Filed 10/22/20 In re R.W. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re R.W. et al., Persons B302097
Coming Under the Juvenile
Court Law. (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CCJP04977)
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
B.G,
Defendant and
Appellant.
APPEAL from orders of the Superior Court of Los
Angeles County, Annabelle G. Cortez, Judge. Conditionally
affirmed and remanded.
Tracy M De Soto, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, Stephanie Jo Reagan, Principal
Deputy County Counsel, for Plaintiff and Respondent.
________________________________
B.G. (mother) challenges the juvenile court’s orders
sustaining a petition filed under Welfare and Institutions
Code section 300, subdivisions (a) and (b),1 and removing
mother’s twin children, Ra.W. and Ryan W. (twins) from
parental custody. Mother contends that respondent Los
Angeles County Department of Children and Family
Services (Department) and the juvenile court failed to
adequately investigate the possibility that the twins were
Indian children as required under the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.). We conditionally
affirm and remand the case for the limited purpose of
compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue raised in mother’s appeal is
ICWA compliance, we focus primarily on the facts and
procedural background relevant to that issue. During the
Department’s investigation into domestic violence between
1 All statutory references are to the Welfare and
Institutions Code, unless stated otherwise.
2
mother and R.W. (father),2 a social worker inquired about
possible Indian ancestry for either parent. Mother denied
any Indian ancestry, but father believed his family has
Native American ancestry on paternal grandmother’s side;
he stated, however, that he and paternal grandmother were
not in communication with that side of the family. Other
than an entry in the detention report that the Department
obtained a police call log for paternal grandmother’s address,
there is no indication on the record that anyone at the
Department had any contact with paternal grandmother.
At the detention hearing on August 7, 2019, mother
and father both completed and filed California Judicial
Council Form ICWA-020 (Parental Notification of Indian
Status) stating they did not have any Indian ancestry. The
court noted it had received the ICWA-020 forms and found
there was no reason to know that ICWA applied.
On October 7, 2018, the court sustained the petition
allegations against mother and father. It also ordered that
the children would remain removed from parental custody.
Mother filed a notice of appeal.
DISCUSSION
Mother contends the Department’s and the juvenile
court’s failure to investigate father’s claim of possible Indian
2 Father is not a party to this appeal.
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ancestry is error requiring reversal of the court’s
jurisdictional findings and dispositional orders.
“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement, usually in non-
Indian homes.’ [Citation.]” (In re Isaiah W. (2016) 1 Cal.5th
1, 7–8 (Isaiah W.).) “In California, . . . persistent
noncompliance with ICWA led the Legislature in 2006 to
‘incorporate[ ] ICWA’s requirements into California
statutory law.’ [Citations.]” (In re Abbigail A. (2016) 1
Cal.5th 83, 91; see also In re Breanna S. (2017) 8
Cal.App.5th 636, 650 (Breanna S.) [California law
“incorporates and enhances ICWA’s requirements”].) Both
ICWA and California law define an “Indian child” as a child
who is either a member of an Indian tribe or 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); § 224.1,
subds. (a) & (b); see also In re Elizabeth M. (2018) 19
Cal.App.5th 768, 783.)
We review the trial court’s ICWA findings for
substantial evidence. (In re Hunter W. (2011) 200
Cal.App.4th 1454, 1467.) We must uphold the court’s orders
and findings if any substantial evidence, contradicted or
uncontradicted, supports them, and we resolve all conflicts
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in favor of affirmance. (In re Alexzander C. (2017) 18
Cal.App.5th 438, 446.)
Noncompliance with ICWA inquiry or notice
requirements may be raised by either parent, regardless of
whether the parent pursuing the appeal has claimed possible
Indian ancestry. (In re A.W. (2019) 38 Cal.App.5th 655, 665
[a non-Indian parent has standing to raise an ICWA
violation on appeal].) We apply the federal and state
statutes in effect on the date of the hearing. (In re A.M.
(2020) 47 Cal.App.5th 303, 321.)
The court and the Department have an affirmative and
continuing duty under the ICWA and related California law
to inquire whether a child who is the subject of a dependency
proceeding is or may be an Indian child. (Isaiah W., supra, 1
Cal.5th at pp. 7–8.) The scope of the duty of inquiry is
defined in regulations promulgated under ICWA (see 25
C.F.R. § 23.107 et seq. (2020)) and sections 224.2 and 224.3.
