Filed 7/28/22 In re K.C. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re K.C. et al., Persons Coming Under the Juvenile Court Law. |
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DEL NORTE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Petitioner and Respondent, v. A.C., Objector and Appellant.
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A164408
(Del Norte County Super. Ct. No. JVSQ206094)
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A.C. (mother), the mother of K.C., appeals from an order terminating her parental rights. (Welf. & Inst.[1] Code, § 366.26.) Mother’s sole argument is that the juvenile court erred by terminating her rights notwithstanding the failure of the Del Norte Department of Health and Human Services (the Department) to conduct an adequate inquiry into her and father Steven W.’s Indian ancestry. The Department concedes that there were “inadvertent omissions in the inquiry,” and it does not oppose a limited remand for the purpose of ensuring compliance with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA).
We agree with the parties that the Department’s inquiry into the parents’ Indian ancestry was inadequate. We shall therefore conditionally reverse the order terminating parental rights and remand to ensure ICWA compliance.
BACKGROUND[2]
On December 15, 2020, the Department filed a petition under section 300, subdivisions (b)(1) and (g) on behalf of newborn K.C. (the minor), then four days old. The minor had been detained at birth. Among other things, the Department alleged that mother and the minor had tested positive for amphetamines at the minor’s birth, the minor was suffering symptoms of withdrawal, mother had repeatedly tested positive for methamphetamine use while pregnant, mother was not taking prescribed medication for her mental health issues, and mother was unable to provide for the minor.
At the detention hearing on December 16, 2020, the court ordered that the minor remain detained. The court appointed counsel for mother and potential father Steven W., and further ordered Steven W. to take a paternity test. When the court asked about potential Indian ancestry, Steven W. stated that his mother was a Chippewa from Minnesota. For her part, mother informed the court that her grandmother, Betty D., was a member of the Aleutian tribe, and she provided Betty D.’s full name and phone number. An ICWA-020 form (“Parental Notification of Indian Status”) was provided to counsel for mother, and mother was ordered to submit the completed form to the court. Consistent with her statements at the detention hearing, mother’s ICWA-020 form, filed on December 17, 2020, stated that she might be a member of, or eligible for membership in, the “Aleutian-Aleut” tribe.
In its report submitted before the jurisdictional hearing, the Department stated that ICWA “does not apply at this time,” noting that it had inquired with mother as to possible Indian ancestry, and mother had replied that she had family that is “Liyot.” The social worker asked whether mother meant “Wiyot,” and mother reiterated that her family was “Liyot.” The report concluded that, “[a]t this time, the Department has no reason to know that the [minor] is an Indian child.” The report further noted that mother had admitted using methamphetamine after the minor’s detention.
The Department sent an ICWA-030 notice to the Sacramento area Director of the Bureau of Indian Affairs (BIA), the Secretary of the Interior, and the Tribal Representative of the Aleutian/Pribilof Island Association, noting that the minor may be eligible for membership in the “Aleut” tribe, with her mother and other maternal relatives claiming association with the “Aleutian/Pribilof Island Assoc., Aleut, Alaskan Indian Tribes.” The form contained no information relating to the minor’s father, paternal relatives, and the minor’s potential eligibility for membership in the Chippewa tribe.
At the jurisdictional hearing on February 1, 2021, the court sustained the petition, found that Steven W. was the minor’s father, and ordered that the minor remain in her out-of-home placement. The court found that the minor may be an Indian child, and that the Department was in the process of “gathering the necessary information to determine if the [minor] is, indeed, an Indian child.” On the same day as the hearing, Steven W. submitted an ICWA-020 form stating that he might be a member of, or eligible for membership in, the “Chipawa” and “Blackfoot” tribes.
In its March 1, 2021, report filed before the dispositional hearing, the Department again recounted the social worker’s conversation with mother regarding mother’s claimed association with the “Liyot” (not “Wiyot”) tribe. It repeated its statements that ICWA did not apply and that it had no reason to know the minor to be an Indian child. The Department reported that mother admitted continuing her methamphetamine use and not taking all of the medications prescribed for treatment of her diagnosed anxiety, depression, and bi-polar disorder.
