In re K.C. CA2/6 ( 2022 )

Filed 10/11/22 In re K.C. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re K.C., a Person Coming 2d Juv. No. B318413
Under the Juvenile Court Law. (Super. Ct. No. J072581)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
C.C.,
Defendant and Appellant.
C.C. (mother) appeals the juvenile court’s orders
terminating parental rights to her two-year-old son, K.C. (Welf.
& Inst. Code, § 366.26.)1 She contends the court and Ventura
All statutory references are to the Welfare and
1
Institutions Code unless otherwise stated.
County Human Services Agency (HSA) failed to comply with the
inquiry requirements of the Indian Child Welfare Act (25 U.S.C.
§ 1901 et seq.; ICWA)2 and California law. We agree the record
does not establish that the expanded duty of initial inquiry set
forth in section 224.2, subdivision (b) has been satisfied.
Accordingly, we conditionally affirm the judgment and remand
for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
K.C. was taken into protective custody after he tested
positive for amphetamines and methamphetamine at birth.
HSA’s section 300 petition alleged K.C. was at risk of harm
because of his parents’ substance abuse issues and noted that two
of his half-siblings were dependents of the juvenile court due to
mother’s drug use during those pregnancies.3
Mother and father attended the detention hearing on June
25, 2020. They presented their ICWA-020 Parental Notification
of Indian Status forms in which they each stated: “I have no
American Indian ancestry as far as I know.” No other ICWA
information was offered to the juvenile court. Based on parents’
representations, the court found ICWA does not apply to K.C.
2Because ICWA uses the term “Indian,” we will do the
same for consistency, even though we recognize that “other
terms, such as ‘Native American’ or ‘indigenous,’ are preferred by
many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
3 Mother has six children in addition to K.C. Two are
adults; one is in the juvenile delinquency system; two are in
parental custody and receiving family maintenance services; and
one is receiving permanent placement services. K.C. is mother’s
only child with C.F. (father), who is not a party to this appeal.
2
Reunification services were unsuccessful. The juvenile
court terminated services and set the matter for a section 366.26
permanency placement hearing. At that hearing, the court
admitted HSA’s reports into evidence and heard mother’s
testimony. It found by clear and convincing evidence that K.C. is
adoptable and that there is no relevant exception to termination
of parental rights.
DISCUSSION
“Regardless of a parent’s response concerning his or her
possible Indian ancestry on the ICWA-020 Parental Notification
of Indian Status form or when questioned by the court at the
initial appearance, if, as here, a child has been detained and
placed in the temporary custody of a child protective agency,
section 224.2, subdivision (b), requires the agency to ask the
child, the parents, extended family members and others who
have an interest in the child whether the child is, or may be, an
Indian child.” (In re Rylei S. (2022) 81 Cal.App.5th 309, 318, fn.
omitted (Rylie S.).) Extended family members include
grandparents, aunts and uncles, siblings, brothers-in-law and
sisters-in-law, nieces and nephews, first and second cousins, and
stepparents. (25 U.S.C.S. § 1903(2); § 224.1, subd. (c).)
If, based on this initial inquiry, HSA or the juvenile court
has a reason to believe the minor is an Indian child, HSA must
make further inquiry regarding the possible Indian status of the
child. (§ 224.2, subd. (e).) This “duty to develop information
concerning whether a child is an Indian child rests with the court
and the [agency], not the parents or members of the parents’
families.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 430
(Antonio R.).)
HSA concedes “[t]he record does not reflect that either
HSA or the court asked th[e] named family members about
3
Indian ancestry, and this oversight may have been an error.” It
further acknowledges that “because the parents mentioned
various relatives to the social worker and section 224.2,
subdivision (b), imposes upon the county child welfare
department an initial duty of inquiry to ask extended family
members whether the child is, or may be, an Indian child, there
probably is not substantial evidence to support the court’s finding
that ICWA did not apply to [K.C.] because HSA should have
asked relatives about Indian ancestry.”
Notwithstanding this error, HSA contends that “because
mother . . . has not made any representation that any of the
relatives if asked would actually claim Indian ancestry, any error
was harmless.”
“Courts of Appeal are divided as to whether a parent must
make an affirmative showing of prejudice to support reversal
where the [agency] failed fully to perform its initial duty of
[ICWA] inquiry.”4 (Antonio R., supra, 76 Cal.App.5th at p. 433.)
After analyzing the conflicting views, a majority of this court
concluded in In re J.K. (2022) 83 Cal.App.5th 498, 506-507, that
(1) “[s]ection 224.2, subdivision (b) makes clear that [the
agency’s] duty of initial inquiry require[s] it to ask [the child’s]
extended family members about [the child’s] potential Indian
status,” and (2) the juvenile court must “ensure that [the agency]
. . . satisfied its initial inquiry duties and that the record so
reflect.” The majority rejected the argument that the appealing
parent must show prejudice. (Ibid.) We adopt that view here.
