In re Gilbert S. CA4/2

Filed 5/11/22 In re Gilbert S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 GILBERT S. et al., Persons
Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY E077538
SERVICES,
(Super.Ct.Nos. J284540 &
Plaintiff and Respondent, J284541)

v. OPINION

KENDRA V.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,

Judge. Affirmed with instructions.

Richard L. Knight, under appointment by the Court of Appeal, for Defendant

and Appellant.

Steven O’Neill, Interim County Counsel, and Glenn C. Moret, Deputy County

Counsel, for Plaintiff and Respondent.

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 I.

INTRODUCTION

In this appeal from the dispositional order in a dependency case, defendant and

appellant, Kendra V. (Mother), contends respondent San Bernardino County Children

and Family Services (CFS) failed to comply with the duty of initial inquiry imposed by

state statutory provisions implementing the Indian Child Welfare Act of 1978 (25

U.S.C. § 1901 et seq.; ICWA). We agree and remand for CFS to investigate and

report on the potential Indian ancestry of Mother’s children.1

II.

BACKGROUND

On November 13, 2018, Imperial County Department of Social Services (IDSS)

filed a dependency petition on behalf of Mother’s two children, Isaiah N. (then age 3)

and Gilbert S., Jr. (then age 11 months), pursuant to Welfare and Institutions Code

section 300, subdivisions (b) and (g). Gilbert S. was the father of Gilbert, Jr., and Paul

N. is the father of Isaiah.2

1 Undesignated statutory references are to the Welfare and Institutions Code.
“In addition, because ICWA uses the term ‘Indian,’ we 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 Gilbert S. is now deceased, and Paul N. is not a party to this appeal. For
clarity, the child Gilbert will be referred to as Gilbert, Jr.

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 The court sustained the petition and ordered family reunification services for

Mother and Paul N. It denied services for Gilbert S. pursuant to section 361.5,

subdivision (a), as he was not a statutorily presumed father.

In February 2020, the court transferred the case to San Bernardino County

Juvenile Court because Mother had relocated there.

In February 2021, the court returned the children to Mother for a 29-day

extended visit and set a contested 18-month review hearing. At the review hearing the

next month, the court terminated Paul N.’s reunification services and ordered family

maintenance services for Mother.

On June 3, 2021, CFS filed petitions on behalf of both children pursuant to

sections 342 and 387 to remove them from Mother due to allegations of improper

supervision and exposing the children to domestic violence.

The juvenile court found the allegations in the petitions to be true, removed the

children from Mother, terminated reunification services, and set a permanency

planning review hearing for February 4, 2022.

III.

ANALYSIS

In this case, the juvenile court did not expressly find that CFS had discharged

its duty to inquire whether the children are Indian children. Nonetheless, the court is

deemed to have implicitly made this finding given that it had “an affirmative and

continuing duty to inquire whether a child for whom a petition under Section 300 . . .

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has been filed, is . . . an Indian child,” and it did not order CFS to further investigate

the children’s status. (§ 224.2, subd. (a); see In re A.M. (2020) 47 Cal.App.5th 303,

318, 320 [the juvenile court “implicitly found that ICWA did not apply”].)

Mother contends that the juvenile court’s implied finding of ICWA compliance

was in error due to failure by CFS and the juvenile court to comply with its duty of

initial inquiry under Welfare and Institutions Code provisions implementing ICWA.

On this record, we agree with Mother.3

A. ICWA and Its California Application

Congress enacted the ICWA in 1978, and our state Legislature incorporated its

requirements into California statutory law in 2006. (In re Abbigail A. (2016) 1 Cal.5th

83, 91.) “ICWA reflects a congressional determination to protect Indian children and

to promote the stability and security of Indian tribes and families by establishing

minimum federal standards that a state court, except in emergencies, must follow

before removing an Indian child from his or her family.” (In re Austin J. (2020) 47

Cal.App.5th 870, 881-882; see 25 U.S.C. § 1902.)

