Opinion
B317715
01-05-2023
In re P.K., A Person Coming Under the Juvenile Court Law. v. P.S., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, David Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP00109, Robin R. Kesler, Juvenile Court Referee. Affirmed in part, vacated in part, and remanded with directions.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, David Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
RICHARDSON (ANNE K.), J. [*]
Mother appeals a juvenile court order declining to return her teenage son P.K. to parental custody. (See Welf. &Inst. Code, § 366.21, subd. (e).) She contends the evidence was insufficient to support the court's finding that an Indian child was not involved because the Los Angeles County Department of Children and Family Services (Department) failed to conduct an adequate inquiry under state law (§ 224 et seq.) implementing the Indian Child Welfare Act of 1978 (ICWA or Act). (25 U.S.C. § 1901 et seq.) We agree and vacate the ICWA finding, remanding for further proceedings. However, in all other respects we affirm.
Undesignated statutory references are to the Welfare and Institutions Code; rule references are to the California Rules of Court.
In the introduction to her opening brief, mother notes the juvenile court denied her request for a continuance and found reasonable reunification services had been provided to the parents. She does not appear to claim these rulings were erroneous, nor does she present an argument challenging either ruling. To the extent mother may have intended to assert error based on these bare references to the court's rulings, we deem the issues waived. (In re Daniel M. (2003) 110 Cal.App.4th 703, 708.)
FACTS AND PROCEDURAL HISTORY
The juvenile court took jurisdiction of P.K. (born 2006) on sustained counts for physical harm and failure to protect. (§ 300, subds. (a) &(b).) The boy had been living with father in a home father rented from a paternal aunt. Father was arrested after he assaulted his cousin with a baseball bat in the home. Mother had been living in Arizona at the time but returned to Los Angeles when she learned of father's arrest.
As part of the original dependency petition, the social worker who conducted the initial investigation submitted an Indian Child Inquiry form (ICWA-010), declaring under penalty of perjury that she asked the parents about P.K.'s Indian status and the parents "gave me no reason to believe the child is or may be an Indian child."
Before the detention hearing, mother and father each filed a Parental Notification of Indian Status form (ICWA-020). Mother filed the 2008 version of the ICWA-020 form, checking a box indicating, "I have no Indian ancestry as far as I know." Father filed the 2020 version of the form, checking a box indicating neither he, nor the child "is or may be a member of, or eligible for membership in, a federally recognized Indian tribe," and no other lineal ancestor "is or was a member of a federally recognized tribe."
Mother and father appeared telephonically for the detention hearing. The juvenile court received the parents' ICWA-020 forms and stated each parent's form indicated there was "[n]o reason to know that there is any American Indian ancestry." Based on the parents' responses, the court found ICWA did not apply to the case, stating: "[T]he court's making a finding that there is no reason to know there is any American Indian ancestry." A minute order memorialized the court's ICWA finding and instructed the parents "to keep the Department, their Attorney and the Court aware of any new information relating to possible ICWA status."
Mother did not sign her ICWA-020 form, and father's attorney signed the form on father's behalf. Nonetheless, the parents never claimed the forms did not accurately reflect their knowledge about their family's Indian heritage, and the parents did not object when the juvenile court received the forms at the detention hearing.
Following P.K.'s detention, the Department filed an amended dependency petition, adding an allegation about a reported incident of domestic violence by father against mother.A different social worker, who investigated the new allegation, filed another ICWA-010 form, declaring under penalty of perjury that she questioned both parents about P.K.'s Indian heritage, and the parents gave her no reason to believe P.K. may be an Indian child.
The court had released P.K. to the parents' custody on the condition he reside with mother. The Department later learned that, in defiance of that order, P.K. had been living with both parents.
In advance of the jurisdiction and disposition hearing, the Department interviewed certain extended family members, including P.K.'s adult brother D.G., his paternal aunt, and his paternal grandmother. The Department did not ask any of these extended family members about P.K.'s possible Indian heritage.
