In re O.M. CA2/6

Filed 6/23/23 In re O.M. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re O.M. et al., Persons 2d Juv. No. B324157
Coming Under the Juvenile (Super. Ct. Nos. 20JV00064,
Court Law. 20JV00065)
(Santa Barbara County)
SANTA BARBARA COUNTY
CHILD PROTECTIVE
SERVICES,
Plaintiff and Respondent,
v.
MARCO M. et al.,
Defendants and Appellants.
Marco M. (father) appeals the juvenile court’s order
terminating his parental rights to his daughter, D.R. and
selecting adoption as the permanent plan. (Welf. & Inst. Code,
§ 366.26.)1 Lisa Z. (mother) separately appealed the juvenile
court’s orders as to D.R., and D.R.’s older half-sister, O.M.
Mother’s opening brief joins in father’s arguments. Father and
mother’s sole contention on appeal is that the Santa Barbara
County Child Welfare Services (“CWS”) and the juvenile court did
not comply with the duty to inquire further whether the children
are Indian children pursuant to the Indian Child Welfare Act of
1978 (ICWA) (25 U.S.C., § 1901 et seq.) and related California
law.2 We conditionally affirm and remand for compliance with
ICWA.
Facts and Procedural History
In April 2019, the San Diego County Child Welfare Services
(“agency”) filed a dependency petition pursuant to section 300,
subdivision (b) on behalf of 9-year-old D.R. and 14-year-old O.M.
The petition alleged mother suffered from mental illness and had
recently been placed on an involuntary psychiatric hold pursuant
to section 5150. The children remained in mother’s care.
At the detention hearing, mother’s counsel stated that
mother had submitted an ICWA-020 form and indicated she had no
known Indian ancestry. The dependency petition filed with the
juvenile court also included an Indian Child Inquiry Attachment,
ICWA-010 form, which indicated that mother denied having Indian
ancestry.
1All further undesignated statutory references are to the
Welfare and Institutions Code.
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same
for consistency, even though we recognize that other terms, such
as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In
re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
2
In May 2019, the agency filed a jurisdiction/disposition
report with the juvenile court. The report stated that mother was
asked the following questions: “(1) Do you have any Native
American heritage? [¶] (2) Do your grandparents or any other
extended family have Native American heritage? Are you or any
of your extended family members of an Indian tribe? [¶] (3)
Have you or any of your family members ever received services
from an Indian tribe, such as educational, financial, counseling,
medical, etc.? [¶] (4) Have you or any of your family members
ever participated in tribal activities, events, lived on [a]
reservation, [or] spoken an Indian language?” Mother answered
“no” to each of these questions.
The agency also sent an ICWA questionnaire to each of the
children’s fathers.3 Father provided a written response and
answered “no” to each of the questions. He did not identify
anyone who may have additional information regarding possible
Indian ancestry.
At the jurisdictional hearing, both fathers made their
initial appearance and each denied having Indian ancestry. The
juvenile court found that ICWA did not apply. The juvenile court
also granted father’s request for paternity testing.
In July 2019, the juvenile court conducted a contested
jurisdictional and dispositional hearing and found father was
D.R.’s biological father.
In January 2020, the agency moved to transfer the case to
Santa Barbara County. The transfer out motion reflected the San
Diego County Juvenile Court’s finding that ICWA did not apply.
In March 2020, the Santa Barbara County Juvenile Court accepted
transfer of the case from San Diego County.
3 The father of O.M. is not a party to this action.
3
In March 2021, CWS secured a protective custody warrant
pursuant to section 340 and detained the children due to
concerns regarding mother’s paranoid behavior and failure to
comply with her case plan. CWS filed a supplemental petition
pursuant to section 387. At the hearing in April 2021, the
juvenile court sustained the petition, removed the children from
mother, and ordered reunification services for mother.
CWS subsequently prepared an ICWA matrix, which
reflected that in March 2021, CWS interviewed mother who
disclosed she was adopted and therefore was unsure of her
heritage. Mother also stated that she had taken an Ancestry.com
test, which “showed traces” of Indian ancestry. CWS spoke with
two of mother’s adult daughters, D.R.’s half siblings, who denied
having Indian ancestry. CWS also spoke with maternal second
cousin who did not have any information regarding mother’s
biological family but she reported that “as to the maternal adoptive
family, no one in the family to be a registered member; however,
they knew they had Navajo and Apache [a]ncestry.” (Sic.)
