Filed 2/26/21 In re A.S. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re A.S., a Person Coming Under the
Juvenile Court Law.
KINGS COUNTY HUMAN SERVICES F081856
AGENCY,
(Super. Ct. No. 19JD0120)
Plaintiff and Respondent,
v. OPINION
T.S.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kings County. Jennifer Lee
Giuliani, Judge.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Lee Burdick, County Counsel, and Risé A. Donlon, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P.J., Peña, J. and De Santos, J.
T.S. (mother) appeals the juvenile court’s order terminating her parental rights as
to her now almost two-year-old son, A.S. (Welf. & Inst. Code, § 366.26).1 Mother
contends the Kings County Human Services Agency (agency) failed to comply with
inquiry provisions of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901
et seq.) The agency concedes there were inadvertent omissions in ICWA inquiry and
notice that it intends to remedy and does not oppose remand for the limited purpose of
ensuring proper compliance with ICWA. We agree with the parties and conditionally
reverse the juvenile court’s order terminating parental rights and remand for proceedings
to ensure ICWA compliance.
FACTS AND PROCEDURAL HISTORY
Because the sole issue on appeal concerns compliance with ICWA, we only
briefly discuss the underlying circumstances of the dependency proceedings.
A.S. was born in June 2019. At the time of his birth, he and mother tested positive
for methamphetamine and amphetamine. On June 27, 2019, the agency filed a
dependency petition alleging newborn A.S. came within the juvenile court’s jurisdiction
under section 300, subdivision (b)(1) because he had suffered or was at a substantial risk
of suffering serious physical harm or illness due to mother’s inability to protect him due
to her substance abuse. Mother claimed no Native American ancestry.
At the arraignment hearing on July 11, 2019, the juvenile court found a prima
facie showing had been made that A.S. was described by section 300 but that continued
placement in mother’s home was not contrary to his welfare. The court also made a
finding that ICWA did not apply. W.W. (father) was named as an alleged father at the
hearing and was subsequently located during a due diligence search. On or about
July 15, 2019, father executed a “Parental Notification of Indian Status” (unnecessary
capitalization omitted) form (ICWA-020) indicating he had no Native American ancestry.
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
2.
On August 19, 2019, the juvenile court found the allegations in the petition true
and ordered that A.S. remain in mother’s care and mother be provided with family
maintenance services.
On October 17, 2019, the agency filed a supplemental petition pursuant to
section 387 alleging mother failed to provide adequate supervision of A.S., which led to
him being “ ‘kidnapped’ ” by father. Mother and father had been at a friend’s house.
Father reported everyone was drinking and using meth and that he saw mother use a
syringe. According to father, mother went outside to socialize and left A.S. with him
inside the house, stating she was tired of being a mother and it was his turn to take care of
A.S., so he took A.S. to his cousin’s house. Father reported he could not get a hold of
mother and that she was high on meth and alcohol. Mother denied she or anyone else
present was using drugs. Mother filed a kidnapping report, and father was arrested. A.S.
was taken into protective custody and placed in a Resource Family Approval (RFA)
home.
The detention hearing on the section 387 petition was held on October 21, 2019.
Father appeared and claimed he had Native American ancestry. Father stated he was not
a member of a tribe, but his great uncle, Willard J., was. Father did not know to which
tribe Willard was a member. Father indicated Willard was alive and lived in Corcoran,
California. Father also indicated Willard’s sister, father’s great aunt, Opal S., was alive
and lived in Corcoran, California, and she might have information about father’s Native
American ancestry. Father did not have Willard or Opal’s contact information. Father
reported his parents were deceased, and other than Willard and Opal, father was not
aware of anyone else who would have information regarding his Native American
ancestry.
The court ordered A.S. detained from mother. Father requested, and the court
ordered, genetic testing.
3.
On October 21, 2019, father executed a new ICWA-020 form indicating he may
have Native American ancestry but that he did not know what tribe or tribes.
