Opinion
D079746
04-08-2022
In re M.S., a Person Coming Under the Juvenile Court Law. v. R.S., Defendant and Appellant;M.S., Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant. Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Georgia Braun, Deputy County Counsel, for Plaintiff and Respondent. Julie E. Braden, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County No. NJ15727, Michael J. Imhoff, Commissioner. Affirmed in part; conditionally reversed in part with directions.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Georgia Braun, Deputy County Counsel, for Plaintiff and Respondent.
Julie E. Braden, under appointment by the Court of Appeal, for Minor.
HALLER, ACTING P. J.
R.S. (Father) and his minor daughter, M.S., appeal from juvenile court orders denying Father's petition under Welfare and Institutions Code section 388 to grant him reunification services after his release from incarceration. Father also appeals from the juvenile court's finding that the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply. The San Diego County Health and Human Services Agency (Agency) maintains the court did not err in denying the section 388 petition without a hearing or in finding ICWA inapplicable. We conclude the juvenile court did not abuse its discretion by denying Father's section 388 petition, but erred in finding ICWA did not apply, and conditionally reverse in part for ICWA compliance.
M.S.'s mother, M.W. (Mother), is deceased. We discuss her only to the extent necessary. Further statutory references are to the Welfare and Institutions Code unless noted.
FACTUAL AND PROCEDURAL BACKGROUND
We describe the factual background relevant to ICWA in the discussion section of this opinion.
Father was born in California in the early 1970's, and had a decades-long history of criminal and drug activity. Mother was born in the mid-1990's, grew up in Oregon, and moved to San Diego county after graduation, where relatives, including a maternal great-aunt and great-uncle, lived. Father and Mother met in 2018, and M.S. was born in June 2020. Father and Mother tested positive for marijuana and cocaine at the time. The Agency opened an investigation, recommended both parents engage in substance abuse services and closed the matter.
Mother and M.S. lived with the maternal great-uncle and great-aunt after M.S.'s birth. In late June, Mother and M.S. went to Oregon, where they lived with the maternal grandmother until early September 2020, and with the maternal grandfather until late October 2020. Upon returning to San Diego, Mother and M.S. lived with Father in the paternal great-grandmother's home until Father's arrest in late January 2021 for residential burglary, possession of narcotics for sale, and driving on a suspended license.
After Father's arrest, Mother and M.S. moved to the home of Mother's friend, N.G., who also had other roommates. In late February 2021, a roommate found Mother unresponsive and called 911. The police pronounced her dead at the scene, and found drug paraphernalia nearby. An autopsy determined she accidentally overdosed on fentanyl, cocaine, and methamphetamine.
M.S. was detained at Polinsky Children's Center, and placed with the maternal great-aunt and uncle two days later. The Agency opened a second investigation, and a social worker met with Father twice at his detention facility. He asked for confirmation that M.S. would be returned to his custody if released, and indicated he understood when the social worker explained that decision would be based on an investigation and assessment. The Agency also reached out to the San Diego District Attorney's Office and learned that Father was charged with residential burglary; had previous convictions for robbery and residential burglary, for which he served time; and he may "at minimum, ... be serving four years in prison."
B. Detention, Jurisdiction, and Disposition
In March 2021, the Agency filed a juvenile dependency petition on M.S.'s behalf under section 300, subdivision (b)(1). The Agency alleged M.S. was left without a caregiver because Mother was deceased and Father was incarcerated, stating he had an "extensive history of criminal involvement spanning over two decades." The petition further alleged Father had a "history of drug use," including "testing positive for cocaine ... at the time of [M.S.'s] birth."
