In re N.G.

Filed 9/21/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re N.G., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E070338
Plaintiff and Respondent, (Super.Ct.No. RIJ1100389)
v. OPINION
S.A.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Reversed with directions.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and
Appellant.
Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and
Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
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I. INTRODUCTION
Defendant and appellant, S.A. (Mother), is the mother of N.G., a boy born in 2005.
Mother appeals from the April 5, 2018, judgment terminating parental rights to N.G.,
then age 13. (Welf. & Inst. Code, § 366.26.)1 Mother claims only that the juvenile court
erroneously failed to ensure that plaintiff and respondent, Riverside County Department
of Public Social Services (DPSS), fully investigated N.G.’s paternal lineal ancestry and
gave adequate notices of the proceedings to all federally recognized Cherokee tribes and
to the Bureau of Indian Affairs (BIA), pursuant to the Indian Child Welfare Act (ICWA)
(25 U.S.C. § 1901 et seq.) and related California law (Welf. & Inst. Code, § 224 et seq.).
We agree Mother’s claim has merit and conditionally reverse the judgment. We
also conclude that DPSS must be ordered to further investigate N.G.’s paternal lineal
ancestry, and include any newly discovered information concerning N.G.’s paternal lineal
ancestry in the ICWA notices to all federally recognized Cherokee tribes, the BIA, and all
previously noticed tribes. DPSS must also inquire whether N.G. may have maternal
lineal ancestry and, if so, send additional ICWA notices, as appropriate.
II. BACKGROUND
On March 17, 2011, N.G. was taken into protective custody, and N.G.’s father,
J.G., filed a Parental Notification of Indian Status form (ICWA-020) indicating he may
have Blackfeet or Navajo Indian ancestry. On the form, J.G. placed a question mark next
1 Undesignated statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
2
to the tribes’ names and wrote “not exactly sure.” Also on March 17, N.G.’s paternal
grandfather, R.G., reported that R.G.’s grandfather (N.G.’s great-great-grandfather) was
Native American, and R.G. believed his grandfather’s tribe was “out of Michigan.”
On March 29, 2011, DPSS sent ICWA notices (Notice of Child Custody
Proceeding for Indian Child (ICWA-030)) to the Blackfeet Tribe of Montana, the Navajo
Nation, the Colorado River Indian Tribes, and the Colorado River Tribal Council (the
March 2011 ICWA notices). The March 2011 ICWA notices included J.G.’s and R.G.’s
full names and dates of birth, J.G.’s current address and one former address, and stated
R.G. lived in “Corona, California.” The March 2011 ICWA notices included no other
identifying information concerning N.G.’s paternal lineal ancestors. (§ 224.2, subd.
(a)(5)C).)
In response to the March 2011 ICWA notices, the Blackfeet Tribe and the Navajo
Nation said they were unable to verify that N.G. was an Indian child or eligible for
membership in their tribes based on the information in the ICWA notices. The Colorado
River Indian Tribes responded that N.G. was not an enrolled member of the tribes nor
eligible for enrollment in the tribes.
On April 21, 2011, the court found “good” ICWA notice had been given and that
ICWA did not apply to the Blackfeet Tribe. On October 25, 2011, the court found ICWA
did not apply, and on April 3, 2012, the court found N.G. was not an Indian child. But on
April 18, 2011, before the court made any of these findings, DPSS reported that, on April
11, 2011, J.G. told the social worker that, a year earlier, J.G. had been in contact with
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“paternal cousins” who were registered members of “the Cherokee tribe,” and J.G. and
his father, R.G., “may have” Cherokee ancestry. J.G. said that neither he nor R.G. were
registered members of any Indian tribe. J.G. was killed in a motorcycle accident in
August 2012.
The record does not show that any ICWA notices were given to any federally
recognized Cherokee tribes or the BIA. Nor does the record indicate that DPSS
attempted to interview J.G., R.G, the paternal cousins, or any other persons in order to
obtain, if known, the full names, dates and places of birth and death, current and former
addresses, and other identifying information concerning N.G.’s paternal lineal ancestors.
(§ 224.2, subd. (a)(5)(C); In re Karla C. (2003) 113 Cal.App.4th 166, 175.)
Mother’s whereabouts were unknown when N.G. was taken into protective
custody in March 2011 and neither Mother nor J.G. received reunification services. But
DPSS and Mother were in contact in June 2011 and in February 2012, and the record
does not show that Mother ever completed or that DPSS ever asked Mother to complete a
Parental Notification of Indian Status form (ICWA-020), or whether DPSS ever asked
Mother, any other maternal relatives, or any other persons whether N.G. may have any
maternal Indian ancestry. DPSS was in contact with a maternal uncle, E.J., in August
2011, but the record does not show that DPSS asked E.J. whether N.G. may have
maternal Indian ancestry, or if so whether DPSS asked E.J. for identifying information
concerning N.G.’s maternal lineal ancestors.
