Opinion
A167410
06-15-2023
G.H., Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ALAMEDA, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. Nos. JD03369701, JD03369601)
BOWEN, J. [*]
In this juvenile writ proceeding, G.H. (Mother) seeks extraordinary relief from the juvenile court's order terminating her reunification services and setting a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. She contends that the Alameda County Social Services Agency (Agency) and the juvenile 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. We agree and grant the petition. In so doing, we remand the matter with directions to the juvenile court to set aside its finding that ICWA does not apply and to comply with the mandatory inquiry provisions of section 224.2.
Undesignated statutory references refer to the Welfare and Institutions Code.
I. BACKGROUND
We briefly summarize the relevant dependency proceedings and focus on the facts related to the adequacy of the ICWA inquiry, which is the sole issue G.H. raises in her petition.
At Mother's unopposed request, we take judicial notice of the record filed in her direct appeal (A166398). (See Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
In June 2021, Mother was arrested while she was in a car with her two young children-three-year-old I.V. and fourteen-month-old K.S. The children were not in car seats, and large amounts of drugs, including crystal methamphetamine and fentanyl, were located in the car within their reach. The Agency filed a petition under subdivision (b)(1) of section 300, alleging that the children were at substantial risk of harm as a result of Mother's failure or inability to supervise or adequately protect them. When the Agency filed the petition, the whereabouts of the children's fathers were unknown.
The trial court record at times refers to I.V. and K.S. as I.H. and K.H., respectively. For consistency, we refer to the children as I.V. and K.S.
Before filing the petition, the Agency interviewed Mother regarding the children's Indian status, and Mother gave the Agency "no reason to believe the child is or may be an Indian child." The Agency's detention report, filed a few days later, showed that Mother said she was from Honduras and had no Native American ancestry. The Agency was also in contact with I.V.'s paternal aunt, who attended the removal Child and Family Team meeting. The report showed that the aunt spoke to a social worker about Mother and I.V.'s father (her brother). The social worker later asked the aunt whether she would like to be considered as a placement for the children. However, there is no indication that the social worker asked this relative any questions about I.V.'s possible Indian ancestry.
Mother attended the June 30, 2021 contested detention hearing by video. The record does not indicate whether the court asked her about the children's possible Indian ancestry as section 224.2, subdivision (c) requires. Approximately two weeks later, the Agency filed its jurisdiction and disposition report. According to that report, Mother stated that she came to the United States from Honduras at the age of fourteen and initially lived with her father in San Francisco. The Agency also spoke with the alleged fathers of I.V. and K.S., J.C. and E.S., respectively. Both of the fathers stated they were also from Honduras.
In August 2021, the Agency amended the petition to allege that the children's fathers had drug histories that placed the children at risk of substantial physical danger. Before filing the amended petition, a social worker spoke with Mother and both fathers. Based on those inquiries, the social worker declared in the amended petition that the parents had given her no reason to believe the children may be Indian children.
The amended petition alleged that J.C., I.V.'s father, was hospitalized and unable to walk because of his drug use. The amended petition alleged that K.S.'s father, E.S., had a history of drug sales and was currently on probation and subject to GPS monitoring for a drug-sales related offense.
In multiple addendum reports filed between October 2021 and January 2022, the Agency reported that the fathers stated they did not have any Native American ancestry. E.S. said he was born in Honduras, came to the United States as a minor, and had family in the Bay Area. J.C. also reported that he was originally from Honduras and had one sister who lived in San Francisco and another sister who lived out of state.
None of the addendum reports reflect any further ICWA inquiries directed to the other family members who were known to the Agency. The October 2021 report demonstrates that the Agency was in contact with the maternal grandmother in September 2021. The November 2021 report shows that Mother provided the Agency contact information for I.V.'s other paternal aunt. The January 2022 addendum report shows that the Agency communicated with the maternal aunt in late December 2021 and early January 2022, and that J.C., I.V.'s father, told the social worker in January that his sister and mother would consider providing care for I.V. in the event Mother did not reunify with him.
