In re D.O. CA4/2 ( 2022 )

Filed 9/13/22 In re D.O. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re D.O., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E078729
Plaintiff and Respondent, (Super.Ct.No. J287230)
v. OPINION
G.L.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Conditionally reversed in part with directions.
Konrad S. Lee, by appointment of the Court of Appeal, for Defendant and
Appellant, G.L.
1
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for
Plaintiff and Respondent.
I. INTRODUCTION
D.O. was detained and removed from his parents, F.M. (Mother) and G.L.
(Father), shortly after birth. The juvenile court terminated Mother’s and Father’s parental
rights after a contested hearing pursuant to Welfare and Institutions Code 1 section
366.26. Father appeals from this order, arguing that the matter must be conditionally
reversed and remanded because the juvenile court, as well as San Bernardino County
Children and Family Services (CFS), failed to discharge their duty of inquiry under the
Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). We agree and
conditionally reverse.
II. FACTS AND PROCEDURAL HISTORY 2
D.O. was detained by CFS after testing positive for methamphetamines at the time
of his birth. Father did not appear at the detention hearing, but he was interviewed by a
social worker shortly thereafter. According to the social worker, Father reported that he
had a prior relationship with Mother, was aware Mother had mental health and substance
abuse issues, and also occasionally used elicit drugs. As a result, CFS filed an amended
petition pursuant to section 300 et seq., alleging Father’s failure to supervise or protect,
1 Undesignated statutory references are to the Welfare and Institutions Code.
2 Because Father only identifies CFS’s purported failure to interview paternal
relatives as the basis for concluding that CFS failed to comply with its obligations under
ICWA, we summarize only the facts relevant to CFS’s inquiries regarding D.O.’s
potential Native American ancestry through paternal relatives.
2
failure to provide, and inability to provide due to substance abuse pursuant to section 300,
subdivision (b).
On November 30, 2020, CFS filed a joint jurisdictional and dispositional report.
According to the report, Father represented to a social worker that he may have Native
American ancestry through the “Yaqui” tribe but had never looked into the matter.
Father admitted he was not a registered member of the tribe, had never lived on a
reservation, and had never received any services through the tribe. He expressed the
belief that D.O.’s paternal great-grandfather “looked like an Indian,” but D.O.’s paternal
grandmother “did not know anything about it.” The social worker stated that Father
declined to provide contact information for D.O.’s paternal grandmother, but the report
later identified that D.O.’s paternal grandmother resided in the same home as Father.
Additionally, the report identified three paternal relatives as Father’s safety network and
support system: D.O.’s paternal grandmother, paternal grandfather, and paternal great
aunt.
On December 3, 2020, the trial court held a joint jurisdictional and dispositional
hearing. During the hearing, the juvenile court specifically questioned Father about his
knowledge of D.O.’s potential status as an Indian child. Father provided an incoherent
response regarding whether any of his family members were members of an Indian tribe,3
3Specifically, when asked if he knew anyone in his family with Native American
or American Indian ancestry, Father stated, “Oh, my gosh. Yes, of course.” However,
when asked to identify a tribal entity, Father replied, “We—the whole tribe. Everything,”
pointed to a picture in the courtroom and further stated, “that’s my family right there.
When you look at that picture.” When pressed further, Father stated he had no
information other than the picture in the courtroom.
3
but admitted that he had never lived on a reservation or received any tribal services.
Following this exchange, Father was provided an ICWA inquiry form to complete.
However, Father apparently left the entire form blank, other than his signature.
On January 6, 2021, CFS provided additional information to the juvenile court
regarding its efforts to inquire about D.O.’s potential status as an Indian child. CFS
represented that a social worker had attempted to contact paternal grandmother on at least
three occasions in the two weeks between December 21, 2020 and January 4, 2021, and
left a voicemail for paternal grandmother on each occasion but received no response.
There was no mention of any attempt to contact any other paternal relatives.
On February 22, 2021, the juvenile court held a contested dispositional hearing.