In its March 15, 2021, findings after the dispositional hearing, the court stated that there was no reason to know the minor was an Indian child, and that “therefore, this is not an ICWA case.” The court declared the child to be a dependent, ordered reunification services for mother, and bypassed services for Steven W. on the basis that Steven W.’s parental rights to his older children had been terminated.[3] (§ 361.5, subds. (b)(10) & (11).)
The Department’s September 2021 status report stated that although mother had completed a psychological evaluation, she had not addressed her substance abuse issues. According to the report, mother continued to use methamphetamines, and her “frank and multiple disclosures that she does not intend to quit using remain at the front and center of the Department’s concerns regarding her ability to parent [the minor] safely.” The Department therefore recommended terminating services.
At the six-month review hearing on September 20, 2021, mother was present but left before the case was called. The court stated that “there continues to be no reason to know that the child is an Indian child. And the IWCA does not apply.” Mother’s counsel submitted on the Department’s recommendation. At the conclusion of the hearing, the court terminated reunification services as to mother and scheduled a section 366.26 hearing.
On the same date as the six-month review hearing, the court lodged a letter from the Aleutian Pribilof Islands Association, which stated that it had reviewed the information provided and determined that neither the minor’s parents nor grandparents were eligible for enrollment “within the twelve federally recognized tribes in our region.” The letter encouraged the Department to contact the BIA office in Anchorage, and it expressed hope that the BIA “will have a record of this family and which village would be the appropriate village to notice.” The letter stated that “if any further information about this family comes to light, such as social security number, maiden name, tribal lineage, [or] possible village locations,” the Aleutian Pribilof Islands Association “would be more than willing to explore tribal placement[ ].” This letter was not mentioned during the six-month review hearing.
On December 22, 2021, the Department filed its section 366.26 report, recommending termination of parental rights. At the conclusion of the 366.26 hearing, the juvenile court found by clear and convincing evidence that the minor was adoptable and it terminated parental rights as to both parents.
Mother’s appeal, limited to the issue of the ICWA inquiry and notice, followed.
DISCUSSION
Mother contends that the juvenile court’s order terminating her rights must be reversed because the Department did not adequately investigate the minor’s possible Indian ancestry. The Department concedes that the ICWA inquiry in this case was inadequate, and we accept the concession.
- I. ICWA
“ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions.” (In re A.G. (2012) 204 Cal.App.4th 1390, 1396.) “Indian child” is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); § 224.1, subds. (a), (b).)
“ICWA established minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).) As relevant here, “section 224.2 creates three distinct duties regarding ICWA in dependency proceedings.” (Id. at p. 1052.) After a child welfare department’s initial contact with the minor and his or her family, “the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a ‘reason to believe’ the child is an Indian child, then the [Department] ‘shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply.” (D.S., at p. 1052, italics omitted.)
If the court or social worker “has reason to believe that an Indian child is involved . . . but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court . . . [or] social worker . . . shall make further inquiry regarding the possible Indian status of the child.” (§ 224.2, subd. (e).) When there is “reason to believe” the child is an Indian child, “further inquiry is necessary.” (§ 224.2, subd. (e)(2).) It includes “nterviewing the parents . . . and extended family members” to gather specified information, contacting the Bureau of Indian Affairs (BIA), the State Department of Social Services, and “the tribe or tribes . . . that may reasonably be expected to have information regarding the child’s membership, citizenship status, or eligibility.” (§ 224.2, subd. (e)(2)(A)–(C); Cal. Rules of Court, rule 5.481(a)(4).)
If, based on this further inquiry, there is “reason to know” the child is an Indian child, then more formal ICWA notice is required.[4] (§§ 224.2, subds. (d) & (f), 224.3; Cal. Rules of Court, rule 5.481(b); 25 U.S.C. § 1912(a).) As this statutory scheme makes clear, “[t]he duty to provide notice is narrower than the duty of inquiry.” ([i]In re Austin J. (2020) 47 Cal.App.5th 870, 884.)
