In re M.W. CA5 ( 2024 )

Filed 2/21/24 In re M.W. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re M.W., a Person Coming Under the Juvenile
Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F086775
SERVICES,
(Super. Ct. No. JD142786-00)
Plaintiff and Respondent,
v. OPINION
C.W.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Christie Canales
Norris, Judge.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Snauffer, J., and DeSantos, J.
Appellant C.W. (father) is the father of seven-year-old M.W. (the child), who is
the subject of this dependency case. Father challenges the juvenile court’s order issued at
a Welfare and Institutions Code section 366.261 hearing that resulted in his parental
rights being terminated. Father contends the court and the Kern County Department of
Human Services (department) failed to comply with their duty of inquiry under the Indian
Child Welfare Act (ICWA). The department concedes that it failed to conduct an
adequate inquiry into the potential Indian ancestry of the child, and it does not oppose
remand for the limited purpose of conducting further ICWA inquiry.2 We agree with the
parties and conditionally reverse the court’s order terminating parental rights and remand
for proceedings to ensure ICWA compliance.
FACTUAL AND PROCEDURAL BACKGROUND3
In December 2021, the department filed a juvenile dependency petition alleging
the child was described by section 300, subdivision (b)(1). The allegations involved
hazardous conditions in the child’s home. The Indian Child Inquiry Attachment
(ICWA-010(A)) form indicated the department asked father and the child’s mother, L.F.
(mother), about the child’s Indian status, and the parents gave the department no reason
to believe the child is or may be an Indian child.
At the initial detention hearing held on December 6, 2021, father and mother were
present and appointed counsel. The juvenile court inquired of mother regarding potential
Indian ancestry, and mother disclosed Cherokee ancestry through the child’s maternal
grandmother. Mother completed a Parental Notification of Indian Status (ICWA-020)
1 All further undesignated statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even
though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are
preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
3 The sole issue on appeal concerns ICWA; therefore, we primarily restrict our facts
to those bearing on that issue.
2.
form, which reflected her claim of Cherokee ancestry, and the form listed the name and
phone number for the maternal grandmother.
Father indicated that his grandmother previously told him that he was “half
Sioux,” but there were no living family members who could provide additional
information. He was able to provide his grandmother’s name and state of residence, but
he did not know any other details regarding his ancestry. The juvenile court made
temporary findings to detain the child, reserved its ICWA finding, and continued the
hearing for one day at the request of the parents. On December 7, 2021, the child was
detained from mother and father’s custody and a combined jurisdiction and disposition
hearing was set for January 19, 2022.
The department’s jurisdiction report recommended that the allegations in the
petition be found true. The disposition report recommended that the child remain in
out-of-home care and family reunification services be provided to mother and father. The
child’s maternal uncle contacted the department on December 22, 2021, to request
placement of the child. The social worker provided the maternal uncle with information
on the resource family approval process, but there is no indication that he was asked
about the maternal family’s Indian ancestry.
The ICWA status section of the report documented the department paralegal’s
efforts to carry out an ICWA inquiry into possible Indian ancestry. Mother informed the
paralegal that the maternal grandmother was “full Cherokee,” but she denied that any of
her family members were enrolled in a tribe. Father reiterated his claim of ancestry with
the Sioux tribe through his mother’s family. The child’s adult sibling was also present
during the paralegal’s interview of the parents, and she indicated that she had no
additional information to provide.
The initial jurisdiction and disposition hearing was continued to March 2, 2022, at
mother’s request. On January 26, 2022, the department sent the information it gathered
in a notice to the Cherokee tribes, Sioux tribes, Bureau of Indian Affairs (BIA), and
Secretary of the Interior. On January 28, 2022, a family finding social worker was able
3.
to identify 16 maternal relatives and 20 paternal relatives, and letters were sent to 15 of
the relatives regarding civil rights and relative placement consideration. In February and
March 2022, the department filed responses from multiple tribes indicating that the child
was not enrolled or eligible for enrollment in their tribes.