At the combined jurisdiction and disposition hearing on January 20, 2022, the court found that ICWA did not apply. The court sustained the allegations in the amended petition, declared the children dependents of the juvenile court, and adopted the recommendations in the Agency's report.
A status review report prepared for the six-month review showed that the maternal grandmother and two other extended family members informed the Agency that they would like to be assessed for placement of the children. The court continued the sixth-month review hearing multiple times and eventually combined it with the twelve-month review.
The status review report prepared in August 2022 for the twelve-month review hearing reflected that Mother had identified the maternal grandfather, the maternal aunt, and the children's godmother as her support system. The Agency was in recent contact with the maternal grandfather and the children's godmother, but the report does not indicate whether the Agency made any ICWA inquiries of those family members.
At the combined sixth- and twelve-month review hearing in October 2022, the court found that Mother had made minimal progress in mitigating the circumstances that led to the children's removal and that the return of the children would create a substantial risk of detriment to them. The court ordered that reunification services for Mother continue to the permanency hearing.
A status review report prepared in November 2022 for the eighteenmonth review reiterated that Mother and E.S. were both born in Honduras and had no tribal affiliation. According to the report, E.S. said that all his family were in Honduras. The report further stated that Mother continued to identify the maternal grandfather and the maternal aunt as her main support system. An addendum report prepared in March 2023 documented the maternal aunt's participation in a Child Family Team meeting in February 2023. There is no indication in any of these reports that the Agency asked those family members about the children's possible Indian ancestry.
At the eighteen-month status review hearing on March 10, 2023, the court terminated Mother's reunification services. The court again found that ICWA did not apply and set the matter for a permanency planning hearing under section 366.26.
Mother filed this timely petition for extraordinary writ. On May 15, 2023, this court issued an Order to Show Cause and Oral Argument Notice. The Agency filed its response to the writ petition on May 22, 2023. The matter is fully briefed and neither side has requested oral argument.
II. DISCUSSION
A. Legal Background and Standard of Review
Congress enacted ICWA to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) "ICWA reflects a congressional determination 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 T.G. (2020) 58 Cal.App.5th 275, 287, disagreed with on another ground by In re Ezequiel G. (2022) 81 Cal.App.5th 985, 1011.) California has adopted statutes and rules that "implement, interpret, and enlarge upon" ICWA. (In re S.B. (2005) 130 Cal.App.4th 1148, 1157.)
"The Legislature enacted changes to the Welfare and Institutions Code, effective January 1, 2019, to conform its statues to recent changes in federal ICWA regulations, which now require state courts to ask each participant in a child custody proceeding whether the participant knows or has reason to know if a child is an Indian child (25 C.F.R. § 23.107(a) (2022)." (In re S.H. (2022) 82 Cal.App.5th 166, 174, citing In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) In In re D.S., supra, the court explained that the statutory changes, "create[d] three distinct duties regarding ICWA in dependency proceedings. First, from the Agency's initial contact with a minor and [the] 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 [Department] '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." (Id. at p. 1052, italics and brackets in original.)
At issue here is the duty of initial inquiry and the "continuing duty to inquire whether" the children have Indian ancestry. (§ 224.2, subd. (a).) Under section 224.2, subdivision (b), the Agency was required to ask, "the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child ... 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).) "Extended family members" include adults who are the child's "grandparent, aunt or uncle, brother or sister, brother-inlaw or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903, subd. (2); § 224.1, subd. (c) [adopting federal definition].) "Although 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." (In re J.C. (2022) 77 Cal.App.5th 70, 77.)
The juvenile court must determine whether ICWA applies to the proceedings. (In re Y.W. (2021) 70 Cal.App.5th 542, 552.) "A juvenile court's finding that ICWA does not apply implies 'that social workers had fulfilled their duty of inquiry.'" (In re Dominick D. (2022) 82 Cal.App.5th 560, 567.) However, "the court may not find that ICWA does not apply when the absence of evidence that a child is an Indian child results from a [Department] inquiry that is not proper, adequate, or demonstrative of due diligence." (In re Josiah T. (2021) 71 Cal.App.5th 388, 408.)
"[W]e review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court's order." (In re A.M. (2020) 47 Cal.App.5th 303, 314.)
