Filed 6/2/22 In re Robert W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Susan M. Gill, Judge.

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

Margo A. Raison, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Jeremy W. (father) is the father of the child Robert W., who is the subject of a dependency case. Father challenges the juvenile court’s orders terminating his parental rights at a Welfare and Institutions Code section 366.26[1] hearing. Father’s sole claim is that the Kern County Department of Human Services (department) failed to comply with the inquiry provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because the department did not ask Robert’s known relatives about possible Indian ancestry.

The department concedes that it failed to conduct adequate ICWA inquiry as to possible Indian ancestry of Robert, and it does not oppose remand for the limited purpose of conducting further ICWA inquiry. We agree with the parties and conditionally reverse the juvenile court’s orders terminating parental rights and remand for proceedings to ensure ICWA compliance.

FACTUAL AND PROCEDURAL BACKGROUND

Since father does not challenge the juvenile court’s jurisdictional finding, dispositional ruling, or findings supporting its decision to select adoption as the permanent plan and terminate parental rights, a detailed summary of the evidence supporting these rulings is unnecessary.

In May of 2020, the department took 22-month-old Robert into protective custody when he was found wandering in a park without parental supervision. Police found father and Ashley R. (mother)[2] sleeping in the park and, when police woke them, they had no idea where Robert was. Both parents were arrested.

Mother and father had a history of domestic abuse and homelessness. The department filed a section 300 petition on June 1, 2020, alleging Robert was at risk of substantial harm due to neglect, domestic violence between the parents, the parents unstable housing, and father’s history of substance abuse.

On June 2, 2020, father and mother both filed a Parental Notification of Indian Status form (ICWA-020) stating neither had any known Native American heritage.

At the detention hearing June 2, 2020, Robert was detained, and father given twice a week supervised visitation. The juvenile court found the ICWA did not apply.

Father, who was incarcerated at the time, and mother were present at the jurisdiction and disposition hearing held August 5, 2020. The section 300 petition was sustained, and Robert removed from both mother and father’s custody. Reunification services and visitation were ordered.

At the six-month hearing March 30, 2021, father remained incarcerated, but was present in court. Mother was not present. The juvenile court determined that father had not had services available to him due to his custody status and had therefore not made progress with his case plan. Services for both parents were continued for six months.

Robert remained with his caregivers during the 12-month review period. He had a close relationship with them and referred to them as “mommy” and “daddy.” Father remained incarcerated and had been sentenced to two years and eight months in prison.

At the 12-month review hearing July 28, 2021, the juvenile court found father had made minimal progress with his case plan and mother had made none. Reunification services were terminated and a section 366.26 hearing set.

Father was present at the November 22, 2021, section 366.26 hearing. The juvenile court found, by clear and convincing evidence, that Robert was adoptable and terminated father and mother’s parental rights.

DISCUSSION

Father contends the juvenile court’s finding that ICWA did not apply was not supported by sufficient evidence because the record does not reflect any inquiry of paternal and maternal family members regarding Native American ancestry by the department. The department concedes the issue.

“[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 A.M. (2020) 47 Cal.App.5th 303, 314.)

“Congress enacted ICWA in 1978 in response to ‘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, 8; see In re J.C. (2022) 77 Cal.App.5th 70, 76; In re T.G. (2020) 58 Cal.App.5th 275, 287.) ICWA provides: “ ‘In 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.’ [Citation.] 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.” (In re Isaiah W., at p. 5; see 25 U.S.C. § 1912(a); § 224.3, subd. (a); In re J.C., at p. 76; In re H.V. (2022) 75 Cal.App.5th 433, 436.)

“ ‘ “ ‘Federal regulations implementing ICWA ... require that state courts “ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.” [Citation.] The court must also “instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.” ’ ” ’ ” (In re J.C., supra, 77 Cal.App.5th at p. 77; see 25 C.F.R. § 23.107(a).) California law “ ‘more broadly imposes on 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 J.C., at p. 77; see § 224.2, subd. (a); In re Benjamin M. (2021) 70 Cal.App.5th 735, 741-742.)

