In re S.H. ( 2022 )

Filed 8/12/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re S.H., a Person Coming Under
the Juvenile Court Law.
SAN FRANCISCO HUMAN
SERVICES AGENCY, A163623
Plaintiff and Respondent, (City and County of San
v. Francisco Super. Ct.
No. JD21-3137)
S.P.,
Defendant and Appellant.
Appellant S.P. (Mother) appeals from a juvenile court dispositional
order adjudging her young daughter, S.H., a dependent minor and placing
her in out-of-home care with one of Mother’s relatives. Despite evidence that
Mother and an alleged father claimed Native American ancestry solely to
delay proceedings, she argues on appeal that respondent San Francisco
Human Services Agency (Agency) failed to comply with provisions of the
Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq., ICWA) and
current state law implementing ICWA. The Agency concedes it erred by not
interviewing additional family members about potential Native American
ancestry. We hold that when a social services agency accepts its obligation to
satisfy its inquiry obligations under ICWA, a reversal of an early dependency
order is not warranted simply because a parent has shown that these ongoing
1
obligations had not yet been satisfied as of the time the parent appealed. We
therefore affirm the juvenile court’s order.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The infant minor came to the attention of the Agency in May 2021
when it received a report of general neglect. Mother was parenting with a
man named Anthony H., who shares a last name with the minor. He missed
a scheduled paternity test and, as of the time of the disposition hearing, there
were no results indicating whether he was the biological father. He is not a
party to this appeal, although he has a separate appeal from an order
denying his request to be designated as a presumed father. (In re S.H.
(A164981).) The parties agree that unless Anthony H. is so designated, any
information he provided regarding possible Native American ancestry is not
relevant in these proceedings. (In re Daniel M. (2003) 110 Cal.App.4th 703,
707–708 [ICWA does not apply to alleged fathers]; 25 U.S.C. § 1903(9)
[definition of “parent” excludes an “unwed father where paternity has not
been acknowledged or established”].)
Anthony H. was still part of these proceedings when, in May 2021, a
social worker met with him and Mother and asked about possible Native
American ancestry. They both reported that there was no known ancestry on
either the maternal or paternal sides of the family. The Agency filed a
dependency petition in June 2021. The Indian Child Inquiry Attachment
(form ICWA-010(A)) attached to the petition states that a social worker had
completed ICWA inquiry.
At a hearing in late June 2021, the juvenile court asked about Mother’s
and Anthony H.’s possible Indian ancestry. Mother’s counsel reported no
known heritage for Mother. Mother’s counsel then discussed Mother’s
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support network, which included her mother, a grandmother, and an aunt.
As for Anthony H., his counsel reported “possibl[e] . . . Cherokee” heritage on
his mother’s side of the family, with no further detail. Based on Anthony H.’s
response, the court ordered the Agency to complete further inquiry (Welf. &
Inst. Code, § 224.2, subd. (e)).1
In early July, a social worker received a voicemail from Anthony H.,
who apparently accidentally left his phone on after he completed his intended
message. In the apparent unintended portion of the recording, he discussed
with Mother a plan to claim that the minor had Indian ancestry to delay the
Agency’s removal of her from the home. Mother said that the minor did not
have any Indian ancestry and that “she” (it is unclear whether this is a
reference to Mother or the minor) was Japanese. Mother is elsewhere
described in the record as African American. She likewise told a social
worker that she identifies primarily as African-American but that she is bi-
racial (of African-American and Chinese descent).
A social worker spoke with Mother in early August, and Mother stated
she was not sure whether she had Native American ancestry. She had never
met her father and was raised by her maternal relatives. Mother said she
would have to call her maternal grandmother to ask for more information.
ICWA inquiry was listed as “pending” when the disposition report was filed
in August. Also in August, the maternal grandmother (Mother’s mother)
requested placement of the minor. There is no information in the record
about whether the grandmother was asked about possible Native American
ancestry.
