In re V.B. CA5

Filed 6/14/22 In re V.B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

In re V.B., a Person Coming Under the Juvenile
Court Law.

TUOLUMNE COUNTY DEPARTMENT OF F083287
SOCIAL SERVICES,
(Super. Ct. No. JV7946)
Plaintiff and Respondent,

v. OPINION
JOHN B.,

Defendant and Appellant.

THE COURT*
APPEAL from orders of the Superior Court of Tuolumne County. Donald
Segerstrom, Judge.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
Sarah Carrillo, County Counsel, and Maria Sullivan, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-

* Before Detjen, Acting P. J., Smith, J. and Meehan, J.
 Cathleen B. (mother) and John B. (father) are the parents of Victoria B.1 Victoria
was the subject of a Welfare and Institutions Code section 3002 petition from which
two section 387 supplemental petitions were filed. This appeal concerns the second
supplemental petition. Father appeals the juvenile court’s orders adjudicating the
supplemental petition and the dispositional orders. He does not challenge the orders on
their merits. His sole contention on appeal is that the Tuolumne County Department of
Social Services (department) failed to comply with the inquiry requirements of the Indian
Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because
it did not ask extended family members about the child’s possible Indian ancestry.
The department concedes that it failed to conduct an adequate inquiry. We
conditionally affirm the orders and remand for the juvenile court and the department to
comply with the inquiry provisions of ICWA and related California law.
FACTUAL AND PROCEDURAL BACKGROUND3
Prior Dependency Proceedings
On November 7, 2018, Victoria came to the attention of the department after a law
enforcement officer found her three-year-old half sibling wandering down a road
wearing only a soiled diaper. As a result of this incident, the department discovered that
mother and father’s homes were unsafe and unsanitary.4 Thereafter, the department filed

1 Mother and father were married and had two minor children together (Victoria and
Sean B.) and an adult daughter (Christina B.). Mother has another adult daughter named
Autumn A. from a different relationship. Father and Autumn have children together.
Although the department filed dependency petitions on behalf of all of the children, only
Victoria is the subject of this appeal.
2 All further statutory references are to the Welfare and Institutions Code.
3 The sole issue on appeal concerns ICWA; therefore, we restrict our facts to those
bearing on that issue.
4 Although mother and father were married, they lived separately.

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a dependency petition on behalf of Victoria and placed her in protective custody. That
same day, father and mother verbally declared that they did not have Indian ancestry.
On November 9, 2018, father and mother each completed a Parental Notification
of Indian Status form (ICWA-020) indicating they had no known Indian ancestry.
On January 16, 2019, Victoria was found to be a person described by section 300.
On January 29, 2019, at the disposition hearing, Victoria was ordered returned to
mother’s custody on a family maintenance plan and father was ordered to participate in
family reunification services. The juvenile court found ICWA did not apply.
On December 16, 2019, the department filed a supplemental petition due to
ongoing concerns in the household. The juvenile court eventually found the allegations
in the supplemental petition true, but ordered Victoria to remain in mother’s custody.
Mother was ordered to participate in a family maintenance plan and father’s reunification
services were terminated.
Current Dependency Proceedings
On April 7, 2021, mother was arrested for felony child endangerment after her
house was again found to be unsafe and unsanitary. Victoria was placed in protective
custody. Paternal aunt Sharon agreed to stay with her in a hotel for the weekend pending
placement arrangements. Although Sharon was interested in placement of Victoria, the
department had previously only approved her home for respite care.
On April 9, 2021, the department filed the subject supplemental petition on behalf
of Victoria. The supplemental petition had an Indian Child Inquiry Attachment form
(ICWA-010(A)), stating that mother and father were asked about Indian ancestry on
November 9, 2018, and that they gave no reason to believe Victoria was or could be an
Indian child.
On April 12, 2021, at the detention hearing, the juvenile court ordered mother and
father to complete an ICWA-020 form.

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 On April 16, 2021, at the further detention hearing, the juvenile court again
ordered mother and father to complete an ICWA-020 form.
On August 23, 2021, at the contested disposition hearing, father was denied
reunification services and the juvenile court found ICWA did not apply.
On September 13, 2021, father filed a notice of appeal.
DISCUSSION
I. Applicable Law
“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.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) “ICWA provides that ‘[i]n
any involuntary proceeding in a State court, where the court knows or has reason to know
that an Indian child is involved, the party seeking the foster care placement of, or
termination of parental rights to, an Indian child shall notify the parent or Indian
custodian and the Indian child’s tribe, by registered mail with return receipt requested, of
the pending proceedings and of their right of intervention.’ ” (In re A.R. (2022) 77
Cal.App.5th 197, 203 (A.R.); 25 U.S.C. § 1912(a).) “This notice requirement, which is
also codified in California law [citation], enables a tribe to determine whether the child is
an Indian child and, if so, whether to intervene in or exercise jurisdiction over the
proceeding. ” (In re Isaiah W., at p. 5.)
“In California, section 224.2 ‘codifies and elaborates on ICWA’s requirements of
notice to a child’s parents or legal guardian, Indian custodian, and Indian tribe, and to the
[Bureau of Indian Affairs].’ ” (A.R., supra, 77 Cal.App.5th at p. 204.) “[S]ection 224.2,
‘creates three distinct duties regarding ICWA in dependency proceedings.’ ” (In re H.V.
(2022) 75 Cal.App.5th 433, 437 (H.V.).) “First, section 224.2, subdivision (b), requires
the child protective agency to ask ‘the child, parents, legal guardian, Indian custodian,

