Filed 5/31/23 In re S.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 S.R. et al., Persons Coming Under the
Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F085626
SERVICES,
(Super. Ct. Nos. JD141980-00,
Plaintiff and Respondent, JD141981-00, JD141982-00)
v.
OPINION
S.R. et al.,
Defendants and Appellants.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Christie Canales
Norris, Judge.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and
Appellant, S.R.
Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for
Defendant and Appellant, Jeremy C.
Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Peña, Acting P. J., Smith, J. and DeSantos, J.
Jeremy C. (father), joined by S.R. (mother), appeal from the juvenile court’s order
terminating parental rights as to their three minor children (Welf. & Inst. Code,1
§ 366.26). Their sole contention on appeal is that the court erred by finding that the
Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) did not apply to the
proceedings because the Kern County Department of Human Services (department) failed
to conduct adequate inquiry into whether the children were potentially Indian children
with regard to father’s side of the family.2
The department concedes error and agrees that remand is appropriate. We accept
the department’s concession, conditionally reverse the finding that ICWA does not apply,
and remand for proceedings to ensure ICWA inquiry compliance. In all other respects,
we affirm the order terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2021, the department filed juvenile dependency petitions on behalf of
then four-month-old R.C., then one-year-old S.C., and then four-year-old S.R., alleging
each child came within the juvenile court’s jurisdiction under section 300,
subdivision (b).3
The parents completed “PARENTAL NOTIFICATION OF INDIAN STATUS”
(ICWA-020) forms. Mother’s form indicated she is or may be a member of or eligible
for membership in a federally recognized Indian tribe, but did not specify a tribe.
Father’s form indicated that none of the indicia giving reason to know the children were
Indian children applied.
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
2 Neither mother nor father contend the department’s inquiry and court’s findings
with regard to the maternal side of the children’s family resulted in any error.
3 Father was elevated to presumed father status as to R.C. and S.C. on April 14,
2021, and as to S.R. on April 15, 2021. Another man was an alleged father for S.R.
However, his whereabouts were unknown throughout the proceedings; he was never
located, did not participate in the proceedings, and was not elevated to presumed status.
2.
At the initial/detention hearing, both parents were present and requested to set the
matter for contest. Mother was examined regarding ICWA; she testified her maternal
grandmother, who had since passed away, told her years ago that she had Native
American ancestry on her mother’s side. Mother denied Native American ancestry on
her father’s side. The juvenile court indicated it would “reserve on the issue of ICWA so
that the department can do some follow up.”
Father was also examined regarding ICWA. He testified he did not have any
Native American ancestry as far as he knew. He denied that any of his family members
had ever lived on Native American lands or a reservation, received any type of benefit
from a Native American tribe, or been eligible to enroll or enrolled in a Native American
tribe. The juvenile court found “as to father …, there is no information indicating or
suggesting that the … children are members of or eligible for membership in any
Federally recognized Indian tribe that falls within [ICWA].”
Following a contested hearing, the juvenile court ordered the children detained
from the parents on April 15, 2021.
The department eventually spoke with the children’s maternal grandmother, who
informed them that many years ago she had heard there may be Apache ancestry on her
mother’s side, but in recent years, her uncle did some genealogy research and learned that
there was no Apache ancestry, and both her parents were from the Netherlands. She
reported neither she nor any of her family were members of a tribe or were born or lived
on tribal land. She further reported the maternal grandfather had no Indian ancestry to
her knowledge.
At the jurisdictional/dispositional hearing on August 12, 2021, the juvenile court
found the children came within its jurisdiction under section 300, subdivision (b). The
court found there was no reason to believe the children were Indian children and ICWA
did not apply. The court ordered the children removed from the physical custody of the
parents, with the parents receiving reunification services. Reunification services for the
3.
parents were ultimately terminated on July 5, 2022, and the court set a section 366.26
hearing.
The department’s section 366.26 report dated October 20, 2022, indicated that on
October 5, 2022, a department “Family Findings and Engagement Office Service
Technician … was assigned to complete a Native American ancestry inquiry for the
children’s … paternal and maternal relatives,” and “[r]esults [were] pending as of [that]
writing.” A supplemental report dated January 20, 2023, was filed but no updated ICWA
inquiry information was provided.
