D.S., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
E079017
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 2/15/23
Super.Ct.No. J290699
Lynn M. Poncin, Judge.
CERTIFIED FOR PARTIAL PUBLICATION*
Pursuant to
Jamie A. Moran, by appointment of the Court of Appeal, for Petitioner.
Tom Bunton, County Counsel, Joseph R. Barrell and Glen C. Moret, Deputy County Counsel, for Real Party in Interest.
I. INTRODUCTION
Petitioner D.S. (Mother) is the adoptive mother of A.S. In 2021, San Bernardino County Children and Family Services (CFS) filed a petition pursuant to
However, on appeal, Mother does not address any issue encompassed by her
As a result, we construe Mother‘s appeal as a petition for extraordinary writ seeking an order directing the juvenile court and CFS to comply with their statutory duties under ICWA and the related California statutes; and, upon consideration of the matter on the merits, we grant the requested relief.
II. FACTS AND PROCEDURAL HISTORY
Mother is the only adoptive parent of A.S. On September 28, 2021, CFS filed a petition on behalf of A.S. pursuant to
At a contested jurisdictional and dispositional hearing held on January 3, 2022, the juvenile court found that ICWA did not apply, denied further reunification services to Mother, and set the matter for a permanency planning hearing pursuant to
On May 16, 2022, Mother filed a petition pursuant to
III. DISCUSSION
A. We Will Construe Mother‘s Appeal as a Petition Seeking a Writ of Mandate
“” “[A]n appealable judgment or order is a jurisdictional prerequisite to an appeal.“’ [Citations.] ... “Appeals in dependency proceedings are governed by
Further, we observe that ordinarily, the failure to comply with statutory duties under ICWA is not grounds for reversal of juvenile dependency orders issued prior to termination of parental rights. ( In re S.H. (2022) 82 Cal.App.5th 166, 177-179 [failure to conduct proper initial inquiry under ICWA does not warrant reversal of jurisdictional and dispositional orders]; In re Dominick D. (2022) 82 Cal.App.5th 560, 567 [“ICWA inquiry and notice errors do not warrant reversal of the juvenile court‘s jurisdictional or dispositional findings and orders other than the ICWA finding itself.“].) Instead, to the extent any party believes that an order directing ICWA compliance is necessary while a juvenile dependency proceeding is still pending, that party should seek review by petition for extraordinary writ. (See
Nevertheless, we recognize that ” ‘[t]he best interest of the child is the fundamental goal of the juvenile dependency system, underlying the three primary goals of child safety, family preservation, and timely permanency and stability.‘” ( In re Joshua A. (2015) 239 Cal.App.4th 208, 218.) Because CFS has chosen to respond to Mother‘s contention on the merits and has not conceded that it has any duty under ICWA in this case, we do not believe the interests of justice or the best interests of A.S. are served by declining to the address the issue of ICWA compliance, only to have the issue raised anew in a subsequent appeal from a future permanency planning order.
Thus, we will exercise our discretion to construe Mother‘s appeal as a petition for writ of mandate ( Olson v. Cory (1983) 35 Cal.3d 390, 400-401
B. Legal Background and Standard of Review
“Congress enacted ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement, usually in non-Indian homes. [Citation.] ICWA established minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes.” ( In re D.S. (2020) 46 Cal.App.5th 1041, 1048.)
The Welfare and Institutions Code “creates three distinct duties regarding ICWA in dependency proceedings. First, from the [department‘s] initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. [Citation.] Second, if that initial inquiry creates a ‘reason to believe’ the child is an Indian child, then the [department] ‘shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.’ [Citation.] Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of
Following the inquiry stages, the juvenile court may make a finding that ICWA does not apply because the department‘s inquiry and due diligence was ” ‘proper and adequate’ but no ‘reason to know’ whether the child is an Indian child was discovered.” ( In re D.S., supra, 46 Cal.App.5th at p. 1050.) However, the duty to inquire is ” ‘an affirmative and continuing duty’ ” and the juvenile court ” ‘shall reverse its determination if it subsequently receives information providing reason to believe that the child is an Indian child and order the social worker or probation officer to conduct further inquiry.‘” ( In re D.S., at p. 1048, 1050; In re K.R. (2018) 20 Cal.App.5th 701, 706 [“[T]he juvenile court has a continuing duty to conduct an inquiry when it has received information that a dependent child might be an Indian child, as defined by ICWA . . . .“].)
C. The Department Failed To Comply with Its Statutory Duty of Inquiry
Mother claims that CFS failed to fulfill its duty of initial inquiry because the record does not show any effort to interview extended family members in order to determine whether any information might exist that would suggest A.S. is an Indian child. We agree.
