Opinion
F083406
04-06-2022
In re M.N., a Person Coming Under the Juvenile Court Law. v. JULIO N., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant. Margo Raison, County Counsel, and Alexandria Ottoman, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. JD140003-00. Harry A. Staley, Judge. (Retired judge of the Kern Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo Raison, County Counsel, and Alexandria Ottoman, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, ACTING P. J.
Appellant Julio N. (Father) is the father of the child M.N. (the child), 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 juvenile court and Kern County Department of Human Services (Department) failed to comply with the inquiry 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 Department concedes that it failed to conduct further inquiry into the possible Indian ancestry of the child's mother, Martha A. (Mother), and it does not oppose remand for the limited purpose of conducting further ICWA inquiry. We agree with the parties and conditionally reverse the juvenile court's orders terminating parental rights and remand for proceedings to ensure ICWA compliance.
FACTUAL AND PROCEDURAL BACKGROUND
Since mother does not challenge the juvenile court's jurisdictional finding, dispositional ruling, or findings supporting its decision to select adoption as the permanent plan and terminate parental rights, a detailed summary of the evidence supporting these rulings is unnecessary. On July 19, 2019, the child was taken into protective custody as a result of her exposure to domestic violence, drug use, and neglect by Father and Mother. The Department filed a petition alleging the child was at substantial risk of serious physical harm under section 300, subdivision (b).
At a detention hearing held July 25, 2019, Father made his first appearance and requested a one-day continuance to speak further with his counsel. The report prepared for the detention hearing detailed Mother's denial of any Indian ancestry when asked by a social worker.
Father did not appear at the continued detention hearing; however, his counsel did file a "Parental Notification of Indian Status" form (ICWA-020) on his behalf stating he had no Indian ancestry as far as he knew. The juvenile court found that, as to father, there was no reason to believe the child was an Indian child, and it ordered the child detained from both parents. Mother failed to appear for any of the hearings on detention. On August 23, 2019, Mother informed a social worker that she had Indian ancestry on her father's side. She provided the name of her now deceased father, who was born in Mexico. Mother was not aware if anyone in her family was registered with a tribe.
At a jurisdiction hearing on September 27, 2019, the juvenile court confirmed, in the presence of Father and his counsel, that it received Father's ICWA-020 form and found ICWA did not apply as to Father. Mother made her first appearance, indicated she was in foster care for a long time as a minor, and had no knowledge any Indian ancestry. An ICWA-020 form was also filed on behalf of Mother, which indicated she had no Indian ancestry as far as she knew. The juvenile court found ICWA was not applicable because there was no reason to believe the child was an Indian child based upon its inquiry.
On October 29, 2019, the juvenile court found that the child came within the provisions of section 300, subdivision (b) after Mother appeared and provided both testimony and argument during a contested jurisdiction hearing. In May of 2020, after multiple continuances, the juvenile court ordered reunification services for Father and Mother at the disposition hearing. The child was placed in a foster home after being moved from the home of a paternal aunt.
Mother and Father's reunification services were terminated at the six-month review hearing due to a lack of progress and a section 366.26 hearing was set. The report prepared for the section 366.26 hearing recommended that parental rights for the child be terminated and a plan of adoption be selected. The juvenile court's previous finding from September 27, 2019, regarding ICWA was noted with no new information provided.
On August 31, 2021, Father was present for the section 366.26 hearing, and he objected to the termination of his parental rights. The juvenile court found the child was adoptable and proceeded to terminate the parental rights of both Father and Mother. Father filed a timely notice of appeal on October 8, 2021.
DISCUSSION
Father contends the juvenile court's finding that ICWA did not apply was not supported by sufficient evidence because the record does not reflect interviews with paternal and maternal family members regarding Native American ancestry. Respondent concedes error regarding a failure to conduct further inquiry regarding possible ancestry through Mother's extended family. However, Respondent argues that any alleged failure to contact Father's extended family members resulted in harmlesss error because he never disclosed Native American ancestry.
A. Legal Principles
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) In any "proceeding for the foster care placement of, or termination of parental rights to, an Indian child," the Indian custodian and the Indian child's tribe have the right to intervene (25 U.S.C. § 1911(c)) and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224, subd. (e)). An "Indian child" is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)
In every dependency proceeding, the agency and the juvenile court have an "affirmative and continuing duty to inquire whether a child is or may be an Indian child ...." (Rules of Court, rule 5.481(a); see also § 224.2, subd. (a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) "Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child …." (§ 224.2, subd. (b).)
"There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated in paragraphs (1) to (6), inclusive, of subdivision (d)." (§ 224.2, subd. (e)(1).)
"When there is reason to believe the child is an Indian child, further inquiry is necessary to help the court, social worker, or probation officer determine whether there is reason to know a child is an Indian child." (§ 224.2, subd. (e)(2).) Further inquiry includes, but is not limited to, interviewing the parents and extended family members to obtain the name, birth date and birthplace of the Indian child, the name of the Indian tribe in which the child is a member or may be eligible for membership, all names known of the Indian child's biological parents, grandparents, and great-grandparents, including maiden, married, and former names or aliases, as well as current and former addresses, birth dates, places of birth and death, tribal enrollment information of direct lineal ancestors of the child and any other identifying information if known. (§§ 224.2, subd. (e)(2)(A) & 224.3, subd. (a)(5)(A)-(C).)
