In re A.M. CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. J520412
- Trial judge
- Gary M. Bubis
- Outcome
- reversed — Conditionally reversed and remanded with directions.
- Area
- dependency
- Panel
- Judith D. McConnell (author), O'Rourke, William S. Dato
Analysis
The trial court terminated the mother's parental rights, finding that the agency had made adequate ICWA inquiry and that there was no reason to know the child was an Indian child. The Court of Appeal conditionally reversed and remanded, accepting the agency's concession that the further inquiry required by Welfare and Institutions Code section 224.2, subdivision (e)(2)(C) was not adequately conducted or documented.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding that the agency made adequate ICWA inquiry and that there was no reason to know the child was an Indian child.“Therefore, the juvenile court’s findings that adequate inquiry was completed and there was no reason to know the child was an Indian child lacks substantial evidence.” | substantial evidence | error | agree with court The appellate court correctly applied the substantial evidence standard to the agency's compliance with the statutory duty of further inquiry. The agency conceded that its efforts (a single phone call and lack of birth dates) were insufficient to satisfy the specific requirements of section 224.2, subdivision (e)(2)(C), which mandates contacting the tribe and sharing necessary information for membership determination. Because the agency conceded the failure, the trial court's finding that the inquiry was adequate lacked substantial evidence as a matter of law. |
Finding that ICWA does not apply to the case at the six-month review and subsequent termination of parental rights.“Thus, the court’s finding that ICWA does not apply also lack’s substantial evidence.” | substantial evidence | error | agree with court The appellate court correctly determined that the finding that ICWA did not apply was unsupported by substantial evidence because it was predicated on the deficient further inquiry. Since the agency failed to complete the mandatory further inquiry under section 224.2, subdivision (e)(2)(C), the court could not properly conclude that there was no reason to know the child was an Indian child. The conditional reversal is appropriate to allow the agency to fulfill its statutory duties before the court makes a final determination on ICWA applicability. |
Authorities
- relied: In re D.S. (2020) 46 Cal.App.5th 1041 — California’s statutory scheme contains three distinct duties regarding ICWA in dependency proceedings: initial inquiry, further inquiry upon reason to believe, and formal notice upon reason to know.
The appellate opinion: sound — The opinion is sound because it correctly identifies the specific statutory deficiency in the agency's ICWA inquiry and relies on the agency's concession to establish that the trial court's findings lacked substantial evidence. The conditional reversal and remand instructions are precise and align with the requirements of Welfare and Institutions Code section 224.2, subdivision (e)(2)(C).
How this analysis was made · dispute it
unusual dispositionThe juvenile court found the Agency had made an adequate ICWA inquiry, later found ICWA did not apply, and then terminated Mother's parental rights under Welfare and Institutions Code section 366.26 after Mother and the maternal grandmother had reported Yaqui ancestry. On appeal the Agency conceded the further inquiry under section 224.2, subdivision (e)(2) was inadequate, and the Court of Appeal conditionally reversed the termination order and remanded with directions to complete the further inquiry and determine on the record whether ICWA applies.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding at the August 2020 jurisdiction/disposition hearing that the Agency made an adequate (reasonable) ICWA inquiry and there was no reason to know ICWA applied“Therefore, the juvenile court’s findings that adequate inquiry was completed and there was no reason to know the child was an Indian child lacks substantial evidence.” | substantial evidence | error (fact finding unsupported) | agree with court Mother's and maternal grandmother's reports of Yaqui ancestry gave reason to believe A.M. was an Indian child, triggering the further-inquiry duty of section 224.2, subdivision (e)(2). The record showed only that some relatives' birth dates were unavailable and one unanswered voicemail to the tribe, which does not document interviews of extended family, contact with the BIA or State Department of Social Services, or sharing of information the tribe needed; the Agency's concession is consistent with the statute and In re D.S. |
Finding at the February 2021 six-month review hearing that ICWA does not apply“The Agency further concedes the case proceeded to a section 366.26 hearing without documented further inquiry regarding ICWA. Thus, the court’s finding that ICWA does not apply also lack’s substantial evidence.” | substantial evidence | error (fact finding unsupported) | agree with court The finding was made without further discussion and without any new documented inquiry after the earlier deficient inquiry, so there was no evidentiary basis for concluding ICWA did not apply. The duty of inquiry is affirmative and continuing under section 224.2, subdivision (a), and nothing in the record shows it was discharged. |
Order terminating parental rights under section 366.26 and selecting adoption as the permanent plan“The findings and orders entered at the section 366.26 hearing are conditionally reversed.” | unclear | error (procedure) | agree with court The termination order was not reviewed on its merits; it was conditionally reversed solely because it rested on an unsupported ICWA finding. Conditional reversal with a limited remand to complete the inquiry, and reinstatement if A.M. is found not to be an Indian child, is the standard and proportionate remedy for this type of ICWA inquiry error. |
Authorities
- relied: In re D.S. (2020) 46 Cal.App.5th 1041 — California's ICWA scheme imposes three distinct duties: initial inquiry, further inquiry when there is reason to believe the child is an Indian child, and formal notice when there is reason to know.
