In re Y.W. et al., Persons Coming Under the Juvenile Court Law.
B310566
COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN
October 19, 2021
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. 19CCJP04000A-B); Daniel Zeke Zeidler, Judge.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DESHAWN W. et al., Defendants and Appellants.
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant Deshawn W.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Clairessa M.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel and Aileen Wong, Senior Deputy County Counsel for Plaintiff and Respondent.
INTRODUCTION
Deshawn W. and Clairessa M. appeal from the juvenile court’s orders terminating their parental rights under
Disagreeing with the court’s narrow view of the duty of inquiry under ICWA in In re Austin J. (2020) 47 Cal.App.5th 870 and the court’s broad view of harmless error in In re A.C. (2021) 65 Cal.App.5th 1060, we conclude that Deshawn’s and Clairessa’s contentions have merit and that the juvenile court erred in ruling ICWA did not apply. Therefore, we conditionally affirm the juvenile court’s orders terminating Deshawn’s and Clairessa’s parental rights, with directions to ensure the Department complies with the inquiry and notice provisions of ICWA and related California law.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Proceedings
On June 24, 2019 the Department filed a petition under
At the August 8, 2019 jurisdiction and disposition hearing the juvenile court sustained the petition and declared Y.W. and Y.G. dependents of the court under
At the February 26, 2020 six-month review hearing the juvenile court found Deshawn and Clairessa had “minimally complied” with their case plans. The court terminated reunification services and set the case for a selection and implementation hearing under
B. ICWA Inquiry and Notice
Deshawn and Clairessa each completed Judicial Council form ICWA-020, Parental Notification of Indian Status. Clairessa checked the box next to the
At the detention hearing the court confirmed Clairessa said she did not have Indian ancestry, and Deshawn confirmed he believed his grandmother was a member of the Cherokee Tribe. Based on Deshawn’s responses, the court found that it had reason to know the children may be Indian children as defined by ICWA and that the notice requirements under
Deshawn told the social worker his maternal grandmother was “95% Cherokee” and provided, among other information, his mother’s name, date of birth, date of death, and place of death, and his grandmother’s name, “pоssible” place of birth, month and year of death, and place of death. Clairessa told the social worker she was adopted when she was two years old, did not have any information about her biological relatives, and was “estranged” from her adoptive parents, who lived in North Carolina. Clairessa declined to provide the contact information for her adoptive parents.
On July 12, 2019 the Department mailed Judicial Council form ICWA-030 to the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians, and the Bureau of Indian Affairs. In the spaces on the form for the Department to fill in the name of “Mother’s Biological Mother” and “Mother’s Biological Father,” the Department wrote “UNKNOWN.” In the section on the form for the Department to provide information on “Father’s Biological Grandmother,” the Department listed the name of Deshawn’s grandmother, the Indian tribes she may have been affiliated with, and the date and place of her death. In the space provided for the Department to list her date and place of birth, the Department wrote “UNKNOWN.”
After the Department mailed the ICWA-030 notices, the social worker conducted an online search and found the names of and contact information for Clairеssa’s adoptive parents, Leonard and Maxcine M. The social worker interviewed Maxcine, who stated she and Leonard adopted Clairessa when Clairessa was two years old. Maxcine said the child protective agency in North Carolina removed Clairessa from her biological mother because she neglected Clairessa and abused drugs. Maxcine stated she maintains phone contact with Clairessa, who typically called asking for money.
In a last minute information report filed for the jurisdiction and disposition hearing, the Department stated that on August 7, 2019 the social worker interviewed Maxcine about any Indian ancestry that Clairessa might have. Maxcine said she did not know of any Indian ancestry in her family or in her husband’s. Maxcine stated, however, that, although she did not know whether Clairessa’s biological family had any Indian ancestry, she knew the name of Clairessa’s biological father (but had “no additional information about him or his relatives”) and was “able to obtain contact information” for Clairessa’s maternal aunt.
There is no record the Department followed up with Maxcine to obtain the contact information for Clairessa’s biological parents.5
At the August 8, 2019 jurisdiction and disposition hearing the juvenile court observed that the last minute information report did not contain contact information for Clairessa’s biological family. Counsel for the Department stated the report indicated the adoptive parents “knew how to contact an aunt, and they noted they would try to do that for the Department, but they didn’t have any current contact information for them.” The court asked counsel for Clairessa whether Clairessa had been able to obtain any further information about her biological relatives, and counsel replied, “No.”
