2022 WL 3134229
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Court of Appeal, Fourth District, Division 1, California.
IN RE S.V. et al., Persons Coming Under the Juvenile Court Law.
San Diego County Health and Human Services Agency, Plaintiff and Respondent,
v.
J.V., Defendant and Appellant.
D080282
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Filed 8/5/2022
Opinion
IRION, Acting P. J.
*1 J.V. (Mother) appeals from the juvenile court’s order terminating her parental rights for S.V. and Ja.V. pursuant to Welfare and Institutions Code section 366.26.1 The sole issue on appeal is whether the San Diego County Health and Human Services Agency (Agency) and the juvenile court failed to conduct an adequate inquiry into the children’s potential Native American ancestry, as required by the Indian Child Welfare Act (ICWA).
The Agency concedes that its investigation under ICWA was deficient.
The parties filed a joint stipulation seeking the issuance of an immediate remittitur. We accept the stipulation, conditionally reverse, and remand for the limited purpose of ensuring compliance with ICWA’s requirements.
FACTUAL AND PROCEDURAL BACKGROUND2
In August 2020, the Agency petitioned the juvenile court under section 300, subdivision (b)(1), on behalf of ten-year-old S.V. and eight-year-old Ja.V. The Agency alleged that Mother’s and T.V.’s (Father) ongoing substance abuse prevented them from providing for the children.3
The Agency’s detention report summarized its efforts to inquire about the children’s Native American ancestry. The report indicated that paternal grandmother provided the Agency with her Chippewa Tribe (tribe) member number and said that she was registered with the White Earth Reservation but that Father was not a registered member of the tribe. The report further noted that as of June 2020, the Agency had not asked Father about his Native American heritage and that, when asked by a social worker, Mother had denied having any Native American heritage. Finally, the report indicated that in the children’s prior 2016 dependency case, paternal grandmother provided the same information to the Agency about her registration and tribe member number, and the court had found ICWA did not apply.
At the September 1, 2020 detention hearing, the Agency’s counsel noted that maternal grandmother4 claimed a tribe but that ICWA did not apply to the previous dependency case, so the Agency would need to confirm if she qualified or if something had changed. The children’s foster parents also appeared at the hearing but were never asked about the children’s Native American ancestry or instructed to keep the court informed of any related new information. Because Mother was not present at the hearing, the court deferred making a finding under ICWA.
*2 In its minute order from the hearing, the court ordered Father to complete a parental Notification of Indian Status form (ICWA-020) and submit it to the social worker. Father never did so. Nor did the trial court ever ask Father to keep it apprised of any new information providing a reason to know the children are Indian children.
The Agency’s jurisdiction/disposition report for the September 23, 2020 hearing noted that ICWA “does or may apply.” The report indicated that in September 2020, Father denied any Native American ancestry. The report also outlined the Agency’s September 1 to September 17, 2020 inquiry efforts, including that: the social worker called the paternal grandmother’s tribe, which instructed him to email and mail the family information to the tribe to start the inquiry process; the social worker called and left a voice message for Father asking him if he had enrolled himself or the children in the tribe; and the social worker called the paternal grandmother, who stated that her sons and grandchildren were not members of the tribe but were able to receive medical treatment at Indian health clinics, and that she did not believe the tribe was open for enrollment. The report further noted that, because paternal grandmother did not provide any new information from the information that she previously provided during the 2016 proceeding, the social worker emailed to the tribe a copy of the ICWA-030 form completed during the 2016 proceeding, which contained the children’s family information. The record does not indicate that the tribe ever responded; nor does the record reflect that the Agency ever followed up with the tribe after emailing the ICWA-030 form. The Agency concedes this.
At the September 23, 2020 hearing, the Agency’s counsel claimed it had provided an informal inquiry to the tribe, and that maternal5 grandmother believed enrollment in the tribe was closed. The court then found without prejudice that ICWA does not apply and that a “reasonable inquiry was made.” Although Mother appeared at the hearing, neither the court nor counsel asked her about Native American ancestry. The court also did not order Mother to keep it apprised of any new information relevant to ICWA or to file an ICWA-020 form.