The Agency's detention report provided additional information about Father. Before his incarceration in January 2021, he was living with the paternal great-grandmother and was employed as her caregiver; Mother and M.S. moved into the home when they returned from Oregon in late October. Father was charged with narcotics possession in 1992 and had numerous other criminal convictions, including robbery in 2004, receiving stolen property and burglary in 2005, possession of marijuana for sale in 2009, and possession of marijuana and narcotics for sale in 2013. He also had charges for burglary and possession of narcotics, including for sale, in 2019 and 2020. Father said that "if he were sentenced" in his current case, "he would be willing to 'sign over [his] rights' to 'save everyone the headache.'" With respect to drug use, Father reported he started using marijuana and cocaine as a teenager, but was not a daily drug user. He said he completed outpatient treatment during prior probation periods, and had not used substances since the last Agency investigation in June 2020.
At the detention hearing in mid-March 2021, the juvenile court detained M.S. with maternal relatives; authorized funds to reimburse the caretaker for collect calls from Father; and granted visitation upon Father's release. The court encouraged Father to participate in available 12-step meetings and programs, and directed that voluntary counseling and parenting class services be offered upon his release.
The Agency provided its jurisdiction and disposition report in April 2021 and an addendum report in May 2021, which addressed M.S.'s placement and further input from Father. The maternal grandmother requested placement of M.S. in Oregon, which the current caretakers supported, and the Agency started the Interstate Compact on the Placement of Children (ICPC) assessment process. Although she and the step-grandfather had concerns about Father's "substance use, lengthy criminal history, and involvement in drug sales," the step-grandfather was willing to supervise phone calls and visitation with Father and both were open to communicating with the paternal grandmother.
In late March 2021, a social worker again met with Father who reported he had three older children: an adult daughter in Tennessee; an adult daughter who lived in San Diego or Arizona; and a teenage son in San Diego, whom he co-parented without a formal custody arrangement. When asked about his family's involvement in drug sales, he said his father went to federal prison in the 1980's, but "had no criminal involvement since then." The report noted that in the initial June 2020 investigation, Father had said he "grew up around cocaine" because his family was involved in drug trafficking and he began participating in these activities as a minor. He reported his grandmother was called "grandma cocaine on the front of Time Magazine" and he "used to live with Pablo Escobar's cousin."
With respect to his own criminal and drug history, Father stated he was last on parole in 2014 and the current incarceration occurred because he was "set up." He continued to deny recent drug use, besides "one hit off weed," and said he would participate in services. When the social worker asked what reunification services he could benefit from, he stated, "To be honest, I don't think I would benefit from those services. I shouldn't be blamed for whatever [Mother] was doing."
A report attached to the Jurisdiction/Disposition report outlining Father's criminal history between 1992 and 2021 reflects over 25 arrests and multiple felony convictions and prison sentences.
The social worker gave Father her contact information and a toll-free number to call with any further questions. The May addendum report noted Father had a pending motion to dismiss his criminal case and said he was trying to participate in parenting and substance abuse classes, but was unable to find these programs in custody.
The Agency recommended the juvenile court remove M.S. from Father and bypass reunification services under section 361.5, subdivision (e)(1). That subsection states, in relevant part, that "[i]f the parent... is incarcerated . . ., the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child."
At the contested jurisdiction and disposition hearing in May 2021, Father's counsel said Father had not been able to speak with M.S., and "when he does call the caretaker, he is simply hung up on . . . ." The court removed M.S. from Father's custody, and denied reunification services under section 361.5, subdivision (e)(1). The court indicated a permanent plan hearing would be set, and confirmed Father was allowed video visitation once released.
The court's decision to bypass reunification services has not been challenged on appeal.
C. Section 388 Petition and Section 366.26 Hearing
In early June 2021, M.S. was placed with the maternal grandmother and step-grandfather. In its September 2021 report, the Agency recommended terminating Father's parental rights and adopting a permanent plan of adoption. The Agency noted M.S. was "doing extremely well" with the maternal grandparents; they wanted to adopt her; and they were committed to maintaining her family connections. Father had not had contact with M.S. for eight months.
The social worker indicated she sent Father a letter of introduction when she joined the case in June 2021 and two emails about a child and family team meeting in August 2021, and he did not respond. She also reported Father had not reached out to her for a visit, and it did not appear he had reached out to the caregivers, either.
