In re T.L. CA3 ( 2023 )

Filed 5/17/23 In re T.L. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Amador)
----
In re T.L., a Person Coming Under the Juvenile Court C097010
Law.
AMADOR COUNTY DEPARTMENT OF SOCIAL (Super. Ct. No. 21-DP-00827)
SERVICES,
Plaintiff and Respondent,
v.
M.L.,
Defendant and Appellant.
Appellant M.L. (father), father of the minor, appeals from the juvenile court’s
order terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code,
§§ 366.26, 395.)1 Father contends the juvenile court and the Amador County Department
of Social Services (Department) failed to comply with the requirements of the Indian
1 Further undesignated statutory references are to the Welfare and Institutions Code.
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Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). The Department
concedes error in its initial inquiry. We will conditionally affirm and remand for limited
ICWA proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed recitation of the facts and non-ICWA related procedural history is
unnecessary to our resolution of this appeal.
Father is the biological father of the minor. On August 17, 2021, the Department
filed a dependency petition on behalf of the minor pursuant to section 300, subdivision
(g), alleging the minor was left without provision or support after mother was killed in a
single car accident and father was incarcerated in state prison.
The detention report stated the ICWA may or does apply based on the following
information: The social worker spoke with maternal uncle K.F., who advised that the
family had Miwok and Washoe ancestry and, although they “did not have a tribal
contact,” the family was “active in the Native culture.” The social worker contacted
paternal great-grandmother C.F., who also stated the family had Miwok and Washoe
heritage. The paternal great-grandmother stated that the family was still grieving the loss
of their granddaughter and would find additional information and contact the social
worker. The Department had not been able to inquire of father regarding possible Indian
heritage.
The detention report noted the family’s previous dependency action in Amador
County involving two of mother’s siblings. In that 2004 case, it was reported that the
maternal grandfather, C.F., Sr., was a descendent of a Miwok Indian and a Washoe
Indian. At that time, a representative of the Washoe Tribe of Nevada and California
informed the social worker that C.F., Sr., was registered as 7/16ths Washoe but had
removed himself from the rolls of that tribe and registered with another tribe. The
Washoe tribe stated C.F., Sr.’s, children would therefore not be eligible for services
through the Washoe tribe. Notwithstanding that information, the agency in that
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dependency noticed all Washoe and Miwok tribes and concluded mother’s siblings were
not eligible for enrollment.
At the detention hearing in the current matter, the juvenile court noted “some
limited ICWA inquiries have been made, and there was previous tribal affiliation” and
ordered the Department to investigate further.
Father was not present at the September 9, 2021, jurisdiction hearing, but paternal
grandmother T.L. and the maternal great-aunt M.F. were present. The juvenile court
found true the allegations in the petition and made the following ICWA finding: “It
looks like ICWA does not apply. It looks like there was some maybe tribe -- prior tribal
affiliations, but then those were severed. So they are not eligible for -- or she is not
eligible for registration at this time. I think we inquired of [father], too, last time when
we were here. He said no for him. But I will find that it doesn’t apply unless we get new
information.”
The disposition report reiterated the juvenile court’s previous finding of ICWA
inapplicability at the jurisdiction hearing and noted any additional evidence would be
provided to the court.
Father was present in person at the disposition hearing on November 18, 2021,
having recently been released from prison. The Department informed the juvenile court
that paternity testing had yet to be completed and, as such, father was still considered an
alleged father. The court continued the disposition hearing.
On January 13, 2022, the juvenile court found father to be the biological father of
the minor.
Father, maternal aunt S.F., and maternal great-aunt M.F. were present for the
continued disposition hearing on March 24, 2022. The juvenile court adjudged the minor
a dependent of the court, found there was “no reason to know that the child may be an
Indian child,” and also found that, unless new information was received, the “ICWA does
not apply.” The court made visitation orders, including supervised visitation between the
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minor and the maternal grandmother and grandfather and the maternal great-
grandmother, and set the matter for a section 366.26 hearing.
The section 366.26 report reiterated the juvenile court’s prior finding that the
ICWA does not apply. The report and the attached adoption assessment identified and
discussed various extended relatives, including maternal and paternal grandmothers, the
maternal great-aunt and great-uncle, two maternal uncles, and the maternal great-
grandparents.
Father and paternal grandmother T.L. were present at the contested section 366.26
hearing on August 25, 2022. Father testified; however, he was not asked about Indian
ancestry or anything having to do with the ICWA. The juvenile court terminated parental
rights and ordered adoption as the permanent plan. The court noted the minor would
remain placed with the maternal great-aunt and great-uncle. The ICWA was not
mentioned by the court or any party during the hearing.
DISCUSSION
Father contends the Department failed its initial and continuing duty to inquire of
him and available extended family members, including the paternal aunt and uncle, the
paternal grandmother, the maternal uncle, the maternal grandparents, the maternal great-
aunt and great-uncle, and the maternal great-grandmother, about Indian ancestry. He
further contends the juvenile court failed to comply with its own statutory duty of inquiry
and failed to ensure that the Department complied with its duties.
The Department concedes it failed its duty of initial inquiry as to father and known
extended relatives and asserts the proper remedy is to conditionally affirm the case and
remand to ensure there is no information that would undermine the juvenile court’s
finding that the ICWA does not apply. We accept the Department’s concession and agree
the case must be remanded for further ICWA proceedings.