The appellate opinion: sound — The court correctly identified the further-inquiry duty under section 224.2, subdivision (e)(2), applied substantial evidence review, and accepted a well-founded concession that an unanswered voicemail and missing birth dates do not document the required interviews, agency contacts, and information sharing with the tribe. The limited conditional reversal with reinstatement if A.M. is not an Indian child is the accepted remedy; the opinion is brief and relies on the concession rather than independent analysis, but the result follows directly from the statute and cited authority.
Opinion
Filed 11/18/21 In re A.M. 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
In re A.M., a Person Coming Under the Juvenile Court Law. D079484 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J520412)
Plaintiff and Respondent, v. E.M., Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Conditionally reversed and remanded with directions. Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel for Plaintiff and Respondent. Appellant E.M. (Mother) appeals an order terminating her parental rights pursuant to section 366.26 of the Welfare and Institutions Code.1 The sole issue is whether the San Diego County Health and Human Services Agency (Agency) and the juvenile court conducted an adequate further inquiry as required by the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) after both Mother and maternal grandmother advised the Agency they have Native-American ancestry through the Yaqui Tribe. The Agency concedes maternal grandmother’s claim of Yaqui ancestry provided reason to believe minor A.M. was an Indian child and that the Agency failed to conduct an adequate further inquiry as required by section 224.2, subdivision (e)(2). The Agency concedes, and we agree, a limited remand is appropriate to require the juvenile court to order the Agency to fulfill its duties of further inquiry under section 224.2, subdivision (e)(2)(C) regarding A.M.’s membership status or eligibility as an Indian child. Therefore, we conditionally reverse the termination order.
FACTUAL AND PROCEDURAL BACKGROUND2 In June 2020, the Agency sought protective custody for minor A.M. and initiated dependency proceedings under section 300, subdivision (b) because Mother and child tested positive for amphetamines and methamphetamines after the child’s birth. Mother admitted using methamphetamine during pregnancy.
1 Further undesignated statutory references are to the Welfare and Institutions Code. 2 We provide an abbreviated summary of the dependency proceedings and focus on the facts and background relevant to the narrow issue on appeal of the adequacy of the ICWA inquiry and findings.
2 At the initial detention hearing, Mother’s counsel informed the court that Mother has Native American heritage through the Yaqui Tribe. The court deferred the ICWA findings. At the end of June 2020, the Agency informed the court that Mother believed she had Native American heritage from the maternal side of her family. The Agency interviewed maternal grandmother who stated she had Native American heritage through the Yaqui tribe from both Arizona and Sonora. The information was provided to an ICWA specialist within the Agency. On August 13, 2020, at a pretrial status conference, the court noted that the ICWA issue was still not resolved and there was no new information in the Agency’s addendum report. Deputy county counsel reported that the social worker spoke with the relative, but “did not have a date of birth for the other relative.” At the contested adjudication and disposition hearing on August 27, 2020, deputy county counsel reported, “maternal grandmother did not have some of the birth dates of the relatives. The social worker has called the tribe on August 13th and left a message, and has not heard back.” The court initially believed it could continue with the hearing, order the Agency to continue the inquiry, and come back to disposition if the child turned out to fall within ICWA. After further discussion, deputy county counsel argued there may be “reason to believe” the child was an Indian child based on the family reports of tribal history, but that there was not a “reason to know.” Counsel urged the court to find the Agency had made an adequate inquiry and that there was no “reason to know” ICWA applied because they did not have a definitive answer. The court commented that the Agency had “definitely made 3 adequate inquiry, and it appears that they have just reason to believe.” The court found the Agency “made reasonable inquiry and there’s no reason to know that [ICWA] applies.” The court then conducted the contested adjudication and disposition hearing and found the allegations true. The court declared the child a dependent of the court, removed the child from the custody of the parents, and placed the child with a relative. At the six-month review hearing in February 2021, a different deputy county counsel asked the court to find ICWA does not apply. Without further discussion, the court made the finding that ICWA does not apply to this case. Thereafter, in April 2021, the court terminated parental reunification services. On August 31, 2021, the court terminated parental rights and identified adoption as the preferred permanent plan. Mother appealed.3 DISCUSSION “ICWA reflects a congressional determination to protect American Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; [In re] Austin J. [(2020)] 47 Cal.App.5th [870,] 881.) To that end, ICWA established unique standards for the removal and placement of American Indian children. (25 U.S.C. § 1901 et seq.) Central to the protections of ICWA are procedural rules to determine whether an Indian child is involved. Federal regulations implementing ICWA require state courts to ask participants in child custody proceedings whether the participant knows or has reason to know the child is an Indian child. (25 C.F.R. § 23.107(a).) The court must also tell the parties to inform the court if the parties receive information giving them reason to know the child is an 3 Father is not a party to this appeal.
