P.L. v. Superior Court CA3 ( 2024 )

Filed 1/30/24 P.L. v. Superior Court 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
P.L.,
Petitioner, C099195
v. (Super. Ct. No. STK-JV-DP-
2018-0000097)
THE SUPERIOR COURT
OF SAN JOAQUIN COUNTY,
Respondent;
SAN JOAQUIN COUNTY
HUMAN SERVICES AGENCY et al.,
Real Parties in Interest.
P.L. (mother), the mother of F.L. (son) and P.H. (daughter), petitions for an
extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the juvenile court’s
August 8, 2023 review hearing orders terminating her reunification services and setting a
hearing pursuant to Welfare and Institutions Code section 366.26.1 Mother contends
respondent juvenile court and the San Joaquin County Human Services Agency (Agency)
1 Undesignated statutory references are to the Welfare and Institutions Code.
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failed to adequately comply with the inquiry requirements of the Indian Child Welfare
Act (25 U.S.C. § 1901 et seq.) (ICWA).2
Because the circumstances of this case are unique and further ICWA inquiry is
appropriate, we will issue a peremptory writ of mandate directing respondent juvenile
court to do the following: to vacate its finding that the ICWA inquiry and notice
provisions were satisfied and that ICWA does not apply, to order the Agency to conduct
further inquiry of available relatives and provide any new information to the relevant
tribes, as necessary, and to enter updated ICWA findings prior to proceeding with a
section 366.26 hearing. We will vacate the stay previously issued by this court.
BACKGROUND
In January 2018, son and daughter were removed from mother’s care after the
Santa Clara County juvenile court sustained a dependency petition filed by the Santa
Clara County Social Services Agency (SSA) pursuant to section 300. Mother indicated
she had “Cherokee and Blackfoot” ancestry through the minors’ maternal grandmother
D.R. Daughter’s paternal grandmother B.L. stated she and her son D.H. (daughter’s
father) did not have any Native American heritage. Daughter’s father subsequently filed
an ICWA-020 form indicating he did not have any Native American heritage. The Santa
Clara juvenile court found ICWA may apply and instructed the SSA to provide notice to
the relevant tribes.
2 Son and daughter are half-siblings. To the extent mother claims the Agency should
have made ICWA inquiry of S.R., the alleged father of son, the claim lacks merit. S.R.
failed to establish a biological connection to son or daughter, and thus it was not
established that son or daughter could derive ancestry from S.R. (See In re E.G. (2009)
170 Cal.App.4th 1530, 1533; 25 U.S.C. § 1903(9).) Until biological paternity is
established for an alleged father, neither the juvenile court nor the social worker knows or
has reason to know that an Indian child is involved, and notice requirements are not
activated. (§ 224.2, subd. (a); In re E.G., at p. 1533.)
2
The SSA sent ICWA notices to the Bureau of Indian Affairs (BIA), the Cherokee
Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee
Indians, and the Blackfeet Tribe of Montana. The January 2018 notices contained
information about mother, daughter’s father, the maternal grandparents, and daughter’s
paternal grandparents. Names and birthdates were provided for those individuals, as
were full or partial addresses, with the exception of daughter’s father, whose whereabouts
at that time were stated as unknown. No other familial information was included in the
notices.
In February 2018, the SSA reported that mother, daughter’s paternal grandmother
B.L., and maternal great-uncle K.R. attended a team decision making meeting to discuss
placement. The report does not indicate any ICWA inquiry or attempts to gather further
familial information were undertaken at that time. In the meantime, the Eastern Band of
Cherokee Indians responded to the ICWA notice stating that son and daughter were not
Indian children.
By March 29, 2018, the dependency matter had been transferred from Santa Clara
County to San Joaquin County. The transfer-out order indicated the Santa Clara County
juvenile court had not yet determined whether ICWA applied.
In June 2018, the Agency sent new ICWA notices to the BIA, the Blackfeet Tribe
of the Blackfeet Reservation of Montana, the Cherokee Nation, the Eastern Band of
Cherokee Indians, and the United Keetoowah Band of Cherokee Indians in Oklahoma.