At the March 25, 2022 permanency planning hearing, the court terminated parental rights. The court also again found that ICWA does not apply. First, the court summarized the information it had reviewed concerning ICWA, including that the paternal grandmother indicated her son was not a member of her tribe, which meant that the children would not be members; that in 2016, the Agency had sent formal notice letters to the tribe and Bureau of Indian Affairs (BIA) with detailed information, including the paternal grandmother’s different names and tribal enrollment number; that the record contained certified receipts showing that the tribe and BIA received this information; and that the Agency had reached out again in November 20206 to the tribe and received no response. The court concluded that, based on the 2016 and 2020 efforts and “after an inquiry was done, there is no reason to know that the children are Indian children under [ICWA]” and that “the children are not Indian children under [ICWA].”
*3 Mother appealed, challenging only the court’s ICWA finding.
DISCUSSION
I. ICWA Inquiry Duties, Generally
Congress enacted ICWA to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Under California law adopted pursuant to ICWA, the juvenile court and Agency have an “affirmative and continuing duty to inquire” whether a child “is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah W., at p. 9.) An “ ‘Indian child’ ” is defined in the same manner as under federal law, i.e., 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); accord § 224.1, subd. (a) [adopting the federal definition].)
As outlined by this court in In re D.S. (2020) 46 Cal.App.5th 1041, 1052 (D.S.), “section 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency’s initial contact with a minor and his 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 Agency ‘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.”
“On appeal, we review the juvenile court’s ICWA findings for substantial evidence.” (D.S., supra, 46 Cal.App.5th at p. 1051.) However, where the facts are undisputed, we independently determine whether ICWA’s requirements have been satisfied. (Ibid.)
II. Initial Inquiry
The first stage of initial inquiry “includes, but is not limited to, asking 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.” (D.S., supra, 46 Cal.App.5th at pp. 1048–1049.) ICWA defines “ ‘extended family member’ ” by “the law or custom of the Indian child’s tribe” or, absent such law or custom, as “a person who has reached the age of eighteen and who is the Indian 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[.]” (25 U.S.C. § 1903(2); § 224.1, subd. (c) [“ ‘extended family member’ ... defined as provided in [§] 1903” of ICWA].) In addition, “[a]t the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child” and “shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.” (§ 224.2, subd. (c).)
*4 Here, Mother contends that Mother, maternal grandparents, and the children’s foster parents should have been asked about the potential for Native American ancestry but were not. We agree. The record reflects that Mother and the children’s foster parents appeared at hearings, but the court never asked them about the children’s Native American ancestry. (§ 224.2, subd. (c).) The court also failed to instruct Mother, Father, or the foster parents to keep the court apprised of any new information providing reason to know the children are Indian children. (Ibid.) Further, neither parent ever filed an ICWA-020 form in this case. (Cal. Rules of Court, rule 5.481(a)(2)(B), (C).) As to maternal grandparents, the Agency concedes that it had contact with these “extended family member[s]” but that it did not ask them, as was statutorily required.7 (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
To fulfill their initial duty obligations, the Agency and court were required to ask these individuals about the children’s potential Indian ancestry, and the court was required to order the parties to keep it apprised of new ancestry information. Thus, the Agency and court failed to satisfy their initial inquiry obligations under section 224.2, subdivisions (b) and (c).
III. Further Inquiry
As amended in 2020, section 224.2 specifies that “[t]here is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe.” (Id. at subd. (e)(1).) Courts have broadly construed the reason to believe standard. (In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.) [“ ‘Reason to believe’ is broadly defined as ‘information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe.’ ”]; In re S.R. (2021) 64 Cal.App.5th 303, 316 [new subdivision (e) “forecloses [a] narrow interpretation of what constitutes reason to believe”].) Its broad application is essential to the remedial purpose of the affirmative and ongoing duty to inquire under California law. (In re T.G. (2020) 58 Cal.App.5th 275, 295, review denied March 24, 2021 (T.G.).)
Here, the information provided by paternal grandmother—including that she was a member of a federally recognized tribe, her tribe member number, and that Father and the children were treated at Indian health clinics—at least suggested that either Father or the children might be eligible for membership in an Indian tribe. (Benjamin M., supra, 70 Cal.App.5th at 743; see § 224.2, subdivision (e)(1); T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.) Accordingly, that information provided a reason to believe the children might be Indian children and triggered the Agency’s duty of further inquiry.