B. The Juvenile Court's ICWA Finding Was Error, and a Limited Remand Is Required.
Mother contends, and we agree, that the Agency failed to satisfy its mandatory duty of inquiry under subdivision (b) of section 224.2 because it did not ask any of the known extended family members whether the children had Indian ancestry. The Agency acknowledges that it failed to ask any known extended relatives about possible Indian ancestry, but nevertheless maintains that its initial ICWA inquiry was sufficient.
Consistent with the plain language of subdivision (b) of section 224.2, recent authority holds that "the law demands more than merely inquiring of [m]other and [f]ather." (In re K.H. (2022) 84 Cal.App.5th 566, 620 (K.H.); see also In re Rylei S. (2022) 81 Cal.App.5th 309, 318, disagreed with on another ground by In re Y.M. (2022) 82 Cal.App.5th 901, 911-912 &fn. 6 [holding that "[r]egardless of a parent's response concerning his or her possible Indian ancestry . . .," the agency has a duty to inquire of extended family members].)
In In re J.C., when the parents completed a Mandatory Judicial Council form ICWA-020, they both checked the box stating that" 'I have no Indian ancestry as far as I know.'" (In re J.C., supra, 77 Cal.App.5th at pp. 75-76.) In an interview with a social worker, the mother denied any Indian ancestry, and at the detention hearing, the court confirmed both parents had indicated they had no known Indian ancestry. (Id. at p. 76.) The Department was in contact with the paternal and maternal grandmothers, but there was no evidence the Department asked them about J.C.'s possible Indian ancestry or how to contact the maternal or paternal grandfathers. (Id. at p. 79.) The court concluded that "the Department did not fulfill its duty to conduct an adequate inquiry into whether J.C. may be an Indian child because it did not ask any extended family members-some of whom were readily available-whether J.C. had any possible Indian ancestry." (Id. at p. 78.)
In In re Antonio R. (2022) 76 Cal.App.5th 421, the mother completed a parental notification of Indian status form, checking the box stating that she "ha[d] no Indian ancestry as far as I know." (Id. at p. 427.) The father's whereabouts were unknown at that time. (Ibid.) At the detention hearing, the court asked the paternal grandmother whether the father had "any Indian ancestry 'that [she is] aware of'" and she responded "[n]o." (Ibid.) The Department later reported that the "paternal great-grandmother denied having Indian ancestry on her side of the family," and the mother indicated "to her knowledge Father had no Indian ancestry." (Ibid.) The father first appeared at the jurisdictional hearing about two months later and denied having Indian ancestry. (Ibid.) At the disposition hearing four months later, the maternal grandmother, maternal aunts, and a maternal uncle were present in the courtroom, but no one asked them whether the minor may have Indian ancestry. (Id. at p. 428.) At the selection and implementation hearing, the maternal grandmother was questioned under oath, but was not asked whether the minor may have Indian ancestry. (Ibid.) The court terminated the parents' parental rights. (Ibid.)
On appeal, the court concluded the Department failed "to satisfy its initial duty of inquiry as to maternal extended family members, and the court fail[ed] to ensure that the Department met its duty." (Antonio R., supra, 76 Cal.App.5th at p. 432.) "Thus, the record does not support the juvenile court's finding that ICWA does not apply." (Ibid.) The court reasoned that a contrary holding would "ignore[] the express obligation that section 224.2, subdivision (b), imposes on the Department to inquire of a child's extended family members . . . ." (Ibid.)
Even more recently, other courts have found failure to inquire of known family members whether there was possible Indian ancestry to constitute an insufficient initial ICWA inquiry. (D.S. v. Superior Court (2023) 88 Cal.App.5th 383, 391; In re S.H., supra, 82 Cal.App.5th at pp. 174-177.)
