In re Z.M. CA4/2 ( 2022 )

Filed 8/25/22 In re Z.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Z.M. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E078709
Plaintiff and Respondent, (Super.Ct.Nos. J281647 &
J281648)
v.
OPINION
C.H. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Conditionally reversed and remanded with directions.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant C.H.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant M.M.
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Tom Bunton, County Counsel, and Svetlana Kauper, Deputy County Counsel, for
Plaintiff and Respondent.
C.H. (father) and M.M. (mother) appeal the juvenile court’s order terminating
parental rights to their children Z.M. and T.H. (Welf. & Inst. Code,1 § 366.26.) They
contend the San Bernardino County Children and Family Services (CFS) failed to
adequately inquire into whether the children are Indian children for purposes of the
Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.), and that the court
erred in ruling ICWA did not apply. CFS concedes error but argues that it was harmless.
We agree with appellants and conditionally reverse the orders terminating parental rights
and direct the juvenile court to ensure CFS complies with the notice provisions under
ICWA and related California law.
I. PROCEDURAL BACKGROUND AND FACTS2
T.H. was born in 2013 and Z.M. was born in 2016. On July 9, 2019, CFS initiated
dependency proceedings pursuant to section 300, subdivisions (a) (serious physical
harm), (b)(1) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling),
based on mother’s substance abuse and father’s acts of domestic abuse. On July 10, both
parents filed the required parental notification of Indian status forms (ICWA-020) and
denied any Native American ancestry. The children were detained, supervised visitation
was ordered, and a jurisdiction/disposition hearing was set.
1 Undesignated statutory references are to the Welfare and Institutions Code.
2On March 28, 2022, this court ordered the record in C.H. v. Superior Court
(CFS) (Apr. 13, 2021, E076669) incorporated in this case.
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On August 29, 2019, the maternal aunt acknowledged her relationship with the
children and denied any Native American ancestry on the maternal side of the family.
Both parents submitted on the petition. At the jurisdiction/ disposition hearing held that
same day, the juvenile court found father to be the presumed father of the children,3 and
that ICWA did not apply. The court sustained the allegations in the petitions, declared
the children dependents of the court, removed them from their parents’ custody, and
ordered reunification services and supervised visitation.
The parents received several months of reunification services. Having failed to
benefit from his services, father did not regain custody of the children; however, mother
completed her case plan and, in March 2020, the children were returned to her under a
family maintenance plan. Despite her progress, mother relapsed on drugs, and on
February 1, 2021, CFS filed supplemental petitions. The parents were asked about, and
again denied, any Native American heritage. The juvenile court re-removed the children,
terminated parents’ reunification services, and set a section 366.26 hearing. The children
were placed in the home of a maternal cousin.
In July 2021, the maternal cousin asked that the children be removed from her
home, and on the 31st, they were placed with their prior foster parents, Mr. and Mrs. C.,4
who wanted to adopt them. The juvenile court ended visitation between the children and
3 The parents married on July 24, 2015, and separated following the children’s
detention. While father financially supports Z.M. and treats her like his child, he is not
her biological father. Mother identified three individuals who may be Z.M.’s biological
father; CFS conducted an absent parent search for each.
4 Mr. C.’s paternal grandfather is of the Cherokee tribe.
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each parent (mother on June 23, 2021; father on Oct. 21, 2021) after finding visitation to
be detrimental. On March 10, 2022, the court terminated parental rights and freed the
children for adoption. Father and mother appealed.
II. DISCUSSION
Both father and mother contend the juvenile court and CFS failed to satisfy their
inquiry obligations under ICWA, and they ask that we remand the matter with directions
for CFS to conduct “a proper inquiry” in “compliance with the ICWA and California
law.” We agree.
“‘Congress enacted ICWA in 1978 in response to “rising concern in the mid-
1970’s over the consequences to Indian children, Indian families, and Indian tribes of
abusive child welfare practices that resulted in the separation of large numbers of Indian
children from their families and tribes through adoption or foster care placement, usually
in non-Indian homes.”’ [Citations.] ICWA provides: ‘“In any involuntary proceeding in
a State court, where the court knows or has reason to know that an Indian child is
involved, the party seeking the foster care placement of, or termination of parental rights
to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe,
by registered mail with return receipt requested, of the pending proceedings and of their
right of intervention.” [Citation.] This notice requirement, which is also codified in
California law [citation], enables a tribe to determine whether the child is an Indian child
and, if so, whether to intervene in or exercise jurisdiction over the proceeding.’
[Citations.] ‘ICWA reflects a congressional determination to protect Indian children and
to promote the stability and security of Indian tribes and families by establishing
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minimum federal standards a state court must follow before removing an Indian child
from his or her family.’ [Citations.]
“‘“‘ICWA itself does not impose a duty on courts or child welfare agencies to
inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.]
Federal regulations implementing ICWA, however, require that state courts “ask each
participant in an emergency or voluntary or involuntary child-custody proceeding
whether the participant knows or has reason to know that the child is an Indian child.”