1All statutory references are to the Welfare and Institutions Code
unless otherwise specified.
3
When a social worker spoke with the maternal great-grandmother in
September, the worker asked about potential Native American ancestry. The
great-grandmother reported that “she could not say for sure if her family
lived on a reservation or has been registered with a tribe.” She reported that
her great-grandparents (the minor’s great-great-great-great grandparents)
“told her she has Blackfoot Cherokee,” but she had no documentation
regarding the possible affiliation. She also was not aware of her great-
grandmother having lived on a reservation or receiving Native American
services. The great-grandmother “as well as other [unspecified] maternal
relatives” participated in at least one visit with the minor.
By the time an addendum report was filed in mid-September, neither
Mother nor Anthony H. had completed the ICWA-020 form. Based on the
foregoing information, the Agency recommended that the juvenile court find
that there was “no reason to believe or reason to know” that the minor was an
Indian child and that ICWA did not apply.
The minor was placed with a maternal relative, described in the record
as either a maternal cousin or maternal great aunt. The record contains no
information about whether the relative was asked about Native American
ancestry.
At the beginning of the contested jurisdiction/disposition hearing held
in late September 2021, the juvenile court addressed ICWA. After the deputy
city attorney summarized the Agency’s investigation, the juvenile court asked
whether there was any reason to inquire with the Bureau of Indian Affairs.
The deputy city attorney responded that further inquiry had yielded no
specific information and that claims of Native American heritage appeared to
have been made “because they [Mother and Anthony H.] thought they would
have more services if the minor was [an Indian child].” The juvenile court
4
found that ICWA did not apply. The finding was without prejudice to
conducting further research if Mother provided more specific information.
The juvenile court sustained allegations under section 300,
subdivision (b) (failure to protect), that Mother had mental-health and
substance-abuse issues that required treatment. The court adjudged the
child a dependent minor and ordered out-of-home placement with her
maternal relative.
When making its jurisdictional findings, the juvenile court stated, “I
am troubled—I guess, it’s just a side note—that the parents somehow wanted
to claim Native American ancestry because somehow they [thought] they had
a leg up by doing that. I don’t know what they thought they would achieve by
that.”
II.
DISCUSSION
The only claim mother asserts on appeal is that the Agency conducted
an inadequate investigation into the minor’s possible Native American
ancestry. She contends that the juvenile court thus erred in concluding that
ICWA did not apply, and that this court should remand the matter so that
the Agency can comply with its investigatory duties. The Agency concedes
that it did not fulfill its duty of initial inquiry under ICWA because there
were at least two maternal relatives it could have, but did not, question about
possible Native American ancestry. (§ 224.2, subd. (b) [ICWA inquiry
includes asking “extended family members” whether child is or may be an
Indian child]; 25 U.S.C. § 1903(2) [extended family members include Indian
child’s grandparent and first or second cousin].) We accept the Agency’s
concession and conclude there is no need under the circumstances to disturb
the juvenile court’s order.
5
“ICWA reflects a congressional determination to protect Indian
children and to promote the stability and security of Indian tribes and
families by establishing minimum federal standards a state court must follow
before removing an Indian child from his or her family.” (In re T.G. (2020)
58 Cal.App.5th 275, 287.) Those standards include notice to Indian tribes in
state court proceedings to place a child in foster care or to terminate parental
rights “where the court knows or has reason to know that an Indian child is
involved” (25 U.S.C. § 1912(a); § 224.1, subd. (d)(1); In re Isaiah W. (2016)
1 Cal.5th 1, 8); that is, “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).) “Notice to Indian tribes is
central to effectuating ICWA’s purpose, enabling a tribe to determine
whether the child involved in a dependency proceeding is an Indian child
and, if so, whether to intervene in, or exercise jurisdiction over, the matter.”