B. Standard of Review
A juvenile court's finding that the ICWA is inapplicable is reviewed under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) Thus, we must uphold the juvenile court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we must indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
C. Analysis
First, we reject Father's claim that the Department's failure to interview paternal family members resulted in prejudicial error because he expressly denied having Indian ancestry through his family. (See In re Charles W. (2021) 66 Cal.App. 5th 483, 492 ["given the prior ICWA finding regarding this family and the parents' unequivocal denials of Indian ancestry, we do not find it reasonably probable that further inquiry based on the record before us would yield a different result"].) Furthermore, Father has not asserted in this appeal that he has Indian ancestry or provided any information to dispute his representation to the juvenile court that he had no Indian ancestry. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
A harmless error standard must impose "some reasonable burden on the appealing party to show prejudice based upon the [Agency's] incomplete ICWA inquiry." (In re A.C., (Mar. 4, 2022, B312391) ___ Cal.App.5th ____ (dis. opn. of Crandall, J.) [2022 Cal.App.LEXIS 187, at p. *18]; but see In re A.C., supra, ____ Cal.App.5th _____ (maj. opn. of Rothschild, P. J.) [prejudicial error for lack of inquiry of extended family members found where mother denied any Indian ancestry and was a product of foster care who may not have known her cultural heritage].) We acknowledge an exception to this rule that courts have applied when the record is inadequate because of the child welfare agency's failure to document its inquiries. (See In re K.R. (2018) 20 Cal.App.5th 701, 708; see also In re N.G. (2018) 27 Cal.App.5th 474, 483.) However, unlike the present case, both In re K.R. and In re N.G. involved an appealing parent who was at least claiming the child might have Indian ancestry.
Father's reliance upon In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.) is unpersuasive. In Benjamin M., one parent was not available to report or deny Indian heritage, and the agency never inquired of any of the missing parent's available relatives. (Id. at pp. 744-745.) Here, Father provided the Agency with the contact information of paternal relatives that he claims should have been interviewed, which differs significantly from Benjamin M. where the mother was challenging the child welfare agency's failure to interview a paternal relative whom the mother may not have known. (See also In re S.S. (2022) 75 Cal.App.5th 575 [failure to interview maternal grandmother requesting placement of child not prejudicial].) Therefore, we reject Father's "unvarnished contention that additional interviews of [paternal relatives] would have meaningfully elucidated the children's Indian ancestry." (In re Darian R. (2022) 75 Cal.App.5th 502, 510.)
Nevertheless, with respect to Mother's conflicting statements regarding Indian ancestry, we accept the Department's concession and conclude that Mother's disclosures gave the Department and juvenile court reason to believe the child was an Indian child within the meaning of ICWA, triggering the department's duty of "further inquiry." (See In re T.G. (2020) 58 Cal.App.5th 275, 292; In re D.S. (2020) 46 Cal.App.5th 1041, 1052; see also § 224.2, subd. (e)(1).)
In the present case, Mother initially denied Indian ancestry, then later stated she had Indian ancestry through the child's maternal grandfather, and afterwards she denied Indian ancestry while submitting her ICWA-020 form to the juvenile court. The juvenile court, at a minimum, should have inquired further to resolve the inconsistent information regarding Mother's possible Indian ancestry. (See In re Gabriel G., supra, 206 Cal.App.4th at p. 1167 ["the social worker had a duty of further inquiry" where the father stated on the ICWA-020 form he had Indian ancestry but in a later interview stated he did not]; see also In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1521 [juvenile court properly asked the father to clarify the discrepancy between his initial claim of Indian ancestry and his later retraction].)
Mother made her first appearance at a jurisdictional hearing where the Department submitted a report detailing Mother's statements regarding Indian Ancestry through the maternal grandfather. Neither the Department nor the juvenile court followed up with further inquiry regarding these statements at the hearing. Mother's counsel only briefly inquired of Mother about Indian ancestry while on the record, which led to a general denial of ancestry and submission of an ICWA-020 form. As a result of the unresolved inconsistencies created by Mother's affirmative claim and later denial of Indian ancestry, we cannot say that the juvenile court and Department adequately discharged their duty of further inquiry. Therefore, we conclude the juvenile court's finding that ICWA did not apply was not supported by substantial evidence and limited remand is required.
DISPOSITION
The finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the agency to comply with the inquiry provisions set forth in sections 224.2.
If, after the court finds adequate inquiry has been made consistent with the reasoning in this opinion, the court finds ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court finds ICWA does not apply, the finding that ICWA does not apply to the case shall be reinstated.
In all other respects, the court's orders terminating parental rights are affirmed.
WE CONCUR: FRANSON, J., DE SANTOS, J.