Filed 2/25/21 In re J.B. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re J.B., a Person Coming 2d Juv. No. B306828
Under the Juvenile Court Law. (Super. Ct. No. 19JV00324)
(Santa Barbara County)
SANTA BARBARA COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Respondent,
v.
S.E.,
Defendant and Appellant.
S.E. (mother) appeals the juvenile court’s order terminating
parental rights to her infant son, J.B. (Welf. & Inst. Code,
§ 366.26.)1 She contends Santa Barbara County Department of
Social Services (DSS) and the court failed to conduct a reasonable
inquiry into father’s possible Indian ancestry as required by the
All statutory references are to the Welfare and
1
Institutions Code unless otherwise specified.
Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We
agree. Accordingly, we conditionally reverse the order and
remand the matter to allow DSS and the court to fully comply
with ICWA and related California law.
FACTS AND PROCEDURAL BACKGROUND
Mother gave birth to J.B. in August of 2019. The child’s
father is J.B., Sr. (father).2 DSS petitioned for jurisdiction over
J.B. based on mother’s drug abuse during pregnancy and prior
DSS involvement with her four older children.
Father denied Indian ancestry during his initial contact
with DSS but stated at the detention hearing that his mother
told him “there might be some [ancestry], but we have to do a
search.” He completed a Parental Notification of Indian Status -
Judicial Council Form (ICWA-020) after the hearing in which he
listed possible Chumash ancestry.
A DSS case worker attempted to contact father about his
ancestry by telephone on January 22, 2020. The number father
provided was no longer in service. Father did not respond to an
ICWA questionnaire mailed to him the next day. DSS then
served the Santa Ynez Band of Chumash Indians and the Bureau
of Indian Affairs (BIA) with a Notice of Child Custody
Proceedings (ICWA-030) on February 10, 2020. The Notice did
not include any information about father’s biological parents,
grandparents, or any other relative. The Santa Ynez Band of
Chumash Indians notified DSS by letter that J.B. was not an
enrolled member nor eligible for enrollment.
The court determined at the six-month review that the
ICWA did not apply to J.B. Father’s counsel did not object. The
2 The petition initially identified J.B, Sr. as the alleged
father. The court identified him as J.B.’s biological father
following DNA testing.
2
court terminated mother’s and father’s parental rights on June 4,
2020 and selected adoption as the permanent plan. Mother
appeals.
DISCUSSION
The only issue appealed by mother is whether DSS
complied with ICWA’s inquiry and notice requirements. DSS and
the juvenile court “have an affirmative and continuing duty to
inquire” whether a minor subject to a section 300 petition may be
an Indian child within the meaning of ICWA. (§ 224.2, subd. (a).)
If DSS or the court knows or has reason to know that the minor is
an Indian child, DSS must inquire into “the possible Indian
status of the child, and shall make that inquiry as soon as
practicable”, by “[i]nterviewing the parents, Indian custodian, and
extended family members . . . .” (Id., subd. (e)(2)(A), italics
added.) This includes contacting the BIA, Department of Social
Services, tribes, and “any other person that may reasonably be
expected to have information regarding the child’s membership,
citizenship status or eligibility.” (Id., subd. (e)(2)(C).)
The object of the inquiry is to collect identifying
information regarding the minor’s ancestors. (§ 224.3, subd.
(a)(5)(C).) ICWA-compliant notice of the juvenile dependency
proceedings involving the minor must be sent to various parties,
including any potentially affected Indian tribes. (§§ 224.3, subd.
(a)(3).) This notice must include the identifying information
described above. (§ 224.3, subd. (a)(5).) Federal law requires the
notice to include “[a]ll names known (including maiden, married,
and former names or aliases) of the parents, the parents’
birthdates and birthplaces, and Tribal enrollment numbers if
known” as well as “the names, birthdates, birthplaces, and Tribal
enrollment information of other direct lineal ancestors of the
child, such as grandparents,” if known. (25 C.F.R. § 23.111, subd.
(d)(2)-(3); see id., subd. (a).)
3
The parties appear to agree father provided sufficient
information for DSS to have reason to know J.B. may be an
Indian child, thereby triggering the heightened inquiry and
notice requirements. (In re Gabriel G. (2012) 206 Cal.App.4th
1160, 1165; see In re Andrew S. (2016) 2 Cal.App.5th 536, 545,
547-548 (Andrew S.) [father’s initial statement he might “have
Indian ancestry on his father’s side” was sufficient to trigger
further inquiry].) The parties also agree DSS made some effort to
comply with these requirements, including sending notices to the
identified Indian tribes and telephoning father to obtain Indian
ancestry information. The issue here is whether DSS’s efforts
were adequate. We review the juvenile court’s finding regarding
the adequacy of the ICWA inquiry and notice for substantial
evidence.3 (See In re J.T. (2007) 154 Cal.App.4th 986, 991.)
We conclude substantial evidence does not support a
finding that DSS’s inquiry was adequate. (See In re Breanna S.
(2017) 8 Cal.App.5th 636, 652; In re Michael V. (2016)
3 Cal.App.5th 225, 235-236.) The record shows the only efforts to
gather father’s ancestry information are a case worker’s attempt
to call father on January 22, 2020 and the mailing of an ICWA-
030 form the same day. This did not constitute a “meaningful
investigation,” a task especially crucial because of father’s lack of
response, likely due to his documented homelessness and drug
abuse. (See In re Andrew S. (2016) 2 Cal.App.5th 536, 548 [child
3 Father’s failure to object in the juvenile court to the
deficiencies in the ICWA investigation and noticing does not
preclude review of the issue on appeal. (See In re Marinna J.
(2001) 90 Cal.App.4th 731, 739 [“[W]here the notice requirements
of [ICWA] were violated and the parents did not raise that claim
in a timely fashion, the waiver doctrine cannot be invoked to bar
consideration of the notice error on appeal”]; accord, In re Samuel
P. (2002) 99 Cal.App.4th 1259, 1267-1268.)
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protection agency failed to satisfy the duty of inquiry by failing to
make any effort to contact siblings or other extended family
members to substantiate the father’s belief he may have Indian
ancestry].)
DSS responds that any error was harmless because the
Santa Ynez Band of Chumash Indians received notice and
determined J.B. was not an enrolled member or eligible for
enrollment. However, the notice does not appear complete. It
includes basic identifying information for father but nothing
regarding paternal grandparents or “their current and former
addresses, birthdates, places of birth and death, tribal enrollment
information of other direct lineal ancestors of the child, and any
other identifying information, if known.” (§ 224.3, subd.
(a)(5)(C).) DSS may have discovered this information had it
conducted a reasonable inquiry.
DISPOSITION
The order terminating parental rights is conditionally
reversed. The matter is remanded to the juvenile court for full
compliance with the inquiry and notice provisions of ICWA and
related California law. If, after proper inquiry, no additional
information is uncovered, or if, after any necessary additional
notice, no tribe intervenes, the order terminating parental rights
shall be reinstated.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J. TANGEMAN, J.
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Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Jacob I. Olson, under appointment by the Court of Appeal,
for Defendant and Appellant S.E.
Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein,
Senior Deputy County Counsel, for Plaintiff and Respondent
Santa Barbara County Department of Social Services
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