Filed 7/5/22 In re C.J. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
In re C.J., a Person Coming Under
the Juvenile Court Law.
CONTRA COSTA COUNTY
CHILDREN AND FAMILY
SERVICES,
A164646
Plaintiff and Respondent,
v. (Contra Costa County
Super. Ct. No. J21-00140)
C.J.,
Defendant and Appellant.
MEMORANDUM OPINION1
C.J. (Father), father of minor C.J., appeals from orders denying his
petition under Welfare and Institutions Code section 3882 and terminating
his parental rights under 366.26. Father’s sole contention on appeal is that
the Contra Costa County Children and Family Services Bureau (Bureau)
1 We resolve this case by a memorandum opinion pursuant to California
Standards of Judicial Administration, section 8.1. (See also People v. Garcia
(2002) 97 Cal.App.4th 847, 853–855.)
2 Further statutory references are to the Welfare and Institutions Code.
1
failed to comply with its duty under the Indian Child Welfare Act (25 U.S.C.,
§ 1901 et seq.; ICWA) and related California law (§ 224 et seq.) to conduct an
initial inquiry into whether C.J. was an Indian child.
C.J. was the subject of an April 2021 dependency petition alleging he
was at risk of serious physical harm due to the chronic substance abuse of his
mother, T.H. (Mother). (§ 300, subd. (b)(1).) Mother indicated in her ICWA-
020 form that she had no Indian ancestry. Father did not complete an ICWA-
020 form and indicated that he did not know if he had Indian ancestry.
Based on these statements from the parents, the Bureau recommended in its
disposition report that the juvenile court find that ICWA does not apply. At
the June 2021 jurisdiction and disposition hearing, the juvenile court found
that C.J. was a person described by section 300, subdivisions (b) and (j), and
that “there is no reason to believe or know the child is an Indian child and
ICWA does not apply.” After further proceedings, the juvenile court denied
Father’s section 388 petition requesting reunification services and terminated
Mother and Father’s parental rights.3
On appeal, Father contends the Bureau did not comply with its duty to
conduct an initial inquiry into whether C.J. was an Indian child because the
Bureau failed to inquire with extended family members, such as paternal
grandmother and maternal great aunt, both of whom were in contact with
the Bureau during the proceedings. In a responsive letter, the Bureau
concedes “there is not a record of a proper initial ICWA inquiry regrading
C.J.” Accordingly, the Bureau does not oppose a conditional reversal and
remand to permit ICWA compliance.
3 The Bureau’s section 366.26 hearing report discussed no further
inquiries regarding C.J.’s possible Indian heritage and merely repeated the
juvenile court’s inapplicability finding made at the jurisdiction and
disposition hearing.
2
ICWA and related California law require notice to be given to relevant
Indian tribes of the foster care placement of, or termination of parental rights
to, an Indian child where the juvenile court knows or has reason to know that
an Indian child is involved. (In re Isaiah W. (2016) 1 Cal.5th 1, 5; see 25
U.S.C. § 1912(a), § 224.3, subd. (a).) “Because it typically is not self-evident
whether a child is an Indian child, both federal and state law mandate
certain inquiries to be made in each case. These requirements are sometimes
collectively referred to as the duty of initial inquiry.” (In re Benjamin M.
(2021) 70 Cal.App.5th 735, 741.)
Under state law, juvenile courts and child welfare agencies are “under
‘an affirmative and continuing duty to inquire whether a child . . . is or may
be an Indian child.’ ” (In re T.G. (2020) 58 Cal.App.5th 275, 290, citing
§ 224.2, subds. (a)–(c).) The duty of initial inquiry requires the agency to ask
“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.” (§ 244.2,
subd. (b).) “If the initial inquiry gives the juvenile court or the agency ‘reason
to believe’ that an Indian child is involved, then the juvenile court and the
agency have a duty to conduct ‘further inquiry’ [citation], and if the court or
the agency has ‘reason to know’ an Indian child is involved, ICWA notices
must be sent to the relevant tribes.” (In re Benjamin M., supra, 70
Cal.App.5th at p. 742.) The agency “must on an ongoing basis include in its
filings a detailed description of all inquiries, and further inquiries it has
undertaken, and all information received pertaining to the child’s Indian
status.” (Cal. Rules of Court, rule 5.481(a)(5).)
3
We conclude the juvenile court’s finding of ICWA inapplicability is not
supported by substantial evidence. While the record reflects that Father and
Mother were asked about Indian ancestry, the record does not disclose any
further and ongoing efforts by the Bureau to discharge its duty of initial
inquiry in compliance with ICWA and state law, and the Bureau’s reports did
not include “detailed description[s]” of any inquiries made of extended family
members, such as paternal grandmother and maternal great aunt. (Cal.
Rules of Court, rule 5.481(a)(1), (5).) Furthermore, the record fails to
affirmatively show that the juvenile court asked the Bureau to describe its
efforts to ascertain C.J.’s possible Indian ancestry. Thus, the juvenile court
did not meet its duty to ensure the Bureau adequately investigated C.J.’s
possible Indian ancestry before finding ICWA inapplicable. (See In re J.C.
(2022) 77 Cal.App.5th 70, 79–80 [although parents’ ICWA-020 forms stated
no known Indian ancestry and one parent told agency she had no Indian
ancestry, juvenile court did not meet its ICWA duty where it did not ask
whether agency made relevant ICWA inquiry of extended family members
and did not ask agency to describe its efforts to ascertain child’s ancestry].)
This was reversible error. (In re Antonio R. (2022) 76 Cal.App.5th 421, 432,
435 [where agency fails to discharge its initial duty of inquiry under ICWA
and California law and juvenile court finds ICWA does not apply, error is “in
most circumstances” prejudicial and reversible].)
DISPOSITION
The orders denying Father’s section 388 petition and terminating
parental rights are conditionally reversed, and the case is remanded to the
juvenile court with directions to order the Bureau to comply with the inquiry
(and if appropriate, notice) provisions of ICWA and state law. If, after
compliance with the law, the court finds that ICWA does not apply, the
4
orders shall be immediately reinstated. If, on the other hand, the court finds
there is reason to believe or know that C.J. is an Indian child, the court shall
conduct a new section 366.26 hearing, as well as further proceedings
(including giving notice to the relevant tribes), in compliance with ICWA and
state law.
_________________________
Fujisaki, Acting P.J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Rodríguez, J.
In re C.J. (A164646)
5