California Court of Appeal Sep 22, 2022 No. E078674Unpublished
Filed 9/22/22 In re K.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 K.T. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E078674
Plaintiff and Respondent, (Super.Ct.No. SWJ1900585)
v. OPINION
L.T.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.
Reversed with directions.
Emily Uhre, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh Tran, County Counsel and Prabhath D. Shettigar, Deputy County Counsel,
for Plaintiff and Respondent.
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L.T., Sr. (father) appeals the orders of the Riverside County juvenile court
appointing a paternal aunt as guardian of his three minor children pursuant to section
366.26 of the Welfare and Institutions Code and terminating their dependency
proceedings.1 He argues conditional reversal of the orders is called for because
respondent Riverside County Department of Public Social Services (Department) failed
In its responsive letter brief, the Department acknowledges there were inadvertent
omissions in conducting an initial inquiry into the children’s possible Indian ancestry,
and does not oppose a conditional reversal and remand.
We conclude the juvenile court’s finding that the Department made sufficient
ICWA inquiries is not supported by the record and, therefore, conditionally reverse for
compliance with the inquiry and reporting provisions set forth in section 224.2 and rule
5.481.
BACKGROUND
In September 2019, the Department filed a section 300 petition alleging father’s
three children came within the juvenile court’s jurisdiction because of domestic violence
in the home of their mother and her boyfriend, and because their father was unable to
provide a suitable and stable home environment because of his health issues and living
1 All further statutory references are to the Welfare and Institutions Code unless otherwise noted, and references to rules are to California Rules of Court. 2
conditions. The children were left in the care of their parents pending further
investigation.
At the out-of-custody hearing, both parents completed a Parental Notification of
Indian Status ICWA-020 form as required by rule 5.481(a)(2)(C), stating they did not
have Indian ancestry as far as they knew. The court made a follow-up inquiry in
accordance with subdivision (c) of section 224.2 and both parents confirmed they did not
have Native American background, but it failed to advise the parents to inform the court
if they subsequently received information that provides reason to know if the children are
Indian children. The court found the Department had conducted sufficient inquiry with
respect to Indian ancestry and ICWA did not apply, noting the children were not being
detained from their parents.
Shortly after the hearing, the mother absconded with the children after telling
father she was leaving with them because she was afraid the Department would take them
away. The Department filed an amended petition and protective custody warrants were
issued as to the children.
When the children were located, they were taken into protective custody and left
with a foster care provider. The Department filed a second amended petition and, in its
report on jurisdiction and disposition, stated mother again denied Indian ancestry but
father thought he may have Indian heritage. The Department sent notices of the
proceedings for each child to the Secretary of the Interior and the Bureau of Indian
Affairs representative in Sacramento. The court ordered the father to provide names and
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contact information for relatives, and ordered the Department get in touch with them to
obtain whatever information they had about their Indian ancestry.
By the time the March 2020 contested combined hearing on jurisdiction and
disposition took place, a third amended petition had been filed. Father had provided the
name of a tribe he might be related to but it was not federally recognized and did not,
therefore, come within ICWA. (25 U.S.C. § 1903(8).) His counsel believed that another
tribe that was federally recognized claimed descendants of the tribe father identified. The
Department included the Tunica-Biloxi Indian Tribe of Louisiana (presumably the tribe
counsel had referred to) when it sent ICWA notices of the hearing. That tribe responded
the children were not enrolled and were not eligible for membership because they did not
meet either of the two conditions for enrollment, that is, the biological parents were not
enrolled and the children were not enrolled by the end of their first birthdays.
At the hearing, the court sustained the petition, removed the children from both
parents, continued them in foster care, and ordered family reunification services. It found
the Department had conducted sufficient inquiry with respect to Indian ancestry but held
off making an ICWA determination because the most recent set of notices had been sent
shortly before the hearing.
The day after the hearing, the children were placed with their paternal aunt, S.G.
At the September 2020 six-month review, the court placed the children with father
on the condition they live together live in the home of the paternal aunt and that father
complete his service plan. It found ICWA did not apply.
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The Department detained the children from father’s care three months later (which
was accomplished by requiring him to leave the paternal aunt’s home) and filed a
supplemental petition pursuant to section 387.
A contested hearing on the section 387 petition, the review of father’s family
maintenance services, and the combined 12 and 18-month reviews as to mother’s services
went forward in June 2021. The court found the Department’s ICWA inquiries were
sufficient and that the children are not Indian children. It sustained the section 387
petition as to father and removed the children from his custody, terminated reunification
efforts as to mother, and set a section 366.26 hearing to select a permanent plan in March
2022.
At the 366.26 hearing, the court found the children were living with a relative who
was unable or unwilling to adopt but was willing and capable of providing them with a
stable and permanent home through legal guardianship. It issued letters of guardianship
appointing parental aunt S.G. as their guardian, and terminated the dependency
proceedings. Father appealed.
DISCUSSION
Father’s sole claim on appeal is the juvenile court erred when it found ICWA does
not apply to his children because the Department had not conducted an adequate initial
inquiry into investigation into the children’s possible Native American ancestry and, in
the case of father, it also failed to conduct a further inquiry. The Department
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acknowledges there were inadvertent omissions in conducting the initial inquiry that it
intends to remedy, but does not specify what they are.
Section 224.2 imposes an affirmative and continuing duty on the Department and
juvenile court to inquire whether a child for whom a section 300 petition may or has been
filed, is or may be an Indian child. (§ 224.2, subd. (a).) An Indian child is defined as an
unmarried person under the age of 18 who is either (a) a member of an Indian tribe or (b)
is eligible for membership in an Indian tribe and is the biological child of a member of an
Indian tribe. (25 U.S.C. § 1903(4).) An Indian tribe is defined as any Indian tribe, band,
nation, or other organized group or community of Indians recognized as eligible for the
services provided to Indians by the Secretary of the Interior because of their status as
Indians, including any Alaska Native village. (25 U.S.C. § 1903(8).)
As relevant here, the Department’s duty to inquire about a child’s Indian status
under the Act begins with its first contact with a family if a section 300 petition may be
or has been filed. (§ 224.2, subd. (a).) If the Department takes the child into temporary
custody, its duty to inquire whether the child is or may be an Indian child includes asking
extended family members. (§ 224.2, subd. (b).) If initial inquiries give rise to a reason to
believe that an Indian child is involved in the proceeding but there is not enough
information to determine there is reason to know the child is an Indian child, then the
court or the Department is required to make further inquiry, including interviewing
extended family members to gather detailed information about the child’s biological