California Court of Appeal Sep 13, 2024 No. E083462Unpublished
Filed 9/13/24 In re P.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 P. S., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E083462
Plaintiff and Respondent, (Super.Ct.No. J293658)
v. OPINION
J.H. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Affirmed.
Jill S. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant, J.H.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant
and Appellant, S.S.
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Tom Bunton, County Counsel, and Landon Villavaso, Deputy County Counsel, for
Plaintiff and Respondent.
INTRODUCTION
S.S. (mother) appeals from the juvenile court’s order terminating parental rights
(Welf. & Inst. Code,1 § 366.26) as to her child, P.S. (the child). Mother contends the
matter must be conditionally reversed and remanded because the San Bernardino County
finding that ICWA does not apply implies ‘that social workers had fulfilled their duty of
inquiry.’ ” (In re Dominick D. (2022) 82 Cal.App.5th 560, 567.) “[W]e review the
juvenile court’s ICWA findings under the substantial evidence test, which requires us to
determine if reasonable, credible evidence of solid value supports the court’s order.” (In
re A.M. (2020) 47 Cal.App.5th 303, 314, overruled on other grounds by Dezi C.,
supra,___Cal.5th___[2024 Cal.Lexis 4634 at [54]].) However, “the juvenile court’s fact-
specific determination that an inquiry is adequate, proper, and duly diligent is ‘a
quintessentially discretionary function’ [citation] subject to a deferential standard of
review.” (In re Dezi C., supra,___Cal.5th___[2024 Cal.Lexis 4634 at [32]]; see In re
K.H. (2022) 84 Cal.App.5th 566, 589 [“[T]he court has relatively broad discretion to
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determine whether the agency’s inquiry was proper, adequate, and duly diligent on the
specific facts of the case.”].)
B. The Court’s ICWA Finding Is Supported by Substantial Evidence Since CFS
Complied With Its Duty of Initial Inquiry
It is undisputed that CFS did not ask the MGM about the child’s potential Indian
ancestry. CFS contends it did not have a statutory duty to “conduct a further ICWA
inquiry that would include questioning the child’s extended family members” since the
parents informed the court they did not have Indian ancestry. CFS asserts that “[b]ased
on the parent’s [sic] response, there was no reason to know [or believe] the child was an
Indian child.” Thus, it was not obligated to conduct a further inquiry, and it satisfied its
statutory duty of inquiry.
As a preliminary matter, we recognize that several courts have recently found that
the section 224.2, subdivision (b) duty to include extended family members in the initial
ICWA inquiry applies only when there is a warrantless removal under section 306 but not
when the welfare department obtains a protective custody warrant pursuant to section 340
prior to removal. (See In re Robert F. (2023) 90 Cal.App.5th 492 (Robert F.), review
granted July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672, review granted
July 26, 2023, S280572; In re Adrian L. (2022) 86 Cal.App.5th 342, 353-374 (conc. opn.
of Kelley, J.), overruled on other grounds by In re Dezi C., supra,___Cal.5th___[2024
Cal.Lexis 4634 at [54]].) There is currently a split of authority among the Courts of
Appeal on this issue, and the question is pending before the California Supreme Court.
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(See In re Delila D. (2023) 93 Cal.App.5th 953, review granted Sept. 27, 2023,
S281447.) However, in the instant case, the child was not taken into protective custody
under either section 306 or section 340. Rather, she was taken into protective custody
under Arizona law. CFS subsequently received custody of the child pursuant to a transfer
via UCCJEA regulations. We further note that, in this case, CFS does not contest that the
expanded duty of initial inquiry under section 224.2, subdivision (b), applies. Therefore,
under these case-specific circumstances, we will not address the split of authority and
will assume the expanded duty under section 224.2, subdivision (b) applies.
As noted ante, section 224.2 imposes on CFS three distinct duties, starting with
a duty of initial inquiry, which includes asking “extended family members” whether the
child may be an Indian child. (§ 224.2, subds. (a), (b).) “Extended family members”
include the child’s grandparents. (See 25 U.S.C. § 1903(2); see also § 224.1, subd. (c).)
Then, “[w]hen the Agency has ‘reason to believe’ that an Indian child is involved, further
inquiry regarding the possible Indian status of the child is required.” (D.S., supra,
46 Cal.App.5th at p. 1049, italics added; § 224.2, subd. (e).) “[I]f 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.” (D.S., at p. 1052.) Here, CFS had a duty of initial
inquiry to ask the MGM about the child’s potential Indian ancestry. (§ 224.2, subd. (b).)
