Opinion
E082787
07-25-2024
In re N.B. et al., Persons Coming Under the Juvenile Court Law. v. R.G., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J287345, J290342. Cara D. Hutson, Judge. Conditionally reversed and remanded with directions.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MCKINSTER ACTING P. J.
R.G. (mother) appeals from the juvenile court's order terminating her parental rights to her daughters, N.B. and D.B., who are now four years old and two years old, respectively. (See Welf. &Inst. Code, § 366.26; all further undesignated statutory references are to this code.) Mother challenges the termination order on grounds that San Bernardino County Children and Family Services (CFS) failed to inquire of "all available" maternal and paternal relatives regarding N.B. and D.B.'s Native American ancestry, as expressly ordered to do so by the juvenile court. As is undisputed, CFS was not entitled to ignore this case-specific inquiry directive any more than a party may disregard other court orders. It appears CFS did not attempt to contact 10 known relatives despite the court's order and did not reach out to an 11th (the paternal grandfather) after an earlier call was not returned. As we explain, the inquiry omissions were not harmless under California law (§ 224.2, subds. (a)-(e)) effectuating the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). Consequently, the parental rights termination order is conditionally reversed to correct the error, subject to reinstatement as we spell out in our disposition below.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue mother raises on appeal relates to ICWA inquiry, we only briefly summarize the girls' dependency history. Even abridged, that history is lengthy and yet CFS acknowledges almost a dozen extended relatives were not asked about the family's potentially multi-tribe Indian background.
ICWA (enacted in the 1970's) and corresponding California statutes use the term "Indian," so we regularly do the same for consistency. (See In re Benjamin M. 70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).) "[M]any" stakeholders and policymakers now prefer other identifying language "such as 'Native American' or 'indigenous'" (ibid.), which we also use.
Within months of N.B.'s birth in late 2020, a referral alleging domestic violence between mother and father, with mother as the aggressor, was substantiated. N.B. entered foster care, CFS filed a dependency petition based on domestic violence and other grounds (§ 300, subd. (b)), the juvenile court sustained the petition at a combined jurisdiction and disposition hearing, and N.B. was placed with a maternal great aunt.
Around the time of N.B.'s six-month review hearing in August 2021, D.B. was born and promptly also detained in foster care. CFS filed a dependency petition noting N.B.'s open case and, given ongoing concerns regarding mother and father's violent conduct, the juvenile court subsequently sustained dependency jurisdiction over D.B. and she was placed in foster care.
Then, after N.B.'s 12-month review hearing, CFS filed a supplemental petition (§ 387) to remove her from the maternal great-aunt's home based on multiple domestic disputes requiring law enforcement response to the residence, as well as allegations that N.B. was not being cared for by an approved relative. The juvenile court concluded at the hearing on the section 387 petition that N.B.'s removal was proper and kept N.B. in an interim foster care placement, apparently separate from D.B.'s placement.
The court terminated father's reunification services as to D.B. at D.B.'s sixmonth review hearing for lack of progress, but continued mother's services. By the time of N.B.'s final status review and permanency planning hearing (§ 366.22) in May 2022, the court also terminated father's reunification services as to N.B. Mother, however, had made enough progress that the court returned N.B. to her care, under continuing supervision. The return was short-lived.
Within two months of N.B.'s placement with mother, CFS filed a supplemental petition (§ 387) to redetain her because mother allowed father unsupervised contact. D.B. had been on an extended trial visit with mother at the same time; hence, a corresponding subsequent petition (§ 342) brought her back into agency custody. The girls were placed together in foster care and then moved placements to live with a maternal uncle while awaiting a court hearing on the sections 387 and 342 petitions.
The court sustained the petitions at a combined hearing in September 2022. Because mother was already six months past the permanency planning hearing date for N.B. (see § 366.22), the court terminated her reunification services as to N.B. and bypassed further reunification services for D.B. (§ 361.5, subd. (b)(10).) The court then set a permanent plan selection and implementation hearing. (§ 366.26.)
Pending that hearing, yet another section 387 supplemental petition became necessary in January 2023, when the maternal uncle allowed mother unsupervised contact with the children. An amended petition further alleged the children had unexplained marks and bruises, which a subsequent medical exam for D.B. determined were "inflicted trauma, physical abuse." The court sustained N.B.'s and D.B.'s removal from the maternal uncle's home and identified adoption as their preferred permanent plan, but tabled terminating parental rights in the absence of prospective adoptive parents.