(T.G., at p. 288.) “Oral transmission of relevant information from generation
to generation and the vagaries of translating from Indian languages to
English combine to create the very real possibility that a parent’s or other
relative’s identification of the family’s tribal affiliation is not accurate.
Accordingly, just as proper notice to Indian tribes is central to effectuating
ICWA’s purpose, an adequate investigation of a family member’s belief a
child may have Indian ancestry is essential to ensuring a tribe entitled to
ICWA notice will receive it.” (Id. at p. 289.)
The Legislature enacted changes to the Welfare and Institutions Code,
effective January 1, 2019, to conform its statutes to recent changes in federal
ICWA regulations, which now require state courts to ask each participant in
a child-custody proceeding whether the participant knows or has reason to
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know if a child is an Indian child (25 C.F.R. § 23.107(a)). (In re D.S. (2020)
46 Cal.App.5th 1041, 1048.) The ICWA investigatory process under state law
is now expansive and potentially onerous. The juvenile court and social
services agency “have an affirmative and continuing duty to inquire whether”
a minor in dependency proceedings “is or may be an Indian child.” (§ 224.2,
subd. (a), italics added; see also In re Antonio R. (2022) 76 Cal.App.5th 421,
430 [duty to develop information rests with court and social-services agency,
not the parents or family members].) “The duty to inquire begins with the
initial contact.” (§ 224.2, subd. (a).) If a child is placed into temporary
custody of the social services agency, the agency “has a duty to inquire
whether that child is an Indian child. 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 and
where the child, the parents, or Indian custodian is domiciled.” (§ 224.2,
subd. (b), italics added; Cal. Rules of Court, rule 5.481(a).2)
Under this plain directive, the Agency did not satisfy its initial ICWA
duty when it failed to ask Mother’s mother and the maternal relative who has
custody of the minor (either a cousin or aunt) about the family’s possible
Native American ancestry. (In re J.W. (2022) 81 Cal.App.5th 384, 389 [error
not to ask the mother’s extended family members about their Indian ancestry
despite having contact with a grandmother, uncle, and aunt].) This is true
notwithstanding the undisputed evidence that Mother and Anthony H.
reported possible Native American ancestry in order to delay proceedings.
(See In re A.R. (2022) 77 Cal.App.5th 197, 207 [although court conditionally
reversed order terminating parental rights for ICWA inquiry compliance, it
2 All further rule references are to the California Rules of Court.
7
noted that “[i]f Mother has brought this appeal for the purposes of achieving
delay, . . . we condemn such tactics”].)
But we need not disturb the juvenile court’s jurisdiction/disposition
order just because the duty of initial ICWA inquiry has not yet been fully
satisfied. Mother does not challenge the jurisdictional findings (i.e., that her
daughter was a child described by section 300, subdivision (b)), or the
dispositional finding (i.e., that there was clear and convincing evidence there
would be a substantial danger to the minor were she not removed from
parental custody). She contends, however, that because the juvenile court
found without prejudice that ICWA did not apply, we must either
“conditionally reverse” or “conditionally affirm” the juvenile court’s order
“and remand with instructions that the Agency comply with the investigatory
duties set forth in the ICWA and California[’s] parallel statute.” We see no
need for such a disposition.
Appellate courts generally review a juvenile court’s ICWA findings for
substantial evidence. (In re Dezi C. (2022) 79 Cal.App.5th 769, 777, petn. rev.
filed July 19, 2022, S275578.) In situations where ICWA inquiry error is
uncontested, appellate review has often turned on whether the error was
harmless; that is, “whether it [was] reasonably probable that the juvenile
court would have made the same ICWA finding had the inquiry been done
properly.” (Ibid.; People v. Watson (1956) 46 Cal.2d 818, 836.)
