Opinion
E080829
10-18-2023
In re M.G. et al., Persons Coming Under the Juvenile Court Law. v. M.G., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Emily P. Uhre, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, Joseph R. Barrell, Tiffany Lok, and Joseph R. Barrell, County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J291449. Steven A. Mapes, Judge. Reversed and remanded with directions.
Emily P. Uhre, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, Joseph R. Barrell, Tiffany Lok, and Joseph R. Barrell, County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON ACTING P. J.
I. INTRODUCTION
Mother appeals from a juvenile dependency court order terminating her parental rights to her two sons, E.G. (born in 2017) and M.G. (born in 2021) pursuant to Welfare and Institutions Code section 366.26. Mother contends San Bernardino County Children and Family Services (CFS) did not comply with its initial inquiry duty under section 224.2, subdivision (b) to ask extended family members if E.G. and M.G. (the Children) are, or may be, potential Indian children as defined in the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). Mother argues that because CFS did not adequately investigate the Children's Native American status, we should conditionally reverse the juvenile court's order terminating her parental rights and remand the matter for ICWA compliance.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
We cite section 224.2, subdivision (b) herein as section 224.2 (b).
Because ICWA uses the term Indian, we do so on occasion as well, not out of disrespect, but because of the need for clarity and consistency, even though we recognize that other terms, such as "Native American" or "indigenous" are preferrable. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
CFS argues it was not required to comply with section 224.2 (b)'s requirement to ask extended family members if the Children are, or may be, Native American Children. CFS further asserts that, even if CFS were required to do so, any such failure was harmless error. We conclude CFS failed to satisfy its ICWA duty to inquire as to five of the Children's extended relatives, and this constitutes prejudicial error. We therefore conditionally reverse the order terminating parental rights, and remand with directions CFS conduct a sufficient inquiry under ICWA.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On November 30, 2021, CFS filed a juvenile dependency petition under section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). The petition alleges that Mother suffered from substance abuse and mental health issues, and has a history of domestic violence. The petition further alleges Mother was placed on a 5150 hold and the Children were left with their maternal grandmother (MGM), without provisions for support. Mother also has an extensive history with child protective services, beginning in 1999, resulting in removal of the Children's 11 siblings from Mother's care. One of the 11 siblings aged out of the system and the case was dismissed. Mother's parental rights were terminated as to five of the other 11 siblings, and she had not reunited with the remaining five siblings, who remained the subject of separate pending dependency proceedings.
Attached to the petition was form ICWA-010(A), in which the reporting CFS social worker declared under penalty of perjury that CFS completed its duty of inquiry "by asking the child, the child's parents, and other required and available persons about the child's Indian status." According to the form, the only questioned person was MGM on November 29, 2021. MGM reportedly gave the social worker "no reason to believe the child is or may be an Indian child."
In the detention report, CFS reported that on November 23, 2021, CFS received an Immediate Response referral, alleging Mother's absence/incapacity, severe neglect, and general neglect of the Children, ages 3 years old and 6 months old. She reportedly was found walking in and out of traffic with the Children, in an altered mental state, while under the influence. Mother was taken to the hospital and placed on a 5150 hold. The Children were released to MGM, who was homeless.
CFS went searching for MGM at her last known address, which was the home of the Children's maternal great-aunt (MGA). MGA said MGM was homeless but used MGA's address for mailing purposes. MGA did not know where MGM or the Children were. MGA said Mother was also homeless and moved from motel to motel. Mother, her brother (R.J.), her cousin, Jesse (M.C.), and her Children usually resided together. MGA believed Mother and her brother, R.J., were using drugs. CFS searched local motels and found MGM, the Children, Mother's adult daughter (D.G.), and R.J. at a motel.
