Opinion
A165312
08-02-2023
In re M.H. et al., Persons Coming Under the Juvenile Court Law. v. D.S., Defendant and Appellant. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Alameda County Super. Ct. Nos. JD-032583-01, JD-032584-01, JD-032585-01, JD-032586-01)
MILLER, J.
D.S. (Mother) appeals from orders terminating reunification services as to her children M.H., E.H., A.H., and D.H. The sole issue on appeal is whether the juvenile court and the Alameda County Social Services Agency (Agency) complied with the inquiry and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq., ICWA) and related California law (Welf. &Inst. Code, § 224 et seq.)
All unspecified statutory references are to the Welfare and Institutions Code. Citations to rules are to the California Rules of Court.
We shall dismiss the appeal with respect to A.H. and D.H. because the orders pertaining to them are not appealable. The orders were made at a hearing in which the court set a permanency planning hearing under section 366.26 and Mother did not seek a writ as she was required to do to preserve the right to appeal.
With respect to M.H. and E.H., we conclude that the record is presently inadequate to support the juvenile court's finding that ICWA does not apply to them, insofar as Mother's ancestry is concerned. We will conditionally affirm the orders pertaining to M.H. and E.H., but remand the matter for compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition and Detention
On July 20, 2020, the Agency filed a dependency petition on behalf of M.H. (then age 13), E.H. (age 11), A.H. (age 5), and D.H. (age 11 months) under section 300, subdivisions (b) and (g). None of the children had been detained; all were residing with Mother. The petition alleged that Mother used methamphetamine and exhibited psychotic and paranoid behavior while caring for Minors; that she had a history of mental illness and was not taking prescribed medication; that she and Minors were living in a car and hotels; that Minors were exposed to methamphetamine and alcohol use as well as domestic violence while in Mother's care; and that Mother failed to participate in voluntary services when she and D.H. tested positive for methamphetamine and opiates at the time of D.H.'s birth. The petition further alleged that the father of M.H. was in prison, and that the whereabouts of the fathers of E.H., A.H, and D.H. were unknown.
We refer to the four children collectively as Minors. The superior court case numbers pertain to the children as follows: M.H is the subject of JD-032583-01; E.H. is the subject of JD-032584-01; A.H. is the subject of JD-032585-01; and D.H. is the subject of JD-032586-01.
Three fathers are identified in the record; none is a party to this appeal. R.H. was initially identified as the biological father of M.H. and was later elevated to presumed father status for both M.H. and E.H.. R.N. was initially identified as the presumed father of E.H.; he was later identified as the alleged father of E.H. and was not elevated beyond that status. D.H. (Father D.H.) was initially identified as the biological father of A.H. and D.H., and was later elevated to presumed father status for both A.H. and D.H..
Judicial Council forms ICWA-010(A) (Indian Child Inquiry Attachment) were attached to the petition stating that as to each child, Mother had been interviewed and gave the social worker no reason to believe the child is or may be an Indian child.
On July 23, 2020, a search and seizure warrant was signed by the juvenile court and executed, and Minors were taken from Mother's home. At a hearing the next day, the court ordered Minors detained.
B. Jurisdiction and Disposition
A combined jurisdiction/disposition hearing for Minors was held on January 22, 2021. By that time, all the Minors were living in foster homes. In reports filed before the hearing, the Agency stated that Mother had informed a social worker that there was no known Indian heritage in the family. The reports also stated that on July 24, 2020, the court found that ICWA does not apply to Father D.H. At the January 22, 2021 hearing, the court sustained an amended petition similar to the original petition, declared Minors to be dependents, removed them from parental custody, and ordered reunification services. C. Review Hearings
The Agency was not required to provide reunification services to R.N., as the alleged father of E.H., unless and until he established a legal basis for receiving the services, which he did not.
In a status review report that was filed with the court in July 2021, the Agency reported that in July 2020 the court found that ICWA does not apply to D.H. The Agency further reported that although in May 2020, Mother had told the Agency that there was no known Indian heritage in the family, in January 2021 Mother stated she may have Cherokee heritage. The Agency reported that in February 2021 it submitted ICWA notices to the Cherokee tribes and the Bureau of Indian Affairs, and no response had been received. On that basis, the Agency requested the court find that ICWA does not apply.
