Persons Coming Under the Juvenile Court Law. San Bernandino Cnty. Children v. J.M. (In re K.T.)

• Decision Date: 23 March 2022
• Docket Number: E077791
• Citation: 76 Cal.App.5th 732,291 Cal.Rptr.3d 678
• Parties: IN RE K.T. et al., Persons Coming Under the Juvenile Court Law. San Bernandino County Children and Family Services, Plaintiff and Respondent, v. J.M. et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

76 Cal.App.5th 732

291 Cal.Rptr.3d 678

IN RE K.T. et al., Persons Coming Under the Juvenile Court Law.San Bernandino County Children and Family Services, Plaintiff and Respondent,

v.J.M. et al., Defendants and Appellants.

E077791

Court of Appeal, Fourth District, Division 2, California.

Filed March 23, 2022

Suzanne Davidson, Glendale, under appointment by the Court of Appeal, for Defendant and Appellant, J.M.

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

Pamela Rae Tripp, Okemos, MI, under appointment by the Court of Appeal, for Defendant and Appellant, D.M.-S, Sr.

Tom Bunton, County Counsel and Dawn M. Martin, Deputy County Counsel for Plaintiff and Respondent.

OPINION

SLOUGH, Acting P. J.

To effectuate the Indian Child Welfare Act's (ICWA)¹ goal of protecting the best interests of Indian children in custody proceedings, our Legislature amended the Welfare and Institutions Code to require child protection agencies to conduct further inquiry into ICWA's applicability when there is "reason to believe" an Indian child is involved.² The amendment, which took effect in January 2019, requires social workers to contact—"as soon as practicable"—extended family members, the Bureau of Indian Affairs (BIA), the relevant tribe or tribes, "and any other person that may reasonably be expected to have information regarding" the child's membership or eligibility for tribal membership. ( Welf. & Inst. Code, § 224.2, subd. (e) & (e)(2)(A)-(C), unlabeled statutory citations refer to this code.) The sole issue in this appeal from termination of parental rights is whether San Bernardino County Children and Family Services (CFS) complied with this duty in the dependency proceedings involving nine-year-old K.T. and his two-year-old sister, D.

Early on in the case, the children's mother and K.T.'s father (father) reported they had possible Cherokee, Choctaw, and Blackfeet ancestry and gave CFS contact information for family members who might be able to provide more detail. CFS never followed up, and the juvenile court found ICWA didn't apply without first ensuring CFS had pursued these leads. About two years into the proceedings, after the parents failed to reunify with the children, the court determined they were likely to be adopted and terminated parental rights.

On appeal, mother and father argue that despite having reason to believe K.T. and D. were Indian children, CFS failed to conduct adequate further inquiry under section 224.2 to determine whether ICWA applies. CFS concedes their error, and rightly so, as the record contains no indication they made any effort to investigate the parents' claims of Indian ancestry. As a result, the record does not support the juvenile court's finding that ICWA does not apply, and we must reverse the orders terminating parental rights and remand the case for further proceedings.

We publish our opinion not because the errors that occurred are novel but because they are too common. Child protective agencies and juvenile courts have important obligations under ICWA. Failing to satisfy them serves only to add unnecessary uncertainty and delay into proceedings that are already difficult for the children, family members, and caretakers involved. Delayed investigation may also disadvantage tribes in cases where it turns out ICWA does apply, as their opportunity to assume jurisdiction or intervene will come at a late stage in the proceeding.

IFACTS

CFS began investigating this family for physical abuse in January 2019 after one of mother's children died in her care and the autopsy revealed the child bore signs of nonaccidental trauma. At the time, mother and D.'s father, D.M., were living together and caring for K.T. and his younger half brother, D.M., Jr., who is not a party to this appeal. D. had not yet been born, and K.T.'s father, was incarcerated.

At the initial detention hearing in March 2019, mother claimed Blackfeet ancestry through the maternal grandfather. She provided his full legal name and phone number, as well as the name, phone number, and address of the maternal aunt. The maternal grandmother, who was also present at the hearing, provided dates and places of birth for the maternal grandfather and great-grandmother. The juvenile court told mother CFS would try to obtain additional information from these family members, but the record contains no indication they ever did. Instead, a few weeks later, CFS sent notice to the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana that omitted tribal and biological information for the maternal great-grandmother, despite the maternal grandmother having provided some of that information at the detention hearing.

