Opinion
C100689
09-20-2024
In re K.O., a Person Coming Under the Juvenile Court Law. v. M.O. et al., Defendants and Appellants. COLUSA COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. JU4163
DUARTE, J.
The parents of the minor K.O. appeal from the juvenile court's order terminating parental rights and freeing their minor child for adoption. (Welf. &Inst. Code, §§ 366.26, 395.) Mother claims the Colusa County Department of Health and Human Services (Department) failed to fulfill its duties of inquiry and notice as required by the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.), and the juvenile court abused its discretion when it found the ICWA did not apply. Father joins in mother's claims. The Department concedes the errors. We agree and will conditionally reverse the juvenile court's orders and remand the matter for further proceedings related to the ICWA.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Because the issues on appeal are limited to compliance with the ICWA, we dispense with a detailed recitation of the underlying facts and procedural history.
The eight-month-old minor was removed from mother's custody and care pursuant to a dependency petition alleging mother's inability to care for the minor due to mother's mental illness. (§ 300, subd. (b).) The minor's alleged father lived in Mexico and was unable to take custody of the minor. At that time, mother denied any Indian ancestry and stated there was no known Indian ancestry on father's side. The maternal uncle also denied Indian ancestry.
At the detention hearing, the court questioned mother regarding possible Indian heritage and ordered mother to ask her relatives and report back to the Department. The Department reported that it had been in contact with father but did not inquire about the ICWA.
In January 2023, the Department reported there was no reason to believe or know the minor was an Indian child because mother signed a parental notification of Indian status confirming she had no Indian ancestry. The Department stated it would continue to question family members regarding possible Indian heritage.
The Department's March 2023 jurisdiction report stated the ICWA "does not apply." The report noted that father was an alleged father and was not present at the minor's birth. At the disposition hearing later that month, the court found there was no reason to believe the ICWA applied.
On August 28, 2023, father stated he did not have any Indian ancestry and completed a parental notification of Indian status to that effect.
At the September 2023 six-month review hearing, the court ordered father to take a paternity test and asked him about any possible Indian ancestry, instructing him to ask his relatives if they were members of Indian tribes and report back to the Department. At the continued hearing the following month, the court terminated mother's reunification services and set the matter for a section 366.26 hearing.
The section 366.26 report reiterated ICWA information previously provided, set forth no new inquiry efforts by the Department, and stated the ICWA "does not apply." The report noted that father was now residing in Colusa County, having moved to California several months after the disposition hearing.
The section 366.26 hearing commenced on February 5, 2024. Based on the results of the paternity test, the court found father to be a presumed father. Making no new or supplemental ICWA findings, the court terminated parental rights and ordered adoption as the appropriate permanent plan. The parents timely appealed.
DISCUSSION
Mother contends the Department failed to undertake a proper ICWA inquiry by not investigating possible Indian ancestry through the minor's maternal and paternal relatives and not inquiring further of father once the court found him to be the minor's actual biological father. Father joins in the arguments. We agree with the parents.
Although mother, father, and maternal uncle initially denied having Indian ancestry, the Department told the juvenile court it would continue to question family members regarding possible Indian heritage. It does not appear the Department identified or inquired of other family members or involved persons regarding possible Indian ancestry prior to the court's finding that the ICWA did not apply. Further, it does not appear that the Department made further inquiry of father once the court found him to be the minor's biological father. In any event, the record of the Department's inquiry efforts is virtually undeveloped, giving us little information as to what, if anything, the Department did do in attempting to fulfill its duty under the ICWA prior to the court's ruling.
The Department concedes it did not fully comply with the inquiry requirements of the ICWA but asserts it "has taken steps to cure its error and has made further inquiry with the parents and family members," all of whom "have denied any Native American ancestry....Based on the additional information provided, the trial court reaffirmed its order that the [ICWA] does not apply." Attached to the Department's letter (in lieu of a brief) were documents purporting to evidence its further ICWA inquiry and the juvenile court's findings thereon. The parents opposed our consideration of these attachments. We filed the letter but disregarded the attachments and will decide the case on the present record. (See In re K.M. (2015) 242 Cal.App.4th 450, 458-459 ["the juvenile court acted in excess of its jurisdiction in revisiting the termination order while the matter was being reviewed on appeal pursuant to section 366.26, subdivision (i)," and the agency's new evidence and the juvenile court's postjudgment order "have no relevance to the subject of this appeal, i.e., review of the termination order"]; In re Kenneth D. (2024) 16 Cal.5th 1087, 1099-1100 [we review the rulings of the juvenile court based on the evidence before that court at the time of its challenged ruling].)
