Riverside Cnty. Dep't of Pub. Soc. Servs. v. N.G. (In re Ricky R.)

• Decision Date: 25 August 2022
• Docket Number: E078646
• Citation: 82 Cal.App.5th 671,298 Cal.Rptr.3d 602
• Parties: IN RE RICKY R. et al., Persons Coming Under the Juvenile Court Law. Riverside County Department of Public Social Services, Plaintiff and Respondent, v. N.G., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

82 Cal.App.5th 671

298 Cal.Rptr.3d 602

IN RE RICKY R. et al., Persons Coming Under the Juvenile Court Law.Riverside County Department of Public Social Services, Plaintiff and Respondent,

v.N.G., Defendant and Appellant.

E078646

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

Filed August 25, 2022

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

Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

MENETREZ, J.

N.G. (Mother) appeals from the juvenile court's order terminating parental rights to her children, Ricky R. and Jayden R. Mother argues 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. ). DPSS does not dispute that it failed to discharge its duty of initial inquiry, but it argues that the error was harmless. DPSS also moves to dismiss the appeal as moot on the basis of postjudgment evidence, and it asks us to consider that evidence under several theories.

We conclude that DPSS prejudicially erred by failing to comply with its duty of initial inquiry under ICWA-related state law. ( Welf. & Inst. Code, § 224.2, subd. (b) ; unlabeled statutory citations are to this code.) We also deny DPSS's motion to dismiss the appeal and decline to consider the postjudgment evidence of ICWA inquiries conducted while this appeal was pending. We hold that the juvenile court should consider that evidence in the first instance and determine whether DPSS discharged its duties under ICWA and related state law. Accordingly, we conditionally reverse the order terminating parental rights and remand the matter for further proceedings.

BACKGROUND

In October 2019, DPSS filed a petition under section 300, subdivisions (b)(1) and (g), alleging that 10-year-old Ricky and eight-year-old Jayden were at substantial risk of serious physical harm or illness and that they had been left without any provision for support. The petition alleged that Mother abused controlled substances, had a criminal history, and neglected the children's health, safety, and well-being. It alleged that R.R. (Father) failed to provide the children with adequate food, shelter, clothing, and other types of support and that his whereabouts were unknown. (Father is not a party to this appeal.)

Before the detention hearing, Mother told DPSS that she did not have any Indian ancestry.¹ DPSS was unable to locate and interview Father. Mother and Father were not present at the detention hearing.

But Mother's counsel said that she had asked Mother about Indian ancestry, and Mother denied any such ancestry. The court ordered both parents to complete Judicial Council form ICWA-020 (Parental Notification of Indian Status).

In preparation for the jurisdiction and disposition hearings, DPSS reported that it still was unable to locate Father. At the combined jurisdiction and disposition hearing, Mother told the court that she did not have any Indian ancestry. She also filed form ICWA-020 and checked the box on the form indicating that she did not have Indian ancestry, as far as she knew. The court found that DPSS had conducted a sufficient ICWA inquiry and that ICWA did not apply. The court also struck the allegation in the petition that Mother neglected the children's health, safety, and well-being, but it found the remaining allegations to be true and took jurisdiction over the children. As for disposition, the court removed the children from the parents' custody, ordered reunification services for Mother, and denied reunification services for Father. Mother provided maternal grandfather's contact information and asked that DPSS assess him for placement of the children.

DPSS located Father in April 2020. The agency asked whether he had any Indian ancestry, and Father said that he did not. At the six-month review hearing, the court ordered another six months of reunification services for Mother. The court also ordered reunification services for Father.

A few months later, maternal grandfather's application for placement was denied because his adult daughter lived in the home and had a criminal record. Another relative, maternal great-aunt, had applied for placement, but she ultimately withdrew the application. Maternal grandfather died in October 2020.

