Opinion
E081143
08-23-2023
In re J.M., a Person Coming Under the Juvenile Court Law. v. S.I., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Minh Tran, County Counsel, and Larisa R-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIJ1900077 Mona M. Nemat, Judge. Conditionally reversed and remanded with directions.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh Tran, County Counsel, and Larisa R-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
The juvenile court terminated defendant and appellant, S.I.'s (mother), parental rights as to J.M. (minor). On appeal, mother contends both the juvenile court and plaintiff and respondent, the Riverside County Department of Public Social Services (the department), committed reversible error by failing to comply with their duty of inquiry with respect to the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). We reverse and conditionally remand the matter.
The court also terminated father's parental rights. Father is not a party to the appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
We present only an abbreviated recitation of the facts as relevant to the issue raised on appeal.
On June 6, 2021, the department took minor into custody pursuant to a protective custody warrant. Two days later, the department filed a Welfare and Institutions Code section 300 juvenile detention petition. In the detention report, the social worker reported that mother stated she did not know if she had any Indian heritage.
All further statutory references are to the Welfare and Institutions Code.
Father indicated he was a registered member of the Tohono O'odham tribe. The paternal grandmother indicated that both she and father were members of the tribe. The social worker verbally noticed the tribal attorney regarding the proceedings. The social worker recommended the court find that ICWA might apply.
Mother filed a parental notification of Indian status reflecting that she might be a member of, or eligible for membership in an Indian tribe, and that the child might be a member of the Tohono O'odham tribe (the tribe).
At the detention hearing on June 9, 2021, father's counsel noted, "Father is a member of the Tohono O'odham Tribe. I did present the JV 140 to the Court, so we will need 30 days in order to have the tribe intervene or be noticed and be part of this case." Mother's counsel informed the court, "As for ICWA, mother-other than the link between father and the Tohono O'odham Nation, mother also indicates that there might be further information to be obtained from a maternal aunt, her sister, . . . So I would ask that the Department contact the maternal aunt directly. I think mother's ability to provide information for the ICWA 40 would be limited, and this would probably be the best way to gather information."
Mother reportedly had "intellectual disabilities." In prior proceedings, the court appointed a guardian ad litem (GAL) for mother. Mother's counsel requested the court reappoint the GAL, which the court did.
The court indicated, "I do have on behalf of both parents their ICWA 020 forms regarding status in an Indian tribe. And both mother and father indicate that they have membership. I know from father's history, there is membership. So the Court does find that there's reasons to know that the child is involved-that an Indian child is involved, and the Department must provide notice to all identified tribes and/or Bureau of Indian Affairs as required by law, with proof of service to be filed with the court, as ICWA may apply to these proceedings." The court directed "the Department to follow up with the aunt regarding mother and potential ICWA." The court detained minor.
In the jurisdictional and dispositional report filed July 6, 2021, the social worker reported that mother indicated she did not know if she had Native American ancestry. The social worker recommended the court find that ICWA might apply.
In the August 17, 2021, addendum report, the social worker reported that despite attempts, it appeared the tribe had not received notice of the case. In the case logs attached to the report, the social worker indicated she texted the maternal aunt; the maternal aunt said she had affiliation with the Cherokee tribe on her mother's side, but denied that either she or mother were registered members. At the hearing on August 20, 2021, the department requested the matter be continued for three weeks so that the tribe could be noticed. The court continued the matter to provide time to properly notify the tribe.
In the addendum report filed September 3, 2021, the social worker reported that the tribe had appointed an expert and had been notified about the upcoming court hearing. A prospective ICWA placement for minor had been approved. At the hearing, the court directed the department to file an expert declaration from the tribe with an addendum report prior to the next hearing.
On September 13, 2021, the tribe filed a notice of intervention and request for discovery. In the October 6, 2021 addendum report, the social worker reported that she had provided information to the tribal expert. The tribal expert indicated he needed additional information and time; he informed the social worker he would submit a report for the next hearing. The expert filed a declaration on October 21, 2021, in which he noted that although minor's current placement was not ICWA compliant, it was "the least restrictive and appropriate home at this time."
On October 29, 2021, the caregivers filed a de facto parent request. In the November 1, 2021 addendum report, the social worker and tribal expert agreed that an Interstate Compact on the Placement of Children (ICPC) assessment for placement with a relative should be requested.
