In re J.L. CA4/3

Filed 5/2/22 In re J.L. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re J.L., et al., Persons Coming Under
the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G060660
Plaintiff and Respondent,
(Super. Ct. No. 21DP0581-583)
v.
OPINION
S.V. and T.L.,
Defendants and Appellants.
Appeal from a judgment of the Superior Court of Orange County, Antony
C. Ufland, Judge. Reversed and remanded.
Richard L. Knight, under appointment by the Court of Appeal, for
Defendant and Appellant S.V.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for
Defendant and Appellant T.L.
Leon J. Page, County Counsel, Karen L. Christensen and Deborah B.
Morse, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the minors.
* * *
Parents S.V. (Mother) and T.L. (Father) appeal from the juvenile court’s
jurisdiction and disposition orders concerning their three children J.L., T.L., Jr. (Jr.), and
B.L. Both parents contend the Orange County Social Services Agency (SSA) and the
juvenile court failed to comply with their respective duties under the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law
(Welf. & Inst. Code, § 224 et seq.).1 We agree. We conditionally reverse the court’s
orders and remand for compliance with ICWA.
FACTS2
On May 23, 2021, the police were called regarding a domestic argument at
the home where Mother and Father lived with their three children. SSA subsequently
initiated an investigation into the children’s well-being and interviewed both parents.
SSA applied to the juvenile court for a protective custody warrant for the children and in
its application stated both parents “denied ICWA.”
1
All further statutory references are to the Welfare and Institutions Code
unless otherwise specified.
2
Our summary of the facts is limited to those needed for resolution of the
ICWA issues raised on appeal and to provide relevant context.
2
A few days later, SSA filed a juvenile dependency petition (§ 300)
concerning all three children and a detention report. Both documents indicated a social
worker had asked Mother and Father about the children’s Indian status and the parents
had denied Indian heritage.3
At the detention hearing, Mother and Father each filed a Parental
Notification of Indian Status Judicial Council form ICWA-020. On her form, Mother
indicated she had no Indian ancestry as far as she knew. On his form, Father indicated he
may be a member or eligible for membership in a federally recognized Indian tribe but he
did not list a tribe or band affiliation in the space provided. The juvenile court noted the
omission of the tribe name on the form and asked Father’s counsel which tribe Father
might belong to. Counsel stated Father did not know the name of the tribe but the
paternal great-grandmother might have that information. The court found ICWA may
apply and instructed SSA to continue to investigate with Father and his relatives
regarding any possible Indian heritage. The court also instructed Father to provide any
information he subsequently received to his social worker.
The children were detained by the juvenile court and placed with relatives.
Initially, B.L. and J.L. were placed with their maternal aunt; Jr. was placed with his
maternal grandmother. About a month later, the children were placed with a foster
family.
SSA filed its jurisdiction and disposition report in July 2021. The report
stated both parents had denied any Indian heritage when initially interviewed by a social
worker. The report did not otherwise address ICWA or detail any inquiries conducted by
SSA concerning the children’s potential Indian heritage.
3
Because ICWA and related California statutes use the term “Indian,” we do
the same for consistency, but we acknowledge other terms are often preferred. (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin).)
3
A contested jurisdiction and disposition hearing was held in August 2021.
At the hearing, there was no discussion of ICWA, and the juvenile court made no
findings concerning its application to the proceedings. The court sustained allegations
under section 300 and declared the children dependents of the court (§ 360, subd. (d)).
The juvenile court ordered reunification services for the parents and calendared a
six-month review hearing.
DISCUSSION
Both parents contend SSA and the juvenile court failed to comply with their
duties of inquiry under ICWA and related state law. Each parent identifies a different
failure.4 Mother argues SSA failed to fulfill its duty of initial inquiry under section
224.2, subdivision (b), because it did not ask her extended family members whether the
children may have Indian heritage. Father argues SSA failed to fulfill its duty of further
inquiry under section 224.2, subdivision (e)(1), after he provided them reason to believe
the children were Indian children. Both assert the juvenile court failed to ensure the
appropriate inquiries were conducted and any implied finding ICWA does not apply in
this matter is not supported by substantial evidence. We agree. The record shows neither
SSA nor the juvenile court complied with their respective duties. Accordingly, we must
conditionally reverse the court’s jurisdiction and disposition orders and remand for the
juvenile court and SSA to comply with these laws.5
4
Each parent also joins in the arguments contained in the other’s briefs to the
extent they are beneficial. (Cal. Rules of Court, rule 8.200(a)(5).)
