Opinion
E083035
09-16-2024
In re Z.K., a Person Coming Under the Juvenile Court Law. v. R.K., et al. Defendants and Appellants. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant R.K. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant A.A. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. SWJ2200026 Kelly L. Hansen, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant R.K.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant A.A.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
R.K. (Father) and A.A. (Mother; collectively Parents) appeal from the juvenile court's order terminating their parental rights of Z.K. (female born January 2022 (Minor)) under Welfare and Institutions Code section 366.26. On appeal, Father contends that the Riverside County Department of Public Social Services (the Department) and the juvenile court failed to comply with the duty of initial inquiry under the Indian Child Welfare Act (ICWA). Mother joins in Father's argument. For the reasons set forth post, we affirm the juvenile court's order terminating the parental rights of Mother and Father.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
FACTUAL AND PROCEDURAL HISTORY
Because the only issue on appeal is whether the Department and the juvenile court properly complied with their duties under ICWA, this court will focus on ICWA-related facts and procedural history.
On January 15, 2022, the Department obtained a protective custody warrant under section 340 to remove Minor from Parents' custody. On January 18, 2022, Minor was placed in foster care. The next day, on January 19, 2022, the Department filed a section 300 petition on behalf of Minor. On the same day, the Department filed a detention report wherein a social worker wrote that ICWA did not apply. She wrote: "On January 14, 2022, the mother denied having any Native American Ancestry. On January 18, 2022, the father denied having any Native American Ancestry."
At the detention hearing on January 20, 2022, Parents and maternal grandmother (MGM) were present. The juvenile court found that ICWA did not apply, and the Department conducted a sufficient inquiry into ICWA. The court detained Minor from Parents and ordered an assessment of MGM for placement.
On the same day, both Mother and Father filed a Judicial Counsel form ICWA-020 Parental Notification of Indian Status; both denied any Indian ancestry. On February 22, 2022, the Department filed its jurisdiction/disposition report. In the report, the social worker summarized that Mother denied having "Native American heritage or tribal affiliation" on February 8, 2022.
On April 14, 2022, the juvenile court found the allegations in the first amended petition true, removed physical custody of Minor from Parents, and ordered family reunification services to Parents.
On September 15, 2022, the Department filed a status review report. In the report, the Department recommended continued services to Parents. The social worker reported that on September 7, 2022, Father stated that they did not have Native American ancestry, "'not on father's or mother's side.'" Mother agreed with Father. Moreover, the social worker reported that MGM did not follow through with the placement evaluation process.
At the six-month status review hearing on September 21, 2022, the juvenile court found that ICWA did not apply. The court continued family reunification services to Parents.
On February 16, 2023, the Department filed its status review report for the section 366.21 hearing. In the report, the Department recommended that Parents' services be terminated and a selection and implementation review hearing be set. Additionally, the social worker reported that on February 9, 2023, Mother stated that she had no Native American ancestry or tribal membership. Father stated that he preferred that Minor be placed with maternal relatives because he did not have any paternal relatives to provide.
On March 21, 2023, at the contested 12-month permanency review hearing, the juvenile court found that ICWA did not apply and terminated Parents' reunification services. Moreover, the court set a section 366.26 hearing.
On June 29, 2023, the Department filed a section 366.26 report. In the report, the Department asked for a continuance for a preliminary adoption assessment report. The social worker reported that Parents' whereabouts were unknown. On January 26, 2023, the Department submitted a placement evaluation referral for maternal great-grandmother (MGGM); she resided with the maternal great-uncle (MGU). The social worker also stated that Minor has half siblings who are under legal guardianship with MGM. However, MGM had not been in contact with the Department and failed to return telephone calls. Minor's siblings are not dependents of this court.
At the section 366.26 hearing on July 17, 2023, the juvenile court continued the hearing.
On October 10, 2023, the Department filed an addendum report. In the report, the social worker provided that on "August 18, 2023, the Department submitted a Resource Family Referral for the Paternal Grandmother [PGM]." PGM told the social worker on August 10, 2023, that Father did not have any Native American ancestry. She, however, stated that she had "1-2% Native American according to her DNA test. The paternal grandmother stated she 'did not know which tribe and they are not likely a tribe that is recognized in the U.S.'"
