Amber L. v. Superior Court CA4/1
- Proceeding
- writ
- Trial judge
- Gary M. Bubis
- Outcome
- writ granted — Petition granted; request for stay denied.
- Area
- dependency
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Gilbert Nares
Analysis
The juvenile court found that ICWA did not apply based on initial inquiries and set a section 366.26 hearing without conducting further investigation into the maternal grandfather's alleged Cherokee heritage. The Court of Appeal granted the writ, conditionally reversing the order and remanding the case for the Agency to conduct the required further inquiry and provide notice to tribes.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Juvenile court's finding that ICWA did not apply and the order setting the section 366.26 hearing.“The Agency concedes, and the record shows, that the social worker did not make further inquiry regarding the possible Indian status of the children.” | unclear | error | agree with court agree with court |
Authorities
- relied: In re A.G. (2012) 204 Cal.App.4th 1390 — A social worker who knows or has reason to know that the child is an Indian child is required to make further inquiry regarding the possible Indian status of the child.
- relied: In re J.N. (2006) 138 Cal.App.4th 450 — A limited remand is necessary to effect and document proper inquiry under ICWA when the agency fails to conduct required further inquiry.
The appellate opinion: sound — The opinion correctly identifies the statutory duty under Welfare and Institutions Code section 224.3 to conduct further inquiry when there is reason to know a child may be an Indian child. It relies on the Agency's concession and the record showing the maternal grandmother reported Cherokee heritage, which triggered the duty to inquire further beyond the initial denial by the parents.
How this analysis was made · dispute it
unusual dispositionThe juvenile court found at the detention hearing that ICWA did not apply after the parents denied Indian ancestry, never revisited the issue despite the maternal grandmother's report of Cherokee heritage, and at the 18-month review terminated reunification services and set Welfare and Institutions Code section 366.26 hearings. On the mother's writ petition, the Court of Appeal accepted the Agency's concession that no further ICWA inquiry had been made, conditionally reversed the order setting the section 366.26 hearings, and remanded with directions to vacate the ICWA finding, conduct proper inquiry, and give notice if indicated.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Juvenile court's finding that ICWA did not apply, made without the Agency conducting further inquiry under section 224.3, subdivision (c), after the maternal grandmother reported Cherokee heritage“The Agency concedes, and the record shows, that the social worker did not make further inquiry regarding the possible Indian status of the children.” | unclear | error (statutory interpretation) | agree with court Section 224.3 imposes an affirmative and continuing duty of inquiry on the court and social worker, and an extended family member's statement of tribal heritage is a listed circumstance giving reason to know the child may be an Indian child, triggering the duty to interview extended family and gather information for notice (In re A.G.). The record showed the Agency itself flagged that ICWA may apply yet did nothing further, and the Agency conceded error. Some published decisions hold that very remote or vague claims of heritage do not trigger notice, and the court did not engage that line of authority, but the inquiry duty is a lower threshold than the notice duty and the Agency's concession made the result defensible. |
Order terminating reunification services and setting section 366.26 hearings“The order setting the section 366.26 hearings is conditionally reversed.” | unclear | error (procedure) | agree with court The appellate court did not find any independent defect in the referral order; it conditionally reversed solely because the ICWA inquiry defect must be cured before permanency planning proceeds, and directed reinstatement if the children are found not to be Indian children. A limited conditional reversal with directions is the standard remedy for ICWA inquiry or notice error (In re J.N.), so the disposition follows established practice. |
Authorities
- relied: In re A.G. (2012) 204 Cal.App.4th 1390 — A social worker who knows or has reason to know a child may be an Indian child must make further inquiry as soon as practicable by interviewing parents and extended family members to gather information required for ICWA notice.
- relied: In re J.N. (2006) 138 Cal.App.4th 450 — Where ICWA inquiry or notice was deficient, the appropriate remedy is a limited remand for the agency to conduct and document proper inquiry and notice, with reinstatement of the challenged order if the child is found not to be an Indian child.
- missed: In re Jeremiah G. (2009) 172 Cal.App.4th 1514 — A vague or remote suggestion of Indian ancestry, unaccompanied by information about a specific tribe or membership, may be insufficient to trigger ICWA notice requirements; the court did not analyze whether the great-great-grandfather's unregistered Cherokee heritage met the threshold, relying instead on the Agency's concession.
