Opinion
A149947
06-22-2017
In re ANA G., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. W.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. OJ15025462-01)
W.G. (Mother) appeals a juvenile court judgment terminating her parental rights to her daughter Ana under Welfare and Institutions Code section 366.26. Mother contends the Alameda County Social Services Agency (the Agency) and the juvenile court failed to comply with inquiry and notice requirements under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We agree inquiry was inadequate, so we conditionally reverse.
All statutory references are to the Welfare & Institutions Code unless otherwise indicated.
BACKGROUND
In August 2015, two-week-old Ana was detained by the juvenile court. The dependency petition filed by the Agency asserted allegations under section 300, subdivisions (b), (g), and (j), and claimed Mother was unable to protect Ana, had no provision for supporting her, and had abused or neglected Ana's older sibling (previously a dependent of the court). The petition included a form which indicated an ICWA inquiry was made, but no box on the form was checked off regarding the outcome of that inquiry. The Agency's detention report filed the next day stated, "The Indian Child Welfare Act does not apply. The mother stated to the [Emergency Response Unit Child Welfare Worker] that she does not have Indian ancestry." At the detention hearing, the court adopted recommendations made in the Agency detention report which included an order for any parents or guardians "to complete the ICWA[-]020 Parental Notification of Indian Status form and submit it to the Court before leaving the courtroom . . . unless that form was previously submitted by the parent or legal guardian."
The record contains no ICWA-020 form for Mother. However, in a dependency involving Ana's older sibling before this same court, Mother completed an ICWA-020 form on December 18, 2014, attesting, "I have no Indian ancestry as far as I know."
We grant Mother's request for judicial notice of the ICWA-020 form from Ana's sibling's dependency case as well as a January 8, 2016 Minute Order issued in the sibling's case containing the court's finding that ICWA did not apply to the sibling. The ICWA-020 form is referenced in multiple Agency reports in the record, and the Agency agrees with Mother's request.
In November 2015, following a two-day contested jurisdiction/disposition hearing at which Mother testified, the juvenile court found the amended dependency petition's allegations to be true and declared Ana a ward of the court. The court committed Ana to the Agency's care and offered Mother reunification services.
Mother appealed the court's dispositional order. (See Alameda County Social Services Agency v. W.G., Case No. A146797.) But Mother's counsel filed a "No Issues Statement" that there were no arguable issues on appeal. When Mother did not respond to the court's invitation to state any issues for review, the appeal was dismissed.
Leading up to the court's jurisdictional and dispositional determinations, the Agency had filed four reports with the court that contained information on Ana's ICWA's status. All reports stated: "The Indian Child Welfare Act does not apply. The Indian Child Welfare Act does or may apply based on the following: [¶] . . . On 12/18/2014 the mother completed an ICWA-020 form indicating that she does not have any Native American heritage. The mother's ICWA-020 form was filed with the Juvenile Court. [¶] . . . On 12/12/2014 the mother told the ERU CWW Pitre C218 that she does not have any Native American heritage." The reports also noted Mother occasionally lived with and received help from her own mother who appeared at some of the dependency proceedings. The court did not address ICWA and made no findings or orders concerning Ana's ICWA status.
In July 2016, at the six-month review, the court terminated Mother's reunification services and set a section 366.26 hearing. Mother testified at the hearing as did her sister in her support. Again, the court did not address ICWA and made no findings or orders concerning Ana's ICWA status. The three reports filed by the Agency for the six-month review acknowledged the absence of any findings, noting, "It does not appear that ICWA findings have been made." The reports then repeated the same information as in past reports that ICWA both "does not apply" and "does and may apply" and cited to Mother's two December 2014 statements that she did not have any Native American heritage.
Mother filed a notice of intent to file a writ petition and request for record to review the court's order to set a section 366.26 hearing. However, Mother failed to file a timely petition, and the petition was dismissed.
