Opinion
E083536
10-21-2024
In re S.M., a Person Coming Under the Juvenile Court Law. v. M.J., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Lelah S. Forrey-Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. DPRI2300440 Mona M. Nemat, Judge. Affirmed with directions.
Lelah S. Forrey-Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
FIELDS J.
INTRODUCTION
M.J. (mother) appeals from the juvenile court's dispositional findings and orders, challenging the court's finding that the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) does not apply to the dependency proceedings concerning her child, S.M. (the child). Mother contends the Riverside County Department of Public Social Services (DPSS) failed to discharge its duty of further inquiry under the ICWA and related California law (Welf. &Inst. Code, § 224.2). We agree and vacate the court's ICWA finding and remand for compliance with ICWA and related California law, but otherwise affirm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On December 3, 2023, DPSS received an immediate response referral after law enforcement responded to a motel where mother was staying with her boyfriend (not the child's father) and the child. Law enforcement went to the motel due to a welfare check and upon their arrival, they found mother outside the motel, holding the child and frantically screaming that she had cocaine in the room with her boyfriend. Mother was under the heavy influence of drugs, was incoherent, and was unable to provide any information. She was arrested and was unable to provide the name of anyone who would be able to care for the child while she was taken into custody. The police contacted DPSS.
At the police station, a social worker interviewed mother and asked if anyone could care for the child. Mother named two of her sisters and provided their information. The social worker could not reach one of the sisters but did reach the other one. The maternal aunt arrived at the police station and said she had never met the child prior to that day. She said there were other maternal relatives who would care for the child as well. The maternal aunt also informed the social worker that mother had been diagnosed with schizophrenia and refused to take medication. After the social worker spoke with the maternal aunt, she overheard the aunt talking to someone on the phone who said he/she would not be able to take care of the child, due to financial reasons. At that time, mother was taken to the Robert Presley Detention Center. Due to the exigent circumstances, the child was taken into protective custody and placed in a foster home. The social worker reported that mother and the maternal aunt denied any connection to any Native American tribes.
On December 4, 2023, the social worker spoke with mother and asked if there were any relatives she would like to have assessed, and mother said she wanted her oldest sister assessed. The social worker reported she would make a referral to the Relative Assessment Unit. The social worker also reported that mother said she did not know the identity of the child's father.
On December 5, 2023, the social worker filed a section 300 petition on behalf of the child, who was two months old at the time. The petition alleged that the child came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (no provision for support).
Detention
The court held a detention hearing on December 6, 2023. Mother did not appear because she had a criminal matter at the same time in a different courthouse. The court appointed counsel and specifically noted there was no protective custody warrant in this case. The court made temporary detention findings and continued the hearing.
The court held the continued hearing on December 8, 2023. Mother appeared, as did two maternal aunts - Lydia S. and Holly D. County counsel informed the court that the child was placed with "the maternal aunt" the prior night, but did not identify which aunt. The court followed DPSS's recommendations and detained the child. The court asked the maternal aunts if they were aware if the child had any Indian ancestry. One of the aunts said she had been told in the past that the maternal grandfather (MG) had Indian ancestry, but she did not know what tribe. She gave the court the MG's name, but did not know his birthdate. The other aunt said she had heard the same information. The court found that ICWA may apply and directed DPSS to continue with its ICWA inquiry and "reach out to the maternal aunts to get additional information, if possible." The court acknowledged that it had received mother's ICWA-020 form, which indicated that the child is or may be eligible for membership in a federally recognized tribe through the MG. The form said the tribe was unknown. The court ordered the ICWA-020 form filed. Mother's counsel indicated he had additional information from mother and then provided the court with the MG's date of birth.
The reporter's transcript says the names were "phonetic."
Jurisdiction and Disposition
The social worker filed a jurisdiction/disposition report on January 8, 2024, recommending that the court sustain the petition and declare the child a dependent. The social worker reported that the child was placed with maternal aunt Ollie H.-M. on December 6, 2023. The social worker then indicated that ICWA did not apply. While acknowledging that the court previously found, on December 8, 2023, that ICWA may apply, the social worker reported that mother denied Native American ancestry on December 11, 2023, and Ollie H.-M. denied Native American ancestry on January 4, 2024. The social worker further reported that mother was born in California, and she and her six siblings were raised by her parents, J.J. and S.J. The social worker stated that mother did not have a current relationship with her parents.
The court held a hearing on January 11, 2024, and mother set the matter contested. The court set a contested hearing for January 25, 2024.
On January 19, 2024, DPSS mailed an ICWA inquiry letter to the Bureau of Indian Affairs (BIA), stating that mother filed an ICWA-020 form indicating she had Indian ancestry through the MG, with no tribe specified, and that the court found that ICWA may apply at the detention hearing. The inquiry letter listed the names and birthdates of the child, mother, the MG, and maternal aunt, O.H.-M. The letter also contained the maternal grandmother's name and birth year. The letter asked the BIA to indicate if more information was needed to make an eligibility and/or membership determination. A copy of the letter was filed with the court on January 23, 2024.