The appellate opinion: sound with gaps — The opinion correctly states the continuing duty of inquiry under section 224.3 and applies the standard conditional-reversal remedy, and the Agency's concession plus the Agency's own detention report flagging possible Cherokee heritage support the result. It skips any analysis of whether a remote, unregistered ancestor's heritage actually triggered the further-inquiry duty in light of contrary published authority, and does not address timeliness or forfeiture of a challenge to a finding made at detention, resting almost entirely on the concession.
Opinion
Filed 11/20/15 Amber L. v. Superior Court CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
AMBER L., D068782 Petitioner, (San Diego County v. Super. Ct. No. EJ3765A-D)
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY et al., Real Parties in Interest.
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Judge. Petition granted; request for stay denied.
Dependency Legal Group of San Diego and John P. McCurley for Petitioner.
No appearance by Respondent. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency.
Dependency Legal Group of San Diego and Caitlin Zaback for Real Parties in Interest E.L., J.L., B.L. and A.L., Minors.
Amber L. seeks review of a juvenile court order setting a hearing under Welfare and Institutions Code section 366.26.1 She contends the San Diego County Health and Human Services Agency (Agency) and the juvenile court did not conduct a sufficient inquiry and provide notice in compliance with the Indian Child Welfare Act (ICWA), title 25 U.S.C. section 1901 et seq. and Welfare and Institutions Code section 224 et seq.
Amber asks that this court conditionally reverse the order setting the hearings under section 366.26 with directions to conduct the necessary inquiry and provide notice to the appropriate tribes. The Agency concedes error. After review, we accept the Agency's concession and therefore grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2014, the Agency filed petitions alleging that Amber had physically abused one of her four children, and the other three children were at substantial risk of physical abuse. (§ 300, subs. (a), (j).) In its detention report, the Agency said ICWA does or may apply, and explained "[t]he maternal grandmother . . . reports that her grandfather had some Cherokee Indian [h]eritage. [She] states that her grandfather was 1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. 2 not registered as a tribal member and did not participate in tribal activities." In Indian child inquiry attachments to the petitions, the Agency reported "[the maternal grandmother] states that her grandfather had Cherokee Indian [h]eritage."
At the detention hearing, Amber and the children's father informed the juvenile court that neither parent had any American Indian heritage. On their parentage inquiries, the parents represented that as far as they knew, they had no Indian ancestry. The juvenile court found that ICWA did not apply.
In reports filed for subsequent hearings, the Agency stated: "On 01/21/2014, the court found the [ICWA] does not apply." The report filed for the 18-month review hearing states: "The [ICWA] does not apply." The juvenile court did not address ICWA issues, or make any ICWA findings, at any hearing after the detention hearing. At the 18-month review hearing, the juvenile court terminated reunification services and set section 366.26 hearings for the children on December 15, 2015.
DISCUSSION
The court and social worker have an affirmative and continuing duty in all dependency proceedings to inquire whether a dependent child is, or may be, an Indian child. (§ 224.3, subd. (a).) The circumstances that may provide reason to know the child is an Indian child include when a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe, or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of the tribe. (Id., subd. (b).) A social worker who knows or has reason to know that the child is an Indian child is required to make further inquiry 3 regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members, to gather the information required for notice. (Id., subd. (c); In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397.)
The Agency concedes, and the record shows, that the social worker did not make further inquiry regarding the possible Indian status of the children. The Agency states that a limited remand is necessary to effect and document proper inquiry under ICWA.
(In re J.N. (2006) 138 Cal.App.4th 450, 461-462.) We therefore grant the relief requested.
DISPOSITION
The order setting the section 366.26 hearings is conditionally reversed. The matter is remanded to the juvenile court with directions to vacate its finding that ICWA does not apply and direct the Agency inquire into the family's alleged Indian heritage and provide notice to the children's Indian tribe or tribes, if any, in accordance with ICWA and section 224.3. If the inquiry produces evidence that the children are or may be Indian children, then the juvenile court should direct the Agency to give notice of the underlying proceedings and any upcoming hearings in compliance with ICWA and applicable state law to any identified tribes. (25 U.S.C. § 1912.) If, after proper inquiry (and notice, if 4 indicated), the juvenile court finds that the children are not Indian children within the meaning of ICWA, the order setting the section 366.26 hearings shall be reinstated.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
HALLER, J.
Cites, in this corpus
- Alameda County Social Services Agency v. Anthony G. No. A132447 · 2012-04-16