Opinion
G062235
08-03-2023
In re R.L., a Person Coming Under the Juvenile Court Law. v. M.P., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Mansi Thakkar, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 20DP1200 Robert Gerard, Judge. Conditionally reversed and remanded with directions.
Mansi Thakkar, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
In this juvenile dependency appeal, M.P. (Mother) appeals from an order terminating her parental rights as to her two-year-old son, R.L. Mother's sole contention is the juvenile court erred in finding that the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) does not apply to R.L. According to Mother, the court and the Orange County Social Services Agency (the Agency) failed to conduct a proper inquiry of extended relatives to determine whether R.L. is or may be an Indian child. The Agency concedes it did not conduct a proper ICWA inquiry. We accept the Agency's concession and remand this matter for further proceedings.
Because ICWA and related California statutes use the term "Indian," we do so for the sake of consistency, while we acknowledge other terms are preferred.
FACTS
In light of the limited issue raised on appeal, we provide only a brief summary of the background of this case.
R.L. was referred to the Agency in September 2020 when he was two weeks old because he was experiencing severe opioid withdrawals. The Agency filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1), alleging that R.L.'s parents failed to protect him because they had untreated substance abuse problems and criminal histories, among other issues. Attached to the petition was an ICWA-010(A) Indian Child Inquiry Attachment form showing Mother was questioned about R.L.'s ancestry and provided no reason to believe R.L. is an Indian child.
All further undesignated statutory references are to this code.
The detention hearing went forward in September 2020. During that hearing, both parents denied having any Indian ancestry. R.L.'s maternal grandfather was also in attendance, having flown from Michigan to attend the hearing in person; the juvenile court did not inquire whether he had any Indian ancestry. After hearing from counsel, the parents, and the maternal grandfather, the court found that a prima facie showing had been made that R.L. was a child described by section 300, and detained R.L. under the Agency's protective custody. It then ordered the Agency to identify relatives for possible placement, and granted the parents supervised visitation of R.L. at the hospital.
Around that same time, Mother filed an ICWA-020 form denying any known Indian ancestry.
That fall, the Agency social worker spoke with R.L.'s maternal grandfather and paternal grandmother on multiple occasions about possible placement; the social worker did not ask them about Indian ancestry. The paternal grandmother filed a JV-285 Relative Information form identifying R.L.'s aunt and uncle as relatives who might be able to help the child. There is no indication that the Agency ever asked those individuals about possible Indian ancestry.
At the November 2020 jurisdiction hearing, the juvenile court found the petition's allegations true by a preponderance of the evidence. At the disposition hearing two months later, the court found by clear and convincing evidence that section 361, subdivision (c)(1), applied to R.L., placed him in the Agency's custody for suitable placement, and granted both parents reunification services.
In the months that followed, R.L.'s parents made minimal progress in their service plans, and reunification services were eventually terminated. By the summer of 2022, the parents' whereabouts were unknown, and R.L. moved to live with his maternal grandparents in Michigan.
Around that same time, R.L.'s paternal grandfather informed the Agency that his mother (R.L.'s paternal great-grandmother) has some Indian ancestry through the Aamjiwnaang Tribe, and the Agency submitted a referral to ICWA-Child &Family Services (ICWA-CFS). A social worker from ICWA-CFS interviewed the paternal grandfather; he reported the tribe is located in Canada and Michigan, neither he nor his mother are registered with the tribe, he does not think the tribe is federally recognized, and he would follow up with his mother for more information. The next day the paternal grandfather reported he spoke with his mother who said the family had Indian ancestry in the Saginaw Swan Cree Tribe and Black River Chippewa Tribe through R.L.'s late paternal great-great-grandmother. The Agency did not make any direct contact with R.L.'s paternal great-grandmother.
The social worker contacted the Office of Tribal Affairs for assistance in identifying the tribes in which R.L. might be eligible for membership. She also contacted various Chippewa tribes and other tribes in Michigan about R.L.'s enrollment eligibility; none indicated R.L. was a member or eligible for membership.
The section 366.26 hearing went forward in December 2022. During that hearing, the juvenile court found ICWA does not apply, citing the Agency's ongoing inquiries, its efforts to contact various tribes that were identified, and those tribes' failure to respond. The court then found that the beneficial parent-child relationship exception to the termination of parental rights did not apply, and it terminated both parents' parental rights. Mother filed a notice of appeal from that order. Father did not appeal.
DISCUSSION
Mother appeals from the juvenile court's order terminating her parental rights, which included the finding that ICWA does not apply. She raises only one issue: the Agency and the court failed to make a proper initial inquiry as to whether R.L. is or may be an Indian child. We agree.
Congress enacted ICWA to address rising concerns in the mid-1970's 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.) An "'Indian child'" is "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, subd. (a).)
