Opinion
E080859
01-22-2024
In re K.G. et al., Persons Coming Under the Juvenile Court Law. v. A.S., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, Tiffany Lok and Glen Moret, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Nos. J294254, J294255, J294256, J294257, J294258 Erin K. Alexander, Judge. Affirmed in part; reversed in part with directions.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, Tiffany Lok and Glen Moret, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
A.S. (Mother) appeals from the juvenile court's jurisdictional/dispositional order as to her five children. Mother contends that the San Bernardino County Children and Family Services (CFS) and the juvenile court failed to fully comply with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related state law, and therefore substantial evidence did not support the juvenile court's finding that ICWA did not apply. CFS asserts that because this is an appeal from disposition, the appeal should be dismissed because the issues are not ripe as CFS and the juvenile court have a continuing duty to inquire as to whether the children are Indian children. While we agree that CFS and the juvenile court have a continuing duty relating to ICWA, we vacate the court's finding that ICWA did not apply and remand for compliance with ICWA and related California law, but otherwise affirm the jurisdictional and dispositional findings and orders.
Neither the father of the four younger children (K.G.) nor the father of Mother's oldest child (J.V.) is a party to this appeal.
"[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 (Benjamin M.).)
II. FACTUAL AND PROCEDURAL BACKGROUND
After CFS obtained a detention warrant, they detained the children from the parents on August 28, 2022. On August 30, 2022, CFS filed petitions on behalf of the children pursuant to Welfare and Institutions Code section 300.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
The detention report noted that ICWA "does or may apply" to the children. When questioned by the social worker, Father K.G. denied Native American ancestry. Mother, however, indicated there may be Native American ancestry through the Cherokee tribe on the maternal great-grandmother's side of the family. Mother reported that she was not a member of a tribe and denied having contact information for anyone who would have further knowledge of ICWA. The maternal grandfather, J.S., denied Native American ancestry on his side of the family, but stated that the maternal grandmother had Cherokee ancestry on her side of the family. He also reported that the maternal grandmother was deceased, and he had no further information.
On August 31, 2022, the maternal grandfather prepared and signed a Family Finding and ICWA Inquiry form, indicating he has or may have Indian ancestry. He noted "not such" when asked about the tribe/band but indicated the tribe/band was located in Washington state.
The detention hearing was held on August 31, 2022. Mother was not present in court as she was in local custody, but was represented by trial counsel. Both fathers were not present in court. The court formally detained the children and set a jurisdictional/dispositional hearing.
On September 15, 2022, Father K.G.'s mother indicated that she had no Native American ancestry. On September 16, 2022, Father K.G's family members M.G. and C.G. reported that they had no known Native American ancestry. On September 17, 2022, Mother again reported that she might have Native American ancestry through the maternal grandmothers of the family. Mother noted that she was not registered with a tribe or affiliated with a tribe, but the maternal grandmother had tried to register with a tribe and was unsuccessful.
On September 19, 2022, CFS filed a first amended section 300 petition as to Mother's eldest child S.S.-V.
On September 20, 2022, Mother prepared, signed, and filed an ICWA-020 Parental Notification of Indian Status (ICWA-020) form and indicated that she had Native American ancestry and identified the Cherokee tribe from Iowa. The maternal grandfather's name and contact information were provided as an additional family contact. Father J.V. also filed a Family Find and ICWA form, however, there was no information provided on the form. Father J.V. prepared, signed, and filed another ICWA-020 form, checking every box on the form as to Native American ancestry, such as he and the child may be a member of an Indian tribe, except the box indicating the child was domiciled on an Indian reservation.
Mother and Father J.V. were present at a hearing on September 20, 2022. The maternal grandfather and a paternal aunt and uncle were also present in court. Father K.G. was not present. The juvenile court questioned Mother about her Native American ancestry. Mother reported she had Cherokee heritage through her mother (maternal grandmother K.W.) but was not enrolled in the tribe. When asked about other relatives who may have further information, Mother responded that she had a brother and a sister, but they did not have any information as they were raised by their father and not her mother. Mother denied that anyone in her family would have more information regarding her Indian ancestry. Mother also stated that her mother did not live on a reservation and was not enrolled in the tribe, but she was unsure about her grandparents. Mother provided the name and telephone number for her brother, L.K. The court examined with Mother her filed Family Find form.
