Filed 11/18/21 In re A.M. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.M., a Person Coming Under
the Juvenile Court Law.
D079484
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520412)
Plaintiff and Respondent,
v.
E.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Conditionally reversed and remanded with directions.
Nicole Williams, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Lisa M. Maldonado, Deputy County Counsel for
Plaintiff and Respondent.
Appellant E.M. (Mother) appeals an order terminating her parental
rights pursuant to section 366.26 of the Welfare and Institutions Code.1 The
sole issue is whether the San Diego County Health and Human Services
Agency (Agency) and the juvenile court conducted an adequate further
inquiry as required by the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901
et seq.) (ICWA) after both Mother and maternal grandmother advised the
Agency they have Native-American ancestry through the Yaqui Tribe. The
Agency concedes maternal grandmother’s claim of Yaqui ancestry provided
reason to believe minor A.M. was an Indian child and that the Agency failed
to conduct an adequate further inquiry as required by section 224.2,
subdivision (e)(2). The Agency concedes, and we agree, a limited remand is
appropriate to require the juvenile court to order the Agency to fulfill its
duties of further inquiry under section 224.2, subdivision (e)(2)(C) regarding
A.M.’s membership status or eligibility as an Indian child. Therefore, we
conditionally reverse the termination order.
FACTUAL AND PROCEDURAL BACKGROUND2
In June 2020, the Agency sought protective custody for minor A.M. and
initiated dependency proceedings under section 300, subdivision (b) because
Mother and child tested positive for amphetamines and methamphetamines
after the child’s birth. Mother admitted using methamphetamine during
pregnancy.
1 Further undesignated statutory references are to the Welfare and
Institutions Code.
2 We provide an abbreviated summary of the dependency proceedings
and focus on the facts and background relevant to the narrow issue on appeal
of the adequacy of the ICWA inquiry and findings.
2
At the initial detention hearing, Mother’s counsel informed the court
that Mother has Native American heritage through the Yaqui Tribe. The
court deferred the ICWA findings.
At the end of June 2020, the Agency informed the court that Mother
believed she had Native American heritage from the maternal side of her
family. The Agency interviewed maternal grandmother who stated she had
Native American heritage through the Yaqui tribe from both Arizona and
Sonora. The information was provided to an ICWA specialist within the
Agency.
On August 13, 2020, at a pretrial status conference, the court noted
that the ICWA issue was still not resolved and there was no new information
in the Agency’s addendum report. Deputy county counsel reported that the
social worker spoke with the relative, but “did not have a date of birth for the
other relative.”
At the contested adjudication and disposition hearing on August 27,
2020, deputy county counsel reported, “maternal grandmother did not have
some of the birth dates of the relatives. The social worker has called the tribe
on August 13th and left a message, and has not heard back.” The court
initially believed it could continue with the hearing, order the Agency to
continue the inquiry, and come back to disposition if the child turned out to
fall within ICWA.
After further discussion, deputy county counsel argued there may be
“reason to believe” the child was an Indian child based on the family reports
of tribal history, but that there was not a “reason to know.” Counsel urged
the court to find the Agency had made an adequate inquiry and that there
was no “reason to know” ICWA applied because they did not have a definitive
answer. The court commented that the Agency had “definitely made
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adequate inquiry, and it appears that they have just reason to believe.” The
court found the Agency “made reasonable inquiry and there’s no reason to
know that [ICWA] applies.”
The court then conducted the contested adjudication and disposition
hearing and found the allegations true. The court declared the child a
dependent of the court, removed the child from the custody of the parents,
and placed the child with a relative.
At the six-month review hearing in February 2021, a different deputy
county counsel asked the court to find ICWA does not apply. Without further
discussion, the court made the finding that ICWA does not apply to this case.
