In re M.E.

Filed 5/25/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
In re M.E. et al., Persons Coming Under the Juvenile C094587
Court Law.
PLACER COUNTY DEPARTMENT OF HEALTH (Super. Ct. Nos. 53-005138,
AND HUMAN SERVICES, 53-005139, 53-005140, 53-
005141)
Plaintiff and Respondent,
v.
C.M.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Placer County, Colleen M.
Nichols, Judge. Conditionally affirmed and remanded with directions.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Karin E. Schwab, County Counsel, and Jason M. Folker, Deputy County Counsel,
for Plaintiff and Respondent.
1
C.M., mother of the four minors (mother), appeals from the juvenile court’s orders
terminating parental rights and freeing the minors for adoption. (Welf. & Inst. Code,
§§ 366.26, 395.)1 Her sole contention on appeal is that the Placer County Department of
Health and Human Services (Department) and juvenile court failed to comply with the
inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.). We agree, and remand for the limited purpose of ensuring compliance
with the ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
As the issue on appeal is limited to ICWA compliance, we dispense with a
recitation of the underlying facts of the dependency case and set forth only the facts
relevant to the ICWA inquiry and noticing requirements.
On January 5, 2021, the Department filed a petition on behalf of the minors,
pursuant to section 300, subdivisions (b) and (g).
On January 6, 2021, the juvenile court held a detention hearing and asked both
parents whether they had Indian ancestry. Although mother did not identify a tribe, she
claimed Native American ancestry through her mother and provided the names of three
relatives (two aunts and an uncle) who she claimed could likely provide more
information. The father (father) reported Native American ancestry through his father
and stated his great-grandfather was “full-blooded Cherokee.” Father did not know his
great-grandfather’s name and stated he believed all the relatives who had that information
were deceased. At the conclusion of the court’s inquiry, the juvenile court stated: “At
this point there is a reason to believe, but there is a legal standard. There is a reason to
believe, so the Department is required to inquire, but there is absolutely no evidence that
1 Undesignated statutory references are to the Welfare and Institutions Code.
2
there is a reason to know.” The court also stated: “The Department is required to
continue to investigate or inquire as to the Indian Child Welfare Act.”
On January 26, 2021, the Department filed an amended petition adding allegations
pursuant to section 300, subdivisions (a), (e), (i) and (j).
On January 29, 2021, mother was interviewed by a Department investigator
regarding her knowledge of having any American Indian ancestry. The content of that
interview was documented in the jurisdiction/disposition report filed with the juvenile
court on February 24, 2021. The Department reported that mother informed them that
her Indian ancestry had been researched during a previous case in Yuba County regarding
two of the minors (hereafter “the Yuba County case”) and “they were unable to determine
her Native American ancestry, thus, [the] ICWA was found not to apply.”2 The
jurisdiction/disposition report further noted that the investigator had reviewed the prior
dependency filings in the Yuba County case and discovered mother had previously
identified the Blackfeet, Cherokee, and Choctaw tribes, but denied that she herself, or her
parents were enrolled members.
On February 16, 2021, father was interviewed by the same investigator. Father
reported having some knowledge that his great-grandfather was a “full blooded Indian,”
but he did not know his great-grandfather’s name or with which tribe he was affiliated or
where he lived. The jurisdiction/disposition report included information that the
disposition report in the Yuba County case noted that father had told a social worker that
he possibly had ancestry with Cherokee and Blackfeet tribes, however he denied being an
enrolled member. The jurisdiction/disposition report also provided a brief summary,
which we shall detail in our discussion of the issues herein, of the information contained
in the Yuba County case’s disposition report reflecting the inquiry efforts in that case.
2 Although the Yuba County case involved only two of the four minors in this case,
all four minors have the same parents.
3
On March 3, 2021, the parents waived their right to a contested hearing and
submitted both the issue of jurisdiction and disposition to the court based on reports that
had been filed in the case. The juvenile court then made a finding that “[t]here is no
evidence that leads the court or anyone to believe that the Indian Child Welfare Act
would apply in this case or that these children have any Native American heritage that
would qualify them to be tribal members, and therefore the court finds ICWA does not
apply.” The court then ordered that the parents be bypassed for reunification services
pursuant to section 361.5, subdivision (b)(5), (6) and (13) and set the matter for a hearing
to select a permanent plan.