“ICWA itself does not impose a duty on courts or child welfare agencies to

inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.]

Federal regulations implementing ICWA, however, require that state courts ‘ask each

3 We note that the January 1, 2019 amendments to section 224.2, subdivision
(b), apply in this case because Mother appeals from the juvenile court’s July 6, 2021
findings and orders that occurred after the amendments were in force. (See In re D.F.
(2020) 55 Cal.App.5th 558, 568, fn. 8 (D.F.); see also In re A.M., supra, 47
Cal.App.5th at p. 321 [juvenile court had duty to determine whether children were
Indian children based on facts and law that existed at time of section 366.26 hearing].)

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participant in an emergency or voluntary or involuntary child-custody proceeding

whether the participant knows or has reason to know that the child is an Indian child.’

[Citation.] The court must also ‘instruct the parties to inform the court if they

subsequently receive information that provides reason to know the child is an Indian

child.’ ” (In re Austin J., supra, 47 Cal.App.5th at pp. 882-883; see 25 C.F.R. §

23.107(a) (2022).)

Under California law, the juvenile court and county child welfare department

have “an affirmative and continuing duty to inquire” whether a child subject to a

section 300 petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F., supra,

55 Cal.App.5th at p. 566.) “This continuing duty can be divided into three phases: the

initial duty to inquire, the duty of further inquiry, and the duty to provide formal

ICWA notice.” (Ibid.) The duty to inquire whether a child is an Indian child begins

with the initial contact, i.e., when the referring party reports child abuse or neglect that

prompts the agency’s investigation. (§ 224.2, subd. (a).) The agency’s initial duty to

inquire includes asking the child, parents, legal guardian, extended family members,

and others who have an interest in the child whether the child is, or may be, an Indian

child. (§ 224.2, subd. (b).)4 Similarly, the juvenile court must inquire at each parent’s

first appearance whether he or she “knows or has reason to know that the child is an

4 “Under both ICWA and California law, ‘ “extended family member[s]” ’
include the child’s ‘grandparent, aunt or uncle, brother or sister, brother-in-law or
sister-in-law, niece or nephew, first or second cousin, or stepparent.’ (25 U.S.C. §
1903(2); Welf. & Inst. Code, § 224.1, subd. (c).).” (In re D.S. (2020) 46 Cal.App.5th
1041, 1053; see Cal. Rules of Court, rule 5.481(a)(4)(A).)

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Indian child.” (§ 224.2, subd. (c).) The juvenile court must also require each parent to

complete Judicial Council form ICWA-020, Parental Notification of Indian Status.

(Cal. Rules of Court, rule 5.481(a)(2)(C).) The parties are instructed to inform the

court “if they subsequently receive information that provides reason to know the child

is an Indian child.” (25 C.F.R. § 23.107(a); see § 224.2, subd. (c).)

“ ‘[W]here the facts are undisputed, we independently determine whether

ICWA’s requirements have been satisfied.’ [Citations.] However, ‘we review the

juvenile court’s ICWA findings under the substantial evidence test, which requires us

to determine if reasonable, credible evidence of solid value supports the court’s order.

[Citations.] We must uphold the court’s orders and findings if any substantial

evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in

favor of affirmance.’ ” (In re D.F., supra, 55 Cal.App.5th at p. 565.) Mother, as the

appellant, has the burden to show that the evidence was insufficient to support the

findings and orders. (In re Austin J., supra, 47 Cal.App.5th at p. 885.)

B. The Juvenile Court and CFS Did Not Comply with ICWA’s Inquiry

Requirements

Mother contends the agencies, IDSS and CFS, did not conduct an adequate

initial ICWA inquiry because they did not ask extended family members whether the

children may be Indian children. She argues that the juvenile court and agencies failed

in their “initial and continuing inquiry by not inquiring of all of appellant mother

Kendra V., father Gilbert S., and father Paul N.’s extended families.” As the agency

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that filed the petitions and obtained the removal of the children, CFS is ultimately

responsible for properly executing the duty to inquire, and we do not see the fact that

IDSS handled the case earlier as affecting our analysis. We address Mother’s claim by

considering the extended family of each parent.