The June 2018 notices contained more detailed information about the individuals
included in the January 2018 notices, as well as information about seven additional
maternal relatives and three of daughter’s additional paternal relatives. Regarding
daughter’s father, the June 2018 notices provided additional names, a former address
(state prison in Chowchilla), and a birthplace for him. The Agency reported that its
attempts to discover daughter’s father’s current whereabouts were unsuccessful other
than to learn that he was incarcerated somewhere outside the State of California.
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The Agency’s June 2018 disposition report indicated maternal grandfather P.L.
was incarcerated in state prison in Vacaville. Mother informed the Agency that she was
raised by the maternal great-grandparents and she had seven siblings with whom she
maintained contact.
In August 2018, the Agency filed a declaration stating that 60 days had passed
since it sent the June 2018 notices and it had yet to receive responses from the Blackfeet
Tribe, the Cherokee Nation, or the BIA. Attached to the declaration were responses from
the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee
Indians, each stating that son and daughter were not Indian children. The following
month, the Agency filed a response from the Blackfeet Tribe stating that son and
daughter were not Indian children. The Agency’s subsequent status review report stated
there was no reason to believe son and daughter were Indian children and requested that
the juvenile court find that ICWA does not apply.
At the December 4, 2018 review hearing, the juvenile court found that ICWA does
not apply. One month later, the Agency filed the Cherokee Nation’s response stating that
son and daughter were not Indian children.
Following the juvenile court’s December 2018 ICWA finding, the Agency’s
reports provided no new information, stating only that there was no reason to believe son
and daughter were Indian children and that the juvenile court had made a finding
consistent therewith. The Agency’s final review report filed August 1, 2023, showed no
change in ICWA status.
At the August 8, 2023 review hearing, the juvenile court adopted the Agency’s
proposed findings and orders, terminated mother’s reunification services, and set the
matter for a section 366.26 hearing. No new ICWA findings were made at the hearing.
This writ petition followed, and this court issued a stay of the section 366.26 hearing
pending resolution of the writ petition.
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DISCUSSION
Mother contends the Agency failed to inquire about the minor’s potential Indian
heritage with maternal grandfather P.L. and maternal aunt Br.L., and failed to contact
daughter’s father for the purpose of obtaining contact information for paternal
grandfather Z.H.
Mother and the Agency agree that the Agency and the juvenile court have a duty
to inquire if the minor is an Indian child. (§ 224.2, subds. (a) & (b).) The Agency
discharges this duty by making inquiry to the minor’s parents and others, including but
not limited to extended family members. (Id., subd. (b); In re Dezi C. (2022)
79 Cal.App.5th 769, 780, review granted Sept. 21, 2022, S275578.) The juvenile court
and the Agency have an affirmative and continuing duty, beginning at initial contact
and continuing throughout the pendency of the proceedings, 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).)
Here, the December 2018 ICWA finding was made before several amendments to
the statutory scheme, which became effective January 1, 2019. (Assem. Bill No. 3176
(2017-2018 Reg. Sess.); In re M.W. (2020) 49 Cal.App.5th 1034, 1043.) Mother does not
assert that the December 2018 ICWA finding was erroneous under the prior law.
However, because the juvenile court and the Agency have a continuing duty of inquiry
under the statutory scheme, and because no further inquiry was made between the
December 2018 ICWA finding and the August 2023 review hearing orders, we conclude
the unique circumstances of this case warrant further ICWA compliance. As the Agency
notes, if mother has any new or additional information regarding extended family
members whose knowledge she believes would be helpful to the ICWA inquiry, that
information should be provided to the juvenile court so that it can be addressed on
remand. Implementing ICWA inquiry to ensure every effort is made to retain tribal ties
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is only workable when, in good faith, all participants work together to determine whether
children are Indian children. (In re S.H. (2022) 82 Cal.App.5th 166, 179.)
DISPOSITION
Let a peremptory writ of mandate issue directing respondent juvenile court
to vacate the finding that the ICWA inquiry and notice provisions were satisfied and
that the ICWA does not apply, and order the Agency to conduct further inquiry of
available relatives and provide any new information to the relevant tribes, as necessary.
The respondent juvenile court shall enter updated ICWA findings prior to proceeding
with a section 366.26 hearing. Having served its purpose, the stay previously issued by
this court on December 6, 2023, is vacated. This decision is final forthwith as to this
court. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/S/
MAURO, Acting P. J.
We concur:
/S/
RENNER, J.
/S/
MESIWALA, J.
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