Opinion
F085939
08-04-2023
In re A.S. et al., Persons Coming Under the Juvenile Court Law. v. I.S., Defendant and Appellant. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Jacques A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Diane Freeman, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from order of the Superior Court of Kings County Nos. 22JD0026, 22JD0027. James LaPorte, Judge. (Retired Judge of the Kings County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Jacques A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Diane Freeman, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DE SANTOS, J.
THE COURT [*]
In this juvenile dependency appeal, I.S., father of minors A.S. and M.S., appeals from the juvenile court's order terminating his parental rights (Welf. &Inst. Code, § 366.26). The sole claim father raises 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 Kings County Human Services Agency (agency) failed to make adequate inquiry into whether the children were potentially Indian children. The agency concedes error and that remand is appropriate for the limited purpose of ensuring ICWA inquiry compliance, but disagrees with father as to the extent the agency should inquire upon remand.
All further undesignated statutory references are to the Welfare and Institutions Code unless otherwise noted.
We conditionally reverse the juvenile court's finding that ICWA does not apply and remand for further proceedings to ensure ICWA compliance; we set forth guidelines for the agency upon remand in the body of this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2022, the agency filed a juvenile dependency petition on behalf of then nine-year-old A.S. and then five-year-old M.S., and their half siblings, alleging the children came within the juvenile court's jurisdiction under section 300, subdivision (b)(1) due to their mother's failure to protect them because of her substance abuse. The petition further alleged A.S. and M.S. came within the court's jurisdiction under section 300, subdivision (g) due to father's incarceration and his resulting inability to provide for or make arrangements for the care of the children. The petition included an INDIAN CHILD INQUIRY ATTACHMENT form (ICWA-010(A)) indicating mother was asked about the children's Indian status and "gave [the social service worker] no reason to believe the child is or may be an Indian child."
The children were detained from mother and placed with their maternal grandmother. The maternal grandfather and a maternal uncle also lived in the home.
The agency's detention report dated March 16, 2022, indicated that inquiry had not yet been made of father as he was incarcerated. On March 17, 2022, mother executed a PARENTAL NOTIFICATION OF INDIAN STATUS form (ICWA-020) indicating none of the indicia applied to suggest the children were Indian children.
At the detention hearing conducted on March 17, 2022, mother was present; father was not. The court confirmed receipt of mother's ICWA-020 form indicating she had no Native American ancestry. Further, mother testified she did not have Native American ancestry and to her knowledge, did not believe that father did either. Maternal grandmother, who was also present, testified she was "99.9 percent" certain her family had no Native American ancestry. The court found there was "no information indicating or suggesting that the children are Indian children, therefore, [ICWA] does not apply." Additionally, the court found father to be the alleged father of A.S. and M.S. The court ordered the children detained from mother.
On March 27, 2022, father executed an ICWA-020 form indicating none of the indicia applied to suggest the children were Indian children.
On April 19, 2022, the agency filed an amended petition that contained an additional allegation that the children came within the court's jurisdiction under section 300, subdivision (b)(1) due to domestic violence between mother and the father of A.S. and M.S.'s half-siblings.
As to ICWA, the agency's jurisdiction/disposition report only stated that the juvenile court found that ICWA did not apply at the March 17, 2022 detention hearing and provided no further information. Attached to the report was a letter submitted by father, in which he stated in part that his "family members will and do love and show support to [his] children" and the children "are love[d] by both sides of the family."
At the jurisdiction/disposition hearing conducted on April 21, 2022, father appeared by telephone. The court elevated him to presumed father status as to A.S. and M.S., and he testified that to his knowledge, he did not have any Native American ancestry and none of his family members had any connection to any Native American tribe. The court found the allegations alleged in the amended petition true and that the children came within the definition of section 300, subdivisions (b) and (g). The court ordered the children removed from mother's physical custody. The court also ordered family reunification services for mother, but not for father.
The six-month status review report dated October 4, 2022, contained no additional ICWA information.
At the six-month review hearing conducted on October 13, 2022, counsel for the agency indicated the agency had no additional information that ICWA applied and asked "the parties and other participants present today that if anyone has any information that they provide that to the [c]ourt now." Mother and maternal grandmother were present, and both indicated they had no further information regarding ICWA. The court terminated mother's reunification services and set a section 366.26 hearing.
