In re P.E. CA5 ( 2021 )

Filed 4/21/21 In re P.E. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re P.E., a Person Coming Under the
Juvenile Court Law.
KERN COUNTY DEPARTMENT OF F082036
HUMAN SERVICES,
(Super. Ct. No. JD139612-00)
Plaintiff and Respondent,
v. OPINION
S.I. et al.,
Defendants and Appellants.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Marcos R.
Camacho, Judge.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant, S.I.
Beth A. Sears, under appointment by the Court of Appeal, for Defendant and
Appellant, D.E.
Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Meehan, J. and De Santos, J.
S.I. (mother) appeals the juvenile court’s order terminating her parental rights as to
her minor son, P.E. (Welf. & Inst. Code,1 § 366.26). Mother contends the juvenile
court’s finding the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.)
did not apply to the proceedings was not supported by substantial evidence because the
Kern County Department of Human Services (department) failed to comply with ICWA
inquiry and notice provisions. Appointed counsel for D.E. (father) filed a brief pursuant
to In re Phoenix H. (2009) 47 Cal.4th 835 contending there were no arguable issues.
Father submitted his own letter brief joining in mother’s arguments. We conditionally
reverse the juvenile court’s order terminating parental rights and remand for proceedings
to ensure ICWA compliance.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue on appeal concerns compliance with ICWA, we only
briefly discuss the underlying circumstances of the dependency proceedings.
The department filed a petition alleging then two-year-old P.E. came within the
juvenile court’s jurisdiction under section 300, subdivision (g) (no provision of support)
because mother’s whereabouts were unknown and then-alleged father was incarcerated.
P.E. had been residing with his maternal grandparents, but they were no longer able to
care for him.
Neither parent was present at the detention hearing on April 10, 2019. The court
ordered P.E. detained from mother.
It was discovered that mother was living in Las Vegas, Nevada. The social worker
was unable to make contact with father.
On April 29, 2019, the date scheduled for the jurisdictional hearing, mother was
present, and indicated in open court her father had Native American ancestry but she was
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
2.
not sure what tribe. County counsel indicated the department would speak with the
maternal grandfather. The matter was continued.
The continued jurisdictional hearing took place on May 29, 2019. Mother was not
present. The juvenile court found the allegations in the petition true and that P.E. was
described by section 300, subdivision (g). The juvenile court inquired whether “we need
to worry about ICWA,” and county counsel responded the department needed to contact
the maternal grandfather regarding potential tribal information, as mother indicated at the
previous hearing he would have information regarding his status as an Indian child. The
matter was set for disposition.
On June 18, 2019, the date set for the dispositional hearing, the court indicated
that it had “some information regarding ICWA.” The court stated it had looked into a
probate legal guardianship case involving another one of mother’s children and
discovered in that case the maternal grandfather had testified he was a member of the
Cherokee tribe. The juvenile court stated the judge in the probate proceeding had made a
finding there was a reason to believe the child was Cherokee. The court instructed the
department to conduct an inquiry of the maternal grandfather based on that information.
The matter was continued so the department could work on ICWA inquiry and prepare
the dispositional report.
At the next court date on July 3, 2019, county counsel stated with regard to
ICWA: “The department spoke with the maternal grandfather on several occasions. He
indicated that he does not believe the family has any Native American heritage. They
contacted the tribes—the Cherokee tribes when the probate was ongoing and that no one
is enrolled. No one is a registered member. [¶] We’re asking that the court make a
finding that [ICWA] does not apply.” The court found there was no evidence to establish
that P.E. was a member, or eligible for membership, in a tribe and therefore that ICWA
did not apply.
3.
On July 29, 2019, the date set for the dispositional hearing, the juvenile court
elevated father’s status to presumed and appointed him counsel. The court asked, “Is
there any issue at this time regarding ICWA in light of information the court has gleaned
from the probate file?” County counsel responded the issue had been addressed at the
last court hearing and represented that “notwithstanding the fact that the court had located
that information in the probate file, the department did have a discussion with the
grandfather. He indicated that to his knowledge, no one in the family was enrolled. No
one in the family was eligible for enrollment.” County counsel added, “That was
according to the notes.” The matter was continued.
On November 14, 2019, P.E. was adjudged a dependent of the court, ordered
removed from mother’s physical custody, and the parents were ordered to receive family
reunification services.
On June 16, 2020, at the combined six- and 12-month status review hearing, both
parents personally appeared by telephone. The juvenile court terminated the parents’
reunification services and set a section 366.26 hearing.
At the section 366.26 hearing on October 14, 2020, the juvenile court terminated
parental rights and ordered adoption as the permanent plan.
DISCUSSION
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 child2 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
2 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].)
4.
parental rights to, an Indian child,” the Indian custodian and the Indian child’s tribe have
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)). 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 [a] Parental Notification of Indian Status” [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) (2021).)
5.
After initial inquiry is conducted, when the court or social worker has a “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.” “Further inquiry” includes:
(1) interviewing the parents, Indian custodian, 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.) While
interviewing parents and extended family members, the agency is to gather the following
information:
“(A) The name, birth date, and birthplace of the Indian child, if
known[;]
“(B) The name of the Indian tribe in which the child is a member, or
may be eligible for membership, if known[; and]
“(C) All names known of the Indian child’s biological parents,
grandparents, and great-grandparents, or Indian custodians, including
maiden, married, and former names or aliases, as well as their current and
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).)