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N.G. was placed in foster care in March 2011. In September 2017, N.G. was
placed in a prospective adoptive home with his godmother. On April 5, 2018, the court
terminated parental rights and placed N.G. for adoption. Mother appeals from the
judgment terminating parental rights.
III. DISCUSSION
Mother claims only that the juvenile court erroneously failed to ensure that DPSS
fully investigated N.G.’s paternal lineal ancestry and sent ICWA notices to all federally
recognized Cherokee tribes and the BIA, after N.G. informed DPSS in April 2011 that
N.G. may have Cherokee ancestry. We agree. On remand, the court must ensure that
DPSS fully investigates N.G.’s paternal lineal ancestry and includes any newly
discovered information in the ICWA notices to all federally recognized Cherokee tribes,
the BIA, and the previously noticed tribes. DPSS must also inquire whether N.G. may
have maternal Indian ancestry and, if so, send additional ICWA notices, as appropriate.
A. ICWA and Related California Statutes, Overview
1. ICWA’s Notice Requirements
ICWA provides: “In any involuntary proceeding in a State court, where the court
knows or has reason to know that an Indian child is involved, the party seeking the foster
care placement of, or termination of parental rights to, an Indian child [here, DPSS] shall
notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with
return receipt requested, of the pending proceedings and of their right of intervention.”
(25 U.S.C. § 1912(a).) ICWA also requires child welfare agencies to notify the BIA of
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the proceedings, if the juvenile court knows or has reason to know the child may be an
Indian child but the identity of the child’s tribe cannot be determined. (25 U.S.C.
§§ 1903(11), 1912(a); In re Michael V. (2016) 3 Cal.App.5th 225, 232 (Michael V.).)2
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).) An ICWA notice “enables a tribe to determine whether the
child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the
proceeding. No foster care placement or termination of parental rights proceeding may
be held until at least 10 days after the tribe receives the required notice.” (Isaiah W.,
supra, 1 Cal.5th at p. 5; 25 U.S.C. § 1912(a); see Welf. & Inst. Code, § 224.2, subd. (d).)
The juvenile court is not authorized to determine ICWA does not apply until (1) “proper
and adequate” ICWA notice has been given, and (2) neither a tribe nor the BIA has
provided a determinative response to the notice within 60 days of receiving the notice.
(Welf. & Inst. Code, § 224.3, subd. (e)(3); Isaiah W., supra, at p. 11.)
An ICWA notice must include, among other things, (1) the Indian child’s name,
birthdate, and birthplace, if known; (2) the name of the Indian tribe in which the child is a
member or may be eligible for membership, if known; and (3) specific identifying
2 Section 224.2 “codifies and elaborates on” ICWA’s notice requirements. (In re
Isaiah W. (2016) 1 Cal.5th 1, 9 (Isaiah W.).) It provides: “If the identity or location of
the parents, Indian custodians, or the minor’s tribe is known, a copy of the notice shall
also be sent directly to the Secretary of the Interior, unless the Secretary of the Interior
has waived notice in writing . . . .” (§ 224.2, subd. (a)(4); Michael V., supra, 3
Cal.App.5th at p. 232.)
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information concerning the child’s lineal ancestors, including “[a]ll names known of the
Indian child’s biological parents, grandparents, and great-grandparents . . . including
maiden, married and former names or aliases, as well as their current and former
addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other
identifying information, if known.” (§ 224.2, subd. (a)(5)(A)-C).)
An ICWA notice is also required to include known identifying information
concerning the child’s great-great-grandparents and even older lineal ancestors. (25
C.F.R. § 23.111(d) (2018).) There is “no general blood quantum requirement or
‘remoteness’ exception to ICWA notice requirements,” particularly when there is no
indication that the child’s tribe or potential tribe has a blood quantum requirement for
membership. (In re Breanna S. (2017) 8 Cal.App.5th 636, 650; In re Kadence P. (2015)
241 Cal.App.4th 1376, 1386-1387.) Thus, it is “‘necessary to provide as much
information as is known on the Indian child’s direct lineal ancestors.’ (25 C.F.R.,
§ 23.11(b), (2003).)” (In re Karla C., supra, 113 Cal.App.4th at p. 175, italics added.)
