Filed 7/26/22 In re J.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Kings County. Jennifer Lee Guiliani, Judge.

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

Diane Freeman, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.

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Martha R. (mother) is the mother of J.M., M.L., and B.L., who are the subjects of a dependency case. Mother challenges the juvenile court’s orders terminating her parental rights at a Welfare and Institutions Code section 366.26[1] hearing. Mother’s sole claim is that the Kings County Human Services Agency (agency) failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA).

The agency concedes that it failed to conduct adequate ICWA inquiry and notice to any possible relevant tribes and does not oppose remand for the limited purpose of doing so. We agree with the parties and conditionally reverse the juvenile court’s orders terminating parental rights and remand for proceedings to ensure ICWA compliance.

STATEMENT OF THE FACTS AND CASE[2]

On April 1, 2021, the agency filed a section 300 petition alleging the children were at risk of harm due to a bruise on J.M., age eight, inflicted non-accidentally by mother and a bite mark on M.L., age five, inflicted non-accidentally by Martin L., alleged father of M.L. and B.L., age two. J.M.’s father was listed as unknown. The petition alleged further that mother and Martin L. had substance abuse issues and that their whereabouts were unknown.

In “Indian Child Inquiry Attachment” documents (ICWA-010(A)) attached to the petition, the agency indicated the interviews with mother and Martin L. on March 12, 2021, gave it no reason to believe the children might be Indian children.

Detention

In its detention report of April 2, 2021, the agency indicated that both mother and Martin L. denied any Native American ancestry. In an ICWA-020 form filed April 2, 2021, Martin L. stated he had no Indian ancestry, as far as he knew.[3]

At the detention hearing April 2, 2021, mother and Martin L. both testified that, to their knowledge, neither was, nor had any member of their extended family who was, a member of a Native American tribe. Mother reported J.M.’s father to be P.A., who was in Mexico. Martin L. was found to be the presumed father of M.L. and B.L.; P.A. to be J.M.’s alleged father.[4] The children were detained in foster care, and the ICWA was found not to apply. A jurisdiction and disposition hearing was set for May 5, 2021.

An amended petition filed May 4, 2021, identified P.A. as J.M.’s alleged father and indicated his whereabouts as unknown. The allegation that mother and Martin L.’s whereabouts was unknown was removed.

Jurisdiction/Disposition

At the jurisdiction and disposition hearing May 5, 2021, the juvenile court found the amended petition true and declared the children dependents of the juvenile court and placed them in foster care. Mother was ordered to receive reunification services for all three children. Martin L. received reunification services for M.L. and B.L. A paternity review was set for P.A. A six-month review hearing was set for October 27, 2021.

Six-Month Review

At the November 3, 2021, contested six-month review hearing, the juvenile court found that mother and Martin L. had been provided reasonable reunification services; that mother’s progress had been minimal at alleviating the causes necessitating the children’s foster care placement; and that Martin L.’s progress had been none. Reunification services were terminated and the matter set for a permanency hearing on March 2, 2022.

Mother’s Section 388 Petition and Section 366.26 Hearing

On March 7, 2022, mother filed a section 388 petition asking that reunification services be reinstated or family maintenance services provided as she had been participating in services and the children were bonded to her and wished to be returned home.

At the contested section 366.26 selection and implementation hearing March 9, 2022, the juvenile court first denied mother’s section 388 petition. It then found the children to be adoptable, that no exception to the statutory preference for adoption applied, and parental rights were terminated for mother, Martin L. and P.A. The children were ordered placed for adoption.

DISCUSSION

Mother 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 by the agency of P.A., as well as other paternal and maternal family members regarding Native American ancestry. The agency 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., supra, at p. 5; see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3, subd. (a); In re J.C., supra, 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., supra, at p. 77; see § 224.2, subd. (a); In re Benjamin M. (2021) 70 Cal.App.5th 735, 741-742 (Benjamin M.).)

“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., supra, at p. 77; see In re H.V., supra, 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., supra, 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.)

Mother argues the agency failed to conduct an adequate inquiry at the initial stage into whether the children may be Indian children. Mother contends that, while the agency asked her and Martin L. about any known Indian heritage, it failed to ask extended family members this question. Mother specifically mentions J.M.’s alleged father, P.A., who was present at that May 5, 2021, hearing but was not asked about his ancestry.[5] Mother also cites as possible contacts for inquiry maternal grandmother, with whom the agency was in contact; maternal grandfather, who was still alive; a maternal relative and J.M.’s godmother, with whom the children were placed; mother’s two brothers; and P.A.’s brothers. Yet, there is nothing in the record to suggest anyone at the agency 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 agency’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, 1431.) 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 agency 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 and we find reversible error occurred. The agency had the names and contact with a number of relatives. That, along with the agency’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 agency to comply with the inquiry provisions set forth in 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.

