Filed 6/10/22 In re A.R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from orders of the Superior Court of Kern County. Marcos R. Camacho, Judge.

Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.

Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

J.R. (mother) and Albert J. (father) are the parents of A.R. (born March 2017) and J.J. (born August 2020) (collectively, the children). Father appeals the juvenile court’s orders terminating his parental rights to the children pursuant to Welfare and Institutions Code section 366.26.[1] He contends the court and the Kern County Department of Human Services (department) failed to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because the department did not ask the children’s extended family members about possible Indian ancestry.[2] We conditionally affirm the court’s orders but remand for the limited purpose of ensuring compliance with ICWA and related California law.

FACTUAL AND PROCEDURAL BACKGROUND[3]

On August 21, 2020, the department received a referral after J.J. and mother tested positive for amphetamine at her birth.

On August 26, 2020, the department filed petitions on behalf of the children pursuant to section 300, subdivision (b), alleging the children were at substantial risk of suffering serious physical harm or illness due to the parents’ substance abuse and their willful or negligent failure to provide them with adequate food, clothing, shelter, or medical care. That same day the juvenile court issued a protective custody warrant and the children were placed in protective custody.

On August 27, 2020, a social worker spoke with mother and father and conducted an ICWA inquiry. Mother reported she had no known Indian ancestry. Father reported he could have Indian ancestry and would get more information in time for the detention hearing the next day. Mother subsequently completed Judicial Council form ICWA-020, Parental Notification of Indian Status, and checked the box stating she had no Indian ancestry as far as she knew.

On August 28, 2020, at the detention hearing, mother testified she did not know if she had Indian ancestry because she had been in foster care since she was five years old. She did not know all of her family and stated she could not give “a yes-or-no answer.” The juvenile court asked mother if she had contact with her biological family. Mother stated she still spoke to her father, but had little contact with her mother and siblings. Neither her father nor her mother ever indicated she had Indian ancestry. She also had “a little” contact with her maternal grandmother (i.e., maternal great‑grandmother). Maternal great-grandmother never mentioned there was Indian ancestry in the family either. Mother was never adopted. She said she got “emancipated out” when she turned 18 years old. The juvenile court found ICWA did not apply as to mother.

Father testified he had Indian ancestry on his mother’s (i.e., paternal grandmother) side. He said his maternal grandmother’s sister had four children who were enrolled in an Indian tribe and were receiving benefits—Francisco M., Cynthia H., Angela M., and Eric M. He did not know what tribe they belonged to, but said the cousins could provide that information. He had contact information for all four cousins stored on his phone, but did not have the phone with him at the hearing. All four cousins lived in Bakersfield. The juvenile court instructed father to provide the social worker with everyone’s contact information.

Father also believed he had Indian ancestry through his father’s (i.e., paternal grandfather) side. However, paternal grandfather was deceased, and father did not know what tribe he belonged to. He identified two paternal relatives who could possibly provide more information—paternal great-grandmother Lola M. and paternal cousin Paul M. Lola M. was paternal grandfather’s mother and lived in San Diego. Paul M. lived in San Bernardino County. Father also had their contact information stored on his phone and said he would pass it along to the social worker. Additionally, he noted that his maternal grandmother could also provide information about paternal grandfather’s Indian ancestry. The juvenile court reserved the issue of ICWA as to father so that the department could follow up with the information he provided.

On November 4, 2020, a department paralegal contacted paternal grandmother to gather further information as to ICWA. Paternal grandmother reported her family had Indian ancestry through her grandmother (i.e., paternal great-great-grandmother), but she had passed away. She did not know the name of the tribe and did not know if anyone else in the family had more information. She also believed paternal grandfather had Indian ancestry. Because he was deceased she said she would try and contact his sister to get additional information.

The paralegal also called father to gather further information pertaining to ICWA, but his phone number was no longer in service. She attempted to reach him at a second phone number, but was unable to leave a voice message and sent a text message instead.

On November 5, 2020, paternal grandmother called the paralegal back to provide additional information regarding paternal grandfather. She reported she spoke to “the great aunt” and was informed that paternal grandfather’s family did not have Indian ancestry. The paralegal then e-mailed the social worker the information paternal grandmother provided and stated that “[w]ithout the name of the tribe for the maternal side of the father’s family, [she was] unable to send notice or inquiry.” The paralegal concluded that father’s paternal side did not have Indian ancestry.

On December 9, 2020, at the disposition hearing, the juvenile court found there was no reason to believe that the children had Indian ancestry and that ICWA did not apply.