Father told DPSS that he was living with paternal grandmother and paternal great-grandmother in November 2020. DPSS contacted paternal grandmother and asked whether she wanted to be assessed for placement. Around the same time, Mother's cousin contacted DPSS and expressed an interest in having the children placed with her.

At the 12-month review hearing, the juvenile court terminated reunification services for both parents and set the matter for a section 366.26 hearing. Shortly after that hearing, DPSS spoke again with paternal grandmother. She continued to live with Father and paternal great-grandmother, and they did not have room to take placement of the children.

The children's foster parents were not willing to adopt the children. The court continued the section 366.26 hearing several times so that DPSS could search for an adoptive home and complete the preliminary adoption assessment.

In August 2021, DPSS placed the children with Mother's cousin, who wanted to adopt them. Mother's cousin said that she and her family did not have any Indian ancestry. DPSS filed a status review report that contained contact information for a number of relatives—maternal grandmother, maternal aunt, paternal grandmother, and maternal great-aunt—but there was no indication in the report that DPSS had asked those relatives about Indian ancestry.

The continued section 366.26 hearing took place in February 2022. The court found that the children were likely to be adopted and terminated parental rights. Although the court did not make an express ICWA finding, the order terminating parental rights "was ‘necessarily premised on a current finding by the juvenile court’ " that ICWA did not apply to the children. ( Benjamin M., supra , 70 Cal.App.5th at p. 740, 285 Cal.Rptr.3d 682.)

DISCUSSION

Mother argues that we must reverse the order terminating parental rights because DPSS failed to discharge its duty of initial inquiry under ICWA-related state law. We agree. In addition, we deny DPSS's motion to dismiss the appeal and its request to consider postjudgment evidence.

I. Reversible ICWA Error

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, 272 Cal.Rptr.3d 381.) 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, 204 Cal.Rptr.3d 760, 375 P.3d 879 ["persistent noncompliance with ICWA led the Legislature in 2006 to ‘incorporate[ ] ICWA's requirements into California statutory law’ "].) An Indian child is any unmarried person under 18 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) ; § 224.1, subd. (b).)

"Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case." ( Benjamin M., supra , 70 Cal.App.5th at p. 741, 285 Cal.Rptr.3d 682.) DPSS and the juvenile court have an "affirmative and continuing duty to inquire" whether a child in a dependency proceeding "is or may be an Indian child." ( § 224.2, subd. (a).) The duty to inquire consists of two phases—the duty of initial inquiry and the duty of further inquiry. ( In re T.G., supra , 58 Cal.App.5th at p. 290, 272 Cal.Rptr.3d 381.) ICWA also imposes a duty to provide notice of the proceedings to the pertinent Indian tribes. ( 25 U.S.C. § 1912(a) ; § 224.3, subd. (a).) Notice enables the tribes "to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in, or exercise jurisdiction over, the matter." ( In re T.G., supra , 58 Cal.App.5th at p. 288, 272 Cal.Rptr.3d 381.)

The duty of initial inquiry applies in every dependency proceeding. ( In re Austin J. (2020) 47 Cal.App.5th 870, 884-883, 261 Cal.Rptr.3d 297 ( Austin J. ).) Federal regulations require state courts to ask each participant "at the commencement" of a child custody proceeding "whether the participant knows or has reason to know that the child is an Indian child." ( 25 C.F.R. § 23.107(a).) State law requires the court to pursue an inquiry "[a]t the first appearance in court of each party" by asking "each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child." ( § 224.2, subd. (c).) In addition, when DPSS takes a child into temporary custody, the agency must ask "the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child," and the reporting party whether the child is or may be an Indian child. ( § 224.2, subd. (b).) 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).)

"[R]eason to believe that an Indian child is involved" triggers the duty of further inquiry. ( § 224.2, subd. (e), 1st par.) "[R]eason to believe" exists whenever the court or DPSS has "information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." ( § 224.2, subd. (e)(1).) The required further inquiry includes interviewing the parents and extended family members to gather the information necessary for an ICWA...