At the combined jurisdiction/disposition hearing on November 12, 2019, the
juvenile court sustained the section 387 petition and ordered A.S. removed from mother’s
physical custody. The court ordered that mother be provided with reunification services.
On December 9, 2019, the agency filed a paternity review report indicating there
was a 99.9 percent probability that father was A.S.’s biological father and recommended
he receive family reunification services. As to ICWA, the report indicated that father had
disclosed at the detention hearing that Willard was an enrolled member of a tribe and that
Opal could provide more information. The report stated: “The undersigned met with
[father] on 11/06/2019, and he did not provide contact information for [] Opal S[.] at that
time.”
At a paternity review hearing on December 11, 2019, the juvenile court found
father was A.S.’s biological father and ordered he be provided with family reunification
services.
Both parents engaged in some services but repeatedly tested positive for
methamphetamine and amphetamine. At a six-month review hearing on June 17, 2020,
both parents’ family reunification services were terminated, and the juvenile court set a
section 366. 26 hearing.
The agency’s section 366.26 report indicated that a social worker had “conducted
further ICWA inquiry” when he met with father on November 6, 2019, but that father
“did not provide any contact information for [] Opal S[.] or any other information.” The
report then stated: “No additional information has been provided to suggest the minor[]
[is] or may be Native American as defined by [ICWA] since the issuance of the Court’s
findings on 07/06/2020.[2] Therefore, pursuant to [s]ection 224.3, a new inquiry is not
2 No ICWA findings were made on this date. The most recent ICWA findings made
by the court were on July 11, 2019, before father made his claim of Native American
ancestry.
4.
necessary. Based on the information provided by the biological parents, there is no
evidence to suggest that the minor[] may be subject to [ICWA].” The report
recommended termination of parental rights and the court select a permanent plan of
adoption.
On October 7, 2020, the date set for the section 366.26 hearing, the parents
requested a contested hearing. The agency informed the court they had no additional
information regarding ICWA and asked the parents in open court whether they had “any
new information regarding Native ancestry.” Both parents indicated they did not.
At the contested section 366.26 hearing on October 13, 2020, the parents were not
present and their counsel withdrew their requests for contest. The juvenile court found
by clear and convincing evidence A.S. was adoptable and ordered a permanent plan of
adoption and terminated parental rights. The court signed a written finding that ICWA
inquiry had been completed and that ICWA did not apply in the matter.
DISCUSSION
Mother asserts the juvenile court erred by finding ICWA did not apply because the
agency failed to comply with ICWA inquiry provisions. Specifically, mother argues the
agency was required under ICWA to make a good faith effort to locate and interview any
relatives who may have pertinent information about A.S.’s Native American ancestry and
contact the Bureau of Indian Affairs (BIA) and Secretary of the Interior for assistance.
The agency concedes error and does not oppose remand. We accept the agency’s
concession.
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, except in emergencies, must follow before removing
an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016)
1 Cal.5th 1, 7–8.) In any “proceeding for the foster care placement of, or termination of
parental rights to, an Indian child,” the Indian custodian and the Indian child’s tribe have
5.
the right to intervene (25 U.S.C. § 1911(c)), and may petition the court to invalidate any
foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914;
see § 224, subd. (e)). For purposes of ICWA, an “Indian child” is an unmarried
individual under 18 years of age who is either (1) a member of a federally recognized
Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the
biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8);
see § 224.1, subd. (a) [adopting federal definitions].) The court and county child welfare
agency “have an affirmative and continuing duty to inquire whether a child,” who is the
subject of a juvenile dependency petition, “is or may be an Indian child.” (§ 224.2,
subd. (a); see In re Isaiah W., supra, 1 Cal.5th at p. 9; Cal. Rules of Court, rule 5.481(a).)
The agency’s initial duty of inquiry includes “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 and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2,
subd. (b).) The juvenile court must ask the participants in a dependency proceeding upon
each party’s first appearance “whether the participant knows or has reason to know[3] that
the child is an Indian child” (§ 224.2, subd. (c)), and “[o]rder the parent … to complete
[an ICWA-020 form]” (Cal. Rules of Court, rule 5.481(a)(2)(C)).