According to a September 2021 addendum report, Father was released earlier that month due to overcrowding, but had pending charges in Riverside and had begun a two-year probation period with San Diego county. A few days after his release, Father called the social worker and asked about parenting classes and the case status, but had not yet requested visits.
In early October 2021, Father filed a section 388 petition and requested services now that he was out of custody. He argued this "would allow [M.S.] to know and bond with [her] biological father, which is of special importance in this case given mother is deceased" and she "is of very young age, making this bond crucial." He attached documentation indicating he was employed as a coach with a soccer school and was enrolled in a parenting course.
In two subsequent addendum reports, the Agency reported that in late September, Father asked the social worker for virtual visits with M.S. and he had completed five visits by mid-October, most lasting around 30 minutes. M.S. smiled and pointed at the camera at the beginning of the first visit, and at a later visit showed interest in items Father brought to the visit, but she generally did not respond to or engage with him. Father also asked about in-person visits and was advised this required seven days' notice to coordinate with the state of Oregon; approval from the probation office was also required. Father did not inform the social worker when he planned to visit, and no in-person visit took place. Father's older children had not asked about M.S. or requested visits.
The Agency recommended denying Father's petition, noting he had not maintained contact with M.S. while in custody; he still had pending criminal charges; and M.S. "show[ed] no emotional attachment" to him during visits.
The court heard Father's section 388 petition in mid-October 2021. His counsel argued M.S. "need[ed] this opportunity to bond with [Father] and allow [him] [to] utilize the tools . . . from his services ... to parent [her]." His counsel rejected the Agency's concern about reincarceration as speculation, and stated Father was "in compliance with all terms of his probation, including testing." M.S.'s counsel agreed Father should receive an evidentiary hearing.
The juvenile court denied Father's section 388 petition without an evidentiary hearing. The court explained:
"While it is somewhat sketchy as to whether or not there were any conditions placed on his release, I would still find that it is a change in circumstances. . . . Father must also establish it would be in the child's best interest to vacate the [section 366].26 and begin six months of reunification. Here the Court cannot find that the father has carried his burden for the following three reasons:
"First: The father did inquire [sic] as to the child's well-being during any of the point in time of his incarceration. While the Court did utilize [section 361.5, subdivision] (e)(1) as a bypass, the Court did authorize contact and visits.
"Second: The father was truthful and candid when he talked to the social worker and felt that he would not benefit from the services. He obviously agreed to participate, but didn't think he would benefit from them.
"And third: This is a very young child that has no established relationship with her father. And too, at this young age, this close to the .26, suspending] the permanency process would not be in her best interest. So the Court would deny the father's [section] 388 motion."
At the contested section 366.26 hearing in late October, Father's counsel requested a continuance to file another section 388 motion based on new information. In an offer of proof, counsel said Father had information showing he requested referrals for parenting classes and mental health and drug treatment while in custody, and "also indicated ... he made several attempts while in custody to effectuate visits with the minor." M.S.'s counsel did not object to a continuance.
Father's counsel also said M.S. lived with him from June to September 2020, which he echoed in his testimony during the section 366.26 portion of the hearing. The Agency reports reflected M.S. lived with Mother and maternal relatives during this period.
The juvenile court rejected Father's petition and stated:
"Here, we have a one-year-old. The father was incarcerated, I believe, for the last ten months or so, which is a significant portion of this child's life. While it's certainly admirable that the father indicates he attempted to visit with the child, the sad reality is those visits did not occur. There is no evidence of an established relationship of the child towards the father. I'm not questioning the father's love of his child.
"Second, even if this information had been included on the original [section] 388 [petition], it does not appear to me that it would make a substantial difference to compel the court to a different result. So I'm going to consider this also a motion to reconsider, but deny it on that ground.
"I'm not sure if this constitutes a change in circumstance, but even if it were to, and accepting the offer of proof, the court cannot find there would be a prima facie showing it would be in the best interests of the child to delay the permanence, and we are at the [section 366].26 hearing based on this record. So I will accept an oral [section] 388 motion and deny it on those grounds."
