Filed 10/16/20 In re D.M. CA4/1
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COURT OF APPEAL, FOURH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.M. et al., Persons Coming
Under the Juvenile Court Law.
D077403
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. Nos. J519508B-C)
Plaintiff and Respondent,
v.
G.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Rohanee Zapanta, Judge. Affirmed in part, vacated in part, and remanded
with directions.
Jamie A. Moran, under appointment by the Court of Appeal, for
Defendant and Appellant.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and
Respondent.
G.R. (Mother) appeals the order terminating her parental rights in the
juvenile dependency case of her minor children, D.M. and Y.M. On appeal,
Mother’s sole contention is that the trial court erred by not complying with
the inquiry and notice provisions of the Indian Child Welfare Act (25 U.S.C.
§ 1901 et seq.) (ICWA). In a letter brief, the San Diego County Health and
Human Services Agency (the Agency) concedes that because the record was
insufficient to support the trial court’s conclusion that an adequate inquiry
occurred, a remand is necessary “for the Agency to provide further
documentation of its initial ICWA inquiry efforts and, if applicable, its
further inquiry efforts.”
We agree and conclude the trial court erred by finding the Agency
satisfied its statutory duty to conduct a proper and adequate inquiry to
determine whether ICWA applies. We therefore vacate the court’s ICWA
findings and remand with directions to the Agency to continue its inquiry and
provide sufficient information to the trial court regarding that inquiry to
permit the court to determine whether ICWA’s noticing requirements apply
here. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
“In accord with the usual rules on appeal, we state the facts in the
manner most favorable to the dependency court’s order.” (In re Janee W.
(2006) 140 Cal.App.4th 1444, 1448, fn. 1.) We provide only an abbreviated
summary of the dependency proceedings given the narrow focus on the ICWA
issue raised on appeal.
2
In June 2019, the Agency petitioned the trial court under Welfare and
Institutions Code1 section 300, subdivision (b), on behalf of one-year-old D.M.
and 18-day-old Y.M. Mother and J.D. (Father) had a long history of chronic
homelessness, substance abuse, and untreated mental illness. Parents had
left the children with a family friend, who was also unable to safely care for
the children. Parents have a total of 13 children, none of whom are in their
care and several have been adopted.
In its detention report, the Agency noted that ICWA may apply.
Mother reported to the Agency that her paternal grandfather was Native
American and “she has Native American heritage of the Mexican Yaqui,
Cherokee, and Paiute tribes.” However, she denied being registered with any
tribe or ever receiving benefits from any tribes. The Agency also noted that
in a previous dependency case involving one of Mother’s other children in
2017, the court found that ICWA did not apply.
At the detention hearing, the court found the Agency had made a prima
facie showing under section 300 and ordered that the children be detained in
out-of-home care. At the hearing, Father also claimed to have Indian
heritage. The court ordered the Agency to investigate whether ICWA
applied.
Father subsequently informed the Agency that he may have Indian
ancestry through the Cherokee, Paiute, and Blackfeet tribes. He told the
Agency that his great-grandmother was an enrolled member of a tribe and
lived on a reservation, but the record does not disclose whether the Agency
learned any more about this great-grandmother. In the jurisdiction report,
1 Further statutory references are to the Welfare and Institutions Code
unless otherwise stated.
3
the Agency again noted that ICWA may apply but claimed Mother now
denied Indian heritage. The jurisdiction report did not detail any inquiry
conducted by the Agency. Later, Mother again claimed Indian ancestry and
identified the Yaqui tribe.
On the date originally scheduled for the jurisdiction hearing, the court
noted it was “deferring” on the ICWA issue but directed “noticing be done for
the Yaqui tribe.” The minute order noted that the jurisdictional hearing was
continued and “ICWA noticing is to occur.”
In an addendum report filed on August 12, 2019, the Agency set forth
its limited attempt to contact relatives and several tribes to determine the
children’s Indian status. The report noted the Agency mailed notices to the
tribes on August 5, only one week before it submitted the report. By the time
it submitted the report, the Agency had not received any responses. At a
hearing on August 21, 2019, without receiving any new information
regarding the Agency’s inquiry, the court found that the Agency complied
with the order for noticing and, based on the information received by the
Agency, “there is no reason to know at this point . . . that the children are
Indian children, [and] that ICWA does not apply in this case.”
After additional proceedings that did not involve ICWA issues, the
court ultimately terminated parental rights and found the children to be
adoptable. The court also found as to both children that “[n]otice pursuant to
[ICWA] is not required because the court has reason to know the child is not
an Indian child. Reasonable inquiry has been made to determine whether
the child is or may be an Indian child.”
