Filed 2/23/22 In re Ryan E. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from an order of the Superior Court of Orange County, Jeremy D. Dolnick, Judge. Conditionally reversed and remanded with directions.

Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.

Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Minor.

Defendant Morgan H. (mother) appeals from the juvenile court’s order terminating parental rights pursuant to Welfare and Institutions Code section 366.26. Mother argues the trial court erred by failing to ensure respondent Orange County Social Services Agency (SSA) complied with the provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). We agree, conditionally reverse, and remand with directions to comply with ICWA.

FACTS

A. Dependency Proceedings

On March 19, 2020, SSA filed a first amended dependency petition, alleging the parents failed to protect minor Ryan E. Following a detention hearing on the amended petition, the juvenile court found SSA made a prima facie showing that Ryan came within Welfare & Institutions Code section 300.[1] The court found detention was necessary for the protection of the child, and continuance in the parents’ home would be contrary to the child’s welfare. It ordered SSA to abide by relative caregiver preference, and granted mother eight hours of supervised weekly visits. On March 26, 2020, SSA placed Ryan with the paternal grandparents.

On November 9, 2020, the juvenile court declared Ryan to be a dependent child and removed custody from the parents. It bypassed mother for family reunification services because she failed to show it was in the child’s best interest. At the combined six- and 12-month review hearing, the court found return of Ryan to the parents would be detrimental to the child, terminated reunification services, and set a section 366.26 hearing.

At the section 366.26 hearing, the juvenile court found Ryan was adoptable and mother did not meet her burden of proving the parent-child beneficial relationship exception to adoption. It ordered the parents’ parental rights terminated over Mother’s objection.

B. ICWA

On March 5, 2020, mother denied any Native American Heritage. On March 13, 2020, mother filed a Parental Notification of Indian Status form (ICWA-020), stating she had no known Indian heritage.

As to Father’s heritage, when questioned by the court, Mother denied having any reason to believe Father had any Indian heritage. The court ordered the ICWA finding deferred until Father could be heard from. According to the June 18, 2020 addendum report, in response to a mailed questionnaire, Father denied any known Native American ancestry.

The juvenile court’s order terminating parental rights did not mention ICWA, but the order was “necessarily premised on a current finding by the juvenile court that it had no reason to know [Ryan] was an Indian child.” (In re Isaiah W. (2016) 1 Cal.5th 1, 10, italics omitted). In a prior related proceeding, on November 13, 2017, the juvenile court found ICWA did not apply as to the maternal half siblings.

DISCUSSION

“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.” (In re W.B. (2012) 55 Cal.4th 30, 48.) “In 2006, . . . the Legislature incorporated ICWA’s requirements into California statutory law.” (Id. at p. 52.)

Under state law, “‘social services agencies and juvenile courts (but not parents) an ‘affirmative and continuing duty to inquire’ whether a child in the dependency proceeding ‘is or may be an Indian child.’” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 741-742, citing § 224.2, subd. (a).) When the agency takes the child into temporary custody, its 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).)

“The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings.” (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.) We review a juvenile court’s ICWA findings for substantial evidence. (In re Charles W. (2021) 66 Cal.App.5th 483, 490; In re Austin J. (2020) 47 Cal.App.5th 870, 885.) When the facts are undisputed, however, we review independently whether ICWA requirements have been satisfied. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.)

As noted, although the juvenile court did not make any explicit ICWA finding, its parental termination order is predicated on a finding that ICWA did not apply. That finding necessarily implies SSA complied with its duty to inquire. There is insufficient evidence, however, to support a finding SSA attempted to locate and interview any extended family members, such as Father’s biological parents. (See 25 U.S.C. § 1903(2) [“‘extended family member’ shall be as defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who had 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”]; § 224.1, subd. (c) [extended family member “shall be defined as provided in Section 1903 of” ICWA].) Because state law expressly requires SSA to ask extended family members, SSA did not satisfy its duty of inquiry. (See In re Benjamin M., supra, 70 Cal.App.5th at p. 744 [“CFS nevertheless failed its duty of inquiry by not asking ‘extended family members’”]; In re Y.W. (2021) 70 Cal.App.5th 542, 552-553 [agency “failed to satisfy its duty to inquire, under section 224.2, subdivision (b), whether Y.W. and Y.G. are or may be Indian children because it did not make meaningful efforts to locate and interview [mother’s] biological parents”].) “Because [SSA] did not fulfill its duty of inquiry, substantial evidence did not support the court’s finding that ICWA did not apply.” (In re Nikki R. (2003) 106 Cal.App.4th 844.)

