Opinion
C100380
09-20-2024
In re G.N., a Person Coming Under the Juvenile Court Law. v. N.O. et al., Defendants and Appellants. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Super. Ct. No. JD242219)
DUARTE, J.
Nicholas O., father of minor G.N., and M.N., mother of G.N., appeal from orders terminating their respective parental rights. (Welf. &Inst. Code, § 366.26.) The parents argue noncompliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law, by the Sacramento County Department of Child, Family, and Adult Services (Department). Specifically, they argue the Department prejudicially erred in failing to comply with ICWA's affirmative and continuing duty of inquiry by failing to interview paternal aunt Jennifer R., paternal grandfather R.O., mother's cousin, and maternal great-aunt and great-uncle concerning G.N.'s possible Indian heritage.
Undesignated statutory references are to the Welfare and Institutions Code.
The Department concedes its investigation was "imperfect," but argues reversal for further proceedings in compliance with the ICWA is not required because the family members interviewed (mother, father, maternal uncle N.N., and paternal grandmother M.K.P.) all denied Native American ancestry. The Department argues that this constitutes substantial evidence that the ICWA does not apply, and there is no suggestion that the juvenile court abused its discretion in finding there was no reason to believe or know that G.N. is an Indian child. We received supplemental briefing from father as well as the Department, permitted at father's request, regarding the effect of In re Dezi C. (2024) 16 Cal.5th 1112 (Dezi C.) on our analysis.
Mother also complains of the juvenile court's failure to make new ICWA findings following the Department's ICWA compliance report and at the section 366.26 hearing. However, the juvenile court is assumed to have adopted its November 2, 2022, determination that the ICWA did not apply. (See, e.g., In re Isaiah W. (2016) 1 Cal.5th 1, 10 [order terminating parental rights "necessarily premised on a current finding" ICWA did not apply]; id. at pp. 6, 9, 14-15.) With that said, Dezi C. makes clear that the juvenile court must make "findings that an inquiry was adequate and proper and ICWA does not apply" and that we then must determine whether those findings are "supported by sufficient evidence and record documentation as required by California law ([Cal. Rules of Court,] rule 5.481(a)(5))." (Dezi C., supra, 16 Cal.5th at p. 1141.) Only if these findings are properly made and supported can we say that "there is no error and conditional reversal would not be warranted even if the agency did not inquire of everyone who has an interest in the child." (Ibid.)
The Department failed to query known relatives, with whom its representatives had or should have had contact given the particularities of this case, as described below. Given the Department's concession of this breach of its duty, together with the new guidance in this area provided by our Supreme Court in Dezi C., we are compelled to agree with the parents that remand is the prudent course here. Accordingly, we will conditionally reverse the orders of the juvenile court and remand for further compliance with the ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of the background information to that necessary for disposition of the appellate issue.
The Department initiated dependency proceedings in October 2022 alleging negligent supervision after then one-year-old G.N. ingested controlled substances (amphetamines and opiates) during a family visit resulting in her loss of consciousness and requiring emergency treatment with Narcan. Both parents had a history of substance abuse, and their failure to adequately supervise G.N. placed her at substantial risk of harm. (§ 300, subd. (b)(1).) Along with the dependency petition, the social worker filed an Indian Child Inquiry Attachment (IWCA-010(A) form) stating mother and paternal grandmother had been interviewed regarding the ICWA and gave no reason to believe that the ICWA might apply.
The detention hearing started on October 26, 2022. That same day, the parents filed Parental Notification of Indian Status forms (ICWA-020 forms) indicating no heritage. Detention proceedings continued on October 31, 2022, and parents again filed ICWA-020 forms indicating no heritage. This same day the juvenile court classified father as presumed. The court acknowledged that the parents' ICWA forms indicated they had no "Native American heritage."
The Department's court addendum report filed November 2, 2022, stated mother had identified G.N.'s maternal great-aunt and great-uncle as well as a maternal cousin for possible placement and that mother had asked to contact them herself. Mother spoke with these individuals in an effort to ascertain whether the Department should assess them for possible placement. There is no evidence suggesting the Department interviewed these extended family members as part of its ICWA investigation.
