In re S.K. CA6 ( 2022 )

Filed 8/31/22 In re S.K. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
In re S.K., a Person Coming Under the H049837
Juvenile Court Law. (Santa Cruz County
Super. Ct. No. 21JU0014)
SANTA CRUZ COUNTY HUMAN
SERVICES DEPARTMENT,
Plaintiff and Respondent,
v.
C.C., et al.,
Defendants and Appellants.
MEMORANDUM OPINION1
Appellants, C.C. and N.K., appeal from an order terminating their parental rights
as to S.K. The sole issue raised on appeal is that the Santa Cruz County Human Services
Department (the Department) and the juvenile court failed to comply with their duty of
inquiry under the Indian Child Welfare Act (ICWA). (Welf. & Inst. Code, § 224.22; 25
U.S.C. § 1901 et seq.) The Department concedes that the inquiry was insufficient and
1
We resolve this case by memorandum opinion under California Standards of
Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th
847, 853-855.)
2
Subsequent statutory references are to the Welfare and Institutions Code unless
otherwise specified.
concedes that the matter should be reversed and remanded for further inquiry as to
whether ICWA applies to C.C., but contends there has been no miscarriage of justice
with respect to N.K. We conclude that the Department’s investigation was prejudicially
insufficient and reverse and remand for the limited purpose of assuring compliance with
ICWA.
Shortly after S.K.’s birth, the Department received a report of general neglect.
After completing an investigation, the Department filed a section 300 petition alleging
that C.C. and N.K. abused controlled substances and that this negatively impacted their
ability to provide safe and appropriate care for S.K. At the detention hearing, N.K.
reported having no known Indian ancestry and the court found ICWA did not apply as to
him. C.C. reported having taken a DNA test that indicated she was 6 percent Native
American but did not specify a tribe. C.C. and N.K. each filed Parental Notification of
Indian Status forms consistent with these statements. C.C. also informed the Department
that her deceased great-grandfather appeared Native American.
The Department contacted several of C.C.’s relatives regarding potential Indian
ancestry. C.C.’s mother reported that C.C.’s great-grandfather might have had
indigenous ancestry from Mexico. C.C.’s great-grandmother reported that C.C.’s great-
grandfather had mentioned his family had Native American ancestry but was unsure of
the tribe. A maternal cousin three times removed reported being 17 percent Native
American according to a DNA test but did not identify a specific tribe. Finally, C.C.’s
great-aunt reported believing that her brother, C.C.’s great-uncle, had received healthcare
from an Indian healthcare center while residing there.
Because no specific tribe had been identified, the Department sent an ICWA
notice outlining C.C.’s ICWA family history to the Bureau of Indian Affairs (BIA). The
BIA responded that the notice contained insufficient information to determine tribal
affiliation. The Department made no further inquiry regarding possible Indian ancestry.
2
Subsequently, at the section 366.26 selection and implementation hearing, the
juvenile court found there was no reason to know or believe S.K. was an Indian child and
that ICWA did not apply. The juvenile court terminated C.C. and N.K.’s parental rights
and ordered adoption by the maternal grandparents as the permanent plan. C.C. and N.K.
timely appealed the juvenile court’s order. On appeal, C.C. and N.K. contend that the
juvenile court’s order terminating parental rights must be reversed and the matter
remanded to the juvenile court because the court failed to ensure compliance with ICWA.
They argue that the Department’s failure to ask C.C.’s great-uncle and any of N.K.’s
extended family members about potential Indian ancestry violated ICWA and that the
juvenile court erred in determining that ICWA did not apply. The Department requests
that this court apply the standard for reversal set forth in In re Dezi C., under which a
deficient inquiry is deemed harmless unless the record suggests a reason to believe that a
child may be an Indian child. (In re Dezi C. (2022) 79 Cal.App.5th 769.) The
Department concedes that its investigation was insufficient but contends that the court’s
order should be reversed only as it applies to C.C., and that the error as it applies to N.K.
is harmless.
“We review the juvenile court’s ICWA findings for substantial evidence.” (In re
I.F. (2022) 77 Cal.App.5th 152, 162-163.) Where, as here, the facts are undisputed, we
independently review whether ICWA’s requirements have been satisfied. (Ibid.) Where
we determine that there has been noncompliance with ICWA’s inquiry and notice
provisions, we may reverse and order a limited remand “to effect compliance with the
ICWA.” (In re Veronica G. (2007) 157 Cal.App.4th 179, 187.)
