Opinion
F087420
06-03-2024
In re I.G., a Person Coming Under the Juvenile Court Law. v. N.B., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Lelah S. Forrey-Baker, 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NOT TO BE PUBLISHED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. JD141913-00. Christie Canales Norris, Judge.
Lelah S. Forrey-Baker, 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 [*]
Appellant N.B. is the mother of I.G. (the child), who is the subject of this dependency case. Mother challenges the juvenile court's order issued at a Welfare and Institutions Code section 366.26 hearing that resulted in her parental rights being terminated. Mother contends the court and the Kern County Department of Human Services (department) failed to comply with their duty of inquiry under the Indian Child Welfare Act (ICWA). The department concedes that it failed to conduct an adequate inquiry into the potential Indian ancestry of the child, and it does not oppose remand for the limited purpose of conducting further ICWA inquiry. We agree with the parties and conditionally reverse the court's order terminating parental rights and remand for proceedings to ensure ICWA compliance.
All further undesignated statutory references are to the Welfare and Institutions Code unless otherwise specified.
"[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.)
FACTUAL AND PROCEDURAL BACKGROUND
The sole issue on appeal concerns ICWA; therefore, we primarily restrict our facts to those bearing on that issue.
In March 2021, the child was taken into protective custody pursuant to a warrant shortly after the birth of his younger sibling, M.G., due to mother's substance abuse. The department filed a juvenile dependency petition alleging the child was described by section 300, subdivision (b)(1). The allegations involved mother's current substance abuse and 11-year history of abusing methamphetamine.
The department's detention report indicated that mother lived in the maternal grandmother's home with two of the child's younger siblings, R.G. and B.G. A maternal uncle, Ni.B., and maternal great-grandmother also lived in the home. The investigating social worker spoke to the maternal grandmother, but there was no indication that she was asked about potential Indian ancestry in their family. S.R. was an individual that mother identified as a potential placement option. Prior to the detention hearing, mother and the child's father, A.G. (father), were both asked about possible Indian ancestry by a social worker. Mother denied having any Indian ancestry, and father claimed "Yaqui" heritage.
There are conflicts in the record regarding the exact relationship between the child and S.R. The department's various reports refer to S.R. as a maternal relative, maternal aunt, maternal cousin, and a non-relative extended family member.
At the initial detention hearing held on March 19, 2021, mother and father were present by phone. The juvenile court inquired of mother and father regarding Indian ancestry. Mother denied that there was any Indian ancestry in her family. Father indicated that he had Yaqui ancestry through his deceased maternal grandmother. His maternal grandmother (the child's paternal great-grandmother) reportedly lived on an Indian reservation in Arizona, but she was not a member of the tribe. He provided the name and contact information for his mother (the child's paternal grandmother) and he denied having Indian ancestry on his father's side of the family. Father also believed he and the paternal grandmother may have been eligible for membership in the tribe.
The juvenile court found ICWA was not applicable to mother, and the ICWA finding for father was reserved to allow the department to interview the paternal grandmother. The court made temporary findings to detain the child and his siblings from the parents. The hearing was continued to March 22, 2021 at the request of both parents. At the continued detention hearing, the child was detained from the parents' custody and a combined jurisdiction and disposition hearing was set for May 5, 2021.
The department's jurisdiction report, dated April 26, 2021, recommended that the allegations in the petition be found true. The disposition report recommended that the child remain in out-of-home care with family reunification services provided to mother and father. The child was placed in a resource family home with two of his siblings. On March 30, 2021, the family finding social worker sent letters with "[i]mportant [i]nformation for [r]elatives [c]onsidering [p]lacement" to paternal and maternal relatives.
On April 27, 2021, the department sent Notice of Child Custody Proceeding for Indian Child (ICWA-030) to the Pascua Yaqui Tribe of Arizona, Bureau of Indian Affairs (BIA), and Secretary of the Interior. The notice included the names and birthdates for the parents, maternal grandparents, paternal grandparents, and paternal great-grandparents. A tribal membership or enrollment number was listed for both father and the paternal grandmother.
