Opinion
F086859
04-17-2024
In re S.J., a Person Coming Under the Juvenile Court Law. v. MICHAEL J., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County Super. Ct. No. JD144010-00, Christie Canales Norris, Judge.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo A. Raison, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
In this juvenile dependency case, Michael J., father of minor, S.J., appeals from the juvenile court's dispositional findings and orders. The sole claim father makes on appeal is that the court erred by finding the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) did not apply to the proceedings because the Kern County Department of Human Services (department) failed to make adequate inquiry into whether S.J. was potentially an Indian child within the meaning of ICWA. The department concedes error and that remand is appropriate for the limited purpose of ensuring ICWA inquiry compliance.
We accept the department's concession and remand the matter to ensure ICWA inquiry compliance.
FACTUAL AND PROCEDURAL BACKGROUND
On November 7, 2022, the department filed a juvenile dependency petition on behalf of then four-year-old S.J., alleging he came within the juvenile court's jurisdiction under Welfare and Institutions Code section 300, subdivision (b) because mother left him with an unsuitable care provider and had untreated mental health issues that put S.J. at risk of harm. The "INDIAN CHILD INQUIRY ATTACHMENT" attached to the petition indicated mother was asked about S.J.'s potential status as an Indian child and gave "no reason to believe the child is or may be an Indian child."
All further undesignated statutory references are to the Welfare and Institutions Code.
Mother executed a "PARENTAL NOTIFICATION OF INDIAN STATUS" (ICWA-020) form on November 8, 2022, indicating S.J.'s half sibling, for whom a dependency petition was also filed, may be a member of or eligible for membership in a federally recognized tribe through that child's father, Alexander R. No claim was made regarding S.J.'s potential status as an Indian child.
At the detention hearing conducted on November 8, 2023, father did not appear, as he had refused transport to the hearing. Father was incarcerated awaiting trial on charges related to killing S.J.'s older sibling in 2018. At the hearing, he was elevated to presumed father of S.J. The court also elevated S.J.'s sibling's father, Alexander R., to presumed father, finding it would be detrimental to S.J. if it did not do so.
We limit facts pertaining to Alexander R., as father makes no claim that the department was required to make any ICWA inquiry as to him as it pertains to S.J.
At the hearing, mother testified she did not have Native American ancestry to her knowledge but that Alexander R. had Cheyenne ancestry. The juvenile court ordered the parents to inform their attorneys and social worker if they received any new information relating to the children's status as Indian children. The juvenile court ordered S.J. detained from the parents. S.J. and his sibling were placed with a Non-Related Extended Family Member (NREFM).
Alexander R. was present at the hearing and reported that he had relatives that were members of a tribe. Counsel for the department indicated the department would follow up on Alexander R.'s representations.
In December 2022, father completed an ICWA-020 form indicating one or more of his lineal ancestors is or was a member of an unknown federally recognized tribe.
Father made his first appearance in court on December 20, 2022. He testified the paternal grandfather was a registered member of a tribe through the paternal greatgrandmother, but he did not believe he was eligible for membership. He provided contact information for the paternal grandfather on the record. He further testified he was not aware of any other Native American ancestry. The court directed the department to conduct further inquiry. The matter was continued for jurisdiction.
At the jurisdiction hearing conducted on February 6, 2023, all parents waived their rights to a hearing. The court found the allegations in the petition true and that S.J. was described by section 300, subdivision (b). The matter was set for a disposition hearing.
On March 21, 2023, the department filed a declaration documenting their efforts at ICWA inquiry. The declaration indicated the paternal grandfather reported Cherokee ancestry. The paternal grandmother denied Native American ancestry on her side. The maternal great-aunt reported Native American ancestry through an unknown tribe. The department attempted contact with the maternal grandfather, but the number was a "nonworking number." The department spoke with the maternal aunt who denied Native American ancestry. The department mailed an inquiry to the maternal grandfather and grandmother at their last known addresses.
The declaration further indicated that in March 2023, the department sent an ICWA-030 inquiry to Cherokee tribes and the Bureau of Indian Affairs (BIA). By the time the declaration was filed, one of the tribes had responded that S.J. was not eligible for membership.
The ICWA-030 form was attached to the declaration. It included mother's and father's names and addresses. It also included names and addresses (if known) for the grandparents, and names of the great-grandparents.
The department also attached e-mail correspondence between the department paralegal conducting ICWA inquiry and the ICWA Field Liaison from the Office of Tribal Affairs of the California Department of Social Services. The department paralegal had sought 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." The DSS liaison responded that "there is not much more direction we can provide for an 'unknown or unidentified' tribe." The liaison further advised that "[b]ased on your documentation of Inquiry, the court will make a determination whether proper ICWA inquiry was conducted[.] Additional interviews may be needed and include contacting the extended family/relatives, grandparents, or parents again to see if they have any further recollection on the matter such as any geographical locations of where the tribe is or may have been located or a possible historical affiliation. Once further inquiry is completed, you may need to follow up communication via email, phone, fax, etc[.] with any tribe(s) identified."