In the dependency context, ICWA imposes on the court and the social worker “an
affirmative and continuing duty to inquire whether a child . . . is or may be an Indian
child.” (§ 224.2, subd. (a); see also Cal. Rules of Court, rule 5.481(a).) Such 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
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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).)
Extended family members include the child’s grandparent, aunt or uncle, brother or
sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin or
stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
The facts on appeal are undisputed. The parties agree that N.K. reported having
no known Indian ancestry and C.C. reported likely having Indian ancestry. The parties
further agree that the Department made ICWA inquiries of several maternal family
members but did not contact C.C.’s great-uncle and did not make ICWA inquiries of any
of N.K.’s extended family members. The juvenile court concluded in February 2022 that
there was no reason to know or believe that S.K. is an Indian child and that ICWA
applied in her case. On appeal, C.C. and N.K. contend that the Department should have
inquired of C.C.’s great-uncle and N.K.’s extended family members about S.K.’s
potential Indian ancestry.
As to C.C., the Department correctly concedes that it failed to satisfy its duty of
inquiry under ICWA. The Department received the name and contact information for
C.C.’s great-uncle who may have received medical care from an Indian healthcare center,
suggesting that he may have a connection to an Indian tribe. Several of C.C.’s extended
family members also reported potential Indian ancestry but were unable to identify a
specific tribe. The Department did not contact C.C.’s great-uncle or any family members
other than those noted above, but given this consistent thread, the Department should
have conducted further inquiry. It is foreseeable that contacting C.C.’s great-uncle and
potentially other extended family members may yield additional information about
whether S.K. is, or may be, an Indian child. (In re I.F., supra, 77 Cal.App.5th at pp. 163-
164.) As to N.K., the Department also concedes that its inquiry was deficient, but argues
that any deficiency was harmless and does not support reversal. Courts have applied
varying standards to this type of error. Some courts hold that a deficient ICWA inquiry
4
mandates reversal, others adopt a harmless error approach. A third category strikes a
balance somewhere in the middle. (See In re Dezi C., supra, 79 Cal.App.5th at pp. 777-
778.) The Department urges this court to adopt one of these middle standards, recently
proposed by the Second District Court of Appeal, in which a failure to conduct an
adequate ICWA inquiry is deemed harmless unless the record suggests a reason to
believe that a child may be an Indian child such that the failure to conduct the appropriate
inquiry prejudiced the court’s ICWA finding. (Id. at pp. 778-779.)
Even if we were to adopt the standard the Department proposes, we conclude that
the failure to conduct any inquiry with N.K.’s family regarding potential Indian ancestry
was not harmless. Here, the Department interviewed N.K.’s mother, who regularly
provided care for S.K., but did not ask her about potential Indian ancestry. Nor did the
Department contact N.K.’s brother or father who also lived in California. Making no
inquiry at all with available family members cannot be deemed harmless because if the
Department has not made inquiry with readily available family, the record does not
suggest that N.K.’s family has no Indian ancestry. (In re N.G. (2018) 27 Cal.App.5th
474, 484 [absent a record affirmatively showing efforts by the court and agency to
comply with ICWA’s inquiry and notice requirements, error under the ICWA deemed
prejudicial].) Since the Department’s ICWA inquiry was insufficient as to both parents,
we reverse and remand this matter for the limited purpose of assuring compliance with
ICWA.
DISPOSITION
The juvenile court’s order terminating parental rights is reversed. The matter is
remanded to the juvenile court to allow the Department to conduct further inquiry
regarding S.K.’s Indian ancestry pursuant to ICWA consistent with this opinion. If, after
further inquiry, the juvenile court determines that S.K. is not an Indian child and ICWA
does not apply, the court shall reinstate the order terminating C.C.’s and N.K.’s parental
rights. (§ 224.2, subd. (i)(2); Cal. Rules of Court, rule 5.481(b)(3)(A)–(C).)
5
_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Lie, J.
______________________________________
Wilson, J.
In re S.K., Santa Cruz County HSD v. C.C. et al.
H049837