Filed 6/14/22 In re J.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a judgment of the Superior Court of Fresno County. Gary L. Green, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Ronald H. (father) appeals the juvenile court’s order terminating his parental rights to J.H. and B.H. (collectively, the children), pursuant to Welfare and Institutions Code section 366.26.[1] His sole contention on appeal is that the Fresno County Department of Social Services (department) failed to comply with the requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because it did not ask the children’s extended family members about the children’s possible Indian ancestry. We conditionally affirm and remand for the juvenile court and the department to comply with the inquiry provisions of ICWA and related California law.

FACTUAL AND PROCEDURAL BACKGROUND[2]

On December 7, 2020, the department received a referral on behalf of the children and their two siblings after Jennifer M. (mother) left them with maternal grandmother and did not return.[3] Maternal grandmother called child welfare services and reported she could no longer care for the children and requested that someone pick them up. During the investigation, a social worker interviewed maternal grandmother, maternal stepgrandfather, and mother’s adult son.[4] Mother and the children had been living with the maternal grandparents for eight months, but mother left after she got into an argument with maternal stepgrandfather. Father was incarcerated. Two days after the department received the referral, the children were detained and placed in a licensed foster home. One of the children’s siblings was left in relative placement with the maternal grandparents.

On December 10, 2020, the department filed a petition pursuant to section 300, subdivision (b)(1), alleging the children were at substantial risk of suffering serious physical harm or illness due to mother’s substance abuse problem and unstable lifestyle. Father was listed as the children’s presumed father. The petition stated the social worker had been unable to complete an inquiry as to the children’s Indian status due to mother’s lack of cooperation.

The detention report stated ICWA could apply. The department had been unable to inquire as to the children’s Indian status because mother had not cooperated during the interview process and father was incarcerated.

On December 11, 2020, at the detention hearing, mother stated she did not have Indian ancestry. Father was still incarcerated, and a social worker mailed him a letter and inquired about Indian ancestry. Father completed a Parental Notification of Indian Status form (ICWA-020) and checked the box indicating he had no Indian ancestry as far as he knew.

On January 6, 2021, father completed a Statement Regarding Parentage form (JV‑505), claiming to be the father of the children’s younger sibling. In his statement, he identified family members that could testify or had knowledge about his parentage to the child. These family members included Be. H., Richard H., Cindy H., C. H., and Harold H. He provided telephone numbers for Cindy H. and Be. H. Be. H. was later identified as paternal great-grandmother, Cindy H. as paternal great‑aunt, and Harold H. as paternal great-uncle.

On January 7, 2021, father wrote a letter to the department’s social worker, stating he wanted to “keep all [his] rights,” and would do everything the court asked of him. He requested visitation of the children on behalf of paternal great-grandmother and paternal great-aunt. He provided telephone numbers for paternal great-grandmother, Be. H., paternal great-aunt, Cindy H., and paternal great-uncle, Harold H.

The jurisdiction and disposition report noted paternal great-grandmother reached out to the department to request visitation, but stated she could not take placement of the children.

On February 17, 2021, at the jurisdiction and disposition hearing, the juvenile court found the children did not come within the provisions of ICWA.

On December 1, 2021, at the section 366.26 hearing, the juvenile court terminated mother and father’s parental rights.

On January 24, 2022, father filed a notice of appeal.

DISCUSSION

I. Applicable Law

“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, 7.) “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 (A.R.); 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. ” (In re Isaiah W., at p. 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].’ ” (A.R., supra, 77 Cal.App.5th at p. 204.) “ ‘[S]ection 224.2, “creates three distinct duties regarding ICWA in dependency proceedings.” ’ ” (In re H.V. (2022) 75 Cal.App.5th 433, 437 (H.V.).) “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. (2022) 77 Cal.App.5th 70, 77 (J.C.).) “Although 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.” (Ibid.) “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.’ ” (Id. at p. 78, fn. omitted.) “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.’ ” ’ ” (Ibid.)

“ ‘ “ ‘The juvenile court must determine whether proper notice was given under ICWA and 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.” ’ ” (J.C., supra, 77 Cal.App.5th at p. 78.) 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 where 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. Substantial Evidence Does Not Support the Juvenile Court’s ICWA Finding

Father argues the department failed to comply with its duty of initial inquiry because it did not ask extended family members on either side of the family about the children’s Indian ancestry. We agree.

