Opinion
D076331
12-13-2019
In re DANIEL H., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. KEITH H., Defendant and Appellant.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. EJ4409) APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed in part and remanded with directions. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Deputy County Counsel, for Plaintiff and Respondent.
Keith H. (Father) appeals from an order of the juvenile court finding jurisdiction and placing his minor child, Daniel H. (Daniel), in the care of a licensed foster home. Father's sole contention on appeal is that the juvenile court and the San Diego County Health and Human Services Agency (the Agency) failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA) after Father disclosed that he may have Native American heritage. We agree that the Agency did not adequately inquire into Father's heritage, and that the juvenile court erred by finding the Agency had completed its inquiry. We therefore remand the matter for the limited purpose of compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
Daniel tested positive for methamphetamine and marijuana in the hospital shortly after his birth. He was detained in a licensed foster home upon his release from the hospital, and the Agency filed a juvenile dependency petition on his behalf a few days later.
Daniel's mother (Mother) identified Father as Daniel's biological father. Father confirmed he and Mother were in a relationship, he was listed on Daniel's birth certificate, and Daniel was his child.
Both parents initially denied having Native American heritage. However, on June 12, 2019, Mother and Father each submitted parentage inquiry forms indicating Father may have Cherokee or Taino heritage. The juvenile court found ICWA may apply, ordered the parents to complete ICWA information forms, and ordered the Agency to notice the appropriate tribes and agencies. On the ICWA forms, Mother indicated she may have Indian heritage but listed the band as "unknown," while Father indicated he may have Cherokee or Taino Indian heritage. Neither parent indicated that either of them or Daniel were members of, or potentially eligible for membership in, an Indian tribe.
In an addendum report filed before the next hearing, on July 3, 2019, the Agency included the following information regarding Father's heritage: "On [June 27, 2019], the father reported, 'I talked to my Uncle Rudy and he said my grandfather was 50 percent Cherokee Indian, but I want to keep things the way they are. I don't want to open doors that don't need to be open.' He denied any family members are receiving any tribal funds or medical benefits. He denied that any of his family members have pursued any tribal funds or affiliated with any tribes." In addition, the Agency noted Father kept in touch with various relatives, including his father, some cousins, and a great aunt who lived in Spring Valley, California.
The juvenile court raised Father's Indian heritage at the hearing, and noted that, while Father did not want to pursue the issue, the tribe also had rights under ICWA. Counsel responded, "I know the court ordered the Agency to notice; however, given the new I.C.W.A. statute, my understanding is we do not have reason to know at this point; only reason to believe. We can continue to investigate that. But at this point, I don't believe the Agency needs to notice, even if the court did order us to." She therefore asked the court to vacate its previous order requiring the Agency to notice the tribes and stated, "we will continue our investigation."
The hearing transcript indicates these statements were made by counsel for the minor, but the language used—"even if the court did order us to"—suggests the statements were incorrectly attributed to counsel for the minor and were, instead, made by counsel for the Agency.
The court indicated it would vacate the notice order and further stated, "[b]ut I will order that you continue to investigate, because there is something to suggest that maybe a Cherokee tribe may be involved here." In its written order, the juvenile court found the Agency had declined to send ICWA notices because they did not have reason to know ICWA applied. The court then vacated its previous order requiring the Agency to provide notice to the tribes and ordered the Agency "to continue to investigate regarding ICWA."
The Agency submitted its next report before a status hearing on July 31, 2019, but did not include any further information regarding ICWA. At the hearing, the court noted, "I do want to go back to ICWA because I did order the Agency to continue to evaluate, but just in order to dot every I, I'm going to ask each parent four questions." The court then asked the following four questions: 1) "Are you aware of any information indicating that the child is a member or citizen or eligible for membership or citizenship in an Indian tribe or an Alaskan native village?"; 2) "Is the residence or domicile of the child or either of you on a reservation or in an Alaskan native village?"; 3) "Is or was the child ever a ward of a tribal court?"; and 4) "Does the child or either of you have an identification card indicating membership or citizenship in a tribe or Alaskan native village?" Mother and Father answered no to each question. The juvenile court found the Agency had completed further inquiry as to ICWA and concluded there was no reason to know ICWA applied.