On April 20, 2023, the department filed a subsequent petition on behalf of S.J., alleging he was at risk of being sexually abused by mother pursuant to section 300, subdivision (d) because the department had learned mother had sexually abused her minor nephews in May 2022.
On April 21, 2023, the department filed a supplemental declaration regarding ICWA inquiry. Since the previous declaration, paternal grandfather had reported to the department that though he thought he had Native American ancestry, he had since learned that "ancestry research says there is 'no Indian blood in us at all.'" The letter mailed to the maternal grandfather was returned as unclaimed. The declaration further indicated another Cherokee tribe had responded to the department's inquiry indicating S.J. was ineligible to register. A letter from the BIA was attached to the declaration, stating that it had received the ICWA notice pertaining to S.J. and, in relevant part, "In the ICWA notice, you indicated Indian ancestry but provided no documentation that the child and the child's parent(s) are members of a federally recognized Indian Tribe and/or the child is eligible for membership in a federally recognized Indian Tribe."
On June 7, 2023, the department filed another supplemental declaration indicating an additional Cherokee tribe notified the department that S.J. was not eligible for membership, and the department had followed up with another Cherokee tribe. The letter previously mailed to the maternal grandmother was returned as undeliverable.
On June 8, 2023, the court found the allegations in the section 342 petition true and that S.J. was described by section 300, subdivision (d).
On July 24, 2023, a final supplemental declaration was filed indicating another Cherokee tribe had notified the department that S.J., nor his parents or grandparents, were enrolled, and that no responses from any of the tribes were pending.
The department's disposition report, dated July 27, 2023, included a lengthy report of the Family Finding and Engagement Social Service Worker's (SSW) efforts at finding S.J.'s relatives. It was reported that the SSW identified 36 maternal relatives and seven paternal relatives as to S.J. and mailed 17 "AB 938 Notification letters" on behalf of S.J. The report further indicated that over the course of the SSW's investigation, the SSW inquired of information regarding Native American ancestry from mother, the paternal grandmother, two maternal non-related extended family members, a maternal cousin, the maternal great-aunt, and paternal grandfather.
The report erroneously refers to this individual as the "maternal grandfather."
At the dispositional hearing conducted on September 7, 2023, the court found there was no reason to know that S.J. was an Indian child within the meaning of ICWA, without prejudice, as the department had a continuing duty to inquire in compliance with ICWA. The court adjudged S.J. a dependent of the court and ordered him removed from the parents. The court ordered mother and Alexander R. to participate in family reunification services and bypassed father for services pursuant to section 361.5, subdivision (b)(4), finding father had caused the death of another child through abuse or neglect. The court also found contact with father would be detrimental to S.J. and ordered no contact.
DISCUSSION
Under California's statutory scheme to comply with ICWA, the court and county child welfare department "have an affirmative and continuing duty to inquire whether a child," who is the subject of a juvenile dependency petition, "is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9; Cal. Rules of Court, rule 5.481(a).) The agency's initial duty of inquiry includes "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).) "Under both ICWA and California law,' "extended family member[s]"' include the child's 'grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.'" (In re D.S. (2020) 46 Cal.App.5th 1041, 1053; 25 U.S.C. § 1903(2); § 224.1, subd. (c).)
An "Indian child" is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)
When the court or social worker has "reason to believe" (but not sufficient evidence to determine there is "reason to know") that an Indian child is involved in a proceeding, "further inquiry regarding the possible Indian status of the child" is required. (§ 224.2, subd. (e).) Section 224.2, subdivision (e)(2) enumerates three duties of further inquiry: (1) interviewing the parents, Indian custodian, and extended family members to gather biographical information regarding the child; (2) contacting the BIA and the State Department of Social Services for assistance in identifying tribes with whom the child may be affiliated; and (3) contacting tribes, or any other person who may reasonably be expected to have information regarding the child's membership or eligibility for membership in a tribe. (§ 224.2, subd. (e)(2)(A)-(C).)
"There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer 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. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated" in section 224.2, subdivision (d)(1)-(6). (§ 224.2, subd. (e)(1).)
These enumerated grounds for "reason to know" are: "(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family informs the court that the child is an Indian child[;] [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[;] [¶] [and/or] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d); see 25 C.F.R. § 23.107(c) (2024).)
"Contact with a tribe" for the purpose of the department's duty of further inquiry "shall, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of notices under [ICWA]" and "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)(C).)
If, after further inquiry is conducted, "the court, a social worker, or probation officer knows or has reason to know ... that an Indian child is involved" in the dependency proceeding, formal notice shall be sent to the child's parents or legal guardian, Indian custodian, if any, and the child's tribe for any hearing that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement so the tribe may exercise its right to intervene. (§ 224.3, subd. (a); see 25 U.S.C. § 1912(a).)
