Opinion
A166761
12-04-2023
In re Estrella M., et al., Persons Coming Under the Juvenile Court Law. v. N.M., Defendant and Appellant. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. JD03349302, JD03223703
TUCHER, P.J.
N.M. (mother) appeals a juvenile court order terminating her parental rights to her daughters, Estrella and I.M. (Welf. &Inst. Code, § 366.26; statutory references are to this code unless otherwise stated.) Mother contends that the Alameda County Social Services Agency (the Agency) failed to comply with requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. (ICWA), and related California law, and that the juvenile court erred by finding that ICWA does not apply. We agree and conditionally reverse the order for compliance with ICWA and related California law.
BACKGROUND
On March 5, 2020, the Agency took 21-month-old Estrella into protective custody after an emergency response social worker interviewed Estrella's maternal uncle, Fernando M., and personally observed concerning behavior by mother. Fernando reported that mother has a long history of drug abuse and undiagnosed mental health problems, and that she had recently relocated from Puerto Rico, where she was the victim of human trafficking and a rape that left her pregnant with Estrella. Fernando also reported that in the previous weeks mother was twice hospitalized for mental health problems, most recently on March 3, after the fire department was contacted because she was" 'acting weird, and saying crazy stuff and really high.'" The Agency placed Estrella with Fernando and his wife, who had previously kept the child with them during mother's challenging times.
On March 9, 2020, the Agency filed an original dependency petition on behalf of Estrella under section 300, subdivision (b) [risk of harm] and (g) [no provision for support]. The petition was based on allegations pertaining to mother's mental health symptoms and untreated substance abuse. The Agency also alleged that the identity of Estrella's father was unknown. On a form attached to the petition, the Agency averred that Estrella could be an Indian child, as an ICWA inquiry had not yet been conducted.
On March 10, 2020, mother completed a Parental Notification of Indian Status form by checking a box, which stated, "I have no Indian ancestry as far as I know."
In September 2020, Estrella was declared a dependent pursuant to an amended petition. On a form attached to the amended petition, an Agency worker averred that she questioned mother about Estrella's Indian status on April 9, and mother gave the worker "no reason to believe the child is or may be an Indian child." At the September 2020 disposition hearing, the court made a finding that Estrella is not an Indian Child and "ICWA does not apply."
In January 2021, while mother was in the process of completing her reunification plan, mother gave birth to Estrella's half sibling, I.M. In February, Estrella was returned to mother's custody with family maintenance services. However, mother soon began testing positive for illegal substances and her mental health issues also resurfaced. In late April, the Agency detained the girls from mother and placed them with their uncle, Fernando.
In May 2021, the Agency filed a section 387 supplemental petition on behalf of Estrella, seeking to remove her from mother's custody pursuant to allegations that the previous disposition had not been effective. The Agency also filed an original petition on behalf of I.M. (§ 300, subds. (b), (g) &(j)), alleging risk of harm due to mother's mental health and substance abuse issues, that the identity of I.M.'s father was unknown, and that her sibling had an open dependency case. In both of the May 2021 petitions, the Agency alleged on information and belief that an ICWA inquiry had been completed. On forms attached to the petitions, an Agency worker averred that another case worker asked mother about the child's Indian status on September 30, 2020, and mother gave no reason to believe that the child is or may be an Indian child. In I.M.'s detention report, the Agency stated that it was unclear whether I.M.'s paternal family has Indian heritage as the father's identity was unknown.
In August 2021, the juvenile court sustained the supplemental petition as to Estrella, renewed her dependency, removed her from mother and approved her placement with her uncle, Fernando. The court also declared I.M. a dependent, removed her from mother, and approved her placement with Fernando.
In January 2022, mother's reunification services were terminated and the court scheduled a section 366.26 hearing to select a permanent plan for the girls. That February, the girls were placed temporarily in a foster care home because Fernando could no longer provide for their care. In July, the girls were placed in the home of maternal cousins in Puerto Rico, who expressed an interest in adoption.