5
After Mother and Father filed their opening briefs, SSA filed (1) a request
for judicial notice or alternatively a motion to take additional evidence, and (2) a motion
to dismiss the appeal as moot. With its request for judicial notice, SSA presented two
juvenile court orders filed in December 2021. These orders reflect that the juvenile court
found ICWA does not apply in this case based on reports submitted by SSA detailing its
efforts to conduct the ICWA inquiries. SSA acknowledges it had not completed its
ICWA inquiry prior to the disposition hearing but asserts its subsequent actions and the
4
Standard of Review
“‘[W]here the facts are undisputed, we independently determine whether
ICWA’s requirements have been satisfied.’ [Citations.] However, ‘we review the
juvenile court’s ICWA findings under the substantial evidence test, which requires us to
determine if reasonable, credible evidence of solid value supports the court’s order.
[Citations.] We must uphold the court’s orders and findings if any substantial evidence,
contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of
affirmance.’ [Citations.] The appellant . . . has the burden to show the evidence was not
sufficient to support the ICWA finding. [Citation.]” (In re D.F. (2020) 55 Cal.App.5th
558, 565 (D.F.).)
ICWA Inquiry and Notice Requirements
“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 that a state court . . . must follow before removing an Indian
child from his or her family.’ [Citation.] Both ICWA and the Welfare and Institutions
Code define an ‘Indian child’ 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.’” (D.F., supra, 55 Cal.App.5th
at p. 565, fn. omitted.) Due to historic noncompliance with ICWA, the state Legislature
incorporated ICWA’s requirements into California statutory law in 2006. (Id. at p. 565,
fn. 4.) Following changes in 2016 to the federal regulations concerning ICWA,
California made conforming amendments to its statutes, effective in 2019. (In re D.S.
juvenile court’s findings resolve the parents’ claims and render their appeals moot. We
disagree. SSA’s subsequent actions and the juvenile court’s findings are not dispositive
of Mother and Father’s appellate claims, and therefore, we deny SSA’s request for
judicial notice and its motion to dismiss.
5
(2020) 46 Cal.App.5th 1041, 1048 (D.S.).) Section 224.2 now “creates three distinct
duties regarding ICWA in dependency proceedings.” (D.S., supra., at p. 1052.) Each
duty is sequentially triggered by different specific factual circumstances. (In re J.S.
(2021) 62 Cal.App.5th 678, 688; D.F., supra, 55 Cal.App.5th at p. 566.)
First is the initial duty to inquire. (§ 224.2, subd. (a).) This duty arises at
the outset, when SSA receives a report of child abuse or neglect and initiates an
investigation. (Ibid.) At this stage, SSA must ask “the party reporting child abuse or
neglect whether the party has any information that the child may be an Indian child.”
(Ibid.) But the duty to inquire does not end there. The court and SSA have “an
affirmative and continuing duty to inquire” whether a child, who is subject to a
dependency petition, “is or may be an Indian child.” (Ibid.)
If a child is placed in temporary custody, SSA “has a duty to inquire
whether that child is an Indian child.” (§ 224.2, subd. (b).) This “[i]nquiry includes, but
is not limited to, asking the child, parents, legal guardian, Indian custodian, extended
family members, [and] others who have an interest in the child, . . . whether the child is,
or may be, an Indian child and where the child, the parents, or Indian custodian is
domiciled.” (Ibid.)
An initial duty of inquiry is similarly imposed on the juvenile court. At
each parent’s first court appearance, the court must: (1) ask whether the parent “knows or
has reason to know that the child is an Indian child” (§ 224.2, subd. (c)); (2) order each
parent to complete Parental Notification of Indian Status Judicial Council form
ICWA-020 (Cal. Rules of Court, rule 5.481(a)(2)(C)); and (3) direct the parties to inform
the court if they thereafter learn information that provides reason to know the child is an
Indian child (§ 224.2, subd. (c)).