At a combined six- and 12-month review hearing in September 2021, the court continued reunification services. Based upon the information in the Agency's report, the court found that the Minors were not Indian children and that no further notice was required under ICWA. The day after the hearing, R.H., the presumed father of M.H. and E.H. (who had attended the hearing by video), filed Judicial Council form ICWA-020 (Parental Notification of Indian Status) as to each of his two children stating that ICWA did not apply to him.
A contested 18-month review hearing took place over several days from March 10 to May 11, 2022. Mother was present on May 11, 2022, when the court terminated reunification services with respect to all four children. The court set a section 366.26 hearing for the two younger children, A.H. and D.H, and advised all parties present that to preserve the right to appeal from the order setting the section 366.26 hearing, the party must first seek a writ. The court found that the older children, M.H. and E.H., were not proper subjects for adoption and that no one was able to accept legal guardianship of them at that time, and therefore the court declined to set a section 366.26 hearing for them, but did set a review hearing.
Mother did not seek a writ, but filed a notice of appeal on May 23, 2022.
DISCUSSION
A. Appeal as to A.H. and D.H.
As a general matter, a parent must timely file a writ petition to preserve the right to challenge any order made at a hearing where the juvenile court makes an order setting a permanency planning hearing under section 366.26. (§ 366.26, subd. (l)(1); In re Anthony B. (1999) 72 Cal.App.4th 1017, 1023.) The juvenile court is required to provide notice of the writ requirement (§ 366.26, subd. (l)(3), rule 5.590(b)), and courts have found good cause to excuse the failure to seek a writ when a parent is not provided the required notice. (In re Damari Y. (2023) 92 Cal.App.5th 699, 703-704.) The Agency argues that Mother's appeal as to A.H. and D.H. should be dismissed because the appeal is from an order made at the hearing at which a section 366.26 hearing was set for A.H. and D.H., and Mother failed to seek a writ even though she was given notice of the writ requirement.
We agree with the Agency. Mother concedes that she did not comply with the writ requirement, and does not dispute that she was advised of the requirement as required by rule 5.590(b). In her reply brief, Mother asks us to construe her appeal as to A.H. and D.H. as a writ, but she offers no explanation or justification as to why she failed to timely seek a writ as she was advised by the juvenile court. Mother's reliance on Maggie S. v. Superior Court (2013) 220 Cal.App.4th 662 to support her request is misplaced. In Maggie S., a parent's failure to comply with the writ requirement was excused because the juvenile court failed to give an oral advisement of the writ requirement to the parties who were present at the time the section 366.26 hearing was set. (Id. at p. 671.) There was no such failure by the juvenile court here, and therefore we shall dismiss the appeal insofar as it pertains to A.H. and D.H. Because we dismiss the appeal, we do not reach the Agency's alternative arguments as to the merits.
B. Appeal as to E.H. and M.H.
1. Applicable Law and Standard of Review
" 'ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation.'" (In re Benjamin M. (2021) 70 Cal.App.5th 735, 740 (Benjamin M.) ICWA was enacted" 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.'" (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8, quoting 25 U.S.C. § 1902.)
"In any given case, ICWA applies or not depending on whether the child who is the subject of the custody proceedings is an Indian child." (In re Abbigail A. (2016) 1 Cal.5th 83, 90.) An "Indian child" is a child who is either (a) a member of a federally recognized Indian tribe or (b) eligible for membership in a federally recognized tribe and the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) &(8); § 224.1, subds. (a) &(b).)
" '" '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 in formation that provides reason to know the child is an Indian child." '"' [Citations.] 'State law, however, more broadly imposes on social services agencies and juvenile courts . . . an "affirmative and continuing duty to inquire" whether a child in the dependency proceeding "is or may be an Indian child." '" (In re J.C. (2022) 77 Cal.App.5th 70, 77.)
Under California law, the "duty to make an ICWA inquiry 'begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child.' (§ 224.2, subd. (a).) If a child is removed from parental custody, the county welfare department 'has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.' (§ 224.2, subd. (b).) Further, at the first appearance in court of each party, 'the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child' and 'shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.' (§ 224.2, subd. (c).)" (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 998-999 (Ezequiel G.).)
