Opinion
E081694
10-17-2023
In re A.R., a Person Coming Under the Juvenile Court Law. v. E.R., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIJ2000590, Dorothy McLaughlin, Judge.
Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
INTRODUCTION
This is E.R.'s (Father) second appeal in this matter. In his first appeal (Case No. E078478), this court conditionally reversed the trial court's order on January 27, 2022, terminating parental rights under Welfare and Institutions Code section 366.26, to A.R., who is 16 years old. This court concluded that the juvenile court and Riverside County Department of Public Social Services (DPSS) committed prejudicial error by not adequately inquiring of Father and other paternal relatives regarding A.R.'s Native American ancestry. After remand, DPSS inquired as to Father's Native American ancestry. Thereafter, on June 13, 2023, the juvenile court found that DPSS complied with its duty of inquiry under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and ordered reinstatement of the January 27, 2022, order.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code. Because ICWA uses the term "Indian," we do so on occasion as well, not out of disrespect, but because of the need for clarity and consistency, even though we recognize that other terms, such as "Native American" or "indigenous" are preferrable.
Father does not contend that DPSS or the court failed to satisfy any duty of inquiry with respect to the maternal side of A.R.'s family.
In the instant appeal, Father appeals from the juvenile court's order on June 13, 2023, reinstating the juvenile court's January 27, 2022, order. Father contends that the juvenile court erred in finding that ICWA does not apply and that there was sufficient compliance with ICWA. Father asserts, and DPSS agrees, that DPSS failed to further inquire of A.R.'s possible Yaqui Native American ancestry and that such further inquiry requires DPSS to contact the Yaqui tribe to inquire regarding such possible ancestry.
We agree there was noncompliance with the duty of further inquiry under ICWA. Therefore, we conditionally affirm the juvenile court's finding that ICWA does not apply the June 13, 2023, order reinstating the juvenile court's January 27, 2022, order terminating parental rights, and we remand the case back to the juvenile court to allow DPSS and the juvenile court to inquire further as to A.R.'s possible Yaqui Native American ancestry.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts and Procedural Background Prior to First Appeal
The following facts are taken from our previous opinion in this case (Case No. E078478).
On September 17, 2020, Mother called 911 and reported that M.F. (Step-Father) physically assaulted her in the presence of her five children. Step-Father is the father of four of Mother's children and is A.R.'s Step-Father. Mother acknowledged there had also been four previous domestic violence incidents. A referral was made to DPSS. That same day, a social worker visited the family home where Mother, her five children, her niece and nephew, and A.R.'s maternal grandfather resided. A.R.'s Father was currently incarcerated with a release date of 2044.
This appeal only concerns A.R. and Father. The other four children and Mother are not parties to this appeal.
Mother told the social worker that Step-Father started using methamphetamines and cocaine four or five months earlier. While working, Mother left the children with Step-Father. Mother admitted to relapsing on cocaine in July 2020. Mother stated she had not used methamphetamines for two to three years. However, Mother's drug test the next day was positive for methamphetamines and amphetamines.
The social worker also interviewed A.R., who said she witnessed Step-Father assault Mother that day and on another occasion. A.R. stated that the domestic violence caused her to experience anxiety and shortness of breath.
On September 25, 2020, A.R. and her siblings were placed with their maternal great-aunt (MGA). DPSS filed a juvenile dependency petition (Petition) on behalf of Mother's five children and later filed an amended Petition. Two of the amended Petition counts concerned Father and A.R. (§ 300, subds. (b)(1) (failure to protect) &(g) (no provision for support).) The amended Petition alleged Mother and Step-Father had a history of substance abuse, domestic violence, and mental health issues. As to Father, he has a criminal history, is incarcerated with a 2044 release date, and is unable to care for A.R. Father was not present at the detention hearing, during which the court found that ICWA did not apply. The court ordered no visitation between A.R. and Father, finding it would be detrimental to A.R.
Father appeared telephonically at the contested jurisdiction/disposition hearing on November 9, 2020. The court elevated Father's status to a presumed father of A.R. The court further found that notice of the hearing had been given, ICWA did not apply, and removal of A.R. was proper. The court adjudged A.R. a dependent of the court and ordered bypass of reunification services for Father under section 361.5, subdivision (b)(12).
DPSS reported in its six-month hearing report that Mother's five children, including A.R., remained with MGA. At the contested six-month hearing on May 24, 2021, the court terminated Mother and Step-Father's reunification services and set a section 366.26 hearing as to A.R. The court ordered that the children remain as a group in their current placement. The court found that ICWA did not apply. Father was not present at the hearing.