In August 2023, with the children finally placed in the home of caregivers interested in adopting them, the court set a new permanent plan selection and implementation hearing. At that hearing in December 2023, the juvenile court found the children adoptable and that no exceptions to termination of parental rights applied. The court terminated mother's and father's parental rights, which mother alone appeals on ICWA inquiry grounds.
Meanwhile, soon after N.B. and then D.B. became court dependents, mother and father had a third child together, A.G., who was also taken under the juvenile court's protection in a separate dependency matter under a different case number. That case proceeded on a slightly different timeline. On our own motion, we take judicial notice of the fact that we recently ordered conditional reversal of the termination of mother's and father's parental rights as to A.G. so that further ICWA inquiry of A.G.'s paternal relatives could be completed. (In re A.G. (June 5, 2024, E082662) [nonpub. opn.]; see Evid. Code, §§ 452, subd. (d), 459, subd. (a) [judicial notice provisions].) Mother did not challenge the ICWA inquiry regarding her relatives in that case, as she does here.
Mother's ICWA challenge in N.B.'s and D.B.'s dependency proceedings require only a limited sketch of CFS's and the juvenile court's ICWA inquiry efforts to demonstrate that conditional reversal is necessary in this case, too.
CFS filed with its initial dependency petition concerning N.B. an Indian Child Inquiry Attachment, Judicial Council Forms, form ICWA-010; the form stated CFS had "reason to believe the child is or may be an Indian child." Specifically, the form included a checkmarked box indicating N.B. "is or may be a member of or eligible for membership in a tribe" and identified the tribal entity as the Fort Mojave Indian Tribe (FMIT) located in Needles, California.
At N.B.'s detention hearing, when the juvenile court asked, "Do you have any Native American ancestry," mother answered, "Mojave," and father replied, "Cherokee and Blackfoot," with mother confirming she was an enrolled member and father stating he was not.
Most of CFS's ICWA inquiry throughout the remainder of the case was directed at establishing that while mother and her mother, i.e., the children's maternal grandmother (MGM), were enrolled FMIT members, the tribe confirmed on multiple occasions that N.B. and D.B. were not eligible to enroll.
Thus, in a letter following N.B.'s jurisdiction hearing, FMIT's enrollment department informed CFS that, "[a]lthough her mother and maternal grandmother . . . are Fort Mojave Tribal Members, this child would not meet the enrollment criteria . . . because of not meeting the blood quantum criteria." The tribe's social services director also indicated by letter that because one parent was not an enrolled member, "therefore, their child is ineligible for Tribal Membership." Nevertheless, FMIT representatives regularly appeared at hearings and otherwise remained engaged with the family because the children were FMIT descendants.
As a result of CFS's inquiries of mother, father, MGM, and two extended paternal relatives-a paternal grandmother and aunt-CFS sent to numerous tribes a Notice of Child Custody Proceeding for Indian Child, Judicial Council Forms, form ICWA-030 (hereafter -030 notice or packet). The -030 packets included biographical data such as the date and place of birth for mother, father, and some extended relatives, including MGM. The noticed tribes included FMIT based on mother's background and, as to father, the Blackfeet Tribe of Montana, two bands of Cherokee-one in Oklahoma and the other in North Carolina, and the Cherokee Nation of Oklahoma.
Curiously, without any explanation evident in the record, CFS also sent -030 notice packets to: (1) the Navajo Nation in Window Rock, Arizona; (2) a Navajo "satellite community" in New Mexico known as the Ramah Navajo School Board, Inc.; and (3) the Colorado River Indian Tribes. CFS's -030 notices to the tribes and to the Bureau of Indian Affairs identified as mother's potential Native American "Tribe or band" affiliations not just FMIT, but also the foregoing Navajo entities. The notice added regarding the Colorado River Tribes a possible affiliation with both a "Navajo" branch or band and a "Mojave" one.
The notices indicated that mother's potential affiliation with the Mojave offshoot of the Colorado River Tribes derived from MGM and the children's maternal great-grandmother (MGGM), and the notices included thorough biographical data for MGM and MGGM, including their respective places and dates of birth and (if applicable) death, as well as current and former addresses.
