Filed 8/16/22 In re E.L. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Memorandum Opinion[1]

Appellant, I.L., appeals from an order terminating her parental rights as to E.L. The sole issue raised on appeal is that the Santa Cruz County Human Services Department (the Department) and the juvenile court failed to comply with their duty of inquiry under the Indian Child Welfare Act (ICWA). (Welf. & Inst. Code, § 224.2[2]; 25 U.S.C. § 1901 et seq.) The Department concedes that the inquiry was insufficient but contends that any error was harmless. We conclude that the Department’s investigation was prejudicially insufficient and reverse and remand for the limited purpose of assuring compliance with ICWA.

1. Factual and Procedural Background

Shortly after E.L.’s birth, the Department received a report of general neglect. After completing an investigation, the Department filed a section 300 petition alleging that I.L. abused controlled substances and suffered from unstable and/or untreated mental health issues that negatively impacted her ability to care for E.L., and that E.L.’s presumed father, C.L., was unable and/or unwilling to supervise and protect E.L.

At the initiation of the dependency proceedings, both parents filed Parental Notification of Indian Status forms, on which they each checked the box indicating no known Indian ancestry. Without further inquiry, at the detention hearing, the juvenile court found E.L. was not an Indian child and that ICWA did not apply. The Department made no further inquiry regarding possible Indian ancestry.

Subsequently, at the disposition hearing, the juvenile court declared E.L. a dependent, and ordered that E.L. remain in the care and custody of his parents, and that the Department provide them with family maintenance services. E.L. remained with I.L. and C.L. until the Department filed a section 387 petition. After a hearing, the juvenile court removed E.L. from I.L. and C.L.’s custody and ordered the Department to provide reunification services. At a 12-month review hearing, the juvenile court terminated I.L. and C.L.’s reunification services and set the matter for a selection and implementation hearing.[3] At the contested section 366.26 hearing, the juvenile court terminated I.L. and C.L.’s parental rights.

I.L. and C.L. timely appealed the juvenile court’s order. In appeal number H049021, this court found that in light of In re Caden C. (2021) 11 Cal.5th 614, the juvenile court may not have sufficiently considered whether the child would suffer a detriment from the termination of parental rights. We reversed the order terminating I.L. and C.L.’s parental rights and remanded the matter for a new hearing. In accordance with this court’s opinion, the juvenile court held a section 388 hearing and a second section 366.26 hearing. The juvenile court again terminated I.L. and C.L.’s parental rights. I.L. timely appealed this order.

2. Discussion

On appeal, I.L. contends that the juvenile court’s order terminating parental rights must be conditionally reversed and the matter remanded to the juvenile court because the court failed to ensure compliance with ICWA. She argues that the Department’s failure to ask E.L.’s maternal grandmother and maternal great-grandparents about potential Indian ancestry violated ICWA and that the juvenile court erred in determining that ICWA did not apply. The Department concedes that its investigation was insufficient but contends that any such deficiency was harmless.

“We review the juvenile court’s ICWA findings for substantial evidence. [Citation.] Where the facts are undisputed, we independently review whether ICWA’s requirements have been satisfied. [Citation.]” (In re I.F. (2022) 77 Cal.App.5th 152, 162-163 (In re I.F.).) Where an appellate court determines that there has been noncompliance with ICWA’s inquiry and notice provisions, it may reverse and order a limited remand “to effect compliance with the ICWA.” (In re Veronica G. (2007) 157 Cal.App.4th 179, 187.)

In the dependency context, ICWA imposes on the court and the social worker “an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child.” (§ 224.2, subd. (a); see also Cal. Rules of Court, rule 5.481(a).) Such 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).) Extended family members 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.” (25 U.S.C. § 1903(2); § 224.1, subd. (c).)

The facts on appeal are undisputed. The parties agree that I.L. and C.L. filed Parental Notification of Indian ancestry forms with the juvenile court, and that those forms reported having no Indian ancestry. The parties further agree that the Department did not inquire of any of E.L.’s extended family members about whether E.L. is or may be an Indian child. The juvenile court concluded in March 2017 that ICWA did not apply in E.L.’s case and did not update those findings at any later date. On appeal, I.L. contends that the Department should have inquired of E.L.’s maternal grandmother and great-grandparents about E.L.’s potential Indian ancestry. The Department concedes that it failed to satisfy its initial duty of inquiry.

The Department’s only apparent inquiry in this case was requiring I.L. and C.L. to complete the Parental Notification of Indian Status forms. The Department interviewed E.L.’s maternal grandmother in connection with the section 387 petition and E.L.’s maternal and paternal grandmothers attended a hearing before the juvenile court in May 2018. Despite these opportunities, the Department did not inquire about Indian ancestry from any of these extended family members. In view of these facts, the Department failed to satisfy its ICWA’s duty of inquiry.

While the parties concede that the Department and the court failed in the duty of inquiry, the Department argues that the error was harmless. Courts have applied varying standards to this type of error. Some courts hold that a deficient ICWA inquiry mandates reversal, others adopt a harmless error approach. A third category strikes a balance somewhere in the middle. (See In re Dezi C. (2022) 79 Cal.App.5th 769, 777-778.) In this case, even if we adopt a harmless error analysis, the record is insufficient for this Court to conclude that adequate inquiry would not alter the juvenile court’s finding that ICWA did not apply. For instance, we observe that at the time of the Department’s section 300 petition, E.L.’s maternal grandmother and maternal great-grandparents resided in Grant’s Pass, Oregon. Identification of a specific geographic location where federally recognized Indian tribes are located may be relevant to ICWA’s inquiry and notice provisions, such that questioning these extended family members could foreseeably have altered the juvenile court’s finding. (See In re I.F., supra, 77 Cal.App.5th at p. 166 [identification of geographic area of ancestry weighs against arguments that further inquiry would be futile].) Although we can imagine facts that might render the error here harmless, the facts before us do not permit such a conclusion. As such, we reverse and remand this matter for the limited purpose of assuring compliance with ICWA.

3. Disposition

The juvenile court’s order terminating parental rights is reversed. The matter is remanded to the juvenile court to allow the Department to conduct further inquiry regarding E.L.’s Indian ancestry pursuant to ICWA consistent this this opinion. If, after further inquiry, the juvenile court determines that E.L. is not an Indian child and ICWA does not apply, the court shall reinstate the order terminating I.L.’s parental rights. (§ 224.2, subd. (i)(2); Cal. Rules of Court, rule 5.481(b)(3)(A)–(C).)

_______________________________

Greenwood, P. J.

WE CONCUR:

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Grover, J.

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Wilson, J.

In re E.L.; Santa Cruz County HSD v. C.L.

No. H049802

[1] We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)

[2] Subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified.

[3] A writ filed by C.L. in this court was denied. (C.L. v. Superior Court (Feb. 20, 2021, H048630 [2021 WL 486394]) [nonpub. opn.].)