In re Josiah T. ( 2021 )

Filed 11/8/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re JOSIAH T., a Person B311213
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. 17CCJP00277D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.M.
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Kristen Byrdsong, Judge Pro Tempore.
Conditionally reversed and remanded with directions.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_______________________
E.M.’s parental rights as to her son Josiah T. were
terminated pursuant to section 366.26 of the Welfare and
Institutions Code. 1 We conditionally reverse the termination
order because the record does not demonstrate that the
Department of Children and Family Services (DCFS) fulfilled its
duties under the Indian Child Welfare Act of 1978 (25 U.S.C.
§ 1901 et seq.) (ICWA) or provided information necessary to the
juvenile court to make findings as to the applicability of ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
I. Dependency Proceedings
Around 2014, Mother and Jeremiah T. (Father) began
dating. As of July 2017, Mother and Father had one child
together and Mother was expecting a second child; she also had
custody of two of her children from prior relationships. The
relationship was marked by severe domestic violence, including
an incident in July 2017 in which Father broke into Mother’s
apartment while Mother and her children were home sleeping.
Mother awoke to Father choking her. Father whipped Mother
with a leather belt and hit her repeatedly, at one point striking
her abdomen and telling her he was going to cause her to
miscarry. After Mother escaped with the children, Father texted
Mother that he would “make sure you [have a] miscarriage.”
Father was arrested for domestic violence and making criminal
threats.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
Although Mother said Father did not live with her, police
officers noticed a number of containers in the apartment that
appeared to contain Father’s clothes. When DCFS investigated,
it appeared Mother continued to maintain an intermittent
relationship with Father despite the domestic violence. Mother
acknowledged a restraining order protecting her from Father, but
she began to see Father again and violated the restraining order
because she felt he was “doing better.” Mother said Father had a
drinking problem; she claimed she had ended their relationship
when he began drinking again.
In September 2017, shortly before Josiah T.’s birth, DCFS
filed a juvenile dependency petition under section 300,
subdivisions (a) (serious physical harm), (b) (failure to protect),
and (j) (sibling abuse) as to the three children in Mother’s care.
The petition alleged domestic violence, Mother’s prior medical
neglect of an older child no longer in her custody, and Father’s
alcohol abuse. Mother secured permission from the juvenile court
to move to Las Vegas with her children by providing a falsified
lease agreement to the court. DCFS later discovered the family
had not left Southern California. Social workers in Las Vegas
were unable to locate or make contact with Mother. Mother
missed scheduled appointments with DCFS and lied to DCFS
about her whereabouts, the children’s location, and even Josiah
T.’s date of birth.
Josiah T. was born in October 2017 at a time when DCFS
was unable to locate and assess any of the children. DCFS filed a
dependency petition under section 300, subdivisions (a), (b),
and (j) for Josiah T. shortly after his birth. The juvenile court
ordered Josiah T. detained and issued both a protective custody
warrant for him and an arrest warrant for Mother. Eventually
3
DCFS learned Mother and Father were in Arizona with the
children. In November 2017, the children were recovered from
the parents and placed in foster care.
On November 29, 2017, the court sustained multiple
allegations of the dependency petitions, declared Josiah T. and
his three older siblings dependents of the juvenile court, and
removed them from parental custody.
Father never participated in the dependency proceedings
and refused to communicate with DCFS despite DCFS’s repeated
efforts to contact him. On September 26, 2018, Father’s
reunification services were terminated. Mother participated in
reunification services and visited with her children, but she
remained in a relationship with Father, attempted to conceal
their ongoing contact from DCFS, bore another child and lied to
DCFS by saying the baby was not hers, and failed to demonstrate
an ability to protect her children. On July 24, 2019, Mother’s
reunification services were terminated. Mother and Father’s
parental rights with respect to Josiah T. were terminated on
February 24, 2021. By then, over three years had passed since
DCFS filed its first petition. Mother appeals.
II. The ICWA Inquiry
A. September 2017: Before Josiah T.’s Birth
Shortly before Josiah T. was born, Mother appeared in
juvenile court in conjunction with the September 2017 petition
concerning the three older children. Mother completed a form
stating she had no American Indian ancestry. On September 14,
2017, the juvenile court found it had no reason to know ICWA
applied to Josiah T.’s siblings with respect to Mother.
4
Father appeared at the arraignment hearing on the older
children’s petition on September 22, 2017. He provided paternal
grandmother’s address as his permanent mailing address. The
record provided to this court does not state whether the juvenile
court inquired of Father whether he knew or had reason to know
his first son was an Indian child, as required by section 224.2,
subdivision (c).
B. October and November 2017: ICWA Findings for
Mother, No Contact with Father
1. Initial Investigation, Detention Report, and
Hearing
DCFS began searching for the family in early October 2017
when Mother’s communication became sporadic and Las Vegas
social workers were unsuccessful in locating the family. As part
of the investigation, DCFS visited paternal grandmother’s home
because Father had provided her address as his mailing address.
Other DCFS records also associated him with that address, and
Mother had confirmed the address as paternal grandmother’s
residence. No one answered the door.
