In re A.C. CA1/2

Filed 9/11/20 In re A.C. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re A.C. et al., Persons Coming
Under the Juvenile Court Law.
MENDOCINO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
A158779
v.
S.E., (Mendocino County
Super. Ct. No. SCUK-JVSQ-19-
Defendant and Appellant.
18149-01)
S.E. (Mother) appeals from orders made by the juvenile court at a
jurisdiction and disposition hearing concerning her minor children A.C. and
S.C. (Minors). At the hearing, the court found that the Indian Child Welfare
Act (ICWA, 25 U.S.C. § 1901 et seq.) did not apply, and that Minors came
within the jurisdiction of the court under Welfare and Institutions Code1
section 300. The court ordered Minors removed from Mother’s custody and
placed in foster care.
1 Unspecified statutory references are to the Welfare and Institutions
Code.
1
Mother does not challenge the orders on the merits: the sole issue on
appeal is compliance with the inquiry and notice requirements of ICWA. We
remand the matter for compliance with ICWA and otherwise conditionally
affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2019, the Mendocino County Health and Human Services
Agency (Agency) filed a petition alleging that S.C. and A.C., then age 17 and
16 respectively, were at substantial risk of suffering serious, non-accidental
harm inflected by Mother and that Mother was unable to adequately
supervise or protect Minors due to her substance abuse and violence.2 (§ 300,
subds. (a) & (b)(1).) Attached to the petition was a Judicial Council form
ICWA-010, “Indian Child Inquiry Attachment,” for each Minor. Boxes were
checked to indicate that an Indian child inquiry had been made and that each
“child may have Indian ancestry.” The forms stated that Mother had been
questioned about Minors’ possible Indian ancestry and answered “maybe,”
but did not know the tribe.
According to the detention summary that was prepared by the Agency
and read by the court in advance of the June 2019 detention hearing, “The
children stated they may have Indian Ancestry but were unable to identify a
tribe.” At the hearing, the court asked Mother whether she had any Native
American ancestry. Mother responded, “I do. I just don’t know the details of
2 We do not discuss the substance of the factual allegations in the
petition because they are irrelevant to this appeal. The petition also alleged
that Minors’ father failed to supervise or protect Minors from Mother and left
Minors with no provision for support (§ 300, subds. (b)(1) & (g)); that his
whereabouts were unknown; and that efforts to locate him had been
unsuccessful. He had not appeared before the juvenile court by the
jurisdiction and detention hearing and is not a party to this appeal.
2
it because my grandmother didn’t speak English so it was very hard for us to
communicate.” Mother confirmed that she was speaking of her maternal
grandmother and to her knowledge any Indian ancestry would be on her
mother’s side. Mother’s sister V.E. had previously been identified as a person
who might be willing to take placement of the Minors, and the court stated
that the Agency may want to talk to Mother’s sister to see if she knew
something more about Mother’s Indian ancestry. Mother said, “She won’t,”
but had no objection to the Agency making an investigation. The same day
as the detention hearing, Mother signed an initial Judicial Council form
ICWA-020, “Parental Notification of Indian Status,” on which she checked
the box corresponding to “I may have Indian ancestry,” but did not identify
any tribe or band.
The findings and orders for detention, signed by the juvenile court on
June 13, 2019, included the heading “Non-ICWA Case,” and gave the Agency
temporary placement and care of Minors.
On July 3, 2019, a specialist at the Agency sent Judicial Council form
ICWA-030, “Notice of Child Custody Proceeding for Indian Child” to the
Sacramento Area Director of the Bureau of Indian Affairs (BIA). The form
included Mother’s name, current and former address, date of birth, and state
of birth. In addition, the form included the married and maiden names of
Mother’s mother, her date of birth, and state of birth, as well as the name of
Mother’s father, his date of birth and state of birth. The current and former
addresses for Mother’s mother and father were reported as “Unknown, San
Antonio, TX.” As to tribe or band and location, for Mother and her parents
the form stated, “Bureau of Indian Affairs, No Tribe Specified, No Tribe
Specified.”
3
A jurisdiction/disposition report dated August 2, 2019, was submitted
to the court in advance of the jurisdiction/disposition hearing. With respect
to ICWA applicability, the Agency reported as follows: “At the detention
hearing . . ., [Mother] stated that [Minors] may have Native American
heritage with unknown tribes. Therefore, the Agency noticed the [BIA] on
July 3, 2019. [¶] On July 11, 2019, the [BIA] responded by stating
insufficient information to determine Tribal affiliation.” The Agency
recommended the juvenile court find that ICWA does not apply.
The jurisdiction/disposition report also stated that as part of the
Agency’s efforts to identify and assess family members for possible placement
of Minors, a social worker spoke with Minors’ adult full sister (K.C.) and with
Minors’ aunt V.E. on July 8, 2019—several days after the Agency completed
form ICWA-030 and sent it to the BIA. The Agency provided information
about the social worker’s discussions with K.C. and V.E., but there is no
indication that the social worker asked either of them about Minors’ Indian
ancestry. According to the report, V.E. confirmed family members and
provided contact information, and the next day the Agency sent letters to
several family members, including Mother’s mother and siblings.3 There is
no indication that the letters included any inquiries about Indian ancestry.