The juvenile court questioned the maternal grandfather, who indicated possible Indian ancestry from his grandfather's side of the family. The maternal grandfather, however, noted his grandfather was from Mexico. The maternal grandfather denied he, his parents, or his grandparents ever lived on a reservation, and he did not know if anyone had ever gone to an Indian school or received services through an Indian tribe. The maternal grandfather stated his mother, who was 96 years old, could possibly provide further information regarding any Indian ancestry.
The juvenile court also inquired of Father J.V. regarding his Native American ancestry. Father J.V. denied any Indian ancestry, stating he was Mexican, and provided the names of his parents. The court ordered Father J.V. to provide contact numbers for his parents. Finally, the juvenile court inquired as to possible Native American ancestry from Father K.G.'s half brother, C.G. C.G. indicated he shared the same father as K.G. and denied having Native American ancestry on his father's side, but stated there may have been Cherokee ancestry on his mother's side. The juvenile court found that ICWA may apply and ordered CFS to provide informal notice to the Cherokee tribes.
On December 19, 2022, CFS completed an informal ICWA inquiry by mail to three Cherokee tribes. CFS made multiple attempts to contact the known maternal relatives regarding possible Native American ancestry for the children, including a maternal cousin, maternal uncle, and two maternal great-aunts, but was unsuccessful. CFS prepared and sent ICWA-030 Notice of Child Custody Proceeding for Indian Child (ICWA-030 notice) forms with the known information to the Cherokee tribes and the Bureau of Indian Affairs (BIA) via certified mail. The ICWA-030 notices were incomplete or missing information, such as the maternal grandmother's year and place of birth and date and place of death.
On February 7, 2023, CFS reported that the Indian Child Welfare Department of the Cherokee Nation responded to their inquiry on January 9, 2023, indicating that the children were not Indian children. On January 9, 2023, the Eastern Band of Cherokee Indians also responded to CFS's inquiry by mail indicating the children were not Indian children.
The jurisdictional/dispositional hearing was held on February 8, 2023. Following testimony of S.S.-V. and Mother and argument from the parties, the juvenile court found true the allegations in the petitions and amended petition and declared the children dependents of the court. The court also found that the provisions of the ICWA did not apply to the children, but that this was subject to finding anyone with different information and ordered CFS to continue to comply with its duty of inquiry. Mother and Father K.G. were denied reunification services pursuant to section 361.5, subdivision (b)(6). Father J.V. was provided reunification services as to his child S.S.-V. Mother timely appealed the dispositional order.
III. DISCUSSION
Mother contends that the juvenile court and CFS failed to comply with their duty of inquiry with respect to ICWA under section 224.2, subdivision (e). She thus argues there is insufficient evidence to support the court's finding that ICWA did not apply. Specifically, Mother asserts CFS failed to gather all maternal family information required under sections 224.2, subdivision (e)(2)(A), and 224.3, subdivision (a)(5), and failed to share with the three federally recognized Cherokee tribes all information necessary for the tribes to make eligibility determinations as required by section 224.2, subdivision (e)(2)(C).
CFS responds that Mother's ICWA claims are premature or lack ripeness and the appeal must be dismissed because CFS and the juvenile court have a continuing duty to inquire about whether the children may be Indian children. In the alternative, CFS argues an extended initial inquiry under section 224.2 was not required as none of the children were taken into temporary custody.
Applying In re Dominick D. (2022) 82 Cal.App.5th 560, 563, 567 (Dominick D.), we affirm the jurisdictional and dispositional findings and orders, but vacate the finding that ICWA does not apply, and "direct the juvenile court on remand to order CFS to comply with its [further] inquiry [under section 224, subdivision (e)] and (if applicable) notice obligations under ICWA and related California law." (Id. at pp. 567-568.)
We note that Courts of Appeal are split on the proper disposition of cases where the parents appeal an order other than the order terminating parental rights, so the dependency remains ongoing in the lower court, and the only alleged error is with the ICWA inquiry. Another panel of this court has held the appropriate disposition where the juvenile court has found that ICWA does not apply is to vacate the ICWA finding and remand, but otherwise affirm. (Dominick D., supra, 82 Cal.App.5th at p. 568.) Other cases have disagreed with this approach and instead concluded the appeal is moot and should be dismissed. (See In re Baby Girl M. (2022) 83 Cal.App.5th 635; J.J. v. Superior Court (2022) 81 Cal.App.5th 447, 460-461.) Other cases follow the approach outlined in In re S.H. (2022) 82 Cal.App.5th 166, 179-180 (S.H.), which concluded that the appropriate disposition is to affirm without remand. We follow our prior opinion in Dominick D.
