Opinion
B317772
12-19-2022
In re I.G., a Person Coming Under the Juvenile Court Law. v. ELAINE H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Michelle E. Butler, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Interim County Counsel, and Kim Nemoy, Assistant County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from order of the Superior Court of Los Angeles County, No. 19CCJP05180, Jean M. Nelson, Judge. Conditionally affirmed with directions.
Michelle E. Butler, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, and Kim Nemoy, Assistant County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Elaine H. (Mother) appeals from the order terminating her parental rights over her youngest child, I.G. Her sole contention of error is that the juvenile court and Los Angeles County Department of Children and Family Services (DCFS) failed to comply with their duty of inquiry under California law to determine whether there is a reason to believe or know that I.G. is an "Indian child" within the meaning of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law. We agree that DCFS failed to comply with this duty because it failed to interview any of several available extended relatives about I.G.'s heritage. Under the circumstances of this case, however, we cannot conclude that DCFS's failure of inquiry was harmless. We therefore conditionally affirm the order with directions to ensure compliance with ICWA and state law duties.
Congress enacted ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) California subsequently passed its own laws implementing ICWA. "Both ICWA and California law define an 'Indian child' as a child who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4); § 224.1, subds. (a), (b).)" (In re Y.M. (2022) 82 Cal.App.5th 901, 908 (Y.M.).) "[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 (Benjamin M.).)
FACTUAL AND PROCEDURAL SUMMARY
A. General Factual and Procedural Background
Mother's sole argument on appeal concerns the duty of initial inquiry imposed by ICWA and related California law, and we limit our factual and procedural summary accordingly.
Mother and Jaime G. (Father) are the parents of five children, the youngest of which is I.G., born in December 2018. Only I.G. is the subject of this appeal.
In 2004, the court sustained a Welfare and Institutions Code section 300 petition regarding I.G.'s four older siblings, based on Father severely physically abusing one of the children, Mother's failure to protect the children, and the parents engaging in domestic violence in front of them. The juvenile court denied the parents reunification services and referred the matter for a section 366.26 hearing to select and implement a permanent, out-of-home plan for the children. The maternal grandmother adopted I.G.'s siblings in 2010, all of whom share both parents with I.G. Mother and Father later moved into maternal grandmother's home with the children but left the home after I.G.'s birth in December 2018.
All unspecified statutory references are to the Welfare and Institutions Code.
There were two prior appeals relating to I.G.'s siblings. (In re J.G., Jr., et al. (Dec. 13, 2007, B197004) [nonpub. opn.] and In re J.G., Jr., et al. (Oct. 3, 2008, B205199) [nonpub. opn.].)
In August 2019, the juvenile court asserted jurisdiction over then seven-month-old I.G. based on the prior abuse of his siblings and the parents' substance abuse issues. I.G. was initially detained in the home of maternal grandmother, where his siblings resided, and DCFS approved her home in October 2019. I.G. remained there after he was removed from his parents in November 2019. The court denied the parents reunification services and set the matter for a section 366.26 hearing. DCFS recommended as the permanent plan for I.G. that he be released for adoption by maternal grandmother. The record does not contain any indication that DCFS ever challenged placement with maternal grandmother or her desire to adopt I.G.
While the section 366.26 hearing was pending, maternal grandmother obtained a restraining order against Mother based on Mother repeatedly coming to maternal grandmother's home without permission, where I.G.'s older siblings would allow her in, and on one occasion attempting to break into the home and trying to strangle one of her adult children who was attempting to talk to Mother.
At the section 366.26 hearing, Mother and Father were both present with counsel and asked the court not to terminate their parental rights. The court terminated parental rights to free I.G. for adoption by maternal grandmother.
B. Factual and Procedural Background Related to ICWA Issues
1. Parents' Statements and the Court's Findings Based Thereon
Mother and Father both denied having Native American ancestry during interviews with DCFS at the outset of the proceedings. They also filed Judicial Council form ICWA-020 indicating they were not aware of any Native American ancestry. At the detention hearing on August 14, 2019, the court clarified with parents' respective counsel that neither parent was claiming Native American ancestry. The court found "[b]ased on the parents' responses, I find there is no reason to know that [I.G.] is an Indian child within the meaning of [ICWA]. I find that act does not apply.
