Opinion
C097905
10-12-2023
In re M.W., a Person Coming Under the Juvenile Court Law. v. A.B. et al., Defendants and Appellants. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Super. Ct. No. JD241575)
RENNER, J.
Appellant D.W. (father), father of the minor, M.W. (the minor), appeals from the juvenile court's orders terminating parental rights and freeing the minor for adoption. (Welf. &Inst. Code, §§ 366.26, 395.) Father's sole contention on appeal is that we must remand for further Indian Child Welfare Act (ICWA) compliance because the initial inquiry by the Sacramento County Department of Child, Family, and Adult Services (Department) was insufficient to support the juvenile court's finding that the ICWA does not apply. (25 U.S.C. § 1901 et seq.; § 224.2.) The Department does not dispute the inquiry in this case was inadequate and does not oppose a conditional affirmance with instructions for compliance with the ICWA. We agree that conditional affirmance of the orders is warranted, subject to further ICWA compliance.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
Because the issue on appeal is limited to ICWA compliance, we dispense with a detailed recitation of the underlying facts and procedure. It suffices to say that on September 27, 2021, the Department sought a protective custody warrant and filed a petition alleging that the newborn minor came within the provision of section 300, subdivision (a), serious physical harm, and section 300, subdivision (b)(1), failure to protect, based on the parents' substance abuse and father's untreated anger management issues.
The detention report showed that the investigating social worker asked the parents about possible Native American ancestry prior to the filing of the section 300 petition. Without elaboration, the detention report states that both father and mother, A.B. (mother), "denied having any Native American heritage." Both parents provided Parental Notification of Indian Status (ICWA-020) forms, stating they had no Native American ancestry. Both parents were present at the September 29, 2021 detention hearing. The juvenile court noted that the parents reported that they did not have any Native American heritage on the ICWA-020 forms, and the court found that there was no reason to know or believe the minor was an Indian child within the meaning of the ICWA. The minor was ordered detained.
The Department's October 20, 2021 jurisdiction and disposition report stated that it identified six of the minor's relatives for notification. The Department reported that the ICWA did not apply based on the parents' denial of Native American heritage. At the November 5, 2021 contested jurisdictional hearing, the juvenile court again noted that the parents did not report any Native American heritage on the ICWA-020 forms and found there was no reason to know or believe that the minor was an Indian child and instructed the parties to inform the court of any new information pertinent to the ICWA.
The applicability of the ICWA was not addressed at subsequent proceedings. On January 31, 2023, at the contested selection and implementation hearing pursuant to section 366.26, the juvenile court did not make any further findings regarding the ICWA, and found the minor adoptable, determined no statutory exceptions to adoption were applicable, and terminated parental rights as to mother and father.
II. DISCUSSION
Father contends the Department's inquiry into the minor's possible Native American ancestry was insufficient because, although the parents denied Native American ancestry, there is no evidence the Department contacted any of the known extended family members to inquire whether they knew of possible Native American ancestry. The Department concedes that remand for further ICWA compliance is warranted.
We agree with father's argument that the matter must be remanded because the Department and the juvenile court failed to comply with their duty of inquiry under section 224.2, subdivision (b). As this court recently explained:" 'The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. [Citations.] A major purpose of the ICWA is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." [Citation.]' (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA defines an' "Indian child"' as a child who 'is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.' (25 U.S.C. § 1903(4).) The juvenile court and the social services department have an affirmative and continuing duty, beginning at initial contact, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)" (In re G.A. (2022) 81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056.)
"[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department]'s initial contact with a minor and his [or her] family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the [Department] 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone 'knows or has reason to know that the child is an Indian child']; id., subd. (d) [defining circumstances that establish a 'reason to know' a child is an Indian child]; § 224.3 [ICWA notice is required if there is a 'reason to know' a child is an Indian child as defined under § 224.2, subd. (d)].)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) We review claims of inadequate inquiry into a child's Native American ancestry for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
Father cites section 224.2, subdivision (b), which imposes a more extensive duty to inquire about Indian ancestry if a child is placed in the temporary custody of a welfare department (§ 306) or probation department (§ 307): "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." (§ 224.2, subd. (b).)
The record here shows the Department did not take temporary custody of the minor pursuant to section 306, but rather, the minor was taken into protective custody pursuant to a warrant. In such cases, there is a question as to whether the mandates of section 224.2, subdivision (b) are applicable, and interpretations of the statute have varied. (Compare In re Robert F. (2023) 90 Cal.App.5th 492, 500, 504, review granted July 26, 2023, S279743 [holding that duty to inquire of extended family members under § 224.2, subd. (b) is triggered only when child is taken into temporary emergency custody under § 306] and In re Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023, S280572 [following In re Robert F.] with In re Delila D. (2023) 93 Cal.App.5th 953, 973 [holding that "section 224.2(b)'s reference to temporary custody 'pursuant to [s]ection 306' is better read as including children who, though initially removed by protective custody warrant, are then delivered or placed into the department's custody pending a detention hearing" and the child welfare agency's duty of inquiry is the same regardless of how the minor was removed from the home].) The parties have not raised and briefed the issue, however, and because the Department has conceded that remand is appropriate, we need not reach this issue at this juncture. We assume that on remand, the juvenile court will require the Department to make further reasonable inquiry of extended family members, as appropriate.
In this case, the Department does not dispute father's claim that the record demonstrates that the Department had contact information for multiple maternal and paternal relatives and had the opportunity to inquire about the minor's ancestry with those relatives, but there is nothing in the record indicating that the Department asked the relatives about the minor's ancestry. Accordingly, we agree with the parties that the Department was required to make additional efforts to inquire about possible Native American ancestry from the parents' known relatives and that remand is necessary for the Department to inquire further. (See § 224.2, subd. (b); see also In re Y.W. (2021) 70 Cal.App.5th 542, 554; In re A.C. (2022) 75 Cal.App.5th 1009, 1016-1018.) We will remand the case to the juvenile court for further proceedings to address compliance with the inquiry and notice provisions of the ICWA and entry of new findings regarding the applicability of the ICWA.
III. DISPOSITION
The orders terminating parental rights are conditionally affirmed for both parents subject only to full compliance with the ICWA as described in this opinion. If, on remand, the juvenile court determines the minor is an Indian child within the meaning of the ICWA, the court shall vacate its previous orders terminating parental rights and conduct further proceedings consistent with the ICWA, including a new section 366.26 hearing. (25 U.S.C. § 1914; § 224, subd. (e).) On remand, parents shall have counsel reappointed and be provided due process, including notice and the right to be heard, for all ICWA compliance proceedings.
WE CONCUR: EARL, P. J., MESIWALA, J.