In re B.R. CA5 ( 2023 )

Filed 8/28/23 In re B.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 B.R., a Person Coming Under the Juvenile
Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F086057
SERVICES,
(Super. Ct. No. JD143529-00 )
Plaintiff and Respondent,
v. OPINION
B.R.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Christie Canales
Norris, Judge.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant
and Appellant.
Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Detjen, J. and Meehan, J.
INTRODUCTION
J.B. (mother) and B.R.R. (father) are the parents of B.R. (born September 2021).
Father appeals from the juvenile court’s order terminating his parental rights pursuant to
Welfare and Institutions Code section 366.26.1 He contends the Kern County
Department of Human Services (department) and the court failed to comply with the
inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA)
and related California law because proper inquiry was not conducted of extended family
members, and, as a result, notice to the tribes was incomplete.2 The department
concedes.
Consistent with our decisions in In re K.H. (2022) 84 Cal.App.5th 566 (K.H.) and
In re E.C. (2022) 85 Cal.App.5th 123 (E.C.), we conclude “the error is prejudicial
because neither the [department] nor the court gathered information sufficient to ensure a
reliable finding that ICWA does not apply and remanding for an adequate inquiry in the
first instance is the only meaningful way to safeguard the rights at issue. ([In re] A.R.
[(2021)] 11 Cal.5th [234,] 252–254.) Accordingly, we conditionally reverse the juvenile
court’s finding that ICWA does not apply and remand for further proceedings consistent
with this opinion, as set forth herein.” (K.H., at p. 591; accord, E.C., at pp. 157–158.)
1 All further statutory references are to the Welfare and Institutions Code.
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even
though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are
preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
2.
FACTUAL AND PROCEDURAL BACKGROUND3
Petition and Detention
On June 24, 2022, the department filed a petition on behalf of B.R. pursuant to
section 300, subdivision (b). The petition contained an Indian Child Inquiry Attachment
form (ICWA-010(A)) stating mother gave no reason to believe B.R. was or could be an
Indian child.
Neither parent appeared at the detention hearings in July 2022. The juvenile court
found a prima facie case had been established and ordered B.R. detained.
Jurisdiction and Disposition
On August 19, 2022, mother filed a Parental Notification of Indian Status form
(ICWA-020) denying Indian ancestry. That same day, the juvenile court held a combined
jurisdiction and disposition hearing. Both parents were present along with maternal
grandfather and maternal step-grandmother. The court conducted ICWA inquiries with
mother, father, and maternal grandfather. Mother again denied having Indian ancestry;
however, maternal grandfather stated the family had Cherokee ancestry through his
mother Martha H. (i.e., maternal great-grandmother). He provided her name and date of
birth, but stated she was deceased. He said his sister D.Q. and brother E.B. (i.e., maternal
great-aunt and great-uncle) might have more information about the family’s Indian
ancestry. He did not know if maternal grandmother had Indian ancestry. Father denied
having Indian ancestry. The court ordered the department to conduct further ICWA
inquiry and found the allegations in the petition true. The disposition hearing was
continued.
Prior to the disposition hearing, the department, in support of its ICWA inquiry,
filed a declaration of the department paralegal assigned to investigate the claim of Indian
3 Because the sole issue on appeal concerns ICWA, we restrict our facts to those
bearing on that issue or helpful for clarity.
3.
ancestry. Maternal grandfather, maternal great-uncle Brian G., and maternal aunt
Megan B. claimed Indian ancestry through the Cherokee tribe. Paternal great-uncle V.P.
and paternal aunt S.E. also claimed Cherokee tribal affiliation. The department paralegal
spoke with maternal grandfather and confirmed maternal great-grandmother’s maiden
name. The department then sent a Notice of Child Custody Proceeding for Indian Child
(ICWA-030) to the Eastern Band of Cherokee Indians, the United Keetoowah Band of
Cherokee Indians, and the Cherokee Nation. As of the date of the declaration, the
department had not received responses from the tribes. The notice was missing maternal
great-aunt D.Q. and great-uncle E.B.’s names.
On November 29, 2022, the juvenile court held a continued disposition hearing
and found ICWA did not apply, but noted that the department had a continuing duty
regarding ICWA. B.R. was removed from parental custody, the parents were bypassed
for reunification services, and the court set a section 366.26 hearing.
