Opinion
F083909
06-20-2022
In re D.S., a Person Coming Under the Juvenile Court Law. v. DAVID S., Defendant and Appellant. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent,
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Stanislaus County, Super. Ct. No. JVDP-20-000073 Ann Q. Ameral, Judge.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
David S. (father) is the father of the child D.S., who is the subject of a dependency case. Father challenges the juvenile court's orders terminating his parental rights at a Welfare and Institutions Code section 366.26 hearing. Father's sole claim is that the Stanislaus County Community Services Agency (agency) failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA).
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The agency concedes that it failed to conduct further ICWA inquiry and notice to the tribes noted in father and mother's ICWA-020 forms, and does not oppose remand for the limited purpose of doing so. We agree with the parties and conditionally reverse the juvenile court's orders terminating parental rights and remand for proceedings to ensure ICWA compliance.
Tina J. is D.S.'s mother. She is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
We provide an abbreviated summary of the dependency proceedings and focus on the facts and background relevant to the narrow issue on appeal of the adequacy of the ICWA inquiry and notice.
Police responded to a domestic violence call on February 3, 2020, wherein mother reported father had punched her in the ear while D.S., then age six, and his eight-year-old half sibling D.J. were present. An arrest warrant was issued for father, who was on felony probation for domestic violence and not present when police arrived.
D.J. is a child not at issue in this appeal.
After mother later refused entry into the family home, the agency received a protective custody warrant authorizing removal of and placement of the children into foster care. Father was later arrested.
A section 300 petition was filed April 1, 2020, alleging the children were at risk of harm due to a history of domestic violence between mother and father and that mother, despite having a restraining order, allowed father to remain in the home.
The children were detained at the April 2, 2020, detention hearing. On that date, mother filed an ICWA-020 form stating she is or may be a member of, or eligible for membership in, a federally recognized Indian tribe, listing Cherokee and Apache. The juvenile court found that the ICWA may apply.
Father, who was in custody, completed an ICWA-020 on April 16, 2020. In it he stated he is or may be a member of or eligible for membership in the Cherokee tribe. He further checked that he may have Indian ancestry, Cherokee, and that one or more of his parents, grandparents, or other lineal ancestors is a member of a federally recognized tribe. His mother, June C., was specifically identified as a tribal member.
On May 6, 2020, the agency filed an ICWA-030 form containing information on mother and mother's relatives-names of maternal grandmother, grandfather, and great-grandmother and great-grandfather. However, other than father's name, date and place of birth, the ICWA-030 contained no information on father's family, despite father's assertion that his mother, the child's paternal grandmother, was a Cherokee tribal member. The form was sent to the Bureau of Indian Affairs, eight federally recognized Apache tribes and three federally recognized Cherokee tribes.
Neither parent appeared at the jurisdiction hearing July 14, 2020, and the juvenile court found the allegations of the petition true. At the contested disposition hearing August 13, 2020, the children were removed from parental custody and mother and father given reunification services.
On May 24, 2021, the agency filed a motion asking the juvenile court to determine the ICWA did not apply, indicating it had received responses from all noticed tribes that the child was not eligible for membership. On June 11, 2021, the juvenile court found the ICWA did not apply.
On August 12, 2021, after 12 months of reunification services, a contested hearing was held. Mother's reunification services were terminated due to a lack of effort. Father's services were continued, due to a lack of effort on the part of the agency to facilitate telephone visits for father, who was incarcerated.
At the 18-month review hearing held October 7, 2021, the juvenile court terminated father's reunification services and a section 366.26 hearing was set.
At the section 366.26 hearing February 4, 2022, the juvenile court terminated mother and father's parental rights and ordered adoption procedures be initiated.
DISCUSSION
"ICWA reflects a congressional determination to protect American Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; In re Austin J.[(2020)] 47 Cal.App.5th [870], 881 ….) To that end, ICWA established unique standards for the removal and placement of American Indian children. (25 U.S.C. § 1901 et seq.) Central to the protections of ICWA are procedural rules to determine whether an Indian child is involved. Federal regulations implementing ICWA require state courts to ask participants in child custody proceedings whether the participant knows or has reason to know the child is an Indian child. (25 C.F.R. § 23.107(a) ….) The court must also tell the parties to inform the court if the parties receive information giving them reason to know the child is an Indian child. (Ibid.)" (In re Josiah T. (2021) 71 Cal.App.5th 388, 401-402.)
The juvenile court and the agency have an "affirmative and continuing duty to inquire" whether a dependent child "is or may be an Indian child" in all dependency proceedings. (§ 224.2, subd. (a).) California's statutory scheme contains "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.)
After a "reason to believe" that an Indian child is involved has been established, further inquiry regarding the possible Indian status of the child is required. (§ 224.2, subd. (e).) The duty of further inquiry includes (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership; and (3) contacting tribes and anyone else that might have information regarding the child's membership or eligibility in a tribe. (§ 224.2 ., subd. (e)(2).)
Pursuant to section 224.2, subdivision (e)(2)(C), the agency must contact "the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility." The agency's contact with the tribe "shall include 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." (Ibid.)
Here, there was a reason to believe the child was an Indian child based on the statements of mother and father in their signed ICWA 020 forms, particularly the information given by father, and yet the agency failed to question either adequately or provide this information to the applicable tribes. The agency concedes that error occurred in conducting "inquiry of family and notice to the Tribes noted by [father] and mother in their ICWA-020 forms." We accept the agency's concessions and remand the matter for the limited purpose of allowing the agency to complete further inquiry and notice under sections 224.2 and 224.3, and for the juvenile court to determine, on the record, whether ICWA applies.
Father makes an additional argument, based on In re Glorianna K. (2005) 125 Cal.App.4th 1443 (Glorianna K.), and information contained in nongovernment, nontribal websites, that the current Fort McDowell Yavapai Nation formerly considered itself an Apache tribe, prior to a change to its constitution, and perhaps "Frank" was a member or eligible for membership in that tribe and should have been noticed. Father does not identify who "Frank" is, nor do we see him listed on the ICWA-030 or anywhere in the record.
We find several procedural flaws in father's argument. We initially observe that Glorianna K. addressed the requirement on the part of the juvenile court to determine whether the notices provided in that case satisfied ICWA requirements, which included notice to the Fort McDowell Mohave-Apache Tribe. (Glorianna K., supra, 125 Cal.App.4th at pp. 1447, 1449.) There is no discussion in Glorianna K. concerning the change in tribal constitution, the name of the tribe, or how tribal membership is constituted. We do not see how father's reference to Glorianna K. is dispositive of any issue father raises on appeal. However, if father has further information on "Frank," he is free to provide that information to the agency when it makes further inquiry.
DISPOSITION
The findings and orders entered at the section 366.26 hearing are conditionally reversed. The matter is remanded with instructions for the juvenile court to order the agency to comply with the further inquiry regarding D.S.'s membership status or eligibility as an Indian child. If, after proper further inquiry, the agency finds a reason to know that D.S. is an Indian child, the agency must provide notice in accordance with ICWA. If the court then finds that D.S. is an Indian child, the court must conduct a new section 366.26 hearing and any further proceedings in compliance with ICWA and California law. If the court finds that D.S. is not an Indian child, the section 366.26 order terminating parental rights shall be reinstated.
[*] Before Poochigian, Acting P. J., Franson, J. and Smith, J.