Mother appealed.
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DISCUSSION
In Mother’s opening brief, she challenges only the trial court’s findings
regarding compliance with ICWA and the related state statutes. She
contends that the Agency “did not provide the juvenile court with sufficient
information to make its finding that the ICWA did not apply in this case.” In
response, the Agency agrees, conceding that “a limited remand is appropriate
in this case for the Agency to provide further documentation of its initial
ICWA inquiry efforts and, if applicable, its further inquiry efforts.”
We agree. Based on the record before us, we conclude that the court’s
finding that the Agency conducted a reasonable inquiry under ICWA is not
supported by substantial evidence. (See In re Charlotte V. (2016)
6 Cal.App.5th 51, 57.) Remand is necessary to ensure compliance with the
requirements of ICWA.
“Congress enacted ICWA in 1978 in response to ‘rising concern in the
mid-1970’s over the consequences to Indian children, Indian families, and
Indian tribes of abusive child welfare practices that resulted in the
separation of large numbers of Indian children from their families and tribes
through adoption or foster care placement, usually in non-Indian homes.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) ICWA established
minimum standards that courts are required to follow in involuntary
proceedings to place a child in foster care or to terminate parental rights to
ensure Indian tribes receive notice “where the court knows or has reason to
know that an Indian child is involved.” (25 U.S.C. § 1912(a); Isaiah W., at
p. 8.)
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
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Indian tribe[.]” (25 U.S.C. § 1903(4); see Welf. & Inst. Code, § 224.1, subd.
(a).) The trial court and the Agency have an affirmative and continuing duty
in every dependency proceeding to determine whether ICWA applies. (Welf.
& Inst. Code, § 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); Isaiah W.,
supra, 1 Cal.5th at pp. 10-11.) In cases “where the court knows or has reason
to know that an Indian child is involved,” ICWA requires the Agency, or other
party seeking adoption or foster care placement, to notify “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, italics
added; Isaiah W., at p. 5.)
This court’s decision in In re D.S. (2020) 46 Cal.App.5th 1041, 1048
(D.S.) discussed recent changes to the federal regulations concerning ICWA
compliance and subsequent conforming amendments to California’s statutory
scheme regarding ICWA, which became effective January 1, 2019. In D.S.,
we explained that the resulting clarification of law, found in part in newly
amended section 224.2, “creates three distinct duties regarding ICWA in
dependency proceedings. First, from the Agency’s initial contact with a
minor and his family, the statute imposes a duty of inquiry to ask all involved
persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).)
Second, if that initial inquiry creates a ‘reason to believe’ the child is an
Indian child, then the Agency ‘shall make further inquiry regarding the
possible Indian status of the child, and shall make that inquiry as soon as
practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry
results in a reason to know the child is an Indian child, then the formal notice
requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated
to inquire at the first appearance whether anyone ‘knows or has reason to
know that the child is an Indian child’], id., subd. (d) [defining circumstances
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that establish a ‘reason to know’ a child is an Indian child]; § 224.3 [ICWA
notice is required if there is a ‘reason to know’ a child is an Indian child as
defined under § 224.2, subd. (d)].).” (D.S., at p. 1052.)
At the first step, “[s]ection 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, others who have an interest in the child, and the party reporting
child abuse or neglect, whether the child is, or may be, an Indian child.’ ”
(D.S., supra, 46 Cal.App.5th at pp. 1048-1049.)
Here, the Agency concedes that the record does not firmly establish
that this initial inquiry occurred. Although the record discloses the Agency
inquired with the parents about their heritage, the record does not disclose
the details of any inquiry involving their extended family members or others
having an interest in the children. At most, the record suggests Father may
have made his mother available and the Agency spoke to the maternal
grandmother, but the record is silent on whether the Agency asked any
questions related to determining whether the children have Native American
heritage or any relevant information obtained from those interviews. Finally,
although the Agency mailed notices to certain tribes, it asked the court to
determine ICWA did not apply before allowing a sufficient time for the tribes
to respond. While it is possible the Agency obtained enough information from
its inquiry to determine whether the children were Indian children, it did not
include that information in its reports to the trial court. Without additional
information regarding the initial inquiry, the trial court could not fulfill its
duty to determine whether the Agency made an adequate inquiry and, by
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extension, whether the children met the definition of “Indian child” falling
under the requirements of ICWA.
