In re J.S. CA1/5

Filed 6/2/22 In re J.S. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re J.S., a Minor.
SAN FRANCISCO HUMAN
SERVICES AGENCY,
A164056
Plaintiff and Respondent,
v. (San Francisco City and County
Super. Ct. No. JD20-3104)
J.W.S.,
Objector and Appellant.
J.W.S. (Father) appeals from the juvenile court’s order
terminating his parental rights with respect to J.S., his son.
Father contends that the San Francisco Human Services Agency
and the court failed to satisfy their inquiry and notice obligations
under the federal Indian Child Welfare Act (25 U.S.C. § 1901 et
seq. (the Act)) and related California law. Because Father’s
contention is correct, we conditionally reverse the order
terminating parental rights and direct the juvenile court to
ensure compliance with the Act’s inquiry and notice
requirements.
1
BACKGROUND
A.
The Act protects Native American children and promotes
the stability and security of Native American tribes and families
by establishing minimum standards for, and permitting tribal
participation in, dependency actions. (25 U.S.C. § 1901 et seq.; In
re Isaiah W. (2016) 1 Cal.5th 1, 7-8 (Isaiah W.).) When there is
reason to believe a child in a dependency case is an “Indian
child,” the Act requires that the child’s tribe be notified of the
proceeding and its right to intervene. (25 U.S.C. § 1912(a); see
also Welf. & Inst. Code, § 224.3, subd. (b).1) An “Indian child” is
an unmarried person under age 18 who is a member of an Indian
tribe or is eligible for membership and is the biological child of a
member. (25 U.S.C. § 1903(4); see also In re Gabriel G. (2012)
206 Cal.App.4th 1160, 1166 (“A child may qualify as an Indian
child . . . even if neither of the child’s parents is enrolled in the
tribe.”) The required notice facilitates a determination of
whether the child is an Indian child and allows the tribe an
opportunity to intervene. (Isaiah W., supra, at p. 8.) When an
Indian child is involved, the Act imposes certain procedural
protections, including heightened evidentiary requirements
before parental rights may be terminated or a foster care
placement may be ordered. (See 25 U.S.C. § 1912(b) - (f).) Our
legislature has codified and supplemented the Act’s requirements
in state law. (See Welf. & Inst. Code, §§ 224.2, 224.3; Isaiah W.,
supra, at p. 9.)
B.
When J.S. was 10 months old, the Agency filed a juvenile
dependency petition pursuant to section 300. The petition
alleged that J.S. was at risk of harm because his parents, Father
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
and A.B. (Mother), had substance abuse problems, their
relationship was abusive, and they could not adequately protect
and care for him.
Shortly before the Agency filed the petition, Mother
informed the social worker that she has Cherokee and Choctaw
heritage. Mother stated that maternal grandmother, T.D., has
Native American ancestry but she did not know if T.D. was an
enrolled tribal member. Mother was not an enrolled tribal
member. Mother’s counsel also completed a “Parental
Notification of Indian Status” form stating that Mother had
“Blackfoot” ancestry through T.D., in addition to Cherokee and
Choctaw heritage. The social worker was also in touch with J.S.’s
paternal grandmother, who stated that Father does not have
Native American ancestry.
Approximately a week after filing the petition, the Agency
sent notices to the Cherokee Nation, Choctaw Nation of
Oklahoma, Eastern Band of Cherokee Indians, Jena Band of
Choctaw, Mississippi Band of Choctaw Indians, and United
Keetoowah Band of Cherokee. The notices indicated that Mother
was affiliated with the noticed tribes, as well as the “Blackfeet
Tribe.” The notices listed T.D. as J.S.’s maternal grandmother
and indicated that she was affiliated with each of the noticed
tribes. The notices provided a birth date and state for T.D., but
provided no current or former address information for her. Other
than providing some information about Father, the notices listed
“[n]o information available” for all other relatives, including J.S.’s
paternal grandmother, maternal or paternal grandfathers, and
great grandparents.
Each of the noticed tribes responded, indicating that they
were unable to establish J.S.’s Indian heritage or membership.2
Although the record does not contain proof that the
2
Agency sent notice to the Blackfeet Tribe, the record includes two
3
The juvenile court found that the Act’s requirements had been
satisfied and the Act does not apply to J.S.
Ultimately, the court terminated the parental rights of
Father and Mother and selected adoption as the permanent plan
for J.S.
DISCUSSION
Father contends that the juvenile court’s determination
that the Act is inapplicable must be conditionally reversed
because the Agency failed to conduct an adequate inquiry into the
J.S.’s Indian heritage. We agree.
