Opinion
A151743
03-12-2018
In re I.V., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. J.A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 4870DEP)
J.A. (Father) appeals an order of the juvenile court terminating his parental rights to his biological daughter, I.V. (Minor). (Welf. & Inst. Code, § 366.26.) He contends the Sonoma County Social Services Department (the Department) and the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act of 1978. (25 U.S.C. § 1901 et seq. (ICWA); see also Welf. & Inst. Code, § 224 et seq.) We shall conditionally reverse the order and remand the matter for further inquiry into Minor's Indian status.
All undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
This matter was previously before this division when Father petitioned for extraordinary relief under California Rules of Court, rule 8.452, asking us to vacate the juvenile court's order setting a hearing pursuant to section 366.26. (J.A. v. Superior Court (May 8, 2017, A150664) [nonpub. opn.].) We shall not repeat the facts recited in that opinion except where necessary to consider the limited issue now before us.
The Department filed a petition pursuant to section 300 on behalf of Minor, then six years old, in April 2016, on the ground that the child's mother, A.V. (Mother) had failed to provide adequate care and supervision and that Father's whereabouts were unknown. Father was incarcerated in Oregon at all times relevant to this dependency proceeding; his expected release date is April 7, 2020.
Mother is not a party to this appeal.
The Department's May 2016 jurisdiction/disposition report explained that at the detention hearing, a woman who identified herself as the paternal grandmother stated that Father had Indian ancestry, but she did not provide any further details about the ancestry. The Department's relative coordinator made telephone calls to Father's mother (Grandmother), but the calls were not answered. During an investigation that took place in 2010 when Grandmother sought to be appointed Minor's guardian, Father and Grandmother were both interviewed, but neither claimed Native American heritage. The jurisdiction/disposition report concluded: "Given the alleged father's limited standing in this Court, the vague nature of the assertions of possible Indian ancestry made by a third party, and the determination that ICWA did not apply in the matter of the child's proposed Guardianship by the alleged paternal grandparent, it is not possible to definitively establish at this time that ICWA does apply to this case. Therefore, the Department is asking the Court to make a finding that ICWA does not apply to this matter. It is incumbent upon the Department to continue the inquiry, however, particularly since, given the mother's lack of responsiveness to the Department both historically and currently, this child is likely to become freed for Adoption at some point in the not too distant future. Additionally, the alleged father's status may, at the Court's discretion, be elevated to presumed, which would make it imperative to clarify this matter."
At the May 2016 jurisdiction/disposition hearing, Mother told the court Father had said he had Native American heritage, but she did not know of any specific tribe with which he might be affiliated. A social worker informed the court that she had spoken to a paternal aunt, "David," the only paternal relative she had been able to reach, and the aunt reported the family did not have Native American heritage. The juvenile court found the information regarding possible Indian ancestry on Father's side was "too speculative, remote and uncertain and does not provide the Court with reason to know that the child is an Indian child," and that ICWA did not apply to the case.
In its November 2016 status review report, the Department explained that Father had recently told a social worker that he believed there might be Native American heritage in his family and that Grandmother might have more information. The report continued, "As noted in the Jurisdiction/Disposition report, [Grandmother] was previously asked to provide additional information regarding Native American heritage, but did not provide further information to the Department. As such, no new or additional information has been provided which would indicate that ICWA may apply."
The Department had originally given notice of the proceedings to someone other than Father, who shared his name and was incarcerated in Texas. Through counsel, Father notified the court of his true whereabouts in October 2016.
In February 2017, the juvenile court found Father was a mere biological father rather than a presumed father and was not entitled to reunification services, terminated reunification services as to Mother, and set a hearing pursuant to section 366.26. It found that "[t]he information provided by a parent or other interested person concerning the child's possible Indian ancestry on the father's side is too speculative, remote and uncertain and does not provide the Court with reason to know that the child is or may be an Indian child," and that ICWA did not apply to the case.
