Opinion
D079672
04-18-2022
In re N.R., a Person Coming Under the Juvenile Court Law. v. K.G., Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Roni S. Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J520821, Marissa A. Bejarano, Judge. Affirmed.
Roni S. Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel for Plaintiff and Respondent.
HUFFMAN, Acting P. J.
K.G. (Mother) appeals from the juvenile court's jurisdictional and dispositional order removing her son, N.R. from her custody.Mother's only contention on appeal is that the San Diego County Health and Human Services Agency (Agency) failed to comply with the inquiry requirements under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) and
When the Agency filed its petition, D.R. (Father) was a noncustodial parent. At the time of the jurisdictional and dispositional hearing, Father did not request custody or placement of N.R. Father is not a party to this appeal.
Welfare and Institutions Code section 224.2, subdivision (b). We conclude that because the Agency failed to comply with its initial inquiry obligations, substantial evidence does not support the court's finding that ICWA does not apply. However, we affirm on the basis that such error was harmless.
All further section references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the limited scope of this appeal, we provide an abbreviated summary of the dependency proceedings focused on the facts relevant to the issue on appeal.
In August 2021, the Agency petitioned the juvenile court under section 300, subdivision (b), on behalf of 11-year-old N.R. The Agency alleged that on multiple occasions, N.R. called 911 after Mother consumed alcohol in excess, rendering Mother unable to provide regular care for N.R. The petition included a statement on Judicial Council form ICWA-010(A) that a social worker had asked both Mother and Father about N.R.'s Indian status, who both gave no reason for the social worker to believe N.R. may be an Indian child.
In its detention report, the Agency stated that early on in its involvement, a child and family team (CFT) meeting was held, which included Mother, Father, paternal grandmother, maternal grandmother, maternal grandfather, and maternal uncle C.G. Father subsequently declined to participate in voluntary services. Mother initially accepted voluntary services on May 18, 2021, but on July 20, 2021, Mother informed the Agency that she no longer wanted to participate in services.
Two days later, N.R. called 911 because Mother lost consciousness after drinking wine and taking Xanax. According to N.R., it was the 11th time he had called the police due to Mother's drinking. Maternal grandmother picked N.R. up and N.R. was later put on a safety plan to stay with Mother's friend, a nonrelative extended family member (NREFM).
The Agency reported that both Mother and Father denied having any Indian ancestry. It did not indicate that it made any inquiry of the other family members identified in its detention report.
At the detention hearing, both Mother and Father stated that they have no Indian ancestry. The court found that ICWA does not apply. The court found the Agency made a prima facie showing under section 300, subdivision (b) and ordered that N.R. be detained out of Mother's home. While the responsibility for placement was vested with the Agency, the court ordered an extended visit with NREFM.
In its jurisdiction and disposition report, the Agency indicated that N.R. was moved from NREFM's home to the approved relative home of maternal cousins J.B. and M.B. Another CFT meeting was held with Mother, Father, maternal grandmother, paternal grandmother, and maternal uncle present. The Agency recommended that N.R. be placed in out of home care in the approved relative home of maternal cousins J.B. and M.B.
At the jurisdiction and disposition hearing, the court sustained the allegations of the petition under section 300, subdivision (b), declared N.R. a dependent pursuant to section 360, subdivision (d), and removed N.R. from Mother's custody under section 361, subdivision (c). The court found without prejudice that ICWA does not apply.
Mother filed a timely notice of appeal and challenged only the court's ICWA finding.
Following Mother's appeal, that Agency made an inquiry of paternal grandmother, maternal grandmother, maternal grandfather, and maternal cousin J.B., who all confirmed they have no Indian ancestry. The Agency also attempted to contact maternal uncle C.G. The Agency called C.G. and left a voicemail requesting a return call. When the Agency called C.G. again two weeks later, the phone continued ringing then disconnected. The court held a special hearing to address the Agency's new ICWA inquiries. In its minute order, the court stated it considered the Agency's addendum report and concluded "[n]otice pursuant to the Indian Child Welfare Act is not required because the court knows the child is not an Indian child. Reasonable inquiry has been made to determine whether the child is or may be an Indian child. The court finds that the Indian Child Welfare Act does not apply to this proceeding."