The detention hearing for Josiah T. was set for October 18,
2017, during the time period when the family’s location was
unknown. In the detention report for Josiah T. filed by DCFS on
October 17, 2017, DCFS stated it was unknown whether ICWA
applied. DCFS advised the court of the ICWA finding with
respect to Mother in the proceeding involving the older children,
and noted that “DCFS has not met with the child’s father. It is
unknown if the father has any American Indian ancestry.”
Neither parent appeared at the detention hearing. The
record includes an unsigned ICWA-020 form bearing the date of
5
the detention hearing and stating Mother had no Indian
ancestry. The minute order from the October 18, 2017 detention
hearing states that the court found there was no reason to know
Josiah T. was an Indian child with respect to Mother, but the
reporter’s transcript from the hearing contains no mention of
ICWA.
2. Jurisdiction/Disposition Report and Hearing
On October 20, 2017, DCFS returned to the home of the
paternal grandmother, where paternal uncle T.T. identified
himself as Father’s brother and denied Mother or the children
were at the residence.
On November 1, 2017, DCFS filed a jurisdiction/disposition
report. DCFS again reported that the investigating social worker
“has not yet met with the child’s father. It is unknown if the
father has any American Indian ancestry.” Father did not appear
at the November 29, 2017 jurisdiction/disposition hearing.
C. December 2017–May 2018: Family Contacts but No
ICWA Inquiries During First Period of Services
On December 5, 2017, Mother told DCFS she would like
her two children with Father, Josiah T. and his older sibling, to
be placed with paternal grandmother. DCFS spoke with paternal
grandmother on December 11, 2017. Paternal grandmother
expressed an interest in visiting with Josiah T. and his brother
and receiving the two children into her care. The social worker
advised paternal grandmother she had to come to court to
request visitation and gave her the date of the next hearing. She
also informed paternal grandmother that her home would need
approval before the children could be placed with her. The social
worker’s notes stated she would follow up with paternal
6
grandmother about the approval process. The notes do not reflect
that DCFS asked paternal grandmother whether Josiah T. is or
may be an Indian child.
The following week, the social worker and paternal
grandmother spoke again about the caregiver approval process.
Paternal grandmother continued to express interest in caring for
Father’s two children with Mother. The social worker told
paternal grandmother she would need to meet with all the adults
in the home and any other adults who would have significant
contact with the children, and that an authorization for release of
information would have to be signed by all adults living in the
home. The social worker scheduled a meeting with paternal
grandmother and paternal uncle T.T. It does not appear from the
record that the social worker made an ICWA inquiry during this
conversation.
On December 21, 2017, DCFS advised paternal
grandmother it would be unable to place the children with her
because of her multiple arrests, including a recent one for driving
under the influence. The social worker asked paternal
grandmother to share the social worker’s contact information
with other family members who might want to care for the
children. There is no indication in the record that DCFS inquired
whether Josiah T. is or might be an Indian child during this
telephone call, now the fourth contact with paternal
grandmother/paternal uncle where the ICWA issue was not
raised and resolved.
DCFS spoke with paternal grandfather on April 5, 2018.
Paternal grandfather did not know about the dependency
proceedings and denied contact with Father or paternal
grandmother. From the record on appeal, it does not appear the
7
social worker asked paternal grandfather whether Josiah T. is or
may be an Indian child.
On May 16, 2018, two DCFS workers visited paternal
grandmother at her home and spoke to her about Father.
Paternal grandmother said Father “comes and goes” at the home
and she saw him once or twice per month. She confirmed Father
received mail at her address and she accepted documents for
Father. The record does not reflect any inquiry into Indian
ancestry for Josiah T. at this time.
In the status review report it submitted to the juvenile
court on May 30, 2018, for Josiah T.’s section 366.21, subdivision
(e) six-month review hearing, DCFS told the juvenile court ICWA
did not apply. DCFS did not explain how it reached this
conclusion given that, as it also told the court, the social worker
“has been unable to meet with the . . . father, as his whereabouts
remain unknown. It is unknown if the father has any American
Indian ancestry.” DCFS did not report any inquiries into
whether Josiah T. is an Indian child.
D. June 2018–November 2018: Family Contacts and No
ICWA Inquiries During Second Period of Services
At least by July 2018, DCFS had learned Josiah T. had a
paternal aunt, as she is mentioned in a report prepared at that
time.
The section 366.21, subdivision (f) 12-month review hearing
was scheduled for November 29, 2018, and DCFS submitted a
status review report to the juvenile court on November 21, 2018.
Again, DCFS asserted it did not know whether Father had Indian
ancestry, but declared ICWA did not apply. DCFS repeated its
prior statement that the social worker “has been unable to meet
with . . . father, as his whereabouts remain unknown. It is
8
unknown if the father has any American Indian ancestry.” DCFS
did not describe any investigation concerning Josiah T.’s possible
Indian ancestry during this period.
