Opinion
F086264
10-05-2023
In re B.L.W. et al., Persons Coming Under the Juvenile Court Law. v. B.W., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County Nos. 20CEJ300247-2, 20CEJ300247-3. Amythest Freeman, Judge.
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
B.W. (mother) appeals from the juvenile court's order terminating her parental rights to B.L.W. and S.W. (collectively, the children) pursuant to Welfare and Institutions Code section 366.26. She contends the Fresno County Department of Social Services (department) and the court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because she claimed Cherokee ancestry and the department failed to send notice to the tribe. The department concedes it committed prejudicial error.
All further statutory references are to the Welfare and Institutions Code.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
For the reasons discussed herein, we accept the department's concession of ICWA error. Consistent with our decisions in In re K.H. (2022) 84 Cal.App.5th 566 (K.H.) and In re E.C. (2022) 85 Cal.App.5th 123 (E.C.), we conclude "the error is prejudicial because neither the [department] nor the court gathered information sufficient to ensure a reliable finding that ICWA does not apply and remanding for an adequate inquiry in the first instance is the only meaningful way to safeguard the rights at issue. ([In re A.R. (2021)] 11 Cal.5th [234,] 252-254 [(A.R.)].) Accordingly, we conditionally reverse the juvenile court's finding that ICWA does not apply and remand for further proceedings consistent with this opinion, as set forth herein." (K.H., at p. 591; accord, E.C., at pp. 157-158.)
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue on appeal concerns ICWA, we restrict our facts to those bearing on that issue or helpful for clarity. Additionally, we exclude a majority of the facts pertaining to the alleged fathers because they were excluded as fathers.
Petition and Detention
On January 7, 2022, the department filed a petition on behalf of the children pursuant to section 300, subdivision (b)(1). The petition contained an Indian Child Inquiry Attachment (ICWA-010(A)) form for each child stating mother gave no reason to believe the children were or could be Indian children. The children were detained and placed in a licensed foster home.
The detention report stated ICWA did or could apply. Mother denied having Indian ancestry, but an inquiry had not been conducted with the alleged father. The department was in the process of following up with him.
On January 12, 2022, the juvenile court held a detention hearing where it conducted an ICWA inquiry with mother and she again denied having Indian ancestry. The court found a prima facie case had been established and ordered the children removed from mother.
Jurisdiction and Disposition
The department's jurisdiction and disposition report stated ICWA could apply. Although mother had denied having Indian ancestry, it had been unable to reach the alleged father to make an inquiry. The report further indicated the department had been in contact with maternal aunt R.W. and maternal great-aunt J.F. for placement purposes.
On March 16, 2022, the juvenile court conducted a jurisdiction hearing where it found the allegations true and set a contested disposition hearing.
On October 3, 2022, the juvenile court conducted a contested disposition hearing. It found ICWA inapplicable, adjudged the children dependents of the court, bypassed mother for reunification services, and set a section 366.26 hearing.
Section 366.26The section 366.26 report stated that after the juvenile court found ICWA inapplicable, mother reported she had Cherokee ancestry through paternal grandfather's side of the family. Thereafter, a social worker spoke with maternal aunt A.G., who reported she did not have any information about the family's Indian ancestry because she was raised in foster care and did not have contact with anyone. The social worker also spoke with maternal uncle P.W., who was not aware of any Indian ancestry and maternal half uncle W.B., who said there was no Indian ancestry in the family. The social worker attempted to contact maternal great-aunt J.F., maternal aunt R.W., maternal aunt D.L., maternal half uncle B.B., maternal uncle L.B., maternal uncle D.B., and maternal uncle M.B., but was unsuccessful.
On April 3, 2023, the juvenile court conducted a section 366.26 hearing where it terminated parental rights.
On May 17, 2023, mother filed a notice of appeal.
DISCUSSION
I. ICWA
A. Legal Principles
" 'ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation' [citations], in furtherance of 'federal policy" 'that, where possible, an Indian child should remain in the Indian community'"' [citations]. 'ICWA establishes minimum federal standards, both procedural and substantive, governing the removal of Indian children from their families' [citations], and '[w]hen ICWA applies, the Indian tribe has a right to intervene in or exercise jurisdiction over the proceeding.'" (K.H., supra, 84 Cal.App.5th 566, 594, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 138, fn. omitted.)