Section 224.2, subdivision (a) imposes on the court and the
county welfare department “an affirmative and continuing duty
to inquire whether a child” in a dependency proceeding “is or may
be an Indian child.” (See also § 224.2 subds. (b), (e), (j); Isaiah
W., supra, 1 Cal.5th at pp. 10-12.) When there is reason to
believe that a dependency proceeding involves an Indian child,
the court or social worker must inquire further into the child’s
potential Indian status, including by interviewing the parents
and extended family members to gather the necessary
information. (§ 224.2, subd. (e)(1); see also § 224.2, subd. (e)(2).)
Section 224.3, subdivision (a)(5)(C) in turn mandates that the
notice to a tribe include, if known, the names, current and former
addresses, birth dates, places of birth and death, tribal
enrollment information, and other identifying information of the
child’s biological parents, grandparents, and great-grandparents.
Accordingly, the Department had an affirmative and continuing
duty to interview all family members likely to have information
about J.S.’s Native American ancestors. (See In re N.G. (2018) 27
Cal.App.5th 474, 482 (N.G.); In re K.R. (2018) 20 Cal.App.5th
letters from the Blackfeet Tribe indicating that they were unable
to find J.S. on the tribal rolls.
4
701, 707 (K.R.); In re A.G. (2012) 204 Cal.App.4th 1390, 1396-
1397 (A.G.).) The juvenile court likewise “has a responsibility to
ascertain that the agency has conducted an adequate
investigation and cannot simply sign off on the notices . . .
without doing so.” (K.R., supra, at p. 709.) We review
independently whether, on the undisputed facts, the Agency and
the court have satisfied the Act’s requirements. (See
Guardianship of D.W. (2013) 221 Cal.App.4th 242, 250.)
Here, we accept the Agency’s concession that it failed to
conduct an adequate inquiry. After Mother informed the social
worker that maternal grandmother, T.D., had Native American
ancestry, the social worker signed a form acknowledging that she
had “reason to believe the child is or may be an[] Indian child.”
Accordingly, the Agency had a duty to inquire further into J.S.’s
ancestry, including by contacting extended family members. (§
224.2, subd. (e)(2)(A).) Yet, the record contains no indication
that, after the initial conversation with Mother, the Agency made
any effort to investigate her Native American ancestry. There is
no record that the Agency asked Mother for T.D.’s contact
information or attempted to interview her. Indeed, although
Mother provided the social worker not only with the names of her
parents but also her three brothers, the Agency did not document
any attempts to contact anyone in her family other than her
father. The social worker spoke on the phone with Mother’s
father to obtain contact information for Mother at one point, but
there is no record of the social worker asking him about J.S.’s
Native American ancestry. Neither does the record show that the
Agency ever asked Father about J.S.’s ancestry or interviewed
any of J.S.’s other extended family members other than J.S.’s
paternal grandmother.
The notices were also incomplete. They provided limited
information concerning J.S.’s Native American ancestry, listing
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T.D. as J.S.’s maternal grandmother.3 The Agency had T.D.’s
middle name yet omitted it from the notices. The Agency listed
T.D.’s birthdate and state of birth but provided no address or
other identifying information for her. Similarly, the Agency
failed to list information about any lineal ancestors other than
J.S.’s parents and T.D., instead writing “[n]o information
available” in every field. The Agency failed even to include
information about known family members. Although the Agency
was in touch with J.S.’s maternal grandfather and paternal
grandmother, the notices omitted their names and instead stated
“no information available” in the entries for both. Likewise, even
though Mother provided the Agency with the names of her
brothers, the notice left the fields for information concerning
J.S.’s uncles blank. In addition, although the Agency obtained
Father’s current address, they never provided this information to
the tribes.4
3 The record contains a discrepancy concerning the name of
J.S.’s maternal grandmother. The Agency reported at one point
that Mother stated that her mother’s name was “Maggie.”
However, in discussing J.S.’s potential status as an Indian child,
the Agency stated that the “maternal grandmother” was named
T.D.; it is unclear whether the term “maternal grandmother” was
used in reference to J.S. or Mother. In the notices, the Agency
listed T.D. in the space for J.S.’s maternal grandmother.
Obviously, to the extent the notices provided incorrect
information, such errors would further undermine the reliability
of the tribes’ determinations concerning Indian child status.
