Kern Cnty. Dep't of Human Servs. v. A.C. (In re E.C.)

Citation85 Cal.App.5th 123,301 Cal.Rptr.3d 107
Decision Date08 November 2022
Docket NumberF084030
Parties IN RE E.C., a Person Coming Under the Juvenile Court Law. Kern County Department of Human Services, Plaintiff and Respondent, v. A.C., Defendant and Appellant.
CourtCalifornia Court of Appeals

Christopher Blake, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Margo A. Raison, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.


[85 Cal.App.5th 133]


A.C. (Mother) is the mother of E.C., now three years old. In 2020, E.C. was taken into protective custody after Mother's domestic violence related arrest, and, in 2021, she was made a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b)(1) and (j).1 Mother timely appeals the juvenile court's order terminating her parental rights under section 366.26.2 E.C.'s alleged father, Ed. C., is not a party to the appeal.

[85 Cal.App.5th 134]

Mother's sole claim on appeal is that Kern County Department of Human Services (the Department) failed to comply with the Indian Child Welfare Act of 1978 ( 25 U.S.C. § 1901 et seq. ) (ICWA) and related California law with respect to its duty of "further inquiry," which was triggered by information that maternal great-grandmother and two maternal great-uncles were enrolled members of the Apache tribe.3 ( § 224.2, subd. (e)(1).)4 The Department does not dispute that it had a duty of further inquiry in this case or that it failed to document its inquiry in the record. However, it requests that, one, we consider postjudgment evidence under

[301 Cal.Rptr.3d 116]

Code of Civil Procedure section 909, in the form of declarations setting forth information that Department paralegals obtained from maternal grandmother, maternal aunt, and someone associated with the Lipan Apache Band of Texas, and, two, we take judicial notice of the list in the Federal Register of recognized tribal entities, which does not include the Lipan Apache Band of Texas. In light of this evidence, the Department contends the juvenile court's finding that ICWA does not apply is supported by substantial evidence and any error is harmless.

The juvenile court record in this case is silent as to what inquiry the Department conducted under ICWA and what responses, if any, it received. Therefore, as the Department concedes, its inquiry fell short of what is required under California law. ( § 224.2, subds. (b), (e).) As discussed, the deficiencies include failing to conduct a further inquiry into the information that maternal great-grandmother and two maternal great-uncles may be enrolled members of the Apache tribe.5 ( § 224.2, subd. (e).) In addition, the Department failed to document its ICWA inquiry, and any results, in the record. ( Cal. Rules of Court, rule 5.481(a)(5).)6 Given this bare record, the juvenile court's implied finding of a proper, adequate, and duly diligent inquiry is unsupported by substantial evidence and its contrary conclusion was an abuse of discretion. ( § 224.2, subd. (i)(2) ; In re K.H. (Oct. 21, 2022, F084002) 844 Cal.App.5th 566, ––––, 300 Cal.Rptr.3d 499 (K.H. ) [adopting hybrid standard].)

[85 Cal.App.5th 135]

We deny the Department's motion to submit postjudgment evidence because this routine case does not present "exceptional circumstances " justifying our engagement in findings of fact on review. ( In re Zeth S. (2003) 31 Cal.4th 396, 405, 2 Cal.Rptr.3d 683, 73 P.3d 541 ( Zeth S. ); accord, Code Civ. Proc., § 909 ; rule 8.252(b)(c).) The evidence is also limited to declarations setting forth facts subject to dispute by Mother. However, even if we were to consider the evidence and treat it as undisputed for the sake of argument, it neither cures the error stemming from the Department's failure to conduct an adequate inquiry into Mother's claim that she has three relatives with membership in the Apache tribe, nor supplies substantial evidence to support the juvenile court's ICWA finding. ( § 224.2, subds. (e), (i)(2).) At best, the evidence, which consists of two paralegals' and Department counsel's recently executed declarations, creates a conflict between Mother's testimony and information the Department obtained from maternal grandmother and maternal aunt involving a different relative. This factual conflict must be resolved by the juvenile court in the first instance.