Father appeared telephonically at the section 366.26 hearing on January 27, 2022. Mother and Father objected to the termination of parental rights, asserted the parent-child bond exception to adoption, and requested A.R. remain placed with MGA in a legal guardianship (§ 366.26, subds. (c)(1)(a) &(b)(1)). The court found that none of the exceptions to adoption applied and ordered parental rights to A.R. terminated.
Father filed a notice of appeal of the January 27, 2022, order terminating parental rights to A.R. B. Facts and Procedural Background After the First Appeal
In Father's first appeal (Case No. E078478), this court conditionally reversed the juvenile court's order terminating parental rights and remanded the matter back to the juvenile court for the limited purpose of allowing the juvenile court and DPSS to comply with the ICWA inquiry and notice provisions, particularly as to A.R.'s paternal relatives.
On October 3, 2022, DPSS contacted MGA, who stated that, as far as she knew, there was no maternal Native American ancestry. She also provided DPSS with Father's phone number. On November 1, 2022, DPSS spoke to A.R.'s paternal grandmother (PGM) and her husband (PGF). They denied any Native American ancestry in their family. PGM and PGF provided the names of the deceased parents and their dates of birth. PGM and PGF stated that their parents never told them that they had Native American ancestry.
During the special hearings on November 17, 2022, and January 9, 2023, DPSS updated the juvenile court on its ICWA inquiry efforts. The court continued the special hearing to allow for additional inquiry investigation and responses. During another special hearing on February 23, 2023, Mother denied any Native American ancestry, and during a post-permanency status review hearing on March 21, 2023, the juvenile court found that ICWA did not apply, despite the continuance of the special hearing. Although the court erred in finding ICWA did not apply at this point, such error was harmless because there were subsequent special hearings addressing the ongoing ICWA inquiry.
We refer in this opinion to the hearings on ICWA inquiry compliance as "special" hearings.
On April 12, 2023, DPSS spoke to MGA. She again stated she was not aware of any paternal or maternal Native American ancestry. MGA said that PGM recently died. On April 12, 2023, DPSS also spoke to maternal great-grandmother (MGGM), who said that to her knowledge no one in her family was an enrolled member of, or eligible to enroll in, a Native American tribe. She also said no one in her family lived on a reservation or received financial assistance from a Native American tribe. She also said she did not have any knowledge that A.R.'s Father or paternal relatives had any Native American ancestry, and she did not have any contact information for them.
On April 21 and 24, 2023, DPSS attempted unsuccessfully to contact Mother to inquire regarding A.R.'s Native American ancestry. On April 21, 24, and 25, 2023, DPSS attempted to schedule an appointment to speak with Father. DPSS was told its social worker would first need a background check, which took time to complete.
On April 21, 2023, DPSS spoke to PGF again. He confirmed he had no Native American ancestry, and no family member was enrolled or eligible for enrollment with a tribe. PGF said his wife recently died and provided a phone number for her sister (PGA). PGF also provided contact information for two of his sisters.
On April 24, 2023, DPSS contacted both of PGF's sisters, who denied any Native American ancestry. Also on April 24, 2023, DPSS spoke to PGA, who also denied any Native American ancestry and confirmed her father had died. PGA said that her mother (PGGM), who was an "orphan," might have had Yaqui ancestry. PGA did not know PGGM's date of birth but provided her full name. PGA did not know if her father had any Native American ancestry.
On May 4, 2023, the juvenile court continued the special hearing so that the court could ask Father about his Native American ancestry. On May 10, 2023, Father called DPSS and was asked if he had any Native American ancestry or had any family members who might know whether there was Native American ancestry. Father replied, "'Not that I know of, I wouldn't think so, not sure.'" Father said he was not aware of any family members having Native American ancestry. He denied being a member of a tribe or being eligible for membership.
During the continued special hearing on June 13, 2023, Father, who was present at the hearing, confirmed he did not have any knowledge of any Native American ancestry. The juvenile court then reinstated its January 27, 2022, order terminating parental rights, finding ICWA did not apply. Father filed a notice of appeal of the June 13, 2023, order.
III. STANDARD OF REVIEW
"'[W]here the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied.' [Citations.] However, 'we review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court's order. [Citations.] We must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance.' [Citations.] The appellant-in this case, [Father]-has the burden to show the evidence was not sufficient to support the ICWA finding. [Citation.]" (In re D.F. (2020) 55 Cal.App.5th 558, 565.)
Here, because the relevant, material facts are undisputed, we independently determine whether ICWA's requirements have been satisfied.
