California Court of Appeal Nov 14, 2024 No. E084192Unpublished
Filed 11/14/24 In re J.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.C., et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E084192
Plaintiff and Respondent, (Super.Ct.Nos. J294794 & J294795) v. OPINION M.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Conditionally reversed and remanded with directions.
Emily Uhre, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Kristina M. Robb, Deputy County Counsel, for
Plaintiff and Respondent.
1
A mother appeals from orders terminating parental rights over her minor children.
She argues the county welfare department (the department) made an inadequate inquiry
into her children’s possible Indian ancestry under the California Indian Child Welfare Act
(ICWA or Cal-ICWA), as the department only contacted one paternal relative where the
father was deceased.1 We agree and therefore conditionally reverse and remand with
Defendant and appellant M.C. is the mother of three children, two of whom are the
subjects of this dependency: J.C. (born 2015) and A.C. (born 2014).
In October 2022, police went to check on mother and children, and when they did
so mother attempted to flee with the children across a freeway. Police stopped mother
before she entered traffic and evaluated her for possible detention under section 5150,
though they ultimately concluded she did not meet the criteria. Four days later, the
department filed section 300 petitions alleging J.C. and A.C. came under subdivisions (a)
and (b)(1) because they were at risk of serious physical harm and mother had failed to
protect them due to her inability to supervise them and domestic violence concerns. Both
petitions alleged that mother gave the department no reason to believe either child was an
Indian child. Before October 25, 2022, the children were removed from mother via
warrant.
1 Undesignated statutory references are to the Welfare and Institutions Code. “In addition, because 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
Later the same month, mother completed a “Family Find and ICWA Inquiry” form
indicating she did not have any Indian ancestry. She also completed a “Parental
Notification of Indian Status” form indicating that no “Indian Status” applied to her or
her children. Mother told the court she did not have any Indian ancestry when she
appeared for the detention hearing, and that father had died while living in New York.
The court ordered her to provide contact information for her relatives and “any other
people who would have information about yours or the children’s ancestry.” The court
then detained the children.
The department interviewed maternal grandmother and a maternal aunt, both of
whom denied any Indian ancestry. The department also spoke to maternal grandfather
once, who denied any Indian ancestry. The only paternal relative the department
identified, let alone contacted, was paternal grandmother, who denied any Indian
ancestry.2 Maternal grandmother and maternal aunt both reported they had no contact
with any paternal relatives. The record does not establish that the department asked
anybody—including paternal grandmother or mother—for information about additional
paternal relatives.
Reunification efforts were unsuccessful, and the court held a section 366.26
hearing on March 6, 2024. The court concluded the department had fulfilled its duty of
initial inquiry under ICWA, that there were no more relatives it needed to contact, and
2 There is some disagreement over whether the woman the department identified as paternal grandmother was father’s mother. Because we conclude the department’s inquiry was insufficient even if the woman identified as paternal grandmother was father’s mother, we need not resolve this factual dispute.
3
that ICWA did not apply to the children. It then continued the hearing until May 2024,
when it terminated mother’s parental rights.
ANALYSIS
ICWA establishes minimum national standards “for the removal of Indian children
from their families and the placement of such children in foster or adoptive homes which
will reflect the unique values of Indian culture.” (25 U.S.C. § 1902.) Under California
law, the trial court and county welfare department have “an affirmative and continuing
duty to inquire” whether a child subject to a section 300 petition may be an Indian child.
(§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.).) “This
continuing duty can be divided into three phases: the initial duty to inquire, the duty of
further inquiry, and the duty to provide formal ICWA notice.” (D.F., at p. 566.) Only
the initial duty is at issue in this appeal.
The initial duty applies in every dependency. (In re J.S. (2021) 62 Cal.App.5th
678, 686; see § 224.2, subd. (b)(1).) The initial duty expands under subdivision (b)(2) of
section 224.2, when a child is removed from their home. Under that provision, if a child
is taken into custody, the department’s obligation “includes, but is not limited to, asking
the child, parents, legal guardian, Indian custodian, extended family members, others who
have an interest in the child, and the party reporting child abuse or neglect, whether the
child is, or may be, an Indian child and where the child, the parents, or Indian custodian
is domiciled.” (§ 224.2, subd. (b)(2).)
4
Effective September 2024, Assembly Bill No. 81 (2023-2024 Reg. Sess.)
(Stats. 2024, ch.656) amended section 224.2 to clarify that this duty applies whenever “a
child is placed into the temporary custody of a county probation department pursuant to
Section 307, or received and maintained in temporary custody of a county welfare
department pursuant to paragraph (1) of subdivision (a) of Section 306, or taken into or
maintained in the temporary custody of a county welfare department pursuant to
paragraph (2) of subdivision (a) of Section 306, or if they were initially taken into
protective custody pursuant to a warrant described in Section 340.” (§ 224.2,
subd. (b)(2); Assem. Bill No. 81 (2023-2024 Reg. Sess.); see, e.g., Sen. Rules Com., Off.
of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 81 (2023-2024 Reg.
