Opinion
F082231
09-20-2021
In re ALEXANDER S., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. STACY S., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Sophia Ahmad, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County No. JVDP-19-000191, Ann Q. Ameral, Judge.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Boze, County Counsel, and Sophia Ahmad, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DE SANTOS, J.
The juvenile court found then 14-year-old Alexander S. came within its jurisdiction under Welfare and Institutions Code section 300, subdivision (b)(1) and ordered him removed from the physical custody of his parents (§ 361, subd. (c)). Stacy S. (mother) appeals from the juvenile court's dispositional order, contending the evidence was insufficient to support (1) the factual findings underlying the juvenile court's removal order and (2) the juvenile court's finding the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply. We remand for proceedings to ensure ICWA compliance and otherwise affirm the juvenile court's dispositional findings and orders.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2019, the Stanislaus County Community Services Agency (agency) received a referral alleging mother had recently taken 13-year-old Alexander to the doctor for seizures and it was suspected mother was “drugging” Alexander as he always appeared “ ‘out of it.' ” The reporting party alleged Alexander had autism and other medical conditions for which mother gave him medication and THC. It was further reported mother worked as a nurse's aide and was fired from the hospital where she worked for altering Alexander's medical records.
Father did not reside with mother and Alexander at the time of the referral. He was represented by counsel during the proceedings, but his participation was limited. He is not a party to this appeal, and we omit facts related to him as they are not relevant to the issues on appeal.
When the agency obtained Alexander's medical records, it was discovered Alexander had undergone numerous medical tests throughout his life, but most of them yielded normal results. The medical records demonstrated mother had started and stopped medication without a doctor's order, and it appeared Alexander's diagnoses were based on mother's reports of symptoms rather than observations made by medical personnel.
Mother reported to the investigating social worker that Alexander had various medical conditions, including autism, epilepsy, an “abnormal chromosome, ” an enlarged heart, “absent” and other types of seizures, a hole in his lung that healed on its own, and brain lesions that would soon require surgery. Mother stated she gave Alexander multiple medications, including CBD oil; THC, as prescribed by his neurologist; Zoloft for depression; Trizone; Lamictal; Vipat; and Antuine. Mother showed the investigating social worker a video she purported showed Alexander having a seizure, but the social worker did not observe any of the symptoms mother described. Mother denied altering Alexander's medical records and asserted she was fired for only looking at Alexander's lab work, not altering it.
When the social worker asked to speak with Alexander privately, mother left the room and came back a minute later with Alexander, standing behind him with her arms around him. Alexander told the social worker, “I don't want to talk to you!” while mother continued to stand behind him kissing his cheek. The social worker asked Alexander if he was comfortable having mother present while they spoke, and Alexander looked at mother before shouting, “I am safe!”
About a week later, a social services assistant interviewed Alexander at his school, and Alexander reported his seizures scared him and made him sad. He denied mother “t[old] him to be sick.” Alexander reported feeling “good and awake during the day” and said he was not afraid of mother. Alexander stated mother told him his teacher called the agency. Alexander then told the assistant he did not want to talk anymore because he was uncomfortable and mother told him not to speak to anyone about the situation.
During the agency's investigation, various family friends and individuals who had cared for Alexander reported they had never witnessed Alexander having a seizure. It was reported mother “ ‘over shar[ed]' ” about Alexander's medical conditions and posted about them frequently on Facebook. It was further reported mother took Alexander to various doctors and hospitals because Alexander's tests come back normal. Alexander's teacher noted Alexander frequently “ ‘passe[d] out' ” during school for periods of one to four hours.
In July 2019, the social worker and a public health nurse spoke with mother about the concerns that Alexander's diagnoses were based solely on mother's reports of Alexander's symptoms. Mother reported that Dr. Appu could confirm Alexander's symptoms and tried to get a hold of him via telephone without success. Mother stated medical reports from a hospital in Bakersfield would indicate medical personnel had witnessed Alexander having a seizure. The social worker and nurse explained to mother they possessed the Bakersfield records as well as several other records where Alexander had had normal test results. Mother called a friend who spoke to the social worker via telephone and told her she had witnessed Alexander having a seizure, which she described as having tremors and going into a semi-comatose state with his eyelids fluttering. Mother reported she had taken Alexander off of all his medications since she had last spoken with the agency except his seizure medication at the advice of Dr. Lee. Mother further reported Alexander had not had a seizure in over a year but four months prior, he had had a “[six] hour seizure.” Mother also reported Alexander had been vomiting every day for a month and had lost 20 pounds in two weeks.