Nor is there any indication that Indian ancestry was discussed at the Child
Family Team Meeting, at which Minors, K.C. and V.E. were in attendance.
At the jurisdiction/disposition hearing, which was held on August 20,
2019, there was no discussion of ICWA. The court sustained the allegations
3The jurisdiction/deposition report is redacted, but it appears that by
the date of the report the Agency had acquired a street address for Mother’s
mother, whose address had previously been listed as “Unknown, San
Antonio, TX” on form ICWA-030.
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in the petition. The court adopted the Agency’s dispositional findings and
recommendations, and accordingly its order states that ICWA does not apply.
Minors were placed in the care, custody and control of the Agency, and
Mother was ordered to participate in reunification services.
Mother timely appealed.4
DISCUSSION
A. Applicable Law and Standard of Review
The applicable law is summarized in two recent cases, In re D.S. (2020)
46 Cal. App. 5th 1041 (D.S.) and In re Austin J. (2020) 47 Cal. App. 5th 870
(Austin J.): “Congress enacted ICWA in 1978 to address concerns regarding
the separation of Indian children from their tribes through adoption or foster
care placement, usually in non-Indian homes. [Citation.] ICWA established
minimum standards for state courts to follow before removing Indian
children from their families and placing them in foster care or adoptive
homes. [Citations.] In 2006, California adopted various procedural and
substantive provisions of ICWA. [Citation.] In 2016, new federal regulations
were adopted concerning ICWA compliance. [Citation.] Following the
enactment of the federal regulations, California made conforming
amendments to its statutes, including portions of the Welfare and
Institutions Code related to ICWA notice and inquiry requirements. . . .
[Citation.] Those changes became effective January 1, 2019 [citation], and
govern here.
4In connection with its reply brief on appeal, the Agency requested that
we take judicial notice of orders made by the juvenile court in February 2020
terminating reunification services and finding that a section 366.26 hearing
was not in the best interests of Minors. We took the request, which Mother
opposed, under submission for decision with the merits, and now deny it
because the documents are irrelevant to the appeal.
5
“The new statute specifies the steps the Agency and the juvenile court
are required to take in determining a child’s possible status as an Indian
child. An ‘Indian child’ is defined in the same manner as under federal law,
i.e., as ‘any unmarried person who is under age eighteen and is either (a) a
member of an Indian tribe or (b) 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); accord . . . § 224.1, subd. (a) [adopting the federal definition].) The
Agency and the juvenile court have ‘an affirmative and continuing duty’ in
every dependency proceeding to determine whether ICWA applies. (. . .
§ 224.2, subd. (a) [‘The duty to inquire [whether a child is or may be an
Indian child] begins with the initial contact, including, but not limited to,
asking the party reporting child abuse or neglect whether he or she has any
information that the child may be an Indian child.’]; Cal Rules of Court, rule
5.481(a); see [In re] Isaiah W. [2016] 1 Cal.5th [1,] 14 [‘juvenile court has an
affirmative and continuing duty in all dependency proceedings to inquire into
a child’s Indian status’].)
“Section 224.2, subdivision (b) specifies that once a child is placed into
the temporary custody of a county welfare department, such as the Agency,
the duty to inquire ‘includes, but is not limited to, asking the child, parents,
legal guardian, Indian custodian, extended family members,[5] others who
have an interest in the child, and the party reporting child abuse or neglect,
5 “Unless otherwise defined by the law or custom of the Indian child’s
tribe, the term ‘extended family members’ shall mean ‘a person who has
reached the age of eighteen and who is the Indian child’s grandparent, aunt
or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew,
first or second cousin, or stepparent.’ (25 U.S.C. § 1903(2); accord § 224.1,
subd. (c) [adopting ICWA definition of extended family member].)” (D.S.,
supra, 46 Cal.App.5th at p. 1049, fn. 6.)
6
whether the child is, or may be, an Indian child.’ ” (D.S., supra, 46
Cal.App.5th at pp. 1048-1049, fn. omitted.)
“California law also requires ‘further inquiry regarding the possible
Indian status of the child’ when ‘the court, social worker, or probation officer
has reason to believe that an Indian child is involved in a proceeding.’
(§ 224.2, subd. (e).) The Legislature, which added the ‘reason to believe’
threshold for making a further inquiry in 2018, did not define the phrase.
When that threshold is reached, the requisite ‘further inquiry’ ‘includes: (1)
interviewing the parents and extended family members; (2) contacting the
BIA and State Department of Social Services; and (3) contacting tribes the
child may be affiliated with, and anyone else, that might have information
regarding the child’s membership of eligibility in a tribe.’ [Citations.]