The matter was set for a contested adjudication and disposition hearing on August 15, 2019. There was no further discussion regarding ICWA at the hearing or in the Agency's associated addendum report. At the conclusion of the hearing, the juvenile court found it had jurisdiction and ordered that Daniel be placed in a licensed foster home.
Father appeals.
DISCUSSION
I. Standing
Before turning to the merits, we briefly address standing. Father acknowledges he is listed as an alleged father in the minute orders and that alleged fathers typically do not have standing to raise issues related to ICWA compliance. (In re Daniel M. (2003) 110 Cal.App.4th 703, 707-708 (Daniel M.).) However, he contends, and the Agency concedes, that he nevertheless has standing here because the juvenile court acknowledged his paternity. We agree.
An unwed father has standing to assert an ICWA violation so long as his paternity has been established or acknowledged. (Daniel M., supra, 110 Cal.App.4th at pp. 707-708.) Here, both parents indicated Father was Daniel's biological father, Father was listed on the birth certificate, and the juvenile court twice indicated it would treat Father as Daniel's presumed father. As such, Father's paternity was established and acknowledged, and he has standing to pursue issues related to ICWA. (See ibid.; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1166-1167 (Gabriel G.) [ICWA applied where Father was identified on birth certificate despite juvenile court erroneously referring to him as an alleged father].)
II. Compliance with the Notice and Inquiry Provisions of ICWA
Turning to the merits, Father contends the juvenile court erred in two respects: first, by vacating its order requiring the Agency to provide notice to the tribes pursuant to ICWA; and, second, by finding the Agency had completed further inquiry as to ICWA despite the Agency's failure to adequately inquire as to Father's ancestry.
A. Standard of Review
On appeal, we review the juvenile court's ICWA findings for substantial evidence. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) However, where the facts are undisputed, we independently determine whether the requirements of ICWA have been satisfied. (In re J.L. (2017) 10 Cal.App.5th 913, 918 (J.L.).)
B. Federal ICWA Statute
Congress enacted ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) The federal statute defines "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" and establishes minimum standards for the removal and placement of such children in foster or adoptive homes reflecting the unique values of their Indian culture. (25 U.S.C. §§ 1901(3), 1902, 1903, subd. (4); In re A.W. (2019) 38 Cal.App.5th 655, 662 (A.W.).)
The juvenile court and the Agency have an affirmative and continuing duty in every dependency proceeding to determine whether ICWA applies. (In re W.B. (2012) 55 Cal.4th 30, 53; Gabriel G., supra, 206 Cal.App.4th 1160, 1165; Cal. Rules of Court, rule 5.481(a); Welf. & Inst. Code § 224.2, subd. (a).) In cases "where the court knows or has reason to know that an Indian child is involved," ICWA requires the Agency, or other party seeking adoption or foster care placement, to notify "the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912; Isaiah W., supra, 1 Cal.5th at p. 5.) This is often referred to as the ICWA notice provision.
The federal ICWA statute does not define "reason to know," but federal regulations adopted in December 2016 provide further guidance. (25 C.F.R. § 23.107(c); 81 Fed.Reg. 38803 (June 14, 2016) ["The final rule . . . provide[s] specific guidance regarding what constitutes 'reason to know' that a child is an Indian child"]; In re Breanna S. (2017) 8 Cal.App.5th 636, 650, fn. 7.) As set forth therein, there is "reason to know" a child is an Indian child if: "(1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child; (2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child; (3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child; (4) The court is informed that the domicile or residence of the child, the child's parent, or the child's Indian custodian is on a reservation or in an Alaska Native village; (5) The court is informed that the child is or has been a ward of a Tribal court; or (6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe." (25 C.F.R. § 23.107(c).)