The Department filed a 366.26 report on June 1, 2021. The report contained a
section entitled “Indian Child Welfare Act Status.” The information contained in this
section was the same information that the Department had included in their
jurisdiction/disposition report, as well as information from the Cherokee Nation of
Oklahoma, the Blackfeet Tribe, and the Jena Band of Choctaw Indians, all from the Yuba
County case in 2017 and 2018, that indicated that neither parent nor the children were
enrolled members, nor were they eligible for enrollment in the respective tribes. The
report also included the following paragraph: “No further information has been provided
to this worker regarding the mother and father’s knowledge of ICWA since the previous
order in Yuba County was made. Thus, there is no reason to believe or know that the
children may be Indian children and it is respectfully recommended that the ICWA be
found not to apply in the matter of [the minors].”
On July 13, 2021, the court held a hearing to identify a permanent plan for the
minors pursuant to section 366.26. At the hearing, the court terminated the parental
rights of both parents and identified adoption as the permanent plan for all minors.
Other than their review of the Yuba County reports, the record does not provide
that the Department made any additional ICWA inquiry efforts.
4
On July 21, 2021, after the court’s order terminating parental rights, the juvenile
court received a request for disclosure of the juvenile case file records in this case
pursuant to section 827. The request had been filed by the Placer County District
Attorney’s Office, which had filed a criminal case against mother and father. The
juvenile court filed a written order after hearing regarding the section 827 request. In the
order after hearing, the juvenile court indicated that it had reviewed the documents
requested to be released and listed the various documents. Among the documents that the
juvenile court indicated it had reviewed, were Yuba County Juvenile Court reports filed
August 16, 2017, September 11, 2017, November 15, 2017, April 27, 2018, and
September 28, 2018.
Mother timely appealed.
While this appeal was pending, the Department filed a motion to augment the
record on appeal. The motion was granted on December 16, 2021, prior to the filing of
appellant’s reply brief. The records that were filed with the motion to augment included
the Yuba County Health and Human Services Department reports from the previous
(2017) dependency case involving the parents and minors A.E. and C.E., which the
juvenile court had indicated reviewing pursuant to the section 827 request.
DISCUSSION
The Department contends that their initial inquiry of the parents was satisfactory
and that there was no “reason to believe,” and thus no duty of further inquiry, while at the
same time arguing that they did further inquire by reviewing the Yuba County reports, and
such further inquiry was sufficient for the court to determine that the ICWA did not apply.
We do not agree with the Department on either front.
5
I
The Department had a Duty of Further Inquiry Regarding
Possible Indian Status of the Minors
“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 a state court 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 re W.B.
(2012) 55 Cal.4th 30, 47.) For purposes of ICWA, an ‘ “Indian child” ’ is a child who is
either a member of an Indian tribe or 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); see Welf. &
Inst. Code, § 224.1, subd. (a) [adopting federal definitions].)
“As the Supreme Court recently explained, notice to Indian tribes is central to
effectuating ICWA’s purpose, enabling a tribe to determine whether the child involved in
a dependency proceeding is an Indian child and, if so, whether to intervene in or exercise
jurisdiction over the matter. (In re Isaiah W., supra, 1 Cal.5th at pp. 8-9.) Notice to the
parent or Indian custodian and the Indian child’s tribe is required by ICWA in state court
proceedings seeking foster care placement or termination of parental rights ‘where the
court knows or has reason to know that an Indian child is involved.’ (25 U.S.C.
§ 1912(a).) Similarly, California law requires notice to the parent, legal guardian or
Indian custodian and the Indian child’s tribe in accordance with section 224.2,
subdivision (a)(5), if the Department or court ‘knows or has reason to know that an
Indian child is involved’ in the proceedings. (§ 224.3, subd. (d); see Cal. Rules of Court,
rule 5.481(b)(1) [notice is required ‘[i]f it is known or there is reason to know that an
Indian child is involved in a proceeding listed in rule 5.480,’ which includes all
6
dependency cases filed under § 300].)” (In re Michael V. (2016) 3 Cal.App.5th 225, 231-
232, fn. omitted.)3
“[S]ection 224.2 creates three distinct duties regarding ICWA in dependency
proceedings. First, from the Agency’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 Agency ‘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.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.)
We find that the parents’ preliminary responses at the initial detention hearing in
this case “provided reason to believe Indian children might be involved in these
dependency proceedings and triggered the Department’s duty to make further inquiry, as
mandated by section 224.2, subdivision (e), and [California Rules of Court,] rule
5.481(a)(4).” (In re T.G. (2020) 58 Cal.App.5th 275, 292; id. at pp. 292-294.) Indeed,
the juvenile court articulated that there was a reason to believe that the ICWA may apply
and directed the Department to further inquire.