In August 2016, more than two months prior to the section 366.26 hearing, a due diligence hearing regarding Ana's alleged fathers took place for which Mother was not present. The Agency's report provided this update on Ana's ICWA status: "The Indian Child Welfare Act does or may apply. On 8/09/2016, the mother . . . stated to the undersigned, CWW Foster, that she has Indian in her family; however, she does not know the names of any tribes. [¶] However, according to the Jurisdiction/Disposition Report dated 9/09/2015, the mother completed an ICWA-020 form regarding her other child . . . indicating that she does not have Native American ancestry as far as she knows. The mother's ICWA-020 form was filed with the Juvenile Court." The court still did not discuss ICWA or address Ana's ICWA status.
The next hearing that took place was the October 2016 section 366.26 permanency hearing during which the juvenile court terminated Mother's parental rights. After Mother read a statement to the court, the court found by clear and convincing evidence Ana was likely to be adopted. With respect to ICWA, the court found "ICWA does not apply in this case." As part of its order, it adopted and incorporated the finding that Ana was "not an Indian child" and "[n]o further notice [was] required under ICWA" based upon facts stated in the Agency's section 366.26 report. The relevant portion of the section 366.26 report stated: "The Indian Child Welfare Act does not apply. On 8/09/2016, [Mother] stated to the undersigned, CWW Foster, that she does not have Native American ancestry as far as she knows. Additionally, according to the Jurisdiction/Disposition Report dated 9/09/2015, the mother completed an ICWA-020 form regarding her other child . . . indicating that she does not have Native American ancestry as far as she knows. The mother's ICWA-020 form was reportedly filed with the Juvenile Court." The court did not discuss ICWA beyond these findings or ever inquire about the ambiguity in the Agency's reports.
Mother appealed the order terminating her parental rights.
DISCUSSION
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. § 1901 et seq.; In re Holly B. (2009) 172 Cal.App.4th 1261, 1266) The social services agency and the juvenile court have an "affirmative and continuing duty" to inquire whether a child subject to a section 300 petition is or may be an Indian child in all dependency proceedings where the child is in or at risk of entering foster care. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a); In re Damian C. (2009) 178 Cal.App.4th 192, 198-199.) If either has reason to know an Indian child may be involved, the social services agency "is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members . . . , contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility." (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4).) The social services agency and court may have reason to know an Indian child is involved when "[a] person having an interest in the child . . . provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe." (§ 224.3(b)(1); Cal. Rules of Court, rule 5.481(a)(5).)
"Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies. Specifically, the tribe has the right to obtain jurisdiction over the proceedings by transfer to the tribal court or may intervene in the state court proceedings. Without notice, these important rights granted by the Act would become meaningless." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)
Accordingly, if an ICWA inquiry leads the social services agency or juvenile court to know or have reason to know an Indian child is involved, ICWA requires the social services agency to notify the tribe of the pending proceedings and its right of intervention. (25 U.S.C. § 1912, subd. (a); §§ 224.3, subd. (d), 224.2, subd. (a)(5); Cal. Rules of Court, rule 5.481(b).) The social services agency must send notice to "all tribes of which a child may be a member or eligible for membership." (§ 224.2, subd. (a)(3).) If the identity or location of the tribe cannot be determined, the same notice must be directed to the Bureau of Indian Affairs (BIA). (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.)
" ' "Since failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, notice requirements are strictly construed." ' [Citations.] The notice requirement applies even if the Indian status of the child is uncertain. [Citation.] The showing required to trigger the statutory notice provisions is minimal; it is less than the showing needed to establish a child is an Indian child within the meaning of ICWA. [Citation.] A hint may suffice for this minimal showing. [Citation.]" (In re Miguel E. (2004) 120 Cal.App.4th 521, 549.)
Mother contends the Agency and juvenile court failed to comply with ICWA's inquiry and notice requirements. We agree that inquiry into Ana's Indian status was inadequate but disagree that the record permits a conclusion that ICWA's notice requirements were violated.