We are aware there currently are at least five tests for assessing
whether ICWA inquiry error is harmless. (See In re Dezi C., supra,
8
79 Cal.App.5th at pp. 774, 777–7783 [summarizing three existing tests and
introducing a fourth]; see also In re Ezequiel S. (July 29, 2022, B314432)
___ Cal.App.5th ___ [introducing a “hybrid substantial evidence/abuse of
discretion standard”].) “[R]ecent appellate jurisprudence has adopted a
continuum of tests for prejudice . . . ranging from a per se rule that any error
is always prejudicial, to a test . . . finding no prejudice unless the appealing
parent makes a proffer that interviewing extended family members would
yield information about potential Indian ancestry.” (In re A.C. (2022)
75 Cal.App.5th 1009, 1011.) The range of approaches, along with the
passionate dissents to some of those approaches, reflect the challenge in
applying the clear legislative mandate to expand ICWA inquiry in situations
where, like here, there is no serious reason to believe that further inquiry
would reveal additional information that might ultimately lead to evidence
that the minor is an Indian child. (Compare In re T.G., supra, 58 Cal.App.5th
at p. 295 [“the imposition of a duty to inquire that is significantly more
expansive than the duty to provide ICWA notice is premised on the
commonsense understanding that, over time, Indian families, particularly
those living in major urban centers like Los Angeles, may well have lost the
ability to convey accurate information regarding their tribal status”] with In
re A.C., supra, at p. 1019 (dis. opn. of Crandall, J.) [“As someone who handled
a busy dependency calendar for the three and a half years immediately
preceding this assignment, it is hard to understate the havoc, expense, and
uncertainty caused by these conflicting mandates.”].)
3 The Dezi C. court held that an agency’s failure to discharge its duty of
initial inquiry is harmless unless the record, including any proffer on appeal,
“contains information suggesting a reason to believe that the children at
issue may be ‘Indian child[ren],’ in which case further inquiry may lead to a
different ICWA finding.” (In re Dezi C., supra, 79 Cal.App.5th at p. 774.)
9
Instead of focusing on whether the same ICWA finding would have
been made absent error, we focus instead on whether the social service
agency acknowledges error and we thus have reason to believe that its duty
of inquiry will be satisfied. Where there is such an acknowledgement, we see
no reason to set aside the jurisdiction/disposition order—even conditionally.
Again, the duty to inquire is a continuing one. (§ 224.2, subd. (a); In re
Isaiah W., supra, 1 Cal.5th at p. 6.) The Agency likewise has a duty “on an
ongoing basis” to report “a detailed description of all inquiries, and further
inquiries it has undertaken, and all information received pertaining to the
child’s Indian status.” (Rule 5.481(a)(5).) And the juvenile court, even after
it concludes that ICWA does not apply, retains the power (and duty) to
reverse that determination “if it subsequently receives information providing
reason to believe that the child is an Indian child.” (§ 224.2, subd. (i)(2); see
also rule 5.482(c)(2).) The fact that the Agency here has acknowledged error
indicates that it understands its duty to ask the maternal relatives about
possible Native American ancestry. The Agency must satisfy this duty, if it
has not done so already, and report its findings to the juvenile court. (E.g., In
re A.R., supra, 77 Cal.App.5th at p. 208 [if agency fulfilled duty after the
mother belatedly raised the issue on appeal, any delay in remanding case
should be brief because issue could be laid to rest before the appeal “was even
fully briefed”].) And should the Agency learn additional information
indicating a “reason to believe” the minor is an Indian child, thus triggering a
duty of further inquiry, it must conduct additional interviews “as soon as
practicable.” (§ 224.2, subd. (e); see In re T.G., supra, 58 Cal.App.5th at
p. 292 [further inquiry required where the parent reported possible Cherokee
10
ancestry].)4 Agency social workers clearly were aware of their inquiry duties,
as they asked Mother and Anthony H. about possible Native American
ancestry before the dependency petition was filed. The juvenile court is also
clearly aware of this continuing duty, as it made its ICWA finding without
prejudice and subject to Mother providing additional information. It would
make little sense to reverse the jurisdiction/disposition order in order to
direct the Agency and the juvenile court to do something they recognize they
must do anyway.
