Filed 7/12/22 In re S.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Donal B. Donnelly, Judge. Reversed with directions.

Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.

Tom Bunton, County Counsel and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

Mother, C.M., appeals from a judgment terminating her parental rights to S.M., Je.M., Ja.M., and H.M. She argues that the Riverside County Department of Public Social Services (DPSS) failed to discharge the continuing duty of inquiry as to whether a child is, or is eligible to be, an Indian Child pursuant to the Indian Child Welfare Act (ICWA). DPSS concedes that the duty of inquiry was not discharged and that a conditional reversal is appropriate. We conditionally reverse.

Background

In July 2020, DPSS intervened when it was alleged that father had absconded with Ja.M. Mother indicated father suffered from bipolar disorder, but, when police arrived, they informed mother that they could not get the child back because there were no Family Law orders granting her custody. Father’s version of the event differed significantly: he stated the children were with him and that he had gone to mother’s residence to get clothing, finding mother and the boyfriend in an argument. He was only able to extricate Ja.M. from the scene where the boyfriend had grabbed H.M., wrapping her tightly in a blanket and putting her in a car. Mother, who was bruised, started to leave, upsetting the children. The boyfriend pushed and threatened father while he was holding Ja.M., while mother put the other children in the house.

In August 2020, a report was made of domestic violence involving mother and her boyfriend, including allegations that the boyfriend used a belt to discipline the children who were still in her care.

A dependency petition was filed on September 1, 2020, under Welfare and Institutions Code[1] section 300, subdivision (b)(1). At the detention hearing on September 2, 2020, the children were detained from father but remained in mother’s care. The parents completed an ICWA-020 form, and while mother indicated no Indian ancestry, father indicated he may have Indian ancestry with the Cherokee tribe. Because the children were to remain with mother, the court found ICWA did not apply.

The social worker submitted an addendum report for the jurisdiction-disposition hearing,[2] expressing concern that mother was continuing a pattern of domestic violence in her relationship with the boyfriend. On September 29, 2020, the jurisdiction-disposition report was submitted, recommending true findings on all allegations, as well as a finding that ICWA does not apply because the children were remaining with mother, despite father’s indication of Indian ancestry[3], because he was not a registered member of a federally recognized tribe, had not resided on a reservation and had not attended school on a reservation. The report recommended that the children remain with mother with reunification services to be provided to father.

Prior to the hearing on jurisdiction-disposition, father was arrested for forcible rape and was incarcerated. As a consequence, on the date of the contested jurisdictional hearing, a first amended petition was filed, adding, under the section 300, subdivision (b) allegation, that father’s criminal charges exposed the children to substantial risk of harm, as well as an allegation under section 300, subdivision (g), regarding father’s incarceration which rendered him unable to provide the children with care and support.

On October 14, 2020, the children were detained from mother’s care due to the discovery of a large dark mark on the ear of S.M., who informed the social worker that her mother burned her. The social worker also became aware that mother had not ended her relationship with the boyfriend, allowing him to come into the home. It was also discovered that mother was using alcohol and smoking marijuana.

On October 28, 2020, the court conducted the hearing on the petition, allowing DPSS to file a second amended petition, modifying the allegations against mother and adding a second allegation under section 300, subdivision (g) against father. At the hearing conducted the same date, one of the section 300, subdivision (g) allegations was removed. The parents waived their rights and submitted to jurisdiction based on the social worker’s reports. The court made true findings on the allegations, declared the children dependents, and removed custody from mother and father. Reunification services were ordered for mother, but they were denied as to father under section 361.5, subdivisions (b)(12) and (e)(1).

In the six-month review report, submitted April 2, 2021, the social worker recommended that mothers services be terminated and that a section 366.26 hearing be set. Mother was homeless, staying with various friends and refusing to provide her address to the social worker. She seemed to still be in a relationship with the abusive boyfriend, was five months pregnant, and had not completed her service plan. Additionally, mother had failed to submit to a drug test since January 2021, despite three referrals, and on one occasion she appeared to be under the influence of an intoxicant. Mother had participated in a drug treatment program but had missed some appointments due to telephone issues with Zoom. Although mother had enrolled in a domestic violence program, she had not attended the group. Finally, mother’s visits were inconsistent, and she had allowed the children to talk to the boyfriend on the phone or in a video chat. DPSS recommended that services to mother be terminated.

The six-month review hearing was held on May 4, 2021, at which time the court found mother’s progress was minimal, and, by clear and convincing evidence, mother failed to participate and make substantial progress in the court ordered treatment program, although mother submitted a letter from MFI Recovery Center indicating mother had completed the drug treatment as of April 5, 2021, and that ICWA did not apply. Mother’s visits were reduced to twice per month and a hearing pursuant to section 366.26 was scheduled.

The section 366.26 report was initially submitted on August 20, 2021, but lacked an adoptability assessment. The report sought to reduce visits to one time per month, observing that while mother was granted two visits per month at the six-month review hearing, she only visited once in May and June respectively, with no other visits aside from telephone calls. On October 18, 2021, the adoption assessment was submitted recommending termination of parental rights and adoption by the current caretaker.[4]

Mother filed a petition pursuant to section 388 (JV-180) requesting that either the children be returned to her custody or that services be reinstated, which was heard on the date of the section 366.26 hearing. Mother submitted a letter from 10-Acre Ranch to show she had re-enrolled in a substance abuse program and was progressing. The court directed DPSS to prepare an addendum to respond to the petition. On December 7, 2021, the social worker submitted an addendum addressing mother’s allegation that she had completed the substance abuse program, but learned that the person who signed the letter was not actually a counselor at the program. It was also learned that the signatory of the letter was actually mother’s roommate and that mother had never attended the program at 10-Acre Ranch. The social worker learned through email inquiry with 10-Acre Ranch, that there was no record of mother’s attendance at the program. Consequently, mother withdrew that request to modify the prior court order.