A contested section 366.26 hearing was held over multiple court days in July and September 2022. The Agency recommended terminating parental rights, with a plan of adoption by the maternal relative caregivers in Puerto Rico. One of Estrella's alleged fathers, T.C., made a court appearance on July 20, and the matter was continued for paternity testing, which showed that T.C. is Estrella's biological father. The Agency case worker subsequently reported that she asked T.C. if he had any Native American ancestry and he stated that he does not. At a September 28 session of the section 366.26 hearing, M.M., who is an alleged father of I.M., made a court appearance, which led to another short continuance. M.M. did not appear at the continued hearing and his counsel reported he was unsure whether he would pursue paternity.
On September 30, 2022, the juvenile court terminated the parental rights of mother and all alleged fathers, including the two who made appearances. In its September 30 order, the court found the children are not Indian children and no further notice is required under ICWA.
DISCUSSION
Mother contends the order terminating her parental rights must be conditionally reversed because the Agency and juvenile court failed to satisfy their duty to conduct an adequate inquiry regarding the children's possible Indian ancestry. The Agency disagrees, arguing the ICWA inquiry was sufficient or alternatively that there was no prejudice.
I. The ICWA Inquiry Was Not Adequate
The purpose of ICWA is to" 'protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family.'" (In re S.H. (2022) 82 Cal.App.5th 166, 173.) To further this goal, state law requires that when a child is placed in the custody of a county welfare department, the department must inquire whether the child is an Indian child. This inquiry includes asking the child, parents, and extended family members including aunts or uncles, whether the child is or may be an Indian child. (§ 224.2, subd. (b) (section 224.2(b)); In re J.C. (2022) 77 Cal.App.5th 70, 77 (J.C.); In re A.C. (2022) 75 Cal.App.5th 1009, 1015.) In addition, the juvenile court, at the first appearance in court of each party, must ask whether the participant knows or has reason to know the child is an Indian child. (§ 224.2, subd. (c).)
We need not, in this case, define the exact contours of the inquiry required by section 224.2. The statutory language could be interpreted to require that inquiry be made of all aunts, uncles, cousins, and other extended family members (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1005-1006), although the word "all" does not appear in section 224.2(b). The statute simply lists "extended family members" among those who should be interviewed. (§ 224.2, subds. (b), (e).) Moreover, its overarching command is for a "proper and adequate" inquiry (§ 224.2, subd. (i)(2)), which suggests the agency may not be required to question every potentially discoverable extended family member, as long as it provides enough information for the juvenile court to make a fully informed determination whether the child may be an Indian child. (In re K.H. (2022) 84 Cal.App.5th 566, 602-605 (K.H.); Ezequiel G., at pp. 1006-1008.) Although the statutory duty is "commonly referred to as the 'initial duty of inquiry,' it 'begins with the initial contact' (§ 224.2, subd. (a)) and continues throughout the dependency proceedings." (J.C., supra, 77 Cal.App.5th at p. 77.) California law" 'broadly imposes on social services agencies and juvenile courts (but not parents) an "affirmative and continuing duty to inquire" whether a child in the dependency proceeding "is or may be an Indian child." '" (Ibid.)
In the present case, the Agency's inquiry as to whether the children have Indian heritage through their maternal family extended no further than mother, herself. Of course, the Agency knew mother suffered from untreated addiction and mental health issues, which prompts the question whether mother's issues affected the accuracy of her reporting. (See e.g., K.H., supra, 84 Cal.App.5th at p. 605.) In other cases, a mother with comparable issues may be the best source available. But here, as we have noted, the girls' maternal uncle, Fernando, was intimately involved in these dependency cases. The Agency maintained direct communication with Fernando during significant periods when the children were placed in his care, and the record shows that during those periods, the maternal grandfather and aunt were also known to the Agency. Subsequently, the Agency approved the girls' placement with other maternal relatives in Puerto Rico. Despite these facts, it appears that none of these maternal relatives were asked about Indian ancestry. Under the circumstances, we agree with mother that the Agency's inquiry was inadequate.
Mother contends that the Agency committed a separate error by failing to inquire whether M.M. has Indian ancestry. Even though M.M. appeared very late in the proceeding, he was an alleged father, which gave him an "interest in the child." (§ 224.2(b).) We find some information in the record suggesting that all alleged fathers were at one point asked about Indian heritage, but no indication that the Agency received any response from M.M. Whether or not the failure to follow up further would have, on its own, amounted to substantive error, in the context of this case it is another indication that the Agency's inquiry was cursory at best.
