Opinion
F087864
10-28-2024
In re I.G., a Person Coming Under the Juvenile Court Law. v. C.R., Defendant and Appellant. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Laura D. Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant. Diane Freeman, County Counsel, and Thomas Y. Lin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kings County. No. 22JD0172 Jennifer Lee Giuliani, Judge.
Laura D. Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant.
Diane Freeman, County Counsel, and Thomas Y. Lin, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appellant C.R., mother of minor, I.G., appeals from the juvenile court's order terminating parental rights (Welf. &Inst. Code, § 366.26). Her sole claim 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. Specifically, she alleges the court's finding the Kings County Human Services Agency's (agency) inquiry was adequate was an abuse of discretion, and its finding that there was no reason to know I.G. was an Indian child was not supported by sufficient evidence. The agency concedes error and that remand is appropriate for the limited purpose of ensuring ICWA inquiry compliance.
All further undesignated statutory references are to the Welfare and Institutions Code.
We accept the agency's concession. We conditionally reverse the order terminating parental rights and remand to ensure compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
On September 29, 2022, the Kings County Human Services Agency (agency) filed a juvenile dependency petition on behalf of infant I.G., alleging she came within the juvenile court's jurisdiction pursuant to section 300, subdivision (b)(1) as a result of the parents' failure to protect her due to ongoing domestic violence. By the time the petition was filed, the social worker asked both parents about I.G.'s potential status as an Indian child within the meaning of ICWA, and they indicated she was or may be a member of the Wuksachi tribe. I.G. was placed with maternal grandmother after initial removal.
The parents subsequently completed "PARENTAL NOTIFICATION OF INDIAN STATUS" (ICWA-20) forms. Father indicated he had no Indian ancestry as far as he knew. Mother indicated I.G. was or may be eligible for membership in a federally recognized Indian tribe, and in the space for the name of tribe, she wrote "maybe my mom."
The detention hearing was conducted on October 3, 2022. Mother testified she was not sure whether she had Native American ancestry, but the maternal grandmother would know. Father testified he had no Native American ancestry that he knew of. The maternal grandmother was present in court and indicated she had Native American ancestry on her father's side, through what she believed was the Wuksachi tribe, but, as she did not communicate with her father, she could not provide further information at that time. She gave her father's (maternal great-grandfather) name on the record but reiterated she was not in touch with him or any of his relatives and was unable to give any more information. The paternal grandmother was also present in court and indicated her maternal grandmother (the paternal great-great-grandmother) and her maternal grandmother's father (the paternal great-great-great-grandfather) were Cherokee but had passed away. She gave the paternal great-great-grandmother and the paternal great-greatgreat-grandfather's names on the record. The paternal aunt was also present and stated she had no other information besides what was already provided.
The court declared father the presumed father and ordered I.G. detained from the parents. The court found there was "reason to believe" I.G. was an Indian child and ordered those with information related to her Native American ancestry to provide that information to the social worker and that the social worker exercise due diligence to determine any Native American ancestry.
The parents waived their rights to a jurisdictional and dispositional hearing, and on October 25, 2022, the juvenile court sustained the petition, ordered I.G. removed from the parents' custody, and ordered reunification services.
The agency's subsequent efforts to comply with ICWA inquiry requirements were documented as taking place in March 2023. Then, the maternal grandmother indicated the maternal great-grandfather was a member of the "Wukashi Cherokee Tribe." She indicated she did not have any Native American ancestry and was not a registered member herself. The paternal grandmother reported she was not a registered member of any tribe and did not have Native American ancestry.
The agency's inquiries are presented in the factual portion of this opinion as they occurred chronologically. However, these details of the agency's efforts taking place in March 2023 and later in September and October 2023 were first presented to the court in an attachment to its addendum to the 12-month status review report dated October 12, 2023.
A six-month review hearing was conducted on May 22, 2023, and the juvenile court ordered the parents' reunification services to continue.
The agency later reported that in September 2023, the paternal grandmother again denied Native American ancestry and provided information regarding her parents: the paternal great-grandmother, who lived in Arizona, and paternal great-grandfather, who was deceased. She indicated they did not have Native American ancestry.
In October 2023, mother provided the maternal grandfather's name and reported he lived in Hanford, but she did not know his address and reported he did not have Native American ancestry. She also provided the names and addresses or towns of residence for each of the maternal great-grandparents. She reported none of them had Native American ancestry except for the maternal great-grandfather through her mother's side. The paternal grandfather reported he did not have Native American ancestry. He gave information regarding his father (the paternal great-grandfather) and stated that he lived in Mexico his entire life, still resided there, and did not have any Native American ancestry. He also reported his mother, the paternal great-grandmother, was deceased and did not have any Native American ancestry.
A 12-month status review hearing was conducted on November 1, 2023. The juvenile court terminated the parents' reunification services and set a section 366.26 hearing.
The agency's section 366.26 report dated March 8, 2024, outlined its investigation into whether I.G. was an Indian child summarizing the information set forth above. It was reported that the Wuksachi tribe, which maternal grandmother claimed familial membership with, was not a federally recognized tribe. The agency further stated that though the paternal grandmother claimed Cherokee ancestry at the detention hearing, she subsequently denied any Native American ancestry. The agency was requesting the court find there was no information indicating or suggesting I.G. was an Indian child and that ICWA did not apply.
The agency filed a separate declaration of the legal secretary who conducted the ICWA inquiry, outlining efforts taken in March 2024 to identify the names and contact information of the tribes in which I.G. may be a member or eligible for membership and contacting the tribes or any other person who may have relevant information regarding I.G.'s potential status as an Indian child. She had obtained the contact information for the Wuksachi tribe and contacted them regarding I.G. She also contacted the California Department of Social Services and Bureau of Indian Affairs (BIA) for assistance identifying any other tribes I.G. may be a member of or eligible for membership with.
