San Bernardino Cnty. Children & Family Servs. v. D.M. (In re A.C.)
| Decision Date | 25 June 2021 |
| Docket Number | E075333 |
| Court | California Court of Appeals Court of Appeals |
| Parties | IN RE A.C., a Person Coming Under the Juvenile Court Law. San Bernardino County Children and Family Services, Plaintiff and Respondent, v. D.M., Defendant and Appellant. |
Emily P. Uhre, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, and Jeffrey S. Moret, Supervising Deputy County Counsel, for Plaintiff and Respondent.
D.M. (sometimes father) appeals from an order terminating his parental rights to his biological daughter A.C. (sometimes child). He contends that there was a failure to inquire into whether he had Indian ancestry, as required by the Indian Child Welfare Act (ICWA) ( 25 U.S.C. § 1901 et seq. ) and related federal and state law.
The issue arose because the mother plainly did have Indian ancestry — she was an enrolled member of a federally recognized Indian tribe; an older daughter had been removed from her custody and transferred to the jurisdiction of the tribe.
Apparently no one thought it was worth asking whether the father, too, might have Indian ancestry. When the mother's tribe surprised everyone by reporting that the child was not a member and not eligible for membership, the juvenile court found — without any further inquiry regarding the father — that ICWA did not apply.
San Bernardino County Children and Family Services (CFS) does not dispute that there was an erroneous failure to inquire. It contends only that the father has not shown that the error was prejudicial.
We agree. The father has not claimed — in the juvenile court, in his opening brief, in his reply brief, or at oral argument — that he has any Indian ancestry. Because he has not managed to clear this rather low hurdle, there is no reason to suppose that, absent the error, the outcome would have been any different. And, more to the point, there is no reason to reverse and remand for a further inquiry, which would not only entail effort and expense, but would also delay permanency for A.C.
In November 2017, when the child was one year old, CFS received a report that the mother used methamphetamine, physically abused the child, failed to feed the child, and failed to obtain medical care for the child. When a social worker investigated, he found that the child had been left with the mother's roommate's sister (and occasionally others) for more than a week. In 2015, an older daughter had been removed from the mother's custody. The mother, when interviewed, admitted using methamphetamine.
Accordingly, CFS detained the child and filed a dependency petition concerning her. After a brief placement with the roommate's sister, the child was placed in foster care.
There was some initial uncertainty as to whether D.M. or one E.R. was the child's father; at the detention hearing, however, the mother definitively identified D.M. as the father. Subsequently, paternity testing ruled out E.R. In November 2017, CFS located the father, in prison.
In January 2018, at the jurisdictional/dispositional hearing, the juvenile court found that it had jurisdiction based on failure to protect (as to the mother only) and failure to support (as to the father only). (§ 300, subds. (b), (g).)1 It formally removed the child from the parents' custody and ordered reunification services for both parents. It found that the father was a presumed father.
In April 2018, the father was released on parole.
In January 2019, at the 12-month review hearing, the juvenile court terminated the mother's reunification services.
In May 2019, at the 18-month review hearing, the juvenile court found that the father had failed to participate in his reunification services plan and had made only "minimal" progress. It terminated the father's reunification services and set a hearing under section 366.26.
In September 2019, the foster mother said she was interested in adopting the child.
In June 2020, at the section 366.26 hearing, the juvenile court terminated parental rights.
At the detention hearing, the juvenile court adopted all orders recommended in the detention report. This included an order that all parents, specifically including the father, file a Judicial Council Form ICWA-020, "Parental Notification of Indian Status" (ICWA-020). At that point, however, the father's whereabouts were unknown.
From the beginning of the dependency, the mother stated that she was a member of the Confederated Tribes of the Colville Reservation (Colville Tribes), a federally recognized Indian tribe. ( 85 Fed. Reg. 5462-01, 5463 (Jan. 30, 2020).) She filed an ICWA-020 to that effect.
CFS soon located the father in prison; however, as far as the record shows, it did not ask him whether he had any Indian ancestry, nor did it tell him that he had been ordered to file an ICWA-020.
In January 2018, the father made his first appearance, in custody, at the jurisdictional/dispositional hearing. However, the juvenile court did not order him to file an ICWA-020, and again, as far as the record shows, CFS did not ask him whether he had any Indian ancestry. In May 2018, after he was released, a social worker met with him, but again, apparently did not ask him whether he had any Indian ancestry. He never did file an ICWA-020.
Meanwhile, in November 2017, CFS sent an ICWA notice to the Colville Tribes and to the Bureau of Indian Affairs. It named E.R. as the father; it did not mention D.M.
CFS repeatedly filed "ICWA Declaration[s] of Due Diligence" listing E.R. as a "Search Source" but not mentioning the father.
In January 2019, in response to the ICWA notice, the Colville Tribes advised CFS that the child was not a member and not eligible for membership. Thus, at the 12-month review hearing, the juvenile court found that ICWA did not apply.
( In re W.B. (2012) 55 Cal.4th 30, 48, 144 Cal.Rptr.3d 843, 281 P.3d 906.) California has adopted statutes and rules that "implement, interpret, and enlarge upon" ICWA. ( In re S.B. (2005) 130 Cal.App.4th 1148, 1157, 30 Cal.Rptr.3d 726.)
Under both state and federal law, whenever "the court knows or has reason to know that an Indian child is involved" in a proceeding that could result in termination of parental rights, notice of the proceedings must be given to the relevant tribe or tribes. ( 25 U.S.C. § 1912(a) ; accord, § 224.3, subd. (a); Cal. Rules of Court, rule 5.481(c)(1).)
" ( In re B.H. (2015) 241 Cal.App.4th 603, 606, 194 Cal.Rptr.3d 226.)
Under federal law, the juvenile court "must ask each participant" in a dependency "at the commencement of the proceeding" "whether the participant knows or has reason to know that the child is an Indian child." ( 25 C.F.R. § 23.107(a) (2016) ; see also § 224.2, subd. (c).) It must also "instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." (Ibid. )
In addition, under state law, the juvenile court and the social services agency "have an affirmative and continuing duty to inquire whether a child for whom a [dependency] petition ... may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a).) As part of this duty, the social services agency must ask, not only the parents, but also the child's extended family members, whether the child may be an Indian child. (§ 224.2, subd. (b).) "If the parent ... does not appear at the first hearing, or is unavailable at the initiation of a proceeding, the court must order the [social services agency] to use reasonable diligence to find and inform the parent ... that the court has ordered the parent ... to complete ... form ICWA-020[ ]." ( Cal. Rules of Court, rule 5.481(a)(3).)
The social services agency "must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status ...." ( Cal. Rules of Court, rule 5.481(a)(5).)
Thus, the juvenile court erred by failing to ask the father, at his first appearance (or at any other time), whether he had any Indian ancestry. CFS also erred by failing to ask the father and his extended family members2 whether he had any Indian ancestry. Even assuming it did ask, it erred by failing to document its inquiries and their responses.
We turn, then, to whether the error was prejudicial.
( In re S.B., supra , 130 Cal.App.4th at p. 1162, 30 Cal.Rptr.3d 726 ; see generally Cal. Const. art. VI, § 13.)
This means a parent asserting failure to inquire must show — at a minimum — that, if asked, he or she would, in good faith, have claimed some kind of Indian ancestry. ( In re Noreen G. (2010) 181 Cal.App.4th 1359, 1388, 105 Cal.Rptr.3d 521 ; a...
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