[Citation.] The court must also “instruct the parties to inform the court if they
subsequently receive information that provides reason to know the child is an Indian
child.”’”’ [Citations.] ‘State law, however, more broadly imposes on social services
agencies and juvenile courts (but not parents) an “affirmative and continuing duty to
inquire” whether a child in the dependency proceeding “is or may be an Indian child.”’
[Citations.]
“Section 224.2 ‘“‘creates three distinct duties regarding ICWA in dependency
proceedings.’”’ [Citations.] First, section 224.2, subdivision (b), requires the child
protective agency 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 and where the child, the
parents, or Indian custodian is domiciled.’ [Citations.] Although commonly referred to
as the ‘initial duty of inquiry,’ it ‘begins with the initial contact’ (§ 224.2, subd. (a)) and
continues throughout the dependency proceedings. [Citation.]
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“Second, if the court or child protective agency ‘has reason to believe that 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 court and the
Department ‘shall make further inquiry regarding the possible Indian status of the child,
and shall make that inquiry as soon as practicable.’ [Citations.] Third, if the further
inquiry ‘“‘results in a reason to know the child is an Indian child, then the formal notice
requirements of section 224.3 apply.’”’ [Citations.]
“‘“‘The juvenile court must determine whether proper notice was given under
ICWA and whether ICWA applies to the proceedings.’” [Citation.] “If the court makes a
finding that proper and adequate further inquiry and due diligence as required in [section
224.2] have been conducted and there is no reason to know whether the child is an Indian
child, the court may make a finding that [ICWA] does not apply to the proceedings,
subject to reversal based on sufficiency of the evidence.”’” (In re J.C. (2022)
77 Cal.App.5th 70, 76-78 (J.C.), italics added.)
Here, CFS failed to fulfill its initial duty of inquiry into the children’s possible
Native American ancestry by gathering information from extended family members—
some of whom were readily available—that could have triggered additional duties and
heightened requirements. (See 25 U.S.C. § 1903(2) [“‘extended family member’”
includes the child’s “grandparent, aunt or uncle, . . . first or second cousin. . . .”]; Welf. &
Inst. Code, § 224.1, subd. (c) [same]; J.C., supra, 77 Cal.App.5th at pp. 78-79.) Both
parents point out that there were at least three other relatives who were active in the
dependency: the maternal uncle, the maternal cousin, and another maternal aunt. Yet,
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the record contains no evidence that the social worker interviewed and/or asked any of
them about possible Native American ancestry or tribal affiliations. CFS’s failure to ask
these extended relatives about possible Native American ancestry “violated the express
mandate of section 224.2, subdivision (b).” (J.C., supra, 77 Cal.App.5th at p. 79.)
Moreover, the juvenile court failed to carry out its duty to ensure that CFS adequately
investigated the children’s Native American ancestry by relying exclusively on the
parents’ and one maternal aunt’s denial without inquiring into whether the social worker
interviewed other relatives. (Id. at pp. 79-80.)
CFS concedes its failure to interview the additional maternal relatives, but argues
harmless error since “both Mother, Father and the maternal aunt repeatedly denied Indian
ancestry on multiple occasions.” “To state [CFS’] argument is to expose its circular flaw:
By failing to conduct an adequate inquiry, [CFS] virtually guarantees that the
(incomplete) information it obtains will support a finding ICWA does not apply and that
the juvenile court’s error in failing to require [CFS] to comply with the law is harmless.
Under [CFS’s] theory, the less it complies with its duties to inquire under state and
federal law, the more harmless is its erroneous failure to inquire. [¶] That’s not how it
works.” (J.C., supra, 77 Cal.App.5th at p. 80.) Rather, when the child protective agency
fails to conduct an adequate inquiry, it is impossible for a parent to show prejudice.
(Ibid.)
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To summarize, CFS’s failure “to obtain information that appears to have been both
readily available and potentially meaningful” dictates a conditional reversal of the order
terminating parental rights and remand for the limited purpose of ensuring a proper
inquiry. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.)
III. DISPOSITION
The orders terminating parental rights to Z.M. and T.H. are conditionally reversed.
On remand, the juvenile court shall direct CFS to provide a supplemental report detailing
what additional efforts it has taken to obtain information about the children’s possible
Indian ancestry, including the names and other relevant information of family members
interviewed. The court shall then determine anew whether the ICWA inquiry was
adequate.
If the juvenile court determines the additional inquiry was adequate, the order
terminating parental rights shall immediately be reinstated, and further proceedings shall
be conducted, as appropriate. In the alternative, if the court determines the additional
inquiry was inadequate, it shall direct CFS to conduct further inquiry and, if necessary,
provide notice to the relevant Indian tribes of any relevant information CFS might have
received.
The juvenile court shall then determine whether the additional inquiry and notice
are adequate. If, after receiving the notices, the relevant tribes do not respond or respond
that the children are not Indian children within the meaning of ICWA, the order
terminating parental rights shall immediately be reinstated, and further proceedings shall
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be conducted, as appropriate. If any tribe determines that the children are Indian
children, the juvenile court shall proceed accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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