Dr. Appu, who had been Alexander's neurologist since January 2019, reported to the agency Alexander had “Autism Spectrum Disorder, ” intellectual disabilities, and “genetic issues.” Dr. Appu stated he had “not really” personally witnessed any of Alexander's symptoms. He reported Alexander had had an abnormal EEG in the past, but no seizure activity was recorded, and his most recent MRI showed no abnormalities or brain lesions. Dr. Appu explained Alexander is in the room when they discuss his symptoms but mother “does all the talking.”
Another doctor, Ali Mostajelean, opined Alexander might have epilepsy as he had a gene deletion as well as a past abnormal EEG, but Dr. Mostajelean stated no conclusive tests confirmed Alexander had seizures. He described the one to two second “staring spells” mother described Alexander as having did “ ‘not make much sense to him.' ” Dr. Mostajelean reported he had advised no medication adjustments and offers no guidance on the administration of CBD oil.
Dr. Heather Lee, Alexander's pediatrician since April 2019, denied stopping Alexander's medications contrary to mother's claim. Dr. Lee noted mother seemed to “doctor shop” and this put Dr. Lee's “alerts … up a little bit.”
Alexander underwent a video EEG in August 2019, and the results were “completely normal.” Dr. James Crawford-Jakubiak reported there were no episodes of altered mental status, staring, or vomiting and no demonstration of any psychotic behavior. He consulted with Dr. Mostajelean who had concerns that the issues were due to “medical child abuse, rather than an actual disease.” The agency received a second referral from a mandated reporting party based on the doctors' concerns.
On August 8, 2019, Alexander was taken into protective custody because of concerns mother may have “Factitious Disorder Imposed on Another, ” causing Alexander to be on medication without a clear diagnosis, and it was unclear what medical conditions Alexander had and what treatments were necessary. Alexander was placed in a group home and was to be titrated off the seizure medication.
Factitious Disorder Imposed on Another was previously known as Munchausen by Proxy Disorder.
Mother was provided with referrals for a clinical assessment, individual counseling, and parenting services and was given information for a substance use disorders walk-in clinic.
On August 12, 2019, the agency filed a petition alleging Alexander came within the juvenile court's jurisdiction under section 300, subdivision (b)(1) because he had suffered or was at substantial risk of suffering serious physical harm or illness due to the parents' acts. The petition contained several supporting facts, including the original referral that mother may be “drugging” Alexander (count b-1); that Drs. Mostajelean and Crawford-Jakubiak expressed concerns mother may have factitious disorder (counts b-2 & b-6); that mother had reported Alexander having several medical conditions, but most of his multiple tests yielded normal results (count b-3); that several collateral contacts, including family friends, school personnel, and medical professionals reported they had never seen Alexander exhibit seizure activity or vomiting and that mother exaggerated Alexander's symptoms (count b-4); that family friends had reported that mother was “drugging” Alexander and school personnel had reported Alexander “pass[ing] out” in the classroom frequently (count b-5); and that mother has failed to provide appropriate medical management for Alexander (count b-7). The petition further alleged mother may be coaching Alexander in his interactions with the agency (count b-8) and may have substance abuse issues (count b-9). Finally, it was alleged father harmed or put Alexander at risk of harm by leaving him in the care of mother (count b-10).
At the evidence portion of the jurisdictional hearing, which occurred over March 5 and 10, 2020, Alexander's group home social worker testified that when Alexander first began living at the group home, he was on five or six medications, was having vomiting episodes, and displayed lethargy during the daytime hours. He had never witnessed Alexander have a seizure. When Alexander was taken off his medications, the vomiting and lethargy appeared to decrease. At the time of the hearing, Alexander was only taking over the counter medication for heartburn/nausea and allergies. According to the group home social worker, Alexander was “blossoming, ” which he further explained as giving better eye contact and being more attentive. The director further observed “there's a lightness about him.” When Alexander was first placed in the home, he did not respond well to consequences for behavior issues, but had since accepted them, and the group home had not had any disciplinary issues with Alexander. Though Alexander had some intellectual deficits, he was otherwise a normal, healthy 13-year-old boy.