In its addendum report regarding its post-appeal IWCA inquiries, the Agency erroneously identified C.G. as maternal cousin. However, the record establishes that C.G. is maternal uncle.
The Agency moved to augment the record on appeal to include the Agency's addendum report and the minute order regarding the special hearing to address the Agency's post-appeal ICWA inquiries. This court considered the Agency's augment requests concurrently with the appeal and granted such requests by separate order.
DISCUSSION
Mother agues this court must reverse the juvenile court's findings and orders regarding ICWA compliance because the Agency failed to comply with its duty of inquiry under ICWA and related California law. Specifically, Mother contends the Agency asked only Father and Mother about N.R.'s potential Indian ancestry but failed to ask: (1) N.R. himself, (2) paternal grandmother, (3) maternal grandmother, (4) maternal grandfather, (5) maternal cousin, and (6) maternal uncle. While Mother did not identify "maternal cousin" by name, our review of the record shows there were two maternal cousins who were accessible to the Agency-J.B. and M.B. Additionally, there was only one maternal uncle accessible to the Agency- C.G.
Paternal grandfather passed away when Father was 10 years old.
As detailed below, the Agency failed to comply with its initial inquiry obligation because it did not ask N.R. himself and maternal cousin M.B. about Indian ancestry even though they are individuals identified by statute as necessary subjects of the Agency's initial inquiry, and they were available to the Agency. Thus, substantial evidence does not support the juvenile court's findings that the Agency complied with its inquiry obligations and that ICWA does not apply. Nonetheless, reversal is not required because such error was harmless. Accordingly, we affirm the court's order.
The juvenile court's finding that ICWA was inapplicable implied that the Agency fulfilled its inquiry duty. (See In re Austin J. (2020) 47 Cal.App.5th 870, 885 [a finding that "ICWA does not apply" implies social workers and court "did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry"].)
A. Applicable Law
Congress enacted ICWA 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.) Under California law adopted pursuant to ICWA, the juvenile court and Agency have an "affirmative and continuing duty to inquire" whether a child "is or may be an Indian child." (§ 224.2, subd. (a); see Isaiah W., at p. 9.)
As outlined by this court in In re D.S. (2020) 46 Cal.App.5th 1041, 1052 (In re D.S.), "section 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency's initial contact with a minor and his 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."
During the first stage of initial inquiry, "[s]ection 224.2, subdivision (b) 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.'" (In re D.S., supra, 46 Cal.App.5th at pp. 1048-1049.) ICWA defines" 'extended family member'" by "the law or custom of the Indian child's tribe" or, absent such law or custom, as "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); Welf. & Inst. Code, § 224.1, subd. (c) [" 'extended family member' . . . defined as provided in [§] 1903" ICWA].)
"On appeal, we review the juvenile court's ICWA findings for substantial evidence." (In re D.S., supra, 46 Cal.App.5th at p. 1051.) However, where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied. (Ibid.)
B. Analysis
Mother does not contend there was a reason to believe, or a reason to know that N.R. was an Indian child. Thus, the only issue is whether the Agency complied with its initial inquiry obligations, specifically, the requirement under section 224.2, subdivision (b), that the Agency ask N.R. himself and extended family members about N.R.'s potential Indian ancestry.
Mother asserts the Agency was in immediate contact with and was required to make an inquiry of the following six individuals: (1) N.R., (2) paternal grandmother, (3) maternal grandmother, (4) maternal grandfather, (5) maternal cousin, and (6) maternal uncle.
We dispose of Mother's challenge regarding paternal grandmother, maternal grandmother, and maternal grandfather because the record as augmented shows the Agency did in fact ask these three individuals about their Indian ancestry, and they all denied having any.