2. The Duty of Inquiry
Juvenile courts and child protective agencies have “an affirmative and continuing
duty to inquire” whether a child for whom a section 300 petition has been filed is or may
be an Indian child. (§ 224.3, subd. (a); In re M.R. (2017) 7 Cal.App.5th 886, 904.) If the
court or social worker “knows or has reason to know” the child is or may be an Indian
child, the social worker “is required 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
7
custodian, and extended family members” and “any other person that reasonably can be
expected to have information regarding the child’s membership status or eligibility” in
order to “gather the information required” in section 224.2, subdivision (a)(5). (§ 224.3,
subd. (c); Michael V., supra, 3 Cal.App.5th at p. 233; In re K.R. (2018) 20 Cal.App.5th
701, 706-707 (K.R.); Cal. Rules of Court, rule 5.481(a)(4)(A).)
B. The Court and DPSS Failed to Comply with ICWA and Related California Law
As Mother claims, DPSS had a duty to send ICWA notices of the proceedings for
N.G. to all federally recognized Cherokee tribes and the BIA, after J.G. reported in April
2011 that N.G. may have Cherokee ancestry through “the Cherokee tribe.” (§ 224.2,
subd. (a)(3), (4); In re Merrick V. (2004) 122 Cal.App.4th 235, 246.) The record does not
show DPSS sent these ICWA notices. Thus, the judgment must be conditionally reversed
and the matter remanded to the juvenile court with directions to order DPSS to send these
ICWA notices. (In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)
The record also indicates DPSS failed to fully investigate N.G.’s paternal lineal
ancestry, after J.G. initially reported N.G. may have Blackfeet or Navajo ancestry or after
J.G. later reported N.G. may have Cherokee ancestry. (Michael V., supra, 3 Cal.App.5th
at pp. 232-233.) Specifically, the record does not show that DPSS ever asked J.G. (now
deceased), or the paternal grandfather, R.G., for any identifying information concerning
N.G.’s paternal lineal ancestors. (§ 224.2, subd. (a)(5)(C); In re Karla C., supra, 113
Cal.App.4th at p. 175.)
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Indeed, the March 2011 ICWA notices do not even include R.G.’s full current
address; they state R.G.’s current address as “Corona, California,” even though R.G. was
in contact with DPSS in 2011 and presumably could have given DPSS his full, current
address, along with identifying information concerning R.G.’s grandfather (N.G.’s great-
great-grandfather) whom R.G. reported was “Native American.” Nor does the record
show DPSS ever attempted to contact J.G.’s “paternal cousins,” whom J.G. reported were
registered members of “the Cherokee tribe,” for any identifying information concerning
N.G.’s paternal lineal ancestors. DPSS had a duty to make all of these inquires and to
interview all persons who reasonably could have been expected to have information
concerning N.G.’s paternal lineal ancestors. (§ 224.3; K.R., supra, 20 Cal.App.5th at pp.
707-708.)
DPSS argues it had no duty to give ICWA notice to the Cherokee tribes because
J.G. did not provide enough information to suggest that any of N.G.’s paternal lineal
ancestors were members of a Cherokee tribe. (§§ 224.2, subd. (a), 224.3, subds. (b)(1),
(c).) We disagree. J.G. told the social worker he had been in contact with “paternal
cousins” who were registered with “the Cherokee tribe.” This plainly suggested N.G.
may be eligible for membership in a federally recognized Cherokee tribe, and required
the social worker to “make further inquiry” (§ 224.3, subd. (c)) to determine whether the
paternal cousins and N.G. shared lineal ancestors and whether N.G. might be eligible for
membership in a Cherokee tribe through those ancestors (In re A.G. (2012) 204
Cal.App.4th 1390, 1396).
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Lastly, the record does not show that DPSS ever asked Mother whether N.G. may
have maternal Indian ancestry or ever asked Mother to complete a Parental Notification
of Indian Status form (ICWA-020), even though DPSS was in contact with Mother in
June 2011 and February 2012. DPSS was also in contact with a maternal uncle, E.J., in
August 2011, but the record does not show that DPSS ever asked E.J. whether N.G. may
have maternal Indian ancestry. The juvenile court also had a duty to make these inquires.
(In re W.B. (2012) 55 Cal.4th 30, 52-53.)
Thus, on remand, the juvenile court must ensure that DPSS (1) fully investigates
N.G.’s paternal lineal ancestry; (2) gives new ICWA notices, including all previously
known and newly discovered identifying information concerning N.G.’s paternal lineal
ancestry, to the previously noticed tribes, all federally recognized Cherokee tribes, and
the BIA; and (3) takes reasonable steps to ascertain whether N.G. may also have maternal
Indian ancestry, and if he does, that DPSS fully investigates N.G.’s maternal lineal
ancestry and gives additional ICWA notices, as appropriate.