The juvenile court proceeded with the contested section 366.26 hearing, and Father testified. He said that when Mother and M.S. were in Oregon, he provided financial support and stayed in contact over FaceTime, and when they were in California, he helped care for M.S. and took her swimming. He also said he tried to arrange visits while in custody, including repeated efforts to reach the social worker, and contended the social worker only contacted him once. Father also testified M.S. engaged with him during visits, and she "remembers [him] very much." After hearing argument from counsel, the court selected adoption as M.S.'s permanent plan and terminated Father's parental rights. Father and M.S. timely appealed.
DISCUSSION
A. Modification Petition
Father and M.S. contend the juvenile court erred by denying his section 388 petition without an evidentiary hearing, and Father further contends such denial was a violation of due process. These contentions lack merit.
1. Applicable Law
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re A.A. (2012) 203 Cal.App.4th 597, 611 (A.A.).) "The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child." (Id. at pp. 611-612.) Once reunification services are terminated or bypassed," 'the focus shifts to the needs of the child for permanency and stability.'" (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M); In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.) [services denied].)
A petitioner who makes a prima facie showing that the elements are met is entitled to an evidentiary hearing. (§ 388, subd. (d); In re Hunter W. (2011) 200 Cal.App.4th 1454, 1463.) However," '[i]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition.'" (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) The prima facie requirement is" 'not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.'" (Ibid.) In deciding whether a prima facie showing has been made, the court "may consider the entire factual and procedural history of the case." (In re Michel O. (2011) 197 Cal.App.4th 586, 616.)
A petition under section 388 "is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion." (A.A., supra, 203 Cal.App.4th at p. 612; accord, In re G.B. (2014) 227 Cal.App.4th 1147, 1158.)
2. Analysis
We conclude the juvenile court did not abuse its discretion in denying Father's section 388 petition without an evidentiary hearing. Even assuming Father's release from custody constituted a change in circumstances, the court could reasonably find M.S.'s best interests would not be served by granting him reunification services now.
First, the record supports the juvenile court's finding that M.S. had no established relationship with Father. By the time he filed his section 388 petition in October 2021, 16-month-old M.S. had been in the care of maternal relatives for around 12 months (June-October 2020 and March-October 2021) and she had been placed with her maternal grandparents, who wanted to adopt her, for four months. They had already started to provide her with the permanence and stability she needed. (Stephanie M., supra, 7 Cal.4th at pp. 317-318; K.C., supra, 52 Cal.4th at p. 236.) In contrast, M.S. only lived with Father for three months during the first year of her life; Father had no contact with M.S. during his eight months of incarceration, despite having the social worker's contact information and funds allocated for collect calls; and M.S. showed little engagement and no emotional attachment to him during their handful of virtual visits in September and October.
Although Father claimed at the section 366.26 hearing that he tried to contact the social worker and arrange visits while in custody, the social worker stated she had not received inquiries from Father. Even assuming Father made such efforts, we agree with the juvenile court's observation that the unfortunate reality is no visits had occurred. (Cf. In re Jeremy S. (2001) 89 Cal.App.4th 514, 521-522 [minor lived with father and mother for first two years, had sporadic visits with father that ended when he was incarcerated, and weekly visits starting a month after father's release; there was "little evidence of a father/son bond" and no showing additional services would be in minor's best interests], disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 414 (Zeth S.); In re Zacharia D. (1993) 6 Cal.4th 435, 455-456 [juvenile court properly found reunification services were not in minor's best interests where, inter alia, father had "no relationship with the child" and did "almost nothing to develop" one; had "only vague plans of how he would care for him"; and had a "long-standing drug problem," and was incarcerated for drug use at the time].)