E. December 2018–April 2019: Family Contacts and
ICWA Inquiries During Third Period of Services
The section 366.22 18-month permanency review hearing
was set for April 18, 2019. On April 15, 2019, DCFS submitted a
status review report to the juvenile court. In this report, DCFS
once again advised the court that ICWA did not apply even
though the social worker had not met with Father, did not know
where he was, and did not know if he had any American Indian
ancestry. DCFS advised the court that the social worker “will
contact the paternal grandmother, Ms. Natasha W[.] to inquire
about possible American Indian ancestry. [The social worker]
will submit an LMI [last minute information] with an update.”
Despite the dearth of information about Father’s possible
American Indian ancestry, DCFS recommended the court “make
an ICWA finding” as to Father.
On the same date the report was filed, April 15, 2019,
DCFS for the first time asked paternal grandmother about
Indian ancestry. According to a report DCFS made the following
year, in that conversation paternal grandmother told the social
worker that “there is Cherokee Indian Ancestry on her
grandmother’s side. However, [paternal grandmother] denied
having any further information in regard[] to ICWA.” She
declined to provide information regarding her grandmother.
Although DCFS had promised to file a last minute
information report with any information received from paternal
grandmother, and DCFS did receive this information in advance
of the scheduled April 18, 2019 review hearing, there is no last
9
minute information report in the record. There is also no
indication in the record that DCFS followed up on paternal
grandmother’s report of Cherokee ancestry with any further
investigation or inquiry.
The 18-month review hearing was continued to June 4,
2019.
F. May 2019: No ICWA Inquiry, No Disclosure of
Paternal Grandmother’s April 2019 Report of
Cherokee Ancestry
In advance of the June 4, 2019 18-month review hearing,
DCFS submitted an extensive last minute information report on
May 28, 2019. In this report, DCFS did not disclose to the court
that paternal grandmother had informed DCFS one month
earlier in April 2019 that she had Cherokee ancestry, nor did it
identify any ICWA inquiries made. Although DCFS spoke with
paternal grandmother again in May 2019, there is no indication
that DCFS asked her for the relevant family member information
for ICWA inquiries with the tribes and the Bureau of Indian
Affairs. DCFS renewed its request that the court make an ICWA
finding as to Father.
On June 4, 2019, the juvenile court again continued the 18-
month review hearing, this time to July 2, 2019.
G. June 2019: No ICWA Inquiry, No Disclosure of
Paternal Grandmother’s Report of Cherokee Ancestry
DCFS submitted a multi-page last minute information
report to the court in advance of the July 2, 2019 hearing date.
Once again, DCFS did not inform the court paternal grandmother
had stated she had Cherokee ancestry. DCFS did not include any
information suggesting any further inquiry had been made with
10
respect to ICWA, and it does not appear from the record that
DCFS took any action to gather further information about
paternal grandmother’s report of Cherokee ancestry or to contact
the Bureau of Indian Affairs or Cherokee tribes. DCFS
nonetheless asked the court to make an ICWA finding concerning
Father.
On July 2, 2019, the court continued the 18-month review
hearing once more, to July 24, 2019.
H. July 2019: No ICWA Inquiry, No Disclosure of
Paternal Grandmother’s Report of Cherokee Ancestry
There is no mention in the record of DCFS taking any
action during this time period to further inquire after paternal
grandmother disclosed her Cherokee ancestry.
DCFS did not submit a last minute information report to
the court in advance of the rescheduled 18-month review hearing.
Nor did DCFS did advise the juvenile court at the hearing about
the information it had received from paternal grandmother three
months earlier. At the July 24, 2019 review hearing, the juvenile
court terminated Mother’s reunification services and set a section
366.26 permanency planning hearing for November 20, 2019.
I. August 2019–November 2019: Conversation with
Paternal Grandmother, No Disclosure of Her Report
of Cherokee Ancestry
In October 2019, the caregiver for Josiah T. and his brother
advised DCFS she was no longer able to adopt them. A DCFS
social worker contacted paternal aunt who was interested in
adopting the children, and the formal process for evaluation soon
began.
11
With the permanency planning hearing approaching, DCFS
wanted the court to find ICWA inapplicable so the children could
be adopted. On November 6, 2019, paternal grandmother was
contacted by a different DCFS social worker than the one she had
told of her Cherokee ancestry in April 2019. Paternal
grandmother denied Indian ancestry to the new social worker.
Because DCFS had not yet reported paternal grandmother’s April
2019 statement to the juvenile court nor documented it in the
then-existing records provided to the juvenile court, the new
social worker inquiring in November 2019 may not have been
aware that paternal grandmother had changed her story; in any
event, there is no indication that anyone from DCFS asked
paternal grandmother about the change in her statement, nor is
any detail about the nature of this social worker’s inquiry
included in the record on appeal.
DCFS also spoke with paternal aunt, who told DCFS she
believed her father possibly had Indian ancestry. Paternal aunt
telephoned paternal grandfather, who advised he had Choctaw
ancestry through his grandmother and great-grandmother.