C. California State Statutes
California adopted the main provisions of ICWA into California statutory law in 2006. (In re Autumn K. (2013) 221 Cal.App.4th 674, 703-704.) Following the enactment of the federal regulations concerning ICWA in 2016, California amended its own statutes, including portions of the Welfare and Institutions Code related to notice and inquiry. (A.W., supra, 38 Cal.App.5th at p. 662, fn. 3; Assem. Bill No. 3176 (2017-2018 Reg. Sess.).) Those changes became effective January 1, 2019. (A.W., at p. 662, fn. 3.)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
As relevant here, section 224.2 now provides additional guidance regarding the juvenile court and Agency's obligations to provide inquiry and notice pursuant to ICWA. (§ 224.2, subd. (d)-(f).) Section 224.2 specifies that once a child is placed into the temporary custody of a county welfare department, such as the Agency, the duty to inquire "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).) Further, if the court or social worker "has reason to believe that an Indian child is involved in a [dependency] proceeding," section 224.2 requires additional inquiry, which includes but is not limited to "[i]nterviewing the parents, Indian custodian, and extended family members to gather the information required [by the notice provisions set forth in section 224.3, subdivision (a)(5)]." (§ 224.2, subd. (e) [emphasis added].) Finally, if there is reason to know the child is an Indian child, section 224.2 requires the Agency to provide notice to the tribes in accordance with section 224.3, subdivision (a)(5). (§ 224.2, subd. (f).) "Reason to know" is defined using the same six-part definition as set forth in the federal regulations adopted in 2016. (Compare § 224.2, subd. (d) with 25 C.F.R. § 23.107(c).)
D. Analysis
We turn first to the hearing and orders issued on July 3, 2019. At that point, Father had indicated he may have Cherokee or Taino heritage and informed the Agency that an uncle told him his grandfather was one-half Cherokee. Based on that information, counsel argued there was "reason to believe," but not "reason to know," Daniel was an Indian child. The juvenile court agreed, vacated its previous order requiring the Agency to provide notice pursuant to ICWA, and entered a new order requiring the Agency to continue to investigate regarding ICWA.
Father asserts the juvenile court erred by vacating its previous order regarding notice, but we disagree. The Agency is required to provide notice if it knows or has "reason to know" the child is an Indian child. (25 U.S.C. § 1912, subd. (a); § 224.2, subd. (f).) Here, the information available to the Agency and court as of July 3 did not meet the "reason to know" criteria set forth in the federal regulations and the California statutes related to ICWA. (See 25 U.S.C. § 1912, subd. (c); § 224.2, subd. (d).) No one had informed the court or Agency that Daniel was an Indian child, Daniel had not given the court reason to know he was an Indian child, there was no suggestion Daniel had ever lived on a reservation or been a ward of a tribal court, and there was no indication that Daniel or his parents possessed a tribal identification card. (See 25 C.F.R. § 23.107, subds. (c)(1), (3)-(6); § 224.2, subd. (d)(1), (3)-(6).) At most, Father had provided information indicating he had Indian heritage. Although it would follow that Daniel might also have some Indian heritage, the information Father provided to the Agency did not rise to the level of "information indicating that the child is an Indian child." (See 25 C.F.R. § 23.107(c)(2), (3); § 224.2, subd. (d)(2), (3).)
Father argues numerous courts have found similar information to be sufficient to trigger the notice provision, but the majority of the cases he relies upon pre-date the 2016 enactment of the new federal regulations defining "reason to know" and the 2019 amendments to the California statutes distinguishing between "reason to know" and "reason to believe." (See In re D.C. (2015) 243 Cal.App.4th 41, 62; In re Kadence P. (2015) 241 Cal.App.4th 1376, 1387-1388 (Kadence P.); In re B.H. (2015) 241 Cal.App.4th 603, 606-607; see also 81 Fed.Reg. 38804, 38805 (June 14, 2016) [distinguishing between "reason to know" and "reason to believe" and indicating state courts may require additional investigation].)