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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.’ ” (In re J.C. (2022) 77
Cal.App.5th 70, 77 (J.C.).) “Although commonly referred to as the ‘initial duty of
inquiry,’ it ‘begins with the initial contact’ (§ 224.2, subd. (a)) and continues throughout
the dependency proceedings.” (Ibid.) “Second, if the court or child protective agency
‘has reason to believe that an Indian child is involved in a proceeding, but does not have
sufficient information to determine that there is reason to know that the child is an Indian
child,’ the court and the Department ‘shall make further inquiry regarding the possible
Indian status of the child, and shall make that inquiry as soon as practicable.’ ” (Id. at
p. 78, fn. omitted.) “Third, if the further inquiry ‘ “ ‘results in a reason to know the child
is an Indian child, then the formal notice requirements of section 224.3 apply.’ ” ’ ”
(Ibid.)
“ ‘ “ ‘The juvenile court must determine whether proper notice was given under
ICWA and whether ICWA applies to the proceedings.’ ” [Citation.] “If the court makes
a finding that proper and adequate further inquiry and due diligence as required in
[section 224.2] have been conducted and there is no reason to know whether the child is
an Indian child, the court may make a finding that [ICWA] does not apply to the
proceedings, subject to reversal based on sufficiency of the evidence.” ’ ” (J.C., supra,
77 Cal.App.5th at p. 78.) The juvenile court may not “find that ICWA does not apply
when the absence of evidence that a child is an Indian child results from a [child
protective agency] inquiry that is not proper, adequate, or demonstrative of due
diligence.” (In re Josiah T. (2021) 71 Cal.App.5th 388, 408.)
“ ‘[W]e 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

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all conflicts in favor of affirmance.’ ” (In re D.F. (2020) 55 Cal.App.5th 558, 565.)
“Thus, we do not consider whether there is evidence from which the dependency court
could have drawn a different conclusion but whether there is substantial evidence to
support the conclusion that the court did draw.” (In re Noe F. (2013) 213 Cal.App.4th
358, 366.)
II. Substantial Evidence Does Not Support the Juvenile Court’s ICWA Finding
Father contends the juvenile court’s ICWA finding was not supported by
substantial evidence because the record does not reflect that extended family members
were asked about possible Indian ancestry. The department concedes it failed to conduct
an adequate inquiry, and we agree.5
Section 224.2, subdivision (b), required the department, as part of its initial
inquiry, to inquire of the children’s extended family members regarding possible Indian
ancestry. “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.’ ” (In re D.S. (2020)
46 Cal.App.5th 1041, 1053; 25 U.S.C. § 1903(2); § 224.1, subd. (c).)
Father notes the department had contact with Sharon. Sharon and her husband
were investigated for placement and participated in multiple child and family team
meetings. Sharon also attended various hearings and maintained contact with the
department during the proceedings. Additionally, the department had contact with

5 The department concedes it failed to discharge its duty of inquiry and states that it
has “begun the re-inquiry process.” The department attached a declaration from a social
worker detailing the department’s inquiry efforts (“Exhibit A”) to its letter brief. In
response, father filed a motion objecting to this court’s consideration of the declaration
on the basis that it contains information that is not part of the record. The general rule is
that “ ‘ “an appellate court will consider only matters which were part of the record at the
time the judgment was entered.” [Citation.]’ ” (In re K.M. (2015) 242 Cal.App.4th 450,
456.) The department has not presented a valid basis for us to depart from the general
rule. (See In re Zeth S. (2003) 31 Cal.4th 396, 405.) We grant father’s motion.