At an October 23, 2019 progress hearing the court summarized the status of the Department’s efforts to locate Clairessa’s biological parents: “We previously had had notices sent July 12, 2019, but the ICWA notices that were sent on that date indicated that the maternal grandparents were unknown. The adoptive parents were the godparents, so I said they probably needed to re-interview them for the ICWA notices. But the godparents didn’t have any contact informаtion, so the ICWA notices have been sent on July 12.” The court also stated the Department received a response from the Eastern Band of Cherokee Indians,6 made efforts to follow up with the Cherokee Nation of Oklahoma and the United Keetoowah Band of Cherokee Indians, but had not received a response from either of the latter two tribes. The court found that “ICWA notice is proper and complete,” but stated that,
On November 13, 2020, in preparation for the hearing under
At the January 12, 2021 hearing under
DISCUSSION
A. The Juvenile Court Failеd To Ensure the Department Complied with ICWA and Related California Law
Deshawn and Clairessa contend the Department failed to conduct an adequate inquiry into Clairessa’s possible Indian ancestry and omitted essential information on the notice to the Indian tribes Deshawn identified. Because the Department failed to fulfill its duty under ICWA and related California law, and the juvenile court failed to fulfill its duty to ensure the Department did so, we must conditionally affirm the juvenile court’s orders and direct the Department and the court to comply with these laws.
ICWA provides: “‘In any involuntary proceeding in a State court, where the court knows or has reason to knоw that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ [Citation.] This notice requirement, which is also codified in California law [citation], enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding.” (In re Isaiah W. (2016) 1 Cal.5th 1, 5; see
“‘ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal regulations implementing ICWA, however, require that state courts “ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.” [Citation.] The court must also “instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.”’” (In re J.S. (2021) 62 Cal.App.5th 678, 685; see
Cal. Rules of Court, rule 5.481(a)(4).) If the further inquiry “results in a reason to know the child is an Indian child, then the formal notice requirements of
“‘The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings.’” (In re A.M. (2020) 47 Cal.App.5th 303, 314.) “If the court makes a finding that proper and adequate further inquiry and due diligence as required in [
2. The Department Failed To Conduct an Adequate Inquiry into Clairessa’s Possible Indian Ancestry
The Department failed to satisfy its duty to inquire, under
Citing In re Austin J., supra, 47 Cal.App.5th 870, the Department contends that, because Clairessa and Maxcine denied any Indian ancestry, “there was no reason to believe the children were Indian children through mother’s parentage to trigger a duty to make ‘further inquiry’ as to her side of the family, including any available biological relatives.” The Department’s continuing duty of inquiry is not so narrow. In In re Austin J. a father stated in court and on his form ICWA-020 that neither he nor his children had Indian ancestry and that none of them was eligible for membership in an Indian tribe. (Id. at p. 888.) The court held that, based on the father’s responses to the ICWA inquiry, “there was no ‘reason to believe’ that any of his children
The court’s holding in In re Austin J., however, is inconsistent with
Moreover, the holding of In re Austin J. is at odds with the Department’s “continuing duty” (
The Department asserts this case is “akin to” In re J.S., supra, 62 Cal.App.5th 678. It is not. In In re J.S. this court held the Department conducted an adequate inquiry into the father’s possible Indian ancestry by interviewing the paternal grandmother, who the father indicated may be “Native American.” (Id. at p. 683.) The paternal grandmother stated she did
For its part, the juvenile court failed to ensure the Department adequately investigated the children’s possible Indian ancestry through Clairessa’s side of the family. At the August 8, 2019 jurisdiction and disposition hearing, the court began to question the Department’s failure to obtain information about Clairessa’s biological parents, but ultimately accepted the Department’s erroneous assertion that the last minute information report stated Maxcine did not have current contact information for Clairessa’s biological parents, when in fact the report stated the opposite. Two months later, without any further updates from the Department on its efforts to locate Clairessa’s biological parents, the court restated its earlier (erroneous) understanding that Maxcine did not know how to contact Clairessa’s biological parents. ICWA and related California law require more. (See In re N.G., supra, 27 Cal.App.5th at p. 482 [“The juvenile court . . . had a duty to ensure that [the child protective agency] made [the relevant] inquiries,” including asking the maternal uncle whether the child “may have maternal Indiаn ancestry”]; In re K.R., supra, 20 Cal.App.5th at p. 709 [“the court has a responsibility to ascertain that the agency has conducted an adequate investigation and cannot simply sign off on the notices as legally adequate without doing so”].)
