In re D.B. CA4/1

Filed 7/28/22 In re D.B. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re D.B., a Person Coming Under
the Juvenile Court Law.
D080258
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. J513817B)
Petitioner and Respondent,

v.

J.J.

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County,
Michael P. Pulos, Judge. Affirmed in part, reversed in part, and remanded
with directions.
Michelle D. Peña, 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 Maldonado, Deputy County Counsel for Plaintiff
and Respondent.
 I.
INTRODUCTION
J.J. (Mother) appeals from jurisdictional and dispositional orders in
dependency proceedings for her minor daughter, D.B. The sole issue on
appeal is whether the juvenile court erred by finding that the Indian Child
Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) did not apply, before the San
Diego County Health and Human Services Agency (Agency) completed its

initial inquiry under ICWA and Welfare and Institutions Code section 224.2.1
We conclude that the court did err in this regard. We reverse the court’s
ICWA finding, remand for the limited purpose of ICWA compliance, and
otherwise affirm the jurisdictional and dispositional orders.
II.

FACTUAL AND PROCEDURAL BACKGROUND2
In November 2021, when D.B. was six years old, Father was arrested
with drugs while she was riding in his car. Mother could not be reached, so
D.B. was temporarily placed with Father’s sister, Margaret (Maggie) B. The
Agency filed a dependency petition on D.B.’s behalf, which alleged that
Father admitted using drugs while acting as her caregiver, Mother knew he
cared for D.B. while under the influence of non-prescribed drugs (later
amended by the juvenile court to say she knew or should have known), and
Mother had a long history of substance abuse.

1 Further statutory references are to the Welfare and Institutions Code
unless noted.

2 Because Mother’s only contention on appeal concerns ICWA, we limit
our factual background accordingly. D.B.’s father, M.B. (Father), is not a
party to this appeal, and we discuss him as needed.

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 The Indian Child Inquiry Attachment (ICWA 010(A)) to the petition,
and the detention report, indicated that Mother was asked about Native
American heritage and denied it. The detention report further indicated that
Father had not yet been questioned, as he was incarcerated and unavailable
for an interview. At the detention hearing, Mother’s counsel confirmed that
she denied Native American ancestry. The juvenile court deferred ruling on
ICWA to the next court date, “pending [Father’s] position.”
The Agency provided its jurisdiction and disposition report in
December 2021. Mother reported that her older child (D.B.’s half-brother)
was living with her parents in Mexico. The social worker again asked Mother
about Native American heritage, which she denied. The social worker was
also able to ask Father, who likewise denied such heritage. The report
further reflected that, by this point, the social worker had met or spoken with
paternal aunt Maggie B., paternal uncle Dino B., and maternal aunt Brenda
J., but had not asked any of them about Native American heritage. Maggie
B. did state that D.B. would call the paternal grandmother, suggesting that
the family was in contact with her. The Agency filed two subsequent
addendum reports, and neither addressed ICWA.
At the initial jurisdiction and disposition hearing in December 2021,
the juvenile court set the matter for a contested hearing at Mother’s request,
and did not address ICWA. The pretrial status conference hearing was in
January 2022. County counsel noted that ICWA was still pending, and
Father’s counsel stated that Father denied Native American ancestry. The
court found without prejudice that ICWA did not apply.
In March 2022, the juvenile court held the contested jurisdiction and
disposition hearing. According to the reporter’s transcript and minute order,
Mother, Mother’s support person Susie S., Father, and the social worker

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appeared in person, and paternal aunt Maggie B. and D.B. appeared by
telephone. The court asked Mother’s counsel if Susie S. was a relative, and
counsel said she was a family friend.
The juvenile court began by explaining that it had made an ICWA
determination based on the parents’ representations, and that it was asking
them again if they had Native American heritage. Mother and Father each
responded “No.” The court asked Maggie B. as well, and she said “No.” The
court then stated, “I’ll note for the record that we do have some other
relatives that pop up throughout the reports. We have a maternal aunt. We
also have paternal aunts and uncles. I think whenever we have contact with
them we should have the [A]gency just ask that question. I know it’s not the
first thing that comes to your mind, because there is other things going on
obviously, but just so we make sure. Given the information that we have and
the inquiry that has been done, the court is comfortable going forward today
unless anyone disagrees.” None of the attorneys objected. The court
reiterated in its minute order that it found without prejudice that ICWA did
not apply.
The juvenile court made a true finding on the petition allegations,
declared D.B. a dependent child, and removed her from parental custody.
Toward the end of the hearing, the court permitted an attendee to speak.
She was identified in the hearing transcript as “Grandmother,” but did not
identify herself as such; as we explain post, this appeared to be Mother’s
support person, Susie S. The attendee said that although she was “just a side
person,” she “want[ed] to say something because of how [she] [had] seen
[D.B.] with her mother.”
Mother timely appealed from the jurisdiction and disposition orders.