Paternal grandfather provided names of his parents and one
birth date, and paternal aunt agreed to call DCFS if she was able
to obtain more information, which she later did. There is no
indication in the record that DCFS asked paternal aunt whether
she had any Indian ancestry through paternal grandmother or
sought biographical information about paternal grandmother’s
side of the family.
Although DCFS had received this information about
possible Choctaw ancestry before it submitted its section 366.26
report, DCFS had not inquired with the three Choctaw tribes or
the Bureau of Indian Affairs whether Josiah T. is an Indian child.
12
DCFS told the juvenile court it would send ICWA notices to the
tribes and the Bureau of Indian Affairs once a new section 366.26
hearing date was set.
Despite DCFS’s failure to complete its ICWA inquiries,
DCFS pressed the juvenile court for an ICWA finding so the
children could be adopted. In DCFS’s section 366.26 report, filed
November 8, 2019, the adoption social worker “recommend[ed]
that the Court find that ICWA does not apply to the father as an
ICWA finding is needed to proceed with the adoption process.”
DCFS again asserted ICWA did not apply. Although the report
purported to summarize DCFS’s ICWA inquiries, DCFS failed yet
again to disclose to the juvenile court that paternal grandmother
had told DCFS months earlier that she had Cherokee ancestry.
DCFS informed the juvenile court only that when it spoke to
paternal grandmother on November 6, 2019, she denied Indian
ancestry.
The section 366.26 permanency planning hearing was
continued to March 18, 2020.
J. January 2020: First Disclosure of Paternal
Grandmother’s Report of Cherokee Ancestry
On January 10, 2020, in a status review report for a section
366.3 permanent planning review hearing, DCFS advised the
court for the first time that paternal grandmother had stated she
had Cherokee ancestry in April 2019. DCFS did not describe
making any further inquiries into Josiah T.’s possible Cherokee
ancestry in response to this disclosure: DCFS merely reported
that paternal grandmother later said she had no Indian ancestry.
DCFS did not acknowledge the contradiction or describe any
further inquiry when paternal grandmother contradicted her
prior report. Nor did DCFS report ever asking paternal aunt,
13
paternal uncle, or paternal grandfather about either of paternal
grandmother’s contradictory statements, or for the names,
birthdates, and other necessary information about paternal
grandmother’s parents.
DCFS again advised the court about the information
suggesting possible Choctaw ancestry through paternal
grandfather. DCFS did not describe any additional inquiries into
Josiah T.’s possible Choctaw ancestry, and it had not contacted
the tribes or the Bureau of Indian Affairs to inquire whether
Josiah T. was a Choctaw child. DCFS stated it would give notice
to those tribes and the Bureau of Indian Affairs when a new date
was set for the permanency planning hearing.
K. January 2020–January 2021: Remaining Reports
In late January 2020, paternal aunt and paternal
grandfather provided additional information regarding Josiah
T.’s possible Choctaw ancestry, including paternal grandfather’s
belief that none of his immediate family members was enrolled in
a Choctaw tribe. On January 24, 2020, DCFS sent notice to the
Bureau of Indian Affairs and three Choctaw tribes, and in
February 2020, DCFS received responses stating Josiah T. was
not eligible for enrollment in the Choctaw tribes.
DCFS filed an addendum to its section 366.26 report in
March 2020. In this addendum, DCFS purported to recount all
its ICWA efforts. It described in particular detail the efforts it
had made to obtain responses from the Choctaw tribes and the
Bureau of Indian Affairs. DCFS urged the court to rule that
ICWA did not apply because Josiah T. and his brother were
neither enrolled nor eligible for enrollment in a Choctaw tribe.
But DCFS again omitted paternal grandmother’s April 2019
14
disclosure of Cherokee ancestry through her maternal line, only
mentioning her later denial of Indian ancestry.
DCFS filed two more addenda to its section 366.26 report
because the section 366.26 hearing was continued several times.
In both of these addenda, filed December 18, 2020, and February
16, 2021, DCFS failed to disclose paternal grandmother’s April
2019 report of Cherokee ancestry and noted only that she had
denied Indian ancestry in November 2019.
DCFS mentioned paternal grandmother’s initial statement
about her Cherokee ancestry only once more, in a status review
report filed in September 2020 for a permanency planning review
hearing pursuant to section 366.3.
On January 4, 2021, the juvenile court found it had no
reason to know Josiah T. was an Indian child.
DISCUSSION
Mother argues on appeal that the juvenile court erred in
finding ICWA did not apply to Josiah T. because DCFS failed to
satisfy its duty to inquire whether he was an Indian child under
ICWA. “Where, as here, the juvenile court finds ICWA does not
apply to a child, ‘[t]he finding implies that . . . social workers and
the court did not know or have a reason to know the children
were Indian children and that social workers had fulfilled their
duty of inquiry.’ (In re Austin J. [(2020) 47 Cal.App.5th 870, 885
(Austin J.)]; see In re D.S. [(2020) 46 Cal.App.5th 1041, 1050
(D.S.)] [‘[t]he juvenile court may . . . make a finding that ICWA
does not apply because the Agency’s further inquiry and due
diligence was “proper and adequate” but no “reason to know”
whether the child is an Indian child was discovered’].)” (In re J.S.
