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Sacramento Cnty. Dep't of Child, Family & Adult Servs. v. M.T. (In re D.T.)

California Court of Appeals, Third District, Sacramento
Aug 24, 2023
No. C098362 (Cal. Ct. App. Aug. 24, 2023)

Opinion

C098362

08-24-2023

In re D.T., a Person Coming Under the Juvenile Court Law. v. M.T. et al., Defendants and Appellants. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent,


NOT TO BE PUBLISHED

(Super. Ct. No. JD240945)

Duarte, Acting P. J.

C.T. (mother) and M.T. (father) appeal from the juvenile court's April 2023 orders terminating parental rights and freeing the minor for adoption. (Welf. &Inst. Code, §§ 366.26, 395.) The parents' sole contention on appeal is that the Sacramento County Department of Child, Family and Adult Services (Department) and the juvenile court failed to comply with the initial inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California law. The Department agrees "specifically" that it "failed to inquire with the available maternal and paternal relatives about possible Native American ancestry" as argued by the parents and the Department "does not oppose [the parents'] initial and continuing duty of inquiry argument." The Department asserts that "a conditional affirmance and remand with instructions for compliance with the ICWA should be issued." As we explain post, we accept the concession and conditionally affirm the orders terminating parental rights, remanding for the Department to fulfill its admitted duty under the ICWA and for the juvenile court to enter further orders as necessary.

Undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

Because the issue on appeal is limited to ICWA compliance, we dispense with a detailed recitation of the underlying facts and procedure. It suffices to say that on November 10, 2020, the Department sought a protective custody warrant and filed a petition alleging the infant minor came within the provision of section 300, subdivision (b)(1), failure to protect, and section 300, subdivision (j), abuse of sibling, based on the parents' domestic violence and substance abuse.

The detention report stated without elaboration that both parents "denied having any Native American heritage." Mother provided a Parental Notification of Indian Status (ICWA-020) form, stating she had no Native American ancestry. Father also provided an ICWA-020 form, stating that he may have Native American ancestry from an unknown tribe.

Both parents were present at the November 17, 2020, detention hearing. The juvenile court inquired whether the family had any Native American heritage, and the court found reason to believe the minor might be an Indian child, based on information provided by father. The court ordered the Department to make further inquiry regarding possible Native American heritage and directed father to complete an ICWA questionnaire and provide it to the Department. The minor was ordered detained.

The Department's December 8, 2020, jurisdiction and disposition report stated that the identified relatives for relative notification were the paternal grandmother, maternal grandmother, the paternal aunt and uncle, and the paternal cousin. Father had told the Department that his Native American ancestry was through the paternal greatgrandmother on his mother's side, and he would research the name of the tribe. He subsequently reported the paternal great-grandmother was Native American but had been adopted and there was no known history. The social worker noted that the juvenile court had ordered the Department to conduct an ICWA inquiry as to father. It was reported that the Department sent notice to the Bureau of Indian Affairs and the California Department of Social Services, and a response was pending.

The applicability of the ICWA was not addressed at subsequent proceedings. On June 10, 2021, the Department reported: "[T]here is no further ICWA ruling after [the detention hearing minute order]. Thus, ICWA noticing is not required at this time." On December 14, 2021, at a contested selection and implementation hearing pursuant to section 366.26, the juvenile court terminated parental rights and freed the minor for adoption. The parents appealed. On November 29, 2022, this court vacated the orders terminating parental rights and remanded with directions to make findings and enter a new order consistent with In re Caden C. (2021) 11 Cal.5th 614. (In re D.T. (Nov. 29, 2022, C095459) [nonpub. opn.].)

A remittitur hearing was held on February 28, 2023, and the juvenile court ordered the reinstatement of supervised visitation for both parents. The court set a new hearing pursuant to section 366.26. In both its November 2022, post-permanency review report, and its April 2023, selection and implementation report, the Department reported that the ICWA did not apply. On April 10, 2023, at the contested selection and implementation hearing pursuant to section 366.26, the juvenile court did not make any further findings regarding the ICWA, and found the minor adoptable, determined no statutory exceptions to adoption were applicable, and terminated parental rights.