I order [DCFS] to continue to investigate." The reporter's transcript from the hearing does not reflect that the court ordered Mother or Father to provide any additional information relevant to I.G.'s heritage. The minute order from the proceeding reflects that the court instructed the parents "to keep [DCFS], their [a]ttorney[s] and the [c]ourt aware of any new information relating to possible ICWA status." We presume the reporter's transcript is the more accurate record of the proceeding. (See Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, 259-260.)
At the section 366.26 hearing, counsel for DCFS asked the court to make a renewed ICWA finding, and the court again found, based on the parents' denial of known Native American heritage, that ICWA did not apply.
2. Extended Family Inquiry
Although DCFS contacted or attempted to contact several extended family members, the record does not contain any indication that DCFS asked any extended family member whether the family had Native American heritage.
Maternal grandmother. DCFS interviewed maternal grandmother on three separate occasions. In addition, after the initial investigation, DCFS had ongoing contact with maternal grandmother in her roles as I.G.'s caregiver (beginning in August 2019) and, later, as his prospective adoptive parent. There is no indication that DCFS asked maternal grandmother or any of I.G.'s older siblings-some of whom were adults, and all of whom lived with maternal grandmother-whether they had information about I.G.'s heritage.
Paternal uncle. DCFS interviewed the paternal uncle on two separate occasions, and nothing in the record indicates the social worker asked about I.G.'s heritage. The record suggests Mother and Father resided at the home of the paternal uncle at the time I.G. was ordered removed from their care.
Paternal grandmother. In June 2019, Father told DCFS the paternal grandmother was in hospice care. The paternal grandmother died in August 2019. The record does not suggest DCFS attempted to contact her before she died.
Paternal aunt. Father introduced a DCFS social worker to the paternal aunt, but she declined to be interviewed.
3. ICWA Findings in Prior Dependency Proceedings
Over the parents' objections, the court took judicial notice of "all petitions, case plans, minute orders, and findings" in the prior dependency proceeding involving I.G.'s siblings. The documents in the record from those proceedings are incomplete and contain no information regarding the ICWA findings made by the juvenile court in the siblings' dependency proceedings, nor do they contain any information as to what DCFS did in that case to inquire regarding the heritage of I.G.'s siblings. According to the juvenile court clerk, the remainder of the documents of which the court took judicial notice are not accessible now due to a damaged server.
The current record contains only three orders from the siblings' case, which concluded in 2008. Specifically, the record includes: (1) a January 17, 2008 section 366.26 hearing order terminating parental rights over the siblings; (2) a March 26, 2004 adjudication and disposition hearing order; and (3) a May 20, 2004 disposition hearing order.
DISCUSSION
Mother timely appealed the order terminating her parental rights. Mother's sole contention of error on appeal is that DCFS and the juvenile court failed to properly execute their respective duties under California law to inquire regarding I.G.'s heritage, and that the court prejudicially erred in nevertheless finding ICWA did not apply to I.G. On this basis, she requests that this court "conditionally reverse and remand the matter with orders to comply with [ICWA] and related California law, including conducting a proper inquiry . . . and complying with noticing requirements if applicable."
A. DCFS and the Juvenile Court Failed to Discharge Their Initial Inquiry Duty Imposed by California's Laws Implementing ICWA
We generally review ICWA findings for substantial evidence, but where, as here, the material facts are undisputed,"' "we review independently whether ICWA requirements have been satisfied."' [Citation]." (In re J.K. (2022) 83 Cal.App.5th 498, 504.)
"The [juvenile] court [and] [DCFS] . . . have an affirmative and continuing duty to inquire whether a child for whom a petition under [s]ection[s] 300, 601, or 602 may be or has been filed, is or may be an Indian child" within the meaning of ICWA. (§ 224.2, subd. (a); Isaiah W., supra, 1 Cal.5th at p. 9; see Cal. Rules of Court, rule 5.481(a)(1) [when DCFS seeks termination of parental rights, it "must ask the child, if the child is old enough, and the parents, . . . extended family members, [and] others who have an interest in the child . . . whether the child is or may be an Indian child"].)As to the court, "[a]t the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." (§ 224.2, subd. (c).) DCFS's duty of "[i]nquiry includes, but is not limited to, asking the child, parents, . . . 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." (§ 224.2, subd. (b).) ICWA and related California law define" 'extended family member'" by "the law or custom of the Indian child's tribe" or, absent such law or custom, as "a person who has reached the age of eighteen and who is the Indian 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." (25 U.S.C. § 1903(2); § 224.1, subd. (c) [extended family member "defined as provided in [s]ection 1903" of ICWA].) DCFS must also provide to the court "a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status." (Cal. Rules of Court, rule 5.481(a)(5).) These descriptions provide the court with the information it needs to "rule on the question of whether the ICWA applies." (In re Josiah T. (2021) 71 Cal.App.5th 388, 406.)
