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M.L. v. The Superior Court

California Court of Appeals, Third District, San Joaquin
Aug 8, 2024
No. C100642 (Cal. Ct. App. Aug. 8, 2024)

Opinion

C100642

08-08-2024

M.L., Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY et al., Real Parties in Interest.


NOT TO BE PUBLISHED

Super. Ct. No. STK-JD-DP-2022-0000297

ROBIE, ACTING P.J.

Petitioner M.L., mother of the dependent minor J.S. (minor), seeks an extraordinary writ to vacate orders of respondent juvenile court terminating her reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. (Cal. Rules of Court, rule 8.452.) Petitioner contends that the inquiry made by respondent juvenile court and the San Joaquin County Human Services Agency (Agency) into the minor's potential Indian heritage was insufficient and failed to comply with the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) We issued a stay of the section 366.26 hearing in the respondent juvenile court pending resolution of this writ petition and now issue a preemptory writ of mandate directing the respondent juvenile court to vacate the ICWA findings and conduct further proceedings to determine whether the ICWA inquiry and notice requirements have been met.

Undesignated statutory references are to the Welfare and Institutions Code.

Undesignated rule references are to the California Rules of Court.

We dispense with a detailed recitation of the underlying facts as they are unnecessary to our resolution of the issues. Instead, we discuss the relevant facts where necessary in our discussion of the issues.

DISCUSSION

Petitioner contends further inquiry of relatives and extended family members regarding minor's potential Indian heritage is necessary to meet the requirements of the ICWA. We agree.

When this dependency proceeding commenced in August 2022, both petitioner and minor's father (father) denied any Indian heritage. Shortly thereafter, mother provided a parental notification of Indian status form (ICWA-020) claiming she had possible Cherokee heritage through the maternal great-great-grandmother L.M. and the maternal great-grandfather R.L.

In its August 2022 and November 2022 reports, the Agency identified extended family members including father's maternal and paternal half sisters and half brothers (paternal aunts and uncles), father's mother C.S. (paternal grandmother), father's father (paternal grandfather with whom father maintained a relationship), father's grandmother G.S. (paternal great-grandmother), petitioner's two younger sisters (maternal aunts), petitioner's mother D.L. (maternal grandmother), petitioner's stepfather (maternal stepgrandfather), and petitioner's biological father (maternal grandfather with whom petitioner had regular monthly contact). The Agency informed the juvenile court that, based on the representations of both parents, it would mail ICWA notices (ICWA-030 forms) to the Cherokee tribes and the Bureau of Indian Affairs (BIA).

In December 2022, the Agency filed a declaration stating it sent ICWA notices to the BIA, the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians in Oklahoma, and that it had received responses from the three Cherokee tribes confirming the minor was not an Indian child for purposes of the ICWA. Absent from the record on appeal are the ICWA notices purportedly sent by the Agency to the tribes.

With the exception of a notation regarding an ICWA-020 form filed by paternal grandmother C.S. in June 2023 denying any Indian heritage, none of the subsequent reports filed by the Agency reflected any new ICWA inquiry by the Agency. The reports either reiterated the ICWA information previously provided or did not discuss the ICWA at all and requested that the court find that the ICWA did not apply.

On January 9, 2024, maternal grandmother D.L. filed an ICWA-020 form claiming possibly Indian ancestry with the Cherokee and Keewok tribes through maternal greatgreat-grandmother L.M. and maternal great-grandfather R.L., the same two relatives identified by petitioner in August 2022. It does not appear from the record that the Agency made any inquiry of maternal grandmother to determine if there was any additional information available or if she had contact information for either L.M. or R.L.

At the contested dependency review hearing on March 8, 2024, without any discussion regarding the ICWA, the court terminated the parents' reunification services, set the matter for a section 366.26 hearing, and adopted the Agency's recommended findings and orders, including that "the child is not an Indian child within the meaning of the [ICWA]." (Boldface omitted.) Petitioner filed the instant petition for extraordinary writ raising the issue of insufficient ICWA inquiry.

Petitioner claims that while the Agency did inquire of the maternal and paternal grandmothers, it could have, with minimal effort, contacted numerous other maternal and paternal relatives, some or all of whom could have had family lineage or ancestral information the grandmothers did not have. The Agency asserts there was no error because father and paternal grandmother unequivocally denied Indian ancestry; petitioner and maternal grandmother claimed possible Cherokee and Keewok heritage and the Cherokee tribes to whom the Agency sent ICWA notices all confirmed minor was not an Indian child; and further inquiry of other maternal or paternal relatives was unlikely to bear meaningfully on the ICWA determination because the family backgrounds obtained by the Agency showed the parents maintained relationships with the maternal and paternal grandparents-the relatives who were most likely to have relevant information- and there was no indication the parents were unaware of their Indian ancestry. The Agency also argues the parents never informed the Agency that relatives other than the maternal and paternal grandmothers had additional information, and they never provided the Agency with contact information for other relatives. We are not persuaded by the Agency's assertions.

The Agency was aware of the existence and/or identity of several relatives, namely the maternal and paternal grandfathers, the maternal and paternal aunts, and the paternal uncles. The juvenile court and the Agency have an affirmative and continuing duty, beginning at initial contact, and continuing throughout the pendency of the proceedings, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Rule 5.481(a); § 224.2, subd. (a).) It does not appear the Agency made any attempt to locate or speak with any of the known maternal and paternal relatives.