In October 2022, at the section 366.26 hearing, the juvenile
court denied mother’s request for a contested hearing and
terminated parental rights. At that same hearing, CWS reviewed
the ICWA inquiry process to date and requested the juvenile court
find that ICWA did not apply. The juvenile court did not expressly
state the ICWA did not apply but made the requested finding as
reflected in the “Minute Order/Findings and Orders.”
ICWA Inquiry and Notice
Father and mother contend the orders terminating their
parental rights should be conditionally reversed and the matter
remanded to the juvenile court for further inquiry. We agree.
4
We generally review ICWA findings for substantial
evidence. ( In re J.K. (2022) 83 Cal.App.5th 498, 504.) “Because
the material facts at issue here are undisputed, ‘“we review
independently whether ICWA requirements have been
satisfied.”’” (Ibid.)
ICWA defines 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.” (25
U.S.C. § 1903(4) & (8); § 224.1, subd. (a).) The juvenile court and
the county child welfare department have an affirmative and
continuing duty to inquire whether a child subject to dependency
proceedings is or may be an Indian child. (§ 224.2, subd. (a); Cal.
Rules of Court, rules 5.481(a) & 5.668(c).)
“‘The continuing duty to inquire whether a child is or may
be an Indian child “can be divided into three phases: the initial
duty to inquire, the duty of further inquiry, and the duty to
provide formal ICWA notice.”’” (In re Antonio R. (2022) 76
Cal.App.5th 421, 429.)
The duty to inquire begins with the initial contact and
obligates the juvenile court and the child services agency to ask
the child, parents, extended family members, and others who
have an interest in the child, whether the child is, or may be, an
Indian child. (§ 224.2, subds. (a)-(c).)
The duty of further inquiry is triggered if the child services
agency or the juvenile court has “reason to believe that an Indian
child is involved in a proceeding.” (§ 224.2, subd. (e).) The
Legislature defined “reason to believe” as having “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.
5
Information suggesting membership or eligibility for membership
includes, but is not limited to, information that indicates, but
does not establish, the existence of one or more of the grounds for
reason to know enumerated in paragraphs (1) to (6), inclusive, of
subdivision (d).” (§ 224.2, subd. (e)(1), italics added.)
Those enumerated grounds are as follows: “(1) A person
having an interest in the child, including the child, an officer of
the court, a tribe, an Indian organization, a public or private
agency, or a member of the child’s extended family informs the
court that the child is an Indian child. [¶] (2) The residence or
domicile of the child, the child’s parents, or Indian custodian is on
a reservation or in an Alaska Native village. [¶] (3) Any
participant in the proceeding, officer of the court, Indian tribe,
Indian organization, or agency informs the court that it has
discovered information indicating that the child is an Indian
child. [¶] (4) The child who is the subject of the proceeding 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. [¶] (6) The court is informed that either parent or
the child possess an identification card indicating membership or
citizenship in an Indian tribe.” (§ 224.2, subd. (d).)
When the “reason to believe” threshold is reached, the
requisite further inquiry includes, but is not limited to,
interviewing the parents, extended family members, contacting
the Bureau of Indian Affairs and State Department of Social
Services for assistance in identifying the tribes in which the child
may be a member or eligible for membership, contacting the
tribes and any other person that may reasonably be expected to
have information regarding the child’s membership status or
eligibility. (§ 224.2, subd. (e)(2)(A)-(C).)
6
Here, citing In re Robert F. (2023) 90 Cal.App.5th 492,
(Robert F.) CWS contends it had no duty to inquire of extended
family members about any Indian ancestry because the children
were detained under a protective custody warrant pursuant to
section 340, not section 306, which is the prerequisite to the
section 224.2, subdivision (b) extended family member inquiry
requirement. (See Robert F., at pp. 497, 500, 504, citing In re
Adrian L. (2022) 86 Cal.App.5th 342 (conc. opn. of Kelley, J.).)
We need not decide whether we agree with the holding in
Robert F. because even if there was no duty of initial inquiry,
once information is received that suggests a child may be an
Indian child, we do agree that the agency “cannot ignore the
information.” (Robert F., supra, 40 Cal.App.5th at p. 504.) And
even if a claim of “Indian ancestry” alone is insufficient to impose
a duty of further inquiry, (see In re Austin J. (2020) 47 Cal.App.
5th 870, 888-889), the cousin did not merely report the family
had “Indian Ancestry.” She not only stated that the family
“knew” there was Indian Ancestry, but she identified the two
tribes by name. The “reason to believe” standard “should be
broadly interpreted.” (In re S.R. (2021) 64 Cal.App.5th 303, 317.)