On December 1, 2021, Mother and MGM each filled out a "RELATIVE: Family Finding and [ICWA] Inquiry." Mother stated on her form that her preference was to place the Children with their older brother, D.S. Mother also provided the phone numbers and addresses for him and MGM. Mother and MGM provided contact information for D.S. and MGM, and both denied they "have/may have Native American Ancestry." MGM also stated on the form that the Children do not have other relatives with Native American ancestry; none of the Children's family members ever lived on a reservation; none of the Children's family members received medical treatment at a Native American health clinic or U.S. Public Health hospital; and none of the Children or their family members ever attended a Native American school. Mother also filed on December 1, 2021, a "Parental Notification of Indian Status" form, ICWA-020, in which she stated: "I have no Indian ancestry as far as I know."
CFS stated in its December 2021, jurisdiction/disposition report that ICWA does not apply and the Children are not ICWA eligible. CFS reported that it had conducted an ICWA inquiry of Mother on December 1 and 14, 2021, and an inquiry of MGM on November 29, 2021, and they again denied any Native American ancestry.
CFS further reported in its jurisdiction/disposition report that Mother would like the Children placed with her 21-year-old son, D.S., and his fiance and their two children. Mother provided his telephone number. In an additional information report, CFS stated it had spoken to D.S., who was interested in caring for the Children. CFS did not recommend placement of the Children with D.S. because he and his fiance were young and already caring for their own two children. There was no mention in the CFS report of any ICWA inquiry of D.S.
At the jurisdiction/disposition hearing in April 2022, the court found jurisdiction under section 300, subdivisions (b) and (j), and dismissed the subdivision (g) allegation. The court bypassed reunification services for Mother (§ 361.5, subd. (b)), set a section 366.26 hearing, and adopted the jurisdiction/disposition report findings, which included the finding that ICWA did not apply.
The August 2022 status review report and section 366.26 hearing report filed in February 2023, also stated that ICWA did not apply. CFS reported in the section 366.26 report that the Children had been placed together in the same foster home since August 2022 and their caregivers wanted to adopt them. The section 366.26 report further stated that MGM had denied Native American ancestry on February 2, 2023. The identity and whereabouts of the Children's father(s) remained unknown.
Mother filed a section 388 petition in March 2023, requesting reunification services. At the section 366.26 hearing on March 6, 2023, the court summarily denied the section 388 petition. During the section 388 hearing, county counsel stated: "I did review the case for ICWA, and it appears that there is no Indian heritage for these children." During the section 366.26 hearing, Mother requested a permanent plan of legal guardianship based on the beneficial parental relationship exception to adoption and terminating parental rights. The court found the Children were adoptable and no exception to adoption applied, and terminated Mother's parental rights. The court did not make any express ICWA findings during the hearing.
III. APPLICABLE LAW
When "implement[ing] ICWA, the county welfare department and the juvenile court must determine whether a case involves an Indian child. The department and the court thus have an '"affirmative and continuing duty to inquire" whether a child in a dependency proceeding "is or may be an Indian child."' (In re Ricky R. (2022) 82 Cal.App.5th 671, 678 (Ricky R.), quoting § 224.2, subd. (a).) 'The duty to inquire consists of two phases-the duty of initial inquiry and the duty of further inquiry.' (Ricky, R., supra, 82 Cal.App.5th at p. 678.) This case does not concern the duty of further inquiry, which arises only if the court or the department has 'reason to believe that an Indian child is involved.' (§ 224.2, subd. (e).)" (In re Robert F. (2023) 90 Cal.App.5th 492, 499, review granted July 26, 2023, S279743.)
"'The duty of initial inquiry applies in every dependency proceeding.' (Ricky R., supra, 82 Cal.App.5th at p. 678.) The department's 'duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child.' (§ 224, subd. (a).) In addition, '[f]ederal regulations require state courts to ask each participant "at the commencement" of a child custody proceeding "whether the participant knows or has reason to know that the child is an Indian child." (25 C.F.R. § 23.107(a) (2022).)' (Ricky R.[, supra,] at pp. 678-679.) Similarly, '[s]tate law requires the court to pursue an inquiry "[a]t the first appearance in court of each party" by asking "each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).)' (Ricky R.[, supra,] at p. 679.)" (In re Robert F., supra, 90 Cal.App.5th at pp. 499-500.)