The record is devoid of any evidence that the Department followed up on the
information provided by mother. Not only did mother provide the names of her relatives
who might have ICWA information at the detention hearing, on January 29, 2021, mother
also provided the names and contact information for two paternal aunts for possible
placement of the minors. Both paternal aunts share father’s surname. The Department
reported in its jurisdiction/disposition report that it had made contact with one of the
3 We do not find, nor do the parties contend, that the Department had reason to
know that the minors were Indian children.
7
paternal aunts and discussed possible placement of the minors with her. Significantly,
the Department did not report ever having inquired of this aunt about possible Native
American ancestry on father’s side of the family.
“Accordingly, just as proper notice to Indian tribes is central to effectuating
ICWA’s purpose, an adequate investigation of a family member’s belief a child may have
Indian ancestry is essential to ensuring a tribe entitled to ICWA notice will receive it.
(See In re Elizabeth M. (2018) 19 Cal.App.5th 768, 787.)” (In re T.G., supra,
58 Cal.App.5th at p. 289.)
The court in In re Michael V., addressed a similar circumstance wherein the
Department failed to interview relatives who potentially had information on the
children’s Native American ancestry. “The Department, as well as the court, has an
affirmative obligation ‘to make further inquiry regarding the possible Indian status of the
child, and to do so as soon as practicable, by interviewing the parents, Indian custodian,
and extended family members’ (§ 224.3, subd. (c); see Cal. Rules of Court, rule
5.481(a)(4)(A)) if a person having an interest in the child ‘provides information
suggesting the child is a member of a tribe or eligible for membership in a tribe or one or
more of the child’s biological parents, grandparents, or great-grandparents are or were a
member of a tribe” (§ 224.3, subd. (b)(1); see Cal. Rules of Court, rule 5.481(a)(5)(A)).’
(In re Michael V., supra, 3 Cal.App.5th at p. 235.)
The parents did that here. Mother identified relatives who might have relevant
ICWA information, the Department itself received subsequent information about father’s
relatives, yet none of the Department’s reports subsequent to the detention hearing,
contain any information about the Department contacting or attempting to contact the
relatives that mother identified, or conducting any further inquiry into father’s Indian
ancestry. Indeed, other than a review of records in the prior dependency case, the record
beyond the detention hearing is silent as to any further ICWA inquiry.
8
The juvenile court has a continuing duty to inquire whether the children were
Indian children in all dependency proceedings. “The continuing nature of a juvenile
court’s duty to inquire into a child’s Indian status appears on the face of section
224.3[subdivision] (a). As noted, that provision reads: ‘The court . . . ha[s] an
affirmative and continuing duty to inquire whether a child for whom a petition under
Section 300 . . . has been . . . filed is or may be an Indian child in all dependency
proceedings and in any juvenile wardship proceedings if the child is at risk of entering
foster care or is in foster care.’ (§ 224.3[, subd.] (a).)” (In re Isaiah W., supra, 1 Cal.5th
at pp. 10-11.) The juvenile court failed to do so here.
The Department relies on In re Austin J. (2020) 47 Cal.App.5th 870 (Austin J.), in
arguing that mother’s identification of relatives who may have information about Native
American ancestry suggests a mere possibility of Indian ancestry that is insufficient to
trigger further inquiry.
In Austin J., the children’s mother told the juvenile court that she may have
Cherokee ancestry and indicated that her family may have more information. The
juvenile court ordered the Los Angeles County Department of Children and Family
Services (DCFS) to investigate the mother’s possible ICWA connection and to notify the
appropriate Cherokee tribe and appropriate federal agencies. DCFS spoke with a
maternal aunt who reiterated that the maternal grandmother may have had Cherokee
heritage and the maternal grandfather possibly had Indian heritage, but she was not aware
of which tribes. DCFS conducted no further inquiry and no notices were sent out.
(Austin J., supra, 47 Cal.App.5th at p. 878.)
“Explaining that ‘[i]nformation about a tribal connection that “is too vague,
attenuated and speculative” will not support a “reason to believe the children might be
Indian children,” ’ the Austin J. court held the mother’s statement she may have Indian
ancestry and had been told her mother had Cherokee ancestry and similar statements by
the great-aunt did not establish a reason to believe the children were Indian children as
9
defined in ICWA. (Austin J., supra, 47 Cal.App.5th at p. 888.) ‘At most, they suggest a
mere possibility of Indian ancestry. Indian ancestry, heritage, or blood quantum,
however, is not the test; being an Indian child requires that the child be either a member
of a tribe or a biological child of a member. [Citations.] . . . Indian ancestry, without
more, does not provide a reason to believe that a child is a member of a tribe or is the
biological child of a member. Here, there is nothing more . . . .’ (Id. at pp. 888-889.)