6
Next, a duty of further inquiry arises when SSA or the juvenile court has “reason to
believe” the proceedings involve an Indian child but “does not have sufficient
information to determine that there is reason to know that the child is an Indian child.”
(§ 224.2, subd. (e).) As recently clarified by the Legislature, a “reason to believe” exists
when the court or SSA “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.” (Id., subd.
(e)(1).) If there is a reason to believe an Indian child is involved, the court or SSA “shall
make further inquiry regarding the possible Indian status of the child, and shall make that
inquiry as soon as practicable.” (Id., subd. (e); In re Y.W. (2021) 70 Cal.App.5th 542,
552 (Y.W.).)
The further inquiry required includes, without limitation, the following:
(1) interviewing the parents and extended family members to gather specified
information (§ 224.2, subd. (e)(2)(A)); (2) “[c]ontacting the Bureau of Indian Affairs and
the State Department of Social Services for assistance in identifying the names and
contact information of the tribes in which the child may be a member, or eligible for
membership in” (id., subd. (e)(2)(B)); and (3) contacting the tribe or tribes reasonably
expected to have information to determine the child’s membership status or eligibility
(id., subd. (e)(2)(C)).
The final duty component arises when the court or SSA has “reason to
know” the child is an Indian child. (D.F., supra, 55 Cal.App.5th at p. 567.) A “reason to
know” exists if one of the following circumstances is present: “(1) A person having an
interest in the child . . . informs the court that the child is an Indian child; [¶] (2) The
residence . . . of the child [or] the child’s parents . . . is on a reservation or in an Alaska
Native village; [¶] (3) Any participant in the proceeding . . . informs the court that it has
discovered information indicating that the child is an Indian child; [¶] (4) The child . . .
gives the court reason to know that the child is an Indian child; [¶] (5) The court is
informed that the child is or has been a ward of a tribal court; [or] [¶] (6) The court is
7
informed that either parent or the child possess[es] an identification card indicating
membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d).)
“Once [SSA] or the juvenile court has a reason to know an Indian child is
involved, notice pursuant to ICWA must be sent to the pertinent tribe(s) via registered or
certified mail. . . . [¶] It is this ‘notice requirement, which . . . 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.’” (D.F., supra, 55 Cal.App.5th at p. 568, italics
omitted.)
“‘“The juvenile court must determine whether proper notice was given
under ICWA and whether ICWA applies to the proceedings.”’ [Citation.]” (Y.W., supra,
70 Cal.App.5th at p. 552.) “If the court makes a finding that proper and adequate further
inquiry and due diligence as required in [section 224.2] have been conducted and there is
no reason to know whether the child is an Indian child, the court may make a finding that
[ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the
evidence.” (§ 224.2, subd. (i)(2).)
Analysis
Initial Inquiry into Mother’s Possible Indian Ancestry
Mother argues SSA’s initial inquiry was deficient because the agency failed
to inquire of her extended family members whether they had knowledge of family lineage
indicating the children may have Indian heritage or membership. We agree.
The record indicates Mother was the only person SSA questioned
concerning the children’s possible Indian ancestry through their maternal line. SSA
asserts because Mother denied Indian heritage when questioned by SSA and on her
Judicial Council form filed in the juvenile court, it had no duty to make any additional
inquiries concerning the children’s potential maternal Indian heritage. Not so.
8
SSA’s duty of initial inquiry did not end simply because Mother disclaimed
any Indian ancestry at the beginning of the dependency proceedings. Under section
224.2, subdivision (b), SSA had a duty to interview maternal “extended family members”
as defined by ICWA and others who had an interest in the children to determine whether
the children may qualify as Indian children.6 (See Y.W., supra, 70 Cal.App.5th at pp.
553-554.) “[T]he burden of coming forward with information to determine whether an
Indian child may be involved . . . does not rest entirely — or even primarily — on the
child and his or her family. Juvenile courts and child protective agencies have ‘an
affirmative and continuing duty to inquire’ whether a dependent child is or may be an
Indian child. [Citations.]” (In re Michael V. (2016) 3 Cal.App.5th 225, 233.) Because
Mother herself may have been unaware of her Indian ancestry, adequate investigation of
extended family members was essential. (Y.W., supra, 70 Cal.App.5th at pp. 553-554;
see Benjamin, supra, 70 Cal.App.5th at p. 744 [child protective agency “failed its duty of
inquiry by not asking ‘extended family members’” whether child had Indian ancestry on
paternal side]; In re S.R. (2021) 64 Cal.App.5th 303, 314-315 [child protective agency
had duty to inquire of “all relevant individuals” including interviewing “extended family
members”].)
