Opinion
C097557
09-13-2023
In re S.B., a Person Coming Under the Juvenile Court Law. v. J.B., Defendant and Appellant. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. 22DP00064
WISEMAN, J. [*]
Appellant J.B. (father), father of the minor, S.B. (the minor), appeals from the juvenile court's orders terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) Father's sole contention on appeal is that we must conditionally reverse for further Indian Child Welfare Act (ICWA) compliance because the initial inquiry by the Butte County Department of Employment and Social Services (Department) was insufficient to support the juvenile court's finding that the ICWA does not apply. (25 U.S.C. § 1901 et seq.; § 224.2.) Specifically, father contends the Department failed to contact extended family members to inquire about the ICWA. (25 U.S.C. § 1901 et seq.; § 224.2.)
Undesignated statutory references are to the Welfare and Institutions Code.
We will conditionally affirm subject to full compliance with the ICWA on remand, as described in this opinion.
BACKGROUND
Because the issue on appeal is limited to ICWA compliance, we dispense with a detailed recitation of the underlying facts and procedure. It suffices to say that in March 2022, mother S.T. (mother) gave birth to the minor, and mother and the minor both tested positive for methamphetamine and marijuana. Mother admitted she used methamphetamine regularly throughout her pregnancy. Father also admitted to long-term daily methamphetamine use. At birth, the minor was transferred to the neonatal intensive care unit due to respiratory distress, irregular body temperature, and feeding difficulties requiring a feeding tube. The Department was notified, requested a protective custody warrant, and took the minor into custody. On March 23, 2022, the Department filed a petition alleging that the infant minor came within the provision of section 300, subdivision (a), serious physical harm, and section 300, subdivision (b)(1), failure to protect. In the ICWA-010 form attached to the petition, the Department indicated it had no reason to believe the minor is or may be an Indian child.
At the March 25, 2022, detention hearing, father and mother both denied any Native American ancestry. The juvenile court determined the ICWA did not apply. On April 13, 2022, on request of the Department's counsel, the juvenile court set aside its ruling that the ICWA did not apply. On April 14, 2022, father and mother both filed ICWA-020 forms denying any Native American ancestry. In its May 4, 2022, disposition report, the Department stated it would "continue to interview relatives with respect to the children's possible Indian ancestry." On June 15, 2022, the juvenile court noted ICWA status in the matter was "pending."
At the June 15, 2022, dispositional hearing, the juvenile court bypassed both father and mother for reunification services pursuant to section 361.5, subdivision (b), and set a selection and implementation hearing pursuant to section 366.26. In its section 366.26 report, the Department stated that the juvenile court "ruled out ICWA" at the initial detention hearing. On October 12, 2022, the juvenile court held the section 366.26 hearing, where father and mother both failed to appear. The juvenile court found the minor adoptable, determined no statutory exceptions to adoption were applicable, and terminated father's and mother's parental rights. The court made no further orders or findings related to ICWA, and the record does not disclose that any further inquiry regarding the minor's heritage was conducted. However, the record does show that the Department had information about and/or had contact with several extended family members for other purposes, including the maternal grandfather, maternal uncle, paternal grandmother, paternal grandfather, paternal uncle, paternal aunt, and father's stepsiblings.
Father timely appealed.
DISCUSSION
Father contends that the Department and the juvenile court failed to comply with their initial duty of inquiry under section 224.2, subdivision (b). He also notes that the juvenile court failed to make a new ICWA finding after setting aside its initial finding. We agree that we must remand the matter for further ICWA proceedings.
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.)
"[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency's initial contact with a minor and his [or her] family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the Agency 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone 'knows or has reason to know that the child is an Indian child']; id., subd. (d) [defining circumstances that establish a 'reason to know' a child is an Indian child]; § 224.3 [ICWA notice is required if there is a 'reason to know' a child is an Indian child as defined under § 224.2, subd. (d)].)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) We review claims of inadequate inquiry into a child's Native American ancestry for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
Due to changes in California law over the past few years, agencies now have a broader duty of inquiry and a duty of documentation. (§ 224.2, subd. (b); Cal. Rules of Court, rule 5.481(a)(5).) Father cites section 224.2, subdivision (b), which imposes a more extensive duty to inquire about Indian ancestry if a child is placed in the temporary custody of a welfare department (§ 306) or probation department (§ 307): "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).)
As father notes, the record here shows the Department did not take temporary custody of S.B. pursuant to section 306, but rather, the minor was taken into protective custody pursuant to a warrant. In such cases, there is a question as to whether the mandates of section 224.2, subdivision (b) are applicable and interpretations of the statute have varied. (Compare In re Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743 [holding that duty to inquire of extended family members under § 224.2, subd. (b) is triggered only when child is taken into temporary emergency custody under § 306] & In re Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023, S280572 [following In re Robert F.] with In re Delila D. (2023) 93 Cal.App.5th 953, 973 [holding that "section 224.2(b)'s reference to temporary custody 'pursuant to [s]ection 306' is better read as including children who, though initially removed by protective custody warrant, are then delivered or placed into the department's custody pending a detention hearing" and the child welfare agency's duty of inquiry is the same regardless of how the minor was removed from the home].) The parties have not raised and briefed the issue, however, and because the juvenile court failed to make an ICWA finding in this matter, we need not reach this issue at this juncture. We assume that on remand, the juvenile court will require the Department to make further reasonable inquiry of extended family members, as appropriate.
As a preliminary matter, the juvenile court failed to make any further ICWA findings after its initial finding that the ICWA may apply, including finding the Department satisfied its obligation to inquire. While the court initially found that the ICWA did not apply at the detention hearing, the court subsequently set aside this ruling. In its disposition report, the Department stated it would "continue to interview relatives with respect to the children's possible Indian ancestry." Shortly thereafter, the juvenile court noted ICWA status in the matter was "pending," but there were no further notations on the matter until the Department's section 366.26 report referencing the court's original vacated finding. Thus, it appears from the record that the court vacated its finding so that the Department could make further appropriate inquiry, including with the minor's extended family members, but there was no further ICWA inquiry and no further ICWA compliance findings.
A juvenile court must make findings as to the applicability of ICWA and its failure to do so is an error. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 704-705, 709.) The juvenile court also had a duty to ensure that the Department made an appropriate inquiry and then make a finding based on that inquiry. (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, the juvenile court made no explicit findings as to the adequacy of the Department's inquiry or whether the ICWA applied after setting aside its initial finding. This was error. Because it does not appear from the record what, if any, additional inquiry was undertaken, and because the juvenile court did not make a finding on the subject, any remarks we would make on the adequacy of the Department's inquiry would be advisory. (See People v. Buza (2018) 4 Cal.5th 658, 693 ["We . . . abide by . . . a' "cardinal principle of judicial restraint -- if it is not necessary to decide more, it is necessary not to decide more"' "].) Accordingly, we remand the matter for further ICWA compliance, as previously ordered by the juvenile court, and for the court to enter a new ICWA finding based on the Department's further inquiry.
DISPOSITION
The orders terminating parental rights are conditionally affirmed subject only to full compliance with the ICWA as described in this opinion. If, on remand, the juvenile court determines the ICWA applies, the court shall vacate its previous orders terminating parental rights and conduct further proceedings consistent with the ICWA, including a new section 366.26 hearing. (25 U.S.C. § 1914; § 224, subd. (e).)
We concur: DUARTE, Acting P. J., RENNER, J.
[*]Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.