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 III.
DISCUSSION
Mother argues that the juvenile court erroneously found ICWA
inapplicable, before the Agency completed its initial inquiry. We conclude
that the ICWA finding must be reversed and the case remanded for ICWA
compliance, and otherwise affirm the jurisdictional and dispositional orders.
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 (Isaiah W.).)
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 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.” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052 (D.S.).)
“Section 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,

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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].)
We review ICWA findings for substantial evidence, but “where the facts
are undisputed, we independently determine whether ICWA’s requirements
have been satisfied.” (D.S., supra, 46 Cal.App.5th at p. 1051.)
B. Analysis
A juvenile court finding that ICWA is inapplicable generally implies
that the Agency has fulfilled its inquiry duty. (See In re Austin J. (2020)
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”].)
Here, however, as Mother argues, the Agency acknowledges, and the juvenile
court itself seemingly recognized, the initial inquiry of available relatives
remained incomplete when the court found ICWA inapplicable. We conclude
that substantial evidence does not support the court’s ICWA finding. (D.S.,
supra, 46 Cal.App.5th at p. 1051.) The parties remain in disagreement over
the scope of the remaining inquiry, and the appropriate remedy. We address
these issues in turn.

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 First, Mother contends that the Agency failed to ask five available
relatives: maternal aunt Brenda J., paternal uncle Dino B., paternal aunt
Maggie B., and the maternal grandparents (claiming that Mother’s son was
with them, and that the maternal grandmother could have been asked at the
jurisdiction and disposition hearing). The Agency argues that only inquiry of
Brenda J. and Dino B. remains, as the ICWA inquiry of Maggie B. was
completed; it had no contact information for the maternal grandparents; and
the grandmother was not at the hearing.
With respect to the aunts and uncles, we agree that the initial inquiry
remains incomplete as to Brenda J. and Dino B., but conclude that it has
been satisfied as to Maggie B. Aunts and uncles are extended family
members within the meaning of ICWA. (25 U.S.C. § 1903(2); § 224.1, subd.
(c).) The Agency was required to ask them about Native American 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; see
In re Josiah T. (2021) 71 Cal.App.5th 388, 403-404 (Josiah T.) [agency’s
“initial inquiry was inadequate,” where “[d]espite having four paternal family
members . . . potentially available to consult about American Indian
ancestry,” agency did not ask paternal grandmother until 18 months after the
petition or other paternal relatives until later].) Although the Agency also
did not ask Maggie B., she was present at the jurisdiction and disposition
hearing, the juvenile court inquired whether she had Native American
heritage, and she said no. Thus, no further inquiry of Maggie B. is needed.
We also agree that the initial inquiry has not been satisfied for D.B.’s
grandparents, but not for all of the reasons urged by Mother. When viewed
in context, it appears that the attendee who spoke at the jurisdiction and
disposition hearing was Mother’s support person and family friend, Susie S.,