“Section 224.2 ‘ “ ‘creates three distinct duties regarding ICWA in dependency proceedings.’ ” ’ ” (In re J.C., supra, 77 Cal.App.5th at p. 77; see In re H.V., supra, 75 Cal.App.5th at p. 437; In re Charles W. (2021) 66 Cal.App.5th 483, 489.) “First, section 224.2, subdivision (b) requires the child protective agency to ask ‘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.’ ” (In re J.C., at p. 77; see In re H.V., at p. 437; Cal. Rules of Court, rule 5.481(a)(1).) Although this duty is “commonly referred to as the ‘initial duty of inquiry,’ it ‘begins with the initial contact’ (§ 224.2, subd. (a)) and continues throughout the dependency proceedings.” (In re J.C., at p. 77.)

“Second, if the court or child protective agency ‘has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child,’ the court and the Department ‘shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.’ ” (In re J.C., supra, 77 Cal.App.5th at p. 78; see § 224.2, subd. (e); In re H.V., supra, 75 Cal.App.5th at p. 437; Cal. Rules of Court, rule 5.481(a)(4).) “Third, if the further inquiry ““results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply.” ’ ” (In re J.C., at p. 78; see 25 U.S.C. § 1912(a); § 224.3, subd. (a); In re H.V., at p. 437.)

“ ‘ “ ‘The juvenile court must determine whether ... ICWA applies to the proceedings.’ ” [Citation.] “If the court makes a finding that proper and adequate further inquiry and due diligence as required in [section 224.2] have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence.” ’ ” (In re J.C., supra, 77 Cal.App.5th at p. 78; see § 224.2, subd. (i)(2); In re D.S. (2020) 46 Cal.App.5th 1041, 1050; Cal. Rules of Court, rule 5.481(b)(3).) The court may not, however, “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; see In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)

Father argues the department failed to conduct an adequate inquiry at the initial stage into whether Robert may be an Indian child. Father contends the department asked him and mother about any known Indian heritage but failed to ask the extended family members on either side of the family. Father notes that, early in June 2020, the department had contact information and sent notification letters and information on consideration of placement to 10 paternal relatives and 13 maternal relatives regarding placement. The report prepared in anticipation of the six-month review hearing states that, in September 2020, the department closed its “Family Finding” portion of the case, stating it had identified “29 maternal relatives (including children and deceased relatives) and 18 paternal relatives (including children and deceased relatives)” and similar letters and information “were mailed.” Yet, there is nothing in the record to suggest anyone in the department asked any of these family members about possible Indian ancestry. (See In re H.V., supra, 75 Cal.App.5th at p. 438 [child protective agency’s “first-step inquiry duty under ICWA and state law was broader” than simply asking the parent about possible Indian ancestry, “requiring it also to interview, among others, extended family members”]; see also In re S.R. (2021) 64 Cal.App.5th 303, 314 [section 224.2 “obligates the court and child protective agencies to ask all relevant involved individuals ... ‘whether the child is, or may be, an Indian child’ ”].)

Furthermore, nothing in the record shows the juvenile court inquired about the department’s efforts. (See In re J.C., supra, 77 Cal.App.5th at p. 79 [juvenile court “did not satisfy its duty to ensure the [child protective agency] adequately investigated whether [the child] may be an Indian child” where there was “no indication in the record that, after the detention hearing, the juvenile court gave ICWA another thought in the almost three years of this dependency case”].)

When error in the initial inquiry is found, there is a disagreement among the appellate court’s as to whether the failure to discharge the duty of initial inquiry under section 224.2, subdivision (b), constitutes prejudicial, reversible error.