Section 366.26
The department’s section 366.26 report stated ICWA was found not to apply, and
new information had not been received. On March 29, 2023, the juvenile court
terminated parental rights.
On April 4, 2023, father filed a notice of appeal.
DISCUSSION
I. ICWA
A. Legal Principles
“ ‘ICWA is a federal law giving Indian tribes concurrent jurisdiction over state
court child custody proceedings that involve Indian children living off of a reservation’
[citations], in furtherance of ‘federal policy “ ‘that, where possible, an Indian child should
remain in the Indian community’ ” ’ [citations]. ‘ICWA establishes minimum federal
standards, both procedural and substantive, governing the removal of Indian children
from their families’ [citations], and ‘[w]hen ICWA applies, the Indian tribe has a right to
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intervene in or exercise jurisdiction over the proceeding.’ ” (K.H., supra,
84 Cal.App.5th 566, 594, fn. omitted; accord, E.C., supra, 85 Cal.App.5th at p. 138,
fn. omitted.)
“ ‘In 2006, California adopted various procedural and substantive provisions of
ICWA.’ [Citations.] The Legislature’s ‘primary objective … was to increase
compliance with ICWA. California Indian Legal Services (CILS), a proponent of the
bill, observed that courts and county agencies still had difficulty complying with ICWA
25 years after its enactment, and CILS believed codification of [ICWA’s] requirements
into state law would help alleviate the problem. [Citation.]’ ” (K.H., supra,
84 Cal.App.5th at p. 595; accord, E.C., supra, 85 Cal.App.5th at pp. 138–139.)
“ ‘In 2016, new federal regulations were adopted concerning ICWA compliance.
[Citation.] Following the enactment of the federal regulations, California made
conforming amendments to its statutes, including portions of the Welfare and Institutions
Code related to ICWA notice and inquiry requirements. [Citations.] Those changes
became effective January 1, 2019 .…’ [Citation.] Subsequently, the Legislature
amended section 224.2, subdivision (e), to define ‘reason to believe,’ effective
September 18, 2020.” (K.H., supra, 84 Cal.App.5th at pp. 595–596, fn. omitted; accord,
E.C., supra, 85 Cal.App.5th at p. 139.)
1. Summary of Duties of Inquiry and Notice
“[W]hether a child is a member, or is eligible for membership, in a particular tribe
is a determination that rests exclusively with the tribe, and neither the [department] nor
the court plays any role in making that determination. [Citations.] ‘ “Because it typically
is not self-evident whether a child is an Indian child, both federal and state law mandate
certain inquiries to be made in each case.” ’ ” (K.H., supra, 84 Cal.App.5th at p. 596;
accord, E.C., supra, 85 Cal.App.5th at pp. 139–140.)
“In California, section 224.2 ‘codifies and elaborates on ICWA’s requirements of
notice to a child’s parents or legal guardian, Indian custodian, and Indian tribe, and to the
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[Bureau of Indian Affairs].’ ” (In re A.R. (2022) 77 Cal.App.5th 197, 204.) California
law imposes “an affirmative and continuing duty [on the court and the county welfare
department] to inquire whether a child for whom a petition under [s]ection 300 … may be
or has been filed, is or may be an Indian child.” (§ 224.2, subd. (a).)
“The [state law] duty to inquire begins with the initial contact, including, but not
limited to, asking the party reporting child abuse or neglect whether the party has any
information that the child may be an Indian child.” (§ 224.2, subd. (a).) “If a child is
placed into the temporary custody of a county welfare department pursuant to
[s]ection 306[,] … the county welfare department … has a duty to inquire whether that
child is an Indian child. Inquiry 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 and where the child, the parents, or Indian custodian is domiciled.”
(§ 224.2, subd. (b).) Additionally, “[a]t the first appearance in court of each party, the
court shall ask each participant present in the hearing whether the participant knows or
has reason to know that the child is an Indian child. The court shall instruct the parties to
inform the court if they subsequently receive information that provides reason to know
the child is an Indian child.” (§ 224.2, subd. (c).)
