Opinion
A170671
12-23-2024
In re S.M., a Person Coming Under the Juvenile Court Law. v. A.M., Defendant and Appellant. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. JD03702101
BROWN, P. J.
A.M. (Father) appeals from the juvenile court's combined jurisdiction and disposition order. (Welf. &Inst. Code, § 395.) He contends that the Alameda County Social Services Agency (Agency) failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.) and related California law (§ 224.2) as to his son because the Agency did not contact extended family members to inquire about the child's possible Native American ancestry. Because a finding regarding the applicability of ICWA was not made in the jurisdiction and disposition order from which Father appeals, nor at any point earlier in the case, the sole claim on appeal is premature. Therefore, the appeal must be dismissed.
All further statutory references are to the Welfare & Institutions Code unless otherwise stated.
BACKGROUND
As the parties are familiar with the background of the case and the disputed issue on appeal is narrow, we summarize only the facts relevant to Father's argument regarding ICWA compliance.
On December 27, 2023, the Agency filed a dependency petition on behalf of newborn S.M. The petition stated that the Agency's inquiry about possible Native American ancestry gave the Agency no reason to believe that the child was a Native American child.
The Agency's detention report stated that ICWA did not apply because both parents reported they did not have Native American ancestry on December 23, 2023. The court inquired about the parents' Native American ancestry at the detention hearing. Mother said that she had Native American ancestry but did not belong to a tribe. The court asked her if she knew what tribe she might have ancestry from, and she replied, "It's more or less indigenous, but no, I'm not governed to be in a tribe." The court inquired what side of the family Mother's ancestry might come from. Mother replied, "Probably my mom." The court ordered the Agency to follow up on the information. When Father was asked about Native American heritage, he replied, "Not in your definition or the court's definition of Native American, no, I don't." After inquiring further, the court determined that Father did not claim to have any Native American ancestry. The court did not make any finding as to whether ICWA applied.
The jurisdiction and disposition hearing began on January 19, 2024. The judge who presided over the hearing had not presided over the detention hearing, and the court's notes indicated that the parents had not been present at the detention hearing. The court inquired of counsel whether the notes were accurate and whether ICWA inquires had been made. The Agency's counsel confirmed that the parents were present at the detention hearing, and the court had made the required ICWA inquiries of the parents. The hearing was ultimately continued to May 2024.
The court held the contested jurisdiction and disposition hearing in May 2024. The Agency's jurisdiction/disposition report dated January 19, 2024, and addendum report dated May 7, 2024, stated that ICWA does not apply because the parents declared they had no Native American ancestry on December 23, 2023. Father told the Agency that his sister was his support system, and the social worker had contact with Father's sister in May 2024. The Agency also approved the paternal grandmother for visits with Father, and both the paternal grandmother and the paternal aunt were present in court at the final jurisdiction/disposition hearing. An ICWA finding was not included in the recommendations adopted by the court, and the court did not make an ICWA finding at the May 2024 hearing.
DISCUSSION
Father contends, and the Agency concedes, further inquiry of relatives and extended family members regarding the minor's potential Native American heritage is necessary to meet the requirements of ICWA. (§ 224.2, subd. (b).) Father initially suggested that the order here should be conditionally reversed, and the matter remanded for compliance with section 224.2's inquiry requirements, citing In re Dezi C. (2024) 16 Cal.5th 1112, which addressed an order terminating parental rights. In his reply brief, Father changed his position and agreed with the Agency's suggestion that we should follow In re Dominick D. (2022) 82 Cal.App.5th 560. In Dominick D., ICWA inquiry error occurred at the disposition stage, and the appellate court vacated the juvenile court's finding that ICWA did not apply and otherwise affirmed the court's jurisdiction and disposition orders, "direct[ing] the juvenile court on remand to order [the social services agency] to comply with its inquiry and (if applicable) notice obligations under ICWA and related California law." (Dominick D., at pp. 567-568.)
However, unlike in Dominick D., the parties agree that the juvenile court here has not made any implied or express ICWA finding with respect to S.M., and there is no ICWA finding for us to vacate. We accordingly asked the parties to address whether Father's appellate argument is premature, citing In re M.R. (2017) 7 Cal.App.5th 886, 903-904 (M.R.) and J.J. v. Superior Court (2022) 81 Cal.App.5th 447, 461.
Father does not argue that the court erred by failing to make an ICWA finding.
In M.R., the juvenile court found at the disposition hearing that ICWA noticing had been initiated and ICWA may apply to the children. (M.R., supra, 7 Cal.App.5th at p. 904.) In their appeal from the dispositional findings and orders, both parents challenged the adequacy of the efforts made to comply with the ICWA notice requirements. (M.R., at p. 903.) The appellate court determined the ICWA finding at disposition was not a final ruling as to whether proper notice had been completed or whether ICWA applied to the proceedings; therefore, any claim of error regarding ICWA compliance was "simply premature." (M.R., at p. 904.) Accordingly, the appellate court declined to review the adequacy of an ICWA noticing process that was still ongoing, noting that it could address any claims of error, including the juvenile court's final rulings with respect to ICWA matters, in a subsequent appeal. (M.R., at p. 904 &fn. 9; see also J.J. v. Superior Court, supra, 81 Cal.App.5th at p. 461 [where juvenile court made no final ruling at or before disposition hearing as to whether ICWA applied, mother's ICWA inquiry and notice claim was premature].)
Because the court in this case made no ruling regarding whether ICWA applied to S.M. in the challenged order or prior thereto, there is no ICWA finding to vacate and Father's claim is premature. The parties' supplemental briefs do not convince us otherwise. The dependency case is ongoing and any perceived deficiencies with ICWA inquiry can and should be brought to the juvenile court's attention so that they may be resolved. (See M.R., supra, 7 Cal.App.5th at p. 904.) We decline to assess the adequacy of the ICWA inquiry and noticing process that is, based on the record before us, still ongoing.
DISPOSITION
The appeal is dismissed.
WE CONCUR: STREETER, J. GOLDMAN, J.