Filed 7/27/22 In re W.D. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re W.D., a Person Coming Under
the Juvenile Court Law.
D080180
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520907)
Plaintiff and Respondent,
v.
M.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Michael P. Pulos, Judge. Conditionally reversed and remanded with
directions.
Richard L. Knight, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and
Respondent.
M.D. (Mother) appeals from the juvenile court’s jurisdictional and
dispositional order removing her baby, W.D., from her custody. Mother’s only
contention on appeal is that the San Diego County Health and Human
Services Agency (Agency) failed to comply with the initial inquiry
requirements under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et
seq.) and Welfare and Institutions Code section 224.2, subdivision (b).1 The
Agency concedes that its initial inquiry was inadequate. We agree.
Therefore, we conditionally reverse the jurisdictional and dispositional order,
and remand the matter for the limited purpose of compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND2
In November 2021, the Agency petitioned the juvenile court under
section 300, subdivision (b), on behalf of newborn baby W.D. The Agency
alleged that Mother was incapable of providing regular care for W.D. because
that month, Mother presented with a psychotic disorder and was placed on a
psychiatric hold, and also had tested positive for methamphetamine. The
petition included a statement on Judicial Council form ICWA-010(A) that a
social worker had not yet asked about W.D.’s Indian status because Mother
was mentally unstable and presented with psychotic thinking, paranoia,
hallucinations, and delusions.
1 All further undesignated statutory references are to the Welfare and
Institutions Code.
2 Due to the limited scope of this appeal, we provide an abbreviated
summary of the dependency proceedings focused on the facts relevant to the
issue on appeal.
2
At the detention hearing, the court deferred making a finding under
ICWA due to its inability to communicate with Mother and her refusal to
accept court-appointed counsel.
The Agency’s jurisdiction/disposition report indicated that maternal
grandmother denied any Native American ancestry for herself, her family, or
Mother, as well as denied any Native American history for her ex-husband
(maternal grandfather), whom maternal grandmother noted had not been
involved in Mother’s life. Maternal grandmother also informed the Agency of
her husband (maternal step-grandfather) and Mother’s half-sister (maternal
half-aunt). When asked if there were any other relatives the Agency should
contact, maternal grandmother said no and that they had a small family.
The report also indicated that Mother had identified W.D.’s father by
name but had declined on multiple occasions to provide any additional
identifying information. That limited information was not enough for the
Agency to conduct a parent search for the father. Mother later told the
Agency that she did not recall saying he was the father and did not know who
that person was.
The Agency attached to its court report various documents from
maternal grandmother about Mother’s treatment history, including a
document that provided a phone number for maternal grandfather. The
Agency concedes that it did not contact him.
At a January 2022 hearing, Mother’s counsel informed the court for the
first time that Mother told him “she might have some Navajo ancestry.” The
court then asked maternal grandmother (who was present at the hearing) if
she was aware of any Native American ancestry on Mother’s maternal side of
the family. Maternal grandmother responded, “no Navajo” and “[a]bsolutely
not.” The court then concluded there was no Native American ancestry and
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“no further information available as to any potential information as to Native
American history.”
A few days later, the Agency sent an informal inquiry letter to the
Navajo Nation. The letter identified W.D., Mother, and someone erroneously
designated as W.D.’s “paternal grandfather,”3 and stated that the family was
reporting “possible Navajo heritage through the paternal grandfather’s side
of the family.”
By the time of the contested jurisdiction and disposition hearing, the
Agency had not received a response from the Navajo Nation. At the hearing,
maternal grandmother reiterated that she was not aware of any Native
American history in Mother’s background or maternal grandfather’s
background, and she noted that Mother told her W.D.’s father was Mexican.
After hearing argument, the court sustained the allegations of the
petition under section 300, subdivision (b); declared W.D. a dependent;
removed W.D. from Mother’s custody under section 361, subdivision (c); and
ordered reunification services for Mother. The court found without prejudice
that ICWA does not apply.
Mother appealed, challenging only the court’s initial inquiry finding
under ICWA.
DISCUSSION
Mother argues that the Agency and court failed to comply with ICWA
requirements because there is no evidence that the Agency made ICWA
inquiries of any family members other than Mother and maternal
grandmother. Specifically, Mother contends that the Agency failed to ask
(1) maternal grandfather, (2) maternal step-grandfather (maternal
3 The record indicates that W.D.’s Father and paternal relatives are
unknown.
4
grandmother’s husband, who is not biologically related to Mother), and
(3) maternal half-aunt (for whom Mother contends the Agency could have
potentially obtained contact information from maternal grandmother’s
husband).
The Agency concedes that it failed to satisfy its initial inquiry
obligations under ICWA by not contacting maternal grandfather, and that we
should reverse the court’s ICWA finding and remand. We agree. Substantial
evidence does not support the juvenile court’s findings that the Agency
complied with its inquiry obligations and that ICWA does not apply.
Therefore, we conditionally reverse and remand for the limited purpose of
requiring compliance with ICWA.
A. Applicable Law
Congress enacted ICWA to address concerns regarding the separation
of Indian children from their tribes through adoption or foster care placement
with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Under
California law adopted pursuant to ICWA, the juvenile court and Agency
have an “affirmative and continuing duty to inquire” whether a child “is or
may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah W., at p. 9.) An
“ ‘Indian child’ ” is defined in the same manner as under federal law, i.e., as
“any unmarried person who is under age eighteen and is either (a) a member
of an Indian tribe or (b) is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe[.]” (25 U.S.C. § 1903(4);
accord § 224.1, subd. (a) [adopting the federal definition].)
As outlined by this court in In re D.S. (2020) 46 Cal.App.5th 1041, 1052
(D.S.), “section 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
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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.”