In the addendum report, the social worker stated that on September 13, 2023, MGM reported that she did not have any Native American ancestry. Father, on September 21, 2023, stated he had Native American ancestry but, did not provide the name of the tribe or if he were registered with a tribe. On two separate dates-September 27, 2023 and October 2, 2023-the social worker "asked the father what tribe he thought he might be registered with; however, he evaded the question and did not respond." On October 10, 2023, the social worker attempted to call Father but the call did not go through. The social worker also attempted to call PGM, but the call went directly to voicemail. The social worker left a message requesting a call back and also sent a text message.
On October 16, 2023, at the section 366.26 hearing, Father, MGM, MGGM, and PGM were present. The juvenile court inquired with the extended family members present regarding Indian ancestry.
When the juvenile court questioned MGM about ICWA, MGM denied ever claiming membership in a Native American tribe; having any relatives, living or dead, who claimed membership in a Native American tribe; ever living on tribal lands; ever receiving educational or medical benefits from the Bureau of Indian Affairs (BIA).
When the juvenile court questioned PGM about ICWA, PGM stated that she is of Native American descent. She, however, did not claim any tribe because her paperwork was destroyed. She stated she is part Native American based on a DNA test which showed her ancestry. PGM stated she grew up on reservations but she was not in school on reservations. She stated she lived on a Navajo reservation in Arizona and had family members that she visited, "but it's been like 40 years." PGM went on to state that she was "not affiliated with them as far as paperwork is concerned." She stated: "I do participate in my heritage. I attend powwows. I do dance. I do take part in ceremonies, but I don't have the paperwork to go with it."
After PGM testified, the juvenile court stated: "With further inquiry, the Court finds that ICWA may apply to the proceedings based on the paternal grandmother, and will order further inquiry specifically of the Navajo Nation. We'll have to reach out to them as well as the Bureau of Indian Affairs."
On November 21, 2023, the Department filed further inquiry letters and emails sent in this dependency with the court. The Department emailed and sent an ICWA further inquiry letter by certified mail to the Navajo Nation and the BIA. As of December 27, 2023, the Navajo Nation had not responded to the Department's inquiry.
On January 16, 2024, at the section 366.26 hearing, Father, MGM, MGGM, PGM, and paternal great-grandmother appeared in court. The juvenile court terminated parental rights and found that ICWA did not apply. The court found that the Department made sufficient inquiries to both the Navajo National and the BIA, and neither organization responded in a timely fashion.
On January 17, 2024, Father filed his timely notice of appeal.
On February 22, 2024, the Navajo National filed a Tribal Response Letter, dated January 29, 2024. The Navajo Nation wrote: "We have been unable to verify the child(ren) eligibility for tribal membership enrollment with the Navajo Nation based on the additional biological parent's ancestry provided. Therefore, the intake will be close[d] with our office and consider the referral as record information only."
On March 8, 2024, Mother filed a notice of appeal.
DISCUSSION
On appeal, Father contends that "the Department did not comply with its duties of initial inquiry under the ICWA." (All caps omitted.) Mother joins in Father's argument.
A. Legal Background
"Congress enacted ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement, usually in non-Indian homes. [Citation.] 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.).)
"[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department'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. [Citation.] Second, if that initial inquiry creates a '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.' [Citation.] 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; § 224.2.)
"[W]e 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." (In re A.M. (2020) 47 Cal.App.5th 303, 314; In re Austin J. (2020) 47 Cal.App.5th 870, 885 [implicit finding that social workers fulfilled their duty of inquiry and is reviewed for substantial evidence].)
B. Parents Have Failed to Show Error Warranting Reversal
In this case, Parents claim that the juvenile court erred in finding that ICWA did not apply because the Department failed to comply with section 224.2, subdivision (b). Father argues that the Department failed "to locate and interview the maternal great-uncle (who lived with mother and the maternal great-grandmother) or the adult half[]brother [E.K.]. The record is silent as to what efforts, if any, the department made to determine what other people were available from whom initial ICWA inquiry was mandatory." We disagree.
