In re T.G.
The sole issue in both appeals is whether the juvenile court and the Los Angeles County Department of Children and Family
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Proceedings
The children were initially removed from parental custody on December 1, 2017. Jazmine and P.G. were placed with nonrelated extended family members Bridget L. and her husband, Eric L.2 T.G. and N.G. were initially placed with their maternal grandmother, Loretta S., but in July 2018 joined Jazmine and P.G. at Bridget and Eric‘s home.
On December 7, 2017 the Department filed a petition on behalf of the children pursuant to
In February 2018 the juvenile court ordered a paternity test be conducted for Jason and Jazmine. In March 2018 the court found Jason was Jazmine‘s biological father based on the DNA test results.
On March 28, 2018 the Department filed a first amended petition adding allegations concerning Tamara‘s history of abuse of prescription drugs and Jason‘s criminal history. In addition, the first amended petition alleged Tamara had neglected Jazmine‘s medical needs.
The court sustained in part the first amended petition, as further amended by interlineation, at a jurisdiction hearing on April 20, 2018.3 The children were declared dependents of the juvenile court and suitably placed under the supervision of the Department. The court ordered family reunification services for Tamara and Shaka. No services were ordered for Jason, who was
At the six-month review hearing (
The Department initially recommended adoption as the permanent plan for the children. However, Bridget and Eric L. stated their preference for legal guardianships, and the Department modified its recommendation accordingly.
At a continued
2. ICWA Information and Inquiry
a. The initial ICWA forms and the detention hearing
Judicial Council form ICWA-010(A), prepared by the Department and attached to the original dependency petition filed on December 7, 2017, stated the children may have Indian ancestry. The form indicated Tamara had been questioned in person on November 22, 2017 and reported her father (that is, the children‘s maternal grandfather) had Indian ancestry, “but no connection to a tribe. No additional information was given.” The detention report filed December 7, 2017 contained the same information.
On Tamara‘s ICWA-020 form with Jazmine‘s name and case designation, 17CCJP02322A, filed at the time of the detention hearing on December 8, 2017, the preparer checked the box for “I may have Indian ancestry,” inserted Cherokee as the name of the band or tribe on Tamara‘s maternal side, and additionally indicated possible Indian ancestry on Tamara‘s paternal side through her great-grandfather, Theodore S. The date “7-4-30” was written below the paternal great-grandfather‘s name. On the ICWA-020 forms filed at the same time for the other three children, with case designations 17CCJP02322B-D, the preparer simply checked the box for “I may have Indian
At the December 8, 2017 detention hearing for all four children, the court stated Tamara‘s ICWA-020 indicated she may have American Indian ancestry. The court asked Loretta S., who had been identified on the record as the maternal grandmother, if she had American Indian ancestry on her side of the family. Loretta S. answered, “Yes.” The court inquired, “And what tribe?” Loretta S. answered, “Cherokee.” The following colloquy then occurred:
“The Maternal Grandmother: Well, that‘s what—from my understanding from what my mother told me.
“The Court: From family history, you‘ve been told that you have Cherokee Nation Heritage?
“The Maternal Grandmother: Yes.
“The Court: Ms. S[.], Mother, is that where you‘re claiming heritage is through your mother?
“The Mother: On my father‘s side.
“The Court: Your mother and your father‘s side. All right. So do you know—would it be fair to say you don‘t know the ancestor through which you claim Cherokee heritage?
“The Maternal Grandmother: No, I don‘t.
“The Court: And on your father‘s side Ms. S[.], Mother, who do you claim heritage through?
“The Mother: I don‘t know
“The Court: So, what do you know about American Indian heritage through your father‘s side, if you can tell me?
“The Mother: Through my grandfather. He‘s deceased now. He told us about my background. “The Court: So that‘s your father‘s father?
“The Mother: Yes.
“The Court: And what was his name?
“The Mother: Theodore S[.]. [¶] . . . [¶]
“The Court: Okay. And is there anyone still living that knows the birth date for Theodore S[.]?
“The Mother: My aunt.
“The Court: So you‘d be able to contact your aunt and find out more information about what relative claimed heritage and/or your grandfather‘s birth date?
“The Mother: Yes.
“The Court: And if you‘ll be kind enough to do that and report to the social worker by the end of next week.
“The Mother: Yes. [¶] . . . [¶]
“The Maternal Grandmother: I know the birth day.
“The Court: Okay. For Theodore S[.]?
“The Maternal Grandmother: Yes. 7-4-30.
