In re RICKY R. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES v. N.G.
E078646
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
August 25, 2022
CERTIFIED FOR PUBLICATION; Super.Ct.No. SWJ1900660
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel, for Plaintiff and Respondent.
N.G. (Mother) appeals from the juvenile court‘s order terminating parental rights to her children, Ricky R. and Jayden R. Mother argues that the Riverside County Department of Public Social Services (DPSS) failed to discharge its duty of initial inquiry under state law implementing the Indian Child Welfare Act of 1978 (ICWA) (
We conclude that DPSS prejudicially erred by failing to comply with its duty of initial inquiry under ICWA-related state law. (
BACKGROUND
In October 2019, DPSS filed a petition under
Before the detention hearing, Mother told DPSS that she did not have any Indian ancestry.1 DPSS was unable to locate and interview Father. Mother and Father were not present at the detention hearing. But Mother‘s counsel said that she had asked Mother about Indian ancestry, and Mother denied any such ancestry. The court ordered both parents to complete Judicial Council form ICWA-020 (Parental Notification of Indian Status).
In preparation for the jurisdiction and disposition hearings, DPSS reported that it still was unable to locate Father. At the combined jurisdiction and disposition hearing, Mother told the court that she did not have any Indian ancestry. She also filed form ICWA-020 and checked the box on the form indicating that she did not have Indian ancestry, as far as she knew. The court found that DPSS had conducted a sufficient ICWA inquiry and that ICWA did not apply. The court also struck the allegation in the petition that Mother
DPSS located Father in April 2020. The agency asked whether he had any Indian ancestry, and Father said that he did not. At the six-month review hearing, the court ordered another six months of reunification services for Mother. The court also ordered reunification services for Father.
A few months later, maternal grandfather‘s application for placement was denied because his adult daughter lived in the home and had a criminal record. Another relative, maternal great-aunt, had applied for placement, but she ultimately withdrew the application. Maternal grandfather died in October 2020.
Father told DPSS that he was living with paternal grandmother and paternal great-grandmother in November 2020. DPSS contacted paternal grandmother and asked whether she wanted to be assessed for placement. Around the same time, Mother‘s cousin contacted DPSS and expressed an interest in having the children placed with her.
At the 12-month review hearing, the juvenile court terminated reunification services for both parents and set the matter for a
The children‘s foster parents were not willing to adopt the children. The court continued the
In August 2021, DPSS placed the children with Mother‘s cousin, who wanted to adopt them. Mother‘s cousin said that she and her family did not have any Indian ancestry. DPSS filed a status review report that contained contact information for a number of relatives—maternal grandmother, maternal aunt, paternal grandmother, and maternal great-aunt—but there was no indication in the report that DPSS had asked those relatives about Indian ancestry.
The continued
DISCUSSION
Mother argues that we must reverse the order terminating parental rights because DPSS failed to discharge its duty of initial inquiry under ICWA-related state law. We agree. In addition, we deny DPSS‘s motion to dismiss the appeal and its request to consider postjudgment evidence.
I. Reversible ICWA Error
ICWA establishes minimum federal standards that a state court must follow before removing Indian children from their families. (In re T.G. (2020) 58 Cal.App.5th 275, 287.) California law implementing ICWA also imposes requirements to protect the rights of Indian children, their families, and their tribes. (See
“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.” (Benjamin M., supra, 70 Cal.App.5th at p. 741.) DPSS and the juvenile court have an “affirmative and continuing duty to inquire” whether a child in a dependency proceeding “is or may be an Indian child.” (
The duty of initial inquiry applies in every dependency proceeding. (In re Austin J. (2020) 47 Cal.App.5th 870, 884-883 (Austin J.).) Federal regulations require state courts to ask each participant “at the commencement” of a child custody proceeding “whether the participant knows or has reason to know that the child is an Indian child.” (
“[R]eason to believe that an Indian child is involved” triggers the duty of further inquiry. (
The duty to provide notice arises only if DPSS or the court “knows or has reason to know that an Indian child is involved.” (
When DPSS fails to comply with the duty of initial inquiry under state law, we will find the error to be prejudicial and conditionally reverse if “the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.) That standard does not require “proof of an actual outcome (that the parent may actually have Indian heritage).” (Id. at pp. 743-744.) The missing information need only be relevant to the ICWA inquiry, “whatever the outcome will be.” (Id. at p. 744; see also In re Antonio R. (2022) 76 Cal.App.5th 421, 435 [“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
In this case, DPSS failed to discharge its duty of initial inquiry. DPSS asked the parents about Indian ancestry. But the agency failed to ask extended family members about it. What is more, the juvenile court erred by implicitly finding that ICWA did not apply, in the absence of evidence that DPSS had discharged its duty of initial inquiry in full. (In re J.C. (2022) 77 Cal.App.5th 70, 79-80.)