1. Mother’s Extended Family

Mother points out that IDSS did not interview the maternal grandmother,

Arcelia V., or maternal aunt, Tanya V., who were both identified in the November 9,

2018 detention report. Arcelia V. appeared in court with Mother on November 14,

2018, and the children were then placed with her. Tanya V. was subject to a Resource

Family Approval (RFA) assessment for placement by IDSS on November 13, 2018.

Nevertheless, the record does not indicate these individuals were questioned about the

children’s Indian ancestry.

CFS concedes that Arcelia V. should have been asked about Indian ancestry

when she appeared in court with Mother. CFS nevertheless minimizes the matter,

arguing that Mother denied Indian ancestry on numerous occasions and had “extensive

contact with maternal grandmother with no barrier preventing her from obtaining

information from maternal grandmother.” This does not excuse CFS.

The agency cannot sidestep its statutory mandate by shifting to the parent the

duty of inquiry into whether the child may be an Indian child. (See e.g. In re Benjamin

M., supra, 70 Cal.App.5th at p. 742 [“the agency has a duty to gather information by

conducting an initial inquiry, where the other party—here a parent ‘acting as a

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surrogate for the tribe’ [citation]—has no similar obligation.”].) A parent may deny

Indian ancestry but an interview with an extended family member nevertheless reveals

that ancestry. (In re T.G. (2020) 58 Cal.App.5th 275, 289 [“Oral transmission of

relevant information from generation to generation and the vagaries of translating from

Indian languages to English combine to create the very real possibility that a parent’s

or other relative’s identification of the family’s tribal affiliation is not accurate.”]; see

In re Y.W. (2021) 70 Cal.App.5th 542, 554 [“Nothing in section 224.2, subdivision (b),

relieves the Department of its broad duty to seek that information from ‘all relevant’

individuals [citation] simply because a parent states on the ICWA-020 form, as

[mother] stated here, ‘I have no Indian ancestry as far as I know.’ Such a rule ignores

the reality that parents may not know their possible relationship with or connection to

an Indian tribe. [Citations.]”].)

CFS also does not dispute that IDSS did not ask Tanya V. about Indian heritage

when it had contact with her at the beginning of the case. CFS nevertheless argues

that Mother is wrong to claim that the agency had “substantial contact” with this aunt

through performing the RFA assessment.

Whether an agency has “substantial” contact with an extended family member

is not the standard governing an inquiry. Rather, for an initial inquiry, the agency is

required only to “inquire” of extended family members whether the child may be an

Indian child. (§ 224.2, subd. (b).) This does not require “substantial” contact.

According to the detention report, the agency knew of Tanya V.’s existence, it had

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been in contact with her, and there is no record of an agency asking her about Indian

ancestry.

Under the above circumstances, we conclude that CFS failed to fulfill its duty

of initial inquiry to inquire of Mother’s relatives.5

2. Gilbert S.’s Extended Family

IDSS initiated RFA assessments on a paternal uncle, Ephraim S., and a paternal

aunt Annette L.,6 on November 9 and 13, 2018. As well, CFS had a phone number for

paternal aunt Gloria L. from a form Gilbert S. submitted. However, there is no

evidence that IDSS asked these relatives about Indian ancestry.

CFS again justifies the lack of inquiry by arguing that IDSS did not have

“substantial contact” with Ephraim S. and Annette L. by its conducting an RFA

assessment. As stated earlier, we reject the argument that some level of contact is

needed. Additionally, as to Gloria L., CFS finds it significant that Gilbert S. denied

Indian ancestry the same day he provided her phone number. Again, Gilbert S.’s

5 Because the failure to inquire of the extended families requires that we
reverse, we need not address Mother’s further claim that the agency also failed to
inquire of the individuals identified in her psychological report. Upon remand, the
agency will be required to interview all known extended family members. (§ 224.2,
subd. (b).) As used in connection with an Indian child custody proceeding, the terms
“extended family member” shall be defined as provided in section 1903 of the federal
Indian Child Welfare Act. (§ 224.1, subd. (c).)