IV. DISCUSSION
The sole issue raised by Father in this second appeal is whether DPSS and the juvenile court complied with the ICWA duty of further inquiry, where DPSS was informed that PGGM might have had Yaqui ancestry, but DPSS did not inquire of the Yaqui tribe regarding such possible ancestry. During the dependency proceedings, PGA told DPSS that her deceased mother, PGGM, might have had Yaqui ancestry and provided DPSS with PGGM's full name. PGA did not have her date of birth. Even though DPSS did not inquire about the Yaqui tribe regarding A.R.'s possible ancestry in the tribe, the juvenile court found ICWA did not apply and reinstated the order terminating parental rights.
Father contends that the juvenile court erred in finding ICWA does not apply and ordering reinstatement of the juvenile court's January 27, 2022, order terminating parental rights. He maintains that further inquiry, of contacting the Yaqui tribe, is required. DPSS concedes such further inquiry is required. We agree. DPSS does not oppose Father's request for a conditional affirmance and remand.
Under California law, the juvenile court and county child welfare department have "'an affirmative and continuing duty to inquire whether a child'" subject to a section 300 petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F., supra, 55 Cal.App.5th at p. 566.) "This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice." (In re D.F., supra, at p. 566.)
When the initial inquiry gives the juvenile court or social worker "reason to believe that an Indian child is involved," the court and social worker must conduct further inquiry to "determine whether there is reason to know a child is an Indian child." (§ 224.2, subd. (e)(2).) There is reason to believe a child is an Indian child if the court or the 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).) Further inquiry includes, among other things, interviewing the parents and extended family members, contacting the Bureau of Indian Affairs (BIA) and State Department of Social Services, and contacting the tribe or tribes concerned. (§ 224.2, subd. (e)(2)(A)-(C).) The department "does not discharge their duty of further inquiry until they make a 'meaningful effort' to locate and interview extended family members and to contact BIA and the tribes. [Citation.] '[J]ust as proper notice to Indian tribes is central to effectuating ICWA's purpose, an adequate investigation of a family member's belief a child may have Indian ancestry is essential to ensuring a tribe entitled to ICWA notice will receive it.' [Citation.]" (In re K.T. (2022) 76 Cal.App.5th 732, 744.)
DPSS concedes in its appellate letter response to Father's appellant's opening brief that "based on the clerk's record on Appeal that a further inquiry concerning the Pascua Yaqui Tribe of Arizona must be completed based on information provided by the paternal great aunt on April 24, 2023. This involves communicating relevant information to the Pascua Yaqui Tribe of Arizona, the only federally recognized Yaqui Tribe in the
United States." DPSS therefore does not oppose this court remanding this matter to the juvenile court with instructions for further inquiry into A.R.'s potential Yaqui Native American ancestry.
Based on our review of the record and DPSS's concession of the need for further inquiry, we conclude DPSS and the juvenile court have not complied with the ICWA duty of further inquiry and such noncompliance is prejudicial error. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744-745.) This matter must therefore be remanded to the juvenile court to allow DPSS to inquire of the Yaqui tribe regarding A.R.'s possible Native American ancestry. For purposes of allowing DPSS to fully comply with its ICWA duty of further inquiry, we conditionally affirm the juvenile court's June 13, 2023, order finding IWCA does not apply and reinstating the January 27, 2023, order terminating parental rights.
We note Benjamin M. may have limited its "reason to believe" standard of prejudice to an agency's failure to conduct a proper initial inquiry into a dependent child's Native American ancestry. Regardless of whether this standard also applies to the failure to conduct a proper .further inquiry, we conclude DPSS and the juvenile court's noncompliance with the ICWA duty of further inquiry requires remand because it is undisputed that DPSS has a duty to fully comply with its duty of further inquiry by contacting the Yaqui tribe.
V. DISPOSITION
The juvenile court's finding IWCA does not apply and order on June 13, 2023, reinstating the juvenile court's January 27, 2022, order terminating parental rights, are conditionally affirmed, and the case is remanded back to the juvenile court to allow DPSS to inquire further as to A.R.'s possible Yaqui Native American ancestry.
The matter is thus remanded to the juvenile court with directions to comply with the inquiry provisions of ICWA and of sections 224.2 and 224.3-and, if applicable, the notice provisions as well-consistent with this opinion. If, after completing further inquiry, neither DPSS nor the juvenile court has reason to know that A.R. is a Native American child, the order terminating parental rights will remain in effect. If DPSS has reason to know A.R. is a Native American Child, the juvenile court shall proceed accordingly.
We concur: RAMIREZ P. J., McKINSTER J.