In re K.T.
- Reporters:
- ,
- Before:
- Slough, Raphael, Menetrez
OPINION
To effectuate the Indian Child Welfare Act‘s (ICWA)1 goal of protecting the best interests of Indian children in custody proceedings, our Legislature amended the Welfare and Institutions Code to require child protection agencies to conduct further inquiry into ICWA‘s applicability when there is “reason to believe” an Indian child is involved.2 The amendment, which took effect in January 2019, requires social workers to contact—“as soon as practicable“—extended family members, the Bureau of Indian Affairs (BIA), the relevant tribe or tribes, “and any other person that may reasonably be expected to have information regarding” the child‘s membership or eligibility for tribal membership. (
Early on in the case, the children‘s mother and K.T.‘s father (father) reported they had possible Cherokee, Choctaw, and Blackfeet ancestry and gave CFS contact information for family members who might be able to provide more detail. CFS never followed up, and the juvenile court found ICWA didn‘t apply without first ensuring CFS had pursued these leads. About two years into the proceedings, after the parents failed to reunify with the children, the court determined they were likely to be adopted and terminated parental rights.
On appeal, mother and father argue that despite having reason to believe K.T. and D. were Indian children, CFS failed to conduct adequate further inquiry under
We publish our opinion not because the errors that occurred are novel but because they are too common. Child protective agencies and juvenile courts have important obligations under ICWA. Failing to satisfy them serves only to add unnecessary uncertainty and delay into proceedings that are already
I
FACTS
CFS began investigating this family for physical abuse in January 2019 after one of mother‘s children died in her care and the autopsy revealed the child bore signs of nonaccidental trauma. At the time, mother and D.‘s father, D.M., were living together and caring for K.T. and his younger half brother, D.M., Jr., who is not a party to this appeal. D. had not yet been born, and K.T.‘s father, was incarcerated.
At the initial detention hearing in March 2019, mother claimed Blackfeet ancestry through the maternal grandfather. She provided his full legal name and phone number, as well as the name, phone number, and address of the maternal aunt. The maternal grandmother, who was also present at the hearing, provided dates and places of birth for the maternal grandfather and great-grandmother. The juvenile court told mother CFS would try to obtain additional information from these family members, but the record contains no indication they ever did. Instead, a few weeks later, CFS sent notice to the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana that omitted tribal and biological information for the maternal great-grandmother, despite the maternal grandmother having provided some of that information at the detention hearing.
On April 12, 2019, father filed an ICWA-020 form claiming Cherokee and Blackfeet ancestry through the paternal great-grandfather and his relative “Edna C.” A few days later, he made his first court appearance, accompanied by the paternal grandmother. He reported possible Choctaw ancestry, and the paternal grandmother provided dates and places of birth for herself and the paternal great-grandfather. On April 29, he filed a second ICWA-020 form listing only Choctaw ancestry.
On June 20, CFS sent notice to the Blackfeet and Cherokee tribes but did not send notice to any of the three federally recognized Choctaw tribes. (86 Fed.Reg. 7554-7558 (Jan. 29, 2021); see also
The court held the jurisdiction and disposition hearing for K.T. and D.M., Jr., on June 24, 2019. It sustained allegations of physical abuse against mother and D.M., took dependency jurisdiction over the children under
Shortly after mother gave birth to D. in October 2019, CFS filed a dependency petition on the infant‘s behalf under
In February 2020, the court took dependency jurisdiction over D. and removed her from mother and D.M.
By June 2020, the Blackfeet Tribe and two of the three federally recognized Cherokee tribes—the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians—had responded that D. did not qualify for membership. The court found CFS had completed ICWA noticing for D. and ICWA did not apply.
In August 2020, the juvenile court returned K.T. and D. to mother and D.M. after finding they had made sufficient progress on their case plans and no longer posed a substantial risk of harm to the children. About two
On April 14, 2021, the court found ICWA did not apply to either K.T. or D. At the children‘s permanency planning hearing several months later in September 2021, the court terminated mother‘s, D.M.‘s, and father‘ss parental rights. The court found both K.T. and D. were bonded to their current caregivers and selected adoption as their permanent plan.
II
ANALYSIS
Mother and father argue CFS failed to adequately investigate the children‘s status as Indian children, and D.M. joins mother‘s argument as it relates to D. (See In re T.G. (2020) 58 Cal.App.5th 275, 291 [“Non-Indian parents have standing to raise issues of ICWA compliance on appeal“].) CFS concedes their error.
