Filed 5/25/22 In re K.K. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re K.K., a Person Coming Under
the Juvenile Court Law.
D080068
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520364)
Plaintiff and Respondent,
v.
M.E.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Ana
L. Espana, Judge; Michael Imhoff, Commissioner. Conditionally reversed
with directions.
Donna B. Kaiser, 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.
Mother appeals an order terminating her parental rights for infant
K.K. pursuant to Welfare and Institutions Code section 366.26.1 The sole
issue on appeal is whether the San Diego County Health and Human
Services Agency (Agency) and the juvenile court failed to conduct an
adequate initial inquiry as required by the Indian Child Welfare Act (ICWA)
regarding any potential Indian ancestry of the child.
Counsel for Mother and the Agency have conferred and agree that the
Agency’s investigation under the ICWA was inadequate, under the relevant
statutory and decisional authority. The parties filed a joint stipulation
seeking the issuance of an immediate remittitur. We accept the stipulation,
conditionally reverse, and remand for the limited purpose of ensuring
compliance with ICWA’s requirements.
BACKGROUND
When M.E. (Mother) gave birth to K.K. in April 2020, both she and
newborn K.K. tested positive for opiates. K.K. suffered withdrawal
symptoms and was admitted to the neonatal intensive care unit. Although
Mother denied drug use, methamphetamine and drug paraphernalia were
found in her purse at the hospital. Mother experienced complications after
childbirth, was placed on a ventilator, sedated, and was cared for in the
intensive care unit. A physician believed that she had only months to live
due to her health issues and that she was not capable of caring for the infant.
The Agency filed a petition alleging K.K. was a child within the
jurisdiction of the juvenile court pursuant to section 300, subdivision (b)(1)
because the child suffered or was at substantial risk of suffering serious
physical harm or illness as a result of the parents’ failure or inability to
1 Further undesignated statutory references are to the Welfare and
Institutions Code.
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protect or care for the child. The petition alleged the child tested positive for
opiates and suffered withdrawal symptoms, that B.K. (Father) was
incarcerated and Mother had an active criminal protective order protecting
her from him. The Agency expressed concern that K.K. would not be cared
for due to Mother’s drug use and medical condition.
The Agency contacted maternal grandmother and paternal uncle about
possible relative placement early in the case. There is no indication the
Agency inquired about Native American heritage.
At the detention hearing on April 28, 2020, Mother and Father denied
Native American heritage. The court deferred making a finding on the issue
pending a paternity test. The court ordered the Agency to investigate and
report to the court whether the child had Native American heritage. The
court found that the Agency made a prima facie showing that K.K. was a
child within the jurisdiction of the court under section 300, subdivision (b)
and ordered K.K. detained.
In a June 9, 2020 jurisdiction/disposition report, the social worker
stated ICWA did not apply because Mother denied Native American heritage
or tribal connection. The report stated a full inquiry needed to be completed
for Father. The worker identified several maternal relatives including
maternal grandmother, maternal grandfather, maternal uncle and maternal
aunt regarding relative placement and support.
At the jurisdiction hearing on July 9, 2020, the court made a true
finding on the petition under section 300, subdivision (b)(1). The court found
Father was K.K.’s biological father. It also found ICWA did not apply based
on inquiry of the parents. It was not until later in August, however, that a
social worker completed an ICWA inquiry with Father. He denied Native
American heritage or tribal connection.
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At the contested disposition hearing on August 25, 2020, the court
ordered that K.K. be removed from the parents’ care and placed in a licensed
foster home. The court’s minute order stated notice pursuant to ICWA was
not required because reasonable inquiry had been made to determine
whether the child is or may be an Indian child and the court had reason to
know the child was not an Indian child. The court did not make this finding
on the record during the hearing. Instead, the court incorporated by
reference the Agency recommendations.
Over the following months, Mother denied drug use despite testing
positive for amphetamines and methamphetamines on random drug tests.
Although Mother expressed some insight into domestic violence issues with
Father, she had ongoing contact with him. She made some progress with her
case plan, but lacked insight into her substance abuse history and denied the
risk and harm to K.K.
Between November 2020 and January 2021, the Agency contacted the
paternal grandparents, a paternal uncle, a maternal aunt and a maternal
uncle regarding concurrent planning. There is no indication the Agency
conducted an ICWA inquiry with these individuals.
Mother struggled with maintaining services. After two substance
abuse treatment programs declined to accept Mother due to her prescription
for Ritalin and her claim that she had been sober for two years, she started
participating in an outpatient substance abuse treatment program in
December 2020. She did not, however, attend the required number of classes
per week and did not acknowledge substance abuse. Mother tested positive
for amphetamines and methamphetamine in October and November 2020,
which she attributed to her Ritalin medication. A medical reviewer stated
that Ritalin would not cause a false positive and that Mother tested positive
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for a form of methamphetamine that was consistent with street drugs.
Mother refused to test in December 2020. She denied alcohol use, but tested
positive for alcohol several times in March 2021. She eventually
acknowledged alcohol use in April 2021 saying she used alcohol to deal with
panic attacks.
Mother initially engaged in a domestic violence group, but the group
therapist reported that Mother missed nine sessions and had not attended
since March 2021. The therapist was sympathetic to Mother’s ongoing
medical issues and was willing to continue Mother’s services. Mother agreed
to complete the last eight sessions.
Father remained incarcerated. Mother said she did not plan to have a
relationship with Father when he was released, but she continued to
communicate with him.