(2021) 62 Cal.App.5th 678, 688.) “ ‘[W]e review the juvenile
15
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 (D.F.).)
I. Applicable Law
ICWA reflects a congressional determination to protect
American Indian children and to promote the stability and
security of Indian tribes and families. (25 U.S.C. § 1902; Austin
J., supra, 47 Cal.App.5th at p. 881.) To that end, ICWA
established unique standards for the removal and placement of
American Indian children. (25 U.S.C. § 1901 et seq.) Central to
the protections of ICWA are procedural rules to determine
whether an Indian child is involved. Federal regulations
implementing ICWA require state courts to ask participants in
child custody proceedings whether the participant knows or has
reason to know the child is an Indian child. (25 C.F.R.
§ 23.107(a).) The court must also tell the parties to inform the
court if the parties receive information giving them reason to
know the child is an Indian child. (Ibid.)
The juvenile court has “an affirmative and continuing duty
to inquire” whether a child subject to a section 300 petition may
be an Indian child. (§ 224.2, subd. (a); D.F., supra, 55 Cal.App.5th
at p. 566.) “This continuing duty can be divided into three
phases: the initial duty to inquire, the duty of further inquiry,
and the duty to provide formal ICWA notice.” (D.F., at p. 566.)
16
State law lays out the requirements for initial inquiry and
further inquiry. (Austin J., supra, 47 Cal.App.5th at p. 883.)
Initial inquiry includes the following: DCFS must 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.” (§ 224.2, subd. (b).) At each participant’s
first appearance at dependency proceedings, the court must ask
whether the participant knows or has reason to know the child is
an Indian child. (Id., subd. (c).)
The court and DCFS social workers must make “further
inquiry” if the court or DCFS has “reason to believe” an Indian
child is involved. (§ 224.2, subd. (e).) “There 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.
Information suggesting membership or eligibility for membership
includes, but is not limited to, information that indicates, but
does not establish, the existence of one or more of the grounds for
reason to know [the child is an Indian child].” (Id., subd. (e)(1).)
The law lays out steps the court and DCFS must take in
“further inquiry,” including, but not limited to, interviewing
parents and extended family members and notifying the Bureau
of Indian Affairs and any 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); see
also Cal. Rules of Court, rule 5.481(a)(4).) Contact with a tribe
must include, at minimum, “telephone, facsimile, or electronic
17
mail contact to each tribe’s designated agent” and information
“necessary for the tribe to make a membership or eligibility
determination.” (§ 224.2, subd. (e)(2)(C).)
A court’s finding there is “reason to know” a child is an
Indian child requires formal notice to the tribe. (§ 224.3; see also
D.F., supra, 55 Cal.App.5th at p. 568.) Sharing information with
a tribe at the “further inquiry” stage is distinct from formal
notice. (D.F., at p. 567.)
II. Initial Duty of Inquiry
In the present case, ICWA inquiry and determinations with
respect to Father were virtually ignored until the permanency
planning stage. For the first 18 months of Josiah T.’s case, DCFS
proceeded as though its inability to locate Father excused it from
the responsibility of ascertaining whether there was reason to
believe Josiah T. is an Indian child. DCFS was not excused. In
the course of its initial inquiry into Josiah T.’s possible Indian
ancestry, DCFS was required by law 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.” (§ 224.2, subd. (b).) DCFS failed to do so in any timely
manner. Obviously, Josiah T., an infant, was unable to provide
information to DCFS, and to be sure, the record is replete with
unsuccessful DCFS efforts to contact Father throughout the
dependency case. But DCFS neglected to interview the four
available paternal relatives in any reasonable timeframe to
inquire whether Josiah T. has Indian ancestry.
Josiah T.’s case began in October 2017. DCFS knew
paternal grandmother’s name and address from the very start of
the proceedings, and DCFS was in contact with her early in the
18
dependency case because she wanted her grandsons placed with
her. Other paternal extended family members were known to
and available to DCFS from the early days of the dependency
matter: DCFS had encountered paternal uncle at the home of
paternal grandmother, where he apparently lived, and DCFS had
been scheduled to meet with paternal uncle in December 2017
when it was exploring placement of the children with paternal
grandmother. There is no indication in the record that DCFS
ever spoke to paternal uncle about ICWA. DCFS first spoke with
paternal grandfather in April 2018, and it knew of paternal aunt
by July 2018 at the latest. Both were cooperative with DCFS.
Despite having four paternal family members known to
DCFS and potentially available to consult about American Indian
ancestry, DCFS delayed all ICWA inquiry for a full 18 months
after Josiah T.’s petition was filed. DCFS’s initial inquiry under
ICWA was not made until after the jurisdictional and
dispositional hearings, the 6-month review hearing, and the 12-
month review hearing. It was only three days before the
scheduled date of the 18-month permanency review hearing—the
point at which reunification services were terminated and the
hearing for the termination of parental rights was set—that
DCFS bothered to ask paternal grandmother, with whom social
workers had long been in contact, about Indian ancestry. And
asking paternal grandmother about her American Indian
ancestry was all DCFS did. DCFS never consulted paternal
uncle, and it waited seven more months, until November 2019,
before inquiring with paternal aunt and paternal grandfather
about ICWA—more than two years after the petition was filed.
