In re R.S. CA4/1 ( 2021 )

Filed 10/6/21 In re R.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re R.S., a Person Coming Under
the Juvenile Court Law.
D078942
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ4424)
Plaintiff and Respondent,
v.
K.J.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Reversed.
Matthew I. Thue, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and
Respondent.
K.J. (Mother) appeals from the juvenile court’s orders terminating her
parental rights over her daughter, R.S., pursuant to Welfare and Institutions
Code section 366.26.1 Mother contends the court erred by not complying with
the inquiry provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.).
The San Diego County Health and Human Services Agency (the
Agency) concedes in a letter brief that a limited reversal and remand is
appropriate to ensure ICWA compliance. In particular, the Agency concedes
the juvenile court erred by failing to make express ICWA findings at the
section 366.26 hearing. The Agency further concedes that this error was not
harmless because at the time of the section 366.26 hearing, the Agency had
not contacted the pertinent tribes following a claim of potential Indian
heritage in R.S.’s paternal family, and thus the Agency had not satisfied the
further inquiry requirements under ICWA. The Agency therefore requests a
limited remand to permit the Agency to complete adequate further inquiry
into R.S.’s potential claim of Indian heritage.
We accept the Agency’s concession. We therefore conditionally reverse
the orders entered at the section 366.26 hearing and remand for compliance
with the further inquiry provisions of ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
Given the limited scope of this appeal, we provide an abbreviated
summary of the dependency proceedings and focus on the facts relevant to
the ICWA findings.
The Agency initiated these dependency proceedings under section 300
subdivision (b)(1) on behalf of R.S. in July 2019, alleging there was a
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2
substantial risk R.S. would suffer serious physical harm or illness based on
Mother’s failure to provide adequate supervision. The agency alleged Mother
was under the influence of methadone on or about July 9, 2019 when she left
then one-month-old R.S. unattended and unsupervised at a convenience
store.
At the detention hearing on July 11, 2019, the juvenile court found a
prima facie showing that R.S. was described by section 300, subdivision,
(b)(1) and ordered R.S.’s placement in a foster home. R.S.’s father, S.S.
(Father),2 filed an ICWA-020 Parental Notification of Indian Status form at
the hearing stating he may have Cherokee Indian ancestry. Mother also filed
an ICWA-020 form indicating she had no Indian ancestry as far as she knew.
The juvenile court found that ICWA “may” apply and ordered the Agency to
investigate.
A social worker spoke with a paternal aunt regarding the paternal
family’s Indian ancestry a few days later. The paternal aunt reported the
paternal grandmother, B.T., was part Cherokee, but she was a grandmother
through marriage with no blood lineage to the family. Additionally, the
paternal great-great-grandmother “may have had some percentage of
Cherokee but she was not known to live on a reservation” or to have claimed
any benefits from a tribe. The paternal aunt indicated she had been curious
about her own Indian status and had done searches into the family lineage,
but found no “verifiable proof.”
The paternal aunt called the social worker back later that day after
speaking with a cousin. The cousin told the paternal aunt, “Our great
grandmother [B.T.] was never on a roll or reservation. The family has done
2 Father is not a party to this appeal.
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numerous searches (with various cousins) and no one could verify we had any
lineage.”
When the social worker spoke with Father a few days later, he
admitted the paternal aunt “probably had more accurate information
regarding ICWA than him.” Father indicated he was not aware of anyone
being born on a reservation, living on a reservation, being registered with a
tribe, or receiving benefits from a tribe.
At the initial jurisdiction and disposition hearing on August 1, 2019,
the juvenile court found the Agency completed further inquiry as required
under ICWA, and there was no reason to know R.S. was an Indian child. The
court did not make further ICWA findings or orders at any future hearings.
At the contested section 366.26 hearing3 on April 22, 2021, the juvenile
court terminated parental rights and selected a permanent plan of adoption
for R.S. The court took judicial notice of the prior findings and orders in the
case. However, the court did not expressly find at the section 366.26 hearing
that ICWA did not apply.
DISCUSSION
The Agency concedes that proper inquiry under ICWA was not
completed at the time of the section 366.26 hearing, and we accept its
concession. The juvenile court and the Agency have an affirmative and
continuing duty to inquire whether a dependent child “is or may be an Indian
child” in all dependency proceedings. (§ 224.2, subd. (a).) California’s current
statutory scheme contains “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
3 The section 366.26 hearing was held via videoconference and telephone
pursuant to Emergency Rule of Court 3(a).