As in In re J.K., the agency and the juvenile court did not
satisfy their ICWA duties. (See In re J.K., supra, 83 Cal.App.5th
4 Thisissue is currently on review in In re Dezi C. (2022) 79
Cal.App.5th 769, review granted Sept. 21, 2022, S275578.
4
at pp. 506-507.) Indeed, HSA acknowledges it improperly limited
the initial inquiry to K.C.’s parents.5
We are not persuaded by HSA’s assertion that remanding
the matter for satisfaction of these duties would be contrary to
K.C.’s interests in permanency and stability. HSA “has
contributed to the delay in the finality of these proceedings by
opposing the appeal rather than stipulating to a remand. [K.C.’s]
interests are best served by a full resolution of all ICWA-related
issues, and ‘Indian tribes have interests protected by ICWA that
are separate and distinct from the interests of parents of Indian
children.’ [Citation.]” (In re J.K., supra, 83 Cal.App.5th at
p. 510.)
DISPOSITION6
The order terminating parental rights is conditionally
affirmed. The matter is remanded to the juvenile court for the
limited purpose of allowing HSA and the juvenile court to satisfy
their statutorily-mandated inquiry and notice duties under
section 224.2 by, among other things, soliciting information (or
making reasonable efforts to do so, supported by a showing of
reasonable and due diligence) from K.C.’s extended family
members regarding the child's possible Indian status. All such
5 Therecord reflects that a social worker asked “maternal
aunt Nancy” and “maternal second cousin . . . Erica” whether
they had “knowledge of being registered in an Indian tribe.” Both
denied such registry. The proper inquiry, however, is not
whether K.C. or his relatives are or were registered tribal
members but whether K.C. has any Indian ancestry and “is, or
may be, an Indian child.” (Rylei S., supra, 81 Cal.App.5th at
p. 318.)
6Our disposition is guided by our decision in In re J.K.,
supra, 83 Cal.App.5th at pp. 511-512.
5
duties shall be promptly performed and completed with
reasonable and due diligence.
After satisfying its initial inquiry duties in accordance with
section 224.2, subdivision (b), HSA and the social worker shall
file a report with the juvenile court (with any necessary
attachments) setting forth the details and results of its inquiry,
its reasonable and diligent efforts to contact the extended family
members identified by the parents or any other individuals
identified by the parents or extended family members who might
be reasonably expected to have information about K.C.’s potential
Indian status, and HSA’s findings and recommendations
regarding whether ICWA applies or may apply.
If the report and its attachments demonstrate that HSA
has satisfied its duty of initial inquiry, the juvenile court shall so
find and then proceed to find whether this new information gives
the social worker or the court a “reason to believe” K.C. is or may
be an Indian child, or a “reason to know” K.C. is an Indian child.
If the court concludes there is still no “reason to believe” that
K.C. is or may be an Indian child, it shall enter a new order
finding that ICWA does not apply and the judgment (order
terminating parental rights) shall become final as of that date.
If the juvenile court finds that the new information gives
rise to a “reason to believe” that K.C. is or may be an Indian
child, the court shall find that ICWA may apply and further
inquiry shall be conducted in accordance with section 224.2,
subdivision (e). If such further inquiry dispels the reason to
believe that K.C. is or may be an Indian child, the court shall
enter a new order finding that ICWA does not apply and the
judgment (order terminating parental rights) shall become final
as of that date.
6
If the information obtained during the initial or further
inquiry gives the court or the social worker a “reason to know”
that K.C. is an Indian child, the court shall ensure that proper
notice of the proceedings is sent in accordance with section 224.2,
subdivision (f) and section 224.3. If the court subsequently finds
in accordance with section 224.2, subdivision (i)(2) that ICWA
does not apply, it shall enter an order to that effect and the
judgment shall become final as of that date.
If on remand a tribe informs the court that K.C. is a
member of the tribe or eligible for membership and that the tribe
intends to intervene in the proceedings, the court shall find that
ICWA applies and enter an order to that effect. If the court
issues such an order, the judgment (order terminating parental
rights) is reversed as of that date. If the judgment is so reversed,
the court shall promptly hold a new section 366.26 hearing in
compliance with ICWA and related California law.
NOT TO BE PUBLISHED.
PERREN, J.*
I concur:
GILBERT, P. J.
* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
7
YEGAN, J., Dissenting:
I respectfully dissent for the reasons stated in my
dissenting opinion in In re J.K. (2022) 83 Cal.App.5th 498, 512-
514 (dis. opn. of Yegan, J.).
NOT TO BE PUBLISHED.
YEGAN, J.
Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
Karen B. Stalter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Tiffany N. North, County Counsel, and Joseph J. Randazzo,
Principal Assistant County Counsel, for Plaintiff and
Respondent.