At the continued detention hearing on November 2, 2022, the juvenile court found "there is no reason to know or believe that the child is an Indian Child within the meaning of the Indian Child Welfare Act at this time. [The Department] shall comply with its affirmative and continuing duty to inquire whether the child is an Indian Child with available family and extended family members." Further, the court instructed "the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child."
On November 21, 2022, the Department filed an ICWA compliance report, which concluded the ICWA did not apply. According to this report, mother told the Department on October 23, 2022, that she had no Native American heritage. The next day, paternal grandmother M.K.P. told the Department she had no Native American heritage, and to her knowledge, father also had no such heritage. Further, father's ICWA-020 form filed with the court denied Native American heritage. The Department also interviewed Z.H. (parent of G.N.'s half sibling) who reported no knowledge of Native American heritage in mother's family. The Department also spoke with mother's brother N.N., who denied any Native American heritage on mother's side of the family. Finally, efforts to reconnect with paternal grandmother M.K.P. in order to further inquire about the "paternal side of the family's Native American ancestry" were unsuccessful as she failed to return phone messages left three days in a row. The report recommended the juvenile court find "there is no reason to believe or reason to know the child is an Indian child and ICWA does not apply." In accordance with this information, the Department's jurisdiction/disposition report stated that the ICWA did not apply and that G.N. was not an Indian child.
On December 12, 2022, mother again told a Department social worker that she did not have any Native American heritage. During this same interview, mother relayed that her father died in 2003 (when she was 10 years old) and her mother died in 2018. Mother had a brother, N.N. Also on December 12, 2022, father reaffirmed to a Department social worker that he had no Native American heritage.
At the combined jurisdiction/disposition hearing on March 20, 2023, the parents submitted on the reports, and the juvenile court found G.N. to be a section 300 dependent and ordered reunification services for both parents. The record does not reflect that the juvenile court made any express ICWA-related findings or orders at this hearing.
At the six-month review hearing on September 27, 2023, the juvenile court found the Department had offered reasonable services, but that parents had made minimal progress with their reunification plan, and there was not a reasonable probability of reunification. Accordingly, the juvenile court terminated reunification services and set the matter for a selection and implementation hearing (§ 366.26) on January 25, 2024. The record reflects no express ICWA findings at this hearing.
The Department's selection and implementation report recommended the termination of parental rights and the freeing of G.N. for adoption. Possible placement with paternal aunt Jennifer R. was considered, but not recommended because she was still in the assessment process and had previously declined an opportunity to have G.N. placed with her. Permanency through continued placement with the foster parents who had cared for G.N. since June 2023 was in the minor's best interests. It does not appear that Jennifer R. was asked about the ICWA. Without any additional information or analysis, the report stated that "The Indian Child Welfare Act does not apply."
The parents failed to appear at the selection and implementation hearing (§ 366.26) on January 25, 2024, and their counsel had no explanation for their absence. The juvenile court determined the parents had received lawful notice and denied their attorneys' requests to continue the hearing. The court then adopted the Department's recommendations, finding G.N. was likely to be adopted and that no exceptions to adoption existed. Accordingly, the court ordered parental rights terminated. None of the juvenile court's express orders addressed the applicability of the ICWA, but the juvenile court is assumed to have adopted its earlier determination that the ICWA did not apply. (See, e.g., In re Isaiah W., supra, 1 Cal.5th at p. 10 [order terminating parental rights "necessarily premised on a current finding" ICWA did not apply]; id. at pp. 6, 9, 14-15.)
Mother and father timely appealed.
DISCUSSION "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.'" (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 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. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a).)
Section 224.2 creates three distinct duties regarding ICWA in dependency proceedings. The first is relevant here. "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).)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) "Inquiry includes, but is not limited to, asking 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." (§ 224.2, subd. (b).) This court had previously held that the duty to make inquiries of extended family members applies to all children, regardless of the basis on which they were detained. (In re C.L. (2023) 96 Cal.App.5th 377, 384-390.) "Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)" (In re Ricky R. (2022) 82 Cal.App.5th 671, 679; accord, In re K.H. (2022) 84 Cal.App.5th 566, 597.)