Before finding ICWA inapplicable, the juvenile court must make a finding that the agency conducted "proper and adequate further inquiry" and exercised "due diligence" in doing so, and that "there is no reason to know whether the child is an Indian child." (§ 224.2, subd. (i)(2).)
We review the juvenile court's finding that there is no reason to know whether a child is an Indian child under a substantial evidence standard, and the court's finding that the agency has conducted a proper and adequate inquiry and due diligence for abuse of discretion. (In re K.H. (2022) 84 Cal.App.5th 566, 600-601 (K.H.); In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004-1005.) In assessing prejudice stemming from an inquiry error, "the focus is on the missed opportunity to uncover relevant information necessary to make a reliable, informed determination concerning whether the child is or may be an Indian child." (K.H., at p. 609.)
There is a split of authority among the Courts of Appeal regarding how to evaluate claims of ICWA inquiry error. (See K.H., supra, 84 Cal.App.5th at pp. 611-618 [summarizing the varied approaches].) Our Supreme Court has granted review on the issue in In re Dezi C. (2022) 79 Cal.App.5th 769, review granted September 21, 2022, S275578. We will apply the standards this court articulated in K.H. until the Supreme Court provides additional guidance in In re Dezi C.
Father contends the court's finding that the department conducted a proper and adequate inquiry was an abuse of discretion primarily because (1) the department did not specify what family members it contacted through family finding and whether initial inquiry was conducted of those family members; (2) the department only identified two paternal family members who were subject to an initial inquiry; and (3) the department failed to follow up on the maternal great-aunt's claim of Native American ancestry through an unknown tribe by making inadequate attempts to locate or contact the maternal uncle or maternal grandfather and maternal grandmother, despite the fact that mother lived with the maternal grandfather at one point during the proceedings.
The department has responded with a letter brief which states in relevant part, "Respondent concedes that the juvenile court may have erred in making a finding under the Indian Child Welfare Act, based upon an inadequate inquiry by the Department of Human Services," and "Respondent respectfully requests that the matter be remanded, on conditional reversal, to the juvenile court to ensure compliance with the inquiry provisions of the Indian Child Welfare Act."
We have reviewed the record and note we are somewhat hesitant to accept the department's concession. We find the issue of whether the court's finding that the department made a proper and adequate inquiry was an abuse of discretion is, at most, a close call. The department inquired of the parents and several extended family members. The department gathered a substantial amount of biographical information and followed up appropriately with the paternal claim of Cherokee ancestry even though the paternal grandfather later rescinded his claim. As for the maternal claim of Native American ancestry through an unknown tribe, the department attempted to obtain information from the State Department of Social Services and the BIA, which did not lead to any more specific information regarding any tribe through which S.J. may have ancestry on his maternal side. The department attempted to contact the maternal grandparents but were unable to, though, as father points out, at one point mother lived with maternal grandfather. It appears the department attempted contact with several relatives through its family finding efforts, and while it is unclear whether the family finding notification letters included an ICWA inquiry, it appears the family finding SSW made inquiries of those relatives that contacted him in response to the notices.
The department's documentation shows the department made consistent efforts at inquiring of available family members and others that had an interest in the child and followed up appropriately on the claims of Native American ancestry their inquiry uncovered. On the other hand, we recognize father's claim and the department's concession that it is not clear from the record whether the department inquired of every available family member and may have missed an opportunity to obtain the identity of the potential tribe through which S.J. may have had ancestry on his maternal side by failing to make inquiry with the maternal grandfather or other available maternal relatives.
Assuming for the purpose of this discussion the juvenile court abused its discretion, and turning to whether the error is harmless, we also find it is a close call whether inquiry of additional maternal and paternal relatives would "uncover relevant information" given the record. (K.H., supra, 84 Cal.App.5th at p. 609.) We recognize the possibility that other paternal relatives could have theoretically uncovered more information bearing on S.J.'s status as an Indian child, but given that his closest lineal relatives were inquired of, and three of the four paternal great-grandparents were deceased and one was unknown, it appears unlikely. As for the maternal side, however, we do recognize that inquiry of the maternal grandparents, if available, may have given the department more information to help them determine the identity of a potential tribe in which S.J. and his mother may have been eligible for membership. In any event, we infer from the department's concession of error that they may have additional initial or further inquiry they feel would be prudent to conduct, or at least document for the record, which we weigh in favor of finding reversible error in the present case.
Thus, in light of the department's concession, in the abundance of caution, and because this appeal is from the dispositional orders, and remand therefore should not delay permanence for S.J., we accept the department's concession and remand for compliance with ICWA.
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded with directions to order the department to comply with the inquiry and documentation provisions set forth in section 224.2, subdivision (b) and California Rules of Court, 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 terminating parental rights is affirmed.
[*] Before Smith, Acting P. J., Snauffer, J. and DeSantos, J.