4 The Agency appears to have sent the notices prior to
learning Father’s current address, establishing contact with J.S.’s
paternal grandfather, or learning the names of his maternal
uncles. However, the Agency had a duty to conduct an adequate
investigation prior to sending out the notices. (§ 224.2, subds. (a)
- (c), (e), (g); § 224.3, subds. (a)-(b).) Further, in light of the
Agency’s continuing duty of inquiry, it also should have provided
updated notices to the tribes that contained the subsequently
obtained information. (See, e.g., §§ 224.3, subd. (a)(5)(C)
6
The Agency’s failure to fulfill its duty of inquiry, as well as
the juvenile court’s failure to ensure that it satisfied that duty,
was error. (See A.G., supra, 204 Cal.App.4th at p. 1397 [error
where notices failed to provide known information regarding
extended family and agency’s reports failed to indicate any efforts
to investigate child’s Indian heritage].) It is only after the Agency
has provided adequate notice to the tribes that the court is
authorized to determine whether the Act applies. (Isaiah W.,
supra, 1 Cal.5th at p. 11; § 224.2, subd. (i)(2).)
The Agency does not contend that the deficiencies were
harmless. Because both the inquiry and the notices were
deficient, it is impossible to know whether an adequate
investigation would have turned up information bearing on the
tribes’ determinations of whether J.S. is an Indian child. (See
N.G., supra, 27 Cal.App.5th at p. 485.) The affirmative duty to
gather relevant information concerning Native American
ancestors is critical to ensuring that the notice requirements are
satisfied in a meaningful way; otherwise, very little of the
required information would ever be “known.” (§ 224.3, subd.
(a)(5)(C); see, e.g., In re Francisco W. (2006) 139 Cal.App.4th 695,
703 (Francisco W.) [“It is essential to provide the Indian tribe
with all available information about the child’s ancestors,
especially the ones with the alleged Indian heritage.”].) For
example, in its letter responding to the notice they received in
this case, the United Keetoowah Band of Cherokee Indians
emphasized that its determination that J.S. was not an Indian
child “is based on the information that was exactly [as] provided
by you. All incorrect or omitted family information could
invalidate this determination.” The letters from the Eastern
[requiring the notice to the tribes to include “known” names and
addresses of the child’s relatives]; 224.3, subd. (b) [notice is
required for every hearing that may result in an order
terminating parental rights, unless a determination that the Act
does not apply is made “in accordance with section 224.2”].)
7
Band of Cherokee Indians, the Cherokee Nation, the Choctaw
Nation of Oklahoma, and the Blackfeet Tribe contained similar
qualifying language.
Finally, the parties agree that a remand for compliance
with the Act is necessary, but they disagree as to whether we
should conditionally reverse the order terminating parental
rights, or conditionally affirm it. We see no reason in this case,
and the Agency has suggested none, to depart from the
established appellate practice of reversing the order terminating
parental rights and remanding for the limited purpose of
ensuring compliance with the Act. (See Francisco W., supra, 139
Cal.App.4th at pp. 705-708 [explaining that the prevalent
practice of limited reversals in cases involving notice failures
under the Act is consistent with principles of appellate practice
as well as the best interests of the child]; see also, e.g., In re A.R.
(2022) 77 Cal.App.5th 197, 208 [conditionally reversing judgment
terminating parental rights and remanding with directions to
comply with inquiry requirements of the Act]; N.G., supra, 27
Cal.App.5th at p. 486 [same]; K.R., supra, 20 Cal.App.5th at pp.
709-710 [same]; A.G., supra, 204 Cal.App.4th at p. 1402
[reversing with instructions for the juvenile court to order the
agency to investigate and obtain information concerning relatives
with Indian ancestry].) A limited remand preserves stability for
the child pending further proceedings to investigate the child’s
status as an Indian child and ensure proper notice to the relevant
tribes. (See Francisco W., supra, at p. 708.) Ultimately, if the
child is not an Indian child, then the termination order is
reinstated, with minimal disruption to the child. (See id. at pp.
708, 710-711.) At the same time, this approach ensures that,
should the child be determined to be an Indian child, the case will
proceed under the heightened protections of the Act, without the
parents having to shoulder the burden of affirmatively moving to
vacate the termination order. (Compare In re Noreen G. (2010)
181 Cal.App.4th 1359, 1395-1396 [declining to reverse
8
termination of parental rights, and providing that upon remand,
should a tribe determine the minors are Indian children, the
parents may petition to vacate the termination order].) Given the
Agency’s undisputed failure to comply with its legal obligations,
reversal is the appropriate remedy. (See In re B.R. (2009) 176
Cal.App.4th 773, 785-786.)
DISPOSITION
The order terminating parental rights is conditionally
reversed. The juvenile court is directed to order the Agency to
investigate J.S.’s potential Native American heritage, obtain
complete and accurate information about his Native American
ancestors, and provide proper notices to the relevant tribes. If a
tribe intervenes after receiving proper notice, the court shall
proceed in accordance with the Act. If no tribes intervene after
receiving proper notice, the order terminating parental rights
shall be reinstated.
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______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
WISEMAN, J.*
A164056
* 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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