Opinion
A166851
07-21-2023
In re E.G., a Person Coming Under the Juvenile Court Law. v. N.G., Defendant and Appellant. LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Lake County Super. Ct. No. JV320621A)
FUJISAKI, ACTING P.J.
N.G. (Mother) appeals from an order of the juvenile court terminating her parental rights to her daughter, E.G., following a hearing under section 366.26 of the Welfare and Institutions Code. Mother contends, and the Lake County Department of Social Services (Department) concedes, that the Department did not fully comply with the inquiry and notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California law. We agree and conditionally reverse the disposition order of the juvenile court.
Further unspecified section references are to the Welfare and Institutions Code.
Factual and Procedural Background
On April 26, 2021, the Department filed a dependency petition on behalf of four-year-old E.G., alleging that she came within the provisions of section 300, subdivisions (b), (g), and (j). The petition alleged that E.G. was taken into protective custody by sheriff's deputies after she was found with her father, M.G. (Father), while he was under the influence of controlled substances. The petition further alleged that both parents' substance abuse rendered them incapable of providing E.G. with adequate care and supervision; that Father's propensity for violent and threatening behavior placed E.G. at substantial risk of harm and significantly impacted his ability to supervise and protect her; and that Mother was aware of Father's ongoing substance abuse but failed to adequately protect E.G. According to the petition, E.G.'s three half-siblings had been previously removed from Mother's care due to substance abuse and domestic violence, and Mother failed to adequately participate in court-ordered services and lost her parental rights to them.
At the detention hearing, the juvenile court asked the parents if E.G. had Native American ancestry. Father replied "[n]ot that I know of," and "[o]n her mom's side probably." Mother indicated she was "a Blackfoot Indian and Cherokee." The juvenile court found "reason to believe" ICWA may apply and ordered the Department "to complete further inquiry as required by" section 224.2, subdivision (e), and to "file with the court evidence of this inquiry."
In its May 2021 jurisdiction report, the Department recommended that the dependency petition be sustained. With respect to ICWA, the Department noted that "[i]n the mother's previous Child Welfare cases ICWA was found to not apply despite mother's beliefs she may have Native American ancestry." The Department further reported that in April 2021, a social worker "made an ICWA inquiry as required and the mother stated she believes she has Indian ancestry through the Cherokee and Blackfeet tribes." Thus in early May 2021, the Department sent Judicial Council form ICWA-030 notices to the following tribes: Apache Tribe of Oklahoma, Blackfeet Tribe, Cherokee Nation, Eastern Band of Cherokee Indians, Fort Sill Apache Tribe of Oklahoma, Jicarilla Apache Nation, Mescalero Apache Tribe, San Carlos Apache Tribe, Tonto Apache Tribe of Arizona, United Keetoowah Band of Cherokee, White Mountain Apache Tribe, and Yavapai-Apache Nation. ICWA notices were also reportedly sent to the Bureau of Indian Affairs, the Department of the Interior, the parents and their counsel, and minor's counsel.
In August 2021, the Department filed an ICWA compliance report recommending a finding that ICWA does not apply. According to the Department, "proper and adequate notice has been provided pursuant to . . . [s]ection 224.3, and neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice." The compliance report further stated that the Department filed ICWA-030 forms with the juvenile court, distributed them to the attorneys, and mailed them to the tribes, the Bureau of Indian Affairs, the Department of the Interior, "and the pertinent parties." The report attached "a table alphabetically outlining the ICWA notice processes including the name of each tribe noticed, dates of notice, the form of notice delivery, and the respective responses of each tribe, if applicable, for each child." The report also detailed the various responses received from the contacted tribes, all of which indicated that E.G. was not enrolled or eligible for enrollment in the respective tribes.
At the jurisdiction hearing in September 2021, the juvenile court amended an allegation of the dependency petition regarding Father's substance abuse and then sustained the petition's allegations against both parents under section 300, subdivisions (b) and (j).
In September 2021, the Department filed a second ICWA compliance report again recommending that the juvenile court find ICWA does not apply.
In its disposition report, the Department recommended that the minor be declared a dependent of the juvenile court, and that family reunification services be offered to Father, but not to Mother due to her avoidance of substance abuse testing and assessments for service, and her possible alteration of a drug test sample. In considering relative placements, the Department noted that Mother's cousin, P.R., had requested placement of the child with her and was referred to the Resource Family Approval unit for assessment and home study. The disposition report stated that ICWA "does not apply" and referred to the ICWA compliance report "filed separately with the court."
At the ICWA compliance hearing on October 4, 2021, the juvenile court found that "[p]roper and adequate notice has been provided. There's been no responses within 60 days. Obviously, that's an ongoing obligation. But at this point, the Court finds good cause appearing, that ICWA notice of these proceedings was properly given. The ICWA does not apply to these proceedings at this time." Thereafter, the court entered its written order regarding "ICWA COMPLIANCE: [¶] Findings and Determination," stating that "ICWA notice of these proceedings was properly given," and that "ICWA does not apply to these proceedings at this time."
