Opinion
C094857
11-19-2024
In re G.A., a Person Coming Under the Juvenile Court Law. v. S.A., Defendant and Appellant. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Super. Ct. No. STK-JV-DP-2019-0000302)
OPINION ON TRANSFER
Duarte, J.
S.A. (mother) appeals from the juvenile court's order terminating parental rights and ordering the minor be placed for adoption. (Welf. &Inst. Code, § 366.26.) She contends the San Joaquin County Human Services Agency (Agency) and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), because the Agency did not contact extended family members to inquire about the ICWA and the juvenile court made no findings regarding the Agency's compliance in that regard. Mother adds that no express ICWA findings were made by the juvenile court during the course of the proceedings, compounding the error, and asks for remand for ICWA compliance.
Undesignated statutory references are to the Welfare and Institutions Code.
We previously affirmed the orders with directions to the juvenile court to enter its ICWA finding on remand. Subsequently, our Supreme Court granted mother's petition for review and ultimately transferred the case back to us with directions to vacate our prior decision and reconsider the matter in light of In re Dezi C. (2024) 16 Cal.5th 1112 (Dezi C.). We vacated our decision. Counsel did not file any further briefs, and the matter was deemed submitted. Upon reconsidering the cause in light of Dezi C., we conditionally reverse the orders of the juvenile court and remand for further compliance with the ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
Because the issue on appeal is limited to ICWA compliance, we dispense with a detailed recitation of the underlying facts and procedure.
On July 30, 2019, the Agency filed a section 300 petition on behalf of newborn minor G.A., alleging the minor came within the provision of section 300, subdivision (b), failure to protect, and section 300 subdivision (j), abuse of sibling. In the detention report, the social worker reported asking mother and the alleged father if they had any Native American ancestry, which they both denied. Based on those responses, the social worker reported that there was no reason to believe the minor was an Indian child within the meaning of the ICWA.
At the July 31, 2019, detention hearing, the juvenile court appointed counsel and a guardian ad litem (GAL) for mother. Mother informed the court that she did not have any Native American ancestry. The court ordered the minor detained in protective custody and granted supervised visitation for mother. On August 12, 2019, the Agency filed ICWA-20 forms completed and signed by mother and father, indicating no Native American ancestry. At the August 21, 2019, jurisdictional hearing, mother submitted, and the court found the allegations of the petition true. On September 24, 2019, the court found father was the minor's biological father.
On February 4, 2020, the Agency filed a disposition report, reporting that there was no reason to believe the minor was an Indian child within the meaning of the ICWA, based on the parents' signed ICWA-20 forms. The report showed that mother declined to participate in the family background interview, and that as a result, the Agency used the information obtained from a February 2016 report in a dependency case involving the minor's half sibling. It was reported that a maternal aunt was unresponsive to phone calls and messages left by the Agency to inquire about placement, as well as a letter sent in September 2019. Mother provided additional information about family members and the Agency made efforts to contact relatives about placement with no success. The Agency recommended bypassing mother for reunification services pursuant to section 361.5, subdivision (b) (10) and (11).
The Agency's September 28, 2020, supplemental disposition report reflected that there was no reason to believe the minor was an Indian child within the meaning of the ICWA based on the ICWA-20 forms completed by mother and father. At the January 14, 2021, continued contested dispositional hearing, the court heard additional testimony and ordered that the parents not be provided with reunification services. The Agency's February 9, 2021, status review report opined there was no reason to believe the minor was an Indian child within the meaning of the ICWA based on the parents' ICWA-20 forms. In the Agency's April 22, 2021, section 366.26 report, it recommended terminating the parents' parental rights and freeing the minor for adoption. The Agency reported no reason to believe the minor was an Indian child within the meaning of ICWA.
On July 28, 2021, the Agency filed a status review report showing that the minor was in the home of the prospective adoptive parents. The report again reflected that ICWA did not apply based on the ICWA-20 forms. At the September 16, 2021, contested section 366.26 hearing, the juvenile court found notice was given and terminated parental rights as to both mother and father, freeing the minor for adoption. The court made no findings related to the ICWA.
