In re B.R. CA3 ( 2022 )

Filed 9/16/22 In re B.R. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
In re B.R., a Person Coming Under the Juvenile Court C095916
Law.
PLACER COUNTY DEPARTMENT OF HEALTH (Super. Ct. No. 53005134)
AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
M.L.,
Defendant and Appellant.
Appellant M.L., mother of the minor, appeals from the juvenile court’s orders
terminating parental rights and freeing the minor for adoption. 1 (Welf. & Inst. Code,
1 Father also filed a notice of appeal but did not file an opening brief. Accordingly, his
appeal was dismissed on June 23, 2022. (See Cal. Rules of Court, rule
8.412(d)(1)(A)(iii) & (2).)
1
§§ 366.26, 395.)2 Mother’s sole contention on appeal is that we must conditionally
reverse for further Indian Child Welfare Act (ICWA) compliance because the initial
inquiry by the Placer County Department of Health and Human Services (Department)
was insufficient to support the juvenile court’s finding that the ICWA does not apply.
(25 U.S.C. §§ 1901 et seq.; § 224.2.) The Department concedes the ICWA error and the
need for a limited remand for further ICWA compliance but suggests conditional
affirmance, rather than conditional reversal. Although mother opposes this remedy, we
agree that conditional affirmance of the orders is warranted, subject to further ICWA
compliance.
FACTUAL AND PROCEDURAL BACKGROUND
Because the issue on appeal is limited to ICWA compliance, we dispense with a
detailed recitation of the underlying facts and procedure. It suffices to say that on
December 15, 2020, the Department sought a protective custody warrant and filed a
section 300 petition on behalf of the then one-month-old minor based on the parents’
substance abuse. Both parents were present at the January 5, 2021 detention hearing.
The juvenile court asked the parents whether their families had any Native American
heritage that qualified them or the minor to be a registered tribal member. Mother
responded “no” and father stated, “I don’t believe so.” The court directed the parents to
inform the social worker if they received any new information regarding the minor’s
Indian heritage, and found the ICWA did not apply. The minor was ordered detained.
The report prepared for the jurisdiction/disposition hearing stated that both parents
were asked again (telephonically by the social worker) about Indian ancestry on
January 11, 2021, and both parents “continued to decline [sic] any knowledge of Native
American hertiage [sic].” The six-month review report stated that on July 15, 2021,
2 Undesignated statutory references are to the Welfare and Institutions Code.
2
mother again denied having Indian heritage. The social worker had texted father, but
father did not reply. At the August 31, 2021, six-month review hearing, the juvenile
court again found the ICWA did not apply.
The section 366.26 report stated that on September 23, 2021, mother denied
having any new information about Indian ancestry and father did not respond to the social
worker’s inquiry. The Department asked for another finding that the ICWA did not
apply, but the juvenile court did not make any further findings regarding the ICWA and
terminated parental rights.
DISCUSSION
Mother contends the Department’s inquiry into the minor’s possible Native
American ancestry was insufficient because, although the parents denied Native
American ancestry, there is no evidence the Department followed -up with any of the
known extended family members to inquire whether they knew of possible Native
American ancestry.3 She contends the juvenile court’s findings that the ICWA inquiry
and notice requirements had been satisfied and the ICWA does not apply were thus
unsupported by the evidence. The Department agrees.
“ ‘The ICWA protects the interests of Indian children and promotes the stability
and security of Indian tribes by establishing minimum standards for removal of Indian
children from their families, and by permitting tribal participation in dependency
proceedings. [Citations.] A major purpose of the ICWA is to protect “Indian children
3 Although mother’s briefing asserts that both parents “denied Indian ancestry,” we note
that father’s initial assertion that he did “not believe so” when asked if he had any Native
American ancestry is a somewhat equivocal response rather than a firm denial of such
ancestry. Although it was also reported that father “continued to decline any knowledge”
of such ancestry when asked the second and final time (for which a response was
received), as we have set forth in detail above, this response is not presented as a firm
denial, and the report does not provide father’s response verbatim. Yet available paternal
relatives were not asked about possible ancestry, as we discuss below.
