Kern Cnty. Dep't of Human Servs. v. H.J. (In re Autumn C.)

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In re AUTUMN C., a Person Coming Under the Juvenile Court Law.

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

F085961

California Court of Appeals, Fifth District

September 1, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Kern County No JD142011-00 Mark Tomlinson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant.

Margo A. Raison, County Counsel, and Alexandria M. Ottoman, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

Appellant H.J. (mother) is the mother of the two-year-old child, Autumn C. (the child), who is the subject of this dependency case. Mother challenges the juvenile court's order terminating her parental rights at a Welfare and Institutions Code^[1] section 366.26 hearing. Mother's sole claim is that the juvenile court and Kern County Department of Human Services (department) failed to comply with the duty of further inquiry under the Indian Child Welfare Act (ICWA). The department concedes that a conditional reversal is required to ensure that proper inquiry is conducted pursuant to ICWA's requirements. We agree with the parties and conditionally reverse the juvenile court's order terminating parental rights and remand for proceedings to ensure ICWA compliance.

FACTUAL AND PROCEDURAL BACKGROUND ^[2]

In April 2021, the child was taken into protective custody as a result of mother's substance abuse and mental health problems. The department filed a petition alleging the child was described by section 300, subdivision (b)(1). During the department's initial inquiry, mother reported having "Blackfoot" ancestry. The social worker documented this inquiry on the Indian Child Inquiry Attachment (ICWA-010(A)) form, which was attached to the petition.

At the initial detention hearing held on May 4, 2021, mother was present and appointed counsel. The juvenile court directly inquired of mother regarding possible Indian ancestry in her family, and mother believed she had "Blackfoot" ancestry through her father's family. The maternal grandfather was identified as the person with the most information regarding this ancestry, and mother was unsure if other family members had additional information. She believed there were family members enrolled in an Indian tribe in the past, but the maternal grandfather had that type of information.

The juvenile court reserved making an ICWA finding as to mother and directed the department to follow up with the maternal grandfather to see if he had any additional information regarding the claim of "Blackfoot" ancestry. At a continued detention hearing on May 6, 2021, the child's father, Daniel F. (father), appeared and denied having knowledge of Indian ancestry in his family. The court ordered the child detained from the physical custody of the mother and set a combined jurisdiction and disposition hearing for May 20, 2021.

The department's jurisdiction report, dated May 17, 2021 recommended that the juvenile court find the allegations in the petition true. The ICWA status section of the report detailed mother's initial reporting of Indian ancestry with the Blackfeet tribe. A request was submitted for a paralegal to send notice for mother's claim of Indian ancestry, and the department was in the process of providing notice to the Blackfeet tribe. The report prepared for the disposition hearing, dated May 19, 2021, recommended the child remain in out-of-home placement with family reunification services provided to mother. The child was placed in a resource family home and there were no pending relative applications for placement.

The ICWA status section of the disposition report indicated that a department paralegal contacted mother and the maternal grandfather to discuss the claim of Blackfeet ancestry. There were no family members enrolled with a tribe, and the mother and maternal grandfather were unsure about having any Indian ancestry. Mother stated the possible ancestry was passed down from her grandfather, and the maternal grandfather described the possible ancestry as" 'family folklore.'" Mother intended to do an "[a]ncestry test" to see if she had any Indian ancestry. Based upon these statements, the department concluded that the family had no Indian ancestry and further inquiry was not necessary.

On May 4, 2021, the paternal grandmother informed the social worker that she was interested in placement of the child over a phone conversation. Father also participated in the phone call, and there was no indication that the social worker asked the paternal grandmother about Indian ancestry. A family finding social worker was assigned to locate family members of the child, and the social worker was able to identify 21 of the child's maternal relatives. Fifteen of the relatives were sent notification letters on May 7, 2021. Mother provided the names of her four siblings, and three of the siblings lived in California.

The maternal grandfather informed the family finding social worker that he would not be able to apply for placement of the child because mother lived with him. A voice message was left for the maternal grandmother by the family finding social worker. The child's maternal aunt, M.F., provided her information to be considered for placement of the child but mother did not want family members to apply for placement of the child. The documentation in the report did not include a discussion of Indian ancestry with M.F.

At the jurisdiction hearing held on June 4, 2021, the juvenile court found the allegations in the petition true, determined ICWA was not applicable, and set a contested disposition hearing. On September 2, 2021, the court held a contested disposition hearing and considered evidence presented by mother. The court ordered the child removed from mother's physical custody, and mother and father were to be provided family reunification services. A six-month review hearing was set for March 2, 2022. Mother appealed the disposition order, and we affirmed the order on July 19, 2022, in case No. F083281. (In re A.C. (July 19, 2022, F083281 [nonpub. opn.].)

The six-month status review report, dated March 1, 2022, recommended that mother's family reunification services be continued and father's family reunification services be terminated. The ICWA status section of the report indicated the juvenile court's previous findings that ICWA was not applicable to the mother and father without additional information. The child's maternal cousin was approved for placement in September 2021, but the decision was made for the child to remain in her current placement. At the six-month review hearing, the court continued family reunification services for mother, and it set a 12-month review hearing for June 3, 2022.

The department's report for the 12-month review hearing recommended that mother's family reunification services be continued. The ICWA status section of the report made note of previous ICWA findings without additional information. A supplemental report, dated June 21, 2022, included information from the department's meeting with paternal relatives that recently cleared for placement of the child. The child's paternal great-aunt, paternal uncle, and paternal aunt were present for the meeting, and the decision was made to maintain the child in her current placement. In July 2022, the social worker communicated with M.F. and mother's brother-in-law about mother's prescription drug abuse. There is no documentation that Indian ancestry was discussed with these paternal or maternal family members during their conversations with the department. The juvenile court continued mother's family reunification services and set an 18-month review hearing for October 28, 2022.

The department recommended that mother's family reunification services be terminated in its 18-month review report. The social worker reiterated previous statements about the juvenile court's prior ICWA findings in the report. M.F. spoke with the social worker and provided information about mother's recent arrest. At the 18-month review hearing, the court terminated mother's family reunification services and set a section 366.26 hearing for February 27, 2023.

The report for the section 366.26 hearing recommended that parental rights of mother and father be terminated and a plan of adoption be selected. The child remained in the same resource family home since her removal in April 2021. The report stated the previous findings that ICWA was not applicable, and a department paralegal was assigned to complete an ICWA inquiry on December 1, 2022.

The department submitted a declaration of its paralegal regarding the ICWA inquiry on February 24, 2023. The paralegal obtained family and ancestry information from "Family Findings." Mother and the maternal grandmother both reported possible Indian ancestry with the Cherokee and Blackfeet tribes. Father reported possible Indian ancestry with the Cherokee Nation, and the paternal grandmother, paternal great-aunt, and three paternal aunts reported "tribal affiliation" with the Cherokee Nation. The paralegal was provided enrollment numbers for the paternal great-great-grandfather, paternal great-grandfather, and a paternal aunt.

The department sent formal notice pursuant to ICWA to three Cherokee tribes and the Blackfeet Tribe of Montana. The Cherokee Nation informed the department by letter that the child's paternal great-grandfather was located in their tribal records, but it would not intervene unless the child or eligible parent received citizenship in the tribe. The United Keetoowah Band of Cherokee Indians and Eastern Band of Cherokee...