“In addition to the inquiry that is required in every dependency case
from the outset and the ‘further inquiry’ required under California law when
there is a ‘reason to believe’ an Indian child is involved, a third step—notice
to Indian tribes—is required under ICWA and California law if and when ‘the
court knows or has reason to know that an Indian child is involved.’ ”6
(Austin J., supra, 47 Cal.App.5th at pp. 883-884.)
“The juvenile court may . . . make a finding that ICWA does not apply
because the Agency’s further inquiry and due diligence was ‘proper and
adequate’ but no ‘reason to know’ whether the child is an Indian child was
6The notice requirement, set forth in section 224.3, is triggered by a
“reason to know” an Indian child is involved, and is distinct from the contact
requirement that is part of the further inquiry requirement in section 224.2,
subdivision (e), which is triggered by a “reason to believe.” (D.S., supra, 46
Cal.App.5th at p. 1049.) “Reason to believe” is not defined by statute. In
contrast, section 224.2, subdivision (d) sets forth at some length the
circumstances in which there is “reason to know” that an Indian child is
involved. (D.S. at pp. 1049-1050.)
7
discovered. (§ 224.2, subds. (i)(2), (g).) Even if the court makes this finding,
the Agency and the court have a continuing duty under ICWA and the court
‘shall reverse its determination if it subsequently receives information
providing reason to believe that the child is an Indian child and order the
social worker or probation officer to conduct further inquiry.’ (Id., subd.
(i)(2).)” (D.S., supra, 46 Cal.App.5th at p. 1050.)
“On appeal, we review the juvenile court’s ICWA findings for
substantial evidence. [Citations.] But where the facts are undisputed, we
independently determine whether ICWA’s requirements have been satisfied.”
(D.S., supra, 46 Cal.App.5th at p. 1051.)
B. Analysis
Mother argues that the Agency and juvenile court failed to comply with
the inquiry and notice requirements of ICWA and that therefore we must
remand for ICWA compliance. We agree.
The record shows that the Agency asked Mother and Minors about
Indian ancestry before the detention hearing, the juvenile court asked
Mother about Indian ancestry at the detention hearing, and Mother and
Minors responded that they may have Indian ancestry, but could not identify
a tribe. The only other inquiry into Minors’ Indian ancestry that appears in
the record was the Agency’s July 3, 2019 contact with the BIA, which
provided the names of Mother’s parents, but not their addresses, and not the
name of Mother’s maternal grandmother, even though Mother had suggested
that her maternal grandmother was the source of her information. As the
Agency concedes, there is no evidence that it contacted any of Minors’
extended family about possible Indian ancestry, even though such inquiry
was required by section 224.2, subdivision (b) once Minors were placed in the
Agency’s temporary custody at the detention hearing, and even though the
8
juvenile court had explained to Mother at the detention hearing that the
Agency may want to speak with Mother’s sister about possible Indian
ancestry. Thus, there is nothing in the record to indicate that the initial
inquiry requirements of ICWA were met, quite apart from requirements of
further inquiry under section 224.2, subdivision (e) or notice under section
224.3. Accordingly, there is no evidence in the record, substantial or
otherwise, to support the juvenile court’s finding that ICWA does not apply,
and we remand to the juvenile court, instructing it to direct the Agency “to
conduct a meaningful investigation into [Mother’s] claim of Indian ancestry.”
(In re Michael V. (2016) 3 Cal. App. 5th 225, 236 (Michael V.).)
As Mother points out, when appellate courts remand matters with
directions to comply with ICWA, they may conditionally affirm or
conditionally reverse the juvenile court’s orders. (See, e.g., Michael V., supra,
3 Cal.App.5th at p. 236 [conditionally affirming]; In re Elizabeth W. (2004)
120 Cal. App. 4th 900, 909 [conditionally reversing].) In the circumstances
before us, where Mother’s parental rights have not been terminated and
where ICWA compliance is the only challenge to the juvenile court’s orders,
we conditionally affirm. (In re Veronica G. (2007) 157 Cal. App. 4th 179, 187
[concluding that reversal for failure to comply with ICWA is appropriate only
where parental rights have been terminated].)
DISPOSITION
The Agency’s request for judicial notice is denied. The juvenile court’s
finding that ICWA does not apply is vacated. The case is remanded to the
juvenile court to order the Agency to conduct an ICWA inquiry and provide
sufficient information for the juvenile court to determine whether ICWA
applies, and, if necessary following the inquiry and determination, to order
ICWA notice and proceed in compliance with ICWA. If, after proper inquiry
9
and notice, no response is received from a tribe indicating that Minors are
Indian children, the inapplicability finding shall be reinstated. If a tribe
determines that Minors are Indian children, the juvenile court shall proceed
in conformity with ICWA, and Minors, Mother, and the tribe may petition the
court to invalidate any orders that violated ICWA. (See 25 U.S.C. § 1914.) In
all other respects, the orders of the juvenile court are affirmed.
10
_________________________
Miller, J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A158779, Mendocino County Health and Human Services Agency v. S.E.
11