California Court of Appeal Aug 27, 2024 No. E083634Unpublished
Filed 8/27/24 In re D.L. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re D.L., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E083634
Plaintiff and Respondent, (Super.Ct.No. J294435)
v. OPINION
D.M.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Conditionally reversed with directions.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel and David Guardado, Deputy County Counsel, for
Plaintiff and Respondent.
1
Danielle M. (Mother) appeals from the juvenile court’s order terminating her
parental rights to her son, Daniel L. She argues that the San Bernardino County
Department of Children and Family Services (CFS) failed to comply with its duty of
further inquiry under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)
(ICWA) and related state law. CFS concedes the error. We agree with the parties and
Daniel came to CFS’s attention in September 2022 when the agency received a
referral alleging that he had been born positive for syphilis and that Mother had tested
positive for methamphetamine twice in the two months before he was born. When CFS
interviewed Mother, she told the social worker that she did not have any Indian ancestry.1
CFS filed a dependency petition concerning Daniel, alleging that Mother failed to protect
Daniel within the meaning of subdivision (b) of Welfare and Institutions Code section
300 because she struggled with substance abuse and untreated mental health issues.
(Unlabeled statutory references are to the Welfare and Institutions Code.)
At the detention hearing later that month, Mother reported that she did not have
any Indian ancestry, and she filed a Judicial Council form ICWA-020 (Parental
Notification of Indian Status) stating the same. The juvenile court detained Daniel from
Mother.
1 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.) 2
In January 2023, the juvenile court took jurisdiction over Daniel pursuant to
subdivision (b) of section 300. The court removed Daniel from Mother’s care and
ordered reunification services for her. The court also found that ICWA did not apply to
Daniel.
During the reunification period, Mother provided the social worker with contact
information for the maternal uncle and the maternal grandfather and said that they might
have Indian ancestry. During an interview on August 16, 2023, the maternal uncle told
the social worker that there may be Blackfoot or Apache “in his bloodline” and that his
father would know more. That same day, the social worker left a voice message for the
maternal grandfather, but the record contains no additional information regarding CFS’s
efforts to interview him.
On August 22, 2023, the court terminated Mother’s reunification services and set
the section 366.26 hearing. CFS recounted its ICWA investigation in a November 2023
status review report prepared for that hearing, but the agency’s description did not
accurately reflect the social worker’s conversation with the maternal uncle. The report
stated that the social worker spoke with the maternal uncle on October 5 and 6 and that
he gave “no response” regarding Indian ancestry. The report did not mention the August
16 conversation in which he reported possible Blackfeet or Apache heritage.
In January 2024, the social worker contacted three additional maternal relatives as
part of its ICWA investigation. Gabrielle B., Daniel’s adult sibling, reported that she was
3
unaware of any Indian ancestry. Both the maternal grandmother and the maternal great
aunt reported that they “may have” Indian ancestry, but neither could identify a tribe.
In a February 2024 status review report, CFS stated that on January 30, 2024, it
sent a certified letter to the Bureau of Indian Affairs (BIA) “regarding possible Native
American Ancestry for the child.” CFS’s letter is not included in the appellate record.
At the section 366.26 hearing in March 2024, CFS reported that it had not received
a response from the BIA, and the court again found that ICWA did not apply to Daniel.
The court also found that Daniel was likely to be adopted, and the court terminated
Mother’s parental rights.
DISCUSSION
Mother argues that CFS failed to conduct an adequate further inquiry in response
to the maternal uncle’s claims of Blackfeet and Apache ancestry. CFS concedes that we
should conditionally reverse and remand for a proper further inquiry. We agree with the
parties.
ICWA requires notice to Indian tribes “in any involuntary proceeding in state
court to place a child in foster care or to terminate parental rights ‘where the court [or
social worker] knows or has reason to know that an Indian child is involved.’” (In re
directions for the child welfare agency to comply with the inquiry requirement of section
224.2,” because “it is impossible to ascertain whether the agency’s error is prejudicial”].)
DISPOSITION
The order terminating parental rights is conditionally reversed. On remand, the
juvenile court shall order CFS to comply with its duty of further inquiry under
subdivision (e) of section 224.2 and, if applicable, the duty to provide notice to the tribes
7
(25 U.S.C. § 1912(a); § 224.3). If the court subsequently determines that CFS has
complied and that ICWA does not apply, then the court shall reinstate the order
terminating parental rights. If the court determines that ICWA applies, then it shall
proceed in conformity with ICWA and related California law. The remittitur shall issue
immediately pursuant to the parties’ stipulation. (Cal. Rules of Court, rule 8.272(c)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
MILLER Acting P. J.
RAPHAEL J.
8
AI Brief
AI-generated · verify before citing
Holding. The court conditionally reversed the termination of parental rights because the child welfare agency failed to satisfy its duty of further inquiry under the Indian Child Welfare Act after receiving information regarding potential tribal ancestry.
Issues
Did the child welfare agency fail to conduct an adequate further inquiry into the child's potential Indian ancestry?
Is conditional reversal required when the record lacks substantial evidence to support the juvenile court's finding that ICWA does not apply?
Disposition. conditionally reversed
Quotations verified verbatim against the opinion
“We agree with the parties that the maternal uncle’s claim of possible Blackfeet or Apache ancestry triggered the duty of further inquiry. We also agree that the record does not reflect that CFS adequately discharged that duty.”