Under California law adopted pursuant to ICWA, whenever a section 300 petition is filed, both the juvenile court and the county child welfare agency have an "affirmative and continuing duty" to inquire whether the child is or may be an Indian child; that duty begins with the "initial contact" and includes asking the party reporting abuse or neglect if they have any information that the child may be an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rules 5.481(a), 5.668(c).) If a child is placed in the agency's temporary custody, the agency must ask the child, the parents, and "extended family member[s]," including the child's grandparents, aunts, and uncles, about possible Indian ancestry. (25 U.S.C. § 1903(2); §§ 224.1, subd. (c), 224.2, subd. (b).)
"At the first court appearance . . of each party, the [juvenile] court shall ask . . . 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).)
There is "reason to know" a child is an Indian child when a person having an interest in the child informs the juvenile court the child is an Indian child; the residence of the child, the child's parents, or the child's Indian custodian is on a reservation or in an Alaskan Native village; a participant in the proceeding, officer of the court, Indian tribe or organization, or agency informs the court it has discovered information indicating the child is an Indian child; the child gives the court reason to know that the child is an Indian child; the court is informed that the child is or has been a ward of a tribal court; or the court is informed either the parent or the child possesses an identification card indicating membership or citizenship in an Indian tribe. (§ 224.2, subd. (d)(1-6).)
If the juvenile court or social worker "has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court [or the] social worker . . . shall make further inquiry . . . as soon as practicable." (§ 224.2, subd. (e).) "[F]urther inquiry" includes actions such as "[i]nterviewing the parents, Indian custodian, and extended family members," "[c]ontacting the Bureau of Indian Affairs and the State Department of Social Services for assistance" in identifying contact information of relevant tribes, and contacting the tribe or any other person who may have information regarding the child's tribal membership or eligibility. (Id., subd. (e)(2)(A)&(B).)
"[R]eason to believe" means the court or social worker has information "suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (§ 224.2, subd. (e)(1).)
"[T]he point of the statutory requirement that the social worker ask all relevant individuals whether a child is or may be an Indian child [is] to obtain information the parent may not have." (In re Y.W. (2021) 70 Cal.App.5th 542, 556; see, e.g., In re S.R. (2021) 64 Cal.App.5th 303, 314 ["the children's parents apparently had no idea of their family's connection to the Yaqui tribe of Arizona, even though the children's great-grandmother was a member and still lived with the grandparents in Colorado"].)
"[W]here the [juvenile] court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of an Indian child shall notify the parent or Indian custodian and the Indian child's tribe of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912, subd. (a); § 224.3, subd. (a).) Conversely, "[i]f "the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and 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, subject to reversal based on sufficiency of the evidence." (§ 224.2, subd. (i)(2).)
In this case, the Agency failed to conduct an appropriate ICWA inquiry of several "extended family members," including R.L.'s paternal grandmother and his maternal grandfather (both of whom the Agency contacted for other reasons), R.L.'s aunt and uncle (whose contact information the Agency received from the paternal grandmother's JV-285 Relative Information form), and R.L.'s paternal great-grandmother (who reported Indian ancestry to the paternal grandfather, but whom the Agency failed to directly contact).
Citing that failure to inquire of R.L.'s extended family members, Mother contends the Agency and the juvenile court failed to discharge their mandatory duty of inquiry under section 224.2. The Agency concedes it did not conduct a proper inquiry, and further concedes this court should remand the case to the juvenile court for compliance with ICWA.
On this record, where it is undisputed the Agency did not interview available extended relatives, we find it appropriate to accept the Agency's concession and remand this matter for compliance with ICWA. As we recently observed, "[w]hen 'ICWA requirements have been ignored' [citation], either outright and entirely . . ., or effectively here as to the family member[s] most likely able to provide relevant information, 'the failure to conduct the inquiry in each case constitutes a miscarriage of justice' [citation]. Thus, we adhere to 'a clear rule that requires reversal in all cases where the ICWA inquiry rules were not followed.'" (In re G.H. (2022) 84 Cal.App.5th 15, 32; see also In re E.V. (2022) 80 Cal.App.5th 691, 698; In re A.R. (2022) 77 Cal.App.5th 197, 207.) We therefore conditionally reverse the juvenile court's order terminating Mother's parental rights and remand the matter for further inquiry and compliance with ICWA.
DISPOSITION
The order terminating Mother's parental rights is conditionally reversed for further ICWA inquiry. The case is remanded to the juvenile court to order the Agency to immediately comply with the inquiry provisions of section 224.2 as to available extended relatives. After ensuring the Agency has complied with the inquiry, and, if applicable, notice provisions of ICWA and related California law, the court shall determine whether ICWA applies. If the court determines ICWA does not apply, the order terminating Mother's parental rights shall remain in effect. If the court determines ICWA does apply, it shall vacate that order and proceed consistent with ICWA and related state law.
WE CONCUR: MOORE, ACTING P. J., DELANEY, J.