3
who are members of or are eligible for membership in an Indian tribe.” [Citation.]’ (In
re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA defines an ‘ “Indian child” ’ as a
child who ‘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).) The juvenile court and the social services department have an affirmative
and continuing duty, beginning at initial contact, to inquire whether a child who is subject
to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a);
§ 224.2, subd. (a).)” (In re G.A. (2022) 81 Cal.App.5th 355, 360.)
“ ‘[S]ection 224.2 creates three distinct duties regarding [the] ICWA in
dependency proceedings. First, from the [Department]’s initial contact with a minor and
his [or her] family, the statute imposes a duty of inquiry to ask all involved persons
whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial
inquiry creates a “reason to believe” the child is an Indian child, then the [Department]
“shall make further inquiry regarding the possible Indian status of the child, and shall
make that inquiry as soon as practicable.” (Id., subd. (e), italics added.) Third, if that
further inquiry results in a reason to know the child is an Indian child, then the formal
notice requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to
inquire at the first appearance whether anyone “knows or has reason to know that the
child is an Indian child”]; id., subd. (d) [defining circumstances that establish a “reason to
know” a child is an Indian child]; § 224.3 [ICWA notice is required if there is a “reason
to know” a child is an Indian child as defined under § 224.2, subd. (d)].)’ (In re D.S.
(2020) 46 Cal.App.5th 1041, 1052.)” (In re G.A., supra, 81 Cal.App.5th at p. 361.)
In this case, both parents denied knowledge of Native American ancestry but did
provide contact information for extended family members for placement purposes. The
social worker interviewed the maternal grandmother and a maternal great-aunt for the
jurisdiction/disposition report, but there is no indication that either was asked about
Native American ancestry. The social worker also interviewed the paternal grandmother
4
and obtained the father’s social history from her, but the record does not reflect she was
ever asked about Native American heritage. Two paternal aunts were also contacted
regarding placement of the child, but the record contains no evidence that either were
asked about Native American ancestry.
The parties agree the Department was required to make additional efforts to
inquire about possible Native American ancestry from the parents’ known relatives and
that remand is necessary for the Department to inquire further. (See § 224.2, subd. (b);
see also In re Y.W. (2021) 70 Cal.App.5th 542, 554; In re A.C. (2022) 75 Cal.App.5th
1009, 1016-1018.) Accordingly, we remand the case to the juvenile court for further
proceedings to address compliance with the inquiry and notice provisions of the ICWA
and entry of new orders regarding the applicability of the ICWA.
Mother raises concern that a conditional affirmance, as opposed to conditional
reversal, may result in the denial of due process and reappointment of counsel on remand
because her parental rights will not have been reinstated during the further ICWA
compliance proceedings. Although mother will not have the right to appear generally as
a party to proceedings, file petitions requesting services or placement, or otherwise
participate in hearings regarding the minor’s placement, permanent plan or well-being,
she is entitled to notice and appointment of counsel for the further ICWA proceedings.
(In re Justin S. (2007) 150 Cal.App.4th 1426, 1435.) Further, she is entitled to participate
fully in the ICWA compliance proceedings, as well as to appeal from the juvenile court’s
ICWA findings and orders on remand, should the Department and court fail to comply,
over mother’s objection, with the ICWA. (Ibid.; In re X.V. (2005) 132 Cal.App.4th 794,
804-805.) We assume the juvenile court will follow established law and afford both
parents due process and direct it to do so below.
DISPOSITION
The orders terminating parental rights are conditionally affirmed, subject only to
full compliance with the ICWA as described by this opinion. If, on remand, the juvenile
5
court determines the ICWA applies, the court shall vacate its previous orders terminating
parental rights and conduct further proceedings consistent with the ICWA, including a
new section 366.26 hearing. (25 U.S.C. § 1914; § 224, subd. (e).) On remand, the
parents shall have counsel reappointed and be provided due process, including notice and
the right to be heard, for all ICWA compliance proceedings.
/s/
Duarte, Acting P. J.
We concur:
/s/
Renner, J.
/s/
Earl, J.
6