Kern Cnty. Dep't of Human Servs. v. S.H. (In re SE. H.)

1

In re SE. H., a Person Coming Under the Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. S.H., Defendant and Appellant.

F087675

California Court of Appeals, Fifth District

August 21, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County. No JD143295-00 Christie Canales Norris, Judge.

Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.

Margo A. Raison, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

INTRODUCTION

S.H (Father) filed a timely notice of appeal following the termination of his parental rights to now four-year-old Se H. under Welfare and Institutions Code section 366.26.^[1] Father's sole claim is that because the Los Angeles County Department of Children and Family Services (Los Angeles County) and the Kern County Department of Human Services (Department) failed to conduct an adequate inquiry into whether Se. H. is or may be an Indian child, in compliance with section 224.2, subdivision (b), the juvenile court erred when it found that the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq. (ICWA))^[2] did not apply, necessitating remand.

In accordance with this court's decisions, the Department concedes errors with respect to the inquiry of family members and follow-up on information that Se. H. may have Indian ancestry, requiring conditional reversal and remand. (In re K.H. (2022) 84 Cal.App.5th 566, 620 (K.H.); accord, In re E.C. (2022) 85 Cal.App.5th 123, 157 (E.C.).)^[3]

We accept the Department's concession and agree with the parties "that the juvenile court erred in finding the agency conducted a proper, adequate, and duly diligent inquiry, and that the error is prejudicial, which necessitates a conditional reversal of the court's finding that ICWA does not apply and a limited remand so that an inquiry that comports with section 224.2, subdivision (b), may be conducted." (In re Jerry R. (2023) 95 Cal.App.5th 388, 405 (Jerry R.), citing K.H., supra, 84 Cal.App.5th at p. 621 and E.C., supra, 85 Cal.App.5th at p. 157.)

PROCEDURAL BACKGROUND^[4]

I. Petition and Detention

In December 2021, Father and Mother were married but in the process of divorcing. After A.H. (Mother) was found asleep in her car with a drug pipe and fentanyl within reach of one-year-old Se. H., who was filthy and in a heavily soiled diaper, Los Angeles County filed a petition under section 300, subdivision (b)(1)(D) (failure to protect due to substance abuse). Father was identified as Se. H.'s alleged father, but was not named in the petition. The petition included Judicial Council form ICWA-010(A) stating that Mother gave no reason to believe that Se. H. is or may be an Indian child.

At the detention hearing held in December 2021, Mother and Father requested transfer of the matter to Kern County, where they both resided. The juvenile court elevated Father's status to presumed father, found a prima facie showing had been made that Se. H. was a person described by section 300, ordered him detained from Mother and placed in the temporary custody of Los Angeles County, and released him to the home of Father. The court found no reason to know Se. H. was an Indian child.

II. Jurisdiction and Disposition Hearing

In March 2022, the petition was amended by interlineation to combine count b-1 and count b-2, and omit reference to Mother's arrest. The court sustained the petition allegations against Mother, and found Se. H. as described by section 300, subdivision (b). The juvenile court found by clear and convincing evidence that there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional wellbeing of Se. H. if returned to Mother's home, and there were no reasonable means by which his physical health could be protected without removing him from Mother's physical custody. Se. H. was released to Father's home with family maintenance services for Father. The court ordered Los Angeles County to provide enhancement services for Mother and to facilitate visitation at least three times a week. The court set a six-month review hearing.

III. Transfer and Review Hearings

In April 2022, the juvenile court ordered the case transferred to Kern County.

In June 2022, after Father allowed Mother to have unauthorized, unsupervised contact with Se. H. and she left with him, the Department filed a supplemental petition seeking removal of Se. H. from Father's physical custody and placement in foster care.^[5](§ 387.) The juvenile court ordered Se. H. detained from Father and Mother.

In August 2022, the Department filed a report, which included documentation that Father was in custody, and both Mother and Father failed to submit to drug testing and failed to maintain regular visitation with Se. H. The court adjudged Se. H. a dependent pursuant to sections 387 and 342, ordered him removed from Father's physical custody, and directed the Department to provide family reunification services for six months. The court also made a finding that ICWA did not apply and set a review hearing.

In January 2023, the juvenile court continued reunification services for six months for Father and terminated services for Mother.

In July 2023, the juvenile court found no progress by Father and terminated family reunification services, ordered the Department to facilitate visitation for Father and Mother, and set a selection and implementation hearing.

IV. Section 366.26 Selection and Implementation Hearing

In February 2024, the juvenile court found Se. H. was adoptable and the parental-benefit exception did not apply; terminated the parental rights of Father and Mother; and ordered Se. H. be placed for adoption. (§ 366.26.)

DISCUSSION

I. ICWA and Duty of Inquiry Under California Law

A. ICWA

"ICWA was enacted in 1978 by Congress 'out of concern that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies." 92 Stat. 3069, 25 U.S.C. §1901(4). Congress found that many of these children were being "placed in non-Indian foster and adoptive homes and institutions," and that the States had contributed to the problem by "fail[ing] to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." §§1901(4), (5). This harmed not only Indian parents and children, but also Indian tribes. As Congress put it, "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." §1901(3).' (Haaland v. Brackeen (2023) 599 U.S. ___ (Haaland); accord, Mississippi Choctaw Indian Band v Holyfield (1989) 490 U.S. 30 32-36 (Holyfield); In re Isaiah W (2016) 1 Cal.5th 1, 7-8 (Isaiah W).)

"'[ICWA] thus aims to keep Indian children connected to Indian families. "Indian child" is defined broadly to include not only a child who is "a member of an Indian tribe," but also one who is "eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." §1903(4). If the Indian child lives on a reservation, ICWA grants the tribal court exclusive jurisdiction over all child custody proceedings, including adoptions and foster care proceedings. §1911(a). For other Indian children, state and tribal courts exercise concurrent jurisdiction, although the state court is sometimes required to transfer the case to tribal court. §1911(b). When a state court adjudicates the proceeding, ICWA governs from start to finish. That is true regardless of whether the proceeding is "involuntary" (one to which the parents do not consent) or "voluntary" (one to which they do).' (Haaland, supra, 599 U.S. at p. ___ [143 S.Ct. at p. 1623]; accord, Holyfield, supra, 490 U.S. at p. 36.)

"'Involuntary proceedings are subject to especially stringent safeguards. See 25 CFR §23.104 (2022); 81 Fed.Reg. 38832-38836 (2016). Any party who initiates an "involuntary proceeding" in state court to place an Indian child in foster care or terminate parental rights must "notify the parent or Indian custodian and the Indian child's tribe." §1912(a). The parent or custodian and tribe have the right to intervene in the proceedings; the right to request extra time to prepare for the proceedings; the right to "examine all reports or other documents filed with the court"; and, for indigent parents or custodians, the right to court-appointed counsel. §§1912(a), (b), (c). The party attempting to terminate parental rights or remove an Indian child from an unsafe environment must first "satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." §1912(d). Even then, the court cannot order a foster care placement unless it finds "by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." §1912(e). To terminate parental rights, the court must make the same finding "beyond a reasonable doubt." §1912(f).' (Haaland, supra, 599 U.S. at p. ___ [143 S.Ct. 1609, 1623-1624].)

"ICWA sets the minimum standards, providing, 'In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court...