First, we acknowledge there is a current split of authority regarding whether section 224.2, subdivision (b), might apply under the facts of this case. Under In re Robert F. (2023) 90 Cal.App.5th 492 (Robert F.) review granted July 26, 2023, S279743, and cases that have followed its reasoning, section 224.2, subdivision (b), applies only when a dependent child is taken into protective custody without a warrant pursuant to section 306. (Robert F., at pp. 497, 500-504; In re Ja.O. (2023) 91 Cal.App.5th 672, 677-680 review granted July 26, 2023, S280572 [same].) In contrast, under In re Delila D. (2023) 93 Cal.App.5th 953 (Delila D.) review granted September 27, 2023, S281447, and cases that have followed its reasoning, section 224.2, subdivision (b), imposes a broad duty of inquiry in all dependency cases. (Delila D., at pp. 970-976; In re Samantha F. (2024) 99 Cal.App.5th 1062, 1067-1068; In re Jerry R. (2023) 95 Cal.App.5th 388, 426 (Jerry R.); In re C.L. (2023) 96 Cal.App.5th 377, 387; In re L.B. (2023) 98 Cal.App.5th 512, 517-518 (L.B.).) The issue is currently under review by the California Supreme Court, and we see no need to add to the extensive argument and analysis already devoted to this dispute because, as we explain, the record in this case does not establish error regardless of which interpretation is adopted.
Here, there is no dispute that Minor was taken into protective custody pursuant to a warrant. Thus, if we applied the Robert F. line of cases, the inquiry described in section 224.2, subdivision (b), simply does not apply, and merely showing that the Department failed to inquire of extended family members would not be sufficient to show error warranting reversal. But, if we were to apply the reasoning of Delila D., the Department would have a duty to inquire of extended family members under section 224.2, subdivision (b). However, this conclusion would not, in itself, establish error warranting reversal.
We note that even prior to the issuance of Delila D., and the divergence of opinion regarding the circumstances under which section 224.2, subdivision (b), applies, courts have struggled with the scope of the duty imposed by section 224.2, subdivision (b). As numerous published decisions have recognized, "complying with the literal language of [section 224.2, subdivision (b)]-that is, making an initial and further ICWA inquiry of every member of a child's extended family, . . . plus every other person who has an interest in the child-is absurd at best and impossible at worst." (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1006; In re K.H. (2022) 84 Cal.App.5th 566, 603-604 [agreeing that a literal interpretation of section 224.2, subd. (b), "could arguably lend itself to an absurd interpretation"].)
In an effort to avoid an interpretation of section 224.2, subdivision (b), that would produce absurd outcomes, in In re S.S. (2023) 90 Cal.App.5th 694 (S.S.), our colleagues in Division Eight of the Second Appellate District conducted an extensive analysis of the legislative intent behind enactment of the statute. In doing so, the court identified numerous instances in which the Legislature expressed the view that the enactment of section 224.2, subdivision (b), was not intended to "significantly change the administrative work required of county agencies and caseworkers" and observed that "[n]owhere in the legislative history is there any indication that legislators anticipated or wanted [section 224.2, subdivision (b)] to require child welfare agencies . . . to embark on significantly expensive or time-consuming new investigations to find extended family members simply to ask about Indian ancestry." (S.S., at p. 703.) Based upon this analysis, S.S. explained that "[c]ourts should not interpret [section 224.2, subdivision (b)] as creating a limitless or even a significantly burdensome new duty. . . . That would be contrary to the Legislature's intent." (S.S., at p. 704.) Instead, the juvenile court's finding that social workers fulfilled their duty of inquiry under section 224.2, subdivision (b), turns on (1) whether social workers conducted an inquiry of extended family members whom they were already investigating as part of their usual course of work (S.S., at pp. 704-705; In re H.B. (2023) 92 Cal.App.5th 711, 720 (H.B.)); and (2) whether the record was sufficient to support a reasonable conclusion that the inquiry "'has reliably answered the question at the heart of the ICWA inquiry: Whether a child involved in a proceeding "is or may be an Indian child."'" (H.B., at p. 720.)
In concluding that section 224.2, subdivision (b), represents a broad duty applicable in all cases, Delila D. cited directly to S.S. for the proposition that any broadened duty under the statute should not result in significant increased costs to child welfare agencies. (Delila D., supra, 93 Cal.App.5th at p. 975.) By incorporating S.S.'s limits on the scope of any duty imposed by section 224.2, subdivision (b), Delila D. harmonized its view of a broad duty under the statute with the express legislative history suggesting that any duty under section 224.2, subdivision (b), was not intended to add any significant increase in work for child welfare agencies or social workers. Indeed, multiple cases that have since adopted Delila D.'s reasoning to conclude that section 224.2, subdivision (b), should apply in all cases have also affirmed this corollary view that literal compliance with the statute's provisions was not part of the Legislature's intent. (See L.B., supra, 98 Cal.App.5th at pp. 518-519 [adopting reasoning of Delila D. but also citing to S.S. to explain that any expanded duty should be slight]; Jerry R., supra, 95 Cal.App.5th at p. 428 [adopting reasoning of Delila D., but also holding that juvenile court has broad discretion to determine whether any inquiry was sufficient under the specific facts of case].)