Alexander's teacher testified at the hearing and explained that Alexander used to fall asleep in class and was unable to participate because he could not be woken up. Alexander had had some vomiting episodes in the past, but the last one was in December 2019. Alexander's teacher described him as doing “pretty well actually, ” elaborating that many of his aggressive behaviors had decreased, he had stopped falling asleep in class, and that he appeared happy. The teacher noted one of his staff members had brought up to him that Alexander had been “doing so awesome lately.”
Alexander's agency social worker testified that in observing Alexander after being detained from mother's care it was “amazing watching [Alexander] develop into a normal 13-year-old boy.” Alexander reported to her he felt better without medication and had felt “good” since September 2019.
Alexander's respite care provider testified on behalf of mother and stated she had witnessed Alexander experience seizure activity, which she described as gagging and being unresponsive. She had also witnessed Alexander being incoherent, nonresponsive, and involuntarily vomiting while nonresponsive within the last three to four years. The care provider never called 911 while Alexander was in her care exhibiting these types of symptoms because “[h]e had a pulse.”
Another of Alexander's care providers testified on behalf of mother that she had watched Alexander at night four days per week. She had seen him be nonresponsive at times and experience episodes of vomiting.
Due to several continuances for various reasons, including the COVID-19 pandemic and judge unavailability, the juvenile court did not make its jurisdictional findings until November 17, 2020. The court amended some phrasing in the petition, and found it true as amended. The court found by a preponderance of the evidence that Alexander was described by section 300, subdivision (b)(1). The court stated it “really [was] convinced” mother had “been engaged in attempting to obtain medications and treatments that were not indicated or required for [Alexander] based upon her representation of symptoms that have only been seen by her.” The court noted Alexander appeared to have autism and other medical conditions, “but it appears that [] mother has greatly exaggerated [Alexander's] conditions, ” further noting “[t]here are extensive medical records for [Alexander] documenting where mother had stopped and given medication to [Alexander] without the doctor's orders.” The court went on to say it did not doubt mother loves Alexander but that “doctors rely on reports from parents, and in this particular case, it just seems odd that [] mother would make all these reports, … yet when [Alexander] is detained and perfect strangers are taking him to medical appointments, that lo and behold, most of the symptoms that he has been exhibiting all go away. He is, by all intents and purposes, a completely different child.” The matter was set for a separate disposition hearing.
The agency's addendum disposition report dated December 2, 2020, indicated mother had been participating in all voluntary services to which she had been referred; she had completed 10 parenting group sessions, 10 individual parenting sessions, and one parent/child lab before COVID-19 restrictions were put into place. Mother was attending individual counseling sessions every other week. Mother had completed a substance use disorder assessment, and no recommendation for services was given. Mother visited with Alexander regularly.
In July 2020, the social worker and mother discussed her progress in her individual counseling. Mother reported she and her counselor discussed “what CPS [was] accusing me of” and that she told her counselor, regarding the allegations, “that's [the agency's] opinion not mine.” Mother stated that when her counselor asked her what she could do better or differently if Alexander was placed back in her care, she responded by saying “nothing. I wouldn't change anything because I didn't do nothing.” She contended the allegations of her making Alexander sick were not true and that she had just followed what the doctor said. She reported telling Alexander's doctor she wanted him off his seizure medication because she thought he was allergic and that “if the doctors did it while he was in my care, I'm sure he would have gotten better in my care.”
In November 2020, the social worker discussed mother's counseling with her again. Mother reported she and her counselor were discussing why the agency thought mother “made [Alexander] sick.” Mother reported telling her counselor she did not know why the agency thought the allegations were true and that if the doctors had put Alexander on the treatment plan while he was in her care, he would have gotten better with her. Mother reported to the social worker that she still would do “nothing” differently if Alexander were placed in her care. Mother again stated she had previously asked Alexander to be taken off his seizure medication. The social worker did not find any evidence of mother requesting Alexander be taken off the seizure medication in the medical records.