SSA contends the trial court was entitled to rely on In re Austin J., supra, 47 Cal.App.5th 870, which holds that asking both parents about Indian ancestry fulfills the duty of initial inquiry. There, the appellate court noted that California law imposes duties of initial inquiry and further inquiry. The duty of initial inquiry includes “‘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).)” (Id., 47 Cal.App.5th at p. 883, italics added.) “California law also requires ‘further inquiry regarding the possible Indian status of the child’ when ‘the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding.” (§ 224.2, subd. (e).) The Legislature, which added the ‘reason to believe’ threshold for making a further inquiry in 2018, did not define the phrase. When that threshold is reached, the requisite ‘further inquiry’ ‘includes: (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and State Department of Social Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that might have information regarding the child’s membership or eligibility in a tribe.’” (Ibid., italics added.)

The Austin J. court determined the child welfare department satisfied its initial inquiry based on: (1) the social worker’s form declarations that an “‘Indian child inquiry’” was made and the inquiry revealed no indicia the child was an Indian child, (2) Father’s parental notification of Indian status form stating he had no knowledge of Indian ancestry, and (3) Mother’s parental notification of Indian status form stating she may have Indian ancestry. (In re Austin J., supra, 47 Cal.App.5th at pp. 887-888.) The court then determined that based on Father’s declaration, “there was no duty to make a ‘further inquiry’ as to his side of the family.” (Id. at p. 888.) It also concluded “the fact disclosed through the social worker’s initial inquiry regarding the possibility that the children are Indian children—that Mother may have Cherokee ancestry—is insufficient by itself to provide a reason to believe that either the children or their parents are members of, or eligible for membership in, an Indian tribe. Therefore, the statute imposed no duty to make further inquiry.” (Id. at p. 889.)

As the foregoing shows, where the parents deny Indian heritage, the Austin J. court limited the duty to query extended family members to the further inquiry stage. This limitation, however, is inconsistent with the express mandate in section 224.2, subdivision (b), that the agency must make meaningful efforts to locate and interview parents and extended family members at the initial inquiry stage. As explained in In re Y.W., supra, 70 Cal.App.5th 542: “Nothing in section 224.2, subdivision (b), relieves the Department of its broad duty to seek that information from ‘all relevant’ individuals . . . simply because a parent states on the ICWA-020 form, . . . ‘I have no Indian ancestry as far as I know.’ Such a rule ignores the reality that parents may not know their possible relationship with or connection to an Indian tribe.” (Id. at p. 554.)

SSA’s reliance on In re Josiah T. (2021) 71 Cal.App.5th 388, also is misplaced. There, the appellate court concluded the agency did not satisfy its duty of initial inquiry because it “neglected to interview the four available paternal relatives in any reasonable timeframe.” (In re Josiah T., supra, 71 Cal.App.5th at p. 403.) Here, SSA never attempted to locate and contact the paternal grandparents.

Finally, we cannot say SSA’s failure to inquire was harmless. While it is true SSA is not required to “‘cast about’ for investigative leads” (In re A.M. (2020) 47 Cal.App.5th 303, 323), “there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.) For example, in response to a mailed questionnaire inquiring about his family background, Father mentioned his biological father lived in Eastvale, California, and his biological mother lived in Arizona. The information those relatives could have given would likely have shed meaningful light on whether there is reason to believe Ryan is an Indian child. As noted, there is no evidence in the record that SSA tried to locate or interview Father’s parents about possible Native American heritage. (See In re Benjamin M., supra, 70 Cal.App.5th at pp. 745-746 [“When assessing whether ICWA inquiry error was harmless, a court must know enough about the persons contacted to determine if the agency failed to inquire of persons who might have helpful information; murky documentation of the agency’s efforts may support a reasonable inference that it failed to do so”].)

DISPOSITION

The order terminating parental rights to R.E. is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry provisions of ICWA and of Welfare and Institutions Code sections 224.2 and 224.3 (and, if applicable, the notice provisions as well), consistent with this opinion. If, after completing the initial inquiry, neither SSA nor the court has reason to believe or to know that R.E. is an Indian child, the order terminating parental rights to R.E. shall be reinstated. If SSA or the court has reason to believe that R.E. is an Indian child, the court shall proceed accordingly.

ZELON, J.*

WE CONCUR:

O’LEARY, P. J.

GOETHALS, J.

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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