On April 12, 2019, father filed an ICWA-020 form claiming Cherokee and Blackfeet ancestry through the paternal great-grandfather and his relative "Edna C." A few days later, he made his first court appearance, accompanied by the paternal grandmother. He reported possible Choctaw ancestry, and the paternal grandmother provided dates and places of birth for herself and the paternal great-grandfather. On April 29, he filed a second ICWA-020 form listing only Choctaw ancestry.

On June 20, CFS sent notice to the Blackfeet and Cherokee tribes but did not send notice to any of the three federally recognized Choctaw tribes. ( 86 Fed.Reg. 7554-7558 (Jan. 29, 2021) ; see also 25 U.S.C. § 5131 [requiring the Department of the Interior to publish a list of federally recognized tribes in the Federal Register every year].) As with the earlier notices, these also omitted tribal and biological information about the maternal great-grandmother. They also omitted tribal information for father and the paternal grandmother and contained no information regarding the paternal great-grandfather.

The court held the jurisdiction and disposition hearing for K.T. and D.M., Jr., on June 24, 2019. It sustained allegations of physical abuse against mother and D.M., took dependency jurisdiction over the children under section 300, subdivision (a), removed them from mother and D.M.'s custody, and ordered family reunification services. The court also found father was K.T.'s presumed father and, because he was in the process of serving a lengthy prison sentence, denied him reunification services under section 361.5, subdivision (b)(12).

Shortly after mother gave birth to D. in October 2019, CFS filed a dependency petition on the infant's behalf under section 300, subdivision (j) (abuse of a sibling). At the detention hearing that same month, mother again reported having possible Blackfeet ancestry. When the court asked her if her family was affiliated with any other tribes, she said she didn't know. However, D.'s counsel told the court that some of mother's relatives who were sitting in the back of the courtroom claimed Cherokee heritage. Without identifying the relatives or inquiring about their claim, the court noted there was a dependency proceeding for D.'s siblings and ICWA was being addressed in that case. The court ordered the parents to cooperate if there was any missing information from the prior ICWA notices and ordered CFS to consult with their counterparts in K.T.'s case, as well as any available relatives, before preparing ICWA notices for D. Again, the record contains no indication CFS did so, and on December 2, they sent notice to the Blackfeet Tribe and three federally recognized Cherokee tribes containing the same information about mother's side of the family as the notices they sent on K.T.'s behalf in June.

In February 2020, the court took dependency jurisdiction over D. and removed her from mother and D.M.

By June 2020, the Blackfeet Tribe and two of the three federally recognized Cherokee tribes—the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians—had responded that D. did not qualify for membership. The court found CFS had completed ICWA noticing for D. and ICWA did not apply.

In August 2020, the juvenile court returned K.T. and D. to mother and D.M. after finding they had made sufficient progress on their case plans and no longer posed a substantial risk of harm to the children. About two months later, mother inflicted serious injuries upon D. when she threw her to the floor. The court immediately detained the children in foster care and, in April 2021, sustained supplemental dependency petitions and bypassed reunification services to all three parents.

On April 14, 2021, the court found ICWA did not apply to either K.T. or D. At the children's permanency planning hearing several months later in September 2021, the court terminated mother's, D.M.'s, and father's parental rights. The court found both K.T. and D. were bonded to their current caregivers and selected adoption as their permanent plan.

IIANALYSIS

Mother and father argue CFS failed to adequately investigate the children's status as Indian children, and D.M. joins mother's argument as it relates to D. (See In re T.G. (2020) 58 Cal.App.5th 275, 291, 272 Cal.Rptr.3d 381 ["Non-Indian parents have standing to raise issues of ICWA compliance on appeal"].) CFS concedes their error.

A. ICWA's Purpose and Protections

Congress enacted ICWA over 40 years ago to address " ‘abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’ " ( In re Isaiah W. (2016) 1 Cal.5th 1, 7, 203 Cal.Rptr.3d 633, 373 P.3d 444.) Congress found " ‘that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.’ " ( In re W.B. (2012) 55 Cal.4th 30, 48, 144 Cal.Rptr.3d 843, 281 P.3d 906, quoting 25 U.S.C. § 1901(5).) As a result, ICWA's express purpose...