The agency's addendum disposition report indicated that Alexander had been moved to a VMRC vendor home. Since being detained, Alexander's reported symptoms of lethargy, seizures, and vomiting had “disappeared.” Alexander had had no reported seizures or any other major medical issues. He had been taken off all prescription and psychotropic medications with no adverse reactions and had been discharged from the care of his neurologist.
The agency opined that though mother was participating in services, she “ha[d] yet to show progress in the main concerns that led to Alexander's removal, ” citing mother's assertions she had played “no detrimental role in Alexander's medical history” and failed to “take responsibility for Alexander's exposure to his lifelong unnecessary medical tests, medications, and hospital stays.” The agency did not believe Alexander was safe in mother's home because mother “ha[d] not shown a willingness to understand and work to alleviate the concerns that led to Alexander's removal.”
At the disposition hearing held on December 18, 2020, the parties did not present additional evidence beyond the agency's reports. Counsel for the agency and for Alexander argued he should be removed from mother's custody. Mother's counsel argued that mother and Alexander should have a “trial visit” at mother's home, with the agency monitoring Alexander's conditions.
The court found, based on clear and convincing evidence, that “there is or would be a substantial risk of detriment” to Alexander if he were returned to either parent's care and there were “no reasonable means” by which he could be protected without removal and ordered Alexander removed from his parents' custody. The court noted mother was participating in services and was making good progress but, nonetheless, the court was concerned that mother continued to “be in denial as to her responsibility for the medical and severe medical neglect of Alexander.” The court explained, “if you are in denial, you can't even begin to accept any changes.” The court went on to say that mother “also refuses to accept any responsibility for the overmedication which resulted in medical abuse. She hasn't shown any kind of understanding of the impacts that this abuse has had, and I would believe that this abuse has far-reaching consequences and has greatly impaired the quality of Alexander's life thus far.” The court further noted Alexander had made “remarkable changes” since being detained from mother. The court denied the request for a trial visit, stating it would be “premature, ” “given the Court's recent findings and [mother's] lack of progress.” The court ordered mother be provided with reunification services, including a psychological evaluation, individual counseling, parenting education, and substance abuse testing.
DISCUSSION
I. Sufficiency of the Evidence Supporting the Dispositional Order
Mother argues the juvenile court's removal findings and orders are supported by insufficient evidence. We disagree.
A dependent child shall not be taken from the physical custody of his or her parents unless the juvenile court finds clear and convincing evidence that, as relevant here: (1) “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home”; and (2) “there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's … physical custody.” (§ 361, subd. (c)(1).)
We review sufficiency of the evidence challenges to the juvenile court's dispositional findings for substantial evidence, while accounting for the clear and convincing standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) The question before us is “whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.” (Ibid.) We “view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Id. at pp. 1011‒1012.)
We conclude, bearing in mind the clear and convincing evidence standard, the juvenile court's finding that Alexander's health and well-being was in substantial danger if he were to remain in mother's care was supported by substantial evidence. When determining whether a child will be in substantial danger if permitted to remain in the parent's physical custody, the juvenile court must consider “not only the parent's past conduct, but also current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention.” (In re I.R. (2021) 61 Cal.App.5th 510, 520.)
Here, the most concerning jurisdictional findings (which mother does not challenge on appeal) were that mother mismanaged Alexander's health and medical treatment. As a result of mother's actions, Alexander underwent several doctor's visits and medical tests throughout his life and was taking several what appeared to be unnecessary medications, causing him to frequently appear “out of it” and have other physical symptoms. He was unable to meaningfully participate in his education and other activities. Detention from mother confirmed the harm he had suffered in her care as it resulted in, by all accounts, a marked improvement in Alexander's physical and emotional health and behavior, and he was thriving in out-of-home placement. Though mother had participated in services, she unequivocally maintained she would do “nothing” differently with regard to Alexander's medical issues if he were to be placed back in her care, which was the heart of the risk of harm. The juvenile court's conclusion that mother was in denial and was therefore unlikely to institute any meaningful changes or ensure the same patterns did not reoccur was reasonable. Mother's unwillingness or inability to understand her role in Alexander's detention and refusal to adapt her approach to Alexander's health supported by clear and convincing evidence the juvenile court's finding Alexander would be in substantial danger if not removed from mother's physical custody.