" 'In 2006, California adopted various procedural and substantive provisions of ICWA.' [Citations.] The Legislature's 'primary objective ... was to increase compliance with ICWA. California Indian Legal Services (CILS), a proponent of the bill, observed that courts and county agencies still had difficulty complying with ICWA 25 years after its enactment, and CILS believed codification of [ICWA's] requirements into state law would help alleviate the problem.'" (K.H., supra, 84 Cal.App.5th at p. 595; accord, E.C., supra, 85 Cal.App.5th at pp. 138-139.)
" 'In 2016, new federal regulations were adopted concerning ICWA compliance. [Citation.] Following the enactment of the federal regulations, California made conforming amendments to its statutes, including portions of the Welfare and Institutions Code related to ICWA notice and inquiry requirements. [Citations.] Those changes became effective January 1, 2019 ._' [Citation.] Subsequently, the Legislature amended section 224.2, subdivision (e), to define 'reason to believe,' effective September 18, 2020." (K.H., supra, 84 Cal.App.5th at pp. 595-596, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 139.)
1. Summary of Duties of Inquiry and Notice
"[W]hether a child is a member, or is eligible for membership, in a particular tribe is a determination that rests exclusively with the tribe, and neither the [department] nor the court plays any role in making that determination. [Citations.]' "Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case." '" (K.H., supra, 84 Cal.App.5th at p. 596; accord, E.C., supra, 85 Cal.App.5th at pp. 139-140.)
"In California, section 224.2 'codifies and elaborates on ICWA's requirements of notice to a child's parents or legal guardian, Indian custodian, and Indian tribe, and to the [Bureau of Indian Affairs].'" (In re A.R. (2022) 77 Cal.App.5th 197, 204.) California law imposes "an affirmative and continuing duty [on the court and the county welfare department] to inquire whether a child for whom a petition under [s]ection 300 ... may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a).)
"The [state law] 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." (§ 224.2, subd. (a).) "If a child is placed into the temporary custody of a county welfare department pursuant to [s]ection 306 . . ., the county welfare department . . . has a duty to inquire whether that child is an Indian child. 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 and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) Additionally, "[a]t the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." (§ 224.2, subd. (c).)
"If the initial inquiry provides 'reason to believe' that an Indian child is involved in a proceeding-that is, if the court or social worker 'has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe'-then the court or social worker 'shall make further inquiry' regarding the child's possible Indian status as soon as practicable." (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 999 (Ezequiel G.), citing § 224.2, subd. (e).) "Further inquiry 'includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of Indian Affairs and the State Department of Social Services[; and] [¶] (C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility.'" (Ezequiel G., at p. 999.)
"If there is 'reason to know' a child is an Indian child, the [department] shall provide notice to the relevant tribes and agencies in accordance with section 224.3, subdivision (a)(5)." (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2, subd. (f).) "There is 'reason to know' a child is an Indian child if any one of six statutory criteria is met-i.e., if the court is advised that the child 'is an Indian child,' the child's or parent's residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (Ezequiel G., at p. 999, citing § 224.2, subd. (d).)
County welfare departments "must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status, as well as evidence of how and when this information was provided to the relevant tribes. Whenever new information is received, that information must be expeditiously provided to the tribes." (Cal. Rules of Court, rule 5.481(a)(5).)
All further references to rules are to the California Rules of Court.
B. Standard of Review
"The juvenile court's finding that ICWA does not apply to the proceeding rests on two elemental determinations, 'subject to reversal based on sufficiency of the evidence.'" (K.H., supra, 84 Cal.App.5th at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., supra, 85 Cal.App.5th at pp. 142-143.) First, "[t]he court must find there is 'no reason to know whether the child is an Indian child,' which is dependent upon whether any of the six circumstances set forth in subdivision (d) of section 224.2 apply." (K.H., at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.) Second, "[t]he juvenile court must ... find a 'proper and adequate further inquiry and due diligence ...'" K.H., at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.