The term "extended family member" is defined by the law or custom of the Indian child's tribe, or, absent such law or custom, as "a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2); see § 224.1, subd. (c) [adopting federal definition].)
"If the initial inquiry provides 'reason to believe' that an Indian child is involved in a proceeding-that is, if the court or social worker 'has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe'-then the court or social worker 'shall make further inquiry' regarding the child's possible Indian status as soon as practicable. (§ 224.2, subd. (e).) Further inquiry 'includes, but is not limited to, all of the following: (A) Interviewing the parents, Indian custodian and extended family members.... (B) Contacting the Bureau of Indian Affairs and the State Department of Social Services . . . [and] (C) Contacting 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.' (Ibid.)
"If there is 'reason to know' a child is an Indian child, the agency shall provide notice to the relevant tribes and agencies in accordance with section 224.3, subdivision (a)(5). (§ 224.2, subd. (f).) There is 'reason to know' a child is an Indian child if any one of six statutory criteria is met-i.e., if the court is advised that the child 'is an Indian child,' the child's or parent's residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).)" (Ezequiel G., supra, 81 Cal.App.5th at p. 999.)
If the juvenile court finds that the Department has complied with its duty of inquiry and that there is no reason to know that the child is an Indian child, the court may find that ICWA does not apply to the proceedings, "subject to reversal based on sufficiency of the evidence." (§ 224.2, subd. (i)(2).) We review the determination whether an ICWA inquiry is adequate for abuse of discretion. (Ezequiel G., supra, 81 Cal.App.5th at p. 1005.)
"The need for a juvenile court to exercise discretion in considering whether an ICWA inquiry is adequate is particularly acute because the scope of the inquiry required by state law is not well defined." (Ezequiel M., supra, 81 Cal.App.5th at p. 1005.) In particular, "complying with the literal language of the statute-that is, making an initial and further ICWA inquiry of every member of a child's extended family, including first and second cousins, plus every other person who has an interest in the child-is absurd at best and impossible at worse." (Id. at p. 1006; see also In re K.H. (2022) 84 Cal.App.5th 566, 603 [inquiry requirement "should not translate into an exhaustive inquiry to ensure '[no] stone is left unturned' "].) The focus of our analysis is "whether the [Department's] ICWA inquiry has yielded reliable information about a child's possible tribal affiliation." (Ezequiel M., supra, 81 Cal.App.5th at p. 1009.)
2. Analysis
Mother argues that the Agency and the juvenile court failed to comply with ICWA's inquiry and notice requirements with respect to M.H. and E.H., and asks us to remand and instruct the juvenile court to make proper inquiry and then proceed accordingly. Mother contends that the court erred in failing to procure from her a Judicial Council Form ICWA-020 (Parental Notification of Indian Status). (See rule 5.481(a)(2)(C) [requiring court to order parent to complete form ICWA-020]; ICWA-020 (Rev. March 25, 2020) available at courts.ca.gov/documents/icwa020.pdf [requiring parent to provide information about child's Indian status].) She also contends that the information provided to the court by the Agency with regard to her claim of Cherokee ancestry was inadequate to support a finding that ICWA did not apply; and that it was error for the court to find that ICWA did not apply in the absence of any evidence that the Agency made any inquiry of available members of her extended family and the extended family of R.H., the presumed father of M.H. and E.H.
Mother does not argue that ICWA inquiry was inadequate as to R.N., the alleged father of E.H., or R.N.'s extended family.
a. Form ICWA-020 and Notice to Tribes
Although Mother apparently did not complete form ICWA-020, which would presumably have reflected that she believed she or her children were or may be members of a Cherokee tribe or that one of her ancestors is or was a member of a Cherokee tribe, she eventually informed the Agency that she may have Cherokee heritage. Whether the failure to require Mother to complete form ICWA-020 is harmless is something we cannot tell without knowing just what information Mother eventually provided to the Agency and what information the Agency provided in the notices it eventually sent. The record does not help us here. With respect to M.H. and E.H., the record reveals only that the Agency reported that in February 2021, after "[M]other stated she may have Cherokee heritage," it sent ICWA notices to "the Cherokee Tribes" and the Bureau of Indian affairs, and no response was received after several months had passed.