Mother reported she was "co-parented" by her parents growing up, despite their being separated. She said she had three brothers and three sisters and reported she had a good childhood free of abuse, domestic violence, or drug use in the home. She denied any mental health issues and identified her support system as her mother, brother, sister, and adult son. It does not appear that the Department asked any of these maternal relatives about P.K.'s possible Indian heritage.
Father reported he grew up with his parents, along with three half-siblings on his mother's side and five half-siblings on his father's side. His father and one of his brothers had since passed away. He had a good childhood, free of abuse, domestic violence, and substance abuse. It does not appear that the Department asked any of these paternal relatives about P.K.'s possible Indian heritage.
The juvenile court removed P.K. from the parents' custody and placed him with his adult brother D.G, an older child of mother's.
At the six-month review hearing, after the court denied mother's request for a continuance, the parents submitted on the Department's recommendation to continue family reunification services. The court continued the matter for a 12-month review hearing, finding the Department had provided the parents with reasonable services and the parents' compliance had not been substantial. Mother filed this appeal following the hearing.
DISCUSSION
1. Governing Law and Standard of Review
Congress enacted ICWA to curtail "the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement" (Miss. Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32), and "to promote the stability and security of Indian tribes and families by establishing . . . standards that a state court . . . must follow before removing an Indian child from his or her family" (In re Austin J. (2020) 47 Cal.App.5th 870, 881). (In re Dezi C. (2022) 79 Cal.App.5th 769, 780, review granted Sept. 21, 2022, S275578 (Dezi C.); see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8 (Isaiah W.).)
Under ICWA and our state statutes implementing it (§§ 224-224.6), as recently amended, a juvenile court-and, as its delegate, the Department-have three distinct duties all aimed at assessing whether a child in a pending dependency case is an "Indian child" entitled to the special protections of ICWA. (Dezi C., supra, 79 Cal.App.5th at p. 780, citing §§ 224.2, 224.3; In re D.S. (2020) 46 Cal.App.5th 1041, 1052 (D.S.).)
"The first duty is the initial 'duty' of the Department and the juvenile court 'to inquire whether [a] child is an Indian child.' (§ 224.2, subds. (a) &(b).) The Department discharges this duty chiefly by 'asking' family members 'whether the child is, or may be, an Indian child.' (Id., subd. (b).) This includes inquiring of not only the child's parents, but also others, including but not limited to, 'extended family members.' (Ibid.) For its part, the juvenile court is required, '[a]t the first appearance' in a dependency case, to 'ask each participant' 'present' 'whether the participant knows or has reason to know that the child is an Indian child.' (Id., subd. (c).)" (Dezi C., supra, 79 Cal.App.5th at p. 780.) While the "duty to inquire begins with the initial contact," the court and Department "have an affirmative and continuing duty to inquire" whether the child "is or may be an Indian child." (§ 224.2, subd. (a).)
Section 224.1, subdivision (c), adopts the federal definition of extended family member:" '[E]xtended family member' shall be as defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2).)
"The second duty is the duty of the Department or the juvenile court to 'make further inquiry regarding the possible Indian status of the child.' ([§ 224.2], subd. (e).) This duty of further inquiry is triggered if the Department or court 'has reason to believe that an Indian child is involved' because the record contains 'information . . . suggesting the child is Indian.'" (Dezi C., supra, 79 Cal.App.5th at p. 780.) Once triggered, this duty obligates the Department to conduct further interviews of the parents and extended family members, to contact the Bureau of Indian Affairs and state department of social services for assistance, and/or to contact the relevant Indian tribe(s). (Id. at pp. 780-781, citing § 224.2, subd. (e)(2); In re Ezequiel G. (2022) 81 Cal.App.5th 984, 999 (Ezequiel G.).)
"The third duty is the duty to notify the relevant Indian tribe(s). (§ 224.3, subd. (a); 25 U.S.C. § 1912(a).) This duty is triggered if the Department or the court 'knows or has reason to know . . . that an Indian child is involved.' (§ 224.3, subd. (a).)" (Dezi C., supra, 79 Cal.App.5th at p. 781.)