The language we quote from rule 5.481 of the California Rules of Court took effect on January 1, 2020. The dependency case at issue here proceeded for at least a year and a half after the amendment became effective.
A parent's denial of Native American heritage-without more-does not constitute a complete inquiry and does not discharge DCFS of its duty to ask available extended family members about potential Native American heritage. (In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016 (A.C.).) Here, DCFS failed to ask any extended family members about possible Native American heritage. DCFS also does not dispute that the juvenile court made its ICWA findings without the benefit of such inquiries. Nor did the court itself orally inquire of any party or witness regarding I.G.'s heritage, relying instead on the parents' Judicial Council ICWA-020 forms. Accordingly, we conclude that DCFS and the juvenile court failed to discharge the initial inquiry duty imposed by California laws implementing ICWA.
B. The Initial Inquiry Error Was Not Harmless Next, we consider whether these errors were prejudicial and, if so, what the appropriate remedy is.
Although California law on this issue presently is unsettled,this division repeatedly has rejected the argument that DCFS's failure to ask extended family members about a child's heritage mandates automatic reversal. (See In re S.S. (2022) 75 Cal.App.5th 575, 581 (S.S.); In re Darian R. (2022) 75 Cal.App.5th 502, 504 (Darian R.); A.C., supra, 75 Cal.App.5th at p. 1017.) Rather, our division has generally evaluated this issue to determine whether" 'the probability of obtaining meaningful information is reasonable in the context of ICWA.'" (Darian R., supra, at p. 509, quoting Benjamin M., supra, 70 Cal.App.5th at p. 744.) Information available from extended family must be both "readily obtainable," and also "likely to bear meaningfully upon whether the child is an Indian child." (Benjamin M., supra, p. 744.) In making this determination, we have rejected "a wooden approach to prejudice" (A.C., supra, at p. 1017), and refused to require further inquiry when, based upon the particular circumstances revealed by the record, it is apparent "that additional information would not have been meaningful to the inquiry." (Benjamin M., supra, at p. 743; see, e.g., S.S., supra, at p. 582.)
"[T]here is currently a wide and varied split of authority among the Courts of Appeal regarding the proper standard to apply in determining the prejudicial effect" of a failure to comply with the initial inquiry duty under ICWA and related California law. (Y.M., supra, 82 Cal.App.5th at p. 911.) The question of the applicable standard presently is pending before the California Supreme Court. (In re Dezi C. (2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022, S275578.)
Here, our record does not disclose any facts suggesting that the information obtainable from maternal grandmother, the paternal uncle, or I.G.'s older siblings---all relatives readily available to DCFS-would not be meaningful to the ICWA inquiry. Although Mother and Father indicated they had no knowledge of any Indian ancestry, this is alone insufficient to render the failure to ask extended family members harmless. (See A.C., supra, 75 Cal.App.5th at pp. 1015-1016, 1017.) Rather, we consider such statements in the context of the record as a whole. (See, e.g., ibid.) Here, nothing else in the record suggests I.G. does not have Native American ancestry, and nothing suggests that the parents' knowledge of their respective ancestry is coextensive with that of maternal grandmother, the paternal uncle or I.G.'s older siblings. (See A.C., supra, 75 Cal.App.5th at p. 1017 ["[t]he statutes and regulations implementing ICWA, moreover, expressly require that the juvenile court and child welfare agency (and not parents' counsel) inquire about a child's potential Indian ancestry"], citing § 224.2; 25 C.F.R. § 23.107(a) (2022).)