"In some cases, California law requires the county welfare department to do more at the initial inquiry stage. Specifically, under subdivision (b) of section 224.2, '[i]f a child is placed into the temporary custody of a county welfare department pursuant to [s]ection 306,' the department's obligation includes asking the 'extended family members' about the child's Indian status." (In re Robert F., supra, 90 Cal.App.5th at p. 500.) The duty to inquire of extended relatives under sections 224.2 (b) and 306 continues throughout the proceedings, not just until the detention proceedings end. (Cal. Rules of Court, rule 5.481(a)(1); In In re Andres R. (2023) 94 Cal.App.5th 828, 859-860.)
A parent may raise failure to comply with ICWA on appeal, "even if the issue was not raised in the trial court, because '[t]he parent is in effect acting as a surrogate for the tribe in raising compliance issues on appeal.' [Citation.]" (In re A.R. (2022) 77 Cal.App.5th 197, 204.)
IV. APPLICATION OF SECTION 224.2 (b)
CFS does not concede that it was required under section 224.2 (b) to ask "extended family members" about the Children's Native American status, and there remains a split in authority. (Compare In re Delila D. (2023) 93 Cal.App.5th 953, 961962, review granted Sept. 27, 2023, S281447 [requiring extended family inquiry after any removal from parental custody] with In re Robert F, supra, 90 Cal.App.5th at pp. 497498 [inquiry of extended family members not required when children removed by custody warrant].) Here, however, since the Children were removed from parental care without a warrant, both sides of the split lead to the same conclusion: the extended family inquiry was required. We further conclude this duty continued after the juvenile court's detention and removal orders (In re Andres R., supra, 94 Cal.App.5th at pp. 859860), regardless of whether further inquiry was required.
Mother does not object to CFS not asking the Children's father(s) whether he/they or any paternal relatives have Native American heritage, because the identity of the Children's father(s) was unknown and, despite CFS's investigation, it was unable to identify the father(s). Therefore ICWA inquiry was not possible as to the father(s).
Mother contends CFS failed to comply with the section 224.2 (b) requirement by not investigating the Children's Native American ancestry by asking (1) MGA, (2) Mother's brother and the Children's uncle, R.J., (3) Mother's adult daughter and the Children's sibling, D.G., (4) Mother's adult son and the Children's sibling, D.S., and (5) Mother's cousin, M.C. It is undisputed CFS failed to ask these extended family members about the Children's Native American status even though CFS was provided with contact information and spoke to some of them. We conclude any failure to comply with the section 224.2 (b) requirement is not harmless error.
Because the failure here to inquire concerned CFS's duty of initial inquiry, only state law is involved. (Benjamin M., supra, 70 Cal.App.5th at p. 742.) "Where a violation is of only state law, we may not reverse unless we find that the error was prejudicial. (Cal. Const., art. VI, § 13 ['No judgment shall be set aside . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice']; People v. Watson (1956) 46 Cal.2d 818, 836 ['a "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error'].)" (Benjamin M., supra, at p. 742.)
The California courts are currently divided regarding the standard by which harmlessness is to be assessed. (See In re Y.W. (2021) 70 Cal.App.5th 542, 556; Benjamin M., supra, 70 Cal.App.5th at pp. 743-744; In re A.C. (2021) 65 Cal.App.5th 1060, 1069; In re A.R., supra, 77 Cal.App.5th at pp. 205-206; In re Dezi C. (2022) 79 Cal.App.5th 769, 774; In re Adrian L. (2022) 86 Cal.App.5th 342, 350-351.) We continue to adhere to the prejudicial error standard stated in Benjamin M., which is applicable to violations of the initial duty of inquiry. We concluded in Benjamin M., that when determining whether there is prejudicial error, the reviewing 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." (Benjamin M., supra, at p. 744.)
In Benjamin M., the juvenile court conditionally reversed an order terminating the mother's parental rights. Her children did not all have the same father. On appeal, she argued the juvenile court erred in finding ICWA did not apply to one of her children because the child welfare agency did not interview the brother of that child's father about potential Native American ancestry. (Benjamin M., supra, 70 Cal.App.5th at p. 740.) The father never appeared in the proceeding. In concluding there was prejudicial error, we reasoned in Benjamin M. that "Father's brother's knowledge of his own Indian status would be suggestive of Father's status. While we cannot know how Father's brother would answer the inquiry, his answer is likely to bear meaningfully on the determination at issue about his brother." (Id. at p. 745.)