“If the initial inquiry provides ‘reason to believe’ that an Indian child is involved
in a proceeding—that is, if the court or social worker ‘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’—then the court or social worker ‘shall make further inquiry’ regarding
the child’s possible Indian status as soon as practicable.” (In re Ezequiel G. (2022)
81 Cal.App.5th 984, 999 (Ezequiel G.), citing § 224.2, subd. (e).) “Further inquiry
‘includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents,
Indian custodian, and extended family members[;] [¶] (B) Contacting the Bureau of
Indian Affairs and the State Department of Social Services[; and] [¶] (C) Contacting the
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tribe or tribes and any other person that may reasonably be expected to have information
regarding the child’s membership, citizenship status, or eligibility.’ ” (Ezequiel G., at
p. 999.)
“If there is ‘reason to know’ a child is an Indian child, the [department] shall
provide notice to the relevant tribes and agencies in accordance with section 224.3,
subdivision (a)(5).” (Ezequiel G., supra, 81 Cal.App.5th at p. 999, citing § 224.2,
subd. (f).) “There is ‘reason to know’ a child is an Indian child if any one of six statutory
criteria is met—i.e., if the court is advised that the child ‘is an Indian child,’ the child’s or
parent’s residence is on a reservation, the child is or has been a ward of a tribal court, or
either parent or the child possess an identification card indicating membership or
citizenship in an Indian tribe.” (Ezequiel G., at p. 999, citing § 224.2, subd. (d).)
County welfare departments “must on an ongoing basis include in its filings a
detailed description of all inquiries, and further inquiries it has undertaken, and all
information received pertaining to the child’s Indian status, as well as evidence of how
and when this information was provided to the relevant tribes. Whenever new
information is received, that information must be expeditiously provided to the tribes.”
(Cal. Rules of Court, rule 5.481(a)(5).)4
B. Standard of Review
“The juvenile court’s finding that ICWA does not apply to the proceeding rests on
two elemental determinations, ‘subject to reversal based on sufficiency of the
evidence.’ ” (K.H., supra, 84 Cal.App.5th at p. 601, quoting § 224.2, subd. (i)(2); accord,
E.C., supra, 85 Cal.App.5th at pp. 142–143.) First, “[t]he court must find there is ‘no
reason to know whether the child is an Indian child,’ which is dependent upon whether
any of the six circumstances set forth in subdivision (d) of section 224.2 apply.” (K.H., at
p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.) Second, “[t]he juvenile
4 All further references to rules are to the California Rules of Court.
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court must … find a ‘proper and adequate further inquiry and due diligence .…’ ” (K.H.,
at p. 601, quoting § 224.2, subd. (i)(2); accord, E.C., at p. 143.)
Under the substantial evidence standard, “ ‘a reviewing court should “not reweigh
the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.”
[Citation.] The determinations should “be upheld if … supported by substantial
evidence, even though substantial evidence to the contrary also exists and the trial court
might have reached a different result had it believed other evidence.” ’ [Citations.] The
standard recognizes that ‘[t]rial courts “generally are in a better position to evaluate and
weigh the evidence” than appellate courts’ [citation], and ‘an appellate court should
accept a trial court’s factual findings if they are reasonable and supported by substantial
evidence in the record’ [citation]. ‘[I]f a court holds an evidentiary hearing, it may make
credibility determinations, to which an appellate court would generally defer.’ ” (K.H.,
supra, 84 Cal.App.5th at p. 601; accord, E.C., supra, 85 Cal.App.5th at p. 143.)
The juvenile court’s finding on the second element, however, “is ultimately
discretionary because it requires the juvenile court to ‘engage in a delicate balancing of’
various factors in assessing whether the [department’s] inquiry was proper and adequate
within the context of ICWA and California law, and whether the [department] acted with
due diligence.” (K.H., supra, 84 Cal.App.5th at p. 601, quoting In re Caden C. (2021)
11 Cal.5th 614, 640; accord, E.C., supra, 85 Cal.App.5th at p. 143; Ezequiel G., supra,
81 Cal.App.5th at pp. 1004–1005.) Therefore, we employ a hybrid standard and review
the court’s determination for substantial evidence and abuse of discretion. (K.H., at
p. 601; accord, E.C., at pp. 143–144; Ezequiel G., at pp. 1004–1005.)
“ ‘Review for abuse of discretion is subtly different [from review for substantial
evidence], focused not primarily on the evidence but the application of a legal standard.