In its response to this court's order to show cause, the Agency asserts that it fulfilled its inquiry and notice duties with respect to the maternal relatives because petitioner's claim of possible Cherokee heritage through maternal great-greatgrandmother L.M. and maternal great-grandfather R.L. was also supported by maternal grandmother's claim through the same two relatives. With that information, the Agency sent ICWA notices to the three Cherokee tribes, presumably based on information provided by maternal grandmother. Each tribe responded that minor was not an Indian child within the meaning of the ICWA. The problem, of course, is that the ICWA notices were not included in the record on appeal, making it impossible for us to make any assessment regarding the quantity or quality of information provided to the tribes. On that basis alone we would remand for further ICWA proceedings. However, we continue on to address the Agency's oft-repeated arguments, to discourage their repetition under similar circumstances in other cases.

The Agency argues there was "no indication in the record" that petitioner's two younger sisters or her biological father had any additional information regarding mother's claim of Cherokee heritage, nor was there any reason to believe that petitioner's stepfather would have any additional information, as he did not maintain contact with maternal grandmother or petitioner. Further, the Agency argues, since both father and paternal grandmother denied any Indian ancestry, there was "no indication" that father's maternal or paternal half siblings or paternal grandfather had information regarding possible Indian ancestry. While it is true, as the Agency points out, that "[t]he Agency is not required to 'cast about' for information or pursue unproductive investigative leads" (In re D.S. (2020) 46 Cal.App.5th 1041, 1053) in order to fulfill its duty of inquiry under section 224.2, it must at the very least "make a meaningful effort to locate and interview extended family members to obtain whatever information they may have" (In re K.R. (2018) 20 Cal.App.5th 701, 709) and inquire of those with whom it already has contact, starting with the parents.

Here, the Agency created a record devoid of any indication that inquiry of certain extended relatives might be helpful and devoid of any reason to contact those individuals. That is, the Agency made a number of assumptions about whether certain relatives might have relationships with other relatives such that information regarding possible Indian heritage would or would not be shared and concluded investigation and inquiry was not warranted. Without further communication with petitioner or perhaps maternal grandmother, it was not reasonable to conclude there was no information of value to obtain from any of the extended relatives. (In re D.S., supra, 46 Cal.App.5th at p. 1053.) Speculation is a far cry from the "meaningful effort to locate and interview extended family members" (In re K.R., supra, 20 Cal.App.5th at p. 709) that is required under section 224.2.

The Agency argues it was never provided with contact information for any of the maternal or paternal relatives who purportedly had or might have had information regarding Indian ancestry. The Agency cannot shirk its duty of inquiry by sitting back and waiting for the parents to provide it with information. While all parties, including the parents and minors' counsel, have the responsibility of" 'aid[ing] the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice'" (Williams v. Superior Court (1996) 46 Cal.App.4th 320, 330; see also H.A. v. Superior Court (2024) 101 Cal.App.5th 956, 965), it is incumbent upon the Agency to ask the parents not just to identify relatives who might be able to shed light on the ICWA issue but also to provide any contact information they might have for those relatives. It is not clear from the record that the Agency did so.

We reject the Agency's argument that petitioner's ICWA claim is premature because the juvenile court had yet to make an ICWA finding at the time the writ petition was filed. As noted in the background portion of this opinion, the juvenile court adopted the Agency's recommended findings and orders at the March 8, 2024 hearing, including that "the child is not an Indian child within the meaning of the [ICWA]." (Boldface omitted.)

Finally, relying on this court's recent decision in H.A. v. Superior Court, supra, 101 Cal.App.5th at pages 964-965, the Agency argues petitioner forfeited the ICWA issue for failure to raise it in the underlying dependency proceeding. In so arguing, the Agency misinterprets our language in that case expressly intended to comment on "the omissions of both the parties and the juvenile court, and to provide some direction to all involved" in dependency cases arguing inadequacy of ICWA inquiry by the Agency with regard to extended relatives. (H.A., at p. 964.) Had the Agency read further, it would have seen this court's clear affirmation of the general rule that "the forfeiture doctrine does not bar consideration of ICWA inquiry and notice issues not raised in the juvenile court." (Id. at p. 965.)

Our Supreme Court has granted review in In re Dezi C. and we anticipate further clarification on this issue. (In re Dezi C. (2022) 79 Cal.App.5th 769, 779-782, review granted Sept. 21, 2022, S275578.) Until such time, we must apply the analytical framework set forth by our Supreme Court in In re A.R. for assessing harm and conclude the failure to make any ICWA inquiry of other accessible maternal and paternal relatives was not harmless. (In re A.R. (2021) 11 Cal.5th 234, 252-254.) The intent underlying the ICWA and related California law is to protect third party rights. Accordingly, we must grant the petition to assure compliance with the ICWA.

DISPOSITION

Let a peremptory writ of mandate issue directing respondent juvenile court to (1) vacate the finding that the ICWA inquiry and notice provisions were satisfied and that the ICWA does not apply, and (2) order the Agency to conduct further inquiry, including of available maternal and paternal relatives, and provide any new information to the relevant tribes, as necessary. The respondent juvenile court is then directed to enter updated ICWA findings prior to proceeding with a section 366.26 hearing. Having served its purpose, the stay previously issued by this court on May 31, 2024, is vacated upon finality of this opinion. This decision is final forthwith as to this court. (Rule 8.490(b)(2)(A).)

We concur: DUARTE, J., BOULWARE EURIE, J.


Summaries of

M.L. v. The Superior Court

California Court of Appeals, Third District, San Joaquin
Aug 8, 2024
No. C100642 (Cal. Ct. App. Aug. 8, 2024)
Case details for

M.L. v. The Superior Court

Case Details

Full title:M.L., Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent…

Court:California Court of Appeals, Third District, San Joaquin

Date published: Aug 8, 2024

Citations

No. C100642 (Cal. Ct. App. Aug. 8, 2024)