The juvenile court noted that Father’s previous ICWA inquiry form was blank. As such,
the juvenile court sought to obtain a direct response from Father on the record. When
asked if he knew of anyone in his family with Native American or American Indian
ancestry, Father responded that he did not and that he knew of no family members
registered with any tribal entity. Father confirmed that the statement “ ‘I have no Indian
ancestry as far as I know’ ” was an accurate statement and further gave the juvenile court
permission to fill out Father’s ICWA inquiry form to reflect that understanding. As a
result of this representation, the juvenile court made a finding that ICWA did not apply.
On August 11, 2021, CFS filed a status review report. The report continued to
identify D.O.’s paternal grandparents and paternal great aunt as part of Father’s safety
network. The report also suggested that CFS knew D.O.’s paternal grandfather was
currently in the hospital and had attempted to facilitate a visit between D.O. and his
4
paternal grandfather. However, the portion of the report pertaining to ICWA compliance
did not document any efforts by CFS to inquire about potential Native American ancestry
or D.O.’s status as an Indian child. Instead, the report referred only to the fact that the
juvenile court had previously made a finding that ICWA did not apply.
On December 17, 2021, CFS filed a section 366.26 report. The portion of the
report pertaining to ICWA compliance again referred only to the fact that the juvenile
court had previously made a finding that ICWA did not apply. Elsewhere in the report,
CFS noted that paternal grandmother had completed a fingerprinting and screening
process in order to facilitate visitation with D.O.; that CFS provided paternal
grandmother with written notice of the proceedings by mail; that Father had identified a
paternal aunt residing out of state for potential placement; and that a social worker had
communicated by telephone with a paternal second cousin regarding the potential for
placement. Despite these documented communications, nothing in the report indicated
CFS made an ICWA-related inquiry with any of these relatives.
On March 15, 2022, the juvenile court held a contested permanency planning
hearing pursuant to section 366.26 and ordered Father’s parental rights terminated.
III. DISCUSSION
On appeal, Father claims that the juvenile court’s order terminating his parental
rights must be reversed and remanded to permit additional ICWA compliance.
Specifically, Father contends that CFS failed to discharge its initial duty of inquiry to
contact extended family members to inquire of D.O.’s possible status as an Indian child.
5
A. Lega l Background and Standard of Review
“Congress enacted ICWA in 1978 to address concerns regarding the separation of
Indian children from their tribes through adoption or foster care placement, usually in
non-Indian homes. [Citation.] 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.)
The Welfare and Institutions Code “creates three distinct duties regarding ICWA in
dependency proceedings. First, from the [department’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. [Citation.] 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.’ [Citation.] 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.” (In re
D.S., at p. 1052; § 224.2)
Following the inquiry stages, the juvenile court may make a finding that ICWA
does not apply because the CFS’s inquiry and due diligence was “ ‘proper and adequate’
but no ‘reason to know’ whether the child is an Indian child was discovered.” (In re D.S.,
supra, 46 Cal.App.5th at p. 1049.) However, the duty to inquire is “ ‘an affirmative and
continuing duty’ ” and the juvenile 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.’ ” (Id. at
6
pp. 1048, 1050; In re K.R. (2018) 20 Cal.App.5th 701, 706 [“[T]he juvenile court has a
continuing duty to conduct an inquiry when it has received information that a dependent
child might be an Indian child, as defined by ICWA . . . .”].)
A juvenile court’s finding that ICWA does not apply includes an implicit finding
that social workers fulfilled their duty of inquiry. (In re Austin J. (2020) 47 Cal.App.5th
870, 885.) “[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.” (In re A.M. (2020) 47 Cal.App.5th 303, 314; In re
Austin J., at p. 885 [implicit finding, reviewed for substantial evidence, that social
workers fulfilled their duty of inquiry].)
B. The Juvenile Court’s ICWA Finding Is Not Supported by Substantial Evidence
On appeal, the focus of Father’s claim is that CFS failed to interview extended
family members as part of its duty of initial inquiry in order to determine whether any
information might exist that would suggest D.O. is an Indian child. We agree the record
is insufficient to support the juvenile court’s implied finding that the social workers
discharged their duty of initial inquiry.