4 Indian child. (Ibid.)” (In re Josiah T. (Nov. 8, 2021, No. B311213) ___Cal.App.5th___ [2021 WL 5177283, at *7].) The juvenile court and the Agency have an “affirmative and continuing duty to inquire” whether a dependent child “is or may be an Indian child” in all dependency proceedings. (§ 224.2, subd. (a).) California’s statutory scheme contains “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. ([Id.], 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 inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone ‘knows or has reason to know that the child is an Indian child’]; id., subd. (d) [defining circumstances that establish a ‘reason to know’ a child is an Indian child]; § 224.3 [ICWA notice is required if there is a ‘reason to know’ a child is an Indian child as defined under § 224.2, subd. (d)].).” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) After a “reason to believe” that an Indian child is involved has been established, further inquiry regarding the possible Indian status of the child is required. (§ 224.2, subd. (e).) The duty of further inquiry includes (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs (BIA) and State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership; and 5 (3) contacting tribes and anyone else that might have information regarding the child’s membership or eligibility in a tribe. (Id., subd. (e)(2).) Pursuant to section 224.2, subdivision (e)(2)(C), the Agency must contact “the tribe or tribes and any other person that may reasonably be expected to have information regarding the child’s membership, citizenship status, or eligibility.” The Agency’s contact with the tribe “shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case.” (Ibid.) Here, the Agency agrees that there was a reason to believe the child was an Indian child based on the statements of Mother and maternal grandmother regarding the ancestral connection to the Yaqui tribe. The Agency concedes deputy county counsel’s statements at the jurisdiction and disposition hearing that “relatives’ dates of birth could not be obtained and that a call had been made to the tribe were insufficient to establish and document the Agency’s efforts to interview extended family members and contact the tribe and provide it with any information deemed necessary.” Therefore, the juvenile court’s findings that adequate inquiry was completed and there was no reason to know the child was an Indian child lacks substantial evidence. The Agency further concedes the case proceeded to a section 366.26 hearing without documented further inquiry regarding ICWA. Thus, the court’s finding that ICWA does not apply also lack’s substantial evidence. We accept the Agency’s concessions and remand the matter for the limited purpose of allowing the Agency to complete further inquiry under section 224.2, subdivision (e)(2)(C), and for the court to determine, on the record, whether ICWA applies.
6 DISPOSITION The findings and orders entered at the section 366.26 hearing are conditionally reversed. The matter is remanded with instructions for the juvenile court to order the Agency to comply with the further inquiry provisions under section 224.2, subdivision (e)(2)(C) regarding A.M.’s membership status or eligibility as an Indian child. If, after proper further inquiry, the court finds a reason to know that A.M. is an Indian child, the court must provide notice in accordance with ICWA. If the court finds that A.M. is an Indian child, then the court must conduct a new section 366.26 hearing and any further proceedings in compliance with ICWA and California law. If the court finds that A.M. is not an Indian child, the section 366.26 order terminating parental rights shall be reinstated. Pursuant to the stipulation of the parties, the remittitur shall issue immediately.
McCONNELL, P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.