Here, the only evidence of the Agency's ICWA inquiry was that a social worker interviewed Mother, E.S., and J.C. about the children's possible Indian ancestry, and they all told her that they were from Honduras and had no Native American ancestry. The record reflects that the Agency was in contact with or aware of several extended family members-including I.V.'s paternal aunt and the maternal grandparents and maternal aunt. However, the record below shows that either the Agency did not inquire of anyone beyond Mother, E.S., and J.C., or did so but failed to document those inquiries and any responses received as required by California Rules of Court, rule 5.481(a)(5). Moreover, as Mother notes, there is no evidence in the record the Agency or the juvenile court ever had Mother, E.S., or J.C. complete and file Mandatory Judicial Council form ICWA-020.
Despite authority to the contrary, the Agency contends that its duty of inquiry "should be considered fulfilled" based solely on the information the parents provided. As support for its contention, the Agency cites In re Ezequiel G. (2022) 81 Cal.App.5th 984 for the proposition that "complying with the literal language of the statute-that is, making an initial and further ICWA inquiry of every member of the child's extended family. . . 'is absurd at best and impossible at worst.'" (Id. at p. 1006.) According to that case, the inquiry on appeal "should be whether the ICWA inquiry conducted has reliably answered the question at the heart of the ICWA inquiry: Whether a child involved in a proceeding 'is or may be an Indian child.'" (Id. at pp. 1006-1007.) The Agency suggests its inquiries of Mother and the children's fathers fulfilled its initial inquiry duty because the parents all said that they came from Honduras, and thus it would have been "nearly impossible" for the children to have Indian ancestry.
We find the argument unavailing given the unambiguous language in subdivision (b) of section 224.2 requiring the Agency to inquire of extended family members. The Agency is not relieved of its duty of inquiry simply because, in its view, there is little likelihood that the children have Indian ancestry based on the parents' representations that they came from Honduras. To hold otherwise would ignore the Agency's statutory duty to obtain information about a child's Indian status that the parents may not have. (See In re Y.W., supra, 70 Cal.App.5th at p. 556 ["the point of the statutory requirement that the social worker ask all relevant individuals whether a child is or may be an Indian child [is] to obtain information the parent may not have"].)
We also observe that the record does not necessarily support the Agency's assertion that "none of the extended relatives originate from the United States . . . ." While the parents stated they were from Honduras, and E.S. represented that his family resided in Honduras, there is little information in the record about the origins of Mother and J.C.'s extended families.
We understand the concerns of the Ezequiel court that there may be times when it is not feasible to contact all persons listed in the code, such as when no contact information is provided or there are numerous extended relatives. In acknowledging that the broad duty of inquiry under section 224.2, subdivision (b) could be read to lead to an absurd interpretation as noted by Ezequiel, the court in K.H. held that to determine whether there is error in a given case, "reasonableness, viewed through the lens of ICWA's purpose, is the touchstone." (K.H., supra, 84 Cal.App.5th at p. 604.) The court explained, "The agency's inquiry must extend far enough to reasonably ensure that if there is information the child is or may be an Indian child, that information is gathered. As the agency's inquiry is often the only opportunity to collect such information, it is a critical step in safeguarding the rights ICWA was designed to protect and one that cannot be excused by reviewing courts." (Ibid.)
This is not a case where the parents' denials of Indian ancestry were confirmed by information from other family members or the parents' own declarations on Mandatory Judicial Council form ICWA-020. (See In re E.W. (2023) 91 Cal.App.5th 314, 321-323.) Nor is this a case where it was infeasible for the Agency to interview extended family members about the children's possible Indian ancestry. Rather, the record shows that the Agency failed to expand its ICWA inquiry to any of the multiple known extended family members, some of whom were readily available. As such, the Agency's ICWA inquiry was inadequate, and we cannot conclude the juvenile court's ICWA non-applicability finding was supported by substantial evidence.
The Agency argues that any ICWA error was harmless. We need not address that argument at length because the ICWA inquiry error here does not require reversal of the juvenile court's other 18-month review findings and orders. (See In re Dominick D., supra, 82 Cal.App.5th at p. 567 [declining to consider the agency's argument that its ICWA inquiry error was harmless, because reversal of the juvenile court's jurisdictional and dispositional findings and orders was unnecessary]; see also In re Veronica G. (2007) 157 Cal.App.4th 179, 186-188 [holding that the Agency's failure to comply with ICWA's notice requirements "was not 'jurisdictional' in the fundamental sense, and that reversal is only appropriate where parental rights have been terminated"].)