Father also relies on A.W., supra, 38 Cal.App.5th 655, which was decided in 2019. He asserts the court there rejected an argument that the revised language of section 224.2 requires notice "only when the court knows or has reason to know the child is definitively a member (or knows a parent is definitively a member and the child is eligible for membership)" in an Indian tribe. (A.W. at p. 665.) However, the court in A.W. did not conduct its analysis under the revised statutes. (Id. at p. 662, fn. 3.) The juvenile court had conducted the ICWA compliance hearing at issue in 2016, and the appellate court applied the California law in effect at that time. (Ibid.)
In any event, even before the regulations and statutory amendments clarifying the meaning of "reason to know," courts had found that vague information or "family lore" indicating a child "may" have Indian ancestry insufficient to require notice. (See J.L., supra, 10 Cal.App.5th at pp. 921-923; In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1516 [bare suggestion that child might be an Indian child insufficient to trigger notice]; In re Michael V. (2016) 3 Cal.App.5th 225, 234 [statements indicating Indian heritage made by relative require further inquiry but not notice]; cf. Kadence P., supra, 241 Cal.App.4th 1376, 1387-1388 [photos and articulated basis of belief made claim of Indian ancestry more than family lore].) Here, the only specific information Father provided was a statement that his uncle told him his grandfather was half Cherokee. We are not persuaded that statement, alone, was sufficient to trigger the ICWA notice provisions.
That said, the information Father provided was sufficient to require further inquiry, as the juvenile court ordered. Likewise, the information gave the juvenile court and the Agency reason to believe that an Indian child was involved and, thus, the additional inquiry should have, at minimum, included interviews with Father's extended family members. (§ 244.2, subd. (b), (e); see also In re N.G. (2018) 27 Cal.App.5th 474, 482 [social worker required to make further inquiry based on minimal parental disclosures, including inquiry to maternal uncle]; In re Alice M. (2008) 161 Cal.App.4th 1189, 1200 [finding the duty to inquire requires less certainty regarding the child's Indian status than the duty to notice].)
We agree with Father's assertion that the Agency did not comply with the juvenile court's order or the inquiry provisions of section 224.2. Father had identified a number of family members with whom he regularly kept in touch, and the Agency sent letters to several paternal relatives asking if they were interested in caring for Daniel, but there is no indication in the record that the Agency made any attempt to contact any of the paternal relatives regarding the family's potential Native American heritage. Moreover, there is no mention of ICWA whatsoever in the Agency's reports following the juvenile court's July 3 order requiring the Agency to continue its investigation regarding ICWA.
At the next hearing on July 31, the juvenile court acknowledged the ICWA issue was still outstanding. Instead of following up with the Agency regarding its continued investigation, though, the court conducted its own inquiry using the statutory "reason to know" criteria. (See § 224.2, subd. (d); 25 C.F.R. § 23.107(c).) That inquiry was not sufficient to remedy the shortcomings of the Agency's investigation.
As an initial matter, the court directed its questions only to Mother and Father and did not interview any extended family members as required by section 224.2. (§ 224.2, subd. (e).) The court's questions and the parents' responses established at most that there was not currently "reason to know" Daniel was an Indian child. Significantly, they did not negate the fact that the court and Agency already had an ongoing duty to investigate and "reason to believe" Daniel was an Indian child. Had the Agency undertaken the appropriate further inquiries based on the information it did have, it may well have discovered a "reason to know" Daniel was an Indian child.
Accordingly, while we acknowledge the juvenile court's efforts to resolve the issue and move the case towards permanency for Daniel, we conclude the juvenile court and Agency did not comply with the inquiry provisions of ICWA and the juvenile court erred when it found the Agency had completed further inquiry. We therefore remand the matter to the juvenile court with directions to vacate the finding that the Agency completed further inquiry and to order further inquiry in compliance with the federal and state ICWA statutes. In the event that further inquiry gives the juvenile court and the Agency reason to know Daniel is an Indian child, the Agency must provide notice to the tribes as required by ICWA.
DISPOSITION
The matter is remanded to the juvenile court with directions to vacate its finding that the Agency completed further inquiry as to ICWA and to enter a new order directing the Agency to conduct further inquiry consistent with ICWA, section 224.2, and this opinion. The jurisdictional and dispositional orders are affirmed in all other respects.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.