"ICWA establishes minimum federal standards that a state court must follow before removing Indian children from their families. [Citation.] California law implementing ICWA also imposes requirements to protect the rights of Indian children, their families, and their tribes." (In re Ricky R. (2022) 82 Cal.App.5th 671, 678 (Ricky R.); §§ 224-224.6; see In re Abbigail A. (2016) 1 Cal.5th 83, 91 ["persistent noncompliance with ICWA led the Legislature in 2006 to 'incorporate[ ] ICWA's requirements into California statutory law'"].) "An Indian child is any unmarried person under 18 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); see § 224.1, subd. (b).)" (Ricky R., at p. 678.)
Typically, it "is not self-evident whether a child is an Indian child," so "both federal and state law mandate certain inquiries to be made in each case." (Benjamin M., supra, 70 Cal.App.5th at p. 741.) "'"'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 (J.C.).)
Under California law, the juvenile court and county child welfare department have "an affirmative and continuing duty to inquire" whether a child subject to a section 300 petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.); Ricky R., supra, 82 Cal.App.5th at p. 678; In re Isaiah W. (2016) 1 Cal.5th 1, 14 (Isaiah W.) ["juvenile court has an affirmative and continuing duty in all dependency proceedings to inquire into a child's Indian status"].) "This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice." (D.F., at p. 566.)
The juvenile court must inquire at each party's first appearance, whether any participant in the proceeding "knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) Part of the initial inquiry also includes requiring each party to complete California Judicial Council form ICWA-020, Parental Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).) In addition, when an agency takes a child into temporary custody, the agency must ask "the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child," and the reporting party whether the child is or may be an Indian child. (§ 224.2, subd. (b).) 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).)
When the initial inquiry gives the juvenile court or the department "reason to believe that an Indian child is involved" (§ 224.2, subd. (e)), the court and social worker must conduct further inquiry to "determine whether there is reason to know a child is an Indian child." (§ 224.2, subd. (e)(2); see In re J.S. (2021) 62 Cal.App.5th 678, 686.) The department "does not discharge their duty of further inquiry until they make a 'meaningful effort' to locate and interview extended family members and to contact BIA and the tribes.'" (In re K.T. (2022) 76 Cal.App.5th 732, 744 (K.T.).) At this stage, contact with a tribe "shall, at a minimum," include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of ICWA notice, and "sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case." (§ 224.2, subd. (e)(2)(C).)
Finally, 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.'"'" (J.C., supra, 77 Cal.App.5th at p. 78; accord, Ricky R., supra, 82 Cal.App.5th at p. 679 ["The duty to provide notice arises only if [the agency] or the court 'knows or has reason to know that an Indian child is involved.'"]; 25 U.S.C. § 1912(a); § 224.3, subd. (a).) Federal regulations define the grounds for reason to know that an Indian child is involved (25 C.F.R. § 23.107(c)(1)-(6)), and state law conforms to that definition (§ 224.2, subd. (d)(1)-(6)).
A "reason to know" exists under any of the following circumstances: "(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family informs the court that the child is an Indian child[;] [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village[;] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child[;] (4) The child who is the subject of the proceeding gives the court reason to know [he or she] is an Indian child[;] (5) The court is informed that the child is or has been a ward of a tribal court[; and] [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d).)
"Notice enables the tribes 'to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in, or exercise jurisdiction over, the matter.'" (Ricky R., supra, 82 Cal.App.5th at p. 679.) The notice must include enough information for the tribe to "conduct a meaningful review of its records to determine the child's eligibility for membership" (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576), including the identifying information for the child's biological parents, grandparents, and great-grandparents, to the extent known (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; § 224.3, subd. (a)(5)(C)).
"The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. [Citation.]" (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.) "'"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.) A juvenile court finding that ICWA is inapplicable generally implies that the department and court have fulfilled their duty to inquire. (See In re Austin J. (2020) 47 Cal.App.5th 870, 885 [a finding that "ICWA does not apply" implies social workers and court "did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry"].) We review ICWA findings for substantial evidence, but "where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied." (In re D.S. (2020) 46 Cal.App.5th 1041, 1051; see In re A.M. (2020) 47 Cal.App.5th 303, 314.)