DCFS’s belated initial inquiry was inadequate.
19
III. Duty to Further Inquire
DCFS argues paternal grandmother’s April 2019 statement
that she had Cherokee ancestry did not trigger the duty of
further inquiry because even though she identified her
grandmother as the person with Cherokee heritage, she declined
to provide information about her grandmother and denied having
further information regarding Indian heritage. We disagree.
Based on the representation by paternal grandmother that she
had Cherokee ancestry through her grandmother, DCFS was
required to engage in further inquiry. The facts here are similar
to those we considered in D.F. In D.F., the mother stated she
might have Indian ancestry from an unnamed tribe in New
Mexico. (D.F., supra, 55 Cal.App.5th at p. 569.) DCFS argued,
just as it does here, that this was insufficient to trigger a duty of
further inquiry. (Ibid.) Observing that even though the mother
in D.F. did not identify a specific tribe, she did specify it was a
tribe from New Mexico, we found “this information [wa]s specific
enough to trigger the duty of further inquiry.” (Ibid.; see also
D.S., supra, 46 Cal.App.5th at pp. 1046, 1052 [aunt’s statement
that she may have Sioux and Blackfeet ancestry but that she had
no further information and had no reason to believe the child was
an Indian child was “sufficient to establish a reason to believe”
and “triggered a duty to conduct a further inquiry”].) Similarly
here, paternal grandmother’s representation that she had
Cherokee ancestry through her grandmother was specific enough
to trigger the duty of further inquiry. DCFS’s initial inquiry
created a “reason to believe” Josiah T. possibly is an Indian child.
At that point, DCFS had the duty to further inquire into
Josiah T.’s possible Indian status as soon as practicable. (§ 224.2,
subd. (e) [“If the . . . social worker . . . has reason to believe that
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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 . . . social worker . . . shall
make further inquiry regarding the possible Indian status of the
child, and shall make that inquiry as soon as practicable”].)
“Further inquiry as to the possible Indian status of the child
includes: (1) interviewing the parents and extended family
members to gather required information; (2) contacting the
Bureau of Indian Affairs and State Department of Social Services
for assistance in identifying the tribes in which the child may be
a member or eligible for membership in; and (3) contacting the
tribes and any other person that may reasonably be expected to
have information regarding the child’s membership or eligibility.”
(D.F., supra, 55 Cal.App.5th at pp. 566–567, fn. omitted.)
But DCFS did nothing about paternal grandmother’s
disclosure of Cherokee ancestry for seven months. There is no
indication in the record that DCFS ever in the course of the
dependency proceedings sought information about Father’s
maternal line from other available paternal relatives. Nor did
DCFS ever reach out to the Bureau of Indian Affairs or the
various Cherokee tribes to ascertain whether Josiah T. is a
Cherokee child. “The burden is on the Agency to obtain all
possible information about the minor’s potential Indian
background and provide that information to the relevant tribe or,
if the tribe is unknown, to the [Bureau of Indian Affairs].” (In re
Louis S. (2004) 117 Cal.App.4th 622, 630.)
From the record before us, it appears DCFS failed to fulfill
its duty to engage in further inquiry as soon as practicable.
(§ 224.2, subd. (e).) While DCFS’s “inquiry obligation is ‘not an
absolute duty to ascertain or refute Native American ancestry,’ ”
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(D.F., supra, 55 Cal.App.5th at p. 570), failing to perform any
inquiry whatsoever for seven months cannot be considered a
timely, diligent, or good faith effort to gather information about
Josiah T.’s membership status or eligibility. “[T]he social
worker’s affirmative duty to inquire whether the minors might be
Indian children mandated, at a minimum, that she make some
inquiry regarding the additional information required to be
included in the ICWA notice.” (In re D.T. (2003) 113 Cal.App.4th
1449, 1455.)
Although this would not excuse DCFS’s inactivity for the
seven months after paternal grandmother disclosed Cherokee
ancestry to the social worker, DCFS argues that paternal
grandmother’s denial of Indian ancestry in November 2019
meant “there was no further duty on the part of the dependency
investigator to pursue Josiah’s possible Cherokee heritage.” The
law is to the contrary: a mere change in reporting, without more,
is not an automatic ICWA free pass; when there is a conflict in
the evidence and no supporting information, DCFS may not rely
on the denial alone without making some effort to clarify the
relative’s claim. (In re Gabriel G. (2012) 206 Cal.App.4th 1160(Gabriel G.).)
Gabriel G. is instructive. There, the father initially claimed
Cherokee ancestry but “the social worker interviewed father . . .
and reported father stated that he did not have Indian heritage.