The letter indicated that maternal aunt O.H.-M. was also known as "Ollie Sue Dawson," which very similar to the name the court reporter spelled out phonetically for the maternal aunt at the detention hearing ("Holly Dawson"). Thus, it seems that the maternal aunt who appeared at the detention hearing was O.H.-M.
On January 25, 2024, the social worker filed a first amended petition for the purpose of correcting the spelling of the child's name. The court held a hearing that same day. It accepted the first amended petition for filing and then found that ICWA did not apply. The court struck the allegation under section 300, subdivision (g), but found the other allegations true and then granted mother reunification services.
Although the court did not state anything further at the hearing, the court minute order states that the court found that proper and adequate further inquiry and due diligence as required had been conducted, and "there [was] no reason to know whether the child [was] an Indian child."
DISCUSSION
DPSS Failed To Comply With Its Duty of Further Inquiry
Mother asserts that the statements she and the maternal aunts made regarding the child's potential Indian ancestry through the MG were sufficient to establish a reason to believe the child was an Indian child, and thus triggered the duty to conduct further inquiry. (§ 224.2, subd. (e).) She contends that DPSS failed to comply with the duty of further inquiry under section 224.2, subdivision (e), by not inquiring of extended relatives - specifically, the MG, the maternal aunts, and other maternal relatives - about the child's potential Indian ancestry.
Thus, mother contends the juvenile court's finding that ICWA does not apply is not supported by substantial evidence. DPSS responds that it conducted a sufficient inquiry by inquiring of the two maternal aunts and mother and providing the information they gave to the BIA. We agree with mother and vacate the finding that ICWA does not apply, but otherwise affirm and direct the juvenile court, on remand, to order DPSS to comply with its inquiry and (if applicable) notice obligations under ICWA and related California law.
A. Applicable Law
"ICWA establishes minimum federal standards that a state court must follow before removing Indian children from their families. [Citation.] California law implementing ICWA also imposes requirements to protect the rights of Indian children, their families, and their tribes." (In re Ricky R. (2022) 82 Cal.App.5th 671, 678, disapproved on other grounds, as stated in In re Dezi C. (2024) 16 Cal.5th 1112, 1152, fn. 18 (Dezi C.).) DPSS and the juvenile court have an "affirmative and continuing duty to inquire" whether a child in a dependency proceeding "is or may be an Indian child." (§ 224.2, subd. (a).) "The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents' families." (In re Antonio R. (2022) 76 Cal.App.5th 421, 430.)
Section 224.2 "creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency's initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child." (In re D.S. (2020) 46 Cal.App.5th 1041, 1052 (D.S.).) The duty of initial inquiry begins at the referral stage when DPSS must ask "a party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (b)(1).) Once a child is taken into temporary custody, DPSS must ask the child, the parents, legal guardian, extended family members, and others who have an interest in the child whether the child is or may be an Indian child. (§ 224.2, subd. (b).) Extended family members include adults who are the child's stepparents, grandparents, aunts, uncles, brothers, and sisters. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) At the first hearing on a petition, the court must ask each party and all other interested persons present "whether they know or have reason to know that the child is an Indian child," and the court must "instruct the parties and persons present to inform the court if they subsequently receive information that provides reason to know the child is, or may be, an Indian child." (§ 224.2, subd. (c).) The court must also order each parent to complete a Judicial Council form ICWA-020, Parental Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C) &(3).)
"Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the Agency 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.'" (D.S., supra, 46 Cal.App.5th at p. 1052; § 224.2, subd. (e).) There is reason to believe a child is Indian when there exists "information suggesting that either the parent of the child or the child is a member or citizen, or may be eligible for membership or citizenship, in an Indian tribe." (§ 224.2, subd. (e)(1).) Further inquiry includes, but is not limited to, interviewing the parents and extended family members, contacting the BIA and the State Department of Social Services for assistance in identifying the tribes in which the child may be a member, and contacting the relevant tribe 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)(C); see id., subd. (e)(2); Cal. Rules of Court, rule 5.481(a)(4).)
"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., supra, 46 Cal.App.5th at p. 1052.)
DPSS is obligated "to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status." (In re K.R. (2018) 20 Cal.App.5th 701, 709 (K.R.).) Further, the juvenile court "has a responsibility to ascertain that the agency has conducted an adequate investigation and cannot simply sign off on the notices as legally adequate without doing so." (Ibid.) If the court finds that DPSS has complied with its duty of inquiry and there is no reason to know that the child is an Indian child, then the court may find that ICWA does not apply. (§ 224.2, subd. (i)(2); Cal. Rules of Court, rule 5.481(b)(3)(A).) "A juvenile court's finding that ICWA does not apply implies 'that social workers had fulfilled their duty of inquiry.'" (In re Dominick D. (2022) 82 Cal.App.5th 560, 567 (Dominick D.).)
