Opinion
A166846
08-22-2023
In re MARIA J., a Person Coming Under the Juvenile Court Law. v. B.L., Defendant and Appellant. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Humboldt County Super Ct. No. JV2100112)
BURNS, J.
B.L. (Mother) appeals from an order terminating her parental rights to her one-year-old daughter, Maria J. She contends reversal is required because the juvenile court and the Humboldt County Department of Health and Human Services (the Department) failed to comply with their duty of inquiry under California law implementing the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). We agree the Department failed to comply with its duty to ask Maria's extended family members or others who have an interest in the child whether she has any Native American ancestry. We conditionally affirm the order terminating parental rights and remand for the limited purpose of compliance with ICWA and California law.
BACKGROUND
Maria was born prematurely with a sexually transmitted bacterial infection. Mother tested positive for methamphetamine, amphetamine, and cannabis. The Department detained Maria and filed a dependency petition under Welfare and Institutions Code section 300 alleging that Mother suffered from bipolar disorder and had no prenatal care; admitted daily methamphetamine use; refused to participate in drug treatment; and had not engaged with the social worker regarding a safety plan for Maria. Test results for Mother and the presumed father (Father) showed very high levels of methamphetamine. Mother's parental rights to two older children, J.L. and K.R., had been terminated in 2015 and 2016.
Undesignated statutory references are to the Welfare and Institutions Code.
Father is not involved in this appeal.
Mother indicated she had Cherokee ancestry but was not enrolled in the tribe. The Department sent a notice of the proceedings to the Cherokee Nation, the United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians, providing names, addresses, and dates and places of birth for Mother and the maternal grandparents. The Eastern Band of Cherokee Indians and the Cherokee Nation responded that Maria was not an Indian child as defined by ICWA.
The court sustained the petition and ordered Maria placed in foster care with family reunification services for both parents. Following a period of unsupervised visits, Maria tested positive for methamphetamine, Mother tested positive for methamphetamine and THC, and Father was arrested on drug and explosives charges.
At the six-month review hearing, the court found ICWA did not apply and that, while the Department had provided reasonable services, Father had failed to participate and Mother had participated but failed to make substantial progress. The court concluded there was no substantial probability Maria could be returned within the next six months, terminated reunification services, and set a permanent plan hearing pursuant to section 366.26.
At that hearing, the court denied Mother's section 388 petition for additional reunification services, terminated all parental rights, and ordered a permanent plan of adoption.
DISCUSSION
A.
ICWA establishes minimum standards for courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes. (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) Under California's implementing legislation and rules of court, the juvenile court and the responsible child welfare agency have an affirmative and continuing duty to inquire of all potentially interested persons whether a child for whom a dependency petition has been filed is or may be an Indian child. (§ 224.2, subds. (a), (b); Cal. Rules of Court, rule 5.481(a); In re S.H. (2022) 82 Cal.App.5th 166, 173174.) This duty "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), italics added); Cal. Rules of Court, rule 5.481(a)(1).)
The Department implicitly concedes it did not conduct this inquiry. Instead, relying on In re Robert F. (2023) 90 Cal.App.5th 492, 497, 500, review granted July 26, 2023, S279743 (Robert F.), it maintains it was not required to do so because the duty arises only in cases where, due to exigent circumstances, the child welfare agency takes temporary custody of a child without a warrant. Under this view, the agency is not subject to section 224.2, subdivision (b)'s duty of inquiry where, as here, it takes a child into protective custody pursuant to a warrant issued due to the existence of a substantial danger to the child's health or safety. (Robert F., supra, at p. 500; see also In re Ja.O. (2023) 91 Cal.App.5th 672, 677-682 [following Robert F.], review granted July 26, 2023, S280572; In re Adrian L. (2022) 86 Cal.App.5th 342, 353-375 [same, conc. opn. of Kelley, J.]; but see In re Delila D. (2023) 93 Cal.App.5th 953, 962, 970-975 (Delila D.) [declining to follow Robert F.].)