The Agency's failure to ask maternal uncle about potential Indian ancestry was not a violation of ICWA because the Agency made a meaningful effort to interview him by calling twice and leaving a voicemail, to no avail. (In re K.R. (2018) 20 Cal.App.5th 701, 709 [agency has obligation to make meaningful effort to locate and interview extended family members].)
Mother did not name who she was referring to in her assertion that the Agency failed to ask "maternal cousin" about potential Indian ancestry. Our review of the record shows there were two maternal cousins accessible to the Agency. That is, prior to the jurisdictional and dispositional hearing, N.R. was detained in the approved relative home of J.B. and M.B., who were identified as maternal cousins. The record as augmented shows maternal cousin J.B. denied there being any Indian ancestry in her family. However, the record reveals no effort by the Agency to make an inquiry of maternal cousin M.B. There is also no indication in the record that the Agency asked N.R. himself about his potential Indian ancestry.
Maternal cousin M.B. and N.R. himself were both necessary subjects of the Agency's initial inquiry. (See Welf. & Inst. Code, § 224.1, subd. (c) [" 'extended family member' . . . defined as provided in [§] 1903" of ICWA]; 25 U.S.C. § 1903(2) [definition of "extended family member" includes first or second cousin]; Welf. & Inst. Code, § 224.2, subd. (b) [duty of initial inquiry includes asking the child].) Thus, the Agency failed to comply with its initial inquiry obligation when it did not make any effort to ask M.B. and N.R. whether N.R. is or may be an Indian child.
Because the failure here concerns the Agency's duty of initial inquiry under section 224.2, subdivision (b), only state law is involved. Therefore, we may not reverse unless the error was prejudicial. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin).) That is, any error" 'must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.'" (In re AM. (2020) 47 Cal.App.5th 303, 318.) This district recently set forth a standard for applying the prejudicial error requirement in ICWA cases: "a court must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child. . . . Under this approach, we require continued inquiry where the probability of obtaining meaningful information is reasonable in the context of ICWA." (Benjamin, at p. 744.)
In Benjamin, the Court of Appeal conditionally reversed the juvenile court's order because the agency failed to obtain information that was readily available and "potentially meaningful." (Benjamin, supra, 70 Cal.App.5th at p. 744.) There, the agency was not able to locate the father and did not obtain any information about Indian ancestry from the minor's paternal side. (Id. at p. 740.) While the agency had access to the father's brother, it failed to ask him about potential Indian ancestry. (Id. at p. 744.) The court reasoned that "Father's brother's knowledge of his own Indian status would be suggestive of Father's status. While we cannot know how Father's brother would answer the inquiry, his answer is likely to bear meaningfully on the determination at issue about his brother." (Id. at p. 745.)
Here, any information the Agency may have obtained from an inquiry of maternal cousin M.B. and N.R. himself was not likely to bear meaningfully on whether N.R. is an Indian child. Unlike in Benjamin, the Agency asked members from both sides of N.R.'s family-Mother, Father, paternal grandmother, maternal grandmother, maternal grandfather, and maternal cousin J.B.-who each unequivocally denied any Indian ancestry. Additionally, there is nothing in the record to suggest that there may be Indian ancestry, and no reason to doubt the parents', grandmothers', grandfather's, and maternal cousin's denials. (Cf. In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016 [finding prejudicial error where agency relied only on denials by mother and father even though maternal and paternal extended family members were available for inquiry, mother was a product of foster care and may not have known her cultural heritage, and one detention report indicated the minor may be an Indian child].) In light of these unequivocal and uncontradicted denials of Indian ancestry, it is not likely that the Agency would have obtained information that would have borne meaningfully on the issue by asking N.R. himself and another maternal cousin. The Agency's failure to make that inquiry is therefore harmless.
DISPOSITION
The juvenile court's order is affirmed.
WE CONCUR: O'ROURKE, J. IRION, J.