A. ICWA‘s Purpose and Protections
Congress enacted ICWA over 40 years ago to address “‘abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.‘” (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Congress found “‘that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.‘” (In re W.B. (2012) 55 Cal.4th 30, 48, quoting
In short, ICWA‘s aim is ‘“that, where possible, an Indian child should remain in the Indian community.“’ (In re W.B., supra, 55 Cal.4th at p. 48.) ICWA effectuates this goal by giving Indian tribes concurrent jurisdiction
When ICWA applies, the Indian tribe has a right to intervene in or exercise jurisdiction over the proceeding. (
B. Notice to Tribes
ICWA applies to any child custody proceeding involving an “Indian child,” which is defined as an unmarried person under 18 who is either a member of an Indian tribe or is eligible for membership and is the biological child of a tribe member. (
Under
Notices must include the identifying information for the child‘s biological parents, grandparents, and great-grandparents, to the extent known. (
Failure to comply with ICWA‘s notice provisions and determine whether the statute applies constitutes prejudicial error requiring reversal. (In re L.S. (2014) 230 Cal.App.4th 1183, 1197; In re B.H. (2015) 241 Cal.App.4th 603, 608-609.)
C. Initial Inquiry
To ensure that tribes receive notice when required, the court and child protective agency have an “affirmative and continuing duty to inquire” whether a child in dependency proceedings “is or may be an Indian child.” (
The court and child protective agency are obligated to ask all relevant individuals involved, including the person who reported the abuse or neglect, “whether the child is, or may be, an Indian child.” (
Effective January 2019, the Legislature imposed a duty to conduct additional investigation into a child‘s possible status as an Indian child if the court or agency has “reason to believe” the child is an Indian child. (
To satisfy the duty, the agency must, “as soon as practicable,” interview the parents and extended family members, contact the BIA, and 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.” (
E. CFS Did Not Adequately Investigate the Parents’ Claims of Indian Ancestry
CFS is correct to concede their failure to satisfy the duty of further inquiry. The claims of Indian ancestry and the family information provided by mother, the maternal great-grandmother, father, and the paternal grandmother at the outset of this case unquestionably provided reason to believe that K.T. (and later D.) is an Indian child, thereby triggering a duty investigate. But, as far as the record shows, CFS made no investigation. As to mother, they should have tried to contact the maternal grandfather or maternal aunt to obtain additional information about possible Blackfeet and Cherokee heritage, and they should have contacted BIA and the Blackfeet and Cherokee tribes to inquire about mother‘s family. (
CFS does not discharge their duty of further inquiry until they make a “meaningful effort” to locate and interview extended family members and to contact BIA and the tribes. (In re K.R. (2018) 20 Cal.App.5th 701, 709.) “[J]ust as proper notice to Indian tribes is central to effectuating ICWA‘s purpose, an adequate investigation of a family member‘s belief a child may have Indian ancestry is essential to ensuring a tribe entitled to ICWA notice will receive it.” (In re T.G., supra, 58 Cal.App.5th at p. 289.) Mother‘s and father‘s claims of Indian heritage may lead to a dead end, but that determination should be the result of investigation not assumption.
And, because CFS didn‘t adequately investigate those claims, the juvenile court should not have found that ICWA did not apply. (In re T.G., supra, 58 Cal.App.5th at p. 293.) “[T]he court had a duty either to require [CFS] to provide a report with complete and accurate information regarding the results of [their] inquiry and notice or to have the individual responsible for notice to testify in court regarding the inquiry made, the results of the inquiry, and the results of the notices sent. Only then could the court determine whether [ICWA] applied.” (In re L.S., supra, 230 Cal.App.4th at p. 1198.)
Over the past three years there have been a significant number of cases from this county in which the failure to adequately investigate ICWA‘s application required the reversal of orders terminating parental rights. Our division has recently published two such decisions, but the vast majority of cases—at least seventeen by our count—were resolved in unpublished decisions. (In re S.R., supra, 64 Cal.App.5th 303 [failure to satisfy duty of further inquiry required reversal of order terminating parental rights]; In re Benjamin M., supra, 70 Cal.App.5th 735 [failure to satisfy duty of initial inquiry required same]; see also In re A.C. (2021) 65 Cal.App.5th 1060 (dis. opn. of Menetrez, J.) [disagreeing with the majority‘s conclusion that CFS‘s failure to satisfy duty of initial inquiry was harmless].)
ICWA is a vital aspect of our dependency framework, and both social workers and judges have affirmative and continuing duties to follow it—regardless of the actions of the parents involved or the underlying reasons for the dependency. As our Supreme Court explained in In re Isaiah W., our state‘s goal of providing children with permanent and stable homes does not override the importance of properly determining a child‘s Indian status and protecting the integrity and stability of Indian tribes. (In re Isaiah W., supra, 1 Cal.5th at p. 12.) ICWA compliance should be “swift and early.” (Ibid.)
III
DISPOSITION
We conditionally reverse the
CERTIFIED FOR PUBLICATION
SLOUGH
Acting P. J.
We concur:
RAPHAEL
J.
MENETREZ
J.