We likewise see no need to “conditionally” affirm (or reverse) the
juvenile court’s order, since the order will not necessarily be reversed even if
new information were to be discovered confirming the child’s Indian heritage.
True, if the Agency learns information that gives it “reason to know” that the
minor is an Indian child, it will be required to provide notice to any relevant
tribe or tribes pursuant to section 224.3. And the juvenile court will be
required to treat the minor as an Indian child unless and until it determines
4 Mother claims that the information already provided by her
grandmother—that the grandmother’s great-grandparents “told her she has
Blackfoot Cherokee”—triggered a duty of further inquiry under section 224.2,
subdivision (e). (E.g., In re I.F. (2022) 77 Cal.App.5th 152, 163 [“reason to
believe” standard in § 224.2, subd. (e)(1), is “broadly construed”].) Even
assuming, without deciding, that this is true, it appears Mother is claiming
only that the Agency must interview the additional maternal family members
that the Agency was required to interview under its initial duty of inquiry.
Given the currently thin evidence of any tribal affiliation, coupled with the
evidence that Mother claimed Indian ancestry as part of a plan to delay the
proceedings, we reject any argument that further interviews or notice are
currently necessary other than what the Agency already has acknowledged.
(See In re A.C., supra, 75 Cal.App.5th at p. 1022 (dis. opn. of Crandall, J.) [“in
terms of fundamental fairness, it is untenable gamesmanship to allow a
parent to stand idly by and then raise a ‘winning’ ICWA issue on appeal
merely by pointing out the Department’s error in not speaking with a single
extended family member”].)
11
that ICWA does not apply. (§ 224.2, subd. (i)(1).) If the minor is an Indian
child, the minor’s tribe and Indian custodian will have the right to intervene
at any point in the proceedings (§ 224.4), whether or not the juvenile court
previously had assumed jurisdiction. And the tribe will have the power to
petition the court to invalidate any action taken in the proceeding if the
action violated ICWA. (§ 224, subd. (e); rule 5.487.) This includes the power
to petition to set aside a final decree of adoption. (Rule 5.487(c).) Relevant
tribes should, of course, be notified as soon as possible in any dependency
proceeding, but their power to set aside previous actions does not hinge on
whether the juvenile court previously assumed jurisdiction of a minor.
We agree with recent decisions concluding in similar circumstances
that ICWA initial inquiry error occurred. But we do not agree that the
proper disposition is to disturb, even conditionally, the
jurisdiction/disposition order, since such a disposition may lead to
unnecessary additional hearings, delay, and the micromanagement of further
ICWA inquiry. In In re A.C., supra, 75 Cal.App.5th 1009, for example, the
juvenile court concluded that ICWA did not apply based solely on the parents’
ICWA-020 forms stating they did not have Native American heritage. (Id. at
p. 1014.) The court concluded that the social services agency failed to satisfy
its initial inquiry duty because no ICWA inquiry was made of extended
family members. (Ibid.) According to the court, the error was not harmless
because “the record reveal[ed] readily obtainable information that was likely
to bear meaningfully on whether [the minor] was an Indian child.” (Id. at
p. 1017.) The court affirmed the jurisdictional and dispositional orders
regarding the minor, but remanded with instructions that the juvenile court
order that within 30 days of the remittitur the social services agency report
its investigation of the minor’s potential Indian ancestry by interviewing
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available extended family members. (Id. at p. 1018.) The 30-day period may
have been unnecessary if the agency had conducted further inquiry while the
appeal was pending and discovered nothing. Or it may have been too short if
the agency was diligently trying, but was unable, to contact relatives or
follow up on additional leads. (See In re H.V. (2022) 75 Cal.App.5th 433,
440–441 (dis. opn. of Baker, J.) [social-services agency “has no way to reliably
know when to say when—i.e., to predict how many interviews of extended
family members and others will be enough to satisfy a court that it has
discharged its continuing duty to investigate whether a minor could be an
Indian child”].) And even if the agency complied with the order within the
30-day period, it still had the continuing duty to inquire and follow up on any
new leads. In re Rylei S. (2022) 81 Cal.App.5th 309, also “conditionally
affirmed” a disposition order and remanded for “full compliance with the
inquiry and notice provisions of ICWA.” (Id. at pp. 326–327.) It is unclear
how a “conditional” affirmance would affect the proceedings at this early
stage, except possibly to require yet another hearing in the dependency
proceedings that presumably already had additional review hearing
scheduled.