As discussed in two recent cases, In re Austin J. (2020) 47
Cal.App.5th 870, 883 (Austin J.) and In re D.S. (2020) 46
Cal.App.5th 1041, 1048–1049, California law imposes a duty
of initial inquiry in every case, and a duty of further inquiry
when there is reason to believe a minor may be an Indian
child under the ICWA.
The Department’s initial duty of inquiry at the
beginning of a child welfare proceeding includes “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
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child is, or may be, an Indian child.” (§ 224.2, subd. (b).)
The court must inquire at each party’s first appearance,
whether any participant in the proceeding “knows or has
reason to know that the child is an Indian child.” (§ 224.2,
subd. (c).) Part of the initial inquiry also includes requiring
each party to complete the ICWA-020 form. (Cal. Rules of
Court, rule 5.481(a)(2)(C).)
When there is reason to believe that an Indian child is
involved in a proceeding, further inquiry is required. (Austin
J., supra, 47 Cal.App.5th at p. 883; In re D.S., supra, 46
Cal.App.5th at pp. 1048–1049.) As relevant here, further
inquiry includes interviewing parents and extended family
members to obtain information such as the names of the
child’s “biological parents, grandparents, and great-
grandparents, . . . as well as their current and former
addresses, birth dates, places of birth and death, tribal
enrollment information of other direct lineal ancestors of the
child, and any other identifying information, if known.”
(§ 224.2, subd. (e)(1); 224.3, subd. (a)(5)(C).) The agency
engaging in further inquiry is also required to contact the
BIA, the State Department of Social Services and any tribes
the child may be affiliated with, and anyone else, that might
have information regarding the child’s membership or
eligibility in a tribe. (§ 224.2, subds. (e)(2) & (e)(3).)
Mother contends the court and the Department did not
comply with their duties under the ICWA. The Department
disputes that it was under a duty to conduct further inquiry
into father’s generalized claim of Native American ancestry.
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(Austin J., supra, 47 Cal.App.5th at pp. 888–889 [further
inquiry is not required based on a bare suggestion of the
possibility of Indian ancestry].) However, the Department
concedes error based on the lack of any evidence that it
contacted paternal grandmother to ask if she had
information about the twins’ possible Indian ancestry, and
the court’s failure to ask both parents about possible Indian
ancestry at the detention hearing.
We agree with both parties that under section 224.2,
subdivision (c), the dependency court should have inquired
at the August 9, 2019 detention hearing whether anyone
knew or had reason to know that the twins were Indian
children.
Turning to the question of whether the Department
had a duty to reconcile father’s conflicting statements about
possible Indian ancestry, the Department acknowledges the
record does not reflect that it asked, or attempted to ask, the
paternal grandmother whether the children were, or might
be, Indian children. Assuming the Department was in
contact with paternal grandmother, such a question would
be part of its duty of initial inquiry. (§ 224.2 , subd. (b); 25
U.S.C. § 1903(2) [defining “‘extended family member’” to
include “the Indian child’s grandparent, aunt or uncle”].)
Based on the limited nature of mother’s arguments and the
facts of this particular case, we find it unnecessary to opine
on what efforts the Department must make to locate and
interview paternal grandmother if it has not already been in
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contact with her, or whether “further inquiry” under section
224.2, subdivision (e), is warranted.
Because both the Department and the court are under
a continuing duty of inquiry (Isaiah W., supra, 1 Cal.5th at
pp. 7–8), we reject mother’s argument that the juvenile
court’s jurisdictional findings and dispositional orders must
be reversed. Instead, we conditionally affirm the court’s
orders and remand the matter for the juvenile court to carry
out the requirements of section 224.2, subdivision (c), and
direct the Department to make and document its efforts to
identify and contact father’s extended family to seek
additional information about whether the twins are or may
be Indian children.
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DISPOSITION
The October 7, 2019 jurisdictional findings and
dispositional orders are conditionally affirmed. The matter
is remanded to the juvenile court with directions to comply
with ICWA and Welfare and Institutions Code, section
224.2, subdivisions (b) and (c).
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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