During the first stage of initial inquiry, “[s]ection 224.2, subdivision (b)
specifies that once a child is placed into the temporary custody of a county
welfare department, such as the Agency, the duty to inquire ‘includes, but is
not limited to, 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.’ ” (D.S., supra, 46 Cal.App.5th at pp. 1048–1049.)
ICWA defines “ ‘extended family member’ ” by “the law or custom of the
Indian child’s tribe” or, absent such law or custom, as “a person who has
reached the age of eighteen and who is the Indian 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); § 224.1, subd. (c)
[“ ‘extended family member’ . . . defined as provided in [§] 1903” of ICWA].)
“On appeal, we review the juvenile court’s ICWA findings for
substantial evidence.” (D.S., supra, 46 Cal.App.5th at p. 1051.) However,
where the facts are undisputed, we independently determine whether ICWA’s
requirements have been satisfied. (Ibid.)
B. Analysis
The juvenile court’s finding that ICWA was inapplicable implied that
the court and the Agency fulfilled its inquiry duty. (See In re Austin J. (2020)
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47 Cal.App.5th 870, 885 [a finding that “ICWA does not apply” implies social
workers and court “did not know or have a reason to know the children were
Indian children and that social workers had fulfilled their duty of inquiry”].)
But the record does not support that finding.4
Indeed, the Agency concedes that its initial ICWA inquiry was deficient
because it failed to ask maternal grandfather—for whom it had a telephone
number and name—whether W.D. is or may be an Indian child. We agree.5
Because maternal grandfather qualifies as an extended family member under
ICWA, the Agency was required to ask him about W.D.’s potential Indian
ancestry, and the juvenile court had to ensure this inquiry took place before it
could find ICWA did not apply. (D.S., supra, 46 Cal.App.5th at pp. 1048–
1049.)
We reject, however, Mother’s challenge regarding maternal step-
grandfather and maternal half-aunt. The Agency was not necessarily
obligated to ask these individuals because the definition of “extended family
member” does not include step-grandparents or half-aunts. (See 25 U.S.C.
4 Because we conclude that the initial inquiry was inadequate, we need
not reach Mother’s alternative argument that, even if we found the initial
inquiry to be sufficient, the Agency failed to report on its inquiry and
investigation.
5 Although somewhat unclear, the parties both appear to raise the
sufficiency of a further inquiry. For example, the Agency observes that its
letter to the Navajo Nation erroneously claimed that W.D. might have Navajo
heritage on the paternal side, rather than the maternal one, and that this
must be rectified on remand. Meanwhile, Mother suggests for the first time
in her reply brief that her statement about the potential for W.D.’s Navajo
ancestry raised a “reason to believe” requiring a further inquiry. Because we
conclude that the initial inquiry was insufficient, however, we need not reach
the adequacy of a further inquiry.
7
§ 1903(2); § 224.1, subd. (c) [“ ‘extended family member’ . . . defined as
provided in [§] 1903” of ICWA].)
Because the failure here concerns the Agency’s duty of initial inquiry
under section 224.2, subdivision (b), only state law is involved. Therefore, we
may not reverse unless the error was prejudicial. (In re Benjamin M. (2021)
70 Cal.App.5th 735, 742 (Benjamin).) That is, any error “ ‘must be held
harmless unless the appellant can show a reasonable probability that he or
she would have enjoyed a more favorable result in the absence of the error.’ ”
(In re A.M. (2020) 47 Cal.App.5th 303, 318.)
This district recently set forth a standard for applying the prejudicial
error requirement in ICWA cases: “a court must reverse where the record
demonstrates that the agency has not only failed in its duty of initial inquiry,
but where the record indicates that there was readily obtainable information
that was likely to bear meaningfully upon whether the child is an Indian
child. . . . Under this approach, we require continued inquiry where the
probability of obtaining meaningful information is reasonable in the context
of ICWA.” (Benjamin, supra, 70 Cal.App.5th at p. 744.)
In Benjamin, the appellate court conditionally reversed the juvenile
court’s order because the agency failed to obtain information that was readily
available and “potentially meaningful.” (Benjamin, supra, 70 Cal.App.5th at
p. 744.) There, the agency was not able to locate the father and did not
obtain any information about Indian ancestry from the minor’s paternal side.
(Id. at p. 740.) Although the agency had access to the father’s brother, it
failed to ask him about potential Indian ancestry. (Id. at p. 744.) In
concluding that this error was prejudicial, the appellate court reasoned that
“Father’s brother’s knowledge of his own Indian status would be suggestive of
Father’s status. While we cannot know how Father’s brother would answer
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the inquiry, his answer is likely to bear meaningfully on the determination at
issue about his brother.” (Id. at p. 745.)
Similarly, here, the Agency had access to maternal grandfather but
failed to ask him about potential Indian ancestry. Because maternal
grandfather’s knowledge of his own Indian status is likely to bear
meaningfully on the determination about W.D., the Agency’s failure to make
that inquiry was prejudicial.6
6 As raised by both parties, we also note that an ICWA-020 form is not in
the record, and it appears that the juvenile court never ordered Mother to
complete the form. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
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DISPOSITION
The juvenile court’s jurisdiction and disposition order is conditionally
reversed. The matter is remanded to the juvenile court with directions to
comply with the inquiry provisions of ICWA and section 224.2. If, after
completing its inquiry, neither the Agency nor the juvenile court has reason
to believe or reason to know that W.D. is an Indian child, the orders issued at
the jurisdiction and disposition hearing shall be reinstated. If the Agency or
the juvenile court has reason to believe or reason to know that W.D. is an
Indian child, the juvenile court shall proceed accordingly.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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