In re Michael V. (2016) 3 Cal.App.5th 225 (Michael V.), which addressed ICWA inquiry and notice compliance for three dependent siblings, is instructive. In Michael V., the social services agency's detention report stated that the mother denied any Indian ancestry and ICWA was inapplicable. (Id. at p. 230.) The ICWA forms prepared by the social worker for each of the three children also stated that the mother denied Indian ancestry. (Ibid.) However, in her ICWA-020 form, the mother stated she "may have Indian ancestry" through her mother. (Ibid.) At the detention hearing, in response to questions from the court about the basis of her Indian ancestry claim, the mother explained, " '[M]y social worker, she was looking up my mom because she's never . . . [been] a part of my life. So they were trying to track her down. And when they did, they told me she was full-blood Indian.' " (Ibid.) The court asked the mother about what the social worker found when looking into her Indian ancestry. (Ibid.) The mother answered that her mother " 'was from two tribes,' " but she could not remember which. (Ibid.) The juvenile court ordered further investigation, notice to the tribes if ICWA was triggered, and updates on the ICWA inquiry in the social study report. (Ibid.) In accordance with the court's order, the Agency re-interviewed the mother regarding her family's ancestry and searched its records from the mother's own dependency case without success. (Id. at p. 231.) At the subsequent status hearing, no one responded to the court's invitation to be heard regarding the ICWA investigation. (Ibid.) The court found the ICWA investigation was complete, ruled it had no reason to know or believe the children were Indian children under ICWA, and concluded ICWA did not apply. (Ibid.) ICWA was not discussed at the next hearing at which the court terminated the mother's parental rights. (Ibid.)
The court of appeal agreed with the social services agency that the mother's recollection of what she had been told by a social worker, "was insufficient without further substantiation to require notice to the BIA." (Michael V., supra, 3 Cal.App.5th at p. 234.) However, the court agreed with the mother that the agency's investigation of her Indian ancestry was inadequate. (Id. at pp. 235-236.) The court noted that under section 224.3 and the California Rules of Court, Rule 5.481, both the agency and the court have affirmative obligations to inquire into a child's possible Indian status, and that an agency is required to "interview[] the parents, Indian custodian, and extended family members" if a person with an interest in the child provides information suggesting the child is a member of a tribe or eligible for membership or has a parent, grandparent, or great-grandparent who was a member of a tribe. (Id. at p. 235.) The mother in Michael V. triggered this obligation of further inquiry when she disclosed her mother was a member of two Indian tribes in response to the court's follow-up questions about her ICWA form. (Ibid.) Even though the court ordered the agency to undertake such an investigation and the agency re-interviewed the mother and researched its own records, it was not enough. (Ibid.) The court observed the agency had made no effort to interview the mother's mother or two siblings. (Id. at p. 235.) The court concluded the agency "did not take appropriate affirmative steps" to investigate the children's possible Indian ancestry and "the court failed to ensure that an adequate investigation had been conducted." (Id. at p. 235.) The court remanded the case for ICWA compliance. (Id. at pp. 228, 236.)
As in Michael V., the information Mother provided to the Agency in August 2016 "that she has Indian in her family" when coupled with her earlier contradictory statements that she had no Indian ancestry, was insufficient without further substantiation to trigger ICWA notice requirements. (Michael V., supra, 3 Cal.App.5th at p. 234; see also In re Shane G. (2008) 166 Cal.App.4th 1532, 1539 [notice not required after agency inquiry which included a family member interview produced no information minor was an Indian child].)
However, as in Michael V., the information of Mother's possible Indian family connection was enough to trigger the Agency's obligation to investigate Ana's Indian status further and the juvenile court's obligation to see such an investigation was done. "[T]he duty to inquire is triggered by a lesser standard of certainty regarding the minor's Indian child status . . . than is the duty to send formal notice to the Indian tribes." (In re Alice M. (2008) 161 Cal.App.4th 1189, 1200.) Mother's August 2016 statement to the social worker that she had "Indian in her family," provided information suggesting that Ana may be a member or eligible for membership in a tribe. (§ 224.3, subd. (b)(1).) The Agency and the court were required to make further inquiry into Ana's possible Indian status. (§ 224.3, subd. (c).)