“The Court: Did they advise you what tribe was the Native American heritage?
“The Mother: No.”
The court then made the following order, the meaning and significance of which is disputed by the parties: “So, Cherokee on the maternal grandmother‘s side. And unknown— The Department is to send notice to the Department of the Interior, the Bureau of Indian Affairs, and the Cherokee Nation. As to the Cherokee Nation, first, the Department—strike that. As to a specific tribe, on Mother‘s statement that her paternal grandfather had American Indian heritage, once the mother
The reporter‘s transcript from the detention hearing does not include any other ICWA discussion or ICWA finding by the court. Despite that, and notwithstanding the exchange among the court, Tamara and Loretta S. just quoted, the minute order for the December 8, 2017 detention hearing recited, “The Court does not have a reason to know that this is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the BIA. Parents are to keep the Department, their Attorney and the Court aware of any new information relating to possible ICWA status.” The minute order additionally stated, “The determination of ICWA status is deferred for father‘s appearance.”
b. Further ICWA inquiry, the jurisdiction/disposition report and the jurisdiction hearing
According to the Department‘s February 6, 2018 jurisdiction/disposition report, Tamara had advised the Department on January 18, 2018 that the paternal side of her family had “Khalifian Native American Ancestry.”7 She was unable to provide additional information, Tamara explained, because her paternal relatives did not talk about their background.
The jurisdiction hearing was continued from February 6, 2018 to April 12, 2018. At the February 6, 2018 hearing, however, in addition to formal detention findings as to Shaka and discussion of T.G., N.G. and P.G.‘s possible American Indian ancestry through him, the Department‘s counsel observed, “I also saw that the court ordered notice to Cherokee. Mother had alleged, I guess, Native American.” The court8 inquired, “Do we have that notice?” Counsel responded, “I don‘t see it.” The court then ordered, “For the R.O.R. [a March 29, 2018 nonappearance receipt-of-report date], Notice to the Cherokee Nation. Also, if it was to the Cherokee Nation, it‘s the Bureau of Indian Affairs and the Department of the Interior. I see that on the detention report.”
The minute order for the February 6, 2018 hearing indicates the Department was ordered to investigate Shaka‘s claim of possible American Indian ancestry and to include details regarding that investigation in its next report to the court. It also states, “DCFS is to send notice to appropriate tribe(s), the bureau of Indian affairs and the secretary of the interior,” but does not include the court‘s express direction to provide notice to
c. Subsequent reports concerning ICWA status
As had the February 2018 jurisdiction/disposition report, an interim review report dated April 12, 2018 and prepared for the continued jurisdiction hearing stated ICWA does or may apply.9 However, the interim review report filed the following month on May 11, 2018 simply stated ICWA does not apply; no explanation was provided. A status review report dated February 7, 2019, prepared for the 12-month review hearing, again stated ICWA does not apply and asserted the court had found ICWA did not apply at the detention hearing on December 8, 2017. That same statement was thereafter repeated in all subsequent reports, including the report for the
DISCUSSION
1. ICWA and the Duties of Inquiry and Notice
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 a state court must follow before removing an Indian child from his or her family. (
ICWA significantly limits state court actions concerning out-of-family placements for Indian children. “When ICWA applies, a state court may not, for example, make a foster care placement of an Indian child or terminate parental rights to an Indian child unless the court is satisfied ‘that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.’ [Citations.] Prior to placing an Indian child in foster care, the court must also make ‘a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.‘” (Austin J., supra, 47 Cal.App.5th at p. 882.) ICWA and the controlling federal regulations (see
a. Notice when there is “reason to know”
Notice to Indian tribes is central to effectuating ICWA‘s purpose, enabling a tribe to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in, or exercise jurisdiction over, the matter. (Isaiah W., supra, 1 Cal.5th at p. 8.) Notice to the parent or Indian custodian and the Indian child‘s tribe is required by ICWA in state court proceedings seeking foster care placement or termination of parental rights “where the court knows or has reason to know that an Indian child is involved.” (
With respect to the notice requirement, in language substantially the same as that of the controlling federal regulation (
Oral transmission of relevant information from generation to generation and the vagaries of translating from Indian languages to English combine to create the very real possibility that a parent‘s or other relative‘s identification of the family‘s tribal affiliation is not accurate. Accordingly, just 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. (See In re Elizabeth M. (2018) 19 Cal.App.5th 768, 787.) Yet neither ICWA itself nor the implementing federal regulations in effect prior to 2016 imposed a duty on courts or child protective agencies to inquire whether a child involved in a dependency proceeding was an Indian child. (See In re A.B. (2008) 164 Cal.App.4th 832, 838; In re H.B. (2008) 161 Cal.App.4th 115, 120.)