Here, by the time of the permanency planning hearing, CFS’s own reports
referenced at least five extended paternal family members known to CFS: D.O.’s
paternal grandparents, a paternal great aunt, a paternal aunt, and a paternal second cousin.
While the record suggests that a social worker unsuccessfully attempted to contact D.O.’s
paternal grandmother by telephone, CFS did not document any other efforts to
communicate with any other family members for the purpose of making an ICWA
7
inquiry.4 Further, the record shows that CFS had the ability to, and actually did,
communicate with at least some of these extended family members, as CFS reported that
it facilitated a fingerprinting process with D.O.’s paternal grandmother; a social worker
actually spoke with his paternal second cousin over the phone regarding potential
placement; and CFS attempted to facilitate a visit between D.O. and his paternal
grandfather while the grandfather was in the hospital. Despite these documented
communications, nothing in the record suggests CFS inquired with these relatives about
D.O.’s potential status as an Indian child. Such a record simply cannot support a finding
that CFS discharged its initial duty of inquiry under ICWA.
CFS argues that the juvenile court’s finding should be upheld because the record
does not suggest a reason to believe D.O. was an Indian child in light of Father’s
representation that he had no knowledge of Indian ancestry. However, this argument
fails to appreciate the three distinct duties required under ICWA and the related state
statutes. The initial duty of inquiry “applies to every ‘child for whom a petition under
[section 300] may be or has been filed . . . .” (In re Austin J., supra, 47 Cal.App.5th at
p. 884; § 224.2.) The “ ‘reason to believe’ ” and “ ‘reason to know’ ” standards are only
relevant with respect to triggering a duty of further inquiry and a duty to provide formal
4 Even if D.O.’s paternal grandmother had been the only identified relative, we
question whether this representation alone could have supported the juvenile court’s
finding that ICWA did not apply. Notably, all of these documented calls occurred during
the peak holiday weeks between December 21, 2020 and January 4, 2021. Further, later
reports clearly established that CFS was able to successfully communicate with D.O.’s
paternal grandmother, as she apparently successfully completed a fingerprinting process,
and CFS represented they provided her notice of the section 366.26 hearing by mail.
8
notice. (In re Austin J., at p. 884.) Thus, even absent a reason to believe D.O. was an
Indian child, CFS was obligated to fulfill its initial duty of inquiry.
This initial duty of inquiry includes the obligation to contact the child’s extended
family members to gather information that may be pertinent to the child’s status as an
Indian child. (§ 224.2, subd. (b); In re Antonio R. (2022) 76 Cal.App.5th 421, 431
[“[S]ection 224.2, subdivision (b), imposes [an obligation] on the Department to inquire
of a child’s extended family members—regardless of whether the parents deny Indian
ancestry.”]; In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.) [The duty
of initial inquiry includes gathering information from extended family members.].)
Moreover, the duty to make such inquiries persists even where a parent has no knowledge
of Indian ancestry. (In re Y.W. (2021) 70 Cal.App.5th 542, 554.)
As explained in In re Y.W., supra, 70 Cal.App.5th at p. 554: “[S]ection 224.2,
subdivision (b) . . . requires the Department to ask, as part of its initial duty of inquiry,
extended family members . . . whether the child is or may be an Indian child. [Citation.]
Nothing in [the statute] relieves the Department of its broad duty to seek that information
from ‘all relevant’ individuals [citation] simply because a parent states on the ICWA-020
form . . . , ‘I have no Indian ancestry as far as I know.’ Such a rule ignores the reality that
parents may not know their possible relationship with or connection to an Indian tribe.
[Citations.] . . . [¶] . . . That [a parent] disclaimed any Indian ancestry at the outset of
the dependency proceedings [does] not end the Department’s duty of inquiry, especially
where relevant contact and identifying information [is] readily available.”