A court abuses its discretion only when “ ‘ “the trial court has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination.” ’ ”
[Citation.] But “ ‘ “[w]hen two or more inferences can reasonably be deduced from the
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facts, the reviewing court has no authority to substitute its decision for that of the trial
court[.]” ’ ” [Citations.] [¶] While each standard here fits a distinct type of
determination under review, the practical difference between the standards is not likely to
be very pronounced.’ ” (K.H., supra, 84 Cal.App.5th at p. 602; accord, E.C., supra,
85 Cal.App.5th at pp. 143–144.)
“Review of the juvenile court’s findings under the foregoing standards is
deferential, but ‘ “an appellate court [nevertheless] exercises its independent judgment to
determine whether the facts satisfy the rule of law.” ’ [Citations.] Where the material
facts are undisputed, courts have applied independent review to determine whether
ICWA’s requirements were satisfied.” (K.H., supra, 84 Cal.App.5th at p. 602; accord,
E.C., supra, 85 Cal.App.5th at p. 144.)
C. Analysis
1. Summary of ICWA Inquiry and Notice
In the present case, father denied Indian ancestry in court, but the department’s
contacts with paternal great-uncle V.P. and paternal aunt S.E. revealed Cherokee tribal
affiliation. Mother also denied Indian ancestry, but the court’s inquiry of maternal
grandfather also revealed Cherokee affiliation on the maternal side of the family. The
department made contact with maternal great-uncle Brian and maternal aunt Megan, who
also claimed tribal affiliation. Thereafter, the department sent notices to the three
federally recognized Cherokee tribes. However, the notice was missing the names of
maternal great-aunt D.Q. and maternal great-uncle E.B. Further, the record does not
contain information about the responses received from the tribes. Nevertheless, the court
found ICWA did not apply.
In K.H. and E.C., we addressed ICWA error at the inquiry stage. There, we
explained our decision not to follow the approaches articulated by other appellate courts
for determining whether ICWA error requires reversal and concluded that the Supreme
Court’s decision in In re A.R. supplies the appropriate framework for assessing prejudice
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in this context. (K.H., supra, 84 Cal.App.5th at pp. 607–608, citing In re A.R., supra,
11 Cal.5th at pp. 252–254; accord, E.C., supra, 85 Cal.App.5th at p. 152.) Applying the
standards we articulated in K.H. and E.C., as we discuss below, we conclude the
department’s error is prejudicial and remand for the department to conduct a proper,
adequate, and duly diligent inquiry is necessary.
2. The Department and Juvenile Court Erred
As previously mentioned, when “a child is placed into the temporary custody of a
county welfare department[,] … the county welfare department … has a duty to inquire
whether [the] child is an Indian child. Inquiry 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 and where the child, the parents, or Indian custodian
is domiciled.” (§ 224.2, subd. (b).) Extended family members include adult
grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and
first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
Here, the department failed to inquire of maternal great-aunt D.Q. and maternal
great-uncle E.B., who maternal grandfather identified as possibly having more
information. This fell short of complying with the plain language of section 224.2,
subdivision (b). There may be cases in which there is no one else to ask, but if that is so,
the record must be developed to reflect that fact and be supported by documentation.
(Rule 5.481(a)(5).) “On a well-developed record, the court has relatively broad
discretion [in such cases] to determine [that] the [department’s] inquiry was proper,
adequate, and duly diligent on the specific facts of the case.” (K.H., supra,
84 Cal.App.5th at p. 589; accord, E.C., supra, 85 Cal.App.5th at p. 157.) In addition,
there is no mention in the record of the responses received by the tribes. Accordingly, the
juvenile court’s finding that ICWA did not apply was not supported by substantial
evidence, and its contrary conclusion was an abuse of discretion. (§ 224.2, subd. (i)(2).)
10.
3. Prejudice
“Where, as here, the deficiency lies with the [department’s] duty of … inquiry and
a juvenile court’s related finding of ‘proper and adequate further inquiry and due
diligence’ (§ 224.2, subd. (i)(2)), the error is one of state law ([In re] Benjamin M., supra,
70 Cal.App.5th at p. 742). Under the California Constitution, ‘[n]o judgment shall be set
aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of
the improper admission or rejection of evidence, or for any error as to any matter of
pleading, or for any error as to any matter of procedure, unless, after an examination of
the entire cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)”
(K.H., supra, 84 Cal.App.5th at p. 606; accord, E.C., supra, 85 Cal.App.5th at p. 151.)