C. Substantial Evidence Does Not Show DPSS Complied with ICWA, and the ICWA
Compliance Deficiencies Are Prejudicial
DPSS claims substantial evidence supports the court’s findings that adequate
ICWA notices were given and that ICWA did not apply. But DPSS does not explain
what evidence shows that DPSS discharged its duty to investigate N.G.’s paternal lineal
ancestry or that DPSS ever attempted to ascertain whether N.G. may also have maternal
Indian ancestry. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57-58 [substantial evidence
10
showed agency gave proper and adequate ICWA notice, and parent failed to demonstrate
prejudicial, reversible error].)
DPSS also claims Mother has not demonstrated prejudicial reversible error based
on DPSS’s failure to comply with the inquiry and notice requirements of ICWA and
California law. DPSS relies on Adoption of A.B. (2016) 2 Cal.App.5th 912, 926
[appellant seeking reversal for lack of proper ICWA notice must show reasonable
probability of a different result absent the error] and In re Cheyanne F. (2008) 164
Cal.App.4th 571, 576-577 [”Deficiencies in an ICWA notice are generally prejudicial,
but may be deemed harmless under some circumstances.”].
The problem in this case is that DPSS’s reports do not indicate and the record does
not otherwise show what, if any, efforts DPSS undertook to investigate N.G.’s possible
status as an Indian child. This is the case even though the record shows that the court had
a duty to ensure that DPSS made further inquiries concerning N.G.’s paternal lineal
ancestry for purposes of notifying the previously noticed tribes, the federally recognized
Cherokee tribes, and the BIA. The court also had a duty to ensure that DPSS attempted
to ascertain whether N.G. may also have maternal Indian ancestry, but the record does
not show that the court or DPSS discharged this duty. In short, the record does not show
that the court or DPSS fully complied with ICWA and related California law.
This court recently addressed the problem of an inadequate record demonstrating
ICWA compliance in K.R., supra, 20 Cal.App.5th 701. There, we acknowledged that no
statute or rule of court requires a social services agency to make a record of the efforts it
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undertook to comply with ICWA. And we acknowledged that, as a general rule, it is the
appellant’s burden to produce an adequate record that demonstrates prejudicial, reversible
error on appeal. (Id. at pp. 708-709.) But we also said, “ICWA compliance presents a
unique situation” in that a parent may raise ICWA compliance issues on appeal even
though the parent has no burden to object to ICWA compliance deficiencies in the
juvenile court. (Id. at p. 708; Isaiah W., supra, 1 Cal.5th at pp. 8-9, 15.)
We also noted that, in an appeal raising ICWA compliance issues, the parent “is in
effect acting as a surrogate for the tribe.” (K.R., supra, 20 Cal.App.5th at p. 708.) The
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. (Ibid.) Thus, we reasoned, appellate review of ICWA
compliance issues “should not be derailed simply because the parent is unable to produce
[or has not produced] an adequate record.” (Ibid.)
Accordingly, we held: “The agency cannot omit from its reports any discussion of
its efforts to locate and interview family members who might have pertinent information
and then claim that the sufficiency of its efforts cannot be challenged on appeal because
the record is silent. [¶] Nor can the juvenile court assume that because some information
was obtained and relayed to the relevant tribes, the social services agency necessarily
complied fully with its obligations. On the contrary, once there is sufficient information
to believe that the children might be Indian children within the meaning of ICWA and the
California statutes, ‘responsibility for compliance’ with those statues ‘falls squarely and
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affirmatively’ on both the social services agency and the court. [Citation.] Accordingly,
the court has a responsibility to ascertain that the agency has conducted an adequate
investigation and cannot simply sign off on the notices as legally adequate without doing
so.” (K.R., supra, 20 Cal.App.5th at p. 709.)
We recognize that our holding in K.R. is at odds with established case law which
has applied the substantial evidence rule to claims of ICWA error, and which has treated
the appellant (usually a parent) as having the burden of demonstrating prejudicial ICWA
error on appeal based on an adequate record. (E.g., In re Charlotte V., supra, 6
Cal.App.5th at pp. 57-58.) But in a case such as this one, where the record does not show
what, if any, efforts the agency made to discharge its duty of inquiry (§ 224.3, subd. (a);
Michael V., supra, 3 Cal.App.5th at p. 233), and the record also does not show that all
required ICWA notices were given or that the ICWA notices that were given included all
known identifying information, the burden of making an adequate record demonstrating
the court’s and the agency’s efforts to comply with ICWA’s inquiry and notice
requirements must fall squarely and affirmatively on the court and the agency. And in
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. Instead, as a general
rule, we will find the appellant’s claims of ICWA error prejudicial and reversible.