In November 2021, the Department filed a supplemental report again recommending that Mother not be offered family reunification services.
Following a disposition hearing on November 10, 2021, the juvenile court declared E.G. to be a dependent of the court and ordered that family reunification services be offered to Father, but not to Mother. The court reiterated its finding that "ICWA does not apply in this case."
The matter was set for a section 366.26 hearing, and in August 2022, the Department filed its section 366.26 report recommending termination of parental rights. The adoption assessment indicated that the prospective adoptive mother was P.R., the minor's "maternal first cousin once removed," and that P.R. and her husband had been approved for adoption of E.G.
At the section 366.26 hearing on September 19, 2022, Mother's counsel told the juvenile court that Mother had not received the Department's ICWA compliance report. The juvenile court continued the matter for a week "so we can research this a little" and determine whether the appropriate tribes were given ICWA notice. At the continued hearing, the Department's counsel confirmed that the ICWA compliance reports had been served on Mother's counsel. The juvenile court then terminated parental rights and freed E.G. for adoption.
Mother timely appealed.
Discussion
"ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions." (In re A.G. (2012) 204 Cal.App.4th 1390, 1396.)" 'Indian child'" is defined as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 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).)
"ICWA established minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes." (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).) As relevant here, "section 224.2 creates three distinct duties regarding ICWA in dependency proceedings." (D.S., at p. 1052.) After a child welfare department's initial contact with the minor and his or her family, "the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates 'reason to believe' the child is an Indian child, then the [Department] 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), [italics omitted].) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply." (D.S., at p. 1052, italics omitted.)
On this score, California Rules of Court, rule 5.481(a)(2) (all subsequent unspecified rule references are to the California Rules of Court), provides in relevant part that "[a]t the first appearance by a parent, . . . and at each hearing that may culminate in . . . termination of parental rights, . . . the court must: [¶] (A) Ask each participant present whether the participant knows or has reason to know the child is an Indian child; [¶] (B) Instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child; and [¶] (C) Order the parent, Indian custodian, or guardian, if available, to complete Parental Notification of Indian Status (form ICWA-020)." In Mother's opening brief, her appellate counsel notes that the record on appeal does not contain the parents' ICWA-020 forms, despite counsel's request that the superior court clerk correct the appellate record to include them. Although the record reflects that the juvenile court directly asked the parents about E.G.'s Indian ancestry at the detention hearing, the court did not order the parents to complete form ICWA-020 at that time or at any subsequent hearing in which they were present, nor does the record contain copies of any ICWA-020 forms signed by the parents under penalty of perjury under the laws of the State of California. If indeed the completed ICWA-020 forms were not submitted by the parents, this should be addressed on remand.
Juvenile courts and county welfare departments "have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); see also rule 5.481(a).) When there is reason to believe an Indian child is involved in a proceeding, "the court, social worker, or probation officer shall make further inquiry regarding the possible Indian status of the child . . . as soon as practicable. [¶]. . . [¶] . . . Further inquiry includes .... [¶] . . .[i]nterviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.3," as well as contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the relevant tribes, and contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility. (§ 224.2, subd. (e)(2)(A), (B), (C).) Under ICWA," 'extended family member' shall be as defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be 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); see § 224.1, subd. (c) [defining" 'extended family member' . . . as provided in Section 1903 of the federal [ICWA]"].)
Section 224.3, subdivision (a)(5), sets forth the types of information that must be included in the ICWA notice when there is reason to know a child is an Indian child, including: "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C).).
If the juvenile court finds that the Department has conducted "proper and adequate further inquiry and due diligence" and that there is no reason to know whether the child is an Indian child, the court may make a finding that ICWA does not apply to the proceedings. (§ 224.2, subd. (i)(2).) However, the Department and the court have a continuing duty under ICWA, and the court "shall reverse its determination if it subsequently receives information providing reason to believe that the child is an Indian child and order the social worker or probation officer to conduct further inquiry." (§ 224.2, subd. (i)(2); see D.S., supra, 46 Cal.App.5th at p. 1050.)
"On appeal, we review the juvenile court's ICWA findings for substantial evidence. [Citations.] But where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied." (D.S., supra, 46 Cal.App.5th at p. 1051.)" 'ICWA notice requirements are strictly construed' [citation] and' "must include enough information for the tribe to 'conduct a meaningful review of its records to determine the child's eligibility for membership.'" '" (In re Y.W. (2021) 70 Cal.App.5th 542, 557 (Y.W.).)