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mother and father’s adult daughter Christina. She participated in child and family team
meetings and hearings. Nothing in the record suggests anyone in the department asked
these family members about possible Indian ancestry.6 (See H.V., supra, 75 Cal.App.5th
at p. 438 [child protective agency’s “first step inquiry duty under ICWA and state law
was broader” than simply asking the parents about possible Indian ancestry, “requiring it
also to interview, among others, extended family members”].) Neither is there any
evidence in the record that shows the juvenile court inquired about the department’s
efforts. (See In re Antonio R. (2022) 76 Cal.App.5th 421, 431 [“[A] juvenile court errs in
making a finding ICWA does not apply to the proceedings without first ensuring that the
Department has made an adequate inquiry under ICWA and California law, and if
necessary, the court must continue the proceedings and order the Department to fulfill its
responsibilities.”].)
Father also points out that the juvenile court failed to conduct its own ICWA
inquiry at the hearings. (See section 224.2, subd. (c) [“At the first appearance in court of
each party, the court shall ask each participant present in the hearing whether the
participant knows or has reason to know that the child is an Indian child.”].) Indeed, we
find nothing in the record that suggests the court asked mother, father, or any other
participating family member about Indian ancestry.
“[T]he Courts of Appeal are divided as to whether a parent must make an
affirmative showing of prejudice to support reversal where the Department failed fully to
perform its initial duty of inquiry.” (In re Antonio R., supra, 76 Cal.App.5th at p. 433.)
“The published cases seem to fall into three groups: the first concludes that the conceded
error warrants reversal in every case because the duty to inquire was mandatory and
unconditional.” (A.R., supra, 77 Cal.App.5th at p. 205; see, e.g., H.V., supra, 75

6 The only family member the department inquired of regarding Indian ancestry was
Autumn, as her children became involved in dependency proceedings at the same time as
Victoria.

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Cal.App.5th at p. 438; see also, e.g., In re Y.W. (2021) 70 Cal.App.5th 542, 556.)
However a “rule establishing automatic reversal without any reason to believe Native
American heritage exists would potentially reward parental gamesmanship and
undermine the policy favoring prompt resolution of juvenile dependency cases. It also
potentially runs afoul of the constitutional requirement that judgments can only be
reversed on appeal in cases where a manifest miscarriage of justice has been shown.”
(A.R., at p. 206.)
“The second group concludes that the error does not warrant reversal unless a
‘miscarriage of justice’ is demonstrated to have occurred as a consequence of the failure
to inquire about Native American heritage.” (A.R., supra, 77 Cal.App.5th at p. 205.)
“These cases would allow a parent to make an offer of proof on appeal, showing there is
reason to believe Native American heritage exists.” (Ibid.) Absent such a showing,
judgment would be affirmed. (Ibid.) But this rule “effectively shifts the agency’s
unconditional statutory burden to the parents in cases where the agency has failed to
fulfill it.” (Id. at p. 206.)
“The third option is the self-described ‘middle ground’ approach taken in [In re
Benjamin M. (2021) 70 Cal.App.5th 735], in which the appellate court would determine,
on a case by case basis, whether the record reflects there are known relatives identified by
the child welfare agency, who appear to have been able to shed light on the issue of
Native American heritage. Benjamin M. held that the failure to inquire would be
reversible error if ‘there was readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child.’ ” (A.R., supra, 77 Cal.App.5th
at pp. 205–206.) Benjamin M. rejected the idea that an appealing parent had to make an
offer of proof about the child’s Indian ancestry to demonstrate prejudice. (Benjamin M.,
at p. 745.) Moreover, “Benjamin M. rejected an approach that would require reversal in
all cases where the agency erred, explaining: ‘There are cases where … it was obvious
that additional information would not have been meaningful to the inquiry. This might

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occur where the evidence already uncovered in the initial inquiry was sufficient for a
reliable determination.’ ” (J.C., supra, 77 Cal.App.5th at p. 81.) For example, additional
information would not be meaningful where the department had already made an
undisputed and unchallenged finding that ICWA did not apply to a dependent child’s full
siblings. (In re Charles W. (2021) 66 Cal.App.5th 483, 490 [department made adequate
initial inquiry where there was an undisputed and unchallenged finding that ICWA did
not apply to two older siblings].) The case before us does not fit into such a category.
The department had contact with multiple relatives and could have asked about the
children’s Indian status. Although mother and father denied having Indian ancestry, “it is
not uncommon for parents to mistakenly disclaim (or claim) Indian ancestry.” (J.C.,
supra, 77 Cal.App.5th at p. 81.) Thus, we conclude the juvenile court’s finding that
ICWA did not apply was not supported by substantial evidence.
DISPOSITION
The May 19, 2021, orders adjudicating the supplemental petition, and the
August 23, 2021, disposition orders are conditionally affirmed. We remand for the
department and the juvenile court to comply with the inquiry provisions of ICWA and
California law. If the court finds the children are Indian children, it shall conduct new
proceedings in compliance with ICWA and related California law. If not, the court’s
original orders will remain in effect.

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