Opinion
E079921
02-28-2023
In re H.M., Person Coming Under the Juvenile Court Law. v. N.B., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Larisa R-McKenna, Deputy County Counsels, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. DPRI2200001. Dorothy McLaughlin, Judge. Donal B. Donnelly, Judge. (Retired judge of the Imperial Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Larisa R-McKenna, Deputy County Counsels, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
N.B. (Mother) appeals from the juvenile court's jurisdictional/dispositional order as to her three-year-old daughter H.M. Mother's sole contention on appeal is 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) (25 U.S.C. § 1901 et seq.), and therefore substantial evidence did not support the juvenile court's finding that ICWA did not apply. DPSS acknowledges the error and intends to remedy the omissions, but contends that because this is an appeal from disposition, reversal of the dispositional order is not required. Applying In re Dominick D. (2022) 82 Cal.App.5th 560, 563, 567 (Dominick D.) and In re S.H. (2022) 82 Cal.App.5th 166 (S.H.), we affirm on the basis that alleged ICWA inquiry error does not warrant reversal of a dispositional order.
S.M. (Father) is not a party to this appeal.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 5, 2022, a petition was filed on behalf of then two-year-old H.M. pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), and (g) (no provision for support) based on the child sustaining multiple marks and bruises to her face, neck, ear, and other various bruising on her body which were suspicious of physical abuse. The petition noted that an inquiry gave no reason for DPSS to believe the child was or may be an Indian child.
All further statutory references are to Welfare and Institutions Code.
Mother could not provide an explanation for the various marks and/or bruises on H.M. and claimed the maternal aunt babysat the child. Father failed to protect H.M. as he allowed the child to return to Mother's care, despite knowing H.M. had unexplainable marks and/or bruises while in Mother's care. Mother believed the maternal aunt, Father, and H.M. herself had caused H.M.'s injuries. Father was incarcerated at the time the petition was filed and had a history of abusing alcohol. Prior to his incarceration, Father resided with the paternal grandmother, the paternal great-grandmother, and the paternal aunt. Mother and H.M. resided with the maternal grandmother. However, the maternal grandmother reported that Mother and H.M. frequently stayed with Mother's boyfriend. Mother later moved in full-time with her boyfriend. After H.M. continued to exhibit bruising to her face, her neck, inside of her ear, and her body, she was taken into protective custody and placed with the paternal grandmother.
DPSS's detention report noted that ICWA did not apply. DPSS also reported that on June 3, 2022, Mother denied Native American ancestry, and that on June 9, 2022, Father denied Native American ancestry.
On July 6, 2022, Mother filed an ICWA-020 Parental Notification of Indian Status (ICWA-020) form and indicated that she had no Native American ancestry. On this same day, Father also filed an ICWA-020 form, indicating he had no Native American ancestry
The detention hearing was held on July 6, 2022. Mother was present in court. Father was also present in custody. The court formally detained H.M. from parental custody and set a jurisdiction hearing. The juvenile court omitted to inquire of the parents regarding their Native American ancestry, but found that ICWA did not apply, noting both parents had denied any Indian ancestry.
However, the court's minute order of the July 6, 2022 detention hearing, including the court's amended minute order of the detention hearing, erroneously states: "The Court has asked each participant whether the participant knows or has reason to know that the child is an Indian child. [¶] . . . [¶] The Court has instructed the parties to inform the Court if they subsequently receive information that provides reason to know the child is an Indian child. [¶] The Court finds that there is no reason to believe or reason to know the child is an Indian child and ICWA does not apply." The court's oral pronouncement is contrary to the court's minute order. [4] We note that Courts of Appeal are split on the proper disposition of cases where the parents appeal an order other than the order terminating parental rights, so the dependency remains ongoing in the lower court, and the only alleged error is with the ICWA inquiry. Another panel of this court has held the appropriate disposition where the juvenile court has found that ICWA does not apply is to vacate the ICWA finding and remand, but otherwise affirm. (Dominick D., supra, 82 Cal.App.5th at p. 568.) At least one case has disagreed with this approach and instead concluded the appeal is moot and should be dismissed. (See In re Baby Girl M. (2022) 83 Cal.App.5th 635.) We follow the approach outlined in S.H., supra, 82 Cal.App.5th at pp.179-180, concluding that the appropriate disposition is to affirm without remand. Whether we remand as in Dominick D. or affirm as we do here, the case returns to trial court with an ongoing duty to comply with ICWA.