Father's status as M.S.'s only living parent, and M.S.'s chance for a relationship with his other children, do not compel a different result. "The presumption favoring natural parents by itself does not satisfy the best interests prong .... The cases that state a child may be better off with his or her biological parent... do so when the biological parent has shown a sustained commitment to the child and parenting responsibilities." (In re Justice P. (2004) 123 Cal.App.4th 181, 192 (Justice P.) [affirming summary denial of § 388 petition by incarcerated father who had not tried to contact children while in custody, drawing contrast with, inter alia, Adoption of Kelsey S. (1992) 1 Cal.4th 816.) Thus, the juvenile court could fairly conclude the record reflected no such sustained commitment by Father.
As for Father's children creating a familial bond, two are adults (at least one of whom lives out of state) and the third is a teenager whom Father co-parents without a custody arrangement. There was no indication any of them had met M.S., or even reached out to ask for visits or information on how she was doing. (Cf. In re Aaron R. (2005) 130 Cal.App.4th 697, 706 (Aaron R.) [§ 388 petition did not establish transfer to unfamiliar home was justified by preserving bond with older sibling].) Further, M.S.'s caregivers indicated they would facilitate contact with Father and the paternal family.
Second, the record reflects Father would not gain from reunification services, such that he could provide M.S. with permanency and stability. As the juvenile court noted, Father told the social worker he" '[did not] think [he] would benefit from . . . services, '" and further stated he "shouldn't be blamed for whatever" Mother was doing. The record supports Father's acknowledgment that he would not benefit from services. Although he recently started a soccer coaching job, he had been involved in criminal activity, including drug sales, for decades and did not appear remorseful. Rather, he reported participating in his family's drug trafficking activities when he was a teenager and shared stories about his grandmother being called" 'grandma cocaine'" and living with the relative of a major drug cartel leader. He himself had used drugs since he was a teenager, including after M.S.'s birth. And his criminal history was not only extensive, but also contributed to M.S.'s removal after Mother's death.
Even if Father did not return to custody on his current charges, nothing in the record reflected he was committed to providing M.S. with a safe, stable environment, and he does not articulate how his parenting class or other services would help him do so. (See Justice P., supra, 123 Cal.App.4th at p. 192 [father's "criminal lifestyle . . . evidenced a lack of interest in the children because his incarceration precluded a full commitment to his parental responsibilities"].)
To the extent Father was also, or alternatively, suggesting he did not need services because only Mother was to blame for M.S.'s removal, this shows a serious lack of insight into the risks of drug use around minors and the dangers posed by his own criminal and drug-related activity. (Cf. In re J.C. (2014) 233 Cal.App.4th 1, 5 [affirming jurisdiction as to father based on failure to protect child from mother's drug abuse].)
On this record, the juvenile court could reasonably conclude Father had not established a prima facie case that providing him with reunification services now was in M.S.'s best interests.
Father and M.S.'s arguments to the contrary and their reliance on the factors set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519 are unavailing. These factors are: "(1) [T]he seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Id. at p. 532.)
For the first and third factors, both Father and M.S. acknowledge M.S. was removed because of Father's incarceration and history of crime and drug use, as well as Mother's death. Father suggests these concerns are no longer at issue because he was out of custody, drug testing negatively, and enrolled in parenting classes; he had been unable to obtain services in custody; and services would let him remove remaining barriers to reunification. M.S. argues the juvenile court needs more information about Father's pending charges and his rehabilitation efforts while incarcerated.
These factors do not weigh in Father's favor. Father has a long, serious history of criminal and drug-related activity, which persisted after M.S.'s birth. As for current drug use, Father provided no proof of alleged negative drug tests. (Zeth S., supra, 31 Cal.4th at p. 413, fn. 11 ["It is axiomatic that the unsworn statements of counsel are not evidence"]; accord, In re Ramone R. (2005) 132 Cal.App.4th 1339, 1352.) Father's conclusory assertion that services would aid reunification also lacks force. He previously acknowledged he would not benefit from services, and still does not explain with specificity how they would help now.
As for the second factor, Father contends M.S. previously lived with him and they had started visits. He maintains that although she "appeared happy with her current caretakers," she had been with them "less than six months"; and the juvenile court "needed evidence regarding their bond" and his "obstacles . . . [to] communication]" while in custody. Counsel for M.S. acknowledged M.S. appeared "comfortable and attached" in the grandmother's home and "did not demonstrate attachment to [Father] during the visits," but argued attachment "was an issue open to further examination through an evidentiary hearing."