Thus, under Delila D., the duty imposed by section 224.2, subdivision (b), applies in all cases, but literal compliance with the statute is not required to fulfill the duty imposed by section 224.2, subdivision (b). Instead, in line with S.S., the party claiming error must show that social workers either failed to interview a family member that social workers were already investigating as part of their normal duties or that the totality of the efforts disclosed to the juvenile court were insufficient for the juvenile court to conclude that the question of whether a dependent child was an Indian child has been reliably answered.
In this case, Parents contend that the court erred because "the Department failed to conduct a sufficient inquiry of the maternal great-uncle and the adult half[]brother, E.K." However, neither the maternal great-uncle nor Minor's maternal half sibling attended any court hearings in this case or had any contact or communication with the Department. What the record does show is that the social workers and the juvenile court made ICWA-related inquiries of readily available extended family members who were involved with this dependency. The social workers documented that both MGM and Mother stated they did not have Native American ancestry. In addition, when MGM appeared in court on October 16, 2023, the juvenile court asked her about her Native American ancestry. MGM responded by denying that she claimed membership in a Native American tribe, or had any relatives, living or dead, who have claimed membership in a tribe. At the same hearing, the juvenile court questioned PGM about her Native American heritage. Although PGM stated she lived on a Navajo reservation and had relatives who were of Navajo descent, PGM admitted that she is not a member of any tribe.
Based on this information by PGM, the court ordered the Department to conduct further inquiries with the Navajo Nation and the BIA. Thereafter, as provided ante, the Department sent a further inquiry email and certified letter to both the Navajo Nation and BIA. The Navajo Nation responded that Minor and Parents are ineligible for tribal enrollment.
Notwithstanding, Father argues that because PGM told the trial court that "[f]rom what I can understand we're from one of the five civilized nations back east where I was born," the court erred in finding ICWA did not apply because "[t]he record does not show the department made any effort to follow up" on this claim by PGM. Although PGM may have mentioned the "five civilized nations," in her next sentence, she stated: "But I'm not affiliated with them as far as paperwork is concerned." Father fails to show how making inquiries with these five civilized nations would have procured a different result regarding Minor's Native American ancestry when Father's own mother admitted that she was not affiliated with any of them. Moreover, because PGM stated she lived on a Navajo reservation, the juvenile court ordered the Department to make further inquiries with the Navajo Nation and BIA, which the Department did.
Under the S.S. line of cases, this was substantial evidence upon which the juvenile court could rely to conclude that the Department's efforts had reliably answered the question of Minor's status as an Indian child notwithstanding the fact that additional extended family members were not interviewed. (See In re E.W. (2023) 91 Cal.App.5th 314, 323 ["appellants do not explain how not interviewing additional relatives . . . casts any doubt on the reliability of the answers already obtained from the parents and relatives"]; In re Rylei S. (2022) 81 Cal.App.5th 309, 323-324 [differentiating the "failure to confirm" an answer already provided by parents and family members from the failure to interview family members where no reliable information has yet been obtained].)
Hence, notwithstanding how the current dispute between the Robert F. and Delila D. line of cases is ultimately resolved, Parents have not shown error warranting reversal in this case. Under Delila D., section 224.2, subdivision (b), applies in all cases, but the scope of any duty imposed by the statute is defined by the principles espoused in S.S., which gives the juvenile court discretion to determine that ICWA does not apply so long as the investigative efforts are sufficient to conclude that the question of whether Minor was an Indian child has been reliably answered. And under Robert F., there is no duty to conduct an inquiry of extended family members in the first instance, since section 224.2, subdivision (b), does not apply when a child is taken into custody pursuant to a warrant. As such, we conclude that Parents have not met their burden to show error warranting reversal.
DISPOSITION
The juvenile court's order is affirmed.
WE CONCUR: RAMIREZ P. J., FIELDS J.