A more difficult question would be presented were this an appeal from
an order terminating parental rights. On the one hand, a hearing to consider
the termination of parental rights is likely the last practical opportunity for
any relevant Indian tribe to intervene in a proceeding. (E.g., Rule 5.482(a)(1)
[no hearing to terminate parental rights until at least 10 days after notice to
tribes where it is known or there is reason to know a child is an Indian
child].) On the other hand, we share the concerns expressed in In re
Ezequiel G., supra, ___ Cal.App.5th ___ that returning a dependency case to
the juvenile court with directions to conduct further ICWA inquiries after
13
parental rights have been terminated “[a]t best . . . significantly delay[s]
entry of final judgments releasing children for adoption [and] at worst, . . .
may result in potential adoptive parents deciding not to adopt.” We also
share the juvenile court’s expressed concern in this case, that whatever stage
in the proceedings, one wonders what Mother thought she might achieve by
claiming Native American ancestry in order to get “a leg up by doing that.”
Mother now complains that it is “nothing more than speculation and
conjecture” to assume that interviewing additional maternal relatives would
not lead to further information about possible Native ancestry. We observe,
though, that Mother’s trial counsel—who personally interacted with Mother
and presumably had insight into the allegations that she and Anthony H.
planned to fabricate Native ancestry—did not advocate further inquiry when
ICWA was addressed at the jurisdiction/disposition hearing. Implementing
the worthwhile goal of expanding ICWA inquiry to ensure every effort is
made to retain tribal ties is only workable when, in good faith, “all
participants—child protective agencies, the parents, all counsel, and the
juvenile courts— . . . work together to determine whether children are Indian
children.” (In re Ezequiel G., supra, ___ Cal.App.5th ___.) Such a
requirement of good faith may be found in statutory notice provisions which
provide that, “[w]ith respect to giving notice to Indian tribes, a party is
subject to court sanctions if that person knowingly and willfully falsifies or
conceals a material fact concerning whether the child is an Indian child, or
counsels a party to do so.” (§ 224.3, subd. (e).)
For now, we hold that disturbing an early order in a dependency
proceeding is not required where, as here, the court, counsel, and the Agency
are aware of incomplete ICWA inquiry. The Agency must comply with its
broad duty to compete all appropriate inquiries and apprise the court, and
14
the court has a continuing duty to ensure that the Agency provides the
missing information. So long as proceedings are ongoing and all parties
recognize the continuing duty of ICWA inquiry, both the Agency and the
juvenile court have an adequate opportunity to fulfill those statutory duties.
(See In re Benjamin M. (2021) 70 Cal.App.5th 735, 745 [harmless-error
analysis generally entails “flexible, case-by-case approach”].)
III.
DISPOSITION
The juvenile court’s order is affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Wiss, J. *
*Judge of the Superior Court of the City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
In re S.H. A163623
16
Trial Court:
Superior Court of the City and County of San Francisco
Trial Judge:
Hon. Susan M. Breall
Counsel for Defendant and Appellant:
Elizabeth Klippi, under appointment by the Court of Appeal
Counsel for Plaintiff and Respondent:
David Chiu, City Attorney
Kimiko Burton, Lead Attorney
Elizabeth McDonald Muniz, Deputy City Attorney
In re S.H. A163623
17