6 Annette L. is listed as a paternal cousin in the reporter’s transcript and in the
minute order for the November 14, 2018 hearing but as a paternal aunt in the detention
report. Either way, she is a paternal “extended family member” as provided in section
1903 of the Indian Child Welfare Act. (§§ 224.2, subd. (b), 224.1, subd. (c); 25 U.S.C.
§ 1903(2).)

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denial of Indian ancestry did not absolve the agency of its obligation to inquire of

extended family members whether the child has Indian ancestry. (§ 224.2, subd. (b);

In re Y.W., supra, 70 Cal.App.5th at p. 554 [“That [mother] disclaimed any Indian

ancestry at the outset of the dependency proceedings did not end the Department’s

duty of inquiry, especially where relevant contact and identifying information was

readily available. [Citation.]”].)

IDSS knew of Ephraim S.’s and Annette L.’s existence and had been in contact

with them before the detention hearing to assess their potential for placement. Annette

L. was even present at the November 14, 2018 detention hearing. These family

members were not asked about Indian ancestry. Gloria L. was not contacted at all.

Therefore, we concur with Mother that the agency failed to fulfill its duty of initial

inquiry with respect to Gilbert S.’s relatives.

3. Paul N.’s Extended Family

Finally, Mother contends that CFS did not contact Paul N.’s current wife, who

is Isaiah’s stepmother and who appeared in court at the dispositional hearing on July

29, 2019. Mother argues that while the stepmother is not biologically related to Isaiah,

she is a person who has an interest in the child and “she may have access to paternal

extended family contact information, and she [could] know and be informed about her

husband’s family’s genealogy.” Mother also claims that on June 2, 2021, the paternal

grandmother, Ms. N., denied that she or the paternal grandfather of the child had any

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Indian ancestry; however, the social worker did not speak to the paternal grandfather

about this issue.

CFS argues that the stepmother was not an “extended family member” under

section 224.2, subdivision (b), and 25 United States Code section 1903(2). CFS then

contends that the stepmother was the same individual who was “actively involved in

inappropriate conduct at the behest of Mother, yet Mother now seeks to claim error

regarding this person as part of an initial inquiry failure.” Additionally, respondent

relies on Paul N.’s denial of Indian ancestry. These arguments are not persuasive.

An “extended family member” includes a “stepparent.” (25 U.S.C. § 1903(2).)

Whether the stepmother acted inappropriately has no bearing on the duty of inquiry.

The agency’s statutory duty of inquiry pursuant to section 224.2, subdivision (b), is not

contingent upon the conduct of the person who may have information about the child’s

Indian ancestry. It also does not matter that Paul N. denied Indian ancestry. (See In re

Y.W., supra, 70 Cal.App.5th at p. 554.)

Additionally, while the paternal grandmother denied Indian ancestry, that does

not excuse inquiring of the paternal grandfather. Section 224.2, subdivision (b),

clearly envisions interviewing more than one family member, and we believe the

language, when read in conjunction with section 224.1, subdivision (c), and United

States Code section 1903(2), requires the agency to interview all known and

reasonably available extended family members. (See e.g. In re Y.W., supra, 70

Cal.App.5th at p. 554 [mother disclaiming Indian ancestry at the outset of the

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proceedings did not end agency’s duty of inquiry, “especially where relevant contact

and identifying information was readily available.”].)

Finally, CFS claims that read in conjunction with section 306, which describes

agency duties when a child is placed in the agency’s temporary custody, section 224.2

requires only that an agency make an initial inquiry “prior to the juvenile court taking

jurisdiction,” with no duty to inquire of relatives that the agency learns about after that.