In addition, it was unclear at the time of the court's dispositional order whether mother's behavior and/or the reluctance to change her behavior was a symptom of a mental health disorder, as among the allegations the juvenile court found true was that medical professionals had expressed concern that mother had factitious disorder. Thus, it was reasonable for the juvenile court to conclude Alexander was at risk of danger absent the psychiatric evaluation ordered at the dispositional hearing, which appeared necessary to rule out any further services mother may have needed before Alexander could safely be placed in her care.
Mother's comparison of her case to In re Jasmine G. (2000) 82 Cal.App.4th 282 (Jasmine G.) does not persuade us to come to a different conclusion. In Jasmine G., the appellate court reversed a court's removal order where the parents had “forsworn corporal punishment” and “expressed remorse for having used corporal punishment” on the child. (Id. at p. 288.) The parents had attended parenting classes and undergone therapy to improve their parenting skills, and one of the therapists opined it was “totally safe to return the child” and the other simply had “ ‘no recommendation.' ” (Id. at pp. 288‒289.) Against this background, the juvenile court found the social worker's “subjective belief” that the parents “ ‘lack[ed] understanding of their responsibility and their roles in the incident that brought [the child] to [the] agency's attention' ” and the parents' “ ‘lack of cooperativeness and the hostility' ” perceived by the social worker did not constitute substantial evidence to support the finding the child was in substantial danger if returned home. (Id. at pp. 289‒291.)
Unlike the parents in Jasmine G., mother here maintained she had done nothing wrong and would not do anything differently with regard to Alexander's health. On appeal, mother does not really address the court's finding that mother was in “denial” about the harm she had caused Alexander except to say that such claims were “undermined by the fact mother ha[d] participated in over a year of services.” We commend mother's participation in services but conclude despite that, as we have explained, there still existed substantial danger to Alexander at the time the court issued its dispositional order. We note Jasmine G. does not stand for the proposition that mother's failure to accept responsibility could not be considered by the juvenile court. (See Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 867 [Jasmine G. does not hold “a parent's lack of insight may not be considered by the juvenile court” in determining whether a child is safe to return to a parent's custody].)
We also conclude the juvenile court's finding no reasonable means existed to prevent removal was supported by substantial evidence, in light of mother's participation in services but her inability or unwillingness to fully avail herself of the lessons provided by those services and to understand the changes needed to safely care for Alexander. Mother suggests monitoring by social workers constituted reasonable means that could have prevented removal. We disagree.
As we have explained, the danger to Alexander was evidenced by mother's insistence she had done nothing wrong and would not do anything differently. The jurisdictional findings included reasonable inferences that mother fabricated and/or exaggerated Alexander's symptoms. Certainly, social workers could not be present at all times to determine the legitimacy of any potential concerns with Alexander's health that could arise should Alexander be placed in mother's care. As there were also jurisdictional findings that mother was coaching Alexander, a reasonable inference could be made Alexander could not be relied upon to give accurate information while in mother's care, further compounding the risk. For these reasons, monitoring by the agency would not effectively neutralize the danger posed to Alexander by mother's assertion she would not handle his health any differently than she did before his removal. Absent mother's understanding of what she had done to necessitate agency intervention and refusal to change her behavior regarding Alexander's health, we conclude the court's finding there were no reasonable means to prevent removal was supported by substantial evidence bearing in mind the clear and convincing standard.
The court's dispositional findings and orders were supported by sufficient evidence. We find no error.
II. The Juvenile Court's ICWA Finding
A. ICWA Facts
On August 13, 2019, mother executed a “PARENTAL NOTIFICATION OF INDIAN STATUS” (ICWA-020) form indicating she may have Cherokee ancestry. Father executed an ICWA-020 form the same day indicating he had no Indian ancestry.
In open court, the trial court asked mother if she was a registered member of a Cherokee tribe, and she responded she was not. When asked whether any of her family members were members of a tribe, she responded, “Not that I know of.” Based on mother's disclosures, the trial court found ICWA “may apply.”