The duty of further inquiry includes, “but is not limited to,” interviewing extended family members to gather the biographical information required by section 224.3, subdivision (a)(5), to be included in ICWA notices; contacting the BIA; and contacting “the tribe or tribes and any other person that may reasonably be expected to have information regarding the child’s membership, citizenship status, or eligibility.” (§ 224.2, subd. (e)(2)(C).) Contacting the tribe requires “sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case.” (Ibid.; see In re D.F. (2020) 55 Cal.App.5th 558, 567.)
*5 Here, the Agency’s further inquiry efforts boil down to (1) leaving a voicemail for Father to ask if he or the children were members of the tribe, and (2) emailing the paternal grandmother’s tribe with a form containing the children’s family information and the paternal grandmother’s tribe information. As Mother contends, however, that form did not apprise the tribe of “the current status of the child[ren] and the case.” (§ 224.2, subd. (e)(2).) Moreover, there is no indication in the record that the Agency ever received a response from the tribe or followed up with the tribe. Nor is there any indication that Father ever responded to the Agency’s voicemail.
Further, as Mother contends, paternal grandmother’s belief that enrollment with the tribe is likely closed to Father and the children does not excuse the Agency from fulfilling its duty of further inquiry. (25 U.S.C. § 1903(4) [An “Indian child” is defined in the same manner as under federal law, i.e., 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[.]” (italics added)]; accord Welf. & Inst. Code, § 224.1, subd. (a) [adopting the federal definition].) Rather, it is the tribe’s determination of a child’s membership or eligibility for membership in the tribe that is conclusive of this inquiry. (§ 224.2, subd. (h) [“Information that the child is not enrolled, or is not eligible for enrollment in, the tribe is not determinative of the child’s membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom.”]; In re Jack C. (2011) 192 Cal.App.4th 967, 979, [“[T]he determination whether the child is an Indian child within the meaning of ICWA depends in large part on the tribe’s membership criteria.”], declined to follow on other grounds by In re Abbigail A. (2016) 1 Cal.5th 83, 96, fn. 3; see also Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32 [A “tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence in an independent political community.”].) Accordingly, the paternal grandmother’s comments do not substitute for the tribe’s determination of whether the children are eligible for membership in the tribe and thus, Indian children under ICWA.
For the previous reasons, the Agency failed to satisfy its further inquiry obligations under ICWA.
III. Prejudicial Error
Therefore, we conditionally reverse the court’s order and remand the matter for the limited purpose of compliance with ICWA.
Because the failures in this case concern the Agency’s and court’s state statutory duties of inquiry, only state law is involved. Therefore, we may not reverse unless the error was prejudicial under state law. (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.”]; People v. Watson (1956) 46 Cal.2d 818, 836 [miscarriage of justice may be found when court concludes it is reasonably probable result more favorable to appellant would have been reached in absence of error].)
There is a split of authority among the California Courts of Appeal regarding how to apply this prejudicial error standard to cases in which agencies and/or juvenile courts have failed to satisfy their inquiry duties under ICWA. (See In re Dezi C. (2022) 79 Cal.App.5th 769, 777–782 [discussing the “continuum” of three rules for assessing whether a defective inquiry is harmless or prejudicial, and adopting fourth rule]. The California Supreme Court has yet to resolve this split of authority.
*6 For purposes of this appeal, however, we need not and do not weigh in on this highly disputed question. Rather, we conclude that the Agency’s and court’s failure to satisfy their inquiry duties under ICWA has caused a miscarriage of justice. (Cal. Const., art. VI, § 13.) For example, if we apply the apparent “middle ground” standard set forth in In re Benjamin M. (2021) 70 Cal.App.5th 735, 744–745 (Benjamin M.), prejudicial error exists for at least several reasons. (Ibid. [prejudice exists and reversal required where “the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child”].)
First, the record before us shows that there was virtually no inquiry into potential Native American ancestry on Mother’s side. The juvenile court failed to ever ask Mother about potential Native American ancestry, and the Agency failed to ever ask maternal grandparents.