Under the substantial evidence standard," 'a reviewing court should "not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." [Citation.] The determinations should "be upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence."' [Citations.] The standard recognizes that '[t]rial courts "generally are in a better position to evaluate and weigh the evidence" than appellate courts' [citation], and 'an appellate court should accept a trial court's factual findings if they are reasonable and supported by substantial evidence in the record' [citation]. '[I]f a court holds an evidentiary hearing, it may make credibility determinations, to which an appellate court would generally defer.'" (K.H., supra, 84 Cal.App.5th at p. 601; accord, E.C., supra, 85 Cal.App.5th at p. 143.)
The juvenile court's finding on the second element, however, "is ultimately discretionary because it requires the juvenile court to 'engage in a delicate balancing of' various factors in assessing whether the [department's] inquiry was proper and adequate within the context of ICWA and California law, and whether the [department] acted with due diligence." (K.H., supra, 84 Cal.App.5th at p. 601, quoting In re Caden C. (2021) 11 Cal.5th 614, 640; accord, E.C., supra, 85 Cal.App.5th at p. 143; Ezequiel G., supra, 81 Cal.App.5th at pp. 1004-1005.) Therefore, we employ a hybrid standard and review the court's determination for substantial evidence and abuse of discretion. (K.H., at p. 601; accord, E.C., at pp. 143-144; Ezequiel G., at pp. 1004-1005.)
" 'Review for abuse of discretion is subtly different [from review for substantial evidence], focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when"' "the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" [Citation.] But"' "[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court" '" [citations.] [¶] While each standard here fits a distinct type of determination under review, the practical difference between the standards is not likely to be very pronounced.'" (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 85 Cal.App.5th at pp. 143-144.)
"Review of the juvenile court's findings under the foregoing standards is deferential, but' "an appellate court [nevertheless] exercises its independent judgment to determine whether the facts satisfy the rule of law."' [Citations.] Where the material facts are undisputed, courts have applied independent review to determine whether ICWA's requirements were satisfied." (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra, 85 Cal.App.5th at p. 144.)
C. Analysis 1. Summary of ICWA Inquiry and Notice
In the present case, the department and the juvenile court both conducted inquiries with mother. Mother initially denied having Indian ancestry and the court found ICWA inapplicable. However, after the court made an ICWA finding, mother claimed Indian ancestry through her paternal grandfather's side of the family. The social worker spoke to three extended family members who did not have further information about the family's ancestry. She also attempted to speak to several other family members, but was unsuccessful.
Mother argues that her claim of Indian ancestry provided a reason to believe the children could be Indian children and triggered the duty of further inquiry. The department concedes the tribe should have been provided with notice.
In K.H. and E.C., we addressed ICWA error at the inquiry stage. There, we explained our decision not to follow the approaches articulated by other appellate courts for determining whether ICWA error requires reversal and concluded that the Supreme Court's decision in A.R. supplies the appropriate framework for assessing prejudice in this context. (K.H., supra, 84 Cal.App.5th at pp. 607-608, citing A.R., supra, 11 Cal.5th at pp. 252-254; accord, E.C., supra, 85 Cal.App.5th at p. 152.) Applying the standards we articulated in K.H. and E.C., as we discuss below, we agree with the parties and conclude the department's error is prejudicial and remand for the department to conduct a proper, adequate, and duly diligent inquiry is necessary.
2. Department and Juvenile Court Erred
As previously mentioned, "[i]f the initial inquiry provides 'reason to believe' that an Indian child is involved in a proceeding-that is, if the court or social worker 'has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe'-then the court or social worker 'shall make further inquiry' regarding the child's possible Indian status as soon as practicable." (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2, subd. (e).) "Further inquiry 'includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of Indian Affairs and the State Department of Social Services[; and] [¶] (C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility.'" (Ezequiel G., at p. 999.)
Here, the department failed to contact the Cherokee tribe after mother gave reason to believe the children could be Indian children. Accordingly, the juvenile court's finding that ICWA did not apply was not supported by substantial evidence, and its contrary conclusion was an abuse of discretion. (§ 224.2, subd. (i)(2).)
3. Prejudice
"Where, as here, the deficiency lies with the [department's] duty of ... inquiry and a juvenile court's related finding of 'proper and adequate further inquiry and due diligence' (§ 224.2, subd. (i)(2)), the error is one of state law ([In re] Benjamin M., supra, 70 Cal.App.5th at p. 742). Under the California Constitution, '[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.)" (K.H., supra, 84 Cal.App.5th at p. 606; accord, E.C., supra, 85 Cal.App.5th at p. 151.)