Thereafter, in April 2021, the court terminated parental reunification
services. On August 31, 2021, the court terminated parental rights and
identified adoption as the preferred permanent plan. Mother appealed.3
DISCUSSION
“ICWA reflects a congressional determination to protect American
Indian children and to promote the stability and security of Indian tribes and
families. (25 U.S.C. § 1902; [In re] Austin J. [(2020)] 47 Cal.App.5th [870,]
881.) To that end, ICWA established unique standards for the removal and
placement of American Indian children. (25 U.S.C. § 1901 et seq.) Central to
the protections of ICWA are procedural rules to determine whether an Indian
child is involved. Federal regulations implementing ICWA require state
courts to ask participants in child custody proceedings whether the
participant knows or has reason to know the child is an Indian child. (25
C.F.R. § 23.107(a).) The court must also tell the parties to inform the court if
the parties receive information giving them reason to know the child is an
3 Father is not a party to this appeal.
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Indian child. (Ibid.)” (In re Josiah T. (Nov. 8, 2021, No. B311213)
___Cal.App.5th___ [2021 WL 5177283, at *7].)
The juvenile court and the Agency have an “affirmative and continuing
duty to inquire” whether a dependent child “is or may be an Indian child” in
all dependency proceedings. (§ 224.2, subd. (a).) California’s statutory
scheme contains “three distinct duties regarding ICWA in dependency
proceedings. First, from the Agency’s initial contact with a minor and his [or
her] family, the statute imposes a duty of inquiry to ask all involved persons
whether the child may be an Indian child. ([Id.], subds. (a), (b).) Second, if
that initial inquiry creates a ‘reason to believe’ the child is an Indian child,
then the Agency ‘shall make further inquiry regarding the possible Indian
status of the child, and shall make that inquiry as soon as practicable.’ (Id.,
subd. (e), italics added.) Third, if that further inquiry results in a reason to
know the child is an Indian child, then the formal notice requirements of
section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the
first appearance whether anyone ‘knows or has reason to know that the child
is an Indian child’]; id., subd. (d) [defining circumstances that establish a
‘reason to know’ a child is an Indian child]; § 224.3 [ICWA notice is required
if there is a ‘reason to know’ a child is an Indian child as defined under
§ 224.2, subd. (d)].).” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.)
After a “reason to believe” that an Indian child is involved has been
established, further inquiry regarding the possible Indian status of the child
is required. (§ 224.2, subd. (e).) The duty of further inquiry includes
(1) interviewing the parents and extended family members; (2) contacting the
Bureau of Indian Affairs (BIA) and State Department of Social Services for
assistance in identifying the names and contact information of the tribes in
which the child may be a member, or eligible for membership; and
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(3) contacting tribes and anyone else that might have information regarding
the child’s membership or eligibility in a tribe. (Id., subd. (e)(2).)
Pursuant to section 224.2, subdivision (e)(2)(C), the Agency must
contact “the tribe or tribes and any other person that may reasonably be
expected to have information regarding the child’s membership, citizenship
status, or eligibility.” The Agency’s contact with the tribe “shall include
sharing information identified by the tribe as necessary for the tribe to make
a membership or eligibility determination, as well as information on the
current status of the child and the case.” (Ibid.)
Here, the Agency agrees that there was a reason to believe the child
was an Indian child based on the statements of Mother and maternal
grandmother regarding the ancestral connection to the Yaqui tribe. The
Agency concedes deputy county counsel’s statements at the jurisdiction and
disposition hearing that “relatives’ dates of birth could not be obtained and
that a call had been made to the tribe were insufficient to establish and
document the Agency’s efforts to interview extended family members and
contact the tribe and provide it with any information deemed necessary.”
Therefore, the juvenile court’s findings that adequate inquiry was completed
and there was no reason to know the child was an Indian child lacks
substantial evidence.
The Agency further concedes the case proceeded to a section 366.26
hearing without documented further inquiry regarding ICWA. Thus, the
court’s finding that ICWA does not apply also lack’s substantial evidence.
We accept the Agency’s concessions and remand the matter for the
limited purpose of allowing the Agency to complete further inquiry under
section 224.2, subdivision (e)(2)(C), and for the court to determine, on the
record, whether ICWA applies.
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DISPOSITION
The findings and orders entered at the section 366.26 hearing are
conditionally reversed. The matter is remanded with instructions for the
juvenile court to order the Agency to comply with the further inquiry
provisions under section 224.2, subdivision (e)(2)(C) regarding A.M.’s
membership status or eligibility as an Indian child. If, after proper further
inquiry, the court finds a reason to know that A.M. is an Indian child, the
court must provide notice in accordance with ICWA. If the court finds that
A.M. is an Indian child, then the court must conduct a new section 366.26
hearing and any further proceedings in compliance with ICWA and California
law. If the court finds that A.M. is not an Indian child, the section 366.26
order terminating parental rights shall be reinstated.
Pursuant to the stipulation of the parties, the remittitur shall issue
immediately.
McCONNELL, P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.
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