"If the [juvenile] court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence." (§ 224.2, subd. (i)(2).) Consistent with that directive," 'we review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports' the court's ICWA finding." (Dezi C., supra, 79 Cal.App.5th at p. 777; cf. Ezequiel G., supra, 81 Cal.App.5th at pp. 995-996.)
2. Juvenile Court's ICWA Finding is Not Supported by Substantial Evidence
Mother contends there was insufficient evidence to support the juvenile court's ICWA finding because the Department failed to conduct a proper and adequate inquiry of extended family members. She notes the parents identified "[s]everal relatives," including P.K.'s adult sibling D.G., a paternal great aunt, the paternal grandmother, the maternal grandmother, and a maternal aunt and uncle, but the Department did not ask any of these extended family members about whether P.K. may be an Indian child.
We agree that the Department's failure to inquire of any person other than the two parents in this case precludes us from finding that substantial evidence supports the court's finding. The language of the statute is unambiguous: "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), italics added.) This provision was added (and prior section 224.3 repealed) effective January 1, 2019. As stated in the Legislative Counsel's Digest for Assembly Bill No. 3176, this "bill would revise the specific steps a social worker, probation officer, or court is required to take in making an inquiry of a child's possible status as an Indian child." (Legis. Counsel's Dig., Assem. Bill No. 3176 (2017-2018 Reg. Sess.).)
Previous section 224.3 subdivision (a) provided that the court and child welfare department had "an affirmative and continuing duty to inquire whether a child for whom a petition . . . has been filed is or may be an Indian child." It then provided for the circumstances that would provide a "reason to know" the child is an Indian child. (Id. at subd. (b).) Among the circumstances that could provide such a reason to know were when any person "provides information suggesting the child is a member of a tribe or eligible for membership in a tribe." (Ibid.) Essentially, the language of the 2019 amendment flips the burden for obtaining that information such that the court and the child welfare department can no longer rely on waiting to get information from a relevant party. Now, it is the Department's obligation to make an affirmative inquiry, and the court's obligation to find that an adequate inquiry has been made. (§ 224.2, subd. (i)(2).)
We understand there may be times when it is not feasible to make contact with all of the persons listed in the code: when they refuse to respond, when no contact information is provided, and certainly if there are no such relevant persons or such persons are deceased. We also sympathize with those opinions which have lamented the wide-open language of the amendment to the statute (particularly the language of "including but not limited to") and the large number of extended relatives that could be covered. (See, e.g., In re H.V. (2022) 75 Cal.App.5th 433, 440-441 (dis. opn. of Baker, J.).) The statutory language fails to give clear guidance to the agency and courts trying to navigate this inquiry as to how many relatives and other interested parties must be contacted. Nonetheless, as long as "substantial evidence" supports the court's finding that a proper and adequate inquiry has been conducted, a juvenile court's order will be affirmed. (§ 224.2. subd. (i)(2).)
In this case, the Department was provided with names of extended family members which it interviewed on multiple topics, but it failed to ask any of them about the child's possible Indian ancestry. (Cf. Dezi C., supra, 79 Cal.App.5th at pp. 776777 [initial inquiry deficient where Department spoke with several members of mother's and father's extended families but did not question them about the children's possible heritage].) We find that the juvenile court's ICWA ruling here is not supported by substantial evidence.
3. Given Continuing Jurisdiction, the Proper Remedy is to Vacate the ICWA Finding Only and Remand for ICWA Compliance
Appellate courts have adopted several divergent standards for determining whether the failure to comply with the duty of inquiry is prejudicial error requiring reversal. These standards have been described as ranging from an automatic reversal approach (In re A.R. (2022) 77 Cal.App.5th 197, 207; In re Y.W. (2021) 70 Cal.App.5th 542, 556), to a presumptive affirmance rule (In re A.C. (2021) 65 Cal.App.5th 1060, 1065), with variations in between, including the reason-to-believe test set forth in Dezi C., supra, 79 Cal.App.5th at page 779, and adopted by a majority of a panel of this court in Ezequiel G., supra, 81 Cal.App.5th at page 1016.