"'We review a court's ICWA findings for substantial evidence. [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."'" (Dominick D., supra, 82 Cal.App.5th at p. 567.)
B. The Court's ICWA Finding Is Not Supported by Substantial Evidence Since DPSS Failed To Comply With Its Duty of Further Inquiry
The claims of Indian ancestry through the MG by mother and the two maternal aunts clearly provided reason to believe that the child is an Indian child, thereby triggering a further duty to inquire. However, as far as the record shows, DPSS's inquiry efforts were inadequate. At the detention hearing, after the two maternal aunts stated they heard the MG had Indian ancestry, the court found that ICWA may apply and directed DPSS to further inquire of the two aunts to get additional information. Although the social worker subsequently reported that maternal aunt Ollie H.-M. denied Native American ancestry on January 4, 2024, there is no record that the social worker further inquired of the other aunt (Lydia S.), as directed by the court. We recognize that the social worker made some effort to comply with the duty of further inquiry by sending the ICWA inquiry letter to the BIA. However, the social worker made no apparent attempt to contact the MG - the very person who allegedly had Indian ancestry. We also note that mother had six siblings, but there is no indication the social worker attempted to contact the other four siblings, or the maternal grandmother, to ask about the child's possible Indian heritage. Moreover, according to one of the maternal aunts, there were "other maternal relatives" who would care for the child. However, there is no indication in the record that the social worker made any effort to identify or contact those relatives. The social worker should have at least asked mother and the aunts for contact information for the MG, in order to further investigate the claim they made regarding Indian ancestry through him. The social worker also should have asked them for the identities and contact information of their other siblings and maternal relatives. DPSS was required to interview these extended relatives, especially the MG, as one of them could have provided some information about the child's possible Indian heritage. (§ 224.2, subd. (e)(2)(A).)
DPSS cites In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.), disapproved by In re Dezi C., supra, 16 Cal.5th 1112, and argues that the MG's address and phone number are not contained in the record, he "has never contacted [DPSS]", he was not present during any of the interviews by the social worker, and mother said she had no relationship with her parents; therefore, any information from him was not "'readily available'", and consequently [DPSS] is not obligated to locate and interview him." However, Benjamin M. is inapposite, since it concerned the agency's duty of initial inquiry, not the duty of further inquiry. (Benjamin M., supra, 70 Cal.App.5th at p. 742) ["neither the duty of further inquiry nor ICWA's notice provisions are at issue because no one has contended there is 'reason to believe' Benjamin is an Indian child"].) Further, DPSS's claim has no merit. As DPSS points out, the MG's contact information is not in the record; however, in discharging its duty of further inquiry, DPSS had "the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status." (K.R., supra, 20 Cal.App.5th at p. 709; see also, In re K.T. (2022) 76 Cal.App.5th 732, 744 (K.T.) ["CFS 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"].) DPSS failed to make a meaningful effort to locate and interview the MG.
To the extent DPSS may be claiming that any ICWA error was harmless, "[w]e need not address [that issue], because ICWA inquiry and notice errors do not warrant reversal of the juvenile court's jurisdictional or dispositional findings and orders other than the ICWA finding itself." (Dominick D., supra, 82 Cal.App.5th at p. 567.)
DPSS claims that even if it were to locate and interview the MG, "there is no evidence he would provide new or different information impacting the determination that the ICWA does not apply." However, the information he could provide is unknown, since DPSS did not interview him. Since he is the one who was alleged to have Indian ancestry, he would most likely know the tribe with which his family was affiliated. As this court stated in K.T., supra, 76 Cal.App.5th 732, "Mother's . . . claims of Indian heritage may lead to a dead end, but that determination should be the result of investigation not assumption." (K.T., at p. 744.)
Ultimately, because DPSS did not adequately investigate the claims of the child's possible Indian ancestry, the court should not have found that ICWA did not apply. (See K.T., supra, 76 Cal.App.5th at p. 744.) We note that "ICWA inquiry and notice errors do not warrant reversal of the juvenile court's jurisdictional or dispositional findings and orders other than the ICWA finding itself." (Dominick D., supra, 82 Cal.App.5th at p. 567.) We accordingly vacate the finding that ICWA does not apply, but otherwise affirm, and we direct the juvenile court on remand to order DPSS to comply with its inquiry and (if applicable) notice obligations under ICWA and related California law. (See Ibid.)
DISPOSITION
The finding that ICWA does not apply is vacated. The juvenile court is directed to order DPSS to comply with its inquiry and (if applicable) notice obligations under ICWA and related California law. In all other respects, the dispositional findings and orders are affirmed.
We concur: CODRINGTON Acting P. J. RAPHAEL J.