The agency's section 366.26 report dated January 19, 2023, indicated the agency would not make any further ICWA inquiry. The agency reported that based on the information provided by parents, there was no evidence to suggest ICWA applied to the children and no new information had been provided. The report further set forth that the maternal grandparents were committed to adopting the children, the children wished to remain with the maternal grandparents, and the agency recommended the court terminate parental rights and select adoption as the children's permanent plan.
The section 366.26 hearing was set for February 2, 2023. On that date, the paternal grandmother was present in court. Father was not present. Counsel for the agency stated, "The last time [paternal grandmother] was here she indicated that she's not aware of any Native American ancestry information and I just want to clarify that one more time. Is that correct?" to which the paternal grandmother responded, "Correct."The matter was continued to ensure transportation for father so that he could be present for the hearing.
The record does not indicate that the paternal grandmother was present at a prior hearing.
The continued section 366.26 hearing was held on March 15, 2023. The maternal and paternal grandmothers were present in court and both were examined as to ICWA. Maternal grandmother indicated that to her knowledge, she did not have any Native American ancestry. Paternal grandmother indicated she might have some Native American ancestry "way back" through her "grandmother's grandmother's family," who was from "Coalinga. Red Bone." The court asked her if she had any information whether she was connected to any particular tribe "or anything like that?" and paternal grandmother responded in the negative. Later, counsel for the agency informed the court Red Bone was a "non-federally recognized tribe." The court found the children were adoptable, ordered adoption as the children's permanent plan, and ordered all parental rights terminated.
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].)
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. Recently, this court decided K.H., which articulates the standards we will apply until the Supreme Court provides additional guidance in In re Dezi C.
Father contends the juvenile court prejudicially erred by finding ICWA did not apply because the agency's inquiry was not adequate, specifically that it failed to conduct adequate inquiry of "extended family members," as the only documented inquiry was of the parents and the maternal and paternal grandmothers. The agency concedes it had a duty to conduct questioning of extended family members and that remand is necessary so that it may remedy omissions it made but only as it pertains to maternal relatives. We accept the agency's concession of error and that remand is appropriate without further discussion and turn to the agency's contention it should only complete questioning as to maternal relatives upon remand.
Because the children were initially detained pursuant to a protective custody warrant, the agency's duty to question extended family members imposed by section 224.2 arguably was not triggered. (See In re Robert F. (2023) 90 Cal.App.5th 492, 500, 504, review granted July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672, 677-678, review granted July 26, 2023, S280572; but see In re Delila D. (July 21, 2023, E080389) ___ Cal.App.5th ___ [holding that the duty of initial inquiry to question extended family members set forth in § 224.2, subd. (b) applies in every proceeding where a child is removed from the home regardless of the existence of a warrant, disagreeing with In re Robert F.].) Because the parties have not raised and briefed the issue, however, we assume for the purpose of this appeal that the agency had a duty to question extended family members.
The agency contends the error can be corrected if it conducts an inquiry with "maternal extended family, specifically the maternal grandfather and maternal uncle, who were one of the children's care providers and a person residing in the care provider's home, respectively." As to the paternal side of the family, however, the agency contends "there is no indication that any paternal relatives were available to conduct such inquiry, as the only mention of paternal relatives is the father's letter stating that his family loved the children."
We decline to set forth any mechanical or bright-line rules the agency must follow before their inquiry could be deemed adequate. Instead, we emphasize, as this court did in K.H., ICWA initial "inquiry should be of sufficient reach to ensure that if there is information suggesting [the children are] or may be [] Indian child[ren,] it is gathered. This should not be interpreted as requiring an exhaustive search for and questioning of every living relative of [the children]. We leave that determination for the juvenile court in the first instance because it is better positioned to evaluate the evidence provided by the [agency]. So long as the court ensures the inquiry is reasonable and of sufficient reach to accomplish the legislative purpose underlying ICWA and related California law, the court will have an adequate factual foundation upon which to make its ICWA findings. (§ 224.2, subd. (i)(2).)" (K.H., supra, 84 Cal.App.5th at p. 621.) "By far, the least burdensome option is simply to ensure that an adequate initial inquiry is made of maternal relatives on both sides where available and paternal relatives on both sides where available, and that the inquiry and its results are documented in the record, as required by California law. (§ 224.2, subd. (b); [California Rules of Court,] rule 5.481(a)(5).) This will supply evidence upon which the juvenile court may exercise sound discretion in determining there has been 'proper and adequate further inquiry and due diligence.' (§ 224.2, subd. (i)(2).)" (K.H., at p. 619, italics added.)