This factor does not weigh in Father's favor as there needs to be some evidence to support a prima facie case before an evidentiary hearing is warranted. Here, Father and M.S. presented arguments, but no evidence to support their claim it was in M.S.'s best interest to grant the section 388 motion. M.S. lived with Father for about three months when she was under a year old, and did not show sustained interest in him or emotional attachment in their later virtual visits. Meanwhile, both Father and M.S. admitted she was happy and comfortable with her grandparents.
We address two remaining arguments by M.S. and Father, respectively. M.S. emphasizes she had only been removed for "about six months," and providing an evidentiary hearing "would not have caused a substantial delay in proceedings or disruption of this child's placement." But, as the juvenile court observed, M.S. is a "very young child." For "a child under three years of age at the time of removal, . . . reunification services are presumptively limited to six months." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843.) The"' "unique developmental needs of infants and toddlers"' [citation] justifies a greater emphasis on establishing permanency and stability earlier in the dependency process." (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175.) Although reunification services can be and often are extended, the need to promptly achieve permanence for young children-like M.S. here- remains paramount.
Finally, Father argues the juvenile court "violated his constitutional right to due process" by denying him an evidentiary hearing. Not so. The section 388 "statutory scheme ... is constitutional because of its many safeguards." (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) "One such safeguard ... is that if a parent makes a prima facie showing of a change of circumstance such that a proposed change . . . might be in the child's best interest, then the juvenile court must hold a hearing." (Ibid., italics omitted.) Thus, if the moving party establishes a prima facie case, then due process requires the court to hold a hearing. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416; accord, In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433.) But where, as here, the party fails to make the required prima facie showing, no hearing is required. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) Further, the record shows the juvenile court fully considered Father's position: it explained its reasoning for denying his petition, subsequently allowed his counsel to make an offer of proof with additional evidence, and again explained why the petition would be denied.
B. ICWA
Father also contends there is no substantial evidence to support the juvenile court's finding that ICWA did not apply, and we should conditionally reverse for ICWA compliance. We agree conditional reversal is required.
M.S. does not contest the ICWA finding on appeal, nor does she join in the ICWA arguments asserted by Father.
1. Additional Facts
During the Agency's initial investigation in June 2020 after M.S.'s birth, Father denied Native American ancestry. In the investigation following Mother's death and M.S.'s detention in March 2021, a social worker again asked Father about Native American heritage and reported Father was claiming Cherokee ancestry. According to the detention report, Father "shared he has Cherokee ancestry from his paternal side of the family," but answered "No" to a series of related questions about his family. The social worker noted a "referral for inquiry for the father's Native American ancestry will be submitted and further information will be provided at the next Court hearing." The day before the detention hearing, the social worker filed an ICWA-010A form indicating the ICWA inquiry provided reason to believe M.S. is or may be an Indian child. The social worker also completed an ICWA inquiry with the maternal grandmother, who did not assert Native American ancestry.
The questions were: "Has anyone in the family ever lived on a reservation?'; "Has anyone in the family ever received any financial, medical, or education assistance from a tribe?"; "Does anyone in the family speak a Native American language?"; "Is anyone active in tribal activities such as tribal council meetings, religious rituals, or pow-wows?"; and "Is any family member a member of a tribe or an enrolled member in a tribe?"
Father and the maternal grandmother appeared at the March 2021 detention hearing by video, and the paternal grandmother was present by phone. The social worker who prepared the detention report was in attendance as well. At the outset of the hearing, Father's attorney stated, "On behalf of the father, I have reviewed the petition with him. ... [¶] Father would deny any Native American ancestry." Later in the hearing, the juvenile court asked Father's counsel, "would the father claim any Native American Indian heritage?" His counsel stated, "No." The court then asked the maternal grandmother if "the maternal side of the family" claimed Native American heritage, and she stated "No." The court did not ask the paternal grandmother about Native American heritage on the paternal side of the family. The court then stated:
"Since neither the maternal family nor the father are claiming Native American Indian heritage, the Court will conclude after reasonable inquiry that there does not appear to be a basis to believe that [M.S.] is likely an Indian child. Therefore, unless there's an objection on these facts at this time, the Court will find that the provisions of the Indian Child Welfare Act do not apply."