The ICWA error was prejudicial. The record shows that DPSS had contact information for several relatives who qualified as extended family members, including maternal grandmother, maternal aunt, and paternal grandmother. The agency even contacted paternal grandmother to ask about placement. The extended family members thus were readily available, and their responses would “shed meaningful light on whether there is reason to believe” that Ricky and Jayden are Indian children, whatever the outcome of the inquiry may be. (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
We therefore must conditionally reverse the order terminating parental rights. At a minimum, DPSS must contact the known extended family members to make the initial ICWA inquiry, and the juvenile court must determine whether DPSS has satisfied its ICWA duties and whether ICWA applies to the children.
II. Motion to Dismiss the Appeal as Moot
In an effort to avoid a conditional reversal, DPSS has filed a motion to dismiss Mother‘s appeal as moot on the basis of postjudgment evidence. For several reasons, we deny DPSS‘s request to consider the postjudgment evidence, and we deny the motion to dismiss.
The postjudgment evidence consists of two social worker declarations. In relevant part, the first declaration states that the social worker spoke to maternal grandmother and maternal aunt in June 2022, and both of them reported no Indian ancestry. The social worker also contacted paternal grandmother and paternal great-grandmother. Both of them reported that paternal great-great-grandparents, who were born in Nayarit, Mexico, had said the family was “‘part Indian.‘” But paternal grandmother and paternal great-grandmother could not remember which tribe. The social worker asked if it might be the Cora tribe, and paternal great-grandmother thought that was correct. The social worker believes the Cora is “an indigenous ethnic group
The second declaration states that the social worker attempted to contact maternal great-aunt at two different phone numbers in June 2022, but maternal great-aunt did not respond to the social worker‘s voicemail message.
DPSS requests that we consider the declarations under
First, we decline to take judicial notice of the declarations. DPSS relies on
Second, we decline to augment the record with the declarations. We may augment the record to include (1) documents filed or lodged in the superior court or (2) a certified transcript, or an agreed or settled statement, of oral proceedings in the superior court. (Cal. Rules of Court, rule 8.155(a)(1).) Again, there is no evidence that the declarations were filed or lodged in the juvenile court. “Augmentation does not function to supplement the record with materials not before the trial court.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 863 [document not presented to the trial court fell outside the scope of the augmentation rule and could not be considered by the appellate court].)
Third, we deny DPSS‘s request to consider the declarations under
In this case, however, the juvenile court should consider in the first instance whether DPSS discharged its duties under ICWA and related state law. (In re E.V. (2022) 80 Cal.App.5th 691, 700; In re Jennifer A. (2002) 103 Cal.App.4th 692, 703 [denying the agency‘s motion to take additional evidence consisting of ICWA notices, because “[m]aking the appellate court the trier of fact is not the solution“].) In her opposition to the motion to dismiss, Mother reserves the right to cross-examine the social worker declarants, present witnesses of her own, and otherwise question the accuracy of the statements in the declarations. The juvenile court should determine whether there is reason to believe or know that the children are Indian children, after Mother has had the opportunity to challenge DPSS‘s evidence. Further, the juvenile court should determine whether DPSS has contacted all readily available extended family members and otherwise fully discharged its ICWA duties, in light of any new evidence.
DPSS relies on In re Allison B. (2022) 79 Cal.App.5th 214 (Allison B.), a case in which the appellate court considered postjudgment evidence under
Allison B. is distinguishable and thus does not persuade us to consider DPSS‘s postjudgment evidence. The juvenile court in that case considered the postjudgment evidence (the LMI) in the first instance and made ICWA findings. That is what should occur in the case at hand, except that to the extent the juvenile court in Allison B. failed to give the parent an opportunity to challenge the evidence, the court here must do so.
Moreover, although the juvenile court should make ICWA findings in the first instance, we disapprove of the agency‘s approach in Allison B.—that is, presenting new ICWA evidence to the juvenile court while the order terminating parental rights is on appeal. “[S]ection 366.26, subdivision (i)(1), expressly deprives the juvenile court of jurisdiction to modify or revoke an order terminating parental rights once it is final as to that court.” (In re M.B., supra, 80 Cal.App.5th at p. 627, fn. omitted.) But “‘belated remedial ICWA efforts . . . [are] in substance a collateral attack on the termination order.‘” (Id. at p. 628.) If the new evidence of ICWA efforts undermines the prior finding that ICWA does not apply, the juvenile court is confronted with a dilemma: The termination order is invalid because it incorporates an erroneous ICWA finding, yet the juvenile court lacks jurisdiction to vacate the termination order to permit ICWA compliance. (Id. at pp. 628-629.) To avoid such a dilemma and still expedite the appellate process, the parties should stipulate to a conditional ICWA reversal and an immediate issuance of the remittitur.4 (Id. at p. 629; In re K.M. (2015) 242 Cal.App.4th 450, 458.) That way, the juvenile court may make ICWA findings on the basis of the new evidence, and there is no question about its jurisdiction.
For all of these reasons, we decline to consider the declarations under any of DPSS‘s theories—judicial notice, augmentation, or
DPSS‘s motion to dismiss the appeal is denied. The order terminating parental rights is conditionally reversed. On remand, the juvenile court shall order DPSS to comply with the duty of initial inquiry (
CERTIFIED FOR PUBLICATION
MENETREZ
J.
We concur:
McKINSTER
Acting P. J.
SLOUGH
J.