At the jurisdiction and disposition hearing held on March 30, 2022, the juvenile
court found the allegations in the petition true, ordered family reunification services for
mother and father, and determined ICWA was not applicable. A six-month review
hearing was set for June 27, 2022.
The department’s report for the six-month review hearing recommended that
family reunification services be continued for mother and father. At a continued
six-month review hearing held on September 30, 2022, the juvenile court continued
family reunification services and set a 12-month review hearing for February 2, 2023. At
the 12-month review hearing, the court terminated family reunification services for
mother and father, and a section 366.26 hearing was set for June 2, 2023.
The department’s section 366.26 report, dated May 24, 2023, recommended that
the juvenile court terminate the parental rights of mother and father and order a
permanent plan of adoption for the child. The child was placed in a resource family
home, and the care providers were committed to providing a plan of adoption for the
child. A supplemental report indicated that there were only four tribes that had not
responded to its ICWA inquiry as of July 28, 2023. At a continued section 366.26
hearing held on August 2, 2023, the court terminated the parental rights of mother and
father and selected a plan of adoption.
DISCUSSION
Father contends the juvenile court and department failed to adequately discharge
their duty of initial inquiry by failing to inquire of the child’s maternal grandmother and
maternal uncle regarding possible Indian ancestry. The department concedes this point,
and we accept its concession.
4.
Applicable Law
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 that a state court, except in emergencies, must follow before removing
an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016)
1 Cal.5th 1, 7–8.) In any “proceeding for the foster care placement of, or termination of
parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s
tribe … have a right to intervene” (25 U.S.C. § 1911(c)), and may petition the court to
invalidate any foster care placement of an Indian child made in violation of ICWA
(25 U.S.C. § 1914; see § 224, subd. (e)). An “ ‘Indian child’ ” is defined in ICWA as an
unmarried individual under 18 years of age who is either (1) a member of a federally
recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe
and is the biological child of a member of a federally recognized tribe. (25 U.S.C.
§ 1903(4), (8); see § 224.1, subd. (a) [adopting federal definitions].)
In every dependency proceeding, the department and the juvenile court have an
“affirmative and continuing duty to inquire whether a child is or may be an Indian
child .…” (Cal. Rules of Court, rule 5.481(a);4 see § 224.2, subd. (a); In re W.B. (2012)
55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The continuing
duty to inquire whether a child is or may be an Indian child “can be divided into
three phases: the initial duty to inquire, the duty of further inquiry, and the duty to
provide formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
The initial duty to inquire arises at the referral stage when the reporting party is
asked whether it has “any information that the child may be an Indian child.” (§ 224.2,
subd. (a).) Once a child is received into temporary custody, the initial duty to inquire
includes asking the child, parents, legal guardian, extended family members, and others
who have an interest in the child whether the child is, or may be, an Indian child.
4 All further references to rules are to the California Rules of Court.
5.
(§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance
of each parent to ask whether he or she “knows or has reason to know that the child is an
Indian child.” (§ 224.2, subd. (c).) The court must also require each parent to complete a
Parental Notification of Indian Status (ICWA-020) form. (Rule 5.481(a)(2)(C).)
Next, a duty of further inquiry arises when the department or the juvenile court has
“reason to believe” the proceedings involve an Indian child but “does not have sufficient
information to determine that there is reason to know that the child is an Indian child .…”
(§ 224.2, subd. (e).) As recently clarified by the Legislature, a “reason to believe” exists
when the court or department “has information suggesting that either the parent of the
child or the child is a member or may be eligible for membership in an Indian tribe.”
(§ 224.2, subd. (e)(1).)
If there is a reason to believe an Indian child is involved, the juvenile court or the
department “shall make further inquiry regarding the possible Indian status of the child,
and shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e).) Further inquiry
includes, but is not limited to, “[i]nterviewing the parents, Indian custodian, and extended
family members,” and contacting the BIA, the State Department of Social Services, and
the tribes and any other person who may have information. (§ 224.2, subd. (e)(2)(A)–
(C).)