The social worker remained silent during the ICWA inquiry and ruling.
The Agency's jurisdiction and disposition reports in April 2021 and addendum in May 2021 reflected a social worker had spoken with the paternal grandmother (who reported about potential paternal aunts) and had left a voicemail for the paternal grandfather. But there was no indication the social worker asked the paternal grandmother or grandfather about ICWA, or contacted the potential paternal aunts at all. Nor was there any follow-up information about Native American ancestry in these reports.
At the jurisdiction and disposition hearing, the juvenile court reiterated its finding that ICWA did not apply, and there were no objections. The court's minute order for the hearing stated, "[Reasonable inquiry has been made to determine whether the child is or may be an Indian child." Finally, the court's minute order for the section 366.26 hearing stated it found without prejudice that ICWA did not apply.
2. Applicable Law
Congress enacted ICWA to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) Under California law adopted pursuant to ICWA, the juvenile court and Agency have an "affirmative and continuing duty to inquire" whether a child "is or may be an Indian child." (§ 224.2, subd. (a); see Isaiah W., at p. 9.)
As outlined by this court in In re D.S. (2020) 46 Cal.App.5th 1041, 1052 (D.S.), "section 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency's initial contact with a minor and his 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 Agency '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."
"Section 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department, such as the Agency, the duty to inquire '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.'" (D.S., supra, 46 Cal.App.5th at pp. 1048-1049.)
ICWA defines" 'extended family member'" 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); § 224.1, subd. (c) [extended family member "defined as provided in [§] 1903" of ICWA].)
"On appeal, we review the juvenile court's ICWA findings for substantial evidence." (D.S., supra, 46 Cal.App.5th at p. 1051.)
3. Analysis
The juvenile court's initial finding that ICWA was inapplicable implied that the Agency fulfilled its inquiry duty. (See In re Austin J. (2020) 47 Cal.App.5th 870, 885 [a finding that "ICWA does not apply" implies social workers and court "did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry"].) The court then reiterated that ICWA did not apply and found reasonable inquiry was made. The record does not support these findings, and we are compelled to conditionally reverse the order on the section 366.26 hearing.
Father stated he had "Cherokee ancestry from his paternal side of the family"; the social worker stated in the detention report a referral for an inquiry into his ancestry would be made; and she filed an ICWA-010A form indicating M.S. might be an Indian child. At the detention hearing, Father's counsel denied Native American ancestry at the outset of the hearing, and later the court asked Father's counsel and maternal grandmother about Native American heritage, which they denied. But, the court failed to ask the paternal grandmother, who was attending the hearing by telephone, about Indian ancestry. Similarly, there is no indication in the record that the Agency asked the paternal family members about Indian ancestry, even though a social worker had spoken with the paternal grandmother; had the paternal grandfather's contact information; and was aware of potential paternal aunts.
On this record, we cannot conclude ICWAs inquiry requirements were satisfied. The paternal grandmother and grandfather are extended family members within the meaning of ICWA, and paternal aunts would be as well. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) The Agency was required to ask them about Native American ancestry, and the juvenile court had to ensure this inquiry took place before it could find ICWA did not apply. (D.S., supra, 46 Cal.App.5th at pp. 1048-1049.) This did not occur-even as to the paternal grandmother, who was present at the detention hearing and later spoke with a social worker. (See In re Josiah T. (2021) 71 Cal.App.5th 388, 403-404 [agency's "initial inquiry was inadequate," where "[d]espite having four paternal family members . . . potentially available to consult about American Indian ancestry," agency did not ask paternal grandmother until 18 months after the petition or other paternal relatives until later]; In re Antonio R. (Mar. 16, 2022, B314389)____ Cal.App.5th ___[2022 Cal.App.Lexis 216 at *l-2] (Antonio R.) [juvenile court erroneously found ICWA did not apply; agency failed to inquire of maternal extended family members, including "relatives who were present in the courtroom during the disposition hearing"].)