In this case, however, we need not decide which standard applies, or whether the ICWA inquiry error was prejudicial. Given the procedural posture of the case, dependency jurisdiction over the child remains in effect, and parental rights have not been terminated. Accordingly, both the juvenile court and the Department "have an affirmative and continuing duty to inquire whether" the child "is or may be an Indian child." (§ 224.2, subd. (a).) The Department also has a duty "on an ongoing basis" to report "a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status." (Cal. Rules of Court, rule 5.481(a)(5).) Moreover, even where the juvenile court has made a prior finding that ICWA does not apply, it must reverse that finding "if it subsequently receives information providing reason to believe that the child is an Indian child." (§ 224.2, subd. (i)(2).)
Because the juvenile court continues to have jurisdiction over the child and the only error at issue in this appeal is ICWA inquiry error, reversal of the order at the six-month review hearing declining to return the child to parental custody is not warranted. (In re Dominick D. (2022) 82 Cal.App.5th 560, 567 ["ICWA inquiry and notice errors do not warrant reversal of the juvenile court's jurisdictional or dispositional findings and orders other than the ICWA finding itself"]; In re S.H. (2022) 82 Cal.App.5th 166, 175 [where parent on appeal solely challenges finding that ICWA does not apply, "we need not disturb the juvenile court's jurisdiction/disposition order just because the duty of initial ICWA inquiry has not yet been fully satisfied"]).Rather, the proper remedy is to affirm the order but vacate the finding that ICWA does not apply, and to remand the matter to the juvenile court for compliance with the inquiry, and, if applicable, notice requirements of ICWA and related California law. (In re Dominick D., at pp. 567-568.)
Moreover, as noted ante, footnote 2, mother has waived any other arguments as to the orders made below.
DISPOSITION
The finding that ICWA does not apply to the proceedings is vacated and the matter is remanded to the juvenile court. On remand, the juvenile court shall order the Department to immediately comply with its duty of inquiry by asking available extended family members whether the child is or may be an Indian child. After ensuring the Department has complied with the inquiry, and, if applicable, notice provisions of ICWA and related California law, the juvenile court shall determine whether ICWA applies to the proceedings. If the court determines that ICWA does apply, then it shall conduct all further proceedings in compliance with ICWA and related California law. In all other respects, the juvenile court's order is affirmed.
I concur: LAVIN, Acting P. J.
EGERTON, J., Dissenting.
The majority rightly acknowledges that reviewing courts, including this one, have "lamented the wide-open language of the amendment to [Welfare and Institutions Code section 224.2, subdivision (b)] . . . and the large number of extended relatives that could be covered" by a literal application of the statute.(Maj. opn. ante, at p. 9, citing In re H.V. (2022) 75 Cal.App.5th 433, 440-441 (dis. opn. of Baker, J.); see In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004-1008 (Ezequiel G.), review den. Nov. 22, 2022, S276223.) I also agree with the majority that "[t]he statutory language fails to give clear guidance to the agency and courts trying to navigate this inquiry as to how many relatives and other interested parties must be contacted." (Maj. opn. ante, at p. 9.)
Statutory references are to the Welfare and Institutions Code.