At the contested hearing on November 4, 2021, at which the tribal social worker appeared and the tribal attorney argued, the court found the allegations in the petition true and removed minor from parents' custody. The court found ICWA applied and granted parents reunification services.
On November 5, 2021, the court ordered a hearing on the caregivers' de facto parent request. In the addendum report filed January 13, 2022, the social worker recommended the de facto parent request be denied. The social worker recommended relatives in Arizona be assessed, as well as tribal foster homes in San Diego.
At the hearing on the de facto parent request, minor's counsel argued in favor of the request. Mother's counsel had no objection to the request but objected to the ICPC. Father's counsel similarly had no objection to the request. The department asked the court to grant the request. Tribal counsel asked the court to deny the request and asked that the ICPC process be initiated. Tribal counsel acknowledged that they did not ask for placement of minor in an Indian home identified in San Diego earlier because the distance would impair visitation with the parents. The court granted the de facto parent request and declined to authorize the ICPC.
In the six-month status review report, the social worker recommended the court terminate parents' reunification services and schedule a section 366.26 hearing. The tribal attorney now supported the de facto parents as the prospective adoptive parents, but wanted to ensure minor did not lose her Indian heritage. The de facto parents reported that they would "read [minor] at least one book per day written by Native American authors. [Minor] listens to music from her Tribe." The social worker indicated, "The caregivers have reported that in the next few months, they will be taking [minor] to some Native American events, such as Pow Wow's. The caregivers have also communicated that they will definitely be immersing [minor] into her culture as developmentally appropriate for her age."
In an addendum report, the social worker reported that the de facto parents would commit to an open adoption, which they would put in writing. The social worker attached to an additional addendum report a declaration of the paternal grandparents, who had adopted minor's sibling, which reflected that the prospective adoptive parents had kept in contact with them, visiting once monthly, and "joined us for playdates, holidays, and birthdays, not just for the immediate family, but the extended family as well." "We know that [minor] is in great care with [the prospective adoptive parents] and hope she remains in this placement."
At the contested six-month hearing, tribal counsel agreed with mother's counsel that the department had failed to provide reasonable services: "I would just recommend if there's an Indian center in the parents' location, that they would be connected with that, and perhaps the Department could assist in connecting parents with that." The court found, in part, that the department had failed to appropriately utilize the resources provided by the tribe. Thus, the court found the department had failed to provide reasonable services and granted parents an additional six months of services.
On November 15, 2022, the department filed a 12-month status review report in which they again recommended parents' reunification services be terminated and the court set a section 366.26 hearing. The tribal social worker was actively working on enrolling minor in the tribe. "The caregivers have taken [minor] to two Pow Wows during this review period and they are scheduled to go with the Paternal Grandmother to one on December 5, 2022. Additionally, the caregivers are planning to take [minor] with the Paternal Grandmother to the reservation in January of 2023 for their annual celebration. The caregivers state that they will continue to immerse her into her culture as developmentally appropriate for her age."
At the contested hearing on December 20, 2022, tribal counsel agreed with the department's recommendations. The court terminated parents' reunification services and set the section 366.26 hearing.
Mother's counsel filed a notice of intent to file a petition for extraordinary writ. However, this court dismissed the case after mother failed to file a motion for relief from default for having failed to timely file a writ petition.
On April 3, 2023, the department filed a section 366.26 selection and implementation report in which they recommended parents' parental rights be terminated. Minor had been enrolled as a member of the tribe. Minor had been living continuously with the prospective adoptive parents since her placement on June 6, 2021. The prospective adoptive parents continued to immerse minor in Native American culture. Parents no longer wished to reunify with minor and agreed with adoption as the permanent plan, if it was an open adoption. The tribe agreed with the department's recommendation, but requested orders allowing minor to maintain her tribal heritage.
In an addendum report, the social worker reported, "Although [minor] is of mixed race, the prospective adoptive parents do not see any cultural issues or barriers. The prospective adoptive family believes that they can educate themselves on [minor's] cultural heritage and background as she starts questioning. In addition, the prospective adoptive parents have slowly incorporated some of [minor's] Native American culture, to include books and music. They have participated in Native American events such as pow wows and have remained open on learning more about [minor's] tribe. The prospective adoptive parents plan on working with [minor] on learning about her history."