Even if a claim of Indian ancestry suggested the possibility of Indian tribal membership,
the Austin J. court continued, ‘that bare suggestion is insufficient by itself to establish a
reason to believe a child is an Indian child.’ (Id. at p. 889.)” (In re T.G., supra,
58 Cal.App.5th pp. 293-294.)
As other courts have done, we decline to follow the ruling in Austin J. and find the
analysis in In re T.G., from which we quote, to be more persuasive. Specifically, we
decline to follow “Austin J.’s narrow reading of the nature and quality of information
sufficient to trigger the duty of further inquiry. In particular, [Austin J.’s] insistence a
parent’s express statement of Indian ancestry does not constitute a reason to believe an
Indian child may be involved is fundamentally at odds with well-established ICWA law.
To be sure, an ‘Indian child’ is defined in terms of tribal membership, not ancestry. But
the question of membership is determined by the tribes, not the courts or child protective
agencies. (See Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 65-66, fn. 21 [Indian
tribe is final arbiter of its membership rights]; § 224.2, subd. (h) [‘A determination by an
Indian tribe that a child is or is not a member of, or eligible for membership in, that tribe
. . . shall be conclusive. Information that the child is not enrolled, or is not eligible for
enrollment in, the tribe is not determinative of the child’s membership status unless the
tribe also confirms in writing that enrollment is a prerequisite for membership under
tribal law or custom’].) That determination often requires providing a tribe with
extensive biographical data (that is, information about ancestors and ancestry), which is
why section 224.3, subdivision (a)(5)(C), prescribes in detail the information about
10
parents, grandparents and great-grandparents that must be included in an ICWA notice.”
(In re T.G., supra, 58 Cal.App.5th at p. 294, fn. omitted.)
But parents may not always have that extensive biographical data, or even
substantial information about their Indian ancestry. “General information from the
family about its ancestry frequently provides the only available basis to believe an Indian
child may be involved. (Cf. In re A.M. [(2020)] 47 Cal.App.5th [303,] 322.) Additional
investigation may not develop further information establishing the need for ICWA notice,
but it is essential to the enforcement of the court’s and child protective agency’s
‘affirmative and continuing duty to inquire’ to construe broadly the duty to make further
inquiry. (§ 224.2, subd. (a).)” (In re T.G., supra, 58 Cal.App.5th at p. 295.)
Further, as noted in In re S.R. (2021) 64 Cal.App.5th 303, 317, the “recent
amendment to section 224.2, subdivision (e) confirms the ‘reason to believe’ standard
requiring further inquiry should be broadly interpreted. . . . [T]he Legislature amended
the statute to specify ‘[t]here is reason to believe a child involved in a proceeding is an
Indian child whenever the court, social worker, or probation officer 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), italics added.) Those plain
terms suggest a loose fit between the information that requires further inquiry and the
specific kinds of information that constitute ‘reason to know’ a child in dependency
proceedings is an Indian child as defined by statute. . . . [Citation.] That new provision
forecloses the narrow interpretation of what constitutes reason to believe advanced by the
court in Austin J.”
Finally, we find the holding advanced in Austin J. is also inconsistent with section
224.2, subdivision (b), which requires the child protective agency to ask, as part of its
initial duty of inquiry, extended family members whether the child is or may be an Indian
child. (See § 224.2, subd. (b); Cal. Rules of Court, rule 5.481(a)(1); see also In re Y.W.
(2021) 70 Cal.App.5th 542, 554.)
11
II
The Information Provided to the Juvenile Court from the Yuba County Case was
Insufficient to Satisfy the ICWA’s Inquiry Obligations
The Department next contends that it did conduct further inquiry by reviewing the
2017 reports in the Yuba County case and providing information from their review to the
juvenile court in this case. However, we find that the information the Department
provided to the juvenile court in this case was insufficient for the juvenile court to make a
finding, some three to four years later, that the Department had met its ICWA inquiry
obligations.
In the jurisdiction/disposition report in this case, the Department noted that it had
interviewed mother on January 29, 2021, and she reported having some “American
Indian” ancestry, and that such ancestry had been previously researched during the Yuba
County case regarding two of the minors, and “they [Yuba County] were unable to
determine her Native American ancestry, thus, ICWA was found not to apply.” Father
continued to report that his great-grandfather was “full blooded Indian.” The Department
also noted it had reviewed the Yuba County case file and discovered therein that mother
had previously identified the Blackfeet, Cherokee, and Choctaw tribes, and father had
identified the Cherokee and Blackfeet tribes, although both parents denied being enrolled
members of any of the tribes. The Department further reported that an investigator from
Yuba County had been told by the parents of their claimed tribal affiliations in
connection with the Yuba County case. The Yuba County investigator had received
response letters from all but the Blackfeet Tribe, Cherokee Nation of Oklahoma, and Jena
Band of Choctaw Indians, each stating that two of the minors in this case were not Indian
children, and 60 days had elapsed from the time the original notice was sent to the three
outstanding tribes. The Department noted that the Yuba County Juvenile Court had
found the ICWA did not apply to the two minors, it further contended that it had not
received any further information since the Yuba County case, and, on that basis,
12
recommended the juvenile court here find the ICWA does not apply to any of the four
minors in this case.
