Opinion
C098540
12-12-2023
In re N.B., a Person Coming Under the Juvenile Court Law. v. S.S. et al., Defendants and Appellants. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Super. Ct. No. JD241717)
Keithley, J. [*]
Appellants A.W. (father) and S.S. (mother), parents of the minor, appeal from the juvenile court's order terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) The parents contend the juvenile court and the Sacramento County Department of Child, Family and Adult Services (Department) failed to comply with the requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) The Department concedes the error. We will conditionally affirm and remand for limited ICWA proceedings.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
A detailed recitation of the facts and non-ICWA related procedural history is unnecessary to our resolution of this appeal.
The Department filed a dependency petition on behalf of the newborn minor pursuant to section 300, subdivision (b), alleging the minor was at risk due to mother's untreated substance abuse. Paternity testing later revealed father was the minor's biological father. Prior to and at the time of the filing of the petition, mother denied having any Native American heritage. However, at the detention hearing, mother's counsel submitted a parental notification of Indian status form (ICWA-020), signed by counsel on behalf of mother, stating mother may be a member of an unknown Indian tribe. The juvenile court found that, as to mother, there was no evidence the minor was or might be an Indian child. However, father indicated possible Indian ancestry with the "Blackfoot Tribe."
At a subsequent interview, mother again denied having any Native American heritage, as did the maternal grandmother, C.B., who stated, "we're Portuguese." The Department reported the ICWA may apply and referred the juvenile court to its January 18, 2022, ICWA compliance report. The ICWA report indicated mother denied Indian heritage and father claimed possible "Blackfeet" ancestry. The report also stated the Department pursued its ICWA inquiry by contacting the Bureau of Indian Affairs (BIA) and the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana (Blackfeet Tribe) by letter, e-mail, and facsimile and that the results of those pursuits were still pending. However, neither the letters nor any notice forms (ICWA-030) or return receipts were attached to the report. The Department recommended the court order further inquiry as required by section 224.2, subdivision (e), and the Department file with the court any evidence of its inquiry, "including all contacts with the extended family members, tribes that the child may be affiliated with, the [BIA], the California Department of Social Services, and/or others."
In its February 8, 2022, addendum report, the Department reported that father told the social worker he had possible Blackfeet ancestry on his maternal great-grandmother's side of the family.
The Department filed a second ICWA compliance report on February 8, 2022. The report reiterated information provided in the previous ICWA report and also provided new information, including father's additional report that his Blackfeet ancestry was from the paternal great-grandmother's side of the family, as well as paternal aunt's statement that, to her knowledge, there was no Native American ancestry in her family. The report noted the Department had additional contact with the designated agent of the Blackfeet Tribe, who indicated the Tribe did not accept inquiries via e-mail or fax and requested a letter be sent via certified mail. According to the report, the Department sent a certified letter to the Tribe with "information which included a list of the [minor's] family members, detailing, [sic] names, addresses, dates of birth and places of birth, where known, as to those who may have ancestry." A response from the Tribe was still pending as of the filing of the report. Again, neither the letters nor any ICWA notices were attached to the report.
The third ICWA compliance report, filed March 4, 2022, indicated the Department contacted the Blackfeet Tribe regarding the status of its previous inquiry but had not received a response.
On March 8, 2022, the juvenile court sustained the petition, adjudged the minor a dependent of the court, and set the matter for an ICWA compliance hearing.
The fourth ICWA compliance report, filed March 25, 2022, stated the Blackfeet Tribe had responded that the minor was not an Indian child as defined by the ICWA. The Tribe's letter was attached to the report, but no other letters or notices were attached. The Department recommended the juvenile court find the ICWA does not apply. The Department reiterated the recommendation in its permanency report filed August 18, 2022.
At the May 10, 2022, ICWA compliance hearing, the Department requested the juvenile court find there was no reason to believe or know the minor was an Indian child and the ICWA does not apply. The court noted the discrepancy in the reports regarding father's claim of Blackfeet ancestry on the paternal great-grandmother's side versus claims of no tribal affiliation on the paternal side. The court continued the hearing to "make sure that the inquiry was proper" and to obtain an updated report from the Department.
At the August 30, 2022, ICWA compliance hearing, the juvenile court found the Department complied with "notice pursuant to ICWA," there was no reason to know the minor was an Indian child, no further ICWA notice was required, and the ICWA does not apply.
Thereafter, the Department provided no new or additional information related to its ICWA inquiry and investigation and reported the ICWA does not apply.
The paternal grandmother, maternal grandmother, and the maternal aunt were present at the section 366.26 hearing on April 19, 2023, but no additional ICWA inquiry was reflected in the Department's report. On May 8, 2023, after taking the matter under submission, the court terminated parental rights and identified adoption as the appropriate permanent plan.
DISCUSSION
The parents contend the Department's inquiry into the minor's possible Native American heritage was insufficient because the Department acknowledged it had a reason to believe the minor was an Indian child but failed to obtain more information from the parents or interview the minor's relatives. The parents also contend the Department failed to fulfill its duty to provide relevant information to the appropriate tribe, and the juvenile court erred in finding the ICWA does not apply.
The Department concedes it failed its initial and continuing duty to inquire of the parents and maternal and paternal relatives and provide readily available information to the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.
We agree that the juvenile court must make findings as to the applicability of the ICWA and its failure to do so is 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 found the Department complied with notice requirements "pursuant to ICWA" and concluded the ICWA does not apply when, as the Department acknowledges and the record makes plain, the inquiry was inadequate, as was the information sent to the Blackfeet Tribe.
We also agree that the Department's inquiry was inadequate." '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, rev. granted.) 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, subject to compliance with the ICWA. If, on remand, the juvenile court determines the minor is an Indian child within the meaning of the ICWA, the juvenile 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, 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: Earl, P. J. Krause, J.
[*] Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.