Recently, in In re S.H., supra, 82 Cal.App.5th 166, this court concluded that it was unnecessary to conditionally affirm or reverse the juvenile court's jurisdiction/disposition order where the mother challenged only the juvenile court's ICWA finding and the Agency conceded that its inquiry was "incomplete." (Id. at pp. 173, 179.) We reasoned, "the order will not necessarily be reversed even if new information were to be discovered confirming the child's Indian heritage" because the power of the relevant tribes "to set aside previous actions does not hinge on whether the juvenile court previously assumed jurisdiction of a minor." (Id. at p. 177.) And disturbing "the jurisdiction/disposition order . . . may lead to unnecessary additional hearings, delay, and the micromanagement of further ICWA inquiry." (Ibid.) We also noted that it would be a "more difficult" question if the mother was appealing an order terminating her parental rights, because a hearing to consider the termination of parental rights would likely be "the last practical opportunity for any relevant Indian tribe to intervene in a proceeding." (Id. at pp. 178-179.)
Similar reasoning applies here, as Mother is not challenging the juvenile court's other 18-month review findings, and the order does not terminate her parental rights or violate ICWA such that the relevant tribes have the power to set it aside. (§ 224, subd. (e).) Accordingly, instead of reversing or conditionally reversing the juvenile court's 18-month review order, the appropriate remedy is a limited remand for ICWA compliance. (See In re Dominick D., supra, 82 Cal.App.5th at pp. 567-568.)
In any event, the juvenile court's ICWA finding was not harmless because "the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 740.) Under Benjamin M., "the failure to comply with section 224.2 is not harmless where the readily obtainable information was likely to bear meaningfully upon the inquiry whether a child is an Indian child, regardless of whether the information was likely to show that the child is an Indian child." (In re J.C., supra, 77 Cal.App.5th at pp. 81-83, italics in original.) In this case, the Agency could have inquired of the maternal grandparents and maternal aunt, I.V.'s paternal grandmother and paternal aunt, and K.S.'s paternal aunt, all of whom were readily available sources of information likely to shed light on whether there was reason to believe the children were Indian children. (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.) Those family members' knowledge of their own Indian status would be suggestive of the parents' status. (Ibid.) While we cannot know how those relatives would answer the inquiry, their answers are "likely to bear meaningfully on the determination at issue." (Id. at p. 745.) The failure to make such an inquiry was therefore prejudicial.
We recognize that appellate courts have adopted at least four different standards for prejudice for ICWA inquiry errors. Those tests range from a per se rule that any error is prejudicial to a rule that error is presumed to be harmless. (See K.H., supra, 84 Cal.App.5th at pp. 611-618 [discussing the various prejudice standards for ICWA errors].) For purposes of this appeal, we adopt the approach in Benjamin M. because it appears consistent with section 224.2 and the statutory scheme, which requires inquiry of family members beyond the parents "to obtain information the parent may not have." (In re Y.W., supra, 70 Cal.App.5th at p. 556; see also In re Y.M., supra, 82 Cal.App- 5th 901, 916.)
III. DISPOSITION
The juvenile court's finding that ICWA does not apply was not supported by substantial evidence. The petition for extraordinary writ is granted and the juvenile court is directed to set aside its March 10, 2023 finding that ICWA does not apply. The matter is remanded for the juvenile court and the Agency to comply with the mandatory inquiry and documentation requirements set forth in section 224.2 and California Rules of Court, rule 5.481. Once an adequate inquiry has been made, if the juvenile court finds that ICWA applies, it shall proceed in compliance with the other provisions of ICWA and related California law. If the juvenile court finds, based on an adequate inquiry, that ICWA does not apply, it shall reinstate its previous ICWA non-applicability finding.
Because the permanency planning hearing in this matter is set for July 10, 2023, this opinion is final as to this court immediately. (Cal. Rules of Court, rules 8.450(i), 8.490(B)(2)(A).
Mother's request for a stay of the permanency planning hearing is denied as moot.
WE CONCUR: HUMES, P. J., BANKE, J.
[*] Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.