The published cases seem to fall into three groups: the first concludes that the error warrants reversal in every case because the duty to inquire was mandatory and unconditional. (See, e.g., In re Y.W. (2021) 70 Cal.App.5th 542, 556; In re K.R. (2018) 20 Cal.App.5th 701.) In Y.W. the court rejected the notion that a parent should have to make a factual showing of prejudice, emphasizing “the point of the statutory requirement that the social worker ask all relevant individuals whether a child is or may be an Indian child: to obtain information the parent may not have.” (Y.W., supra, 70 Cal.App.5th at p. 556.) The rule establishing automatic reversal without any reason to believe Native American heritage exists could potentially reward parental gamesmanship and undermine the policy favoring prompt resolution of juvenile dependency cases. It also potentially runs afoul of the constitutional requirement that judgments can only be reversed on appeal in cases where a manifest miscarriage of justice has been shown. (Cal. Const., art. VI, § 13.)

The second group of cases concludes that the error does not warrant reversal unless a “miscarriage of justice” is demonstrated to have occurred as a consequence of the failure to inquire about Native American heritage. (See Cal. Const., art. VI, § 13 [“No judgment shall be set aside ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice”].) These cases would allow a parent to make an offer of proof on appeal, showing there is reason to believe Native American heritage exists. (See, e.g., In re A.C. (2021) 65 Cal.App.5th 1060, 1069; In re Noreen G. (2010) 181 Cal.App.4th 1359, 1388; In re N.E. (2008) 160 Cal.App.4th 766, 770; In re Rebecca R. (2006) 143 Cal.App.4th 1426.) In the absence of such an affirmative showing, this line of cases concludes the judgment should be affirmed. But this rule allowing reversal only in cases where the parent makes at least an offer of proof regarding Native American heritage amounts to a rule that effectively shifts the department’s unconditional statutory burden to the parents in cases where the department has failed to fulfill it.

The third option is the self-described “middle ground” approach taken in Benjamin M., supra, 70 Cal.App.5th 735, in which the appellate court would determine, on a case by case basis, whether the record reflects there are known relatives identified by the child welfare agency, who appear to have been able to shed light on the issue of Native American heritage. Benjamin M. held that the failure to inquire would be reversible error if “there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” (Id. at p. 744.) Thus, the Benjamin M. court found the failure to inquire about Native American heritage in that case, regardless of whether the information was likely to show that the child is an Indian child, was reversible error because the agency “failed its duty of inquiry by not asking ‘extended family members’ [citation] such as Father’s brother and sister-in-law whether Benjamin has Indian ancestry on his paternal side.... [T]he missing information here was readily obtainable, as CFS had spoken to Father’s sister-in-law and Father’s brother and has the address (through Mother) for either that brother or another one. Moreover, the information those relatives could have given would likely have shed meaningful light on whether there is reason to believe Benjamin is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.)

The Benjamin M. analysis seems to rest on the distinction between cases where it appears an inquiry could have been easily conducted—because the record demonstrates relatives were known and readily accessible—and cases where the record does not reflect the inquiry would have been so easy. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) But the agency’s obligation to make the ICWA inquiry standard does not appear to be based upon the ease of compliance.

Ease of compliance aside, it is possible that there are cases where the department erred but where, considering the entire record, it was obvious that additional information would not have been meaningful to the inquiry. (See, e.g., In re Charles W., supra, 66 Cal.App.5th at p. 490 [department made adequate initial inquiry where there was an undisputed and unchallenged finding that ICWA did not apply to two older full siblings].) But the case before us does not fit into that category. Here, we find reversible error occurred. The department had the names and contact information for numerous relatives on both mother and father’s side. When it contacted these individuals about possible interest in placement of Robert, it should have asked about any possible Indian heritage as well. That, along with the department’s concession that error occurred, lead us to conclude that the juvenile court’s finding that ICWA did not apply was not supported by substantial evidence and limited remand is required.

DISPOSITION

The finding that ICWA does not apply is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the department to comply with the inquiry provisions set forth in Welfare and Institutions Code section 224.2.

If, after the court finds adequate inquiry has been made consistent with the reasoning in this opinion, the court finds ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court finds ICWA does not apply, the finding that ICWA does not apply to the case shall be reinstated.

In all other respects, the court’s orders terminating parental rights are affirmed.

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

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

[2] Mother is not a party to this appeal.