA does not apply to a child's proceeding if it finds the agency's duty of inquiry has been satisfied and there is no reason to know that the child is an Indian child. (§ 224.2, subd. (i)(2); rule 5.481(b)(3)(A).) The juvenile court's finding that ICWA does not apply thus"' "implies that . . . social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry." [Citations.]'" (In re Josiah T. (2021) 71 Cal.App.5th 388, 401.)
Social workers have no duty under federal law to ask extended family members about possible tribal membership. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The error, if any, is an error of state law. (Ibid.)
B. Standard of Review
We review a juvenile court's ICWA findings under a hybrid substantial evidence/abuse of discretion standard, reviewing for substantial evidence whether there is reason to know a child is an Indian child, and for abuse of discretion a juvenile court's finding that an agency exercised due diligence and conducted a "proper and adequate" ICWA inquiry. (In re K.H. (2022) 84 Cal.App.5th 566, 601 (K.H.).)
Where, as here, the issue on appeal concerns the agency's due diligence in conducting an adequate inquiry under ICWA, we review the juvenile court's factual findings for substantial evidence and its ultimate determination whether ICWA applies under the abuse of discretion standard.
C. The Agency and the Juvenile Court's Inquiry
Pursuant to its duty under section 224.2, the juvenile court had mother complete an ICWA-020 form for the purpose of determining whether she had any Indian heritage. She indicated that she did not. Nevertheless, the agency obtained information about maternal relatives through the Youth Connections database and sent "connection" letters to those relatives that its search produced. Since there are no actual "connection" letters included in the appellate record, we have no way of knowing what they specifically conveyed to these relatives. Information gleaned from the printout was used to provide as much information as the agency could obtain for purposes of completing the ICWA-030 form as to the child's maternal family. Regarding mother, the agency provided the name and address of the maternal grandmother and grandfather and the name, year of birth and country of birth of a maternal great-grandmother and maternal great-grandfather. Since mother did not identify any specific tribe, the agency indicated that tribal membership as to each maternal relative was unknown. Based on that information, as well as the information regarding father, the Apache tribes determined the child was not an Indian child.
Mother nevertheless argues the agency had contact with extended maternal relatives regarding placement, specifically the grandmother, great-grandparents and aunts whom it could have queried about A.H.'s possible Indian ancestry but failed to do so. The record bears this out. To fulfill its initial inquiry obligations, the agency was required to ask those relatives who qualify as extended family members about A.H.'s potential Indian ancestry. Although the great-grandparents do not fall within the definition of "extended family member," the maternal grandmother and aunts do. Nevertheless, there is no evidence in the record these extended family members were queried as to A.H.'s Indian ancestry. Consequently, substantial evidence does not support a finding the agency conducted an adequate inquiry under ICWA. Therefore, the juvenile court abused its discretion in finding ICWA did not apply.
D. Prejudice
We further conclude that the inquiry error was prejudicial. Therefore, we conditionally reverse the juvenile court's order and remand the matter for the limited purpose of compliance with ICWA.
Because the failure in this case concerned the agency's duty of initial inquiry, only state law is involved. Therefore, we may not reverse unless the error was prejudicial under state law. (Cal. Const., art. VI, § 13 ['No judgment shall be set aside ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice'].)" (Benjamin M., supra, 70 Cal.App.5th at p. 742.)
Here, the miscarriage of justice lies in the agency's failure to satisfy its inquiry duties under ICWA. As we explained in K.H., "the relevant rights under ICWA belong to Indian tribes and they have a statutory right to receive notice where an Indian child may be involved so that they may make that determination. It necessarily follows that the prejudice to those rights lies in the failure to gather and record the very information the juvenile court needs to ensure accuracy in determining whether further inquiry or notice is required, and whether ICWA does or does not apply." (In re K.H., supra, 84 Cal.App.5th at p. 591.)
The extent of the agency's inquiry as to mother was confined to asking her if she had any Indian ancestry and recording her negative response. However, in the process of attempting to locate relatives for placement, the agency identified several maternal relatives who fall within ICWA's definition of an extended relative. The record is silent, however, as to what efforts if any were made to contact those relatives in an effort to comply with ICWA. "Where a record is silent or nearly silent with respect to an ICWA inquiry at the first step, a finding of harmlessness necessarily rests on speculation" and "is at odds with the statutory protections that ICWA and California law intend to afford Indian children and Indian tribes." (K.H., supra, 84 Cal.App.5th at p. 611.) Therefore, the error in this case is prejudicial.
Although we conclude prejudicial error occurred in this case, we stress that it is not because an inadequate inquiry renders the juvenile court's ICWA finding reversible per se. Rather, it is because the record is "so undeveloped that the inadequacy of the inquiry is readily apparent and there simply is no basis on which to find substantial evidence would support a contrary conclusion. Consequently, there also is no basis on which the court could exercise discretion to approve the patently inadequate inquiry and record. Under these circumstances, it is perhaps fair to say that the error and need for reversal are 'clear.'" (K.H., supra, 84 Cal.App.5th at p. 618.)
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the agency to comply with the inquiry and documentation provisions set forth in section 224.2, subdivision (b) and rule 5.481(a)(5). If, after determining that an adequate inquiry was made consistent with the reasoning in this opinion, the court finds that ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, its ICWA finding shall be reinstated. In all other respects, the court's order terminating parental rights is affirmed.
[*]Before Levy, Acting P. J., Detjen, J. and Meehan, J.