On November 23, 2021, the juvenile court terminated mother and father’s parental rights at a section 366.26 hearing.

On November 30, 2021, father filed a notice of intent challenging the juvenile courts orders terminating his parental rights, which this court deemed to be a notice of appeal.

DISCUSSION

I. Legal Principles

“ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation. [Citations.] Congress enacted ICWA to further the federal policy ‘ “that, where possible, an Indian child should remain in the Indian community ….” ’ ” (In re W.B. (2012) 55 Cal.4th 30, 48, fn. omitted.)

“ICWA provides that ‘n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ ” ([i]In re A.R. (2022) 77 Cal.App.5th 197, 203; 25 U.S.C. § 1912(a).) “This notice requirement, which is also codified in California law [citation], enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives the required notice.” (In re Isaiah W. (2016) 1 Cal.5th 1, 5.)

“In California, section 224.2 ‘codifies and elaborates on ICWA’s requirements of notice to a child’s parents or legal guardian, Indian custodian, and Indian tribe, and to the [Bureau of Indian Affairs].’ ” (In re A.R., supra, 77 Cal.App.5th at p. 204.) Section 224.2 provides in pertinent part that “[t]he court, [and the] county welfare department, … have an affirmative duty to inquire whether a child for whom a petition under Section 300 … may be or has been filed, is or may be an Indian child. The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting the child abuse or neglect whether the party has any information that the child may be an Indian child.” (§ 224.2, subd. (a).) Once a child is placed in the temporary custody of a county welfare department pursuant to section 306, the county welfare department “has a duty to inquire whether that child is an Indian child. 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 and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).) “At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child.” (§ 224.2, subd. (c).)

In some cases, the court or social worker must also conduct what is called “further inquiry.” The duty of further inquiry is triggered when the court or social worker have “reason to believe” an Indian child is involved in the proceedings. (§ 224.2, subd. (e).) “There is reason to believe a child involved in a proceeding is an Indian child whenever the court, [or] social worker, … 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.” (§ 224.2, subd. (e)(1).) Further inquiry includes, but is not limited to, “nterviewing the parents, Indian custodian, and extended family members,” and contacting the Bureau of Indian Affairs, the State Department of Social Services, and the tribes and any other person who may have information. (§ 224.2, subd. (e)(2)(A)–(C).)

“If the further inquiry ‘results in a reason to [i]know the child is an Indian child, then the formal notice requirements of section 224.3 apply.’ ” (In re Y.W. (2021) 70 Cal.App.5th 542, 552.) “The notice must include enough information for the tribe to ‘conduct a meaningful review of its records to determine the child’s eligibility for membership .…’ ” (In re D.S. (2020) 46 Cal.App.5th 1041, 1050.)

The juvenile court may not “find that ICWA does not apply when the absence of evidence that a child is an Indian child results from a [child protective agency] inquiry that is not proper, adequate, or demonstrative of due diligence.” (In re Josiah T. (2021) 71 Cal.App.5th 388, 408.)

“ ‘[W]e 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 order. [Citations.] We must uphold the court’s orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance.’ ” (In re D.F. (2020) 55 Cal.App.5th 558, 565.) “Thus, we do not consider whether there is evidence from which the dependency court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw.” (In re Noe F. (2013) 213 Cal.App.4th 358, 366.)

II. The Juvenile Court Failed to Ensure the Department Complied with ICWA and Related California Law

Father contends the department failed to conduct an adequate initial ICWA inquiry because it failed to interview several of the children’s extended family members about his possible Indian ancestry. We agree the department failed to satisfy its duty of initial inquiry.

Section 224.2, subdivision (b), required the department, as part of its initial inquiry, to inquire of the children’s extended family members regarding possible Indian ancestry. “Under both ICWA and California law, ‘ “extended family member[s]” ’ include the 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.’ ” (In re D.S., supra, 46 Cal.App.5th at p. 1053; 25 U.S.C. § 1903(2); § 224.1, subd. (c).) In In re Benjamin M. (2021) 70 Cal.App.5th 735, the court held that “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.” (Id. at p. 744.)