9
Thus, the fact that Father eventually expressed that he had no knowledge of Ind ian
ancestry did not absolve CFS of its initial duty of inquiry, which included the obligation
to make reasonable attempts to contact extended family members for the purpose of
gathering information potentially relevant to D.O.’s status as an Indian child. Where
multiple extended family members are known to CFS, but the record does not show any
attempt to contact them for the purpose of making an ICWA inquiry, the record simply
does not support a finding that CFS discharged its initial duty under the ICWA.
C. The Record Does Not Permit Us to Conclude CFS’s Failure Was Harmless
CFS also argues that, even if it failed to fulfill its duty of inquiry, any such failure
should be deemed harmless. We disagree.
We acknowledge that the standard of prejudice requiring reversal in cases
involving ICWA is unsettled in the Courts of Appeal. (In re Antonio R., supra,
76 Cal.App.5th at p. 433 [“Courts of Appeal are divided as to whether a parent must
make an affirmative showing of prejudice to support reversal . . . .”].) However, this
court recently adopted a standard of prejudice in Benjamin M., supra, 70 Cal.App.5th 735that rejects both an automatic rule of reversal or a rule that places the burden squarely on
the parents to show the likelihood of obtaining a more favorable result. (Id. at pp. 743-
745.) Instead, we explained that reversal is required “where the record indicates that
10
there was readily obtainable information that was likely to bear meaningfully upon
whether the child is an Indian child.” (Id. at p. 744.)5
In considering the prejudicial effect of a social services agency’s failure to
discharge its duty to inquire under ICWA, this court has repeatedly held that the failure to
comply with an initial duty of inquiry is deemed prejudicial in the absence of information
in the record to suggest otherwise. (In re K.R., supra, 20 Cal.App.5th at p. 709; In re
N.G. (2018) 27 Cal.App.5th 474, 484; Benjamin M., supra,70 Cal.App.5th at pp. 744-
745.) As this court has previously explained: “[W]here the record does not show what, if
any, efforts the agency made to discharge its duty of inquiry [citations], . . . the burden of
making an adequate record demonstrating the court’s and the agency’s efforts to comply
with ICWA’s inquiry and notice requirements must fall squarely and affirmatively on the
court and the agency. . . . [A]s a general rule, we will find the appellant’s claims of
ICWA error prejudicial and reversible.” (In re N.G., at p. 484.) This remains true even
under our recently articulated standard of prejudice in Benjamin M. (Benjamin M., at
p. 745 [A failure to make an initial inquiry of an extended family member is prejudicial
because, “[w]hile we cannot know how [an extended family member] would answer the
inquiry, his answer is likely to bear meaningfully on the determination at issue.”].)
Here, the record is devoid of any indication that CFS made efforts to contact
known extended family members for the purpose of making an initial ICWA inquiry.
5 In adopting this standard of prejudice, this court expressly disagreed with the
standard articulated in In re A.C. (2021) 65 Cal.App.5th 1060. (Benjamin M., at p. 745.)
Accordingly, we find CFS’s reliance on that case unpersuasive.
11
Nor does the record suggest this was merely a failure by CFS to adequately document its
efforts, as CFS’s reports contained no substantive information related to ICWA or any
attempt to provide notices to any tribal entity. Given such a silent record, under the
general rule we expressed in In re N.G., supra, 27 Cal.App.5th 474, and our articulation
of what constitutes prejudicial error in Benjamin M., supra, 70 Cal.App.5th 735, we
cannot conclude CFS’s failure to comply with its initial duty of inquiry under the ICWA
was harmless.
12
IV. DISPOSITION
The order terminating Father’s parental rights is conditionally reversed. The
matter is remanded to the juvenile court with directions to comply with the inquiry
provisions of ICWA and of the Welfare and Institutions Code sections 224.2 and 224.3.
If, after completing the initial inquiry, neither CFS nor the juvenile court has reason to
believe or reason to know that D.O. is an Indian child, the order terminating Father’s
parental rights shall be reinstated. If, however, CFS or the juvenile court discovers a
reason to believe that D.O. is an Indian child, the juvenile court shall proceed
accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
13