Yolo Cnty. Health & Human Servs. Agency v. J.A. (In re J.A.)

• Docket Number: C097054
• Decision Date: 30 May 2023
• Parties: In re J.A. et al., Persons Coming Under the Juvenile Court Law. v. J.A. et al., Defendants and Appellants. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
• Court: California Court of Appeals Court of Appeals

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In re J.A. et al., Persons Coming Under the Juvenile Court Law.

YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.A. et al., Defendants and Appellants.

C097054

California Court of Appeals, Third District, Yolo

May 30, 2023

NOT TO BE PUBLISHED

(Super. Ct. Nos. JV2020-0221-1 &JV2020-0221-2)

MESIWALA, J.

Appellants J.B. (mother) and J.A. (father), the parents of the minors Jo.A. And C.A. (the minors), appeal from the juvenile court's orders terminating parental rights and freeing the minors for adoption. (Welf. &Inst Code,^[1] §§ 366.26, 395.) The parents contend: (1) the Yolo County Health and Human Services Agency (the Agency) and the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) because the Agency did not contact extended family members to inquire about the ICWA (25 U.S.C. § 1901 et seq.; § 224.2.); and (2) the juvenile court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (Fam. Code, § 3400 et seq.) (UCCJEA).

We conditionally affirm subject to full compliance with the ICWA on remand. We find the UCCJEA issue forfeited.

BACKGROUND

On November 3, 2020, the Agency filed a petition alleging that Jo.A. (age three) and C.A. (age 15 months) came within the provisions of section 300, subdivision (b)(1), failure to protect, and section 300, subdivision (d), sexual abuse. The minors were detained pursuant to a protective custody warrant. The petition alleged that the minors were at risk of physical and sexual abuse because their father was a registered sex offender who had been accused of molesting multiple children, including the minors' half sibling. The petition alleged that mother had failed to protect the minors because she was aware of the abuse but continued to live with father and allowed father to have contact with the minors.

The parents and the minors lived in Washington until father's conviction in California for contacting a minor, his daughter, with the intent of committing a sexual act. Following father's conviction, mother moved to California with the minors to be with him because he was not allowed to return to Washington. The Agency became aware of father's conviction about three weeks later.

In a November 3, 2020, detention report, the Agency reported that father had heard of possible Cherokee or Blackfeet ancestry on his paternal side.^[2] Father denied knowing any other relatives who might have more information. Mother and her counsel denied that mother had any Native American ancestry. The minors were detained.

At the jurisdiction hearing on December 16, 2020, county counsel stated that father had reported Native American ancestry but the only person who would know details was deceased. She requested that the parents identify any additional relatives who could provide further information. The parents' respective counsel did not raise any issues regarding the UCCJEA.

In a January 4, 2021, disposition report, the Agency reported that mother completed an ICWA-20 form denying any Native American ancestry. Father completed an ICWA-20 form, stating that he had Klamath and Cherokee ancestry. Mother told the social worker that she loved father but was willing to separate from him if necessary. She indicated she would leave California and return to Washington to live with her parents if the minors were returned to her. Father indicated he would move to Washington to be with them after the end of his probation. The Agency recommended bypassing father for reunification services under section 361.5, subdivision (b)(16).

On February 8, 2021, the juvenile court held a contested jurisdiction and disposition hearing and addressed the ICWA issue. The court advised that the Agency should provide notice to the Cherokee, Blackfeet and Klamath tribes. Father informed the court that his grandmother, grandfather, and father all had Native American ancestry. Father gave a possible name for his grandmother. He stated that his mother (paternal grandmother) would have more information about the family names and history, and the social worker indicated she had the name and contact information for the paternal grandmother. Father clarified that any Native American ancestry was through his father who was deceased. Father believed that his father was a part of the Klamath tribe. Father also believed his grandfather had Blackfeet heritage because he did research showing that the Klamath Falls Indians were a branch of the Blackfeet tribe. He reported both of his grandparents were deceased. The court advised that the ICWA inquiry should continue. The parents' respective counsel did not raise any issues regarding the UCCJEA.

At the continued contested jurisdiction and disposition hearing on March 10, 2021, neither mother nor father made any objections to the court's ability to take jurisdiction and never raised the issue of the UCCJEA or Washington as a more appropriate venue. The juvenile court sustained the amended petition, took jurisdiction, ordered family reunification services to mother, and bypassed father for services. The paternal grandmother was with mother, both who appeared by video during the hearing, but paternal grandmother was not asked about the minors' potential Native American heritage. The court authorized the Agency to request an Interstate Compact on the Placement of Children (ICPC) evaluation for the maternal grandparents in Washington.

On June 23, 2021, the Agency filed a section 388 petition, asking to suspend mother's in-person visits after the elder minor, Jo.A., disclosed sexual abuse by mother. At a hearing on July 7, 2021, mother's counsel said that mother was living in Washington in connection with her request to appear remotely. Counsel did not raise any issues regarding the UCCJEA or jurisdiction. The court suspended mother's in-person visitation and also reduced visits. At the six-month review hearing on September 29, 2021, the juvenile court terminated mother's reunification services and set a selection and implementation hearing.

On January 26, 2022, the Agency reported that the social worker contacted father to obtain more information about the ICWA, but father had not yet responded to the social worker's contact. The court ordered father to complete an ICWA-20 form. On February 2, 2022, the Agency reported that father continued refusing to respond. Father then advised the juvenile court that he would not return the ICWA-20 form. The court again ordered father to fill out the ICWA-20 form, under penalty of contempt, and to meet with the social worker to discuss ICWA issues. On April 12, 2022, the Agency reported father had still not provided the necessary information, and the Agency intended to send the Bureau of Indian Affairs the limited information it had.

On June 24, 2022, the Agency filed an addendum report, listing its attempts to contact father. On March 3, 2022, father told the social worker that no living relatives were members of any tribe, and he could not provide information on where relatives were born, died, or if they lived on a reservation. The social worker called multiple phone numbers for the paternal grandmother, but the phone numbers were disconnected or no longer belonged to her. The Agency also reported that it sent notice to the tribes with the information it had, and all but two of the tribes responded that the minors were not eligible for membership. The Klamath and Blackfeet tribes had not responded, so the Agency sought a continuance. On August 31, 2022, the Agency filed another addendum report, adding the Blackfeet tribe's letter stating the minors were not eligible for membership.

At the contested section 366.26 hearing on September 21, 2022, the juvenile court found the minors adoptable, determined no statutory exceptions to adoption were applicable, entered a finding that the ICWA did not apply, and terminated parental rights.

DISCUSSION

I The ICWA

The parents contend that the Agency and the juvenile court failed to comply with their initial duty of inquiry under section 224.2, subdivision (b). The Agency responds that the inquiry was adequate, and any error was harmless. We disagree with the Agency.

As this court recently explained:" 'The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. [Citations.] A major purpose of the ICWA is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." [Citation.]' (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA defines an' "Indian child"' as a child 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).) The juvenile court and the social services department have an affirmative and continuing duty beginning at initial contact, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd (a).)" (In re G.A. (2022) 81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056.)^[3]

"[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency's initial contact with a minor and his [or her] 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...