We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; see Dezi C., supra, 16 Cal.5th at pp. 1147-1148.) Not every error by an agency or department in discharging its duties under section 224.2 will undermine the court's ICWA finding, but the court's ability to exercise discretion in this regard is dependent on adequate record development by the Department."' "On a well-developed record, the court has relatively broad discretion to determine whether the agency's inquiry was proper, adequate, and duly diligent on the specific facts of the case. However, the less developed the record, the more limited that discretion necessarily becomes."' (In re Kenneth D. [(2024) 16 Cal.5th] at pp. 1101-1102; see also In re H.B. (2023) 92 Cal.App.5th 711, 721.)" (Dezi C., at p. 1141.)
Here, the Department concedes that it conducted an "imperfect" investigation but argues reversal for further proceedings in compliance with the ICWA is not required because the family members who were interviewed all denied Native American ancestry. The Department reasons these denials constitute substantial evidence that the ICWA does not apply, and thus the juvenile court did not abuse its discretion in finding there was no reason to believe or know that G.N. is an Indian child.
The record reflects the Department interviewed the parents, paternal grandmother, and a maternal sibling concerning G.N.'s possible Native American heritage. The Department either failed to ask or failed to document any attempts to ask paternal grandfather, a paternal aunt, mother's cousin, and maternal great-aunt and great-uncle. It labels its efforts as flawed but adequate. However, on this record we are unable to assess the adequacy of the inquiry. The juvenile court's most recent findings regarding the ICWA do not address the adequacy of the current state of the inquiry, and the record documentation is not sufficient for us to do so on our own. Thus, we are compelled to conditionally reverse. (C.f. Dezi C., supra, 16 Cal.5th at p. 1141 ["If, upon review, a juvenile court's findings that an inquiry was adequate and proper and ICWA does not apply are found to be supported by sufficient evidence and record documentation as required by California law ([Cal. Rules of Court,] rule 5.481(a)(5)), there is no error and conditional reversal would not be warranted even if the agency did not inquire of everyone who has an interest in the child].)
The grandfather, aunt, and cousin are unquestionably extended family members under the ICWA (In re K.H., supra, 84 Cal.App.5th at p. 597), and the Department had a duty to question them about possible Native American heritage and document their responses (§ 224, subd. (b); Cal. Rules of Court, rule 5.481(a)(5)). Moreover, in light of maternal grandparents' death, one of which occurred when mother was a child, the Department had a duty to inquire of the maternal great-aunt and great-uncle, particularly given that they were named and contacted as part of the dependency proceedings.
While it is extremely unfortunate that the minor's permanency must be delayed for the Department to correct its errors and fulfill its duty of inquiry (Dezi C., supra, 16 Cal.5th at pp. 1153-1154 [dis. opn. of Groban, J.]), we cannot find on this record that the Department's errors were harmless. The Department ignored known relatives and cannot produce any documentation that would demonstrate it fulfilled its duties despite this admitted lapse. (Id. at pp. 1164-1165.)
Accordingly, we will conditionally reverse the orders of the juvenile court and remand the case for further proceedings related to compliance with the ICWA. (See Dezi C., supra, 16 Cal.5th at pp. 1151-1152.) We expect all involved entities will cooperate to ensure that the ICWA proceedings and their documentation are thorough and thus the juvenile court's exercise of its discretion is fully informed. (See H.A. v. Superior Court (2024) 101 Cal.App.5th 956, 965-966) [describing this court's expectations of counsel, the juvenile court, and the Department on remand for ICWA compliance].)
DISPOSITION
The orders terminating parental rights are conditionally reversed and the matter is remanded for the limited purpose of complying with the inquiry and notice provisions of the ICWA. If the juvenile court thereafter finds a proper and adequate further inquiry and due diligence has been conducted and concludes the ICWA does not apply, the orders shall be reinstated. If the juvenile court concludes the ICWA applies, the juvenile court is ordered to conduct a new section 366.26 and proceed in accordance with the ICWA and California implementing provisions, including considering any petition filed to invalidate prior orders. (25 U.S.C. § 1914; § 224, subd. (e).)
We concur: Robie, Acting P. J., Mauro, J.