We are reluctant to make any further comment on the extent to which the agency should attempt to locate or question paternal relatives upon remand. We note that while the agency states there is "no indication that any paternal relatives were available," the record is rather unclear as to the availability of paternal relatives. We acknowledge that the social worker reported in the jurisdiction/disposition report that "[t]he [a]gency has made diligent efforts to identify, locate and contact the children's relatives" and "will continue to work with the family to locate additional family members that are interested in placement, maintaining a connection or being part of the support network." However, these statements do not give the juvenile court information regarding whether paternal relatives were actually identified and located or whether they were asked about the children's potential status as Indian children. We further note that while mother and the other father who was a party to the proceedings were ordered to provide identifying information of known paternal and maternal relatives of the children at the detention hearing, father was not present at that hearing and was never directly ordered to do so. Father's mention in his letter, cited by the agency, of his "family members" tends to suggest paternal relatives other than paternal grandmother exist and may have information regarding the children's potential status as Indian children.
In the present case, the agency concedes remand is appropriate and that it intends to complete questioning of maternal relatives, which we accept. While the agency contends no further inquiry of paternal relatives is necessary, the record does not disclose in any level of detail what efforts were made to identify and locate paternal relatives and no ICWA information was obtained regarding father's paternal side. Given these particular circumstances, upon remand, the agency should provide to the juvenile court, at a minimum, efforts to identify and locate paternal relatives, particularly on father's paternal side. It may be the agency has already done so and was only able to locate the paternal grandmother, but that information should be provided to the court so it may make an informed decision in determining the adequacy of the agency's efforts.
In sum, upon remand, the agency should make reasonable efforts to question extended family members so that it may obtain information from both sides of both the maternal and paternal relatives and document those efforts for the juvenile court. The court must then exercise its discretion to determine whether the inquiry was adequate and the agency used due diligence in a manner consistent with this opinion.
DISPOSITION
The juvenile court's finding that ICWA does not apply is conditionally reversed, and the matter is remanded with directions to order the agency 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.
I CONCUR: SNAUFFER, J.
POOCHIGIAN, Acting P. J., Dissenting.
Through Welfare and Institutions Code section 224.2, California imposes inquiry requirements far above and beyond what the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) itself requires. One relevant example is that federal ICWA does not require inquiry of extended family members. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.)
When an agency fails to comply with such state statutes, the standard for prejudice is clear and longstanding. "Any failure to comply with a higher state standard ... 'must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.'" (In re Breanna S. (2017) 8 Cal.App.5th 636, 653, disapproved on other grounds by In re Caden C. (2021) 11 Cal.5th 614, 637, fn. 6, 638, fn. 7; see also In re H.B. (2008) 161 Cal.App.4th 115, 121-122; In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
Notwithstanding respondent's concession, appellant has simply not shown a reasonable probability he would have obtained a more favorable result in the absence of the error (i.e., had a full and proper inquiry been performed).
Mother and father both filed ICWA-020 forms indicating neither they nor their children were members or eligible for membership in a federally recognized Indian tribe nor had Indian ancestry. With this clear expression from both parents, the likelihood that more distant relatives of the child would have provided information that altered the ICWA determination falls well below the threshold of a "reasonable probability."
Thus, while the inquiry here was incomplete, it nonetheless yielded information (i.e., denials from each parent) "sufficient for a reliable determination" such that it is "obvious that additional information would not have been meaningful to the inquiry." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 743.) In these circumstances we acknowledge that error occurred but hold that it is harmless. (See, e.g., In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1014-1015; In re M.M. (2022) 81 Cal.App.5th 61, 72, review granted Oct. 12, 2022, S276099.)
In re K.H. is Readily Distinguishable
Both parties and the majority cite In re K.H. (2022) 84 Cal.App.5th 566. However, K.H. is distinguishable in the most important respect. In that case, the father expressly indicated "he is or may be eligible for membership in a federally recognized Indian tribe." (Id. at p. 592.) The failure to conduct an adequate inquiry is prejudicial in that circumstance because the record expressly left open a reasonable possibility (if not outright probability) that further inquiry could have led to a different outcome. The same cannot be said here.
Conclusion
We must honestly and meaningfully consider harmlessness in dependency cases." 'There is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current "home," under the care of his parents or foster parents, especially when such uncertainty is prolonged.'" (In re Christopher L. (2022) 12 Cal.5th 1063, 1081.)
The uncertainty A.S. and M.S. face is being needlessly prolonged and therefore, I respectfully dissent.
[*] Before Poochigian, Acting P. J., Snauffer, J. and DeSantos, J.