Likewise, here, we cannot know how the Children's extended relatives, such as MGA, R.J., D.G., D.S., and M.C., would answer an ICWA inquiry regarding the Children's Native American ancestry. However, their responses likely would bear meaningfully on the determination of whether the Children have Native American ancestry. (Benjamin M., supra, 70 Cal.App.5th at p. 745.)
Although [b]oth Mother and MGM repeatedly denied any Native American ancestry, "[t]he existence of parental denials of Indian ancestry, including denials on Judicial Council forms, does not, standing alone, establish a lack of prejudice. We consider such denials along with the rest of the record to determine if the failure to make ICWA inquiries of other family members deprived the juvenile court of information '"'likely to bear meaningfully upon whether the child is an Indian child.'"'" (In re Adrian L., supra, 86 Cal.App.5th at p. 351, quoting In re Darian R. (2022) 75 Cal.App.5th 502, 509.)
The record shows that CFS failed to ask five of the Children's extended relatives about their possible Native American ancestry, even though CFS had their contact information or communicated with them regarding other matters, but failed to ask about the Children's Native American ancestry.
"Where the Department fails to discharge its initial duty of inquiry under ICWA and related California law, and the juvenile court finds ICWA does not apply notwithstanding the lack of an adequate inquiry, the error is in most circumstances, as here, prejudicial and reversible. Speculation as to whether extended family members might have information likely to bear meaningfully on whether the child is an Indian child has no place in the analysis of prejudicial error where there is an inadequate initial inquiry. Rather, in determining whether the failure to make an adequate initial inquiry is prejudicial, we ask whether the information in the hands of the extended family members is likely to be meaningful in determining whether the child is an Indian child, not whether the information is likely to show the child is in fact an Indian child. In most circumstances, the information in the possession of extended relatives is likely to be meaningful in determining whether the child is an Indian child-regardless of whether the information ultimately shows the child is or is not an Indian child. (See Benjamin M., supra, 70 Cal.App.5th at p. 745 ['While we cannot know how Father's brother would answer the inquiry, his answer is likely to bear meaningfully on the determination at issue about his brother.'].)" (In re Antonio R. (2022) 76 Cal.App.5th 421, 435.)
Although Mother had a lengthy and extensive juvenile dependency history since 1999, resulting in the removal of 11 of her children who were the Children's biological siblings, there is no evidence in the record in this appeal revealing the extent of the ICWA inquiries conducted in the other cases. Therefore it would be improper speculation to assume the Children have no Native American ancestry, where this court has not been provided with any evidence of full ICWA inquiry compliance in the other siblings' separate cases. Furthermore, subsequent to ICWA findings in those cases, ICWA laws regarding inquiry compliance may have changed or there may have subsequently surfaced new information and contacts bearing on the determination of the Children's Native American ancestry.
We therefore conclude CFS's failure to inquire of five of the Children's extended relatives about Native American ancestry is prejudicial error because there was readily obtainable information from them that was likely to bear meaningfully upon whether the Children are Native American children. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) Accordingly, we conditionally reverse the order terminating parental rights, and remand with directions CFS conduct a sufficient inquiry under ICWA.
V. DISPOSITION
We conditionally reverse the order terminating parental rights and remand the matter to the juvenile court with directions to comply with the inquiry provisions of sections 224.2 and 306. The juvenile court shall order that within 30 days of the remittitur, CFS perform its initial inquiry of the Children's potential Native American ancestry consistent with this opinion. If, after completing the initial inquiry, there is no reason to believe the Children are Native American, the court shall reinstate its order terminating parental rights. If the inquiry produces information substantiating Native American ancestry, the court shall vacate the order and proceed in compliance with ICWA and related California law.
We concur: RAPHAEL J., MENETREZ J.