Here, SSA could have easily questioned the children’s maternal
grandmother and aunt and obtained potentially meaningful information concerning the
family’s Indian ancestry. The children were initially placed with these family members
and SSA had contact with them on multiple occasions from the time the children were
detained until the jurisdiction and disposition hearing. However, it appears SSA never
6
ICWA provides an “‘extended family member’ shall be as defined by the
law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be
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).)
9
asked them about the children’s possible Indian ancestry on the maternal side of the
family.7 Thus, SSA failed to satisfy its duty of inquiry under section 224.2,
subdivision (b).
SSA asserts even if it erred by failing to inquire of maternal extended
family members during the initial ICWA inquiry, Mother’s claim should be rejected
nevertheless because she has not made a “good-faith claim” on appeal that the children
have Indian heritage and she cannot show prejudice. While this argument has some
support (see In re Austin J. (2020) 47 Cal.App.5th 870, 888 (Austin)), we believe
California law clearly imposes upon SSA a duty to inquire of the children’s extended
family members and others who have an interest in the children as to whether the
children have Indian ancestry. (§ 224.2, subd. (b); Cal. Rules of Court, rule 5.481(a)(1);
see Y.W., supra, 70 Cal.App.5th at pp. 553-554 [concluding Austin’s holding is
inconsistent with § 224.2, subds. (a), (b)].) “A parent . . . does not need to assert he or
she has Indian ancestry to show a child protective agency’s failure to make an appropriate
inquiry under ICWA and related law is prejudicial.” (Y.W., supra, 70 Cal.App.5th at p.
556; accord, In re A.R. (2022) __Cal.App.5th__ [2022 Cal.App.Lexis 291] [failure to
conduct required ICWA inquiry constitutes miscarriage of justice].)
SSA’s failure to conduct an adequate inquiry into the children’s possible
Indian heritage makes it impossible for Mother to demonstrate prejudice. (See Y.W.,
supra, 70 Cal.App.5th at p. 556 [error prejudicial where child protective agency failed to
conduct adequate initial inquiry]; In re H.V. (2022) 75 Cal.App.5th 433, 438 [where
record demonstrates child protective agency failed to discharges its initial inquiry duty,
court concluded error was prejudicial and reversible absent showing by mother];
Benjamin, supra, 70 Cal.App.5th at p. 744 [reversal required where agency failed its duty
of initial inquiry and record indicates “there was readily obtainable information that was
7
Our record does not indicate whether SSA had contact information for
other maternal extended family members.
10
likely to bear meaningfully upon whether the child is an Indian child”].) Thus, SSA’s
failure to conduct an adequate initial inquiry is prejudicial and reversible error.
Further Inquiry of Father’s Claim the Children may be Indian Children
SSA and the juvenile court have a duty of further inquiry under section
224.2, subdivision (e), because they have reason to believe the children may be Indian
children based on Father’s ICWA claim at the detention hearing. Father argues SSA
failed to fulfill its duty of further inquiry prior to the children being removed at the
disposition hearing. SSA concedes it failed to complete the further inquiry process prior
to the disposition hearing, and we accept this concession.
Father’s claim of possible Indian heritage “provided reason to believe
Indian children might be involved in these dependency proceedings and triggered
[SSA’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.) However, prior to the disposition hearing, SSA failed to submit information to the
juvenile court reflecting any further inquiry concerning the children’s status under
ICWA. Indeed, SSA’s jurisdiction and disposition report omitted the fact that Father had
claimed possible Indian heritage at the detention hearing; the report instead stated both
parents had denied Indian heritage when initially interviewed by a social worker. Thus,
SSA failed to satisfy its duty of further inquiry under section 224.2, subdivision (e).