As the court in In re K.M. aptly noted: "The most expeditious and efficient way to solve this problem is for the parties to stipulate to a limited reversal and an expedited remittitur." (In re K.M., supra, 242 Cal.App.4th at p. 458.) We strongly encourage the parties to utilize such a procedure if and when similar circumstances arise in the future.
Child welfare agencies and juvenile courts "have 'an affirmative and continuing duty' in every dependency proceeding to determine whether ICWA applies by inquiring whether a child is or may be an Indian child. (§ 224.2, subd. (a).) This 'duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child.'" (In re Dezi C. 16 Cal.5th 1112, 1131-1132 (Dezi C.).) This duty of inquiry" 'continues throughout the dependency proceedings.'" (In re J.C. (2022) 77 Cal.App.5th 70, 77.)
"When the agency has 'reason to believe' that an Indian child is involved, further inquiry regarding the possible Indian status of the child is required. (§ 224.2, subd. (e); see also [Cal. Rules of Court,] rule 5.481(a)(4).)" (Dezi C., supra, 16 Cal.5th at p.1132, fn. omitted.) "If the inquiry establishes a reason to know an Indian child is involved, notice must be provided to the pertinent tribes. (§ 224.3, subds. (a), (b); 25 U.S.C. § 1912(a).)" (Id. at p. 1133.)
A juvenile court must make a finding whether the ICWA applies. (H.A. v. Superior Court (2024) 101 Cal.App.5th 956, 965-966; In re E.W. (2009) 170 Cal.App.4th 396, 403.) A juvenile court's finding that the ICWA does not apply is "subject to reversal based on sufficiency of the evidence." (§ 224.2, subd. (i)(2).) Its "fact-specific determination that an inquiry is adequate, proper, and duly diligent is 'a quintessentially discretionary function' [citation] subject to a deferential standard of review." (Dezi C., supra, 16 Cal.5th at p. 1141.)" 'On a well-developed record, the court has relatively broad discretion to determine whether the agency's inquiry was proper, adequate, and duly diligent on the specific facts of the case. However, the less developed the record, the more limited that discretion necessarily becomes.'" (In re Kenneth D., supra, 16 Cal.5th at pp. 1101-1102) Given that the parties agree the information before the juvenile court was inadequate at the time of the court's ruling, we will conditionally reverse.
Mother also contends the juvenile court erred when it directed father to undertake the ICWA investigation and report back to the Department. We agree and note that the court also improperly directed mother to do the same. While the parents certainly play a vital role in providing information regarding possible Indian ancestry, the courts and the child welfare agencies are charged with the affirmative and continuing duty of ICWA inquiry, not the parents. (Dezi C., supra, 16 Cal.5th at p. 1130.)
Finally, given our conclusion that the Department failed to undertake a proper ICWA inquiry and the matter must be remanded for limited ICWA proceedings, we need not address mother's claim that the juvenile court abused its discretion in finding the ICWA did not apply.
DISPOSITION
The juvenile court's orders terminating parental rights are conditionally reversed. On limited remand, the juvenile court shall appoint new legal counsel for mother and shall further order the Department to comply with the inquiry and notice provisions of the ICWA, as well as the requirements of sections 224.2 and 224.3 and the documentation provisions of California Rules of Court, rule 5.481(a)(5). If the juvenile court thereafter finds a further inquiry was proper and adequate, due diligence has been conducted, and the ICWA does not apply, the orders shall be reinstated. If, however, the juvenile court concludes the ICWA applies, the juvenile court is ordered to conduct a new section 366.26 hearing and proceed in accordance with the ICWA and California implementing provisions.
We concur: Hull, Acting P. J., Renner, J.