Opinion
C098748
03-15-2024
In re H.B., a Person Coming Under the Juvenile Court Law. v. C.B., Defendant and Appellant. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Super. Ct. No. JV20221704)
RENNER, J.
C.B., father of minor H.B., appeals from the juvenile court's orders entered at a dispositional hearing on a supplemental petition. (Welf. & Inst. Code, §§ 367, 395.) His sole contention on appeal is that we must reverse the juvenile court's findings and order that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) does not apply and remand for further ICWA compliance because Yolo County Health and Human Services Agency (Agency) did not inquire of extended family members about possible Native American ancestry. Respondent maintains its inquiry was sufficient, as parents denied Native American ancestry and the paternal grandmother and maternal grandfather confirmed this information. To effectuate the remedial purpose of the ICWA, we shall vacate the juvenile court's ICWA finding and remand for further ICWA compliance.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
Because the issue on appeal is limited to ICWA compliance, we limit our recitation of the underlying facts and procedure to those necessary to our resolution of that issue.
On October 19, 2022, a warrant was issued removing the minor from father's custody but maintaining the minor in mother's care, based on domestic violence occurring in the home. Mother (who is not a party to this appeal) and father are married and, at the time, were also caring for mother's two minor siblings and the minor's half sibling. Those children were also removed from father's care but are not subjects of this appeal.
At the initial hearing, the juvenile court asked the parents about possible Native American ancestry and both parents denied they had any such ancestry. The paternal grandmother had been asked several days earlier, and she also denied any Native American ancestry. The maternal grandparents' contact information was unknown at the time. The juvenile court instructed the parents to inform the court if they received any information that the minor was a member of, or eligible for membership in, a tribe. It then found no reason to believe the minor was an Indian child and found the ICWA did not apply.
We note that, since the minors remained placed with mother, the ICWA was not yet implicated at this time. (See In re A.T. (2021) 63 Cal.App.5th 267, 275 [the ICWA is inapplicable where "[n]either the court, the [child welfare authorities], nor any other party sought to have [the child] placed in foster care or pursued any placement other than with [the] [f]ather"]; see also In re M.R. (2017) 7 Cal.App.5th 886, 904 ["ICWA and its attendant notice requirements do not apply to a proceeding in which a dependent child is removed from one parent and placed with another"]; In re K.L. (2018) 27 Cal.App.5th 332, 339 ["[n]othing in the statutory language suggests that . . . ICWA applies when custody of an Indian child is transferred from one parent to another parent"].)
The juvenile court assumed jurisdiction over the minors, adjudged them dependent children of the court and, in January 2023, ordered family maintenance services for mother and reunification services for father. At that time, it was reported that the Agency had been in contact with the maternal grandfather, and he had denied having any Native American ancestry. The following month, however, the Agency filed a section 387 supplemental petition, based on mother allowing father to live in the home in violation of court orders. The minor was detained and placed in a foster home. The juvenile court sustained the supplemental petition.
The disposition hearing on the supplemental petition took place on May 26, 2023. The paternal grandfather was present via Zoom and the paternal grandmother was present and testified. The paternal grandmother testified that she lives with her husband and her other son (the paternal uncle), and the paternal uncle's wife. The wife of the paternal uncle was also present at the hearing. The social worker testified a maternal aunt was being considered for placement. The social worker also indicated that her supervisor had spoken with the paternal grandmother about possible placement. The juvenile court found that the minor is not an Indian child under the ICWA, but possible Native American ancestry was not otherwise mentioned at the hearing. Reunification services were ordered for both parents.
II. DISCUSSION
Father contends further compliance with the inquiry and notice provisions of the ICWA is necessary because the record does not reflect that the Agency inquired of many accessible extended family members about the minor's possible Native American ancestry. We agree that remand for additional ICWA compliance is appropriate.
As this court recently explained:" 'The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. [Citations.] A major purpose of the ICWA is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." [Citation.]' (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA defines an' "Indian child"' as a child who '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).) The juvenile court and the social services department have an affirmative and continuing duty, beginning at initial contact, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)" (In re G.A. (2022) 81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056.) "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).)
We review claims of inadequate inquiry into a child's Native American ancestry for substantial evidence to support the juvenile court's findings. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) It is true that not every error by an agency in discharging its duties to inquire about ancestry and document its inquiry (see § 224.2, subd. (b); Cal. Rules of Court, rule 5.481(a)(5)) will undermine the juvenile court's ICWA finding under section 224.2, subdivision (i)(2). But the juvenile court had a duty to ensure the Agency made appropriate inquiries and then make findings based on the results of all inquiries, including the court's own. (See In re A.M. (2020) 47 Cal.App.5th 303, 319 ["ICWA and the corresponding provisions of California law impose an affirmative and continuing duty on the juvenile court to inquire whether the child is an Indian child"].)
Here, although both parents denied knowledge of any Native American ancestry, and that information was confirmed by the maternal grandfather and the paternal grandmother, there were several other relatives who may have had additional information about possible Native American ancestry who were not asked, despite being readily accessible to the Agency and juvenile court. The Agency appears to have had access to the following relatives but did not ask them about possible Native American ancestry: at least one adult maternal aunt (in addition to the minor's maternal aunt and uncle who had been living in the parents' home), the paternal grandfather, and the paternal uncle and his wife. While we cannot say on this record that it is likely the extended relatives have information that would lead to a finding that the minor is an Indian child, we similarly cannot conclude the failure to inquire of these individuals was not prejudicial. It is reasonably conceivable, for example, that the paternal grandfather would have information about his ancestry that is not within the knowledge of the paternal grandmother, or that an uncle or aunt may have gathered ancestry information from a source other than his or her parent.
Mother had reported to the social worker that she was born in Mexico and was raised by her mother and father in Mexico, along with five younger siblings.
Because additional inquiry should have been made with the parents' known relatives (see § 224.2, subd. (b); see also In re Y.W. (2021) 70 Cal.App.5th 542, 554; In re A.C. (2022) 75 Cal.App.5th 1009, 1016-1018) and the Agency did not appear to do so, we will remand the matter for further proceedings to address compliance with the inquiry and notice provisions of the ICWA and entry of new findings regarding its applicability based on the Agency's demonstration of inquiry and notice.
III. DISPOSITION
The juvenile court's finding that the ICWA does not apply is vacated and the matter is remanded for further ICWA compliance proceedings, whereafter the juvenile court shall enter new ICWA findings. If the minor is found to be an Indian child, the juvenile court shall proceed in compliance with the ICWA. (25 U.S.C. § 1914; § 224, subd. (e).)
We concur: HULL, Acting P. J., MAURO, J.