On May 5, 2021, the juvenile court sustained the allegations in the petition, and the disposition hearing was continued to allow additional time for the inquiry of the Pascua Yaqui Tribe. A paralegal for the Pascua Yaqui Tribe responded to the notice by a letter dated May 13, 2021. The paralegal indicated that mother, the child, and his siblings were not members of the tribe. Father was identified as an enrolled member of the tribe, but the child and his siblings were not eligible for enrollment because they were less than one-quarter Yaqui and did not meet the blood degree requirement for membership into the tribe. Accordingly, the tribe would not intervene in the proceedings.
At the continued disposition hearing, both mother and father were present and represented by counsel. The juvenile court found that ICWA was not applicable because there was no reason to know the child was an Indian child. After all parties submitted, the child was removed from the parents' custody and family reunification services were ordered for mother and father. A six-month review hearing was set for December 16, 2021.
The report prepared for the six-month review hearing recommended that mother and father's family reunification services be terminated and the setting of a section 366.26 hearing. The child was placed with S.R. and the child's siblings were placed with the maternal grandmother. Family reunification services were terminated for mother and father, and a section 366.26 hearing was set for April 15, 2022.
The department's section 366.26 report, dated April 4, 2022, recommended the child's permanent plan be placement with a fit and willing relative. The child remained placed with S.R., who was unsure if she wanted to pursue legal guardianship of the child. The ICWA status section of the report detailed the court's previous finding that ICWA was not applicable without any additional information. At the section 366.26 hearing, the juvenile court found the child was not likely to be adopted, and it ordered a permanent plan of placement with a fit and willing relative. The parental rights for the child's three siblings were terminated, and a plan of adoption was selected for them.
In August 2022, the child was moved to the home of his maternal uncle, Ni.B. The child's permanent plan was ordered to remain the same at an October 12, 2022 post-permanency review hearing. On March 28, 2023, the department filed a section 388 petition to request that a new section 366.26 hearing be set to change the child's permanent plan to adoption. The child desired to be adopted by his current care providers, and his care providers were committed to providing a permanent plan of adoption. The juvenile court granted the department's section 388 petition, and a new section 366.26 hearing was set for August 30, 2023.
In a section 366.26 report, dated August 17, 2023, the department recommended that the juvenile court terminate the parental rights of mother and father and order a permanent plan of adoption for the child. The child remained placed in the maternal uncle's home. The ICWA status section of the report included no additional information or inquiry of the child's relatives. At the section 366.26 hearing held on November 13, 2023, the court terminated parental rights and selected a plan of adoption for the child.
DISCUSSION
Mother contends the juvenile court and department failed to adequately discharge their duty of initial inquiry by failing to inquire of the child's extended family members regarding possible Indian ancestry. The department concedes this point, and we accept its concession.
A. Applicable Law
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 that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) In any "proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe . . . have a right to intervene" (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224, subd. (e)). 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].)
In every dependency proceeding, the department and the juvenile court have an "affirmative and continuing duty to inquire whether a child is or may be an Indian child ._" (Cal. Rules of Court, rule 5.481(a); see § 224.2, subd. (a); In re WB. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The continuing duty to inquire whether a child is or may be an Indian child "can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice." (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
All further references to rules are to the California Rules of Court.
The initial duty to inquire arises at the referral stage when the reporting party is asked whether it has "any information that the child may be an Indian child." (§ 224.2, subd. (a).) Once a child is received into temporary custody, the initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance of each parent to ask whether he or she "knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) The court must also require each parent to complete a Parental Notification of Indian Status form (ICWA-020). (Rule 5.481(a)(2)(C).)
Next, a duty of further inquiry arises when the department or the juvenile court has "reason to believe" the proceedings involve an Indian child but "does not have sufficient information to determine that there is reason to know that the child is an Indian child .." (§ 224.2, subd. (e).) As recently clarified by the Legislature, a "reason to believe" exists when the court or department "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." (§ 224.2, subd. (e)(1).)
If there is a reason to believe an Indian child is involved, the juvenile court or the department "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).) Further inquiry includes, but is not limited to, "[i]nterviewing the parents, Indian custodian, and extended family members," and contacting the BIA, the State Department of Social Services, and the tribe and any other person who may have information. (§ 224.2, subd. (e)(2)(A)-(C).)
The final duty component arises when the juvenile court or department has" 'reason to know'" the child is an Indian child. (In re D.F., supra, 55 Cal.App.5th at p. 567.) A "reason to know" exists if one of the following circumstances is present: "(1) A person having an interest in the child .. informs the court that the child is an Indian child[;] [¶] (2) The residence ... of the child [or] the child's parents ... is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding . informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child . 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[; or] [¶] (6) The court is informed that either parent or the child possess[es] an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d)(1)-(6).)