Because the record before us does not show that the juvenile court was provided with the content of the notices pertaining to M.H. and E.H., and does not identify the specific tribes to which the notice was sent, the record does not support a finding that ICWA does not apply to M.H. and E.H. (In re Merrick V. (2004) 122 Cal.App.4th 235, 247 (Merrick V.) [for the juvenile court to review whether notice was adequate, the "Agency must file with the court the ICWA notice, return receipts, and responses received from the BIA and tribes"].) For this reason alone, remand is required with respect to the ICWA finding as to M.H. and E.H. (Ibid.)
b. Potential Effect of Later ICWA Notice as to A.H. and D.H.
The Agency argues that a section 366.26 report it prepared in October 2022 with respect to A.H. and D.H. resolves any issues concerning Mother's Indian ancestry as to M.H. and E.H. The Agency requested that the appellate record be augmented to include the section 366.26 report, even though it was filed several months after the orders at issue in this appeal. We took the request, which was opposed, under submission for decision with the merits. Because the report postdates the challenged orders, it is not properly the subject of a request to augment the record, but we exercise our discretion to grant the request in view of the Agency's contention that the report supports its claims that the appeal is moot, at least in part. (See In re K.M. (2015) 242 Cal.App.4th 450, 455-456 [postjudgment evidence may be used to show that an appeal or issue is moot].)
The report reflects that at some point the Agency "discovered that the ICWA 30 [i.e., Judicial Council form ICWA-030(A) (Attachment to Notice of Child Custody Proceeding for Indian Child)] was not completed or sent to the tribes" when the Agency sent notice in February 2021. In August 2022 the Agency contacted Mother to obtain information to complete the form. Some amended form of notice as to A.H. and D.H. was then provided to the Bureau of Indian Affairs, the United Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, and the Cherokee Nation, all of whom responded that A.H. and D.H. are not Indian children. The augmented record does not include a copy of the notice.
The Agency contends that even though the notices described in the report pertained only to A.H. and D.H., the report bears on Mother's appeal as to M.H. and E.H. because the responses received from the tribes and the Bureau of Indian affairs are "dispositive" as to Mother's claim of Cherokee ancestry and the two groups of children are half-siblings who share the same mother. But because the October 2022 section 366.26 report does not include copies of the notices that were sent we cannot conclude that the notice was adequate. (Merrick V., supra, 122 Cal.App.4th at p. 247.) And therefore we cannot conclude that the report constitutes evidence that, in the Agency's words, "puts to rest any doubt about the applicability of ICWA."
c. Inquiries to Extended Family Members
We turn now to the absence of evidence that the Agency inquired of available extended family members as to the applicability of ICWA.
As to Mother's family, the record reflects that the Agency had contact with Mother's aunt, with whom Mother and Minors resided early in the case, but there is no indication that Mother's aunt was asked about Indian heritage, even after Mother claimed to have Cherokee heritage.
As to the family of R.H., the presumed father of M.H. and E.H.: the record reflects that the Agency contacted R.H.'s mother and sister in 2020, long before R.H. submitted his form ICWA-020 in September 2021, which is apparently the first time R.H. provided any information about whether he had Indian heritage. But there is no indication that the Agency inquired of them about possible Indian heritage.
The Agency states that after Mother disclosed possible Cherokee ancestry in January 2021, "the Agency gathered additional information from the Father RH and gave notice to the exact tribe [Cherokee] that the Mother had claimed, as well as to the BIA." Although this passage suggests that the Agency obtained ICWA-related information from R.H. in January or February 2021, the Agency does not provide a supporting citation to the record.
