In re S.A. CA3 ( 2024 )

Filed 5/13/24 In re S.A. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or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
(Sacramento)
----
In re S.A., a Person Coming Under the Juvenile Court C099361
Law.
(Super. Ct. No. JD239298)
SACRAMENTO COUNTY DEPARTMENT OF
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
C.A.,
Defendant and Appellant.
Appellant C.A. (father) appeals from the juvenile court’s orders terminating parental
rights and freeing S.A. (the minor) for adoption. (Welf. & Inst. Code,1 §§ 366.26, 395.)
Father requests the matter be remanded for further Indian Child Welfare Act (ICWA)
compliance proceedings because the initial inquiry by the Sacramento County Department
of Child, Family and Adult 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
1 Undesignated statutory references are to the Welfare and Institutions Code.
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Department does not oppose such remand. We will conditionally affirm the juvenile court’s
orders and remand for ICWA compliance.
BACKGROUND
On September 6, 2018, only days after the minor was born, the Department filed a
dependency petition alleging the minor came within the provision of section 300,
subdivision (b)(1) because she was at substantial risk of harm due to mother’s current
substance abuse. Attached to the petition was an Indian child inquiry (ICWA-010) form
indicating the minor may have Native American ancestry.
The juvenile court subsequently found appellant to be the minor’s presumed father,
who may have Native American heritage. The court placed the minor in father’s custody
where she was ordered to remain until the jurisdictional hearing.
In March 2019, the minor’s mother indicated to the juvenile court that she may have
Blackfeet, Cherokee, and Cheyenne Indian ancestry. At the March 28, 2019, hearing, the
juvenile court found placement with father was no longer in the minor’s best interest. The
minor’s paternal grandmother, who was at the hearing, advised the court that she had Indian
ancestry and the court ordered the Department to begin the ICWA inquiry.
In December 2019, the Department filed a section 387 petition alleging father tested
positive for amphetamine, methamphetamine, heroin, and morphine. Father also was facing
one year in custody for committing identity theft. On the petition, the Department checked
the box noting “[t]he child had no known Indian ancestry.” The minor was then detained
pursuant to a protective custody warrant and the detention report filed on December 31,
2019, indicated the ICWA did not apply. In the jurisdiction/disposition report, however, the
Department noted the ICWA may apply.
In the jurisdiction/disposition report, the Department catalogued the inquiries made
regarding the minor’s status as an Indian child. The Department attempted to contact the
minor’s mother on three occasions. The Department spoke to the minor’s paternal uncle
who had no knowledge of any Indian ancestry. The Department also spoke to the minor’s
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paternal grandmother who indicated her mother, born on February 21, 1940, had ancestral
connections to a tribe in Arizona. She did not know the name of the tribe and her mother
died 40 years earlier; the paternal grandmother indicated she would reach out to more
relatives. Several weeks later, the minor’s paternal grandmother told the Department she
had no additional information to give them.
On May 6, 2021, the Department filed their ICWA compliance report. The
Department noted that the ICWA may apply. In March 2021, father told the social worker
that the minor was not an Indian child; however, the social worker did contact the Pacific
Region Bureau of Indian Affairs regarding the reported Cheyenne heritage. The minor’s
maternal aunt also said the minor was not an Indian child, and there was no known Native
American heritage on the mother’s side.
The Department sent certified letters to the following tribes, inquiring about the
minor’s heritage: the Cherokee Nation of Oklahoma, the United Keetoowah Band of
Cherokee Indians of Oklahoma, the Cheyenne and Arapaho Tribe of Oklahoma, the
Northern Cheyenne tribes, the Blackfeet Tribe of Montana, and the Cheyenne River Sioux
Tribe. The Department did not provide information about the minor’s paternal grandmother
or paternal great-grandmother to the Bureau of Indian Affairs or to any tribe in Arizona.
The Blackfeet, Cherokee, and Cheyenne tribes told the social worker that the minor
child was not a member of their respective tribe, nor was she eligible for membership. On
August 25, 2021, the juvenile court found the Department complied with the ICWA
requirements for inquiry and notification. The court ruled that the minor child had not been
identified as an Indian child and the ICWA was not applicable. The juvenile court then
terminated father’s services and set the case for a permanency planning hearing.
On August 24, 2023, the juvenile court terminated parental rights and selected
adoption as the minor child’s permanent plan. The minor child’s caregivers wanted to adopt
her; minor’s counsel offered to serve as a liaison between the caregivers and father so the
minor child could connect with her biological family when appropriate.
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Father filed a timely notice of appeal.
DISCUSSION
Father contends the Department’s inquiry into the minor’s possible Native American
ancestry was insufficient because the Department “failed to inquire of the BIA and tribes in
Arizona whether the child was a member or entitled to membership in a federally
recognized tribe through her paternal ancestry.” The Department agrees that remand for
further ICWA compliance is warranted.
The ICWA protects the interests of Indian children and Indian tribes by establishing
minimum standards for removal of Indian children from their families, and by permitting
tribal participation in dependency proceedings. (In re A.W. (2019) 38 Cal.App.5th 655,
662.) An Indian child is either a member of an Indian tribe, or is eligible for such
membership and is the biological child of a member. (25 U.S.C. § 1903(4).) The juvenile
court and the social services department have a continuing duty to inquire whether a child
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, rev. granted
Oct. 12, 2022, S276056.)
Section 224.2 creates three ICWA duties. First, there is a duty of inquiry to ask all
involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).)
Second, if there is reason to believe the child is an Indian child, the Department shall make
further inquiry as soon as practicable. (Id., subd. (e).) Third, if there is reason to know the
child is an Indian child, the formal notice requirements of section 224.3 apply. (See
§§ 224.2, subds. (c), (d), 224.3; In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) We review
claims of inadequate ICWA inquiry for substantial evidence. (In re Rebecca R. (2006)
143 Cal.App.4th 1426, 1430.)
The Department does not dispute that, although it had an opportunity to inquire of
paternal relatives who already were in contact with the Department, the record does not
indicate that such an inquiry occurred. Because additional inquiry should have been made
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(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), we will remand the matter for further proceedings
to address compliance with the inquiry and notice provisions of the ICWA and entry of new
findings regarding the applicability of the ICWA.
DISPOSITION
The orders terminating parental rights are conditionally affirmed, subject to
compliance with the ICWA. If, on remand, the juvenile court determines the minor is an
Indian child within the meaning of the ICWA, the juvenile 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, parents shall have counsel reappointed and be provided due process, including
notice and the right to be heard, for all ICWA compliance proceedings.
/s/
Wiseman, J.*
We concur:
/s/
Hull, Acting P. J.
/s/
Mauro, J.
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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