In April 2021, the court determined that Mother had made adequate
progress toward alleviating or mitigating the causes necessitating K.K.’s
placement and in complying with her case plan. The court continued her
reunification services. The court terminated Father’s reunification services
after concluding that Father made no progress toward alleviating or
mitigating the causes necessitating K.K.’s placement.
By the end of June 2021, Mother still had not completed her domestic
violence therapy sessions. She continued to deny substance abuse and
minimized her recent test results that were positive for alcohol,
methamphetamine, and fentanyl. Her participation in substance abuse
treatment was inconsistent. She had not mitigated the safety concerns that
brought the family to the Agency’s attention and she continued to lack
insight into her drug history and the risk it posed to K.K.’s safety. Mother
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stopped engaging in services after June 2021 and cancelled all meetings with
the social worker.
The court terminated reunification services for Mother at the contested
12-month review hearing held on August 30, 2021, finding her progress was
minimal.
In January 2022, Mother submitted a section 388 request for change of
order requesting placement of K.K. with her. She stated that she was
scheduled to begin outpatient treatment for substance abuse and a domestic
violence support group, she had been engaged in mental health counseling,
she was under the care of a psychiatrist, she had provided a negative drug
test, and she was participating in substance abuse meetings. The Agency
commended Mother for engaging in services “to get her life back on track,”
but indicated Mother had not fully addressed the protective issue that
brought K.K. into the court’s custody. Although her circumstances changed
“slightly” it was not enough to warrant returning K.K. to her care since she
was still in the beginning stages of recovery. The Agency believed the best
interests of K.K. continued to be in the permanent plan of adoption. The
court denied Mother’s request on January 24, 2022.2
On February 3, 2022, at a contested section 366.26 hearing, the court
determined that K.K. was adoptable and that adoption was in the best
interest of K.K. The court terminated the parental rights of both parents.
The court’s minute order states the court found without prejudice that ICWA
2 Mother’s notice of appeal indicated she was appealing this order.
Because the opening brief does not challenge the substance of this order, we
deem the appeal abandoned. (Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956.)
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did not apply to this proceeding. However, the court did not make this
finding on the record.
DISCUSSION
Congress enacted ICWA to address concerns regarding the separation
of Native American children from their tribes through adoption or foster care
placement. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Under California law
adopted pursuant to ICWA, the juvenile court and the Agency have an
“affirmative and continuing duty to inquire” whether a child “is or may be an
Indian child.” (§ 224.2, subd. (a); Isaiah W., at p. 9.)
“[S]ection 224.2 creates three distinct duties regarding ICWA in
dependency proceedings. First, from the Agency’s initial contact with a
minor and his family, the statute imposes a duty of inquiry to ask all involved
persons whether the child may be an Indian child. (§ 224.2, 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.)
The parties agree, and we concur, that the Agency did not comply with
its initial duty of inquiry in this case by failing to inquire of the child and
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available extended family members regarding any potential Indian ancestry.
(§ 224.2, subds. (a) & (b); Cal. Rules of Court, rule 5.481(a)(1).) The Agency
interviewed many relatives as part of its investigation and efforts to explore
relative placement, including maternal grandparents, a maternal uncle, a
maternal aunt, paternal grandparents, and a paternal uncle. However, there
is no indication in the record that any of these extended family members
were asked about potential Native American ancestry for the child. Before
the juvenile court can find that the ICWA does not apply, it must make a
finding that “due diligence as required in this section have been conducted.”
(§ 224.2, subd. (i)(2).) The record does not show that the juvenile court made
this finding.
Before reversing or vacating a judgment based upon a stipulation of the
parties, an appellate court must find “both of the following: [¶] (A) There is
no reasonable possibility that the interests of nonparties or the public will be
adversely affected by the reversal. [¶] (B) The reasons of the parties for
requesting reversal outweigh the erosion of public trust that may result from
the nullification of a judgment and the risk that the availability of stipulated
reversal will reduce the incentive for pretrial settlement.” (Code Civ. Proc.,
§ 128, subd. (a)(8).)
The present case involves reversible error because the parties agree,
and we concur, that the Agency failed to comply with the ICWA and related
California provisions and “that there was readily obtainable information that
was likely to bear meaningfully upon whether the child is an Indian child.”
(In re Benjamin M. (2021) 70 Cal.App.5th 735, 744; In re Antonio R. (2022) 76
Cal.App.5th 421, 435.) Because this case would be subject to reversal to
permit compliance with the ICWA and corresponding California statutes and
rules absent the parties’ stipulation, a stipulated remand advances the
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interests identified by Code of Civil Procedure section 128, subdivision (a)(8).
(See In re Rashad H. (2000) 78 Cal.App.4th 376, 379-382.)
DISPOSITION
The orders issued at the February 3, 2022 contested section 366.26
hearing are conditionally reversed and the matter is remanded to the juvenile
court with directions that within 30 days of the remittitur the Agency must
file a report demonstrating its compliance with the inquiry provisions of the
ICWA and section 224.2, subdivision (b), and, if required, conduct further
inquiry under section 224.2, subdivision (e). Within 45 days of the remittitur,
the juvenile court must conduct a hearing to determine if the Agency’s
investigation satisfied its affirmative duty to investigate. The juvenile court
has the discretion to adjust these time periods on a showing of good cause.
If neither the Agency nor the juvenile court has reason to believe or to
know that K.K. is an Indian child, the orders issued at the February 3, 2022
contested section 366.26 hearing shall be reinstated. Alternatively, if after
completing the inquiry the Agency or the juvenile court has reason to believe
that K.K. is an Indian child, the court shall proceed accordingly. The
remittitur shall issue immediately.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O’ROURKE, J.
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