Social worker Kelsey Tolman subsequently prepared a “NOTICE OF CHILD CUSTODY PROCEEDING FOR INDIAN CHILD” (ICWA-030) form. The form included, under biographical information, mother's name, address, former address, and birthdate and place; maternal grandmother's name, address, former address, and birthdate and place; maternal grandfather's name, birthdate and place, and death date; maternal great-grandmother's name, birthdate, and death date; and maternal great-grandfather's name. In the spaces for all other information, including tribal membership or enrollment numbers, the form indicated the information was “UNKNOWN.” Under “[o]ther relative information, ” a name for a maternal aunt was listed, along with an address and birth date. The ICWA-030 form was mailed to three Cherokee tribes, the Bureau of Indian Affairs, and the Secretary of the Interior. The agency's reports contained no information about how Alexander's biographical information was obtained.
On December 6, 2019, the agency filed a motion for the court to determine ICWA did not apply. The motion indicated a reply had been received from all tribes indicating Alexander was not an Indian child within the meaning of ICWA.
On January 30, 2020, the court found ICWA did not apply, and repeated this finding on March 5, 2020, November 17, 2020, and December 18, 2020.
B. Analysis
Mother contends insufficient evidence supported the juvenile court's finding ICWA did not apply because the agency failed to adequately discharge its duty of “further inquiry” under ICWA. We agree and conclude the matter must be remanded to ensure full ICWA compliance.
General ICWA Principles
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) In any “proceeding for the foster care placement of, or termination of parental rights to, an Indian child, ” the Indian custodian and the Indian child's tribe have the right to intervene (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224, subd. (e)).
An “Indian child” is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)
The court and county child welfare agency “have an affirmative and continuing duty to inquire whether a child, ” who is the subject of a juvenile dependency petition, “is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah W., supra, 1 Cal.5th at p. 9; Cal. Rules of Court, rule 5.481(a).)
The child welfare agency's initial duty of inquiry 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 and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).)
When the court or social worker has “reason to believe” (but not sufficient evidence to determine there is “reason to know”) that an Indian child is involved in a proceeding, section 224.2, subdivision (e) requires “further inquiry regarding the possible Indian status of the child.” (§ 224.2, subd. (e).)
If, after further inquiry pursuant to section 224.2, subdivision (e) is conducted, “the court, a social worker, or probation officer knows or has reason to know … that an Indian child is involved” in the dependency proceeding, formal notice shall be sent to the child's parents or legal guardian, Indian custodian, if any, and the child's tribe for any hearing that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement so the tribe may exercise its right to intervene. (§ 224.3, subd. (a); see 25 U.S.C. § 1912(a).)
We review the juvenile court's finding that ICWA is inapplicable for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
“Reason to Believe”
The parties disagree at the outset as to whether the record discloses there was “reason to believe” Alexander was an Indian child. We conclude mother's disclosures that she had Cherokee ancestry gave “reason to believe” Alexander was an Indian child, triggering the agency's duty of “further inquiry.”
Prior to a recent amendment to section 224.2, the Legislature had not defined the phrase “reason to believe” in the context of ICWA inquiry. Effective September 18, 2020, however, section 224.2 was amended to add: “There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe.” (§ 224.2, subd. (e)(1).) “Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated” in section 224.2, subdivision (d), paragraphs (1) to (6), inclusive. (§ 224.2, subd. (e)(1).)
These enumerated grounds for “reason to know” are: “(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family informs the court that the child is an Indian child[;] [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[;] [¶] [and/or] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian Tribe.” (§ 224.2, subd. (d); see 25 C.F.R. § 23.107(c) (2021).)
On the question of whether mother's disclosure gave the agency “reason to believe” Alexander was an Indian child, the agency urges us to follow In re Austin J. (2020) 47 Cal.App.5th 870 (Austin J.). In Austin J., the appellate court held that a parent's statement that she “ ‘may have Indian ancestry' ” and had been “ ‘told that [her] mother had Cherokee [ancestry]' ” was not sufficient to give “reason to believe” the child was an Indian child. (Id.at pp. 888‒889.) The court reasoned that political affiliation with a tribe, not ancestry, determines whether a child is a member of a tribe, and that “Indian ancestry, without more, does not provide a reason to believe that a child is a member of a tribe or is the biological child of a member.” (Ibid.) The agency contends that pursuant to Austin J., the information mother provided in the present case did not rise to a level that would give it a reason to believe the family had a political affiliation with a tribe and therefore did not trigger further inquiry under ICWA.