The parents timely appealed.

DISCUSSION

The parents contend the Department's inquiry into the minor's possible Native American ancestry was insufficient because there is no evidence the Department contacted any of the known extended family members to inquire whether they knew of possible Native American ancestry. They also contend the juvenile court erred in failing to make any findings regarding the ICWA after ordering the Department to inquire further at the detention hearing. The Department concedes that remand for further ICWA compliance is warranted.

We agree that the juvenile court must make findings as to the applicability of the ICWA and its failure to do so is an error. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 704-705, 709.) Here, the court had a duty to ensure the Department made further appropriate inquiries--which the Department agrees it did not do--and then make findings based on the results of all inquiries, including the court's own. (See In re A.M. (2020) 47 Cal.App.5th 303, 319 ["ICWA and the corresponding provisions of California law impose an affirmative and continuing duty on the juvenile court to inquire whether the child is an Indian child"].) The court neither found the Department's inquiry adequate nor performed its own inquiry, nor did the court make further findings related to application of the ICWA.

We also agree the Department's inquiry was inadequate. (See § 224.2, subd. (b).) "The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. [Citations.] A major purpose of the ICWA is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." [Citation.]' (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA defines an' "Indian child"' as a child who '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).) The juvenile court and the social services department have an affirmative and continuing duty, beginning at initial contact, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)" (In re G.A. (2022) 81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056.)

"[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 [or her] family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) 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.' (Id., subd. (e), italics added.) 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. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone 'knows or has reason to know that the child is an Indian child']; id., subd. (d) [defining circumstances that establish a 'reason to know' a child is an Indian child]; § 224.3 [ICWA notice is required if there is a 'reason to know' a child is an Indian child as defined under § 224.2, subd. (d)].)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.)

We review claims of inadequate inquiry into a child's Native American ancestry for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) Not every error by an agency in discharging its duties to inquire about ancestry and document its inquiry (see § 224.2, subd. (b); Cal. Rules of Court, rule 5.481(a)(5)) will undermine the juvenile court's ICWA finding under section 224.2, subdivision (i)(2). But the court's ability to exercise discretion in this regard is dependent on adequate record development by the department or agency. Approaches for assessing prejudice that may result from an inadequate ICWA inquiry have varied. (See, inter alia, In re Dezi C. (2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022, S275578, and In re G.A., supra, 81 Cal.App.5th 355, review granted Oct. 12, 2022, S276056.) Until the correct approach to assessing prejudice is determined by our high court, we take the most prudent avenue and accept the Department's concession that remand for further ICWA compliance is warranted.

Considering the Department's concession, the record, the remedial purpose underlying the ICWA, and related California law intended to protect third-party rights, as well as the unsettled state of the law regarding assessing prejudice, we remand for an adequate inquiry in the first instance. The juvenile court is directed to ensure that the Department complies with the inquiry and notice provisions of the ICWA and to enter new orders regarding the applicability of the ICWA.

DISPOSITION

The orders terminating parental rights are conditionally affirmed for both parents subject only to full compliance with the ICWA as described in this opinion. If, on remand, the juvenile court determines the ICWA applies, the court shall vacate its previous orders terminating parental rights and conduct further proceedings consistent with the ICWA, including a new section 366.26 hearing. (25 U.S.C. § 1914; § 224, subd. (e).) On remand, the parents shall have counsel reappointed and be provided due process, including notice and the right to be heard, for all ICWA compliance proceedings.

We concur: Krause, J., Boulware Eurie, J.


Summaries of

Sacramento Cnty. Dep't of Child, Family & Adult Servs. v. M.T. (In re D.T.)

California Court of Appeals, Third District, Sacramento
Aug 24, 2023
No. C098362 (Cal. Ct. App. Aug. 24, 2023)
Case details for

Sacramento Cnty. Dep't of Child, Family & Adult Servs. v. M.T. (In re D.T.)

Case Details

Full title:In re D.T., a Person Coming Under the Juvenile Court Law. v. M.T. et al.…

Court:California Court of Appeals, Third District, Sacramento

Date published: Aug 24, 2023

Citations

No. C098362 (Cal. Ct. App. Aug. 24, 2023)