Although both parties accept that the record does not adequately
demonstrate the reasonableness of the Agency’s initial inquiry, the parties
appear to disagree in respect to whether there was a “reason to believe” the
children were Indian children sufficient to trigger the duty to conduct a
“further inquiry” under ICWA and section 224.2.2 However, the Agency
acknowledges that if the initial inquiry leads to a reason to believe, a further
inquiry must occur here. A remand to the trial court will allow the Agency to
either conduct the necessary inquiry or satisfy the trial court that it already
completed this inquiry.
As both Mother and the Agency appear to agree, the trial court skipped
straight to requiring “notice” to Indian tribes. The parties, however, disagree
about the impact of the court’s order to provide notice. Mother contends that
the order to provide notice implies that the trial court found that there was a
“reason to know” the children were Indian children. The Agency, however,
contends that the evidence was insufficient to support any finding that there
was a reason to know.
2 In D.S., the Agency conceded that there was a reason to believe the
child was an Indian child based on an aunt’s statements regarding possible
tribal affiliation, triggering a duty to conduct a further inquiry. (D.S., supra,
46 Cal.App.5th at p. 1052.) The aunt’s statements in D.S. were similar to the
parents’ statements here, but without additional information regarding the
Agency’s inquiry we decline to determine whether a “reason to believe” exists
here. As the Agency notes, the children’s older sibling was found to not be an
Indian child in a prior proceeding, but the record does not disclose the details
of the inquiry in that proceeding. The Agency may have possessed additional
information, not disclosed in the record on appeal, to support a finding that
there was no reason to believe the children were Indian children.
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We agree with the Agency. Given the absence of evidence in the record
as to the inquiry conducted by the Agency, it was impossible for the trial
court to make a reasoned determination of the Indian status of these
children. It is not clear whether the trial court made its findings based on
the prior version of the California ICWA statutes, but the record suggests
that any finding that notice was required was premature.
Moreover, the initial inquiry is critical to ensuring proper noticing
based on having a reason to know the children are Indian children. “The
notice must include enough information for the tribe to ‘conduct a meaningful
review of its records to determine the child’s eligibility for membership’ (In re
Cheyanne F. (2008) 164 Cal.App.4th 571, 576), including the identifying
information for the child’s biological parents, grandparents, and great-
grandparents, to the extent known (In re Francisco W. (2006) 139
Cal.App.4th 695, 703; § 224.3, subd. (a)(5)(C)).” (D.S., supra, 46 Cal.App.5th
at p. 1050.) This information must be gleaned from the Agency’s inquiry.
Skipping the initial inquiry and sending a minimal notice to certain tribes is
not sufficient to satisfy the Agency’s and trial court’s duties when an inquiry
could reveal additional information that would allow the tribes to conduct a
more meaningful review. Rather than assuming a reason to know exists, we
believe a limited remand to allow for the required inquiry will assist in
achieving a better outcome.
We also disagree with Mother that a reversal of the trial court’s ICWA
findings necessitates a reversal of the order terminating her parental rights.
Because the trial court’s finding that the Agency’s inquiry was adequate is
not supported by substantial evidence, we vacate the court’s finding that
ICWA does not apply and remand to allow the Agency to conduct the
necessary inquiry, if it has not already occurred, and demonstrate to the trial
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court the adequacy of that inquiry. We decline to reverse the order
terminating Mother’s parental rights because there is not yet a sufficient
showing that the children are Indian children or that formal ICWA notice
was required. (See In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) If
the children are later determined to be Indian children, an interested party
may petition the court to invalidate any orders shown to have violated ICWA.
(25 U.S.C. § 1914; In re Damian C. (2009) 178 Cal.App.4th 192, 199-200.)
By reversing only the trial court’s ICWA findings, we remand to ensure
the court and the Agency fulfill their duties under ICWA. If the Agency can
establish that it conducted the necessary inquiry and there is no reason to
believe the children are Indian children, the trial court may then find that
ICWA does not apply. Alternatively, if the inquiry establishes a reason to
believe the children are Indian children, the Agency must make further
inquiry to determine whether there is a reason to know the children are
Indian children, which would then trigger the formal notice requirements of
section 224.3. (D.S., supra, 46 Cal.App.5th at p. 1052.)
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DISPOSITION
The trial court’s orders finding that ICWA does not apply and that the
Agency’s ICWA inquiry was adequate are vacated. In all other respects, the
challenged orders are affirmed. The matter is remanded to the trial court
with directions to determine the applicability of ICWA based on the Agency’s
required inquiry and for further proceedings consistent with this opinion.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
DATO, J.
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