In J.A. v. Superior Court, this division upheld the juvenile court's decision to deny Father presumed father status. (See In re Jerry P. (2002) 95 Cal.App.4th 793, 801 [presumed father, unlike alleged father or mere biological father, entitled to reunification services and custody of child].)
The report prepared for the section 366.26 hearing did not provide any new information on the applicability of ICWA to the case. The juvenile court held a section 366.26 hearing and, on May 24, 2017, terminated Mother and Father's parental rights and freed Minor for adoption.
Minor was living with foster parents who wanted to adopt her.
II. DISCUSSION
Father contends the Department and the juvenile court failed to comply with ICWA's inquiry and notice requirements. "ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. [Citations.] ICWA defines an Indian child as any unmarried person who is under age 18 and is either (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).) [¶] When a court 'knows or has reason to know that an Indian child is involved' in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child's tribe notice of the pending proceedings and its right to intervene. [Citations.] Alternatively, if there is insufficient reason to believe a child is an Indian child, notice need not be given. [Citations.]" (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538 (Shane G.).) The California Legislature has codified ICWA's notice requirements. (§ 224 et seq.; In re Damian C. (2009) 178 Cal.App.4th 192, 196; see also Cal. Rules of Court, rule 5.480 et seq.)
"The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child, including . . . a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe. [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is in a predominantly Indian community. [¶] (3) The child or the child's family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service." (§ 224.3, subd. (b).) "If these or other circumstances indicate a child may be an Indian child, the social worker must further inquire regarding the child's possible Indian status. Further inquiry includes interviewing the parents, Indian custodian, extended family members or any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. [Citation.]" (Shane G., supra, 166 Cal.App.4th at p. 1539; § 224.3, subd. (c).) The duty of inquiry is "affirmative and continuing." (§ 224.3, subd. (a).) If the inquiry causes the social worker or court to know or have reason to know an Indian child is involved, the social worker must provide notice to any tribes of which the child may be a member or eligible for membership, or, if no tribe can be determined, to the Bureau of Indian Affairs (BIA). (In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); §§ 224.2, subd. (a), 224.3, subd. (d).)
"We review the trial court's findings whether proper notice was given under ICWA and whether ICWA applies to the proceedings for substantial evidence. [Citation.] Deficiencies in ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child. [Citations.]" (In re D.N. (2013) 218 Cal.App.4th 1246, 1251; accord, In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467 (Hunter W.).)
It has also been held, however, that "[w]hen the facts are undisputed, we review independently whether ICWA requirements have been satisfied." (In re Michael V. (2016) 3 Cal.App.5th 225, 235, fn. 5 (Michael V.).)
Father contends the Department did not carry out an adequate inquiry into his possible Indian heritage. He points out that Grandmother told a social worker he had Indian ancestry, Mother told the court Father had Native American heritage, and Father told a social worker he might have Native American ancestry. He argues that the Department's efforts in inquiring into this ancestry were "practically nonexistent," and that it should have made further inquiries of paternal relatives who either attended hearings or were known to the Department. Moreover, Father argues, the information he and Grandmother provided about his Indian heritage was sufficient to trigger an obligation for the Department to provide notice to the Bureau of Indian Affairs (BIA) and any tribes of which he might be a member.
In the circumstances of this case, we agree that the Department did not conduct an adequate inquiry. We are guided by Michael V. The mother there initially denied having any Native American ancestry, but later filed a form indicating she might have Indian ancestry through her own mother. (Michael V., supra, 3 Cal.App.5th at p. 230.) The juvenile court ordered the social services agency to investigate the possible Indian ancestry. (Ibid.) The children's mother informed the agency that she had been told by a social worker during her own dependency proceedings seven years previously that her mother, who had never been part of her life, was a full-blooded Indian from two tribes, but she could not recall the names of the tribes. The agency searched the records from the mother's dependency case and found no indication the family had Indian ancestry and no mention of possible tribes. (Id. at pp. 230-231.)