Yet, there was even less inquiry following Mother's disclosure of Indian family ties than the amount deemed insufficient in Michael V. To be sure, the Agency considered ICWA issues and dutifully updated multiple reports to the court with Ana's presumed ICWA status based on reasonable inferences from her older sibling's dependency. The Agency appears to have discussed with Mother her possible Indian ancestry. It even transmitted to the court in its due diligence report the new information that Mother said she had Indian ancestry in her family. Beyond conveying this information, however, the Agency appears to have conducted no follow-up. There is nothing in the record demonstrating inquiry of Mother regarding her new claim of Indian status. There was no outreach effort to the children's maternal grandmother, who was known to the Agency and had attended at least a couple of hearings. Nor was there an attempt to ask about the Indian status claim to Mother's sister, who testified at two hearings. Further, and most problematically, the Agency appears to have swept the information aside. Not only did the section 366.26 report omit any reference to Mother's statement about Indian ancestry, it reported the opposite information from Mother's August 9, 2016 communication with the social worker and made no effort to reconcile the conflict. This does not satisfy the Agency's inquiry obligations under ICWA. (Michael V., supra, 3 Cal.App.5th at pp. 230-231; In re A.G. (2012) 204 Cal.App.4th 1390, 1397, as modified (Apr. 20, 2012) [error under ICWA "obvious" where agency failed to follow up with father or his immediate or extended family members, several of whom were involved in dependency proceedings or in contact with agency, after he reported Native American ancestry].)
The Agency contends the information provide by Mother "did not even trigger a duty of further inquiry." The Agency refers us to the ICWA-020 form Mother completed for Ana's sibling's dependency case disclaiming any Indian ancestry and the multiple reports the Agency served on Mother repeating her statements disclaiming Indian ancestry. We have no reason to question these background facts, but the Agency fails to explain how past disclaimers relieve it or the court of their continuing duty to inquire. (§ 224.3, subd. (a); Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050 [reviewing court may refrain from considering points not supported by legal argument or citation to authorities]). This continuing duty is not suspended once a parent disclaims Indian ancestry. (Michael V., supra, 3 Cal.App.5th at pp. 230-231; In re Isaiah W. (2016) 1 Cal.5th at p. 15 [duty to conduct ICWA inquiry continues even after juvenile court found ICWA inapplicable at earlier hearing].)
The Agency also says that Mother's claim of "Indian in her family" was "a vague statement that lacked any information that could be followed-up on" and lacked specific information about tribes. We disagree that Mother's statement was too vague for ICWA inquiry purposes or that she needed particular tribal information when evidence suggesting a minor may be an Indian child can be enough to trigger ICWA. (See In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1406-1407; In re Andrew S. (2016) 2 Cal.App.5th 536, 545, 547-548 [court and agency still required to develop information to substantiate parent's belief he may have Indian ancestry even though he could not identify a tribe].) We also reject the Agency's suggestion that Mother's information needed to be more substantial. ICWA provides the targets and types of inquiries to be made when an Indian child may be involved. (See § 224.3, subd. (c); Cal. Rules of Court, rule 5.481, subd. (a)(4).) The Agency did not need additional information to interview Mother's mother or sister or to ask Mother about the discrepancy in her ICWA responses.