The -030 notices sent to each tribe indicated-again without any supplementary information anywhere in the record-that mother's potential Navajo affiliation derived from her maternal grandfather (MGGF). It identified as tribal affiliations for him: the Navajo Nation, the Ramah Navajo School Board, Inc., and the Navajo branch of the Colorado River Indian Tribes. Neither the -030 notices nor anything else in the record provided-other than his name-any biographical data for MGGF that might be useful for a tribe to locate him among its records. As we discuss post, mother instructed CFS not to contact the majority of MGGF's children, i.e., the children's maternal greataunts and an uncle, and CFS abided by that stricture rather than the juvenile court's instruction to contact "all available relatives."
Specifically, at the detention hearing in July 2022 on the subsequent and supplemental petitions (§§ 342, 387), the court expressly ordered CFS to "make sure we've had inquiry of all available relatives." The court explained it wanted to ensure "there's no contrary information" to undercut finding ICWA did not apply.
At the hearing on the sections 342 and 387 petitions in October 2022, the court again ordered CFS to "show clear documentation that we have spoken to every relative." The court noted "there's been a determination that ICWA does not apply," which the court cautioned was provisional because "we were very much focused on the Fort Mojave tribe for obvious reasons but there are a number of relatives throughout the life of the case and I don't show clear documentation that we have spoken to every relative." The court continued: "So I'm going to ask the Agency to review that and I'll set a review to ensure. I can tell you that on the paternal side I only show that we've only spoken to the paternal grandmother. So I'll order the father to provide any additional relative information and there are a number of maternal aunts and uncles that are mentioned." The court anticipated "we will likely get the same information and ICWA will not apply," but expressly told CFS "to comply with our duty of inquiry, so I'll order that that be done and continue."
CFS's half-page report for the ICWA review hearing continued to focus on mother's FMIT ties; the report did not indicate any inquiry into mother's or MGGF's Navajo ancestry reflected in the -030 notices. In particular, CFS contacted the maternal uncle with whom the children were placed at that time (Christopher), eliciting that he had unspecified "Native American Ancestry," as did Christopher's mother Jacqueline, one of the children's four maternal great-aunts. CFS made calls and sent emails to FMIT "concerning the family Native American Ancestry," but did not hear back.
The report also reflected that upon CFS contacting mother again, she reported that her three other aunts and an uncle (Margo, Melissa, Josephine, and Richard) all had "Native American Ancestry," as CFS again recorded in its report without any tribal specification. As to these relatives, mother "did not want to give their phone number, and she did not want them involved in the case." CFS's appellate brief acknowledges several of these individuals "lived in the same [apartment] complex as maternal grandmother," where the children had previously been placed with one of the greataunts. CFS also did not contact other maternal relatives living in the same complex about mother's or MGGF's Navajo or other Indian background, including mother's siblings (Aliza and Christina) and a first cousin (Psalm).
At the ICWA review, the deputy county counsel reviewed efforts to contact maternal extended family members and the court focused on ICWA inquiry efforts regarding the paternal side of the family. Neither counsel nor the court addressed what information had prompted CFS to send out -030 ICWA notices to the Navajo tribes, nor what inquiry efforts, if any, had been made regarding that tribal heritage. The court "order[ed] the parents to provide any additional relative information," but found that "based on what we have . . ., I find that ICWA does not apply today."
The court confirmed it set the upcoming ".26 date" to select and implement a permanent plan for the children, and subsequently the court received updated paternal relative information that included an uncle (Tristan) that CFS acknowledges it did not contact. At an ensuing hearing before the court terminated parental rights, the court recounted that at the earlier ICWA review hearing it had "hear[d] all of the ICWA-related investigation" available to that date and "received all the evidence . . . and made a finding that the children were not Indian children within ICWA" based on that evidence. The court concluded it "d[id] not believe an [additional] ICWA hearing is required."
Over the life of the case, custody warrants preceded each of the many instances in which N.B., D.B., or both children were removed from parental or caregiver custody.