Notably, the Department did not represent whether it, or the Yuba County case
investigator, interviewed the relatives that mother identified at the detention hearing. It
did not represent that, as directed by the juvenile court, it had followed up on whether
there were any individuals who might have information about father’s Cherokee and
Blackfeet heritage, even though it had since learned of two living paternal aunts, one with
whom it had been in contact. Nor did the Department provide any information regarding
what investigation the Yuba County investigator undertook, what information the
investigator sent to the tribes, or when that information was sent. The limited
information it did provide to the juvenile court was insufficient for the juvenile court to
find the Department had fulfilled its ICWA inquiry obligation.
III
The Department’s Failure to Meet its ICWA Inquiry Obligation was Not Harmless Error
The Department asserts that any failure to provide sufficient information from the
Yuba County case to the juvenile court is harmless error, since the Yuba County case
records, reviewed by the juvenile court after parental rights had been terminated,
demonstrate there was sufficient ICWA inquiry already made in that case. However, a
closer look at the Yuba County case file reveals the same deficiencies in the record that
were before the juvenile court when it determined that the ICWA did not apply.
For example, mother identified three relatives by name at the detention hearing in
this case who may have had further information regarding the minors’ Native American
heritage—two aunts and one uncle. The Yuba County case records reflect that the
investigator in that case spoke with an unnamed maternal aunt and uncle, not two aunts.
The Yuba County case file also reflects that, at the time it sent out notices to the
Choctaw, Cherokee and Blackfeet tribes, it had not yet interviewed father and discovered
he also claimed Cherokee and Blackfeet heritage, nor does it reflect the investigator ever
13
interviewed any of father’s relatives. The file further reflects that all of the letters it
received from the tribes stating the minors were not Indian children were dated prior to
the investigator’s interview of father. And while the investigator renoticed three tribes
(the Blackfeet Tribe, Cherokee Nation and Jena Band of Choctaw Indians) after its
October 3, 2017 interview of father, the file does not reflect that those three notices
contained father’s information or claim of Indian heritage, or included the names of
father’s biological parents, which had since been provided, nor were the notices resent to
two of the federally recognized Cherokee tribes who had already responded based on
mother’s claim of Cherokee heritage.
Perhaps more concerning, however, is that none of this critical information was
provided to the juvenile court in this case prior to it making an ICWA finding.
In sum, we need not, and do not, decide here whether or when it is appropriate for
the juvenile court to rely on another county’s finding in a previous case that the ICWA
does not apply. Here, the juvenile court did not take judicial notice of the Yuba County
case records or of the Yuba County Juvenile Court’s ICWA finding, or otherwise indicate
it was basing its finding on the Yuba County court’s previous ICWA finding. It did not
review the Yuba County case record prior to determining that the ICWA did not apply,
nor was it provided with an accurate and full summary thereof. The juvenile court found
reason to believe the minors were Indian children and directed the Department to
investigate further. The Department’s investigation was incomplete, as was its report to
the juvenile court, resulting in the juvenile court’s finding that the ICWA does not apply
here to be unsupported by substantial evidence.
Having reviewed the Yuba County case file upon which the Department relied, we
cannot find the error in failing to conduct a more thorough ICWA inquiry harmless. (In
re Brandon T. (2008) 164 Cal.App.4th 1400, 1415 [errors in ICWA notice subject to
harmless error analysis].)
14
We find the Department failed to adequately investigate the parents’ claim of
Indian ancestry and the juvenile court failed to ensure an appropriate inquiry had been
conducted before concluding the ICWA did not apply to these proceedings. (See In re
T.G., supra, 58 Cal.App.5th at p. 280.)
We must therefore remand for limited ICWA proceedings.
DISPOSITION
The orders terminating parental rights are conditionally affirmed. The matter is
remanded to the juvenile court for compliance with the inquiry and notice provisions of
the ICWA and related California law as set forth above and for further proceedings
consistent with this opinion. If, on remand, the juvenile 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).)
/s/
EARL, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
ROBIE, J.
15