The appellate court concluded that the mother's recollection of what she had been told, in the absence of corroborating information, was insufficient to require notice to the BIA. (Michael V., supra, 3 Cal.App.5th at pp. 234-235.) However, the court also concluded the agency's inquiry into her Indian ancestry was inadequate. Noting that " 'the duty to inquire is triggered by a lesser standard of certainty regarding the minor's Indian child status . . . than is the duty to send formal notice to the Indian tribes' [In re Alice M. (2008) 161 Cal.App.4th 1189, 1200]," the court concluded that the agency had not met its "affirmative obligation 'to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members' (§ 224.3, subd. (c); see Cal. Rules of Court, rule 5.481(a)(4)(A)) if a person having an interest in the child 'provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe' (§ 224.3, subd. (b)(1); see Cal. Rules of Court, rule 5.481(a)(5)(A))." (Michael V., 3 Cal.App.5th at p. 235.) Although the agency had checked its own records and reinterviewed the mother, the agency did not try to locate the maternal grandmother, interview the mother's two siblings, or ask the paternal relatives whether they had any information about the children's Indian ancestry through the mother. (Id. at pp. 235-236.) The appellate court therefore remanded the matter for the juvenile court to direct the agency to "conduct a meaningful investigation into [the mother's] claim of Indian ancestry, including making genuine efforts to locate other family members who might have information bearing on the children's possible Indian ancestry." (Id. at p. 236.)
The court in the recent case of In re Elizabeth M. (2018) 19 Cal.App.5th 768 (Elizabeth M.) reached a similar conclusion. The mother there had reported her family was part Red Tail Indian. Because Red Tail was not a federally recognized tribe, the social services agency conducted no further investigation of the dependent children's possible Indian ancestry, and the juvenile court found ICWA did not apply to the case. (Id. at p 786.) The agency sent notices to the BIA that said the mother was not Indian and that contained no names or biographical information for anyone other than the mother and child. (Id. at pp. 777-778.) The appellate court concluded the agency's investigation was inadequate. It noted that formal ICWA notice was required only where there was "information indicating a child may be a member of, or eligible for membership in, a federally recognized tribe." (Id. at p. 786.) However, the court concluded, when a parent or family member has provided information about a child's possible Indian ancestry—including "saying 'Indian' but providing no tribal name at all"—the agency is not relieved of its "affirmative obligation to interview family members and others who could be expected to have relevant information concerning the child's status or the court of its duty to ensure an appropriate inquiry has been conducted before concluding ICWA does not apply to the case." (Ibid.) The case was therefore remanded for the agency to "conduct a meaningful inquiry into [the] claim [of Indian ancestry], including making genuine efforts to locate family members who might have information bearing on [the children's] possible Indian ancestry." (Id. at p. 788; see also In re Andrew S. (2016) 2 Cal.App.5th 536, 548 [remanding for agency to conduct adequate investigation where it made no effort to develop additional information that might have substantiated father's belief he may have Indian ancestry by contacting his siblings or other extended family members].)
The same result follows here. Father, Mother, and a woman who appears to have been Grandmother had all reported Father had or might have Indian ancestry. As the Department itself recognized, this was sufficient to trigger the duty to inquire further into Minor's Indian status. However, the Department almost entirely failed to do so after its initial unsuccessful efforts to contact Grandmother by telephone. "Both federal and state law require more than has been done to date." (In re Andrew S., supra, 2 Cal.App.5th at p. 548.)
We emphasize that the duty of ICWA inquiry is "affirmative and continuing." (§ 224.3, subd. (a).) As our high court has explained, "the juvenile court ha[s] a continuing duty to inquire whether [a child is] an Indian child in all dependency proceedings, including a proceeding to terminate parental rights." (Isaiah W., supra, 1 Cal.5th at p 10.) Here, the Department acknowledged in its jurisdiction/disposition report that it was "incumbent" upon it to continue the ICWA inquiry. It appears from the record that the Department could have done so as the case progressed. At the beginning of the proceedings, the Department's relative coordinator made phone calls to Grandmother, but the calls were not answered. There is no indication that the coordinator left messages for Grandmother. The social worker told the court in May 2016 that she had spoken with a paternal aunt named "David," but the identity of this aunt is not clear from the record. Father told the Department in November that he might have Indian ancestry and that Grandmother might have more information, but it does not appear that anyone at the Department made additional efforts to discuss the matter with her. Father appeared by telephone at the January 24, 2017 hearing, and again at the May 10, 2017 hearing, but he was not questioned about his claim of Indian heritage. Two sisters of Father testified at the January 24 hearing, at which the social worker assigned to the case was also present. The status review report indicated the Department was in contact with Father's cousin, who had expressed interest in caring for Minor, and at a hearing on December 1, 2016, Mother's counsel informed the court of the cousin's telephone number.
