Filed 7/12/22 In re J.A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Fresno County. Todd Eilers, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.)

Robert McLaughlin, 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-

Cynthia A. (mother) and Javier V. (father) are the parents of J.A. (born October 2020). Mother appeals the juvenile court’s order terminating her parental rights to J.A. pursuant to Welfare and Institutions Code section 366.26.[1] Mother’s sole contention on appeal is that the Fresno County Department of Social Services (department) failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because it did not ask extended family members about the child’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]

Mother had four children—Sophia C., Jo.A., C.A., and J.A. Sophia, Jo.A, and C.A. have different fathers and were removed from mother’s custody in prior dependency proceedings due to her untreated mental health problems. Sophia’s father had sole legal and physical custody of her, and maternal uncle Jaime D. had legal guardianship of Jo.A. and C.A. J.A. is the only child who is part of this appeal.

On April 30, 2021, the department filed a petition pursuant to section 300, subdivisions (b) and (j), on behalf of J.A. alleging he was at substantial risk of suffering serious physical harm or illness due to mother’s substance abuse and mental health problems and because his half siblings had been abused or neglected. The Indian Child Inquiry Attachment form (ICWA-010(A)) indicated mother had been asked about J.A.’s Indian status and she gave no reason to believe J.A. was or could be an Indian child. Father’s whereabouts were unknown and he had not been asked about Indian ancestry. The detention report confirmed ICWA could apply because it was unknown whether father had Indian ancestry.

The jurisdiction and disposition report concluded ICWA did not apply. In May 2021, mother reported she did not have Indian ancestry. In June 2021, father reported he did not have Indian ancestry. Thereafter, the department mailed mother and father Parental Notification of Indian Status forms (ICWA-020). The report noted that the department previously found ICWA did not apply to J.A.’s three half siblings.[3] The report also indicated the department inquired about relatives for placement. Mother identified maternal grandparents, whom she lived with, and paternal uncle, Jose V., as placement options. Jose was father’s brother. Jose’s wife, Gabriela R. (i.e., paternal aunt), informed the department she was interested in placement. J.A. was subsequently placed with paternal aunt and uncle. Paternal uncle ultimately became J.A.’s prospective adoptive parent.

On August 30, 2021, at the continued disposition hearing, the juvenile court found ICWA did not apply.

On October 18, 2021, mother and father again reported to the department they did not have Indian ancestry.

On February 14, 2022, at the section 366.26 hearing, the juvenile court found J.A. was likely be adopted and terminated mother and father’s parental rights.

During the pendency of the proceedings, the department had contact with or discovered information about various family members. On the maternal side, the department had information relating to maternal grandmother, maternal grandfather, Elizabeth A., and maternal uncle, Jaime D. On the paternal side, the department was aware father resided with paternal grandmother. In addition, the department had regular contact with paternal aunt and uncle whom J.A. was placed with.

On February 22, 2022, mother filed a notice of appeal. On March 8, 2022, mother filed a subsequent notice of appeal.

DISCUSSION

I. Substantial Evidence Does Not Support the Juvenile Court’s ICWA Finding

A. 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.)

B. Analysis

Mother argues the department failed to comply with its duty of initial inquiry because it did not ask J.A.’s extended family members about possible Indian ancestry.

Section 224.2, subdivision (b), required the department, as part of its initial inquiry, to inquire of the child’s extended family members, and anyone who has an interest in the child, 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).)

Mother notes the department had contact with or information relating to several maternal and paternal family members. 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., 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], 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. Although the department previously found ICWA did not apply to Sophia, Jo.A., and C.A., they were not J.A.’s full siblings. Based on this information, the department could have concluded mother did not have Indian ancestry, but there was still the possibility that J.A. had Indian ancestry through the paternal side of the family.

The department could have inquired of three paternal family members about Indian ancestry—paternal grandmother and paternal aunt and uncle. The department argues that because J.A. was placed with his paternal aunt and uncle, who were also the prospective adoptive parents, they would have disclosed information pertaining to Indian ancestry because it would have assisted them in obtaining placement. The department cites In re S.S. (2022) 75 Cal.App.5th 575 in support of this proposition. “In In re S.S. … the court held the child protective agency’s failure to ask a grandparent who wanted to adopt the child about possible Indian ancestry was harmless because ICWA gives preference to placing an Indian child with a member of the Indian child’s extended family. [Citations.] The court in In re S.S. also relied on the assumptions that the grandmother, as a prospective adoptive parent, would have had ‘a strong incentive to bring to the court’s attention any facts that suggest that [the minor] is an Indian child’ and that her failure to do so implied she was ‘unaware of such facts.’ ” (J.C., supra, 77 Cal.App.5th at p. 83.) However, “[t]his analysis erroneously places the burden on a parent or the parent’s family to provide information about possible Indian ancestry, when under ICWA and California law that burden is on the child protective agency. [Citation.] It also subverts a central purpose of ICWA and related California law: to protect the interests of the Indian tribes. [Citations.] Finally, not only was the court’s decision in In re S.S. based on speculation about the maternal grandmother’s incentives, it was based on a false premise: As the prospective adoptive parent, the grandmother’s incentive would be not to provide any information suggesting the child was an Indian child, so that she could adopt the child without any potential interference from the tribe.” (Id. at pp. 83–84.) For the same reasons, we find the department’s argument unavailing.

Moreover, 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 juvenile court order terminating mother’s parental rights is 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 child is an Indian child, 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 order will remain in effect.

* Before Franson, Acting P. J., Peña, J. and DeSantos, J.

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

[2] Because the sole issue on appeal concerns ICWA, we restrict our facts to those bearing on that issue.

[3] In June 2013, the department found ICWA did not apply to Sophia. In February 2015, the department found ICWA did not apply to Jo.A. In October 2017, the department found ICWA did not apply to C.A., and again determined it did not apply to Jo.A.