If, on the other hand, the juvenile court finds that the Department has conducted “proper and adequate further inquiry and due diligence” and that there is no reason to know whether the child is an Indian child, the court may make a finding that ICWA does not apply. (§ 224.2, subds. (g) & (i)(2); In re Dominic F. (2020) 55 Cal.App.5th 558, 570–571.) The Department and the court, however, have a continuing duty under ICWA, and the court “shall reverse its determination if it subsequently receives information providing reason to believe that the child is an Indian child and order the social worker or probation officer to conduct further inquiry.” (§ 224.2, subds. (a) & (i)(2); see D.S., supra, 46 Cal.App.5th at p. 1050.)
Importantly here, a mother has standing to raise the issue of ICWA compliance not only on her own behalf, but on behalf of the minor’s father as well. (In re B.R. (2009) 176 Cal.App.4th 773, 779–780.) Finally, “[o]n appeal, we review the juvenile court’s ICWA findings for substantial evidence. [Citations.] But where the facts are undisputed, we independently determine whether ICWA’s requirements have been satisfied.” (D.S., supra, 46 Cal.App.5th at p. 1051.)
- II. Limited Remand
Here, it is apparent that the Department’s duty of further inquiry was triggered after mother and Steven W. submitted ICWA-020 forms indicating possible Aleutian and Chippewa and Blackfoot ancestry, respectively. (See In re A.M. (2020) 47 Cal.App.5th 303, 322 [a mother’s “statement that she was told and believed that she may have Indian ancestry with the Blackfeet and Cherokee tribes” and listing her grandfather “as having possible Indian heritage” were sufficient to trigger the duty of further inquiry].) The record does not reflect any investigation into father’s ancestry, nor does it contain any record of outreach to mother’s relatives, including her grandmother, Betty D., who was apparently an enrolled tribe member.
The ICWA-030 notice was similarly deficient in that it did not provide full information regarding Betty D. (such as her maiden name), and it contained no information whatsoever regarding father. Moreover, there is no indication that the Department followed up with the BIA of Anchorage, as suggested in the letter from the Aleutian Pribilof Islands Association, or that it sought additional identifying information from mother’s relatives who were apparently associated with the Aleutian tribe.
The Department appropriately concedes that the record does not support the juvenile court’s findings that the Department had conducted an adequate inquiry and that ICWA does not apply. (§§ 224.2, subd. (e)(2)(A)–(C), 224.3, subd. (a)(5)(C) [requiring, among other things, that the social worker interview parents about names, addresses, birth dates of biological parents, grandparents, and great-grandparents, or Indian custodians].) Accordingly, we will conditionally reverse the order terminating parental rights. (See In re N.G. (2018) 27 Cal.App.5th 474, 486 [conditionally reversing judgment terminating parental rights and remanding for court to comply with inquiry and notice provisions of ICWA and sections 224.2 and 224.3].)
DISPOSITION
The judgment terminating mother’s and Steven W.’s parental rights is conditionally reversed and the case is remanded to the juvenile court with directions to order the Department to comply with ICWA inquiry and notice provisions. If the court finds that the minor is an Indian child, it must proceed in conformity with all provisions of ICWA. If, on the other hand, the court finds that the minor is not an Indian child, the judgment terminating parental rights shall be reinstated.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
In re K.C. (A164408)
[1] Statutory references are to the Welfare and Institutions Code.
[2] We discuss the facts only as necessary to address the Department’s ICWA non-compliance, the sole issue on appeal.
[3] Steven W. is not a party to this appeal.
[4] Formal notice must be given to the minor’s parents or legal guardian, Indian custodian, if any, and the child’s tribe regarding any hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement. (§ 224.3, subd. (a).) Notice must include “[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known.” (§ 224.3, subd. (a)(5)(C).)