In the present case, the Department concedes ICWA error, and rightly so, as substantial evidence does not support the juvenile court's finding that the Department conducted proper and adequate further inquiry and due diligence under ICWA. (§ 224.2, subd. (i)(2).) Although the Department's ICWA compliance reports stated that all "pertinent parties" had been given ICWA notice, the reports did not indicate whether the minor's "extended family members" (including her biological grandparents) had been interviewed regarding the information required under section 224.3, subdivision (a)(5). (See § 224.2, subds. (b) [duty to inquire with "extended family members" and "others who have an interest in the child"], (e)(2)(A) [further inquiry includes interviewing extended family members]; rule 5.481(a)(1) [party seeking termination of parental rights must inquire with "extended family members" and "others who have an interest in the child"]; 25 U.S.C. § 1903(2) [extended family member includes grandparents].)
This lack of detail in the Department's reports failed to comply with Rule 5.481(a)(5), which provides that "[t]he petitioner 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." Here, the Department's ICWA compliance reports and ICWA updates in its other reports were limited to information regarding the notices sent to the various tribes listed therein. The Department did not provide "detailed description[s]" of the further inquiries it was required to make and any information received therefrom, including interviews with extended family members. (See § 224.2, subd. (e)(2)(A) [defining "[f]urther inquiry" to include interviews with extended family members].)
Meanwhile, the ICWA notices sent to the tribes omitted certain required information that could have been gleaned from the extended family members, including maternal grandmother's full current address, former address, and place of birth, paternal grandmother's name or any other identifying information about her, maternal grandfather's full current address and former addresses, and any information regarding paternal grandfather. (See In re E.H. (2018) 26 Cal.App.5th 1058, 1069 (E.H.) [" 'it is necessary to provide as much information as is known on the Indian child's direct lineal ancestors'" (italics omitted)]; In re Louis S. (2004) 117 Cal.App.4th 622, 630 ["The burden is on the [Department] to obtain all possible information about the minor's potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the [Bureau of Indian Affairs]"].) Given that the record reflects the involvement of both the maternal and paternal grandmothers in the proceedings and their attendance at several hearings, it appears they were readily available for interviews with the Department. And while Father did not claim any Indian ancestry at the detention hearing, this did not relieve the Department of its duty to inquiry into possible Indian ancestry on Father's side, as "parents may not know their possible relationship with or connection to an Indian tribe." (Y.W., supra, 70 Cal.App.5th at p. 554.) As discussed, it is not clear whether Father completed an ICWA-020 form, and even if he did, "the extensive inquiry requirements under section 224.2 presume that a parent's declaration on the ICWA-020 form, reliable or not, is not enough and that the child protective agency must do more than look at the form." (In re J.C. (2022) 77 Cal.App.5th 70, 81.)
Maternal grandmother was present at hearings held in June 2021 and November 2021. Paternal grandmother was present at hearings held in April 2021, May 2021, June 2021, July 2021, September 2021, October 2021, November 2021, May 2022, and September 2022.
Mother also contends the Department should have interviewed her cousin, P.R., who was involved in the proceedings as the prospective adoptive mother of E.G. To the extent Mother suggests P.R. was an "extended family member" for purposes of ICWA, we disagree, as the statutory definition of this term does not include a child's first cousin once removed. (See 25 U.S.C. § 1903(2); § 224.1, subd. (c).) That said, Rule 5.481(a)(1) required the Department to make further inquiry from "others who have an interest in the child," which reasonably included P.R. Thus, we agree with Mother that the Department's duty of further inquiry required it to interview P.R.
Finally, we cannot conclude that the conceded ICWA error was harmless. The record does not show that the Department made any effort to interview readily available extended family members, and consequently, the ICWA notices sent to the tribes as part of the Department's duty of inquiry did not contain statutorily-required information. On this record, we find the claim of ICWA error to be prejudicial and reversible, as we simply cannot say whether the noticed tribes would have made the same determination had the Department fulfilled its obligations under ICWA and related California law and mailed notices with more complete information. (See In re N.G. (2018) 27 Cal.App.5th 474, 484-485; E.H., supra, 26 Cal.App.5th at p. 1074.)
Disposition
The disposition order is conditionally reversed. (In re Francisco W. (2006) 139 Cal.App.4th 695, 705-706.) The matter is remanded to the juvenile court with directions to ensure the Department's compliance with ICWA, including ICWA's notice provisions and related California law calling for interviewing "extended family members" and "others who have an interest in the child." (§ 224.2, subds. (b), (e); rule 5.481(a).) If a tribe intervenes after receiving proper notice, the court shall proceed in accordance with ICWA. If no tribe intervenes or otherwise responds after receiving proper notice, the disposition order shall be reinstated.
WE CONCUR: PETROU, J., RODRIGUEZ, J.