CFS’s claim that no further inquiry was required because there was no reason to believe
or know the child was an Indian child is therefore misplaced. (See D.S., at pp. 1049-
1050.)
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Moreover, “section 224.2, subdivision (b), imposes [an express obligation] on the
Department to inquire of a child’s extended family members—regardless of whether the
parents deny Indian ancestry.” (Antonio R., supra, 76 Cal.App.5th at p. 431.) Thus,
CFS’s claim that it had no duty to inquire further simply because the parents informed the
court they did not have any Indian ancestry has no merit. “[T]he point of the statutory
requirement that the social worker ask all relevant individuals whether a child is or may
be an Indian child [is] to obtain information the parent may not have.” (In re Y.W. (2021)
70 Cal.App.5th 542, 556; see id. at p. 554 [“[P]arents may not know their possible
relationship with or connection to an Indian tribe.”].)
In any event, CFS satisfied its duty to inquire. At the June 30, 2022 detention
hearing, both mother and father denied having Native American heritage in court, and
they each filed a CFS inquiry form, confirming he/she had no Indian ancestry. Even so,
on July 8, 2022, the social worker asked mother and father if they had Native American
ancestry, and they again denied it. Mother then provided the maternal grandfather’s
name and contact information, and provided the MGM’s name but did not have contact
information for her. Father provided the social worker with the paternal grandmother’s
name and contact information.2 The social worker called the maternal grandfather on
July 13, 2022 and left a message. She followed up and called again on July 18, 2022, and
he denied Native American ancestry and stated his family was Norwegian. The social
worker called the paternal grandmother, and she denied Native American ancestry. The
2 The paternal grandfather was deceased.
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social worker also inquired of a paternal cousin regarding Native American ancestry, and
she denied having any.
In addition, the social worker talked to the maternal grandfather again on
January 23, 2023, and he reiterated that he had no Native American ancestry and he was
of Norwegian descent. He reported that he did not have contact information for the
MGM, but to his knowledge, she was of German descent. He also referred the social
worker to mother. Thus, the social worker contacted mother again and asked if there
were any relatives she could interview about potential Native American ancestry, and
mother had no additional information to provide. The social worker asked mother about
the MGM, and mother said she would contact the MGM to ask about Indian heritage and
either have the MGM contact the social worker, or she would provide the MGM’s contact
number. However, two days later, mother texted the social worker to say the MGM did
not have a contact number. In view of these efforts, the court had a sufficient basis to
determine that CFS’s inquiry was adequate, and we discern no abuse of discretion in the
court’s determination that the ICWA inquiry was proper and adequate.
As to mother’s claim that CFS failed its duty simply because it did not inquire of
the MGM regarding the child’s Indian ancestry, we observe that “[d]espite its broad
terms, section 224.2, subdivision (b) does not require inquiry with every adult living
extended family member.” (In re H.B. (2023) 92 Cal.App.5th 711, 720.) “ ‘The
operative concept is those people who are reasonably available to help the agency with its
investigation into whether the child has any potential Indian ancestry should be asked.’ ”
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(Dezi C., supra,___Cal.5th___[2024 Cal.Lexis 4634 at [32]].) The MGM was apparently
not reasonably available, especially since mother herself had no contact information for
her. We further note the maternal grandfather had informed the social worker that the
MGM was of German descent.
We conclude the juvenile court did not abuse its discretion in finding that CFS
satisfied its initial duty of inquiry under section 224.2, subdivision (b). Moreover, the
parents’ repeated representations and ICWA form declarations, and the interviews of
extended family members on both sides of the family, “ ‘reliably answered’ ” the
question of whether the child was a Native American child. (In re E.W. (2023)
91 Cal.App.5th 314, 323.) The court’s finding that ICWA did not apply in this case was
supported by substantial evidence.
DISPOSITION
The court’s order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL RECORDS FIELDS J. We concur:
CODRINGTON Acting P.J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the agency satisfied its duty of initial inquiry under the Indian Child Welfare Act (ICWA) and that the juvenile court's finding that ICWA did not apply was supported by substantial evidence. The agency's efforts to interview available extended family members and the parents' repeated denials of Indian ancestry were sufficient to fulfill the statutory requirements.
Issues
Did the agency fail to comply with its duty of initial inquiry under Welfare and Institutions Code section 224.2 by not interviewing the maternal grandmother?
Was the juvenile court's finding that ICWA does not apply supported by substantial evidence?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The operative concept is those people who are reasonably available to help the agency with its investigation into whether the child has any potential Indian ancestry should be asked.”