Here, information relevant to the children’s possible Indian ancestry was readily obtainable from several extended family members. At the detention hearing, father testified he believed he had Indian ancestry on both his mother and father’s side of the family (i.e., paternal grandparents). He specifically identified six individuals at the hearing who could provide further information about the family’s Indian status. On the paternal grandmother’s side, he identified four cousins that were enrolled in and were receiving benefits from an Indian tribe—Francisco M., Cynthia H., Angela M., and Eric M. On the paternal grandfather’s side, he identified paternal great‑grandmother Lola M. and paternal cousin Paul M. Father testified he had contact information for all six relatives; thus, the information was readily obtainable. Although, the juvenile court instructed father to provide the department with everyone’s contact information, ultimately the “duty to develop information concerning whether [the children were] Indian child[ren] rest[ed] with the court and the [department], not the parents or members of the parents’ families.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 430.) The record reflects that after the detention hearing, the department only made one attempt to contact father to gather additional information for the purposes of ICWA. However, the department had numerous contacts with father during the pendency of the proceedings and could have followed up on the information on any of those instances. For example, father appeared at multiple hearings and participated in visitation with the children supervised by the department.

“[T]he information those relatives could have given would likely have shed meaningful light on whether there [was] reason to believe [the children were] Indian child[ren].” (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.) “ ‘Reason to believe’ is broadly defined as ‘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.’ ” (Ibid.) When the department interviewed paternal grandmother, she reported that she learned from a great-aunt that paternal grandfather’s family did not have Indian ancestry. Based on this information, the department determined that father’s paternal side did not have Indian ancestry. However, the department could have contacted paternal great‑grandmother Lola M. as she was paternal grandfather’s mother. It is likely she would have had more information regarding the paternal grandfather’s side of the family. The department could have also interviewed paternal cousin Paul M.

Additionally, there was still the possibility that father’s maternal grandmother’s side of the family had Indian ancestry. As previously noted, the department interviewed paternal grandmother, who reported her family was also of Indian ancestry, but she did not know the name of the tribe. Because she did not have the tribe’s information, the department simply concluded that “[w]ithout the name of the tribe for the maternal side of the father’s family, [the department was] unable to send notice or inquiry.” However, there were four cousins on the paternal grandmother’s side that the department could have inquired of. Father identified these individuals as being enrolled in a tribe at the detention hearing and stated he had their contact information. Thus, interviewing the cousins could have shed meaningful light as to the children’s status. (In re Antonio R., supra, 76 Cal.App.5th at p. 435 [“In most circumstances, the information in the possession of extended relatives is likely to be meaningful in determining whether the child is an Indian child—regardless of whether the information ultimately shows the child is or is not an Indian child.”].) The record does not contain any evidence the department attempted to contact the cousins. (See In re Y.W., supra, 70 Cal.App.5th at pp. 552–553 [appellate court found department failed to satisfy its duty of inquiry where the department learned of viable leads for extended family members but failed to pursue them]; see also In re K.R. (2018) 20 Cal.App.5th 701, 709 [“a social services agency has the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child’s possible Indian status”].)

Moreover, we note the record contained a report indicating the department spoke to a paternal cousin named James S. about placement and that it had contact information for another paternal cousin named Julian. But again, there is no indication the department asked them about the family’s possible Indian status. (See In re Josiah T., supra, 71 Cal.App.5th at pp. 403–404, 408 [appellate court reversed juvenile court’s order terminating parental rights where the department failed to interview available extended family members regarding child’s Indian ancestry].)

In sum, there were numerous family members the department could have easily inquired of for purposes of ICWA, but failed to do so despite the availability of readily obtainable information. “In the absence of an appellate record affirmatively showing the court’s and the agency’s efforts to comply with ICWA’s inquiry and notice requirements, we will not, as a general rule, conclude that substantial evidence supports the court’s finding that proper and adequate ICWA notices were given or that ICWA did not apply.” (In re N.G. (2018) 27 Cal.App.5th 474, 484.) Because the record did not contain information that the department contacted these extended family members, we conclude there was insufficient evidence to support the juvenile court’s finding that ICWA did not apply as to father.

DISPOSITION

The November 23, 2021 orders terminating father’s parental rights are conditionally affirmed. We remand for the department and the juvenile court to comply with the inquiry and notice provisions of ICWA and California law. If the court finds the children are Indian children, it shall conduct a new section 366.26 hearing, as well as all further proceedings, in compliance with ICWA and related California law. If not, the court’s original section 366.26 orders will remain in effect.

* Before Franson, Acting P. J., Smith, J. and Snauffer, J.

[1] All further statutory references are to the Welfare and Institutions Code.

[2] Mother separately appealed the juvenile court’s orders terminating parental rights to the children in case No. F083599.

[3] The sole issue on appeal concerns ICWA; therefore, we restrict our facts to those bearing on that issue.