The final duty component arises when the court or department has “ ‘reason to
know’ ” the child is an Indian child. (In re D.F., supra, 55 Cal.App.5th at p. 567.) A
“reason to know” exists if one of the following circumstances is present: “(1) A person
having an interest in the child … informs the court that the child is an Indian child[;] [¶]
(2) The residence … of the child [or] the child’s parents … is on a reservation or in an
Alaska Native village[;] [¶] (3) Any participant in the proceeding … informs the court
that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The
child … gives the court reason to know that the child is an Indian child[;] [¶] (5) The
court is informed that the child is or has been a ward of a tribal court[; or] [¶] (6) The
6.
court is informed that either parent or the child possess an identification card indicating
membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d)(1)–(6).)
If the juvenile court makes a finding that proper and adequate further inquiry and
due diligence 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, subject to reversal
if the court subsequently receives information providing reason to believe the child is an
Indian child. If the court receives such information, it must direct the social worker or
probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)
A. Standard of Review
Where the juvenile court finds ICWA does not apply to children after completion
of an initial inquiry, “[t]he finding implies that … social workers and the court did not
know or have a reason to know the children were Indian children and that social workers
had fulfilled their duty of inquiry.” (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) We
review the court’s ICWA findings for substantial evidence. (In re Hunter W. (2011)
200 Cal.App.4th 1454, 1467.) We must uphold the court’s orders and findings if any
substantial evidence, contradicted or uncontradicted, supports them, and we resolve all
conflicts in favor of affirmance. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.)
The appellant “has the burden to show that the evidence was not sufficient to support the
findings and orders.” (Ibid.)
B. Analysis
Pursuant to its duty under section 224.2, the department asked each parent whether
they had any Indian heritage. The child’s mother and father both claimed Indian
ancestry. Mother provided the name and contact information for the maternal
grandmother, who was identified as the source of her Cherokee ancestry. However, there
is no indication that the department attempted to contact the maternal grandmother about
the child’s possible Indian ancestry. In addition, the child’s maternal uncle expressed
interest in having placement of the child at the outset of the proceedings, but there was no
documentation of an inquiry being directed toward him. Based upon this information, the
7.
juvenile court found ICWA was not applicable. However, the department was required
under section 224.2, subdivision (b) to ask available extended family members about the
child’s possible Indian ancestry.
Extended family members include adults who are the child’s stepparents,
grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and
first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) There was at least
one additional extended family member, the maternal uncle, who was in contact with the
department during the proceedings. The department either failed to ask the maternal
uncle about Indian ancestry or did not document it. Furthermore, there was no evidence
that the department attempted to contact the maternal grandmother despite having
knowledge that she was the source of the maternal family’s ancestry.
Under the circumstances, we conclude the department did not fulfill its statutory
duty of inquiry. (§ 224.2, subd. (b).) As a result, the juvenile court’s finding that ICWA
did not apply was not supported by substantial evidence that the department conducted an
adequate, proper, and duly diligent inquiry, and its contrary conclusion was an abuse of
discretion. Because the failure in this case concerned the department’s duty of initial
inquiry, only state law is involved. “Where a violation is of only state law, we may not
reverse unless we find that the error was prejudicial. (Cal. Const., art. VI, § 13 [‘No
judgment shall be set aside … unless, after an examination of the entire cause, including
the evidence, the court shall be of the opinion that the error complained of has resulted in
a miscarriage of justice’]).” (In re Benjamin M., supra, 70 Cal.App.5th at p. 742)
“ ‘[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must
clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of
justice’ [citations], and California law generally interprets its constitutional miscarriage
of justice requirement ‘as permitting reversal only if the reviewing court finds it
reasonably probable the result would have been more favorable to the appealing party but
for the error.’ ” (In re K.H. (2022) 84 Cal.App.5th 566, 606–607 (K.H.).)
8.