At the section 366.26 hearing, on January 24, 2023, the juvenile court terminated
parental rights as to all three children and selected adoption as their permanent plans.
DISCUSSION
The parents contend the juvenile court erred by finding ICWA did not apply, and
the department concedes prejudicial error. We accept the department’s concession.
Under California’s statutory scheme to comply with ICWA, the court and county
child welfare department “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.” 4 (§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9; Cal. Rules of
Court, rule 5.481(a).) The child welfare department’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).) “Under both ICWA and California law,
‘ “extended family member[s]” ’ include the child’s ‘grandparent, aunt or uncle, brother
4 An “Indian child” is defined in ICWA as 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].)
4.
or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or
stepparent.’ ” (In re D.S. (2020) 46 Cal.App.5th 1041, 1053; 25 U.S.C. § 1903(2);
§ 224.1, subd. (c).)
Before finding ICWA inapplicable, the juvenile court must make a finding that the
department conducted “proper and adequate further inquiry” and exercised “due
diligence” in doing so, and that “there is no reason to know whether the child is an Indian
child.” (§ 224.2, subd. (i)(2).)
We review the juvenile court’s finding that there is no reason to know whether a
child is an Indian child under a substantial evidence standard, and the court’s finding that
the department has conducted a proper and adequate inquiry and due diligence for abuse
of discretion. (In re K.H. (2022) 84 Cal.App.5th 566, 600–601 (K.H.); In re Ezequiel G.
(2022) 81 Cal.App.5th 984, 1004–1005.)5
In assessing prejudice stemming from an inquiry error, “the focus is on the missed
opportunity to uncover relevant information necessary to make a reliable, informed
determination concerning whether the child is or may be an Indian child.” (K.H., supra,
84 Cal.App.5th at p. 609.)
Here, the department documented no effort to inquire of any paternal relatives
besides father as to the children’s potential status as Indian children and therefore failed
to fulfil its duty of initial inquiry of extended family members or any others who may
have interests in the children as set forth in section 224.2. The juvenile court therefore
had no basis on which to conclude the department had made an adequate inquiry, and
thus abused its discretion by finding it had.
5 There is a split of authority among the Courts of Appeal regarding how to evaluate
claims of ICWA inquiry error. (See K.H., supra, 84 Cal.App.5th at pp. 611‒618
[summarizing the varied approaches].) Our Supreme Court has granted review on the
issue in In re Dezi C. (2022) 79 Cal.App.5th 769, review granted September 21, 2022,
S275578. Recently, this court decided K.H., which articulates the standards we will
apply until the Supreme Court provides additional guidance in In re Dezi C.
5.
The error was not harmless because of the clear missed opportunity to gather
relevant information to assist the juvenile court in making its ICWA findings. As it has
been observed by other courts, the reason section 224.2 requires inquiry of more than just
the parents is “to obtain information the parent may not have.” (In re Y.W. (2021) 70
Cal.App.5th 542, 556.) In the present case, the record indicates the department not only
failed to document any efforts to comply with its duty of initial inquiry as to the
children’s paternal side, but the department knew of and/or had contact with paternal
extended family members, including the paternal grandmother, who testified at the
contested detention hearing and even had placement of the children for a period of time,
and the paternal aunt, who father had mentioned to the department.
Remand is necessary for the juvenile court to ensure the department has made an
adequate inquiry of the children’s paternal relatives.
DISPOSITION
The juvenile court’s finding that ICWA does not apply is conditionally reversed,
and the matter is remanded to the court with directions to order the department to comply
with the inquiry and documentation provisions set forth in section 224.2, subdivision (b),
and California Rules of Court, rule 5.481(a)(5). If, after determining that an adequate
inquiry was made consistent with the reasoning in this opinion, the court finds that ICWA
applies, the court shall vacate its existing order and proceed in compliance with ICWA
and related California law. If the court instead finds that ICWA does not apply, its
ICWA finding shall be reinstated. In all other respects, the court’s order terminating
parental rights is affirmed.
6.