Second, paternal grandmother both notified the Agency of her membership in a federally recognized tribe and notified the Agency that the children had been treated at Indian health clinics. The Agency provided this information to paternal grandmother’s tribe, but the record before us does not reflect any response from the tribe or any follow-up efforts by the Agency. Indeed, the Agency concedes this.
Third, the juvenile court in the current dependency proceeding failed to instruct Mother, Father, and the foster parents to keep the court apprised of any new information providing reason to know the children are Indian children. Moreover, the record does not indicate whether the court issued this order during the earlier 2016 proceeding. Thus, these individuals do not appear to have been under any continuing order to inform the juvenile court of new information relevant to ICWA.
Based on these inquiry failures, we must presume that there was readily obtainable information—from the family members, foster parents, and tribe—that was likely to bear meaningfully on whether the children are Indian children. (Benjamin M., supra, 70 Cal.App.5th at pp. 745–746.)
We recognize that the juvenile court in the previous 2016 dependency proceeding also found that ICWA does not apply. But that prior ICWA finding does not negate prejudice here for the very reasons discussed above. Moreover, the distinguishable case of In re Darian R. (2022) 75 Cal.App.5th 502, 582 (D.R.)—which was disclosed in our independent research—further supports our conclusion. In D.R., our colleagues in the Second District considered a case involving two separate dependency proceedings with two separate findings that ICWA did not apply. They concluded that the juvenile court’s failure to ask maternal aunt and grandfather about ancestry in the later ICWA proceeding was error, but that this error was harmless. In doing so, our colleagues reasoned in part that because the juvenile court had ordered the mother—who lived with maternal aunt and grandfather—to continue updating the juvenile court with new information relevant to ICWA, interviewing the mother’s two family members would not have “meaningfully elucidated the children’s Indian ancestry.” (Ibid.)
In contrast, here, the juvenile court failed during the later dependency proceeding to ever order Mother, Father, and the foster parents (none of whom live together) to continue updating it with new information relevant to ICWA. And as discussed above, the record is silent on whether the juvenile court issued such an order in the earlier dependency proceeding. Thus, unlike D.R., we cannot say that these inquiries (as well as those discussed ante) would not have shed light on the children’s Native American ancestry.
*7 Before reversing or vacating a judgment based upon a stipulation of the parties, an appellate court must find “both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.” (Code Civ. Proc., § 128, subd. (a)(8).) Because this case would be subject to reversal to permit compliance with ICWA and corresponding California statutes and rules absent the parties’ stipulation, a stipulated remand advances the interests identified by Code of Civil Procedure section 128, subdivision (a)(8). (See In re Rashad H. (2000) 78 Cal.App.4th 376, 379–382.)
DISPOSITION
WE CONCUR:
HALLER, J.
DATO, J.
All Citations
Not Reported in Cal.Rptr., 2022 WL 3134229
Footnotes |
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Further undesignated statutory references are to the Welfare and Institutions Code. |
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Because Mother’s challenge on appeal is limited to ICWA compliance, we provide an abbreviated summary of the dependency proceedings focused on the facts relevant to the issue on appeal. |
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Father is not a party to this appeal. |
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Aside from this statement, nothing in the record indicates that the Agency ever asked maternal grandmother about the children’s potential Native American ancestry or whether she, like paternal grandmother, claimed membership in a tribe. Moreover, the Agency concedes that, despite being in contact with maternal grandparents, the Agency never asked them about the children’s potential Native American ancestry. Thus, we assume that the Agency’s counsel intended to refer to paternal grandmother and that counsel’s reference to maternal grandmother was a mistake. |
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As noted ante, we assume the Agency’s counsel intended to refer to paternal grandmother because she is the only individual in this case who has claimed a tribe, and the Agency concedes that it never asked maternal grandmother about the children’s ancestry. |
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The last contact between the Agency and the tribe reflected in the record was the Agency’s email to the tribe in September 2020. Therefore, we assume that the court intended to refer to the September 2020 communications, not a later follow-up communication in November 2020. |
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Because there was virtually no inquiry at all into Mother’s potential Native American ancestry, these inquiry duties were particularly important as to the children’s ancestry on their mother’s side. |
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