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persons whether the child may be an Indian child. ([Id.], 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
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)].).” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.)
After a “reason to believe” that an Indian child is involved has been
established, further inquiry regarding the possible Indian status of the child
is required. (§ 224.2, subd. (e).) The duty of further inquiry includes
(1) interviewing the parents and extended family members; (2) contacting the
Bureau of Indian Affairs (BIA) and 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; and
(3) contacting tribes and anyone else that might have information regarding
the child’s membership or eligibility in a tribe. (Id., subd. (e)(2).)
The evidence in the record shows the Agency satisfied the first
component of its duty of further inquiry to interview extended family
members. After Father reported possible Cherokee Indian ancestry in the
ICWA-020 form, the Agency contacted R.S.’s paternal aunt to discuss the
paternal lineage. She confirmed R.S. may have Cherokee heritage, either
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through blood lineage or through a grandmother-by-marriage. However, she
was unable to find “verifiable proof” of the family’s Indian ancestry through
her own searches. The paternal aunt also confirmed with a cousin that the
family had done various searches but had been unable to confirm any Indian
heritage. Father conceded the paternal aunt “probably” knew more about the
family lineage than he did, and he did not provide any further information
related to ICWA. On this record, the Agency met its obligation under section
224.2, subdivision (e)(2)(A) to contact R.S.’s extended family members and
was not required to “cast about” for further investigative leads within the
paternal family. (In re Levi U. (2000) 78 Cal.App.4th 191, 199; see also In re
A.M. (2020) 47 Cal.App.5th 303, 323 [further inquiry of extended family
members is not required where the parent fails to provide the Agency with
any information requiring follow-up].)
However, the Agency concedes that inquiry into R.S.’s potential Indian
heritage was not completed because the pertinent tribes were never
contacted. Pursuant to section 224.2, subdivision (e)(2)(C), the Agency must
contact “the tribe or tribes and any other person that may reasonably be
expected to have information regarding the child’s membership, citizenship
status, or eligibility.” The Agency’s contact with the tribe “shall include
sharing information identified by the tribe as necessary for the tribe to make
a membership or eligibility determination, as well as information on the
current status of the child and the case.” (Ibid.)
There is no evidence in the record that the Cherokee tribes were ever
contacted about R.S.’s potential tribal membership or eligibility.
Additionally, there is no statement in the record from the pertinent tribes
about their current membership criteria. The Agency submits that the
failure to contact the pertinent tribes under these circumstances was not
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clearly harmless error. Thus, the juvenile court’s findings at the initial
jurisdiction and disposition hearing that adequate inquiry was completed
lacks substantial evidence, and the Agency concedes it would be improper to
impute such findings to the juvenile court’s orders entered at the section
366.26 hearing. We accept this concession and therefore remand the matter
for the limited purpose of allowing the Agency to complete further inquiry
under section 224.2, subdivision (e)(2)(C), and for the court to determine, on
the record, whether ICWA applies.4
DISPOSITION
The findings and orders entered at the section 366.26 hearing are
conditionally reversed. The matter is remanded with instructions for the
juvenile court to order the Agency to comply with the further inquiry
provisions under section 224.2, subdivision (e)(2)(C) regarding R.S.’s
Cherokee membership status or eligibility. If, after proper further inquiry,
the court finds a reason to know that R.S. is an Indian child, the court must
provide notice in accordance with ICWA. If the court finds that R.S. is an
Indian child, then the court must conduct a new section 366.26 hearing and
any further proceedings in compliance with ICWA and California law. If the
4 In her opening brief, Mother raises the Agency’s failure to contact the
BIA as an additional basis for establishing error in the ICWA inquiry.
Further inquiry under section 224.2, subdivision (e)(2)(B) requires:
“Contacting the [BIA] 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, and
contacting the tribes and any other person that may reasonably be expected
to have information regarding the child’s membership status or eligibility.”
(Emphasis added.) Here, there is no lack of clarity regarding the names of
the tribes or an indication there would be difficulty contacting the tribes.
Based on the record in this case, the duty of further inquiry did not include
contacting the BIA.
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court finds that R.S. is not an Indian child, the section 366.26 orders
terminating parental rights shall be reinstated.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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