We respectfully decline to follow the approach taken in Austin J. The appellate court in In re T.G. (2020) 58 Cal.App.5th 275 (T.G.) found that “[the Austin J.] court's insistence a parent's express statement of Indian ancestry does not constitute a reason to believe an Indian child may be involved is fundamentally at odds with well-established ICWA law.” (Id. at p. 294.) While the T.G. court acknowledged status as an Indian child is based on tribal membership, not ancestry, it explained “the question of membership is determined by the tribes, not the courts or child protective agencies. [Citations.] That determination often requires providing a tribe with extensive biographical data (that is, information about ancestors and ancestry), which is why section 224.3, subdivision (a)(5)(C), prescribes in detail the information about parents, grandparents and great-grandparents that must be included in an ICWA notice.” (Ibid., fn. omitted.)
The T.G. court went on to reason that common sense dictates that “over time, Indian families … may well have lost the ability to convey accurate information regarding their tribal status” and “[g]eneral information from the family about its ancestry frequently provides the only available basis to believe an Indian child may be involved.” (T.G., supra, 58 Cal.App.5th at p. 295.) While general ancestral information provided by a parent might not uncover information giving “reason to know” a child is an Indian child, triggering the duty to give formal notice to the tribes, the T.G. court found it was “essential” to the enforcement of the court's and agency's “ ‘affirmative and continuing duty to inquire' ” to “broadly” construe the duty of further inquiry. (Ibid.)
The approach taken in T.G. is further supported by the fact that Austin J. predates the amendment to section 224.2 defining “reason to believe.” As the appellate court in In re S.R. (2021) 64 Cal.App.5th 303 recently reasoned, the amendment “confirms the ‘reason to believe' standard requiring further inquiry should be broadly interpreted.” (Id. at p. 317.) The plain language of the amendment stating that “ ‘[i]nformation suggesting membership or eligibility for membership includes, but is not limited to,' ” the statutorily enumerated grounds for “reason to know, ” “forecloses the [Austin J. court's] narrow interpretation of what constitutes reason to believe.” (Ibid.)
We find the position taken by T.G. and In re S.R. well-reasoned and persuasive and in line with the legislative goals of ICWA. We also reject the agency's contention T.G. is distinguishable because mother's claims of Indian ancestry were “very vague.” We conclude mother's indication she may have Cherokee ancestry gave the agency “reason to believe” Alexander was an Indian child, triggering its duty of “further inquiry.”
Duty of Further Inquiry
Having concluded the agency's duty of “further inquiry” was triggered, the next question we must resolve is whether the agency adequately discharged it. We conclude the record does not disclose adequate information to show compliance and thus limited remand is necessary.
“Further inquiry” triggered by a “reason to believe” a child is an Indian child within the meaning of ICWA includes interviewing the parents, Indian custodian, and extended family members to gather available familial and tribal enrollment information. (§§ 224.2, subd. (e)(2)(A); 224.3, subd. (a)(5).) The agency “has the obligation 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.” (In re K.R. (2018) 20 Cal.App.5th 701, 709.) While interviewing parents and extended family members, the agency is to gather the following information:
“(A) The name, birth date, and birthplace of the Indian child, if known[;]
“(B) The name of the Indian tribe in which the child is a member, or may be eligible for membership, if known[; and]
“(C) All 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.” (§ 224.3, subd. (a)(5); see § 224.2, subd. (e)(2)(A).)
“Further inquiry” also includes contacting the Bureau of Indian Affairs and State Department of Social Services for assistance with identifying tribes in which the child may be a member of or eligible for membership. (§ 224.2, subd. (e)(2)(B).)
Finally, “further inquiry” includes 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. (§ 224.2, subd. (e)(2)(C).) “Contact with a tribe” for the purpose of the agency's duty of further inquiry “shall, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of notices under [ICWA]” and “include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case.” (Ibid.)