Notwithstanding this gap in federal law, long-standing, albeit nonbinding, federal guidelines urged states to “make inquiries to determine if the child involved is a member of an
Now found in
In addition to the court‘s and agency‘s responsibilities at the outset of the proceedings,
In addition,
Describing Jason as “a mere biological father” and citing In re Joseph G. (2000) 83 Cal.App.4th 712, 716, which held an alleged biological father who is not a party of record in the juvenile court has no standing to appeal an order terminating parental rights, the Department urges us to dismiss Jason‘s appeal for lack of standing. It argues, because Jason never appeared and asserted a position in Jazmine‘s dependency case, he was not a party of record and is not “aggrieved” by the order for legal guardianship, a requirement for standing to appeal. (See
Whatever merit the Department‘s standing argument regarding a “mere biological parent” may have in other contexts, it fails here. Non-Indian parents have standing to raise issues of ICWA compliance on appeal. (In re A.W. (2019) 38 Cal.App.5th 655, 663; In re B.R. (2009) 176 Cal.App.4th 773, 779-780.) ICWA defines a “‘parent‘” to include “any biological parent,” while excluding “the unwed father where paternity has not been acknowledged or established.” (
Tamara filed an ICWA-020 form at the time of the detention hearing declaring her belief she had Cherokee ancestry on her maternal side and indicating possible Indian ancestry through her paternal grandfather, Theodore S., without identifying a tribe. That information was confirmed during the detention hearing by both Tamara and Loretta S. Tamara stated an aunt might have information about the family‘s ancestry on the paternal side, and the court asked her to contact the aunt and report any additional details she learned. Loretta S., replying to the court, said she did not know the ancestor through whom the family‘s Cherokee ancestry could be traced. The court did not ask either Tamara or Loretta S. if other relatives might have additional information about the family‘s Cherokee ancestry or whether anyone other than Tamara‘s aunt might have information about Indian ancestry on her paternal side.
These preliminary responses from the mother and maternal grandmother of Jazmine, T.G., N.G. and P.G. unquestionably provided reason to believe Indian children might be involved in these dependency proceedings and triggered the Department‘s duty to make further inquiry, as mandated by
The Department‘s arguments that no duty of further inquiry existed in this case fail. First, it notes Tamara‘s ICWA-020 forms for T.G., N.G. and P.G., although reflecting a checked box for the statement she may have American Indian ancestry, did not include any additional detail regarding the children‘s possible tribal membership. By that omission, the Department contends, Tamara “affirmatively communicated to the juvenile court that neither she nor the children were members of any Indian tribe.” This argument, which can only be described as disingenuous, ignores that Tamara‘s ICWA-020 form for Jazmine, submitted to the court at the same time as the other three forms and before the court at the detention hearing, contained the information she knew regarding her maternal and paternal relatives. It also fails to acknowledge that Tamara again provided this information to the court at the hearing.16 Tamara affirmatively, and repeatedly, provided the information the Department now claims was missing.
Moreover, even if the additional information had not been provided in the ICWA-020 forms, the absence of information regarding possible Indian ancestry does not relieve the court of its affirmative responsibility to inquire at the first appearance of each party whether he or she has reason to know that the
Second, relying on Austin J., supra, 47 Cal.App.5th 870, the Department argues the information provided suggested a “mere possibility of Indian ancestry” that was insufficient to trigger the need for further inquiry. Austin J. concerned ICWA compliance in connection with jurisdiction/disposition hearings held in July 2019 at which the juvenile court held ICWA did not apply. The children‘s mother and a maternal great aunt had stated their family may have Cherokee ancestry. After observing “[t]ribal ancestry is not among the criteria for having a reason to know the child is an Indian child” under ICWA or California law after the Assembly Bill 3176 amendments (Austin J., at p. 885), the court of appeal rejected the mother‘s argument the Department was required to provide ICWA notice to the children. (Id. at p. 887.) The court additionally held the juvenile court had satisfied its initial duty of inquiry and no duty of further inquiry existed based on the mother‘s and a maternal great aunt‘s statements. (Id. at p. 889.)