A contested section 366.26 hearing was conducted on April 4, 2024. The juvenile court found the agency conducted an adequate inquiry and that ICWA did not apply. At the conclusion of the hearing, the court terminated parental rights and ordered adoption as I.G.'s permanent plan.
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)(2).)
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].)
All further rule references are to the California Rules of Court.
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 citizen, or may be eligible for membership or citizenship, 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, as defined in subdivision (c) of Section 1602 of Title 43 of the United States Code[;] [¶] (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).)
The agency "must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status, as well as evidence of how and when this information was provided to the relevant tribes." (Rule 5.481(a)(5).)
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.)
While 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]), the California Supreme Court recently noted "the juvenile court's fact-specific determination that an inquiry is adequate, proper, and duly diligent is 'a quintessentially discretionary function' [citing In re Ezequiel G.] subject to a deferential standard of review." (In re Dezi C. (2024) 16 Cal.5th 1112, 1141.)
Regarding the juvenile court's discretion in evaluating the agency's inquiry efforts, this court explained in K.H., "so long as the agency conducts a reasonable inquiry and documents its results, the juvenile court will have the room to exercise its discretion in determining whether the agency's efforts are sufficient to satisfy the mandates of ICWA and related California law." (K.H., supra, 84 Cal.App.5th at p. 604.) "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." (Ibid.)
An inadequate inquiry requires conditional reversal of the juvenile court's order terminating parental rights with directions to the child welfare agency to conduct an adequate inquiry, supported by record documentation. (In re Dezi C., supra, 16 Cal.5th at p. 1136.)
Here, the agency inquired of the parents, a paternal aunt, the maternal grandmother, and both paternal grandparents regarding whether I.G. was an Indian child within the meaning of ICWA. The maternal grandmother reported Wuksachi ancestry through her father's side, the maternal great-grandfather, which the agency ascertained was not a federally recognized tribe. The paternal grandmother claimed Cherokee ancestry through her maternal side, but later indicated she had no Native American ancestry. Father, the paternal grandfather, and the paternal aunt claimed no Native American ancestry. The agency contacted the BIA, the State Department of Social Services, and the Wuksachi tribe towards the end of the case and documented no direct contact with any Cherokee tribes. The agency did not document efforts to locate or inquire of the maternal grandfather or any additional extended family members despite having contact with or knowledge of several throughout the proceedings.
Mother asserts several deficiencies in the agency's inquiry: (1) the agency waited too long to conduct the bulk of its inquiry in violation of the statutory direction to inquire "as soon as practicable"; (2) the agency failed to obtain all the information set forth in section 224.2, subdivision (e)(2)(A)/section 224.3, subdivision (a)(5); (3) the agency failed to make meaningful efforts to identify and locate extended family members, including specifically the maternal grandfather and the paternal great-grandmother; (4) the agency failed to make contact with Cherokee tribes, which they were required to do as part of its duty of further inquiry despite the paternal grandmother's subsequent recantation; and (5) the agency failed to document its efforts in compliance with rule 5.481(a)(5), particularly with regard to the paternal grandmother's recantation of Cherokee ancestry. Mother contends that these deficiencies provided the court with inadequate information to base its decision that there was no reason to know I.G. was an Indian child.
In response to mother's appeal, the agency filed a letter brief of "non-opposition," stating that it agreed with mother that the juvenile court's ICWA findings were error because the agency "was contacted by at least one extended relative who should have been asked about possible Indian ancestry but the reports do not indicate that the [a]gency inquired with the relative about possible Indian ancestry." The agency indicates it does not oppose remand.
We accept the agency's concession. The agency obtained contact information or information that could reasonably lead to finding contact information for several relatives whom it failed to contact and make initial ICWA inquiries. Most notably, perhaps, as mother points out, no inquiry was made with the maternal grandfather or paternal greatgrandmother (who, while not a statutorily enumerated extended family member, may have had information regarding paternal grandmother's initial claim of Cherokee ancestry) nor were efforts to locate or contact them documented. These deficiencies gave the court little information regarding mother's paternal side as well as whether the agency fulfilled its duty of further inquiry with regard to the paternal grandmother's early claim of Cherokee ancestry. We acknowledge the paternal grandmother appeared to recant her claim of Cherokee ancestry but agree that the agency ideally should have provided more information for the reasons why, so the juvenile court could have made an informed evaluation regarding whether the agency still needed to make contact with any Cherokee tribes or do any further inquiry based on the initial claim.
We note our review of the juvenile court's evaluation of the evidence presented by the agency must be deferential, but the agency's non-opposition letter signals to us they plan to conduct or have already conducted further investigation that may uncover information that could affect the proceedings. Thus, in light of the agency's concession, we accept that the agency's inquiry may not have been of sufficient reach to gather all the available information regarding I.G.'s status as an Indian child. Conditional reversal and remand is appropriate in this case.
DISPOSITION
The order terminating parental rights is conditionally reversed. The matter is remanded for compliance with the inquiry and notice requirements of sections 224.2 and 224.3 and the documentation provisions of rule 5.481(a)(5). If the juvenile court thereafter finds a proper and adequate further inquiry and due diligence has been conducted and concludes ICWA does not apply, then the court shall reinstate the order terminating parental rights. If the juvenile court concludes ICWA applies, then it shall proceed in conformity with ICWA and California implementing provisions.
[*] Before Levy, Acting P. J., Meehan, J. and DeSantos, J.