The record in this case indicates that Mother provided contact information for a maternal uncle, maternal aunt, and maternal grandparents at the time of the detention hearing. The record also shows that A.S. identified the existence of these relatives when speaking with a social worker. However, none of CFS‘s reports document any effort to contact any of these individuals for the purpose of making an ICWA inquiry. Thus, the record does not support an implied finding that CFS fulfilled its duty of initial inquiry under ICWA or the juvenile court‘s finding that ICWA does not apply.
CFS concedes that its efforts in this case would normally be insufficient to fulfill its statutorily mandated duty of inquiry, but it argues that it had no duty to conduct an inquiry under the unique facts of this case because all of the identified relatives were adoptive relatives. In support of this argument, CFS relies on In re Francisco D. (2014) 230 Cal.App.4th 73 (Francisco D.), which concluded that ICWA is inapplicable unless the child is ” ‘a member of an Indian Tribe‘” or “the biological child of a member of a tribe” ( In re Francisco D., at pp. 83-84). We disagree.
First, as acknowledged by CFS, Francisco D. predates the current statutory scheme. Under the current statutory scheme,
Second, we do not believe the logic of Francisco D. can be extended to apply to the current statutory scheme. Specifically,
find no basis to conclude that the duty of inquiry imposed under
As CFS concedes, the record in this case clearly shows that it failed to contact multiple known family members for the purpose of fulfilling its duty of inquiry under ICWA, and the failure to do so is not excused simply because these family members may be related by adoption.
D. The Record Does Not Permit Us To Conclude CFS‘s Failure Was Harmless
CFS also argues that, even if it failed to fulfill its duty of inquiry, any such failure should be deemed harmless. We disagree.
We acknowledge that the standard of prejudice requiring reversal in cases involving ICWA is unsettled in the Courts of Appeal. ( In re Antonio R. (2022) 76 Cal.App.5th 421, 433 [“Courts of Appeal are divided as to whether a parent must make an affirmative showing of prejudice to support reversal . . . .“].) However, this court has adopted the standard of prejudice articulated in In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.), which rejects both an automatic rule of reversal or a rule that places the burden squarely on the parents to show the likelihood of obtaining a more favorable result. ( Id. at pp. 743-745.) Instead, we explained that reversal is required “where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” ( Id. at p. 744.)
CFS concedes that under this standard, the record discloses that there was “readily available information that could have been gathered from the relatives,” but it questions whether any such information would have borne meaningfully on whether A.S. was an Indian child. However, in considering the prejudicial effect of a social services agency‘s failure to discharge its duty to inquire under ICWA, this court has repeatedly held that the failure to comply with an initial duty of inquiry is deemed prejudicial in the absence of information in the record to suggest otherwise. ( In re K.R., supra, 20 Cal.App.5th at p. 709; In re N.G. (2018) 27 Cal.App.5th 474, 484; Benjamin M., supra, 70 Cal.App.5th at pp. 744-745.) As this court has previously explained: “[W]here the record does not show what, if any, efforts the agency made to discharge its duty of inquiry [citations]; . . . the burden of making an adequate record demonstrating the court‘s and the agency‘s efforts to comply with ICWA‘s inquiry and notice requirements must fall squarely and affirmatively on the court and the agency,” and “as a general rule, we will find the appellant‘s claims of ICWA error prejudicial and reversible.” ( In re N.G., at p. 484.)
CFS argues that information held by extended family members in this case would be unlikely to bear meaningfully on whether A.S. was an Indian child because Mother already denied knowledge of Indian heritage, and there was no evidence that she was estranged from the identified family members. We disagree. “In determining whether the failure to make an adequate initial inquiry is prejudicial, we ask whether the information in the hands of the extended family members is likely to be meaningful in determining whether the child is an Indian child, not whether the information is likely to show the child is in fact an Indian child. In most circumstances, the information in the possession of extended relatives is likely to be meaningful in determining whether the child is an Indian child—regardless of whether the information ultimately shows the child is or is not an Indian child.” ( In re Antonio R., supra, 76 Cal.App.5th at p. 435; Benjamin M., supra, 70 Cal. App.5th at p. 745 [“While we cannot know how [a relative] would answer the inquiry, [the relative‘s] answer is likely to bear meaningfully on the determination at issue . . . .“].) Thus, the fact that family members might further disavow knowledge of potential Indian ancestry is not dispositive.
On this record,4 it is clear that the information known to relatives was “likely to bear meaningfully” upon whether A.S. is an Indian child. Under Benjamin M., even if the identified relatives responded to an ICWA inquiry by confirming their lack of information, such an answer assists CFS and the juvenile court in making a fully informed determination regarding whether ICWA applies. Under this court‘s precedent, we cannot conclude that the failure to make such an inquiry was harmless.
IV. DISPOSITION
The petition for extraordinary writ is granted. Let a preemptory writ of mandate issue directing the juvenile court and CFS to comply with the inquiry provisions of ICWA and of
CERTIFIED FOR PARTIAL PUBLICATION
FIELDS J.
We concur:
MILLER Acting P. J.
CODRINGTON J.