Sess.) as amended Aug. 19, 2024, p. 5 [the bill “[c]larifies the timing, duration, and scope
of a county department’s, and a court’s, duty to inquire whether a child is or may be an
Indian child”].) That clarification applies to ICWA inquiries and findings that predated
the enactment of Assembly Bill No. 81. (See Carter v. California Dept. of Veterans
Affairs (2006) 38 Cal.4th 914, 922 [“A statute that merely clarifies, rather than changes,
existing law is properly applied to transactions predating its enactment.”].)3
“[T]he 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. (2024) 16 Cal.5th 1112, 1141 (Dezi C.).)
Therefore, if “a juvenile court’s findings that an inquiry was adequate and proper and
3 We are not persuaded by the Department’s arguments implicitly treating Assembly Bill No. 81 as a change to existing law, rather than a clarification.
5
ICWA does not apply are found to be supported by sufficient evidence and record
documentation as required by California law [citation], there is no error and conditional
reversal would not be warranted even if the agency did not inquire of everyone who has
an interest in the child.” (Ibid.) This rule only applies, however, when there is a well-
developed record, and “ ‘ “the less developed the record, the more limited that discretion
necessarily becomes.” ’ ” (Ibid.) “If a child welfare agency fails to obtain meaningful
information or pursue meaningful avenues of inquiry—by, for example, failing to
discover that a parent was adopted, or failing to inquire further after a parent identified an
extended family member with more information about the child’s potential Indian
ancestry—those facts would be relevant to whether the initial Cal-ICWA inquiry is
adequate.” (Id. at p. 1151.)
Here, we are not reviewing a fact that comes through a trial court’s resolution of
an evidentiary conflict, but the trial court’s finding that the department’s “inquiry and due
diligence were ‘proper and adequate.’ ” (Dezi C., supra, 16 Cal.5th at p. 1134.) We are
thus “not concerned with the outcome” (id. at p. 1144) as to the likelihood of whether the
child is Indian and do not limit our review to “[e]nforcing the requirement of an adequate
inquiry only in cases in which the record affirmatively demonstrates a reason to believe
the child is an Indian child.” (Id. at p. 1147.) Instead, we are “ensuring that tribal
heritage is acknowledged and inquired about in dependency cases.” (Id. at p. 1148.)
This mission requires that we engage in a searching review to protect compelling and
6
legally protected tribal interests. (See id. at p. 1147.) Yet the deferential standard
requires that we not find error just because the inquiry was not flawless.
Finally, if our review reveals “error resulting in an inadequate initial Cal-ICWA
inquiry,” then we must order “conditional reversal with directions for the child welfare
agency to comply with the inquiry requirement of section 224.2, document its inquiry in
compliance with [California Rules of Court], rule 5.481(a)(5), and when necessary,
comply with the notice provision of section 224.3.” (Dezi C., supra, 16 Cal.5th at
p. 1136.)
We conclude the trial court’s finding, that the department’s ICWA inquiry was
adequate such that ICWA did not apply, is not supported by substantial evidence.
Though the department did speak to extended relatives on both sides—both maternal
grandparents, paternal grandmother, and a maternal aunt—its inquiry into the paternal
side was insufficient. Father was deceased and therefore not available. Although the
department asked paternal grandmother about the child’s ancestry, there is no record of it
asking her for information about any other paternal relatives who might have
information. The department’s duty to inquire does not stop at asking a single relative
about possible Indian ancestry: “a social services agency has the obligation to make a
meaningful effort to locate and interview extended family members to obtain whatever
information they may have as to the child’s possible Indian status.” (In re K.R. (2018) 20
Cal.App.5th 701, 709.) We cannot say the department made a meaningful effort to locate
and interview paternal relatives when it stopped at locating and contacting the paternal
7
grandmother, without making any record of whether it asked her about additional
paternal relatives who might have information. Though “ICWA does not obligate the
court or [the department] ‘to cast about’ for investigative leads,” it also does not allow the
department to escape its duty of inquiry by simply failing to investigate. (In re A.M.
(2020) 47 Cal.App.5th 303, 323, disapproved on other grounds in Dezi C., supra, 16
Cal.5th at p. 1152, fn. 18.)
Accordingly, we conditionally reverse the trial court’s order terminating mother’s
parental rights.
8
DISPOSITION
We conditionally reverse the order terminating mother’s parental rights. We
remand the matter to the juvenile court with directions to comply with the inquiry
provisions of ICWA and of sections 224.2 and 224.3—and, if applicable, the notice
provisions as well—consistent with this opinion. If, after completing the initial inquiry,
neither the department nor the court has reason to know that the children are Indian
children, then the court shall reinstate the order terminating parental rights. If the
department has reason to know the children are Indian children, the court shall proceed
accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J.
We concur:
CODRIGNTON Acting P. J.
FIELDS J.
9
AI Brief
AI-generated · verify before citing
Holding. The court held that the department's initial inquiry into the children's Indian ancestry was inadequate because it failed to make a meaningful effort to identify or contact paternal relatives beyond the paternal grandmother. Consequently, the order terminating parental rights was conditionally reversed and remanded for further inquiry.
Issues
Whether the county welfare department satisfied its initial duty of inquiry under the California Indian Child Welfare Act (ICWA) regarding the children's possible Indian ancestry.
Disposition. Conditionally reversed and remanded
Quotations verified verbatim against the opinion
“We conclude the trial court’s finding, that the department’s ICWA inquiry was adequate such that ICWA did not apply, is not supported by substantial evidence.”
“The department’s duty to inquire does not stop at asking a single relative about possible Indian ancestry”