DISCUSSION
CFS concedes that its initial ICWA inquiry (§ 224.2, subd. (a)) at the outset of the proceedings gave rise to a "reason to believe" an Indian child might be involved to the extent N.B. or D.B. may have been eligible for membership in FMIT, and hence it had a duty to inquire of extended relatives regarding that possibility. (§ 224.2, subd. (e).) Relying on In re Robert F. (2023) 90 Cal.App.5th 492 (Robert F.), review granted July 26, 2023, S279743, and its progeny, CFS contends based on the existence of warrants (§ 340) in each removal of the children from the parents or caretakers, no general duty of inquiry of extended relatives was required (§ 224.2, subd. (b)), once the children's eligibility for FMIT membership was ruled out. In the alternative, CFS argues any error in not making extended relative inquiries beyond what it did was harmless.
Mother advances two arguments. First, she relies on the line of cases beginning with In re Delila D. (2023) 93 Cal.App.5th 953, review granted September 27, 2023, S281447, holding that a warrant does not obviate inquiry of extended relatives necessary under section 224.2, subdivision (b), to meet the objectives of ICWA and state law. Mother's second argument, which CFS does not address, relies on Robert F.'s directive that-even where detention is by a warrant-"case-specific" circumstances may require social workers to interview extended family members. (Robert F., supra, 90 Cal.App.5th at p. 504.) We agree with mother's latter contention and therefore need not reach the first.
While holding that a warrant exempts social service agencies from a duty of inquiry of extended relatives under section 224.2, subdivision (b), Robert F. nevertheless directed that "case-specific circumstances may require the department to interview extended family members .... For instance, if the parents deny any Indian ancestry, but a family member later contacts the social worker and volunteers that the family has Indian ancestry, then the department cannot ignore that claim. It has a duty to follow up on the information as part of its 'affirmative and continuing duty to inquire.' (§ 224.2, subd. (a).)" (Robert F., supra, 90 Cal.App.5th at p. 504.)
Here, the juvenile court's order in preparation for its ICWA review hearing required CFS to interview all available extended relatives. CFS was not entitled to "ignore" this case-specific inquiry requirement (Robert F., supra, 90 Cal.App.5th at p. 504) any more than a party may disregard other court orders. CFS does not contest this point but instead asserts that any failure to meet its inquiry duty and fulfill the court's inquiry order was harmless. We do not agree.
CFS acknowledges that despite the juvenile court's order to contact all maternal and paternal relatives for the court's ICWA review, it failed to attempt to contact eight known individuals on mother's side of the family and two on father's side. These included the children's maternal great-uncle Richard, maternal great-aunts Josephine and Melissa, maternal first cousin once removed Psalms, step maternal grandfather Michael, maternal aunts Aliza and Christina, and a maternal grandfather. On father's side, CFS admits that paternal uncles Joseph and Tristan were never approached or interviewed and that while a message was left for the children's paternal grandfather at the outset of N.B.'s dependency, no follow up was made to comply with the juvenile court's order to contact all relatives for the ICWA review.
The standard for assessing prejudice for ICWA-related inquiry error is subject to conflicting decisions statewide and is under review by the high court. (In re Dezi C. (2022) 79 Cal.App.5th 769, 777-782, review granted Sept. 21, 2022, S275578.) In the meantime, we apply the harmless error standard articulated by this court in Benjamin M., supra, 70 Cal.App.5th 735. Failing to ask extended family members about Indian ancestry is prejudicial if "the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Id. at p. 744.)
CFS excuses its failure to contact so many of mother's extended family members because it apparently assumed "they were . . . members or descen[dan]ts of the FMIT themselves." On this assumption, CFS argues: "It is highly speculative to conclude that perhaps one of the maternal relatives that was not interviewed possessed information indicating that the children may have Indian ancestry t[h]rough a different tribe unknown to the mother, maternal grandmother and the other maternal relatives that were interviewed." (Original italics.)
The flaw in this argument is that the record gives no indication that CFS inquired about mother's and MGGF's Navajo heritage. CFS was diligent in confirming with tribal authorities that N.B. and D.B. were not eligible for enrollment in FMIT, but the record indicates in the -030 notices one or more strands of Navajo ancestry for mother and MGGF. That tribal background was sufficient for CFS to send ICWA notices to three Navajo bands or entities. The nature of the affiliation is unclear but CFS cannot profit from the fact that nothing in the record shows CFS asked any of mother's relatives about that history, despite the trial court's order to inquire of all available relatives. Given disclosure of mother's potential Navajo background and the court's direct order for inquiry of all relatives, CFS had a case-specific "duty to follow up on th[at] information." (Robert F., supra, 90 Cal.App.5th at p. 504.)