Mother timely appealed; after record preparation and multiple continuances in the briefing schedule, the case was fully briefed on April 22, 2022, and assigned to this panel thereafter. The matter was submitted on June 21, 2022.
DISCUSSION
Mother contends the Agency failed to make an adequate inquiry of extended family members to determine if the minor had Indian ancestry, and the juvenile court made no orders or findings in that regard. She adds that the court failed to make findings on the application of the ICWA in this case, compounding the error. We conclude that under Dezi C., further ICWA inquiry is required in addition to the entry of ICWA findings.
I
Applicable Law
"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 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).)
Section 224.2, subdivision (e) provides that if the court or social worker has reason to believe that an Indian child is involved in a proceeding, the court or social worker shall, as soon as practicable, make further inquiry regarding the possible Indian status of the child. As relevant here, further inquiry includes interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.3. (§ 224.2, subd. (e).)
Section 224.3, subdivision (a)(5) includes the name, birth date and birthplace of the Indian child, if known; the name of the Indian tribe; and the names and other identifying information of the Indian child's biological parents, grandparents, and greatgrandparents, if known.
"[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency'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 Agency '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; see Dezi C., supra, 16 Cal.5th at pp. 1147-1148.) Not every error by a child welfare agency 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 agency."' "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.)
II
Failure to Make ICWA Finding
As a preliminary matter, mother contends the juvenile court failed to make ICWA findings, including finding the Agency satisfied its obligation to inquire. County counsel agrees, as do we.
A juvenile court must make findings as to the applicability of ICWA and its failure to do so is error. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 704-705, 709.) Findings may be express or implied; when they are implied, the record must "reflect that the court considered the issue and decided whether ICWA applies." (In re Asia L. (2003) 107 Cal.App.4th 498, 506.) In Asia L., the appellate court concluded the juvenile court implicitly found the ICWA did not apply when it "expressly found that 'notice had been given pursuant to ICWA' and then proceeded to terminate appellants' parental rights under the usual rather than the heightened ICWA standards." (Id. at p. 506.) In In re A.M. (2020) 47 Cal.App.5th 303 at pages 313 and 318, the appellate court found the juvenile court implicitly found the ICWA did not apply when it terminated the mother's parental rights and found the child adoptable. But in that case the juvenile court had made previous express findings the ICWA did not apply prior to the section 366.26 hearing, and the hearing report noted no new information had been provided.
Here, the juvenile court made no findings as to the adequacy of the Agency's inquiry or whether the ICWA applied. While the Agency reported no reason to believe the minor was an Indian child based on its limited inquiry, the court did not inquire of counsel or make any findings. We cannot properly conclude the court considered the issue and decided the Agency's inquiry was adequate and the minor was not an Indian child. The court erred when it failed to make these findings.
III
Agency Inquiry
While conceding the juvenile court failed to make an ICWA finding, the Agency contends any error was harmless because the Agency satisfied its duty of inquiry and there was no reason to believe the minor was an Indian child. Mother cites section 224.2, subdivision (b), which imposes a duty to inquire about Indian ancestry if a child is placed in the temporary custody of a welfare department (§ 306) or probation department (§ 307) and contends "the only prejudice that [she] needs to show is that there were sources of information readily available to respondent that were not consulted." We agree.
Here, mother informed the juvenile court that she did not have any Native American ancestry. The Agency then spoke with both parents about the minor's possible Native American ancestry and they denied any such ancestry. But the record reflects that the Agency either failed to ask or failed to document any attempts to inquire with any extended family members about the minor's heritage. While the Agency did make some attempts to contact relatives about placement with no success, we cannot assume that these relatives would not have responded to any efforts at an ICWA inquiry, had the Agency attempted such an inquiry. Additionally, the Agency only specifically listed one relative, the maternal aunt, as a person it attempted to contact. The Agency reported that it discussed "additionally family members and family finding efforts" with the mother, but the details of those efforts and any attempted contacts with these family members are not listed in its reports. On this record, it does not appear that the Agency made an adequate inquiry. Thus, we are compelled to conditionally reverse the orders of the juvenile court and remand the case for further proceedings related to compliance with the ICWA. (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].)
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 Agency 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 enters an ICWA finding on the record that 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: Hull, Acting P. J., Renner, J.