Explaining that “[i]nformation about a tribal connection that ‘is too vague, attenuated and speculative’ will not support a ‘reason to believe the children might be Indian children,‘” the
We do not agree with Austin J.‘s narrow reading of the nature and quality of information sufficient to trigger the duty of further inquiry.17 In particular, that court‘s insistence a parent‘s express statement of Indian ancestry does not constitute a reason to believe an Indian child may be involved is fundamentally at odds with well-established ICWA law. To be sure, an “Indian child” is defined in terms of tribal membership, not ancestry. But the question of membership is determined by the tribes, not the
Indeed, the imposition of a duty to inquire that is significantly more expansive than the duty to provide ICWA notice is premised on the common sense understanding that, over time, Indian families, particularly those living in major urban centers like Los Angeles, may well have lost the ability to convey accurate information regarding their tribal status.19 As a result,
We also reject Austin J.‘s related assumption that Assembly Bill 3176, in addition to conforming language in California‘s ICWA-based statutes to the language in recently adopted federal regulations, was intended to weaken the robust requirements for making further inquiry established by then-existing case law construing former section 224.3, subdivision (c). Under that former statute, further inquiry was required if a social worker or court-connected investigator “knows or has reason to know that an Indian child is involved.” When Assembly
The legislative history of Assembly Bill 3176, moreover, belies any inference the amendments were intended to dilute the court‘s and child protective agency‘s affirmative duty of inquiry. The report of the Assembly Committee on Judiciary for its April 17, 2018 hearing on the legislation, for example, after noting the bill codified changes required by the new federal regulations into the Welfare and Institutions Code, explained, “In
Finally, the recent amendment to
In sum, further inquiry is required in these cases. As mandated by
In their appeals Tamara and Jason point to two additional errors that occurred in these proceedings. First, although the court at the December 8, 2017 detention hearing ordered the Department to provide ICWA notice to the Cherokee Nation, no notice was ever given. Second, notwithstanding the statement in the minute order from the December 8, 2017 hearing, the reporter‘s transcript from that hearing reveals the court did not make a finding that there was no reason to know Jazmine, T.G., N.G. and P.G. were Indian children and that ICWA did not apply to their case; and the court failed thereafter to make the required ICWA findings. (See
As to the order for notice, as discussed, the court, after repeating that Tamara had identified Cherokee ancestry on the maternal grandmother‘s side, ordered, “The Department is to send notice to the Department of the Interior, the Bureau of Indian Affairs, and the Cherokee Nation.” The court then continued, “As to the Cherokee Nation, first, the Department—strike that. As to a specific tribe, on Mother‘s statement that her paternal grandfather had American Indian heritage, once the mother contacts her aunt, if there is a specific tribe that is identified, the Department is to provide notice to that tribe as well.” The Department interprets the court‘s statement, “strike that,” as applying to its order for notice to the Cherokee Nation, eliminating any requirement that the Department send ICWA notice at that point. Tamara and Jason argue the court intended only to restart its order with respect to the paternal grandfather‘s
Looking only to the court‘s December 8, 2017 comments, the Department‘s explanation might be described as unlikely but plausible.20 But two months later, advised by the Department‘s counsel there did not appear to be evidence that notice had been given to the Cherokee Nation, the court again ordered notice to the tribe, the Bureau of Indian Affairs and the Department of the Interior. That order was explicit and unambiguous. The Department‘s failure to comply was error. Nonetheless, at this point the error is harmless. Either further inquiry will establish there is, in fact, reason to know the children are Indian children and notice as required by
We likewise find the juvenile court erred in failing to make findings regarding the applicability of ICWA to these proceedings, but leave it to the court to correct that omission on remand. We recognize the minute orders for the December 8, 2017 detention hearing recite the court found it had no reason to know that any of the children were Indian children as defined by ICWA. But that statement is inconsistent with the reporter‘s transcript and is contradicted by the Department‘s continued statement for months after the detention hearing that ICWA does or may apply to the case. As just noted, “‘When there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls.‘” (In re Nia A. (2016) 246 Cal.App.4th 1241, 1247, fn. 1.)
DISPOSITION
The
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
Notes
At the jurisdiction hearing on April 12, 2018 the court admitted exhibits presented by the parties, heard argument and then continued the hearing to April 20, 2018. The reporter‘s transcript contains no mention of ICWA. The minute orders from that date state, “No Indian Ancestry is declared on [Shaka‘s] ICWA-020 form.” The minute order contains no other reference to ICWA, and the minute orders from the continued jurisdiction hearing on April 20, 2018 do not mention ICWA. In subsequent reports the Department noted the reference in the April 12, 2018 minute order to Shaka‘s ICWA-020 form.