Citing In re Rebecca R. (2006) 143 Cal.App.4th 1426 and In re A.C., supra, 65 Cal.App.5th 1060, the Department argues “any alleged error was harmless” because Deshawn and Clairessa “have made no representation that [Clairessa’s] biological relative would provide any information indicating the children were Indian children.” In In re Rebecca R. the father contended the child protective agency failed to carry out its duty of inquiry because the social worker never asked him whether his child may have had Indian ancestry. (In re Rebecca R., at pp. 1428-1429.) The court held that, bеcause the father never claimed “some Indian connection sufficient
A parent, however, does not need to assert he or she has Indian ancestry to show a child protective agency’s failure to make an appropriate inquiry under ICWA and related law is prejudicial. The courts in In re Rebecca R., supra, 143 Cal.App.4th 1426 and In re A.C., supra, 65 Cal.App.5th 1060 missed (and the Department’s argument misses) the point of the statutory requirement that the social worker ask all relevant individuals whether a child is or may be an Indian child: to obtain information the parent may not have. It is unreasonable to require a parent to make an affirmative representation of Indian ancestry where the Department’s failure to conduct an adequate inquiry deprived the parent of the very knowledge needed to make such a claim. (See In re Michael V. (2016) 3 Cal.App.5th 225, 233 [“the burden of coming forward with information to determine whether an Indian child may be involved and ICWA notice required in a dependency proceeding does not rest entirely—or even primarily—on the child and his or her family”].) The Department’s failure to conduct an adequate inquiry into Y.W. and Y.G.’s possible Indian ancestry makes it impossible for Deshawn and Clairessa to demonstrate prejudice. (See In re N.G., supra, 27 Cal.App.5th at p. 484 [ICWA error was prejudicial where the record did not show “the court’s and the agency’s efforts to comply with ICWA’s inquiry and notice requirements”]; see also In re Mary G. (2007) 151 Cal.App.4th 184, 212 [“In re Rebecca R. does not hold that on appeal a parent must produce evidence—as a prerequisite to reversal for ICWA notice deficiencies—that the child is a member of an Indian tribe or eligible for membership in a tribe. Indeed, a parent does not have to make that showing at the juvenile court to trigger the ICWA notice provisions. Rather, that is a determination the noticed tribes make.”].)
3. The Department Did Not Give Proper Notice to the Tribes
The Department’s failure to comply with ICWA did not end with its failure to conduct a proper inquiry into Clairessa’s possible Indian ancestry. In addition, the notices the Department sent to the Cherokee tribes omitted essential background information about Deshawn’s grandmother that federal regulations and related California law require. Federal regulations implementing ICWA provide that the notice must include, in addition to information
“ICWA notice requirements are strictly construed” (In re J.M. (2012) 206 Cal.App.4th 375, 380) and “‘must include enough information for the tribe to “conduсt a meaningful review of its records to determine the child’s eligibility for membership.”’” (In re J.S., supra, 62 Cal.App.5th at p. 688; see In re Breanna S., supra, 8 Cal.App.5th at p. 653 [“vigilance in ensuring strict compliance with federal ICWA notice requirements is necessary”]; In re A.G. (2012) 204 Cal.App.4th 1390, 1397 [“[b]ecause of their critical importance, ICWA’s notice requirements are strictly construed”].) Here, in the first notice to the tribes, the Department omitted the birthplace of Deshawn’s grandmother; in the second notice, the Department also omitted the date and place of her death. These omissions violated federal and state law. (See
The Department argues it did not have to include the birthplace of Deshawn’s grandmother in the notices to the tribes because Deshawn only provided a “possible” place of her birth, and according to the Department, a possible place of birth is not a “known” fact that the Department must include on the notice. The Department, however, provides no authority for this argument. Nothing in ICWA, the implementing federal regulations, or the related California statutes defines “known” as “certain.” “Known,” in the cоntext of providing as much information as possible for the tribes to make a meaningful determination of a child’s membership or eligibility for membership, should include all information in the possession of the Department. At a
Finally, the Department argues its failure to include the birthplace of Deshawn’s grandmother in the ICWA notice was harmless because “there is no reason to believe that this information would have produced a different result concerning the children’s Native American heritage.” “‘[O]rdinarily failure in the juvenile court to secure compliance with [ICWA’s] notice provisions is prejudicial error.’ [Citations.] Any failure to comply with a higher state standard, however, ‘must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.’” (In re Breanna S., supra, 8 Cal.App.5th at p. 653; accord, In re E.H., supra, 26 Cal.App.5th at p. 1072.)
The Department’s incomplete notices to the tribes violated both federal regulations and state law. (
DISPOSITION
The juvenile court’s orders terminating the parental rights of Deshawn and Clairessa are conditionally affirmed. The juvenile court is directed to ensure the Department complies fully with the inquiry and notice provisions of ICWA and related California law, including obtaining from Maxcine the name of Clairessa’s biological father and the contact information for Clairessa’s maternal aunt, following up on any information the Department may obtain about Clairessa’s possible Indian ancestry, and sending new ICWA-030 notices to the Cherokee tribes that include complete biographical information about Deshawn’s grandmother.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.