As explained in our recent decision in K.H. , ascertaining whether an error in the context of ICWA and related California law is prejudicial requires viewing the error through the lens of ICWA's remedial purpose. ( K.H., supra , 84 Cal.App.5th at p. ––––, 300 Cal.Rptr.3d 499, citing In re A.R. (2021) 11 Cal.5th 234, 252–254, 276 Cal.Rptr.3d 761, 483 P.3d 881 ( A.R. ).) These laws are intended to ensure the rights of Indian children and Indian tribes

[301 Cal.Rptr.3d 117]

are protected in dependency proceedings by giving tribes concurrent jurisdiction and the right to intervene when the proceeding involves an Indian child. ( In re W.B. (2012) 55 Cal.4th 30, 48, 144 Cal.Rptr.3d 843, 281 P.3d 906 ( W.B. ), citing 25 U.S.C. § 1911(b)(c) & Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 36, 109 S.Ct. 1597, 104 L.Ed.2d 29 ( Holyfield ).) Many cases do not proceed beyond the inquiry stage in the ICWA compliance process and, therefore, ensuring adequacy and accuracy at this step is critical if the tribes' right to notice in proceedings that may involve an Indian child is to be meaningfully safeguarded, as was intended by Congress and our state Legislature. ( K.H., supra , at p. ––––, 300 Cal. Rptr.3d 499, citing A.R., supra , at pp. at 252–253, 276 Cal.Rptr.3d 761, 483 P.3d 881.)

As in K.H. , the error here is prejudicial because neither the Department nor the juvenile court gathered information sufficient to ensure a reliable ICWA finding by the court, and remand for an adequate inquiry that includes addressing the lead Mother provided regarding tribal enrollment of three relatives is necessary. ( K.H., supra , 84 Cal.App.5th at p. ––––, 300 Cal.Rptr.3d 499.) Accordingly, we conditionally reverse the juvenile court's finding that ICWA does not apply and remand for further proceedings consistent with this opinion.

[85 Cal.App.5th 136]

I. Petition and Detention

On June 1, 2020, E.C., then seven months old, was taken into protective custody by the Kern County Sheriff's Department following Mother's arrest at their home for committing acts of domestic violence against a visiting ex-girlfriend. On June 2, 2020, the Department filed an original petition on behalf of E.C. alleging she came within the juvenile court's jurisdiction under section 300, subdivisions (b)(1) (failure to protect), (g) (no provision for support), and (j) (abuse of siblings). The petition identified Ed. C. as E.C.'s alleged father, whereabouts unknown. The Department's social study submitted with the petition set forth Mother's lengthy prior criminal and child protective services history, and documented Mother's disclosure that she may have Apache ancestry.

On June 3, 2020, the juvenile court held a detention hearing. Mother, who was in custody, denied the allegations, submitted on detention, and testified regarding paternity and ICWA. Mother identified Ed. C. as E.C.'s father, but testified he was not listed on the birth certificate and had not met E.C. because he was arrested when Mother was six months pregnant and subsequently deported to Mexico. Mother testified she had regular contact with Ed. C. via video chat.

On the date of the hearing, Mother completed a " PARENTAL NOTIFICATION OF INDIAN STATUS " form (Judicial Council form ICWA-020 (ICWA-020)) indicating she may have Apache ancestry on her maternal side, and she identified I.C. in Bakersfield (maternal grandmother) on the form. She also testified that maternal great-grandmother Er. C. and maternal great-uncles P.C. and Ern. C. were enrolled members of the Apache tribe; they received support through the tribe; and P.C.

[301 Cal.Rptr.3d 118]

lived with Er. C. Mother provided cross streets where Er. C. lived in Bakersfield and stated I.C. had Er. C.'s telephone number. She also testified that I.C. was not an enrolled member of the tribe as far as she was aware.

The court found a prima facie showing that E.C. came within section 300 and ordered her detained from Mother. The court directed the Department to conduct an ICWA inquiry.

On August 4, 2020, the court granted the Department's motion to dismiss the section 300, subdivision (g), allegation, without prejudice.

[85 Cal.App.5th 137]

II. Jurisdiction and Disposition

On February 4, 2021, the juvenile court held a combined contested jurisdiction and disposition hearing. In its jurisdiction and disposition social studies, filed February 4, 2021, the Department recommended the court sustain the petition allegations and adjudge E.C. a dependent, remove her from Mother's physical custody, bypass Mother for reunification services under section 361.5, former subdivision (b)(10),8 and set a selection and implementation hearing under section 366.26. With respect to ICWA, both social studies reflected an inquiry submitted on behalf of Mother was still pending and no new information had been provided. The disposition social study also reflected that Ed. C. was reached by telephone, he reported he was living in Mexico, and he denied paternity.

At the hearing, the Department's counsel stated with respect to ICWA, "I am submitting on that report, but I also wanted—and I know the father, at this point, is still alleged, but if the Court wants information, there was an inquiry into the family members done, and it was determined that the tribe that there was some family history and was not a federally recognized Apache tribe, and further that it was on a relative by marriage, not by blood."

Mother objected to jurisdiction and requested services be provided. Mother's counsel...

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