Finally, addressing Mother's conflicting August 9, 2016 statements to the social worker as reported in the due diligence and section 366.26 reports, the Agency states, "It appears that after further conversation it was again concluded that Mother did not have Native American ancestry." Later, the Agency states Mother "subsequently agreed that she did not have Native American ancestry as far as she knew." The Agency's explanation neither dispenses with Mother's Indian ancestry disclosure nor reconciles the conflicting reports. Rather, it stretches the record. The Agency reported in its August 2016 due diligence report as follows: "On 8/09/2016, the mother . . . stated to the undersigned, CWW Foster, that she has Indian in her family; however, she does not know the names of any tribes." However, in its section 366.26 report filed two months later, the Agency reported: "On 8/09/2016, the mother . . . stated to the undersigned, CWW Foster, that she does not have Native American ancestry as far as she knows." The reports give no indication—and the Agency cites to no evidence—that multiple conversations took place on August 9, 2016, or that the 366.26 report was the definitive one. There are two disparate accounts about what Mother told the social worker about her Indian ancestry on August 9, 2016. The conflicting information called out for further vetting.
The cases the Agency relies upon and discusses are inapplicable since they focus on the issue of notice, not inquiry. Accordingly, we do not address them.
The level of inquiry undertaken by the juvenile court or social services agencies or both in several of these cases is notable. For instance, in Jeremiah G. (2009) 172 Cal.App.4th 1514, after the father had stated it was possible he had Native American ancestry, the court directed the agency to notify the BIA and followed up on the status of the father's claim of Indian ancestry during the jurisdiction/disposition hearing only to find out the father had retracted the claim. (Id. at p. 1519.) In In re Shane G. (2008) 166 Cal.App.4th 1532, the court addressed ICWA following the mother's conflicting claims to Indian ancestry and sought copies of past ICWA notices related to the minor's siblings. (Id. at pp. 1536-1537.) In addition, the agency in Shane conducted at least one interview with a family member and filed an addendum report with information from its ICWA inquiry. (Id. at p. 1537.) --------
The juvenile court's response to Mother's belated revelation that "she has Indian in her family" was also deficient. After it had adopted the Agency recommendation to direct Mother to complete an ICWA-020 form at the August 2015 detention hearing, the court did not address ICWA again until the October 2016 section 366.26 hearing, when it found Ana was not an Indian child and that ICWA was inapplicable. In between these two events, there were multiple hearings during which Mother testified and could have been questioned about her Indian ancestry, but the record shows the court never mentioned ICWA even though "a juvenile court has an affirmative and continuing duty in all dependency proceedings to inquire into a child's Indian status." (Isaiah W., supra, 1 Cal.5th at p. 14.)
Mother's statement that she "ha[d] Indian in [her] family" that appeared in a due diligence report late into the dependency case did not prompt any response from the court. Nor did the court seek to clarify the conflict between this information and the contrary information in the section 366.26 report which the court ultimately adopted and upon which it based its ICWA findings. Once the court in Michael V., supra, 3 Cal.App.5th 225, received information about the mother's potential Indian ancestry, it questioned her about her ancestry claim, ordered the social services agency to conduct further investigation, and invited the parties to be heard on the ICWA investigation. (Id. at pp. 230-231, 235.) That oversight was deemed a failure to ensure an adequate investigation was conducted. (Id. at p. 235.) We cannot reach a different conclusion here where the court never even acknowledged Mother's statement.
We cannot conclude that the ICWA violations here constitute harmless error because there is no evidence in the record Ana is or could be an Indian child in light of Mother's representations in the sibling case that she had no Indian ancestry. We decline to presuppose that Mother's later statement regarding her Indian ancestry is baseless when no inquiry into that statement has taken place.
DISPOSITION
The order terminating Mother's parental rights is conditionally reversed for failure to comply with ICWA. The case is remanded to the juvenile court with directions to ensure full compliance with ICWA, including an investigation into Mother's claim of Indian ancestry. If that investigation produces additional information substantiating Mother's claim, notice must be provided to any tribe that is identified or, if the tribe cannot be determined, to the BIA. If after proper notice, a tribe intervenes in the case or determines that the children are Indian children within the meaning of ICWA, the court shall proceed accordingly. If no tribe intervenes, or responds that Ana is not an Indian child, the order terminating Mother's parental rights shall be reinstated.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Jenkins, J.