" '[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice' [citations], and California law generally interprets its constitutional miscarriage of justice requirement 'as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.'" (K.H., supra, 84 Cal.App.5th at pp. 606-607; accord, E.C., supra, 85 Cal.App.5th at pp. 151-152.)
However, in A.R., the Supreme Court "recognized that while we generally apply a Watson likelihood-of-success test to assess prejudice, a merits-based outcome-focused test is not always appropriate because it cannot always adequately measure the relevant harm. [Citation.] In other words, where the injury caused by the error is unrelated to an outcome on the merits, tethering the showing of prejudice to such an outcome misplaces the measure, at the expense of the rights the law in question was designed to protect." (K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)
People v. Watson (1956) 46 Cal.2d 818, 836.
As we explained in K.H., " 'ICWA compliance presents a unique situation ._'" (K.H., supra, 84 Cal.App.5th at p. 608.) "ICWA is not directed at reaching, or protecting, a specific outcome on the merits." (Id. at p. 609; accord, E.C., supra, 85 Cal.App.5th at p. 154.) Rather," '[t]he purpose of ICWA and related California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child, and whether the tribe wishes to intervene in the proceedings' [citation], and an adequate initial inquiry facilitates the information gathering upon which the court's ICWA determination will rest." (K.H., at p. 608; accord, E.C., at pp. 152153.) Yet, "while the appealing party is usually a parent, parents do not bear the burden of gathering information in compliance with ICWA [citations], and parents may raise the claim of error for the first time on appeal." (K.H., at p. 608; accord, E.C., at p. 153.) Further, the ultimate determination whether a child is an Indian child rests with the tribe, not with a parent, the department, or the juvenile court. (K.H., at p. 590; accord, E.C., at pp. 139-140.) "[W]here the opportunity to gather the relevant information critical to determining whether the child is or may be an Indian child is lost because there has not been adequate inquiry and due diligence, reversal for correction is generally the only effective safeguard." (K.H., at p. 610, citing A.R., supra, 11 Cal.5th at pp. 252-254; accord, E.C., at p. 155.)
Here, the department's inquiry" 'fell well short of that required to gather the information needed to meaningfully safeguard the rights of the tribes, as intended under ICWA and California law'" (E.C., supra, 85 Cal.App.5th at p. 156, quoting K.H., supra, 84 Cal.App.5th at p. 620), and "[a] finding of harmlessness on this record would necessarily require speculation and 'is at odds with the statutory protections that ICWA and California law intend to afford Indian children and Indian tribes.'" (E.C., at p. 155, quoting K.H., at p. 611.) Therefore, the error is prejudicial and reversal is required.
Accordingly, the juvenile court's finding that ICWA does not apply is conditionally reversed and the matter is remanded. The court is instructed to ensure the department conducts" 'a proper, adequate, and duly diligent inquiry under section 224.2, subdivision[s] (b) [and (e)], and document its inquiry in the record in compliance with rule 5.481(a)(5).'" (E.C., supra, 85 Cal.App.5th at p. 157, quoting K.H., supra, 84 Cal.App.5th at p. 621.)" 'This should not be interpreted as requiring an exhaustive search for and questioning of every living relative of [the children]' but '[w]e leave that determination for the juvenile court in the first instance because it is better positioned to evaluate the evidence provided by the [d]epartment. So long as the court ensures the inquiry is reasonable and of sufficient reach to accomplish the legislative purpose underlying ICWA and related California law, the court will have an adequate factual foundation upon which to make its ICWA finding. (§ 224.2, subd. (i)(2).)'" (E.C., supra, 85 Cal.App.5th at p. 157, quoting K.H., supra, 84 Cal.App.5th at p. 621.)
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the department to comply with the inquiry and documentation provisions set forth in section 224.2, subdivisions (b) and (e), and rule 5.481(a)(5). If, after determining that an adequate inquiry was made consistent with the reasoning in this opinion, the court finds that ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, its ICWA finding shall be reinstated. In all other respects, the court's order is affirmed.
[*] Before Hill, P. J., Detjen, J. and Snauffer, J.