Juvenile Court’s Failure to Comply with ICWA and Related State Law
The juvenile court, for its part, had a responsibility to ascertain whether
SSA had conducted an adequate investigation into the children’s possible Indian ancestry,
and the court failed to fulfill this duty. (In re K.R. (2018) 20 Cal.App.5th 701, 709; Y.W.,
supra, 70 Cal.App.5th at p. 555.) Prior to declaring the children dependent and removing
11
them from their parents’ custody at the jurisdiction and disposition hearing, the court
made no inquiries or findings regarding ICWA. This was error.
“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 [parents’] claims of ICWA error prejudicial and reversible.”
(In re N.G. (2018) 27 Cal.App.5th 474, 484.) This is consistent with ICWA’s mandate
that as a prerequisite to concluding ICWA does not apply, a court must find “proper and
adequate further inquiry and due diligence . . . [has] been conducted and there is no
reason to know whether the child is an Indian child.” (§ 224.2, subd. (i)(2).)
“‘Noncompliance with ICWA has been a continuing problem in juvenile
dependency proceedings conducted in this state, and, by not adhering to this legal
requirement, we do a disservice to those vulnerable minors whose welfare we are
statutorily mandated to protect.’” (In re A.G. (2012) 204 Cal.App.4th 1390, 1401.)
Because SSA failed to perform its duty of initial inquiry concerning the children’s
possible maternal Indian ancestry (§ 224.2, subd. (b)) and failed to perform its duty of
further inquiry concerning their possible paternal Indian ancestry (id., subd. (e)), we must
remand the matter to the juvenile court for further proceedings on this issue.
On remand, the juvenile court must direct SSA to promptly comply with
ICWA and state law as follows:
(1) SSA shall conduct an inquiry investigation into the children’s Indian
ancestry, including making diligent efforts to interview the children’s maternal extended
family members as defined by section 224.1, subdivision (c), and 25 U.S.C. section
1903(2), for the purpose of obtaining information required for ICWA notice compliance.
(§ 224.2; Cal. Rules of Court, rule 5.481.)
12
(2) If that initial inquiry gives SSA reason to believe the children are Indian children
through their maternal ancestry, then as soon as practicable, it shall make further inquiry
regarding the children’s possible Indian status. (§ 224.2, subd. (e).)
(3) In conducting its further inquiry as to the children’s potential Indian
heritage on Father’s side, SSA must interview Father and paternal extended family
members to gather the information required for ICWA notice compliance. (§ 224.2,
subd. (e)(2)(A).) This includes obtaining complete identifying information for the
children’s great-grandmother, whom Father believed may have been eligible for
membership in a federally recognized tribe, as this information is critical for the tribes to
determine whether the children are Indian children. (§ 224.3; In re N.G., supra,
27 Cal.App.5th at p. 482.) After obtaining the requisite information from the paternal
family members, SSA shall contact “the Bureau of Indian Affairs and the State
Department of Social Services for assistance in identifying the names and contact
information of the tribes in which the child may be a member, or eligible for membership
in” (§ 224.2, subd. (e)(2)(B)), and contact the tribe or tribes reasonably expected to have
information to determine the children’s membership status or eligibility
(id., subd. (e)(2)(C)).
(4) SSA must document its investigation and in its filings in the juvenile
court, provide a detailed description of all inquiries undertaken. (Cal. Rules of Court,
rule 5.481(a)(5).)
(5) The juvenile court must determine on the record whether the ICWA
inquiry and notice requirements, if applicable, have been satisfied and whether evidence
establishes the children are Indian children. If the juvenile court determines ICWA does
not apply, its jurisdiction and disposition orders shall be immediately reinstated. If the
requisite inquiry results in notification from a tribe or the Bureau of Indian Affairs the
children are Indian children, the court must conduct a new disposition hearing, as well as
all further proceedings, in compliance with ICWA and related California law.
13
DISPOSITION
SSA’s request for judicial notice and motion to dismiss are denied. The
juvenile court’s jurisdiction and disposition orders are conditionally reversed, and the
matter is remanded with directions to the juvenile court to direct SSA to comply with the
inquiry and notice provisions of ICWA consistent with this opinion. If after proper
inquiry and notice it is determined ICWA does not apply, the court’s orders shall be
reinstated.
MARKS, J.*
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
14