In particular, while MGGF is deceased, it may have been fruitful to inquire of his children about his Navajo heritage, even though-or indeed because-mother told CFS not to contact four of them, i.e., three of her aunts and an uncle. Fractured family relationships can highlight a need for agency contact with extended family members. (See In re G.H. (2022) 84 Cal.App.5th 15, 31 [the father was estranged from his mother, the child's paternal grandmother, who was "the sole surviving conduit to the family's reputed Native American background"]; see also In re M.B. (2022) 80 Cal.App.5th 617, 622, 627-630 [the mother identified her paternal grandfather as "definitely Indian," but was estranged from that side of family; inadequate agency attempts to contact maternal extended family members not rectified by postjudgment efforts].) CFS knew of the claimed Navajo heritage connecting mother and MGGF, but the record is devoid of any indication CFS attempted to flesh it out.
CFS contends it was not obligated to contact great-aunts or uncles or anyone not listed in the definition of "extended family members" in California law implementing ICWA. (§ 224.1, subd. (c); see 25 U.S.C. § 1903(2).) To the contrary, however, the duty of inquiry is necessarily flexible and extends to "any other person that may reasonably be expected" to have information about a child's tribal affiliation. (§ 224.2, subd. (e)(2)(A)-(C).) This directive is encompassed in the trial court's order for CFS to contact "all relatives," which CFS was not at liberty to ignore. (Robert F., supra, 90 Cal.App.5th at p. 504.)
The scanty biographical information CFS provided to the Navajo tribes further illustrates that CFS's maternal relative inquiry omissions were not harmless. CFS gave in its -030 notices only MGGF's name, not places or dates of his birth or death, other identifying information such as addresses, or intermediate Navajo ancestors that may have been elicited in a complete inquiry. Absent this information, tribes inundated with notices regarding a potential right to intervene in proceedings around the country conceivably may not allocate scarce resources to respond to deficient ones. Or, as reflected in the Ramah Navajo School Board's response to CFS's -030 notice, a "small satellite [tribal] community" may not have the tribe's "entire . . . records" and hence may not be able to confirm or deny enrollment eligibility on the information provided.
A competent CFS inquiry is necessary precisely because tribes ultimately make the determination whether a dependent child is eligible for membership. (In re S.R. (2021) 64 Cal.App.5th 303, 316-317.) Thus, child protective agencies are "charged with obtaining information to make that right meaningful." (Benjamin M., supra, 70 Cal.App.5th at p. 745.) That did not happen here when CFS failed to contact so many known maternal relatives despite the trial court's order. "While we cannot know how [these relatives] would answer the inquiry" regarding mother's and MGGF's Navajo ancestry, "[their] answer is likely to bear meaningfully on the determination at issue." (Benjamin M., at p. 745.) Remand is therefore necessary for CFS to promptly complete this inquiry.
We do not reach whether CFS's conceded inquiry omissions regarding paternal relatives were harmless or whether it was prejudicial as in In re A.G. Because remand is required here, there is no reason for CFS not to abide by the court's direct order to inquire of all available relatives, including the three omitted paternal ones.
Though father did not appeal, reversal of the termination order operates to his benefit as well (see Cal. Rules of Court, rule 5.725(a)(1), (f)), unless and until the order is reinstated. (In re Mary G. (2007) 151 Cal.App.4th 184, 208.)
DISPOSITION
The juvenile court's order terminating parental rights is conditionally reversed. On remand, the court shall direct CFS to provide the court, if it has not already done so, with a supplemental statement or report of CFS's efforts to obtain information from the available maternal and paternal relatives. If, after completing this inquiry, neither CFS nor the court has reason to believe or know that N.B. or D.B. is an Indian child, the order terminating parental rights shall be reinstated. If instead the court has reason to believe they are Indian children, the court shall proceed in compliance with ICWA and corresponding state law.
We concur: CODRINGTON J., RAPHAEL J.