On appeal, the Agency argues that its duty of initial inquiry was met because mother and the biological father of Estrella were asked about Indian heritage when they appeared in the proceeding, and neither parent gave reason to believe the girls may have status under the ICWA. (Citing § 224.2, subds. (c) &(e).) According to this argument, the county welfare department does not have a duty to question family members about Indian ancestry at the initial inquiry stage unless the child was taken into the department's temporary custody pursuant to section 306. (Citing § 224.2(b).) Since these girls were removed from mother "via warrant under Section 340," the Agency posits that it had no statutory duty to "ask ICWA" questions of family members identified during the dependency proceedings.
The Agency's narrow construction of section 224.2(b) was adopted in In re Robert F. (2023) 90 Cal.App.5th 492, 500, review granted July 26, 2023, S279743. However, a different panel from the same division of the Fourth Appellate District declined to follow Robert F. in In re Delila D. (2023) 93 Cal.App.5th 953, 970-975, review granted September 27, 2023, S281447. The Delila D. court found that limiting the inquiry required by section 224.2(b) to cases involving emergency removals without a warrant is unsupported by the statutory language and contrary to legislative intent. While this issue is pending before the California Supreme Court, we join other courts that follow Delila D. (See e.g., In re V.C. (2023) 95 Cal.App.5th 251, 257-260; In re C.L. (2023) 96 Cal.App.5th 377, 385-390.) Accordingly, we reject the Agency's claim that it had no duty to conduct the inquiry specified in section 224.2(b).
II. The Agency's Error Was Prejudicial
We also reject the Agency's alternative theory that its failure to conduct an adequate initial inquiry was harmless error. The issue of how to assess whether an ICWA inquiry error is prejudicial is also currently pending before the California Supreme Court. (In re Dezi C. (2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022, S275578 (Dezi C.).) Courts addressing the issue have articulated a variety of tests, ranging from a presumption of prejudice, requiring reversal in most cases, to a presumption of affirmance, which would require the appellant to demonstrate that a good faith claim of Indian ancestry could have been made if the proper inquiry had been conducted. (See, e.g., In re G.H. (2022) 84 Cal.App.5th 15, 32 [presumption of prejudice]; In re A.C. (2021) 65 Cal.App.5th 1060, 1069 [presumption of affirmance].)
There are also competing approaches taking a middle ground. For example, Dezi C. held that failure to conduct a proper initial inquiry "is harmless unless the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA." (Dezi C., supra, 79 Cal.App.5th at p. 779.) The court in In re Benjamin M. (2021) 70 Cal.App.5th 735, took a different approach, holding that reversal is necessary where the record demonstrates not only that the agency failed in its duty of initial inquiry, but also that "there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Id. at p. 744.) K.H. employed a hybrid substantial evidence/abuse of discretion approach, which focused on whether the Agency questioned available relatives and documented sufficient evidence to support the trial court's discretionary ruling. (K.H., supra, 84 Cal.App.5th at p. 619.)
We decline to apply a rule of presumptive affirmance, that would require the appellant to demonstrate harm. Neither party advocates for this approach, and it has been duly criticized. (See K.H., supra, 84 Cal.App.5th at pp. 612-614 [collecting cases].) We need not choose among the other standards because all are consistent with our conclusion that the ICWA inquiry error in this case was prejudicial. We base this conclusion on unequivocal evidence that many of the girls' maternal relatives were actively involved throughout the dependency proceedings and yet the Agency elected to limit its ICWA inquiry to questioning mother during a time when mother's mental health and addiction issues may well have impaired her ability to provide accurate information about Indian heritage.
DISPOSITION
The order terminating parental rights is conditionally reversed. The matter is remanded with directions for the juvenile court and the Agency to comply with the inquiry and (if appropriate) notice provisions of ICWA and state law. If, after compliance with the law, the juvenile court concludes ICWA does not apply, the order terminating parental rights shall immediately be reinstated. If, after proper inquiry and notice to applicable tribes, the court finds that either minor is an Indian child, the court must proceed in conformity with ICWA.
WE CONCUR: FUJISAKI, J. RODRÍGUEZ, J.