California Court of Appeal Nov 22, 2023 No. E081896Unpublished
Filed 11/22/23 In re X.E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 X.E., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E081896
Plaintiff and Respondent, (Super.Ct.No. J291427)
v. OPINION
A.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Conditionally reversed and remanded with directions.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for
Plaintiff and Respondent.
1
Defendant and appellant A.C. (mother) appeals the termination of parental rights
to her daughter X.E. (the child) and argues respondent San Bernardino County Children
and Family Services (the agency) failed to comply with California law implementing the
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) by not asking
available extended family members about the child’s possible Indian ancestry.1 The
agency argues it satisfied its duty of inquiry, and that any error was harmless. We
conditionally reverse and remand with directions.
II. PROCEDURAL BACKGROUND AND FACTS2
In November 2021, the day after mother gave birth to the child and both tested
positive for amphetamines, a social worker spoke with mother and the maternal
grandmother, both of whom denied knowledge of any known Indian ancestry.
Subsequently, the agency obtained a juvenile detention warrant for the child and initiated
this dependency pursuant to Welfare and Institutions Code3 section 300, subdivisions
(b)(1) and (g). Among other allegations, the petition included that mother has substance
abuse issues that negatively impact her ability to adequately parent the child. On
December 1, mother completed and filed a Judicial Council Forms, form ICWA-020,
1 Because ICWA uses the term “Indian,” we will 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 (Benjamin M.).)
2 We focus on those facts relevant to the ICWA issue raised on appeal.
3 All further statutory citations are to the Welfare and Institutions Code.
2
parental notification of Indian status, indicating she has no Indian ancestry as far as she
knows. She provided only the maternal grandmother’s contact information on the family
find and ICWA inquiry form.
At the detention hearing, mother identified D.E. (who was incarcerated) as the
biological father and again denied having any Indian ancestry. The maternal
grandmother was also present and she denied having any Indian ancestry. The juvenile
court ordered D.E. to fill out an ICWA-020 form. The child was detained and
reunification services were ordered for mother.
According to the jurisdiction/disposition report, the social worker again asked
about, and mother again denied, any Indian ancestry. Mother stated the maternal
grandparents are divorced but live in Yucaipa. The social worker was unable to
interview D.E., and the child remained hospitalized. In February 2022, the agency
informed the court that the child was placed in a confidential foster home while mother
continued to receive inpatient services to address her substance abuse issues. In a phone
interview with D.E., he acknowledged paternity and “denied ICWA.” On May 4, 2022,
the maternal grandmother once more denied Indian ancestry. By August 23, mother had
not visited the child for months, had not contacted the agency, and was not drug testing.
The social worker described mother’s prognosis as “poor given the lack of
communication and visitation.”
At the contested jurisdiction/disposition hearing (which had been continued
several times), the juvenile court declared the child a dependent of the court, removed her
from mother’s physical custody, found D.E. to be an alleged father, and ordered
3
reunification services and supervised visitation for mother. The court found ICWA was
inapplicable and authorized DNA testing with a paternal relative. On October 19, 2022,
the agency informed the court that D.E. is the biological father of the child.
On March 2, 2023, the juvenile court terminated mother’s reunification services
and set a section 366.26 hearing. In the section 366.26 report, the agency provided a list
of its ICWA inquiries, and noted that mother, father, maternal grandmother, and paternal
grandfather denied any Indian ancestry. On August 3, 2023, the agency again made an
ICWA inquiry of the maternal grandmother and obtained the name of a maternal uncle,
J.C.
On August 9, 2023, the agency called the social worker to testify as to “her efforts
to reach a couple relatives regarding ICWA.” The maternal grandmother testified that
she was not aware of the maternal grandfather having any Indian ancestry, and she did
not have any such ancestry. She stated that she has five brothers and none have
American Indian heritage; however, mother’s younger brother (a half sibling) is from the
Pima Maricopa tribe. The maternal grandmother did not inform the agency about the
maternal uncle’s ancestry because he and mother have different fathers. After finding
ICWA does not apply, the juvenile court terminated parental rights.
II. DISCUSSION
Mother faults the agency for failing to make an ICWA inquiry of—let alone
identify and locate—the family members mentioned by the maternal grandmother at the
section 366.26 hearing. She asserts that if the agency “did in fact conduct appropriate
inquiries pursuant to the ICWA, [it] failed to report those efforts.” The agency argues it
4
satisfied its duty of inquiry and, regardless, any alleged failure to inquire of these
relatives should be considered harmless error. We are not persuaded by the agency’s
argument.
“ICWA establishes minimum federal standards that a state court must follow
before removing Indian children from their families. [Citation.] California law
implementing ICWA also imposes requirements to protect the rights of Indian children,
their families, and their tribes. (See §§ 224-224.6; [citation].) An Indian child is any
unmarried person under 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); see § 224.1, subd. (b).)
“‘Because it typically is not self-evident whether a child is an Indian child, both
federal and state law mandate certain inquiries to be made in each case.’ [Citation.] [The
agency] and the juvenile court have an ‘affirmative and continuing duty to inquire’
whether a child in a dependency proceeding ‘is or may be an Indian child.’ (§ 224.2,
subd. (a).) The duty to inquire consists of two phases—the duty of initial inquiry and the
duty of further inquiry. [Citation.] ICWA also imposes a duty to provide notice of the
proceedings to the pertinent Indian tribes. (25 U.S.C. § 1912(a); § 224.3, subd. (a).)
Notice enables the tribes ‘to determine whether the child involved in a dependency
proceeding is an Indian child and, if so, whether to intervene in, or exercise jurisdiction
over, the matter.’ [Citation.]
“The duty of initial inquiry applies in every dependency proceeding. [Citation.]
Federal regulations require state courts to ask each participant ‘at the commencement’ of
5
a child custody proceeding ‘whether the participant knows or has reason to know that the
child is an Indian child.’ (25 C.F.R. § 23.107(a) (2022).) State law requires the court to
pursue an inquiry ‘[a]t the first appearance in court of each party’ by asking ‘each
participant present in the hearing whether the participant knows or has reason to know
that the child is an Indian child.’ (§ 224.2, subd. (c).) In addition, when [the agency]
takes a child into temporary custody, the agency must ask ‘the child, parents, legal
guardian, Indian custodian, extended family members, others who have an interest in the
child,’ and the reporting party whether the child is or may be an Indian child. (§ 224.2,
subd. (b).) Extended family members include adults who are the child’s stepparents,
grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and
first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)” (In re Ricky R. (2022)