The cases on which DCFS relies are factually distinguishable. In Darian R., "we held that interviewing extended family members would not have shed meaningful light on whether three dependent children were Indian children when '[t]here was a prior juvenile court finding that two of [the] children [sharing the same biologic parents as the child at issue] are not Indian children, the juvenile court asked [the] mother, [the] father, and [the] paternal aunt about Indian ancestry, both parents eschewed Indian ancestry, and [the] mother was living with extended family members whom she could have asked about potential Indian ancestry.'" (A.C., supra, 75 Cal.App.5th at p. 1017, quoting Darian R., supra, 75 Cal.App.5th at p. 504.) Here, by contrast, DCFS failed to ask any extended family members about Native American ancestry, and we have no records from the dependency proceedings of I.G.'s siblings to indicate what ICWA findings that court made, or on what basis.
Further, unlike in Darian R., neither Mother nor Father lived with any of the extended relatives during the dependency proceedings. And with respect to maternal grandmother, Mother's relationship with her was clearly strained after the proceedings began, as reflected in the restraining order maternal grandmother obtained against Mother. Under these circumstances, we cannot conclude that the information DCFS could have obtained from maternal grandmother was equally or more accessible to Mother.
DCFS also argues that this case is like S.S., supra, 75 Cal.App.5th 575. We disagree. In that case, we found the failure to interview maternal grandmother was not prejudicial where, with the support of minor's counsel, "maternal grandmother requested placement of the dependent child in her care but never revealed any Indian ancestry throughout the dependency proceedings, despite having every incentive to do so." (See A.C., supra, 75 Cal.App.5th at p. 1017.) We explained that such incentive existed because ICWA directs that "preference shall be given . . . to a placement with [¶] . . . a member of the [Indian] child's extended family" (25 U.S.C. § 1915(a)(1)), and the maternal grandmother had the assistance of minor's counsel to educate her on this preference. Thus, with the assistance of minor's counsel, the maternal grandmother in S.S. presumably would have had a strong incentive to raise any Indian ancestry in support of that goal, yet they did not do so. (S.S., supra, 75 Cal.App.5th at p. 582.) Here, by contrast, the maternal grandmother had I.G. in her care from the time I.G. was initially detained, her home was approved approximately a month later, and the record does not suggest that DCFS ever objected to or otherwise pushed back on her desire to adopt I.G. Because maternal grandmother never needed to convince DCFS or the court that she should be given custody, she did not have the same incentive to share information about Native American ancestry as did the grandmother in S.S. Nor is there a basis in the current record for us to believe she was aware of the potential benefits to her under ICWA if she reported Indian ancestry, as was the case in S.S.
Given the absence of any evidence in the record suggesting interviews of extended family members would not yield information likely to bear on the children's possible Indian heritage, we cannot conclude that the initial inquiry error here was harmless. (See Darian R., supra, 75 Cal.App.5th at p. 509 [" '[w]hile we cannot know how [the] [f]ather's brother would answer the inquiry, his answer is likely to bear meaningfully on the determination at issue about his brother' "], quoting Benjamin M., supra, 70 Cal.App.5th at p. 745.) Rather, because "neither [DCFS] nor the juvenile court gathered information sufficient to ensure a reliable ICWA finding by the court," we find the type of prejudice necessary in this context to warrant relief on appeal. (In re E.C. (2022) 85 Cal.App.5th 123, 135.) As to the form of such relief, when the failure to conduct an adequate inquiry is not harmless, we will ordinarily conditionally affirm the challenged order with directions to ensure the agency's compliance with ICWA and related law. (See, e.g., In re J.C. (2022) 77 Cal.App.5th 70, 84; A.C., supra, 75 Cal.App.5th at p. 1018.) We do so here.
DISPOSITION
The orders made at the section 366.26 hearing are conditionally affirmed. Upon remand, the juvenile court shall appoint counsel for Mother and I.G., and direct DCFS to comply with its duties of inquiry under section 224.2 and to make the report to the court required by rule 5.481(a)(5) of the California Rules of Court as soon as practicable. If, after a hearing, the court determines that DCFS has fulfilled its duty of inquiry and finds that I.G. is not an Indian child, the order terminating parental rights shall remain in effect and become final. If the juvenile court finds that notice is required under section 224.3, it shall vacate its section 366.26 orders and proceed in accordance with ICWA and related California law.
We concur: CHANEY, J., WEINGART, J.