FRANSON, J.

I CONCUR:

SMITH, J.

POOCHIGIAN, Acting P. J., concurring and dissenting.

The agency has a duty of initial inquiry, which includes asking extended family members whether the child is, or may be, an Indian child. (Welf. & Inst. Code, § 224.2, subd. (b).)[6] Here, there are several relatives – including maternal grandparents and uncles – as to whom the record is silent on whether the Kings County Human Services Agency (agency) asked them about Native American ancestry. The agency concedes error.

Next, we must address harmlessness because “we can reverse only if the error was prejudicial.” (In re M.M. (July 12, 2022, B315997) __ Cal.App.5th __ [2022 WL 2679301, *5].) Accordingly, “we must assess whether it is reasonably probable that the juvenile court would have made the same [Indian Child Welfare Act of 1978] finding had the inquiry been done properly.” (In re Dezi C. (2022) 79 Cal.App.5th 769, 777.) “If so, the error is harmless and we should affirm; otherwise we must send it back for the [agency] to conduct a more comprehensive inquiry.” (Ibid.)

In order for a child to be an “Indian child” under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA), they must be either (1) a member of a tribe or (2) eligible for membership and the biological child of a member of a tribe. (25 U.S.C. § 1903(4); § 224.1, subd. (a).) Here, no one has suggested there is any reason to believe M.L. or B.L. might have Indian ancestry, much less tribal membership. And both of their parents stated they were not members of a Native American tribe nor had Native American ancestry. Under such circumstances, it is reasonably probable that questioning extended relatives would not have altered the ICWA findings as to M.L. or B.L.[7] (See In re M.M., supra, __ Cal.App.5th __, [2022 WL 2679301]); In re Dezi C., supra, 79 Cal.App.5th 769.[8]) Because the agency’s omissions were not prejudicial, the ICWA finding should not be reversed as to M.L. and B.L.

We owe it to dependent children not to reverse – and thereby delay permanency– unless there has been prejudicial error in their case. While we are called on to protect the tribal interests embodied in ICWA, they are not the only interests at stake. Children need stable environments and deserve “prompt resolution” of their custody status. (§ 352, subd. (a)(1).) Prolonged temporary placements are damaging to children. (Ibid.) Faithfully implementing the longstanding doctrine of harmless error is vital to protecting these important interests.

While it is important that we reverse whenever ICWA error prejudices the child, parent or tribe, it is equally important that we affirm when no prejudice is shown. Under the facts of the present case, no prejudice has been shown as to M.L., B.L., their parents, or any Indian tribe. (See In re M.M., supra, __ Cal.App.5th __ [2022 WL 2679301]; In re Dezi C., supra, 79 Cal.App.5th 769.)

For these reasons, I respectfully dissent from the majority’s reversal of the ICWA findings as to M.L. and B.L., but concur in the reversal of the ICWA findings as to J.M.

POOCHIGIAN, Acting P. J.

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

[2] We provide an abbreviated summary of the dependency proceedings and focus on the facts and background relevant to the narrow issue on appeal of the adequacy of the ICWA inquiry and notice.

[3] A second ICWA-020 with the same information was also signed May 11, 2021, and filed May 19, 2021.

[4] Neither Martin L. nor P.A. are a party to this appeal.

[5] We do note, however, that when a child in a dependency matter has as an alleged father, rather than a biological father, who claims Indian ancestry, the ICWA inquiry and note requirements are not triggered. (In re Daniel M. (2003) 110 Cal.App.4th 703, 708-709.)

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

[7] J.M. is in a different situation because it appears her alleged father provided no information about Native American ancestry or tribal membership. (See In re M.M., supra, __ Cal.App.5th __ [2022 WL 2679301, *6], citing Benjamin M. (2021) 70 Cal.App.5th 735.) Without a denial of membership and ancestry from the parent, we cannot say it is reasonably probable that asking the parent would not have changed the outcome. For that reason, I concur in the reversal as to J.M.

[8] Both of these cases were decided after the agency filed its letter brief conceding error.