Here, we agree with Mother that CFS failed to complete their duty of further inquiry under section 224.2, subdivision (e), by failing to gather all maternal family information required under sections 224.2, subdivision (e)(2)(A) and 224.3, subdivision (a)(5). Mother's claim she had Indian ancestry with the Cherokee tribe through the maternal grandmother was sufficient to establish a reason to believe the children may be Indian children, thus triggering the duty to conduct further inquiry. (§ 224.2, subd. (e); K.T., supra, 76 Cal.App.5th at pp. 743-744 [the mother's statements of Blackfeet and Cherokee heritage and the father's assertions of Blackfeet, Cherokee, and/or Choctaw heritage was sufficient to require further inquiry]; In re Josiah T. (2021) 71 Cal.App.5th 388, 404 [the paternal grandmother's claim she had Cherokee ancestry triggered further inquiry]; In re T.G. (2020) 58 Cal.App.5th 275, 292 [the mother's ICWA-020 form indicating Cherokee ancestry on her maternal side and possible Indian ancestry of an unknown tribe through her paternal grandfather required further inquiry].) The maternal grandfather had also claimed Indian ancestry in an unknown tribe in Washington. Although CFS had attempted to conduct some further inquiry and had informally and formally noticed three Cherokee tribes, the notices were incomplete or missing information, such as the maternal grandmother's year and place of birth and date and place of death. This information was readily available to CFS as they had contact with the maternal grandfather. Furthermore, as Mother's counsel asserted during oral argument, CFS did not contact the BIA or the State Department of Social Services for assistance in identifying the tribe(s) in which the children may be eligible for membership through their maternal grandfather, who claimed ancestry through an unknown tribe in Washington. (§ 224.2, subd. (e)(2)(B).)
Because the issue here relates to the duty of further inquiry under subdivision (e) of section 224.2, rather than the duty of initial inquiry under subdivision (b) of section 224.2, we reject CFS's alternative argument that extended initial inquiry under section 224.2 was not required as none of the children were taken into temporary custody. (See In re Adrian L. (2022) 86 Cal.App.5th 342, 355-359 (conc. opn. of Kelley, J.) [the expanded duty of initial inquiry under subdivision (b) of section 224.2 applies only if the child was taken into temporary custody without a warrant pursuant to section 306].)
The notices were also inconsistent, one missing the maternal great-grandparent's information that was included in another notice. CFS also listed the tribe or band of all maternal great-grandparents as "unknown," even though it was reported at least one of the maternal great-grandparents had Indian ancestry. Additional information likely could have been gathered for at least two of the maternal great-grandparents from the maternal grandfather, but it appears CFS did not ask him for this information. Moreover, CFS failed to contact a maternal cousin, maternal uncle, and two maternal great-aunts. CFS's duty includes gathering as much information regarding the children's maternal family and ancestors as possible and to share all information with the tribes that the tribes deemed necessary for making membership or eligibility determinations. (§§ 224.2, subd. (e)(2), 224.3, subd. (a)(5).)
Thus, following Dominick D., supra, 82 Cal.App.5th 560, we vacate the juvenile court's finding that ICWA does not apply, remand for compliance with ICWA and related California law, and otherwise affirm the jurisdictional findings and dispositional order. We recognize that the juvenile court and CFS "have an affirmative and continuing duty to inquire" into the children's Indian status as these dependency proceedings continue. (§ 224.2, subd. (a); see Isaiah W., supra, 1 Cal.5th at p. 14; S.H., supra, 82 Cal.App.5th at pp. 176-177.) CFS "has a duty 'on an ongoing basis' to report 'a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status.' ([Cal. Rules of Court, r]ule 5.481(a)(5).) And the juvenile court, even after it concludes that ICWA does not apply, retains the power (and duty) to reverse that determination 'if it subsequently receives information providing reason to believe that the child is an Indian child.' (§ 224.2, subd. (i)(2); see also [Cal. Rules of Court,] rule 5.482(c)(2).)" (S.H., at p. 176, italics omitted.) Hence, while in some respects, there may be no reason to remand this case at all, we also recognize that we should not allow an erroneous finding to stand when it can be corrected.
IV. DISPOSITION
The juvenile court's finding that ICWA does not apply to the proceedings is vacated and the matter is remanded to the juvenile court. The juvenile court is directed to order CFS to comply with its inquiry and (if applicable) notice obligations under ICWA and related California law. In all other respects, the jurisdictional and dispositional findings and orders are affirmed.
We concur: RAMIREZ P. J., MENETREZ J.