But the social worker’s representation in the Department’s report
did not provide any specifics regarding the inquiry he made of
father as to his Indian heritage. For example, the social worker
did not state whether he limited his inquiry to father’s
registration in a federally recognized tribe or inquired about the
registration status of father’s relatives. Nor did the social worker
22
state whether he specifically asked father to elaborate on the
information [previously] provided in the ICWA-020 form or to
explain any discrepancy between its contents and father’s
statement to the social worker. On the record before us, we
cannot discern whether father meant to convey that while he was
not a registered member of a Cherokee tribe, his own father was
registered. [¶] At a minimum, a conflict in the evidence exists.
Under these circumstances, the social worker had a duty of
further inquiry. [Citation.] But there is nothing in the record to
indicate the social worker interviewed anyone besides father,
such as the paternal grandmother.” (Gabriel G., supra,
206 Cal.App.5th at pp. 1167–1168.)
The same is true here. The entirety of the report of
paternal grandmother’s denial of Indian ancestry reads “On
11/6/19, PGM LaTasha W[.] stated to DI Manfre that she does not
have Native American heritage.” As in Gabriel G., the “social
worker’s representation in the Department’s report did not
provide any specifics regarding the inquiry” she made of paternal
grandmother as to her Indian heritage, and the record reflects no
effort by the social worker to clarify paternal grandmother’s
claim. Without further information about what was asked and
what was said, we cannot agree the single-sentence, unexplained
denial in November 2019 extinguished DCFS’s reason to believe
Josiah T. may be an Indian child.
IV. Failure to Disclose to the Court Information That Would
Have Allowed the Court to Give Proper ICWA Direction and
Make Informed Rulings
California Rules of Court, rule 5.481(a)(5) provides, “The
petitioner must on an ongoing basis include in its filings a
detailed description of all inquiries, and further inquiries it has
23
undertaken, and all information received pertaining to the child’s
Indian status, as well as evidence of how and when this
information was provided to the relevant tribes.” DCFS has a
duty “to document it[s inquiry] and to provide clear information
to the court” so the court may rule on the question of whether the
ICWA applies. (In re L.S. (2014) 230 Cal.App.4th 1183, 1198
(L.S.).) DCFS did not inform the court in a timely fashion that
paternal grandmother had disclosed Cherokee ancestry. Despite
having promised the juvenile court it would file a last minute
information report in April 2019 detailing the information it
received from paternal grandmother, it did not do so. Instead,
DCFS filed multiple reports for the remainder of 2019 in which it
did not tell the court she had disclosed Cherokee ancestry, even
as it asked the court to make ICWA findings.
Ultimately, DCFS withheld from the juvenile court
paternal grandmother’s disclosure of Cherokee ancestry until the
following year. Only in January 2020 did DCFS relate the April
2019 conversation in a status review report. By that time, DCFS
had performed only one act to follow up on paternal
grandmother’s report: Seven months after the initial disclosure,
in November 2019, DCFS returned to paternal grandmother and
made some inquiry about ICWA. This time, paternal
grandmother answered she had no Indian ancestry. The record
does not reflect that DCFS asked paternal grandmother to clarify
why she had said she had Cherokee ancestry through her
maternal grandmother, then months later denied any such
ancestry. Nor does the record indicate that DCFS ever inquired
with paternal aunt, paternal uncle, or paternal grandfather
whether they knew of any Indian ancestry through paternal
grandmother, or sought names, birthdates, and any other
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information about paternal grandmother’s relatives—even
though DCFS spoke to paternal aunt and grandfather about
ICWA on the same day paternal grandmother changed her
account. 2 Instead, DCFS simply ignored paternal grandmother’s
initial statement in nearly every subsequent report, informing
the court only of the later conversation in which she denied
Indian ancestry.
In fact, although DCFS filed a section 366.26 report and
three addenda (in November 2019, March 2020, December 2020,
and February 2021), DCFS never included paternal
grandmother’s report of Cherokee ancestry in any of these
documents, meaning that when the juvenile court consulted the
section 366.26 reports for ICWA information, the court had no
way of knowing the April 2019 conversation had ever happened.
When the juvenile court ruled on ICWA applicability in January
2021, in order for the juvenile court to know paternal
grandmother had claimed Cherokee ancestry it would have had
to set aside the supposedly comprehensive section 366.26 report
and recent addenda and look back at superseded status reports
from the January 2020 or September 2020 review hearings. This
violated the requirement of California Rules of Court, rule
5.481(a)(5) that DCFS “on an ongoing basis include in its filings a
detailed description of all inquiries, and further inquiries it has
undertaken, and all information received pertaining to the child’s
Indian status.” Particularly in a lengthy, complicated family
matter such as this one, involving multiple petitions, separate
2 The social worker’s report discusses only paternal aunt and
paternal grandfather’s report of paternal grandfather’s Choctaw
heritage. It does not describe any inquiry with paternal aunt or
grandfather about paternal grandmother’s claim or ancestors.