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Indeed, on a deficient record such as this one, we simply cannot know whether
DPSS would have discovered information sufficient to enable any of the previously
noticed tribes to determine whether N.G. is an Indian child, or whether any of the
unnoticed federally recognized Cherokee tribes or the BIA would have found N.G. is an
Indian child. Nor can we know whether N.G. may be an Indian child through his
maternal ancestors, given that DPSS’s reports do not indicate that DPSS asked Mother or
other maternal relatives whether N.G. may have maternal Indian ancestry. Thus, on this
record, we conclude Mother’s claims of ICWA error are prejudicial and reversible.
D. Mother May Challenge the Juvenile Court’s ICWA Findings on This Appeal
DPSS argues Mother’s appeal is untimely because she did not seek appellate
review of the juvenile court’s April 21, 2011, finding that “good” ICWA notice was
given, or the court’s October 25, 2011, finding that ICWA did not apply. We disagree. It
is settled that a parent’s failure to appeal from an earlier order does not preclude the
parent from raising ICWA compliance issues in an appeal from a later order, including an
order terminating parental rights. (Isaiah W., supra, 1 Cal.5th at pp. 6, 9, 14-15; K.R.,
supra, 20 Cal.App.5th at p. 706.)
Isaiah W. held that a parent who does not timely appeal a juvenile court order that
subsumes a finding that ICWA does not apply may nonetheless challenge the finding in
an appeal from a subsequent order terminating parental rights. (Isaiah W., supra, 1
Cal.5th at pp. 6, 9, 14-15.) The court reasoned that because ICWA imposes on the
juvenile court a continuing and affirmative duty to inquire whether the child is an Indian
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child, an order terminating parental rights “necessarily subsume[s] a present
determination of ICWA’s inapplicability,” which the parent may challenge on appeal
from the order terminating parental rights. (Ibid.)
DPSS attempts to distinguish Isaiah W. on the ground the juvenile court in that
case was not relieved of its continuing duties of inquiry and notice at the time it made the
order terminating parental rights. Here, DPSS argues, the juvenile court was relieved of
these duties after it found DPSS gave “good” ICWA notice and none of the noticed tribes
responded that N.G. was an Indian child. DPSS is mistaken. Isaiah W. observed that,
“After proper notice has been given, if the tribes respond that the minor is not a member
or not eligible for membership, or if neither the BIA nor any tribe provides a
determinative response [to the notice] within 60 days, then the court may find that ICWA
does not apply to the proceedings. At that point, the court is relieved of its duties of
inquiry and notice unless the BIA or a tribe subsequently confirms that the child is an
Indian child.” (Isaiah W., supra, 1 Cal.5th at p. 15, italics added.)
As discussed, the record does not support the court’s finding that proper and
adequate ICWA notice was given to the previously noticed tribes, because the record
does not show what if any efforts DPSS undertook to investigate N.G.’s paternal lineal
ancestry. For these reasons, proper and adequate ICWA notices were not given to the
previously noticed tribes, and DPSS was never relieved of its continuing duties of inquiry
and notice under ICWA and California law. (Isaiah W., supra, 1 Cal.5th at p. 15.)
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IV. DISPOSITION
The judgment terminating parental rights to N.G. is conditionally reversed. The
matter is remanded to the juvenile court with directions to comply with the inquiry and
notice provisions of ICWA and of sections 224.2 and 224.3. On remand, the court must
ensure that DPSS fully investigates N.G.’s paternal lineal ancestry; gives new ICWA
notices, including all previously known and newly discovered identifying information
concerning N.G.’s paternal lineal ancestry to the previously noticed tribes, all federally
recognized Cherokee tribes, and the BIA; and takes reasonable steps to ascertain whether
N.G. may also have maternal Indian ancestry, and if he does, that DPSS fully investigates
N.G.’s maternal lineal ancestry and gives additional ICWA notices, as appropriate.
If, after receiving ICWA notice as required by sections 224.2 and 224.3, the tribes
or the BIA do not respond to the ICWA notices, or respond that N.G. is not an Indian
child, the judgment terminating parental rights to N.G. shall immediately be reinstated
and further proceedings shall be conducted, as appropriate. If any tribe or the BIA
determines N.G. is an Indian child, the court shall proceed accordingly.
CERTIFIED FOR PUBLICATION
FIELDS
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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