Here, the agency made no record as to what efforts it made to comply with its duty of further inquiry, particularly which extended family members they attempted to contact and how they obtained the biographical information contained on the ICWA-030 form.
The agency concedes it “did not report who it interviewed or how it got the [biographical] information [on Alexander's lineal relatives], ” but asserts the juvenile court had enough information to make an ICWA determination because the agency provided the court with the ICWA-030 form. We disagree. The juvenile court could not rely upon evidence the agency obtained some information when its duty of inquiry required it to obtain “all” available information without any indication of the efforts made by the agency. (See § 224.3, subd. (a)(5)(C).)
Though no statute requires the agency to document its inquiry, several appellate cases have recognized an exception to the “general” rule requiring an appellant to produce an adequate record demonstrating reversible error because of the unique situation presented by ICWA where a parent acts “as a surrogate for the tribe in raising compliance issues on appeal.” (In re K.R., supra, 20 Cal.App.5th at pp. 708‒709; see, e.g., In re Elizabeth M. (2018) 19 Cal.App.5th 768, 786‒788; In re N.G. (2018) 27 Cal.App.5th 474, 484‒485.) The agency therefore “cannot omit from its reports any discussion of its efforts to locate and interview family members who might have pertinent information and then claim that the sufficiency of its efforts cannot be challenged on appeal because the record is silent. [¶] Nor can the juvenile court assume that because some information was obtained and relayed to the relevant tribes, the social services agency necessarily complied fully with its obligations.” (In re K.R., at p. 709.) When a record “does not show what, if any, efforts the agency made to discharge its duty of inquiry” and not all required information was gathered, as is the case here, we cannot presume the agency discharged its duty. (In re N.G., at p. 484.)
The agency's failures to comply with all “further inquiry” mandates in sections 224.2 and 224.3 may have significantly affected the proceedings because information required by section 224.2 was omitted from the information shared with the tribes, which may have been available had the agency attempted to locate and interview extended family members. Specifically, the information provided to the tribes did not include any tribe or tribal enrollment information for any of Alexander's lineal relatives, indicating the information was “unknown.”
The agency concedes that “not every biographical detail is provided for each relative, ” but contends, without citing any authority, “there was sufficient information for an inquiry to the tribes.” We decline to make a finding the tribes had “sufficient information” to make a determination as to Alexander's status as an Indian child. The tribes require biographical information that is accurate and as complete as possible to make their determinations and we will not presume what constitutes sufficient information to assist the tribe in making its determinations without information on the record about the information that particular tribe identifies as necessary. (See In re Jack C. (2011) 192 Cal.App.4th 967, 980 [“[t]he decision whether a child is a member of, or eligible for membership in, the tribe is the sole province of the tribe”], declined to follow on other grounds by In re Abbigail A. (2016) 1 Cal.5th 83, 96, fn. 3; see also § 224.2, subd. (e)(2)(C).)
For example, in the letter sent to the agency by the Cherokee Nation, the tribe representative indicated “Any incorrect or omitted information could invalidate this determination [that Alexander is not an Indian child].”
We acknowledge that, in many cases, not all information required by sections 224.2 and 224.3 will be available. In the absence of documentation of the agency's efforts made to gather all information required by statute and/or information identified as relevant by the tribes themselves, however, we cannot say the agency adequately discharged its duty of further inquiry. Therefore, we conclude the trial court's finding ICWA did not apply was supported by insufficient evidence and limited remand is required.
Limited remand is necessary, at a minimum, to give the agency an opportunity to make a record of its efforts made to contact extended family members and/or gather the information required by section 224.3, subdivision (a). If the agency needs to conduct additional investigation to make this record, and in doing so, discovers previously unknown information, new inquiries shall be made to the pertinent tribes with the newly discovered information.
DISPOSITION
The 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 provisions set forth in sections 224.2 and 224.3. If, after the court finds adequate inquiry has been made consistent with the reasoning in this opinion, the court finds ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court finds ICWA does not apply, the finding that ICWA does not apply to the case shall be reinstated.
In all other respects, the court's dispositional findings and orders are affirmed.
WE CONCUR: LEVY, ACTING P.J.POOCHIGIAN, J.