The ICWA’s purpose is to protect the interests of Indian children and promote the
stability and security of Indian tribes by establishing minimum standards for, and
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permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902,
1903(1), 1911(c), 1912; In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) The juvenile court and
the Department have “an affirmative and continuing duty to inquire” whether a child is,
or may be, an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); see
In re K.M. (2009) 172 Cal.App.4th 115, 118-119.) If, after the petition is filed, the
juvenile court knows or has reason to know that an Indian child is involved (25 U.S.C.
§ 1912(a)), notice of the pending proceeding and the right to intervene must be sent to the
tribe or the Bureau of Indian Affairs if the tribal affiliation is not known. (See §§ 224.2,
subds. (d) & (f), 224.3; Cal. Rules of Court, rule 5.481(b); In re Robert A. (2007)
147 Cal.App.4th 982, 989.) “At that point, the social worker is required, as soon as
practicable, to interview the child’s parents, extended family members, the Indian
custodian, if any, and any other person who can reasonably be expected to have
information concerning the child’s membership status or eligibility.” (In re Michael V.
(2016) 3 Cal.App.5th 225, 233; see Cal. Rules of Court, rule 5.481(a)(4)(A); § 224.2,
subd. (b).)
ICWA notices must include all the following information, if known: the child’s
name, birthplace, and birth date; the name of the tribe in which the child is enrolled or
may be eligible for enrollment; names and addresses of the child’s parents, grandparents,
great-grandparents, and other identifying information; and a copy of the dependency
petition. (§ 224.3, subd. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184, 209.)
No one disputes that father was not asked about potential Indian ancestry despite
his appearance in juvenile court on more than one occasion both before and after being
found to be the minor’s biological father. On this record, it appears that inquiry was not
made of several known relatives, some of whom were present during court hearings
and/or participated in visitation with the minor. For example, paternal grandmother T.L.
was present on September 9, 2021, when the court found the ICWA does not apply, but
no inquiry was made of her at the time or at any other time. Paternal great-grandmother
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C.F. gave initial information that the family had Miwok and Washoe heritage but,
because the family was still grieving the loss of their granddaughter, she stated she would
find additional information and contact the social worker. The record does not show that
paternal great-grandmother contacted the social worker thereafter or that the social
worker made any attempt to contact paternal great-grandmother to make further inquiry.
Despite its concession of error, the Department asserts that, when the juvenile
court stated its belief that the minor “is not eligible for registration at this time” and
“[t]here’s no reason to know that the [minor] may be an Indian child,” neither father nor
any of the relatives present objected or in any way disabused the court of that belief.
While it would certainly be helpful to the ICWA investigation and inquiry process if
relatives present in court proceedings spontaneously offered whatever information they
had regarding the family’s Indian heritage or lack thereof, it is the juvenile court and
social services agencies who have “an affirmative and continuing duty to inquire”
whether a child is, or may be, an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court,
rule 5.481(a); see In re K.M., supra, 172 Cal.App.4th at pp. 118-119.)
Further, while the Department “is not required to ‘cast about’ for information or
pursue unproductive investigative leads” (In re D.S. (2020) 46 Cal.App.5th 1041, 1053),
it is required to include in its reports a discussion of what efforts it undertook to locate
and interview family members who might have pertinent information and, “[i]n the
absence of an appellate record affirmatively showing the court’s and the agency’s efforts
to comply with ICWA’s inquiry and notice requirements, we will not, as a general rule,
conclude that substantial evidence supports the court’s finding that proper and adequate
ICWA notices were given or that ICWA did not apply.” (In re N.G. (2018)
27 Cal.App.5th 474, 484; accord, In re K.R. (2018) 20 Cal.App.5th 701, 709.) Here, the
record makes no such affirmative showing with regard to father or any paternal relatives.
Deficiencies in ICWA inquiry and notice are reviewed for harmless error. Those
deficiencies “may be deemed harmless error when, even if proper notice had been given,
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the child would not have been found to be an Indian child.” (In re D.N. (2013)
218 Cal.App.4th 1246, 1251.) However, error is not presumed. It is father’s obligation
to present a record that affirmatively demonstrates error. (In re D.W. (2011)
193 Cal.App.4th 413, 417-418.) Father has done so here. If we conclude the juvenile
court did not comply with the ICWA provisions, we “reverse only if the error is
prejudicial.” (In re A.L. (2015) 243 Cal.App.4th 628, 639.) In light of the Department’s
concession, and given the state of the record, we cannot say with certainty that there was
no prejudice to any relevant tribes.
The Department either did not take sufficient affirmative steps to investigate the
minor’s possible Indian ancestry or did not document its efforts to do so, and the juvenile
court failed to ensure that an adequate investigation had been conducted. In the absence
of evidence of the Department’s efforts to fulfill its continuing duty of inquiry, we cannot
say the failure of ICWA compliance was harmless. We agree with the parties that 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 will conditionally affirm the juvenile court’s order terminating parental
rights, and 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.
Father 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 his parental rights will not have been reinstated during the further ICWA
compliance proceedings. Although father 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,
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he 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, he 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 father’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 father the
requisite due process and direct it to do so.
DISPOSITION
The juvenile court’s order terminating parental rights is conditionally affirmed and
the matter is remanded to the juvenile court for limited proceedings to determine
compliance with the ICWA consistent with this opinion. If, at the conclusion of those
proceedings, no tribe indicates the minor is an Indian child within the meaning of the
ICWA, then the juvenile court shall make the appropriate ICWA finding and reinstate the
order terminating parental rights. If the juvenile court finds, after proper inquiry and
notice, that the ICWA applies, the juvenile court shall hold such further proceedings as
are appropriate, including a new section 366.26 hearing.
/s/
EARL, J.
We concur:
/s/
HULL, Acting P. J.
/s/
DUARTE, J.
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