In Delila D., supra, 93 Cal.App.5th at pp. 970-975, the majority of a different panel of the same Division rejected Robert F. 's interpretation of section 224.2, subdivision (b), finding it unsupported by the statutory language and legislative history and contrary to the Legislature's intent to expand the scope of inquiry beyond the parents, the rules of court, and precedent. We believe the majority opinion in Delila D. represents the better analysis. We will not belabor its reasoning here, however, as the Supreme Court is expected to settle the question, having granted review in Robert F., supra, 90 Cal.App.5th 492 and In re Ja.O., supra, 91 Cal.App.5th 672. Because we follow Delila D., we reject the Department's claim it had no duty to conduct the inquiry specified in section 224.2, subdivision (b).
B.
Appellate courts are divided regarding the proper prejudice standard to apply to the failure to conduct the required ICWA inquiry, another issue currently pending in the Supreme Court. (See In re Dezi C. (2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022, S275578; see also, e.g., In re A.R. (2022) 77 Cal.App.5th 197, 205-208; In re Antonio R. (2022) 76 Cal.App.5th 421, 433-435 (Antonio R.).) Pending the Court's clarification, we will accede to the parties' suggestion that Antonio R. and In re Benjamin M. (2021) 70 Cal.App.5th 735, 744-745 (Benjamin M.) state the appropriate standard: the error is not harmless where the record indicates there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child. As Benjamin M. explains, this approach draws a line between a reversal per se standard that would be inconsistent with our state harmless error rule and one that would place on the parents the burden of proving the information the agency failed to gather would likely have been favorable. (Benjamin M., supra, at p. 743; see Antonio R., supra, at pp. 433435.)
There is no indication here that the Department asked any of Maria's extended relatives about potential Indian ancestry- not even the maternal grandparents, whose names, addresses, and dates and places of birth were in its possession. We cannot know from this record what information those relatives may have provided if asked, but information from extended family members is likely to be at least meaningful in determining whether Maria is an Indian child. (See Antonio R., supra, 76 Cal.App.5th at p. 435 ["In most circumstances, the information in the possession of extended relatives is likely to be meaningful in determining whether the child is an Indian child - regardless of whether the information ultimately shows the child is or is not an Indian child"].) We therefore cannot find the error harmless.
The Department alternatively contends this appeal is baseless in light of prior judicial findings in the dependency cases for Mother's two older children that ICWA did not apply. We are unpersuaded. The most recent of those findings was made no later than 2016, before the Legislature enacted section 224.2 to require inquiry of extended family (Assem. Bill No. 3176 (20172018 Reg. Sess.), Stats. 2018, ch. 833, § 5, eff. Jan. 1, 2019), and the record before us does not indicate the scope of the inquiry that was made in the earlier proceedings. The prior ICWA findings thus have no bearing on the information an inquiry conducted in compliance with section 224.2, subdivision (b) might disclose.
In sum, we conclude the Department was required to conduct the inquiry described by section 224.2, subdivision (b) and that its failure to do so is not harmless.
DISPOSITION
The order terminating parental rights is conditionally affirmed. The case is remanded to the juvenile court for the limited purpose of ensuring compliance with the inquiry provisions of section 224.2 and, if necessary, the notice provisions of section 224.3. (See In re Y.W. (2021) 70 Cal.App.5th 542, 546, 556; In re H.V. (2022) 75 Cal.App.5th 433, 438-439.) The juvenile court shall order that, within 30 days of the issuance of the remittitur, the Department complete an inquiry into Maria's Indian ancestry by interviewing all available extended family members and others who have an interest in the child. If on remand the court determines ICWA does not apply, the termination order shall remain in effect. If the court determines ICWA applies, it shall vacate the termination order and proceed in accordance with ICWA and related state law.
We concur: SIMONS, ACTING P.J. CHOU, J.