The social worker continued: "The prospective adoptive parents plan to have an open adoption. They have provided visits with biological parents, sibling, and extended family. The prospective adoptive parents hope to continue providing visits with biological parents once adoption is complete." Nonetheless, the prospective adoptive parents were no longer willing to enter a postadoption contract. The tribal expert opined that while the placement was not ICWA compliant, there was good cause to deviate from ICWA's placement preferences.
At the section 366.26 hearing on April 18, 2023, the tribal attorney noted that the tribe agreed with the department's recommendation. The court found minor adoptable and terminated parents' parental rights.
II. DISCUSSION
Mother contends both the juvenile court and the department committed reversible error by failing to further inquire with respect to the maternal aunt's indication that they were of Cherokee descent. The department concedes it neglected to carry out its duty of inquiry; therefore, the department does not oppose a conditional reversal and remand. We agree.
" '" 'Federal regulations implementing ICWA . . . require that state courts "ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child." [Citation.] The court must also "instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." '"' [Citations.] 'State law, however, more broadly imposes on social services agencies and juvenile courts (but not parents) an "affirmative and continuing duty to inquire" whether a child in the dependency proceeding "is or may be an Indian child." '" (In re J.C. (2022) 77 Cal.App.5th 70, 77.)
"Section 224.2 '"'creates three distinct duties regarding ICWA in dependency proceedings.'"' [Citations.] First, section 224.2, subdivision (b), requires the child protective agency to ask 'the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.' [Citations.] Although commonly referred to as the 'initial duty of inquiry,' it 'begins with the initial contact' [citation] and continues throughout the dependency proceedings." (In re J.C., supra, 77 Cal.App.5th at p. 77; see In re Delila D. (2023) 93 Cal.App.5th 953, 962 ["[T]he way a child is initially removed from home has no bearing on the question of whether they may be an Indian child."]; contra, In re Robert F. (2023) 90 Cal.App.5th 492, 504, review granted July 26, 2023, S279743 [Although the department is not required to question extended family members if the parent denies Indian heritage, if the parent refers the department to a family member, the department must follow through with its investigation.].)
"Second, if the court or child protective agency '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 and the Department 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' [Citations.] Third, if the further inquiry '" 'results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply.'" '" (In re J.C., supra, 77 Cal.App.5th at p. 78, fn. omitted.)
" '" 'The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings.'" [Citation.] "If the court makes a finding that proper and adequate further inquiry and due diligence as required in [section 224.2] 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." '" (In re J.C., supra, 77 Cal.App.5th at p. 78.)
"[I]n ICWA cases, a court must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744 [The department "failed its duty of inquiry by not asking 'extended family members' . . . whether there is reason to believe [the child was] an Indian child."]; compare In re Dezi C. (2022) 79 Cal.App.5th 769, 779, review granted Sept. 21, 2022, S275578 ["[A]n agency's failure to conduct a proper initial inquiry into a dependent child's American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding."]; contra, In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1003, 1006 ["[A]n automatic reversal approach to claims of ICWA inquiry errors is not compelled by the statute, harms the interests of dependent children, and is not in the best interests of Indian communities." "Plainly, complying with the literal language of the statute-that is, making an initial and further ICWA inquiry of every member of a child's extended family . . . is absurd at best and impossible at worst."]; contra, In re M.B. (2022) 80 Cal.App.5th 617, 629-630 [per se reversal where department and juvenile court failed their duties of ICWA inquiry].)
Here, mother's counsel informed the court that mother had indicated that there might be further information regarding mother's Indian ancestry to be obtained from the maternal aunt. The court directed "the Department to follow up with the aunt regarding mother and potential ICWA." The social worker indicated she texted the maternal aunt; the maternal aunt said she had affiliation with the Cherokee tribe on her mother's side. However, the department appears to have made no further inquiries. Because it is possible mother might have Indian heritage and that another tribe may have been entitled to intervene, the matter must be reversed and remanded so that the department can fully comply with its duty of inquiry and notice. (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.)
III. DISPOSITION
The judgment is conditionally reversed and "remanded to the juvenile court for full compliance with the inquiry and notice provisions of ICWA and related California law and for further proceedings not inconsistent with this opinion." (In re M.B., supra, 80 Cal.App.5th at p. 630.)
We concur: MILLER J. CODRINGTON J.