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and that she was misidentified in the reporter’s transcript as “Grandmother.”
Both the transcript and minute order identified Susie S. as being in
attendance; neither stated that a grandmother was there; and the juvenile
court confirmed that Susie S. was not a relative. The attendee described
herself as a “side person,” and never said that she was D.B.’s grandmother.
In any event, the record still reflects that the Agency did not complete its
initial inquiry as to potentially available grandparents. (D.S., supra,
46 Cal.App.5th at pp. 1048-1049; see Josiah T., supra, 71 Cal.App.5th at
pp. 403-404.) Mother reported that her son lived with her parents in Mexico,
so she might have contact information for them. Similarly, Maggie B. said
D.B. called the paternal grandmother, suggesting the family had contact with
her. Yet, there is no indication that the Agency requested contact
information for the maternal grandparents or paternal grandparents, or
made efforts to reach them.
Second, the parties disagree over the proper remedy here. Mother
argues that the ICWA inquiry errors were prejudicial and require conditional
reversal. The Agency appears to dispute that the errors were prejudicial, but
agrees that it is appropriate for the Agency to complete its ICWA inquiry.
We conclude that the errors were prejudicial, and a limited remand is
necessary.
There is a split of authority in the California courts of appeal as to the
proper standard for prejudicial error under ICWA. (See, e.g., In re Dezi C.
(2022) 79 Cal.App.5th 769, 777-779 [describing three rules for “assessing
whether a defective initial inquiry is harmless” (“ ‘automatic reversal,’ ”
“ ‘readily obtainable information,’ ” and “ ‘presumptive affirmance’ ”) and
proposing a fourth (“ ‘reason to believe’ ”)].) Here, we need not and do not
take a position on that standard, because the Agency’s initial inquiry was

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clearly inadequate as to multiple family members. Even the juvenile court
seemingly recognized as much, when it stated there were “other relatives” in
the reports and “whenever we have contact with them,” the Agency should
“ask . . . so we make sure”—yet proceeded without these answers and
reiterated the premature ICWA finding in its minute order. These efforts
were a fundamental departure from the “ ‘affirmative and continuing duty to
inquire’ ” under ICWA, and a miscarriage of justice. (Isaiah W., supra,
1 Cal.5th at p. 9; Cal. Const., art. VI, § 13 [“No judgment shall be set
aside . . . unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.”].)
Asking extended family members not only is required (§ 224.2, subd.
(b)), it also serves a meaningful purpose—“to obtain information the parent
may not have.” (In re Y.W. (2021) 70 Cal.App.5th 542, 556; see In re T.G.
(2020) 58 Cal.App.5th 275, 295 [“General information from the family about
its ancestry frequently provides the only available basis to believe an Indian
child may be involved.”]; In re Rylei S. (July 18, 2022, B316877)
___ Cal.App.5th ___ [2022 Cal.App. Lexis 627 at *18] [“ ‘When parents are the
sole target of the initial inquiry, it should be understood that there are a
variety of reasons why relying on the parents does not necessarily protect the
child’s best interests, or the rights of the tribe. Parents may simply not have
that information, or may possess only vague or ambiguous information. [¶]
The parents or Indian custodian may be fearful to self-identify, and social
workers are ill-equipped to overcome that by explaining the rights a parent or
Indian custodian has under the law. Parents may even wish to avoid the
tribe’s participation or assumption of jurisdiction,’ ” citing Cal. ICWA
Compliance Task Force, Rep. to Cal. Atty. Gen.’s Bur. of Children's Justice

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(2017) p. 28].) Nor are we asking the Agency to “ ‘cast about’ for investigative
leads.” (In re A.M. (2020) 47 Cal.App.5th 303, 323.) An aunt and uncle were

available, and contact details could be pursued for the grandparents.3
On this record, we must reverse the juvenile court’s ICWA finding and
remand for compliance with ICWA. Because Mother does not contest the
jurisdiction and disposition orders on any other grounds, we otherwise affirm
these orders. (See In re Damian C. (2009) 178 Cal.App.4th 192, 199-200; In
re Kadence P. (2015) 241 Cal.App.4th 1376, 1389.)
DISPOSITION
The juvenile court’s ICWA finding is reversed, and the jurisdictional
and dispositional orders are otherwise affirmed. The matter is remanded to
the juvenile court with directions to vacate its finding that ICWA does not
apply and to instruct the Agency to complete its ICWA inquiry. If the Agency
or the juvenile court has reason to believe that D.B. is an Indian child, the
juvenile court shall proceed appropriately.
BUCHANAN, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.

3 Accordingly, we reject the Agency’s suggestion that because both
parents denied Native American heritage (unlike in Benjamin M. (2021)
70 Cal.App.5th 735, 744, where the father’s whereabouts were unknown), the
relatives would be unlikely to have new information.

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