3 There is “reason to know” a child is an Indian child if “(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[;] [¶] [and/or]
(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); see
25 C.F.R. § 23.107(c) (2020).)
6.
After initial inquiry is conducted, when the court or social worker has “reason to
believe”4 (but not sufficient evidence to determine there is “reason to know”) that an
Indian child is involved in a proceeding, section 224.2, subdivision (e) requires “further
inquiry regarding the possible Indian status of the child.” (§ 224.2, subd. (e).) “[F]urther
inquiry” includes: (1) interviewing the parents and extended family members to gather
available familial and tribal enrollment information; (2) contacting the Bureau of Indian
Affairs and State Department of Social Services for assistance with identifying tribes in
which the child may be a member of or eligible for membership; and (3) contacting tribes
the child may be affiliated with, and anyone else, that might have information regarding
the child’s membership or eligibility in a tribe. (§ 224.2, subd. (e)(2); 224.3, subd.
(a)(5).) The agency “has the obligation to make a meaningful effort to locate and
interview extended family members to obtain whatever information they may have as to
the child’s possible Indian status.” (In re K.R. (2018) 20 Cal.App.5th 701, 709.)
If, after further inquiry is conducted, “the court, a social worker, or probation
officer knows or has reason to know … that an Indian child is involved” in the
dependency proceeding, notice shall be sent to the child’s parents or legal guardian,
Indian custodian, if any, and the child’s tribe for any hearing that may culminate in an
order for foster care placement, termination of parental rights, preadoptive placement, or
adoptive placement so the tribe may exercise its right to intervene. (§ 224.3, subd. (a);
see 25 U.S.C. § 1912(a).)
We review the juvenile court’s finding that ICWA is inapplicable for substantial
evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) We apply the ICWA
4 “There is reason to believe a child involved in a proceeding is an Indian child
whenever the court, social worker, or probation officer 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. 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).)
7.
statutes that applied at the time of the finding from which mother appeals. (In re A.M.
(2020) 47 Cal.App.5th 303, 321.)
Here, the juvenile court’s finding on October 13, 2020, that ICWA was
inapplicable was not supported by substantial evidence because the agency did not
conduct adequate inquiry. Father’s indication he may have Native American ancestry
and identifying a lineal family member who was a member of a tribe was sufficient to
give the agency and the court “reason to believe” A.S. was an Indian child, triggering the
duty of further inquiry. The agency should have made a meaningful effort to locate, at
the very least, Willard and Opal and attempt to gather the necessary information which
would have assisted them in determining whether they had reason to know A.S. was an
Indian child and whether notice to any tribes was necessary. (§ 224.2, subd. (e)(2)(A).)
The agency should have also contacted the Bureau of Indian Affairs or State Department
of Social Services for help in identifying whether A.S. had a connection to a particular
tribe. (§ 224.2, subd. (e)(2)(B).) Depending on the results of the agency’s investigation,
they may have needed to contact and provide information to particular tribes to gather
more information as to A.S.’s status as an Indian child. (§ 224.2, subd. (e)(2)(C).) The
record is silent as to any efforts the agency made to try to locate father’s relatives or take
any further steps to determine whether there existed a reason to know A.S. was an Indian
child.
For these reasons, we accept the agency’s concession and remand for the juvenile
court to ensure compliance with ICWA inquiry requirements.
DISPOSITION
The juvenile court’s October 13, 2020 order terminating mother and father’s
parental rights is conditionally reversed. The matter is remanded to the juvenile court for
the agency to conduct adequate inquiry required by sections 224.2 and 224.3, and for any
further proceedings resulting therefrom. If, after the court finds adequate inquiry has
been made, the court finds the child is an Indian child, the court shall vacate its existing
8.
order and proceed in compliance with ICWA and related California law. If the court
finds the child is not an Indian child, the section 366.26 order shall remain in effect.
9.