In sum, the Department had access to multiple members of Minor's extended family who could have been questioned about Father's claim of Indian ancestry. Rather than conducting further inquiry, the Department relied solely on its initial failure to obtain additional information for its conclusion that ICWA did not apply to the case. In doing so, the Department failed to carry out its continuing duty of inquiry.
Some cases, on somewhat analogous facts, have found further inquiry unnecessary. (See In re J.L. (2017) 10 Cal.App.5th 913, 916, 923 ["family lore" that mother might have Indian heritage insufficient to trigger duty of further inquiry]; Hunter W., supra, 200 Cal.App.4th at pp. 1468-1469 [mother's information that she might have Indian heritage through father and paternal grandmother, without identifying tribe or relative who was member of tribe, too speculative to require further inquiry of relatives].) On the facts before us now, however, where Father, Grandmother, and Mother all indicated Father might have Indian heritage and paternal relatives were readily available, we conclude the Department's inquiry was inadequate.
Like the court in Michael V., however, we also conclude that the information before the court and the Department was too vague and uncertain, without further substantiation, to trigger the duty to provide ICWA notice to BIA or any tribes. (See Michael V., supra, 3 Cal.App.5th at pp. 234-235; see also In re Alice M., supra, 161 Cal.App.4th at p. 1200 ["the duty to inquire is triggered by a lesser standard of certainty regarding the minor's Indian child status . . . than is the duty to send formal notice to the Indian tribes"]; In re O.K. (2003) 106 Cal.App.4th 152, 157 [ICWA notice not required where information provided by paternal grandmother that the father "may have Indian in him" not based on any known Indian ancestors].)
We recognize some cases have indicated a mere "suggestion" of Indian ancestry is sufficient to trigger the notice requirement. (See, e.g., In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1407-1408 [father's claim that his grandparents were of Native American ancestry enough to trigger notice]; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257-258 [father's statement that he might have Cherokee Indian heritage and mother's statement that father had such heritage triggered ICWA's notice requirement]; In re Nikki R. (2003) 106 Cal.App.4th 844, 847-848 [relying on Antoinette S. and Dwayne P. for proposition that court needs only "a suggestion of Indian ancestry to trigger the notice requirement"; mother reported child's father had Cherokee heritage]; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165, 1167-1168 [" 'the bar is indeed very low to trigger ICWA notice' "; notice required where father stated his own father was a member of a Cherokee tribe].) The facts of these cases generally involve more specific information than the bare suggestion of Indian ancestry devoid of the name of a tribe or a relative who was a member of a tribe. The lines the courts draw in similar situations have not been entirely consistent. However, like the court in Michael V., we conclude that the information about Father's Indian ancestry was sufficient to trigger a duty to further inquiry but that it did not, standing alone, require the Department to provide ICWA notice.
III. DISPOSITION
The order terminating parental rights is conditionally reversed. The case is remanded to the juvenile court with directions to order the Department to investigate Father's claims of Indian ancestry in a manner consistent with this opinion. If the investigation produces additional information substantiating Father's claim, notice must be provided to any tribe identified or, if a tribe cannot be determined, to the BIA. If a tribe intervenes after proper inquiry and notice, the court shall proceed in accordance with the provisions of ICWA. If the Department's investigation produces no additional information to substantiate Father's claim, or if no tribe intervenes after receiving notice, the order shall be reinstated.
/s/_________
Schulman, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.