If the juvenile court makes a finding that proper and adequate further inquiry and due diligence have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that ICWA does not apply, subject to reversal if the court subsequently receives information providing reason to believe the child is an Indian child. If the court receives such information, it must direct the social worker or probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)
B. Standard of Review
Where the juvenile court finds ICWA does not apply to a child after completion of an initial inquiry, "[t]he finding implies that ... social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry." (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) We review the court's ICWA findings for substantial evidence. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) We must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.) The appellant "has the burden to show that the evidence was not sufficient to support the findings and orders." (Ibid.)
C. Analysis
Pursuant to its duty under section 224.2, the department asked mother and father whether they had any Indian heritage. Mother denied having any knowledge of Indian ancestry in her family, and father disclosed having Indian ancestry through the Pascua Yaqui Tribe of Arizona. The maternal grandmother had placement of the child's siblings during the proceedings, and the child was eventually placed in the home of a maternal uncle. Based upon this information, the juvenile court found ICWA was not applicable for the child.
However, the department was required under section 224.2, subdivision (b) to ask available extended family members about the child's possible Indian ancestry. Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) There were at least two additional extended family members, the maternal grandmother and maternal uncle, who had placement of either the child or his siblings during the proceedings. The department either failed to ask these maternal relatives about Indian ancestry or did not document it.
Under the circumstances, we conclude the department did not fulfill its statutory duty of inquiry. (§ 224.2, subd. (b).) As a result, the juvenile court's finding that ICWA did not apply was not supported by substantial evidence that the department conducted an adequate, proper, and duly diligent inquiry, and its contrary conclusion was an abuse of discretion. Because the failure in this case concerned the department's duty of initial inquiry, only state law is involved. "Where a violation is of only state law, we may not reverse unless we find that the error was prejudicial. (Cal. Const., art. VI, § 13 ['No judgment shall be set aside ... 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 ofjustice'] ....)." (In re BenjaminM., supra, 70 Cal.App.5th at p. 742.)
" '[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.'" (In re K.H. (2022) 84 Cal.App.5th 566, 606-607 (K.H.).)
However, in In re A.R. (2021) 11 Cal.5th 234, 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, 820.
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.) 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." (Id. at p. 608.) 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." (Ibid.) 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. (Id. at p. 596.)
"[I]f the inquiry is inadequate at the outset, the likelihood that the opportunity to gather relevant information will present itself later in the proceeding declines precipitously." (K.H., supra, 84 Cal.App.5th at p. 609.) Thus, "the relevant injury under ICWA is not tied to whether the appealing parent can demonstrate to the juvenile court or a reviewing court a likelihood of success on the merits of whether a child is an Indian child [under a standard Watson analysis]. The relevant rights under ICWA belong to Indian tribes and they have a statutory right to receive notice where an Indian child may be involved so that they may make that determination. It necessarily follows that [in the context of ICWA and consistent with In re A.R.,] the prejudice to those rights lies in the failure to gather and record the very information the juvenile court needs to ensure accuracy in determining whether further inquiry or notice is required, and whether ICWA does or does not apply. Many cases do not proceed beyond the inquiry at the first stage in the compliance process and, therefore, ensuring adequacy and accuracy at this step is critical if the rights of tribes under ICWA and California law are to be meaningfully safeguarded, as was intended by Congress and our state Legislature." (K.H., at p. 591.)
As we explained in K.H., "where 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., supra, 84 Cal.App.5th at p. 610.) 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 ._" (Id. at p. 620.) "Where a record is silent or nearly silent with respect to an ICWA inquiry at the first step, a finding of harmlessness necessarily rests on speculation" and "is at odds with the statutory protections that ICWA and California law intend to afford Indian children and Indian tribes." (Id. at p. 611.) Therefore, the error is prejudicial.
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the 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 proceed in compliance with ICWA and related California law. If the court instead finds that ICWA does not apply, the court shall reinstate its ICWA finding. In all other respects, the court's order terminating mother and father's parental rights is affirmed.
[*] Before Smith, Acting P. J., Meehan, J. and DeSantos, J.