The Agency does not persuade us to reach a different outcome. The Agency argues the juvenile court could "rely on father's counsel's representations-made in father's presence-that father had no Native American ancestry," and there was then no reason to believe M.S. was an Indian child or need for further inquiry. The Agency further argues that any error was harmless, including because neither Father, nor any other participant, provided information to support reason to know M.S. was an Indian child, and because Father does not assert on appeal that "he or a relative has new information regarding Cherokee heritage."
We recognize that numerous cases in the past few years have examined ICWA inquiry obligations and taken varying points of view, including on retractions of ancestry claims and applicable standards for harmless error. But we need not delve into those nuances here, because the inquiry efforts were clearly inadequate. Father disclosed potential Cherokee ancestry, but the juvenile court failed to ask the paternal grandmother about her ancestry during ICWA inquiry at the detention hearing. Not only was the social worker silent at the hearing, there is no indication she or any other social worker asked the paternal relatives about ICWA during later contact with them or made any referral for inquiry (as the detention report stated would occur). These efforts were a fundamental departure from the" 'affirmative and continuing duty to inquire'" under ICWA. (Isaiah W., supra, 1 Cal.5th at p. 9.)
See, e.g., Antonio R., supra, ___Cal.App.5th ___[2022 Cal.App.Lexis 216, at *15-16] (recognizing "Courts of Appeal are divided as to whether a parent must make an affirmative showing of prejudice to support reversal where the Department failed fully to perform its initial duty of inquiry").
We are not asking the Agency to" 'cast about' for investigative leads." (In re AM. (2020) 47 Cal.App.5th 303, 323.) Paternal relatives were known, and in the case of the paternal grandmother, in attendance during the juvenile court's ICWA inquiry. Further, asking extended family members not only is required (§ 224.2, subd. (b)), it also serves a meaningful purpose-"to obtain information the parent may not have." (In re Y.W. (2021) 70 Cal.App.5th 542, 556; Antonio R, supra, ___Cal.App.5th ___[2022 Cal.App.Lexis 216, at *12] [by requiring inquiry of "extended family members," the "Legislature determined that inquiry of the parents alone is not sufficient"].) On this record, we must conditionally reverse so the Agency and juvenile court can comply with these obligations.
We affirm the juvenile court's order denying Father's section 388 petition. We conditionally reverse the court's order at the section 366.26 hearing, which, inter alia, denied Father's oral section 388 petition and reiterated ICWA did not apply, and we remand for ICWA compliance.
Father checked the box for "[termination of parental rights" in his notice of appeal, and M.S. summarily contends we should suspend the termination order pending a section 388 evidentiary hearing, but neither appellant makes substantive arguments for reversing that order. Given we affirm the section 388 rulings, we affirm the termination portion of the section 366.26 order as well, subject to the conditional reversal for ICWA compliance. (Cf. Aaron R., supra, 130 Cal.App.4th at pp. 706-707 [grandmother appealed from denial of § 388 petition and denial was affirmed; not reaching other permanency issues].)
DISPOSITION
The order denying Father's Welfare and Institutions Code section 388 petition is affirmed. The order for the section 366.26 hearing is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry provisions of ICWA and section 224.2 (and, if applicable, the notice provisions), including inquiry of the paternal grandmother, paternal grandfather, and, if applicable, paternal aunts. If, after completing the initial inquiry, neither the Agency nor the juvenile court has reason to believe or to know M.S. is an Indian child, the order for the section 366.26 hearing shall be reinstated. If the Agency or the juvenile court has reason to believe M.S. is an Indian child, the juvenile court shall proceed accordingly.
WE CONCUR: IRION, J., DATO, J.