In Ezequiel G., this court sought to address the practical impossibility of complying with the literal language of section 224.2, subdivision (b) by reasonably construing the statute to give clear guidance to the agency and the juvenile court. Like mother in this case, the mother there argued the juvenile court erroneously relied upon the parents' denials of Indian ancestry in finding ICWA did not apply, despite the availability of identified extended family members whom the Department failed to ask about the child's possible Indian heritage. (Ezequiel G., supra, 81 Cal.App.5th at pp. 997-998.) Addressing the contention, a majority of the panel considered the initial duty to inquire of "extended family members" under the plain text of our state's ICWA law (§ 224.2, subd. (b)) and how a juvenile court should understand that duty in assessing whether "proper and adequate further inquiry and due diligence" have been conducted (§ 224.2, subd. (i)(2)). (Ezequiel G., at pp. 1004-1006.) Because "complying with the literal language of the statute-that is, making an initial and further ICWA inquiry of every member of a child's extended family, including first and second cousins, plus every other person who has an interest in the child-is absurd at best and impossible at worst," we determined a literal construction had to be discarded to avoid absurd results and to give effect to the manifest purposes of the statute. (Id. at pp. 1006, 1008-1009; see Silver v. Brown (1966) 63 Cal.2d 841, 845; Younger v. Superior Court of Sacramento Cty. (1978) 21 Cal.3d 102, 113.) Recognizing that "the question at the heart of the ICWA inquiry" is "[w]hether a child involved in a proceeding 'is or may be an Indian child,'" we held "the focus of the [juvenile] court's analysis should not be on the number of individuals interviewed, but on whether the [Department's] ICWA inquiry has yielded reliable information about a child's possible tribal affiliation." (Ezequiel G., at p. 1009, italics added, quoting § 224.2, subd. (a).)
Applying that standard to the mother's contention in Ezequiel G., we concluded the parents' denials of Indian ancestry were alone sufficient to find the Department's ICWA inquiry had yielded reliable information about the child's tribal affiliation. (Ezequiel G., supra, 81 Cal.App.5th at p. 1015.) In reaching this conclusion, we rejected "the suggestion made in some recent appellate decisions that a parent may not have reliable information about tribal membership." (Id. at p. 1011, citing In re T.G. (2020) 58 Cal.App.5th 275, 295.) As we explained," 'ICWA does not apply simply based on a child or parent's Indian ancestry' "; rather, "the 'definition of "Indian child"' is 'based on the child's political ties to a federally recognized Indian Tribe, either by virtue of the child's own citizenship in the Tribe, or through a biological parent's citizenship and the child's eligibility for citizenship.'" (Ezequiel G., at p. 1009, quoting U.S. Dept. of Interior, Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016) (BIA Guidelines), p. 10 <https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2 -056831.pdf> [as of Dec. 28, 2022], archived at <https://perma.cc/ 68YB-3M8N> and Indian Child Welfare Act Proceedings, 81 Fed.Reg. 38778, 38795 (June 14, 2016) (BIA ICWA Proceedings).) We emphasized," 'Tribal citizenship (aka Tribal membership) is voluntary and typically requires an affirmative act by the enrollee or her parent,'" such as" 'the filing of an application'" " 'for Tribal citizenship on behalf of the child.'" (Ezequiel G., at pp. 1009-1010, quoting BIA ICWA Proceedings, supra, 81 Fed.Reg. at p. 38783 and BIA Guidelines, supra, at p. 10.) Thus, because tribal membership typically requires an affirmative act, we held "a child's parents will, in many cases, be a reliable source for determining whether the child or parent may be a tribal member," and a juvenile court may therefore "find an ICWA inquiry was adequate even if an agency has not interviewed some available family members." (Ezequiel G., at p. 1010.)
Applying the Ezequiel G. standard to the record here, I agree with the Department that the parents' repeated denials of Indian ancestry constituted sufficient evidence to support the juvenile court's finding that ICWA does not apply to this case. As in Ezequiel G., the evidence shows the parents had contact and connection with their extended families throughout their childhood and into their adult lives. Thus, the possibility that they might unknowingly be members of a tribe is "trivially small." (Ezequiel G., supra, 81 Cal.App.5th at p. 1015; cf. In re Y.W. (2021) 70 Cal.App.5th 542, 548 [mother was adopted and did not have information about her biological relatives]; In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016 ["mother was the product of foster care and thus may not have known her cultural heritage"].) And, critically, because the juvenile court could reasonably infer that the parents would know whether they took the sort of affirmative steps necessary to establish a political relationship to a tribe, the court also could reasonably find their denials of Indian heritage reliably established P.K. was not an Indian child within the meaning of ICWA. (See Ezequiel G., at pp. 1009-1010.) On this record, I would conclude substantial evidence supported the juvenile court's ICWA finding.
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.