“ ‘[T]o be entitled to relief on appeal from an alleged abuse of discretion, it must
clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of
justice’ [citations], and California law generally interprets its constitutional miscarriage
of justice requirement ‘as permitting reversal only if the reviewing court finds it
reasonably probable the result would have been more favorable to the appealing party but
for the error.’ ” (K.H., supra, 84 Cal.App.5th at pp. 606–607; accord, E.C., supra,
85 Cal.App.5th at pp. 151–152.)
However, in In re A.R., the Supreme Court “recognized that while we generally
apply a Watson[5] likelihood-of-success test to assess prejudice, a merits-based
outcome-focused test is not always appropriate because it cannot always adequately
measure the relevant harm. [Citation.] In other words, where the injury caused by the
error is unrelated to an outcome on the merits, tethering the showing of prejudice to such
an outcome misplaces the measure, at the expense of the rights the law in question was
designed to protect.” (K.H., supra, 84 Cal.App.5th at p. 609, italics omitted.)
5 People v. Watson (1956) 46 Cal.2d 818, 836.
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As we explained in K.H., “ ‘ICWA compliance presents a unique situation .…’ ”
(K.H., supra, 84 Cal.App.5th at p. 608.) “ICWA is not directed at reaching, or
protecting, a specific outcome on the merits.” (Id. at p. 609; accord, E.C., supra,
85 Cal.App.5th at p. 154.) Rather, “ ‘[t]he purpose of ICWA and related California
statutes is to provide notice to the tribe sufficient to allow it to determine whether the
child is an Indian child, and whether the tribe wishes to intervene in the proceedings’
[citation], and an adequate initial inquiry facilitates the information gathering upon which
the court’s ICWA determination will rest.” (K.H., at p. 608; accord, E.C., at pp. 152–
153.) Yet, “while the appealing party is usually a parent, parents do not bear the burden
of gathering information in compliance with ICWA [citations], and parents may raise the
claim of error for the first time on appeal.” (K.H., at p. 608; accord, E.C., at p. 153.)
Further, the ultimate determination whether a child is an Indian child rests with the tribe,
not with a parent, the department, or the juvenile court. (K.H., at p. 590; accord, E.C., at
pp. 139–140.) “[W]here the opportunity to gather the relevant information critical to
determining whether the child is or may be an Indian child is lost because there has not
been adequate inquiry and due diligence, reversal for correction is generally the only
effective safeguard.” (K.H., at p. 610, citing In re A.R., supra, 11 Cal.5th at pp. 252–254;
accord, E.C., at p. 155.)
Here, the department’s inquiry “ ‘fell well short of that required to gather the
information needed to meaningfully safeguard the rights of the tribes, as intended under
ICWA and California law’ ” (E.C., supra, 85 Cal.App.5th at p. 156, quoting K.H., supra,
84 Cal.App.5th at p. 620), and “[a] finding of harmlessness on this record would
necessarily require speculation and ‘is at odds with the statutory protections that ICWA
and California law intend to afford Indian children and Indian tribes.’ ” (E.C., at p. 155,
quoting K.H., at p. 611.) Therefore, the error is prejudicial and reversal is required.
Accordingly, the juvenile court’s finding that ICWA does not apply is
conditionally reversed and the matter is remanded. The court is instructed to ensure the
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department conducts “ ‘a proper, adequate, and duly diligent inquiry under section 224.2,
subdivision[s] (b) [and (e)], and document its inquiry in the record in compliance with
rule 5.481(a)(5).’ ” (E.C., supra, 85 Cal.App.5th at p. 157, quoting K.H., supra,
84 Cal.App.5th at p. 621.) “ ‘This should not be interpreted as requiring an exhaustive
search for and questioning of every living relative of [B.R.]’ but ‘[w]e leave that
determination for the juvenile court in the first instance because it is better positioned to
evaluate the evidence provided by the [d]epartment. So long as the court ensures the
inquiry is reasonable and of sufficient reach to accomplish the legislative purpose
underlying ICWA and related California law, the court will have an adequate factual
foundation upon which to make its ICWA finding. (§ 224.2, subd. (i)(2).)’ ” (Ibid.)
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, subdivisions (b)
and (e), and 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 is affirmed.
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