6.
former addresses, birth dates, places of birth and death, tribal enrollment
information of other direct lineal ancestors of the child, and any other
identifying information, if known.” (§ 224.3, subd. (a)(5); see § 224.2,
subd. (e)(2)(A).)
“Contact with a tribe” for the purpose of the agency’s duty of further inquiry
“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.” (§ 224.2, subd. (e)(2)(C).)
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
statutes that applied at the time of the finding from which the parents appeal. (In re A.M.
(2020) 47 Cal.App.5th 303, 321.)
Mother’s indication she had Native American ancestry gave the department a
“reason to believe” P.E. was an Indian child and therefore triggered the department’s
duty of further inquiry, requiring them to fulfill the requirements set forth in
section 224.3, subdivision (a)(5). (In re T.G. (2020) 58 Cal.App.5th 275, 292.)
However, the department, on this record, did not do so; there is no evidence the
department interviewed mother or other family members to gather the required familial
information, contacted the Bureau of Indian Affairs for assistance, or contacted or shared
any information with the relevant tribes in order for a determination to be made as to the
status of P.E.
7.
To the contrary, the department primarily relied on files and notes from a probate
guardianship case involving another one of mother’s children to determine an inquiry had
been made previously and that P.E. was not an Indian child. It appears, based on county
counsel’s representation, the department also asked the maternal grandfather about his
Cherokee ancestry, to which he responded that no one in his family was an “enrolled” or
“registered” member in a tribe.
As to any inquiry that occurred in a previous case, there are several reasons this
cannot serve as substantial evidence to support the juvenile court’s finding. First, as
mother points out, “a previous determination that [a] minor’s sibling[] w[as] not [an]
Indian child[] under [ICWA] is not dispositive of the minor’s Indian status because ‘[a]
determination of tribal membership is made on an individual basis.’ ” (In re Jonathan D.
(2001) 92 Cal.App.4th 105, 111.) Second, the record simply does not have enough
information to determine whether adequate further inquiry was conducted. The record
contains no information as to what tribes were contacted and what information was
provided to them for the tribes to make a determination of the child’s status. Finally, it is
unclear from the record as to when the previous inquiry was made. Even if a
determination for another child was adequate and the record contained the pertinent
information to determine whether the inquiry requirements were met, if the inquiry was
too remote in time, the department may have had a duty to determine whether any new
information was available which could affect whether P.E. was an Indian child, as the
department’s duty to inquire is a continuing one. The previous inquiry and/or
determination in the unrelated probate guardianship case involving another child, on this
record, was insufficient to support the juvenile court’s finding ICWA did not apply.
The representation from the maternal grandfather that no member of his family
was an “enrolled” or “registered” member of a tribe does not excuse the department from
its duty of further inquiry. The maternal grandfather’s assertion is not dispositive of
P.E.’s status as an Indian child. “The decision whether a child is a member of, or eligible
8.
for membership in, the tribe is the sole province of the tribe.” (In re Jack C. (2011)
192 Cal.App.4th 967, 980, declined to follow on other grounds by In re Abbigail A.
(2016) 1 Cal.5th 83, 96 fn. 3; see § 224.2, subd. (e)(2)(C).) Moreover, “[i]nformation
that the child is not enrolled, or is not eligible for enrollment in, the tribe is not
determinative of the child’s membership status unless the tribe also confirms in writing
that enrollment is a prerequisite for membership under tribal law or custom.” (§ 224.2,
subd. (h).) The maternal grandfather’s comments do not substitute for a determination
from a tribe as to whether P.E. was an Indian child as defined by ICWA and thus was not
substantial evidence on which the court could base its finding ICWA did not apply.
Further, there is no evidence father or any paternal relatives were asked about
Native American ancestry on their side of the family, and it does not appear father at any
point filled out an ICWA-020 form. Neither the department nor the court fulfilled its
duty of initial inquiry as to father.
The department’s focus in their briefing on there being no “reason to know” P.E.
was an Indian child is misplaced. While “reason to know” triggers formal notice
requirements, and we acknowledge that on the record there is no evidence to support a
“reason to know” P.E. is an Indian child, this does not in any event excuse the department
of its duty to conduct further inquiry triggered by the “reason to believe” established on
the record here.
Because the department’s further inquiry into mother’s claim of Native American
ancestry was inadequate, and because no ICWA inquiry was made of father, the juvenile
court’s finding ICWA did not apply was not supported by substantial evidence. Limited
remand is necessary in order for the department to comply with sections 224.2 and 224.3.
DISPOSITION
The juvenile court’s October 14, 2020 order terminating mother’s and father’s
parental rights is conditionally reversed. The matter is remanded to the juvenile court for
the department to conduct adequate inquiry required by sections 224.2 and 224.3, and for
9.
any further proceedings resulting therefrom. If, after the court finds adequate inquiry has
been made, the court finds ICWA applies, the court shall vacate its existing order and
proceed in compliance with ICWA and related California law. If the court finds ICWA
does not apply, the section 366.26 order shall remain in effect.
10.