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cases, and several children with different alleged fathers, it is not
reasonable to expect the juvenile court to check the operative
section 366.26 permanency planning reports against all prior
reports to make sure DCFS has provided complete summaries of
its all its ICWA inquiries and information received. DCFS’s
omissions deprived the juvenile court of the information it needed
to make informed rulings as to whether DCFS’s inquiry was
adequate and whether ICWA applied.
V. DCFS’s Failures to Fulfill its ICWA Obligations and to
Disclose Information to the Juvenile Court Undermine the
Court’s ICWA Ruling
“The juvenile court may find ICWA does not apply following
‘proper and adequate further inquiry and due diligence’ by DCFS
because ‘there is no reason to know whether the child is an
Indian child’ or because ‘the court does not have sufficient
evidence to determine that the child is or is not an Indian child’ ”
(D.F., supra, 55 Cal.App.5th at pp. 570–571), but the court may
not find that ICWA does not apply when the absence of evidence
that a child is an Indian child results from a DCFS inquiry that
is not proper, adequate, or demonstrative of due diligence. “In
order for the court to make a determination whether the notice
requirements of the ICWA have been satisfied, it must have
sufficient facts, as established by the Agency, about the claims of
the parents, the extent of the inquiry, the results of the inquiry,
the notice provided any tribes and the responses of the tribes to
the notices given. Without these facts, the juvenile court is
unable to find, explicitly or implicitly, whether the ICWA
applies.” (L.S., supra, 230 Cal.App.4th at p. 1198.) Because of
DCFS’s inquiry and reporting deficiencies, the juvenile court
lacked the information it needed to make those determinations,
26
and even worse, it would have had to engage in detective work to
uncover the fact that it did not have the information necessary to
make an informed ruling. Under these circumstances, and
through no fault of the juvenile court, we cannot conclude the
evidence was sufficient to support the court’s determination it
had no reason to know Josiah T. is an Indian child.
The juvenile court must be provided with full information
about DCFS’s investigation so it may determine whether the
investigation was adequate and whether there is reason to know
Josiah T. is an Indian child. Accordingly, we conditionally
reverse the order terminating parental rights and remand with
directions to the juvenile court to permit DCFS to demonstrate it
did in fact satisfy its affirmative duty to investigate. If DCFS
shows its investigation fulfilled its duty to investigate, the court
should reinstate its section 366.26 orders.
If DCFS is unable to demonstrate its investigation was
adequate to satisfy its obligations, the court should order DCFS
to perform an investigation consistent with the law and this
decision. If as a result of that investigation new information is
obtained that may assist the Bureau of Indian Affairs or a
specific tribe or tribes in determining whether Josiah T. is an
Indian child, the juvenile court shall order DCFS to provide the
Bureau of Indian Affairs and any appropriate tribe or tribes with
proper notice incorporating that additional information. If
adequate additional investigation is performed but yields no
further information that could assist the Bureau of Indian Affairs
or a specific tribe or tribes in determining whether Josiah T. is an
Indian child, the juvenile court shall reinstate its section 366.26
orders.
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In the event that notice is ordered: If a tribe responds,
indicates that Josiah T. is an Indian child, and seeks
intervention, the juvenile court’s orders shall be vacated and
proceedings consistent with ICWA conducted. If no tribe
responds that Josiah T. is an Indian child, or if no tribe seeks to
intervene, the court should then reinstate its section 366.26
orders.
DISPOSITION
The order terminating parental rights under section 366.26
is reversed and the matter is remanded to the juvenile court with
directions that within 10 days of the remittitur DCFS
demonstrate the scope and adequacy of its investigation of Josiah
T.’s potential Indian ancestry. If the juvenile court determines
DCFS’s investigation satisfied its affirmative duty to investigate,
the court shall reinstate its section 366.26 orders.
If the juvenile court concludes DCFS’s investigation was
insufficient, the juvenile court shall order, pursuant to ICWA and
rules 5.481 and 5.482 of the California Rules of Court, that
within 30 days of the remittitur DCFS perform a thorough
investigation of Josiah T.’s potential Indian ancestry. If adequate
additional investigation is performed but yields no further
information that could assist the Bureau of Indian Affairs or a
specific tribe or tribes in determining whether Josiah T. is an
Indian child, the juvenile court shall then reinstate its section
366.26 orders. If as a result of that investigation new
information has been obtained that may assist the Bureau of
Indian Affairs or a specific tribe or tribes in determining whether
Josiah T. is an Indian child, the juvenile court shall order DCFS
to provide the appropriate tribe or tribes and the Bureau of
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Indian Affairs with proper notice of the pending proceedings,
which should include all relevant family members’ names, birth
dates, and places of birth, as well as the required forms and a
copy of the petition; and that DCFS file copies of the notices sent,
all return receipts, and all responses received with the juvenile
court.
In the event new notice is given and no tribe responds
indicating Josiah T. is an Indian child within the meaning of
ICWA, or no tribe seeks to intervene, the court shall reinstate its
orders. If a tribe determines Josiah T. is an Indian child and
seeks to intervene in the juvenile court proceedings, the juvenile
court shall vacate its prior orders and conduct all proceedings in
accordance with ICWA and related California law.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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