Section 224.2, subdivision (b), required the department, as part of its initial inquiry, to inquire of the children’s extended family members, and anyone who has an interest in the children, 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. (2020) 46 Cal.App.5th 1041, 1053; 25 U.S.C. § 1903(2); § 224.1, subd. (c).)

The record reflects that the department interviewed maternal grandmother, maternal stepgrandfather, and mother’s adult son prior to the children’s detention. The department continued to have contact with the maternal grandparents because one of the children’s siblings was placed in their care and remained with them during the pendency of the proceedings. Additionally, early in the proceedings, father provided the department with contact information for paternal great-grandmother, paternal great‑aunt, and paternal great-uncle. Paternal great‑grandmother also reached out to the department and requested visitation of the children. Nothing in the record suggests anyone in the department asked any of these family members about possible Indian ancestry. (See 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 parents about possible Indian ancestry, “requiring it also to interview, among others, extended family members”].)

Neither is there any evidence in the record that shows the juvenile court inquired about the department’s efforts. (See In re Antonio R. (2022) 76 Cal.App.5th 421, 431 [“a juvenile court errs in making a finding ICWA does not apply to the proceedings without first ensuring that the Department has made an adequate inquiry under ICWA and California law, and if necessary, the court must continue the proceedings and order the Department to fulfill its responsibilities”].)

“[T]he Courts of Appeal are divided as to whether a parent must make an affirmative showing of prejudice to support reversal where the Department failed fully to perform its initial duty of inquiry.” (In re Antonio R., supra, 76 Cal.App.5th at p. 433.) “The published cases seem to fall into three groups: the first concludes that the conceded error warrants reversal in every case because the duty to inquire was mandatory and unconditional.” (A.R., supra, 77 Cal.App.5th at p. 205; see, e.g., H.V., supra, 75 Cal.App.5th at p. 438; see also, e.g., In re Y.W. (2021) 70 Cal.App.5th 542, 556.) However a “rule establishing automatic reversal without any reason to believe Native American heritage exists would 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.” (A.R., supra, 77 Cal. App. 5th at p. 206.)

“The second group 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.” (A.R., supra, 77 Cal.App.5th at p. 205.) “These cases would allow a parent to make an offer of proof on appeal, showing there is reason to believe Native American heritage exists.” (Ibid.) Absent such a showing, judgment would be affirmed. (Ibid.) But this rule “effectively shifts the agency’s unconditional statutory burden to the parents in cases where the agency has failed to fulfill it.” (Id. at p. 206.)

“The third option is the self-described ‘middle ground’ approach taken in [In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.)], 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.’ ” (A.R., supra, 77 Cal.App.5th at pp. 205–206.) Benjamin M. rejected the idea that an appealing parent had to make an offer of proof about the child’s Indian ancestry to demonstrate prejudice. (Benjamin M., at p. 745.) Moreover, “Benjamin M. rejected an approach that would require reversal in all cases where the agency erred, explaining: ‘There are cases where … it was obvious that additional information would not have been meaningful to the inquiry. This might occur where the evidence already uncovered in the initial inquiry was sufficient for reliable determination.’ ” (J.C., supra, 77 Cal.App.5th at p. 81.) For example, additional information would not be meaningful where the department has already made an undisputed and unchallenged finding that ICWA did not apply to a dependent child’s full siblings. (In re Charles W. (2021) 66 Cal.App.5th 483, 490 [department made adequate initial inquiry where there was an undisputed and unchallenged finding that ICWA did not apply to two older siblings].) The case before us does not fit into such a category.

The department had names and contact information for numerous relatives and should have asked them about the children’s possible Indian ancestry. Although mother and father denied having Indian ancestry, “it is not uncommon for parents to mistakenly disclaim (or claim) Indian ancestry.” (J.C., supra, 77 Cal.App.5th at p. 81.) Thus, we conclude the juvenile court’s finding that ICWA did not apply was not supported by substantial evidence.

DISPOSITION

The December 1, 2021, orders terminating father’s parental rights are conditionally affirmed. We remand for the department and the juvenile court to comply with the inquiry 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 Peña, Acting P. J., Smith, J. and Snauffer, J.

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

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

[3] Mother had four children that were a part of these dependency proceedings: L.M., J.H., B.H., and R.H. Father was the presumed father of J.H. and B.H., and the alleged father of R.H. Only J.H. and B.H. are part of this appeal.

[4] Appellant’s opening brief incorrectly identifies Andrew M. (mother’s adult son) as a maternal uncle. During the investigation, Andrew M. referred to mother as “his mother,” and stated he did not want anything bad to happen to “his siblings.”