That is, CFS posits that the initial duty to inquire begins with a child’s initial contact

“and extends to a child’s placement into temporary custody and the first appearance in

court of each party.” With this reading, CFS contends that the initial inquiry period in

this case “appears to involve a period of time prior to when certain relatives are

referenced in the record of this case.” In contrast, Mother claims that ICWA

obligations create “continuing duties throughout the dependency proceedings; initial

inquiry does not end after a month-and-a-half.” We agree with Mother.

As mentioned previously, section 224.2 sets forth a duty of inquiry that is

“affirmative and continuing.” (§ 224.2, subd. (a).) While we agree with CFS that the

section 224.2 duty of initial inquiry applies when a child is placed into agency custody

under section 306, the sections place no end date on that inquiry. CFS’s apparent

claim that the jurisdictional hearing terminates the duty would mean that the duty

could well end before the agency even has a chance to identify, locate, and interview

relatives. That hearing must take place within 15 judicial days from the date of the

child’s detention, (§ 334), yet section 309, subdivision (e)(1), permits the agency 30

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days to conduct an investigation to identify and locate relatives of a detained child.

Instead of this incongruous deadline, we believe that the agency’s initial duty of

inquiry applies until the agency has properly fulfilled its statutory mandate by “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 child is, or may be, an Indian child and where the child, the parents, or

Indian custodian is domiciled.” (§ 224.2, subd. (b).)

Based upon the foregoing, we conclude that the agencies failed to fulfill their

duty of initial inquiry as to the extended family of all three parents in this case.

C. A Remand Is Required

Because the failure here concerned the agencies’ duty of initial inquiry, only

state law is involved. Where a violation is of state law, we may not set aside a

judgment unless we find that the error was prejudicial. (Cal. Const., art. VI, § 13; In

re Benjamin M., supra, 70 Cal.App.5th at p. 742.)

As our high court has said, the ICWA-related inquiry and notice procedures

“make clear that Indian tribes have interests protected by ICWA that are separate and

distinct from the interests of parents of Indian children. [Citation.] ICWA’s notice

requirements are ‘intended to protect the interests of Indian children and tribes despite

the parents’ inaction.’ [Citations.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 13.) They are

“as much about effectuating the rights of Indian tribes as they are about the rights of

the litigants already in a dependency case.” (Benjamin M., supra, 70 Cal.App.5th at

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pp. 740-741.) As such, we must remand “where the record indicates that there was

readily obtainable information that was likely to bear meaningfully upon whether the

child is an Indian child.” (Id. at p. 744.)

Here, the agencies failed to access such readily obtainable information from the

three parents’ extended family members, a total of at least seven extended family

members discussed above. (See Benjamin M., supra, 70 Cal.App.5th at p. 744

[reversal was required where CFS failed its duty of inquiry by not asking “ ‘extended

family members,’ ” such as father’s brother and sister-in-law, whether the minor had

Indian ancestry on his paternal side because the missing information was readily

obtainable and the information the relatives could have given would likely have “shed

meaningful light” on whether the child was an Indian child.].) Even if we do not know

how the relatives would respond to the inquiry regarding their Indian status, their

knowledge would be suggestive of the parents’ status and, thus, bear meaningfully on

the required determination about the parents. (Id. at pp. 744-745.) Because the

agencies did not fulfill their duty of “basic inquiry into potentially meaningful, easily

acquirable information,” substantial evidence does not support the court’s implied

finding that ICWA did not apply. (Id. at p. 745.)

IV.

DISPOSITION

The juvenile court’s jurisdiction and disposition orders are affirmed with

instructions. The case is remanded to the trial court to comply with Welfare and

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Institutions Code section 224.2. The juvenile court shall order that within 30 days of

the remittitur, CFS report its investigation of potential Indian ancestry by interviewing

available extended family members. Following the report, the court shall proceed

accordingly.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL
J.

We concur:

RAMIREZ
P. J.

MENETREZ
J.

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