In its jurisdiction/disposition and addendum reports, DPSS recommended that the juvenile court find true the allegations in the petition, the child be declared a dependent of the court, and the parents be provided with reunification services. DPSS also recommended that the court find ICWA "does not apply." DPSS noted that Mother had denied Native American ancestry on June 3 and July 15, 2022 and that Father had denied Native American heritage on June 9 and July 18, 2022. DPSS further indicated in its report that the juvenile court found that ICWA did not apply on July 6, 2022.
The jurisdictional/dispositional hearing was held on September 9, 2022 with both parents present. Prior to the hearing, Mother and Father had filed a waiver of rights form, submitting the petition based on the social worker's reports and other documents. The juvenile court found true the allegations in the petition, declared H.M. a dependent of the court, provided the parents with reunification services, and set a six-month review hearing. The court adopted the findings and orders attached to DPSS's report filed on July 22, 2022, which included the finding "The Court has made further inquiry as to whether DPSS-CSD has made an adequate investigation of Indian ancestry." Mother timely appealed the jurisdictional/dispositional order.
III. DISCUSSION
Mother contends that the juvenile court and DPSS failed to comply with their duty of inquiry with respect to ICWA. She thus argues there is insufficient evidence to support the court's finding that ICWA did not apply. DPSS concedes the error, but argues "there is no basis to reverse" the juvenile court's "jurisdictional and dispositional orders." We affirm since alleged ICWA inquiry error does not warrant reversal of the jurisdictional/dispositional order.
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 §§ 224-224.6; In re Abbigail A. (2016) 1 Cal.5th 83, 91 ["persistent noncompliance with ICWA led the Legislature in 2006 to 'incorporate[ ] ICWA's requirements into California statutory law'"].)
"'"'Federal regulations implementing ICWA . . . 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."'"' [Citations.] 'State law, however, more broadly imposes on social services agencies and juvenile courts (but not parents) 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 juvenile court and county child welfare department have "an affirmative and continuing duty to inquire" whether a child subject to a section 300 petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th 558, 566.) "This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice." (In re D.F., supra, at p. 566.) The juvenile court must inquire at each party's first appearance, whether any participant in the proceeding "knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) Part of the initial inquiry also includes requiring each party to complete California Judicial Council form ICWA-020, Parental Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
When the initial inquiry gives the juvenile court or social worker "reason to believe that an Indian child is involved," (§ 224.2, subd. (e)) the court and social worker must conduct further inquiry to "determine whether there is reason to know a child is an Indian child." (§ 224.2, subd. (e)(2); see In re J.S. (2021) 62 Cal.App.5th 678, 686.) The department "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.T. (2022) 76 Cal.App.5th 732, 744.) Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers-or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) Finally, if the further inquiry "'"'results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply.'"'" (In re J.C., supra, 77 Cal.App.5th at p. 78) Federal regulations define the grounds for reason to know that an Indian child is involved (25 C.F.R. § 23.107(c)(1)-(6)), and state law conforms to that definition (§ 224.2, subd. (d)(1)-(6)).
"'"If the court makes a finding that proper and adequate further inquiry and due diligence as required in [section 224.2] have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence."'" (J.C., supra, 77 Cal.App.5th at p. 78.)
There is a "split of authority as to whether a violation of the ICWA constitutes jurisdictional error," such that any violation requires reversal. (See In re Brooke C. (2005) 127 Cal.App.4th 377, 384 [discussing split].) This court has previously followed the approach taken in Brooke C. (See Dominick D., supra, 82 Cal.App.5th at pp. 563, 567; In re Jonathon S. (2005) 129 Cal.App.4th 334, 340.) Under that approach, in a dependency case, "ICWA inquiry and notice errors do not warrant reversal of the juvenile court's jurisdictional or dispositional findings and orders." (Dominick D., supra, at p. 567.) In other words, "the only order which would be subject to reversal for failure to give notice would be an order terminating parental rights." (In re Brooke C., supra, at p. 385.)
Mother's current appeal is from the juvenile court's dispositional order, not an order terminating parental rights. Therefore, even assuming ICWA inquiry error, such error is not sufficient to warrant reversing the juvenile court's dispositional order. Nor is remand with instructions to complete the ICWA inquiry necessary, regardless of the merits of Mother's arguments that DPSS has not yet completed its duty of further inquiry. (See S.H., supra, 82 Cal.App.5th at pp. 176-178.) This dependency matter will not end with this appeal. "So long as proceedings are ongoing and all parties recognize the continuing duty of ICWA inquiry, both the Agency and the juvenile court have an adequate opportunity to fulfill those statutory duties." (S.H., supra, at p. 179.) That appears to be the case in the instant matter.
IV. DISPOSITION
The juvenile court's jurisdictional/dispositional order is affirmed.
We concur: McKINSTER Acting P. J., MILLER J.