However, mother submitted a new JV-180 request to change the court order on January 25, 2022, this time alleging that she had entered a new substance abuse program at MFI Recovery Center on January 5, 2022. The trial court set it to be heard in connection with the section 366.26 hearing. However, on the date of the section 366.26 hearing (conducted on February 1, 2022), the motion/petition was denied. The court then proceeded to terminate parental rights of both parents, designating the paternal great-grandmother as the prospective adoptive parent.

Mother timely appealed.

Discussion

The sole issue presented in this appeal is whether the court and DPSS failed to discharge the duty of inquiry into the children’s possible Native American ancestry. The record shows that despite father’s indication of Indian heritage, the juvenile court did not order an inquiry of relatives as to Indian heritage, or notice to the indicated tribes, despite father’s execution of the ICWA-020 form, notifying the court and CFS of his possible Indian heritage through a Cherokee tribe. Originally, the children were placed with mother, for which reason the trial court concluded that ICWA did not apply. However, on October 15, 2020, at the contested jurisdiction-disposition hearing, the children were detained from mother’s care and custody also, and the trial court concluded ICWA did not apply without ordering DPSS to inquire of relatives or make any other investigation into Indian heritage. DPSS concedes error, and we agree. Congress enacted ICWA in 1978 to address “‘rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’” (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8, quoting Miss. Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32 [104 L. Ed. 2d 29, 109 S. Ct. 1597].) ICWA declared that “it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .” (25 U.S.C. § 1902; In re Abbigail A. (2016) 1 Cal.5th 83, 90.)

California has “‘incorporate[d] ICWA’s requirements into California statutory law.’” (In re Abbigail A., supra, 1 Cal.5th at p. 91, quoting In re W.B. (2012) 55 Cal.4th 30, 52; see §§ 224–224.6.) “[S]ection 224.3, subdivision (a), provides that courts and county welfare departments ‘have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.’” (In re Isaiah W., supra, 1 Cal.5th at p. 9.)

“The continuing duty to inquire whether a child is or may be an Indian child ‘can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.’” (In re Y.W. (2021) 70 Cal.App.5th 542, 552, quoting In re D.F. (2020) 55 Cal.App.5th 558, 566; see also In re Charles W. (2021) 66 Cal.App.5th 483, 489.) Failure to “make meaningful efforts to locate and interview . . . ‘extended family members,’ as defined by ICWA and related California law”, is error. (In re Y.W., supra, 70 Cal.App.5th at p. 553, citing In re A.C. (2021) 65 Cal.App.5th 1060, 1069 [child protective agency “erred by failing to ask the father and his extended family members whether [the father] had any Indian ancestry”]; In re S.R. (2021) 64 Cal.App.5th 303, 314 [“[t]he statute obligates the court and child protective agencies to ask all relevant involved individuals . . . ‘whether the child is, or may be, an Indian child’”]; In re T.G. (2020) 58 Cal.App.5th 275, 290 [the “duty to inquire begins with initial contact [citation] and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child”].)

Therefore, DPSS was required to conduct further inquiry as to Indian heritage as soon as the children were removed from mother’s care. Considering that the minors resided with a relative, it would not have been unduly burdensome to discharge the statutory duty to follow up the inquiry into father’s continuing statements of Indian ancestry by investigating the existence of other relatives who might have more information[5], or, at a minimum to send notices to the Bureau of Indian Affairs. If DPSS would not be excused from seeking information from “all relevant individuals” even when the parent indicates he or she is unaware of Indian heritage (see In re Y.W., supra, 70 Cal.App.5th at pp. 553-554, citing In re S.R., supra, 64 Cal.App.5th at p. 314), it is similarly inexcusable where the parent (and the parent’s parent) indicates there may be Indian heritage.

Nevertheless, the court found that ICWA did not apply without requiring further inquiry by CFS when it was initially determined the children would remain with mother, and failed to follow up on the issue after the children were detained from mother’s care at a later hearing.

We therefore accept CFS’s concession and remand the matter to the juvenile court for further inquiry and notice to the tribes.

Disposition

The orders of the juvenile court terminating parental rights are vacated and the matter is remanded to the juvenile court with directions to order compliance with the inquiry and notice provisions of ICWA. If, after proper inquiry and notice, no response is received from a tribe indicating the minor is an Indian child, all previous findings and orders shall be reinstated. If a tribe determines that the minor is or is eligible to be an Indian child, or if other information is presented to the juvenile court that suggests the

minor is an Indian child as defined by ICWA, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of ICWA.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

CODRINGTON

J.

[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

[2] The addendum report actually preceded the jurisdiction-disposition report, seeking additional time to complete the investigation.

[3] The report notes that the paternal grandfather echoed this belief in Indian ancestry. However, he did not know which tribe, and did not know whether relatives might have information. Because the children were to remain in mother’s care, no further inquiry was made.

[4] The reports variously refer to the caretaker of the children as the maternal great-grandmother, J.T., or to the paternal great-grandmother. J.T. was named as the paternal great-grandmother in the addendum report filed on October 28, 2020, as the current caretaker, so we assume the paternal great grandmother has been the continuing caretaker.

[5] In the adoption assessment, we learn that the paternal great-grandmother was one of seven children born to her parents in the state of Texas. Thus, while the paternal great-grandmother might have been unaware of the details concerning her Native American heritage, there were other relatives to contact who might have known more.