However, in In re A.R. (2021) 11 Cal.5th 234, the Supreme Court “recognized that
while we generally apply a Watson[5] likelihood-of-success test to assess prejudice, a
merits-based outcome-focused test is not always appropriate because it cannot always
adequately measure the relevant harm. [Citation.] In other words, where the injury
caused by the error is unrelated to an outcome on the merits, tethering the showing of
prejudice to such an outcome misplaces the measure, at the expense of the rights the law
in question was designed to protect.” (K.H., supra, 84 Cal.App.5th at p. 609, italics
omitted.)
As we explained in K.H., “ ‘ICWA compliance presents a unique situation .…’ ”
(K.H., supra, 84 Cal.App.5th at p. 608.) “ICWA is not directed at reaching, or
protecting, a specific outcome on the merits.” (Id. at p. 609.) Rather, “ ‘[t]he purpose of
ICWA and related California statutes is to provide notice to the tribe sufficient to allow it
to determine whether the child is an Indian child, and whether the tribe wishes to
intervene in the proceedings’ [citation], and an adequate initial inquiry facilitates the
information gathering upon which the court’s ICWA determination will rest.” (Id. at
p. 608.) Yet, “while the appealing party is usually a parent, parents do not bear the
burden of gathering information in compliance with ICWA [citations], and parents may
raise the claim of error for the first time on appeal.” (Ibid.) Further, the ultimate
determination whether a child is an Indian child rests with the tribe, not with a parent, the
department, or the juvenile court. (Id. at p. 596.)
“[I]f the inquiry is inadequate at the outset, the likelihood that the opportunity to
gather relevant information will present itself later in the proceeding declines
precipitously.” (K.H., supra, 84 Cal.App.5th at p. 609.) Thus, “the relevant injury under
ICWA is not tied to whether the appealing parent can demonstrate to the juvenile court or
a reviewing court a likelihood of success on the merits of whether a child is an Indian
child [under a standard Watson analysis]. The relevant rights under ICWA belong to
5 People v. Watson (1956) 46 Cal.2d 818, 820.
9.
Indian tribes and they have a statutory right to receive notice where an Indian child may
be involved so that they may make that determination. It necessarily follows that [in the
context of ICWA and consistent with A.R.,] the prejudice to those rights lies in the failure
to gather and record the very information the juvenile court needs to ensure accuracy in
determining whether further inquiry or notice is required, and whether ICWA does or
does not apply. Many cases do not proceed beyond the inquiry at the first stage in the
compliance process and, therefore, ensuring adequacy and accuracy at this step is critical
if the rights of tribes under ICWA and California law are to be meaningfully safeguarded,
as was intended by Congress and our state Legislature.” (K.H., at p. 591.)
As we explained in K.H., “where the opportunity to gather the relevant
information critical to determining whether the child is or may be an Indian child is lost
because there has not been adequate inquiry and due diligence, reversal for correction is
generally the only effective safeguard.” (K.H., supra, 84 Cal.App.5th at p. 610.) Here,
the department’s inquiry “fell well short of that required to gather the information needed
to meaningfully safeguard the rights of the tribes, as intended under ICWA and California
law .…” (Id. at p. 620.) “Where a record is silent or nearly silent with respect to an
ICWA inquiry at the first step, a finding of harmlessness necessarily rests on speculation”
and “is at odds with the statutory protections that ICWA and California law intend to
afford Indian children and Indian tribes.” (Id. at p. 611.) Therefore, the error is
prejudicial.
DISPOSITION
The juvenile court’s finding that ICWA does not apply is conditionally reversed,
and the matter is remanded to the court with directions to order the department to comply
with the inquiry and documentation provisions set forth in section 224.2, subdivisions (b)
and (e) and rule 5.481(a)(5). If, after determining that an adequate inquiry was made
consistent with the reasoning in this opinion, the court finds that ICWA applies, the court
shall proceed in compliance with ICWA and related California law. If the court instead
10.
finds that ICWA does not apply, the court shall reinstate its ICWA finding. In all other
respects, the court’s order terminating mother and father’s parental rights is affirmed.
11.