We agree with Mother that in the absence of evidence that the Agency complied with its duty of initial inquiry under section 244.2, subdivision (b), which required the Agency to ask available extended family members whether M.H. and E.H. are, or might be, Indian children, it was error for the juvenile court to conclude that ICWA does not apply. (In re M.M. (2022) 81 Cal.App.5th 61, 71 (M.M.), review granted Oct. 12, 2022, S276099.) We turn now to the question whether the error is prejudicial.
d. Prejudice from Lack of Inquiry
Appellate courts have adopted a range of approaches for determining whether an ICWA inquiry error is prejudicial, and the issue is currently pending before our Supreme Court. (In re Dezi C. (2022) 79 Cal.App.5th 769, 777-778, review granted Sept. 21, 2022, S275578) We adopt the standard that was adopted in Benjamin M, supra, 70 Cal.App.5th 735: A finding that ICWA does not apply cannot stand "where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully on whether the child is an Indian child." (Id. at p. 744.) In Benjamin M., the father of the dependent child never appeared in the juvenile court, and therefore was never asked whether he had reason to believe the child was an Indian child. (Ibid.) The Agency failed to inquire about Indian heritage of father's sister-in-law and brother, even though the Agency had spoken to them. (Ibid.) Because those individuals could have provided information that "would likely have shed meaningful light on whether there is reason to believe [minor] is an Indian child," the error was not harmless. (Id. at pp. 744-745.)
The Agency argues that any initial inquiry errors here were harmless. We agree with respect to the Agency's failure to ask members of the extended family of presumed father R.H. about Indian heritage. Although the initial inquiry of his mother and sister was deficient, the error is harmless in light of R.H.'s subsequent representation that he has no Indian heritage. (See M.M., supra, 81 Cal.App.5th at p. 72, review granted Oct. 12, 2022, S276099 [where parent denies Indian ancestry and nothing in the record indicates parent might have been unaware of Indian ancestry, failure to make initial inquiry of the parent's extended family is harmless error].) This case is unlike Benjamin M., where the failure to ask paternal relatives about Indian heritage was prejudicial, because here R.H. appeared in the dependency providing and provided information about the applicability of ICWA by filing Judicial Council form ICWA-020. (Benjamin M., supra, 70 Cal.App.5th 744745.)
Mother argues that where a parent has mental health or substance abuse issues, "[i]t is fair to assume that . . . relatives might know more about the family history" than the parent, and that in such cases a parent's denial of Indian heritage might be suspect. She does not cite anything in the record suggesting that R.H. has mental health issues or problems with substance abuse.
But the situation is different with respect to Mother's extended family. The Agency claims that in light of the response it received to the amended notices concerning A.H. and D.H., it has provided "definitive proof that the failure to inquire of extended relatives was not prejudicial" as to M.H. and E.H. Not so. As we have explained, we do not know what information was provided in those notices. Further, once Mother informed the Agency of her claim of Cherokee heritage, there was a reason to believe M.H. and E.H. may be Indian children, and the Agency had a duty under section 244.2, subdivision (e), to make further inquiry of Mother's available extended family members, including Mother's aunt. The Agency's apparent failure to follow up with Mother's available extended family means that the Agency lacked "readily obtainable" information about Mother's Indian heritage, which was "likely to bear meaningfully upon whether" M.H and E.H. are Indian children. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) Any such information could have affected the content of the notices that were sent to the tribes and to the Bureau of Indian Affairs. Thus we cannot conclude that the failure to inquire of Mother's extended family is harmless.
It appears that the Agency had learned of additional available extended family members by August 2021, when the Agency reported that it had been made aware of a maternal uncle and maternal great grandmother who were interested in being assessed for placement of Minors.
In sum, even apart from the Agency's failure to provide the juvenile court with copies of the notices it sent in February 2021, the Agency's failure to make the required further inquiry of Mother's available extended family members after Mother claimed Indian heritage means that the record does not support the juvenile court's finding that ICWA does not apply to M.H. and E.H.
DISPOSITION
The appeals as to A.H. and D.H. are dismissed. The challenged orders pertaining to M.H. and E.H. are conditionally affirmed, except that the finding that ICWA does not apply to them is vacated, the proceedings pertaining to them are remanded, and the juvenile court is directed to order the Agency to provide the juvenile court sufficient information to determine whether ICWA applies with respect to Mother's claim of Indian heritage. If, after proper inquiry and notice, no response has been received from a tribe indicating that M.H. and E.H. are Indian children, the inapplicability finding shall be reinstated. If a tribe determines that M.H. and E.H. are Indian children, the juvenile court shall proceed in conformity with ICWA.
WE CONCUR: Stewart, P.J., Richman, J.