The maternal cousin’s certainty that the maternal family had
Apache and Navajo ancestry gives reason to believe the children
may be Indian children and triggers the duty to conduct a further
inquiry. (§ 224.2, subd. (e)(2)(A)-(C).)
The duty to conduct a further inquiry exists despite the fact
that the ancestry is through mother’s adoptive family. ICWA and
its application to Indian children is not limited solely to children
who are the biological descendants of a federally recognized tribe.
“Tribal membership is treated under the ICWA as a matter of
political affiliation rather than racial origin . . . . In incorporating
7
the ICWA requirements into state law, the California Legislature
explicitly found and declared that tribal membership is a
question of political affiliation and that a tribe’s determination of
its membership is binding on the state.” (In re B.R. (2009) 176
Cal.App.4th 773, 783.)
“Because it had reason to believe an Indian child may be
involved, the [agency] was obligated . . . to ‘make further inquiry
regarding the possible Indian status of the child’ and to ‘make
that inquiry as soon as practicable.’” (In re Rylei S. (2022) 81
Cal.App.5th 309, 319.)
The agency failed to satisfy its duty. There is nothing in
the record suggesting that the agency conducted any further
investigation in response to the cousin’s information. The agency
did not attempt to verify this information with other family
members nor did it make informal contact with the Navajo or
Apache tribes.
The error was not harmless. There is no indication any
effort was ever made to make additional inquiries of other known
and readily available relatives regarding the cousin’s
information. The mother reported that her parents lived in
Vista, California but the record does not show any attempt to
contact them. In fact, it appears despite asking for and receiving
this information from the cousin, the agency did nothing.
“Because we do not know what we do not know” (In re Rylei S.,
supra, 81 Cal.App.5th at p. 324) and because there is readily
obtainable information that is likely to bear on whether D.R. is
an Indian child, (In re Benjamin M. (2021) 70 Cal.App.5th 735,
744) a limited remand is required.
8
Disposition
The judgment (orders terminating parental rights and
selecting adoption as the permanent plan) is conditionally
affirmed. The matter is remanded to the juvenile court for the
limited purpose of allowing the agency and the juvenile court to
satisfy their statutorily-mandated inquiry duties under section
224.2. If, after satisfying those duties, the juvenile court
concludes that D.R. is not an Indian child, it shall enter a new
order finding ICWA does not apply and the judgment (order
terminating parental rights) shall become final as of that date.
If, the juvenile court finds that D.R. is an Indian child, and that
ICWA does apply, it shall enter an order to that effect and the
judgment (order terminating parental rights) is reversed as of
that date and the court shall hold a new section 366.26 hearing in
compliance with ICWA and related California law.
NOT TO BE PUBLISHED.
CODY, J.
I concur:
GILBERT, P. J.
9
YEGAN, J., Dissenting:
I respectfully dissent. As I explained in my dissenting
opinion in In re J.K. (2022) 83 Cal.App.5th 498, the Court of
Appeal is tasked to affirm a judgment unless there has been a
miscarriage of justice, in which case we reverse. There is no
showing of an actual miscarriage of justice in this case. If there
were some facts here that would cause a reasonable person to
have a “reason to believe” the children were Indian children
within the meaning of the Indian Child Welfare Act of 1978
(ICWA) (25 U.S.C., § 1901 et seq.), I would not vote to
conditionally reverse. Instead, there is only speculation that
further inquiry may or may not reveal some evidence that the
children are Indian children. This is insufficient to support a
reversal of the juvenile court’s judgment.
The goal of ICWA is laudable. However, I entertain a real
doubt that the cases automatically reversing a judgment because
of an ICWA violation accomplish the goal of ICWA. Instead, the
delays caused by ICWA reversals are costly and in most cases,
counterproductive. Dependent children need stability and a
sense of permanency. They should not have to wait because of
the delay caused by reversals of judgments which, in the vast
majority of cases, will not result in placement with an Indian
family.
Although we strive to uphold the letter and spirit of a
statute, ICWA does not trump the Constitution. Appellate courts
must follow the Constitutional mandate that reversal is only
required where there is a miscarriage of justice. I would affirm.
NOT TO BE PUBLISHED.
YEGAN, J.
Gustavo E. Lavayen, Judge
Superior Court County of Santa Barbara
______________________________
Jesse McGowan, under appointment by the Court of Appeal,
for Defendant and Appellant, Marco M.
Jesse Frederic Rodriguez, under appointment by the Court
of Appeal, for Defendant and Appellant, Lisa Z.
Rachel Van Mullem, County Counsel, Lisa A. Rothstein,
Snr. Deputy, for Plaintiff and Respondent.