Opinion
H048493
06-25-2021
In re S.W., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. D.W., Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 20JD026531
ELIA, ACTING P.J.Appellant D.W. (father) challenges the juvenile court's dispositional order concerning his son, S.W. (child). His sole contention is that the record does not support the court's finding that the Indian Child Welfare Act (ICWA) does not apply. He seeks a remand for ICWA compliance. The Santa Clara County Department of Family and Children's Services (the Department) concedes that such a remand is required. We agree, reverse the order, and remand the matter with directions.
I. FACTS
In July 2020, the Department detained the child, then seven months old, after he ingested methamphetamine and required emergency medical care and hospitalization. The Department filed a petition seeking jurisdiction over the child under Welfare and Institutions Code section 300, subdivisions (b)(1) [substantial risk of physical harm], (c) [substantial risk of serious emotional damage], and (j) [abuse of sibling].
All further statutory references are to the Welfare and Institutions Code.
On July 20, 2020, D.R., the child's mother (mother), told the social worker that the maternal grandmother, C.R., was affiliated with the White Mountain Apache tribe, but neither mother nor C.R. was enrolled in that tribe. Mother also reported that maternal grandfather, P.R., “may be affiliated with the Mescalero Apache tribe.” The social worker contacted C.R., who said that she had no further information and that “the relative who has more information” was deceased.
Father told the social worker on July 20, 2020 that he “may be ‘part Cherokee.' ” Although he had no further information, he suggested that the social worker contact paternal grandmother, D.B. The social worker called D.B. and left a voicemail on July 21. On July 24, father completed an ICWA-020 form on which he reported that he may have Blackfoot or Cherokee ancestry. This form was submitted to the court at the July 24 detention hearing.
At the detention hearing, the court told the parties: “I'm going to ask some questions about ICWA today....” The court asked father about the information on his ICWA-020 form, and father told the court that the Blackfoot connection was “on my grandfather's side.” The court also inquired of mother. Mother said she had Native American ancestry, “but we don't have any of the information as far as which tribe” because the “person that was actually connected to it... very, very much a part of the tribe-has passed on.” The court asked if there were any family members who might have more information, and mother said “No.” However, mother's attorney clarified that mother claimed Apache ancestry “on both sides” but had no further information nor was she in contact with any family member who would have such information. The court found that there was “reason to believe” that the child was an Indian child, and it directed the social worker to “follow up” with father to “get more information.” The child was placed in foster care.
The social worker's report for the jurisdiction and disposition hearing sought a finding that the Department had “conducted a diligent inquiry” and that there was no reason to believe that the child was an Indian child. The social worker completed a form ICWA-010(A). She did not identify anyone other than the parents who she had questioned about the child's Indian status, but she stated that her inquiry of the parents “gave me no reason to believe that the child is or may be an Indian child.” In the social worker's report, she recounted that C.R. (maternal grandmother) had told the social worker on August 4, 2020 that she had no further information because her grandfather refused to provide details of his heritage and no other living relatives had any information about the family's cultural heritage.
The social worker stated that she had sent emails to the Blackfoot tribe, three Cherokee tribes, and the White Mountain Apache and Mescalero Apache tribes. After being unable to reach the Blackfoot tribe by telephone, she had sent an email to the tribe's ICWA director. She did not mention any response. She was unable to reach the Eastern Band of Cherokee Indians or the White Mountain Apache tribe by telephone. The Eastern Band of Cherokee Indians' telephone was disconnected, and there was no way to leave a voicemail for the White Mountain Apache tribe. She sent an email to the White Mountain Apache tribe. She did not mention any response. The social worker contacted the ICWA “Specialist” at the United Keetoowah Band of Cherokee Indians, and the “Specialist” requested “a certified letter.” The social worker did not mention whether she had sent a certified letter or received any response.
The social worker had received a letter from the Mescalero Apache tribe in response to her email, and the tribe stated that the child was not eligible for enrollment. The Mescalero tribe's letter, which was attached to the social worker's report, stated that neither parent was a member so the child was not eligible for enrollment. The Cherokee Nation tribe responded to her email with an email, which was attached to the social worker's report, stating that none of the maternal or paternal relatives (who were all identified in the social worker's email) was an enrolled member, so the child was “not an ‘Indian child' in relation to the Cherokee Nation....”
The jurisdiction and disposition hearing began on August 7, 2020. On August 20, the court sustained the petition, took jurisdiction over the child, removed the child from parental custody, and granted reunification services to both parents. The court expressly found: “[T]hough there was reason to believe the child is an Indian child, the social worker has conducted a diligent inquiry into the child's possible Indian heritage, including contacting the possible tribes, the BIA [Bureau of Indian Affairs] and CDSS [California Department of Social Services], and that there is no reason to know the child is an Indian child. And I find that the Indian Child Welfare Act does not apply.” Father timely filed a notice of appeal from the juvenile court's order.
II. DISCUSSION
The court and the Department have “an affirmative and continuing duty to inquire whether a child... may be an Indian child.” (§ 224.2, subd. (a).) “Inquiry includes, but is not limited to, asking... extended family members” about the child's Indian heritage. (§ 224.2, subd. (b).) “If the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court, social worker, or probation officer shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e), italics added.)
“Further inquiry includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of [s]ection 224.3. [¶] (B) Contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in, and contacting the tribes and any other person that may reasonably be expected to have information regarding the child's membership status or eligibility. [¶] (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. Contact with a tribe shall, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of notices under the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.). Contact with a tribe shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case.” (§ 224.2, subd. (e)(2).)
We review the court's finding for substantial evidence. (§ 224.2, subd. (i).) In this case, the court and the social worker properly made an initial inquiry of the parents at the time of the detention hearing and found that there was reason to believe that the child was an Indian child. That finding triggered the duty of further inquiry. The juvenile court subsequently found that there was no longer reason to believe that the child was an Indian child because the social worker had satisfied the statutory further inquiry requirements by “conduct[ing] a diligent inquiry into the child's possible Indian heritage, including contacting the possible tribes, the BIA and CDSS....”
The juvenile court's finding that the social worker had satisfied the statutory further inquiry requirements is not supported by substantial evidence. The record contains no evidence that the social worker actually interviewed any paternal extended family members. Although there is evidence in the record of responses from two of the possible tribes, there is no evidence that the social worker's emails to the other tribes were received. Furthermore, there is no evidence in the record that the social worker contacted the BIA or the State Department of Social Services. Consequently, the juvenile court's finding is unsupported by the record.
“ ‘[O]nce there is sufficient information to believe that the children might be Indian children within the meaning of ICWA and the California statutes, “responsibility for compliance” with those statutes “falls squarely and affirmatively” on both the social services agency and the court.' ” (In re N.G. (2018) 27 Cal.App.5th 474, 484.) Where the record does not support the juvenile court's finding that the Department complied with its affirmative duty of further inquiry, the appropriate remedy is to remand with directions to the juvenile court to ensure compliance with this duty. (Id. at pp. 484-486.) As the Department concedes, this is the appropriate remedy in this case because the record does not support the juvenile court's ICWA finding.
III. DISPOSITION
The order is reversed, and the matter is remanded with directions to the juvenile court to order the Department to comply with its duty of further inquiry under section 224.2, subdivision (e) and to affirmatively demonstrate that it has done so.
WE CONCUR: BAMATTRE-MANOUKIAN, J., DANNER, J.