In re I.G. CA4/1

Filed 8/18/22 In re I.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re I.G., a Person Coming Under
the Juvenile Court Law.
D080227
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY,
(Super. Ct. No. EJ004712)

Plaintiff and Respondent,

v.

N.W.,

Defendant and Appellant.

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 APPEAL from orders of the Superior Court of San Diego County,
Michael P. Pulos, Judge. Reversed and remanded with directions.

Michelle D. Pena, under appointment by the Court of Appeal, for
Defendant and Appellant.

Lonnie J. Eldridge, County Counsel, Lisa Maldonado, Deputy County
Counsel, for Plaintiff and Respondent.

N.W. (Mother) appeals from the jurisdictional and dispositional orders

in the Welfare and Institutions Code section 3001 dependency proceedings for
her minor daughter, I.G., in which the juvenile court found that the Indian
Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) did not apply to her case.
Mother’s sole contention on appeal is that the San Diego County Health and
Human Services Agency (Agency) did not meet its initial ICWA inquiry duty
under section 224.2 because it did not make reasonable efforts to contact the
maternal grandfather regarding I.G.’s possible Native American heritage.
The Agency concedes that we should conditionally reverse the jurisdictional
and dispositional orders and remand the matter for the limited purpose of
compliance with ICWA and section 224.2. Based on our review of the record,
we agree with Mother and the Agency. Accordingly, we will conditionally
reverse the jurisdictional and dispositional orders and remand the matter
with directions for the limited purpose of compliance with ICWA and section
224.2.

1 All statutory reference are to the Welfare and Institution Code unless
otherwise specified.
2
 FACTUAL AND PROCEDURAL BACKGROUND2

On November 30, 2021, the Agency filed a section 300, subdivision
(b)(1) petition for then two-year-old I.G., alleging that she was at substantial
risk of suffering serious physical harm or illness as a result of the willful or
negligent failure of her parent to supervise or protect her adequately from the
conduct of a custodian with whom she had been left. In its detention report,
the Agency stated that both Mother and T.M., I.G.’s father (Father), denied
that they had any Native American heritage. The Agency stated its belief
that ICWA did not apply to I.G.’s case and recommended that the juvenile
court make such a finding.

At the detention hearing on December 1, the court inquired about I.G.’s
possible Native American heritage. Father’s counsel represented that Father
would testify that he did not have any Native American heritage. Mother’s
counsel represented that Mother reported that she had Native American
heritage, indicating that the maternal grandmother had told Mother about
such heritage when she was very young. Her counsel provided the court and
the Agency with the maternal grandmother’s name and phone number and
identified the tribe as the Cherokee Wolf Clan. The court deferred its
decision on the application of ICWA to I.G.’s case, pending an inquiry by the
Agency into her Native American heritage. The court then found the Agency
had made a prima facie showing in support of its petition and detained I.G. in
out-of-home care.

2 Because Mother’s sole contention on appeal challenges the compliance
by the Agency with its initial ICWA inquiry duties, we limit our discussion of
the facts and procedural history to information necessary to determine that
issue.
3
 In its jurisdiction and disposition report, the Agency stated that it had
contacted the maternal grandmother, who reported that she had lived with
the Cherokee Wolf Clan on a reservation in Yuma, Tennessee. The maternal
grandmother reported that Mother and another daughter had attended
schools on the reservation. She stated that they were recognized by the State
of Tennessee as part of the Cherokee Wolf Clan and she was attempting to
get her family enrolled through the Apache tribe. Mother told an Agency
social worker that she had been raised by her mother (i.e., the maternal
grandmother) and her stepfather (i.e., the maternal step-grandfather), and
she had only recently started to rebuild her relationship with her biological
father (i.e., I.G.’s biological maternal grandfather). The maternal
grandfather occasionally called Mother. Mother gave the social worker
several character letters, including a letter from the maternal grandfather
that was attached to the report. The Agency recommended that the court
find that there was reason to believe I.G. was an Indian child and order it to
conduct further inquiry regarding I.G.’s possible status as an Indian child.

The Agency stated that it had sent certified letters and e-mails to 11
federally recognized Cherokee and Apache tribes inquiring about I.G.’s
possible status as an Indian child. The Agency subsequently received
responses from many of those tribes, each of which stated that I.G. was not
an enrolled member or eligible for enrollment.

At the January 2022 pretrial status conference, the Agency’s counsel
informed the court about its ICWA inquiries and stated its belief that
sufficient inquiry of federally recognized tribes had been made regarding
I.G.’s possible status as an Indian child. The court deferred making any
findings on the application of ICWA pending further responses from the
tribes contacted by the Agency.

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 In a February addendum report, the Agency stated that its ICWA
specialist was unable to locate the Cherokee Wolf Clan as a tribe included in
the federal registry and concluded that it therefore did not meet the criteria
for ICWA notice. The Agency learned that the Cherokee Wolf Clan was part
of the Cherokee Nation consortium.

At the contested jurisdiction and disposition hearing on February 24,
the court found that the petition’s allegations were true, declared I.G. a
dependent of the court, removed her from Mother’s custody, and placed her in
foster care. The court further found that the Agency had made a reasonable
inquiry to determine whether I.G. is or may be an Indian child under ICWA.
Based on the Agency’s inquiry, the court found there was no reason to know
that I.G. is an Indian child. The court therefore found, without prejudice,
that ICWA did not apply to I.G.’s case.

On March 10, Mother filed a notice of appeal, challenging the February

24 jurisdictional and dispositional orders.3 On June 14, the Agency filed a
combined motion to augment the record and motion to dismiss the appeal
based on mootness. On June 24, we issued an order stating that this court
would consider those motions concurrently with this appeal.

DISCUSSION

I

ICWA Inquiry Duties

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 (Isaiah W.).) ICWA

3 Father has not appealed the jurisdictional and dispositional orders.
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provides: “In 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” of the pending proceedings and their right to intervene. (25 U.S.C.
§ 1912(a); see also, Isaiah W., supra, at p. 8.) California law also requires
such notice. (§ 224.3, subd. (a) [“If a court [or] a social worker . . . knows or
has reason to know . . . that an Indian child is involved, notice pursuant to
[ICWA] shall be provided for hearings that may culminate in an order for
foster care placement, termination of parental rights, preadoptive placement,
or adoptive placement . . . .”].) Both ICWA and California law define an
“Indian child” as a child who is either a member of an Indian tribe or 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); § 224.1, subds. (a), (b).)

Effective January 1, 2019, sections 224.2 and 224.3 were enacted,
setting forth California’s current ICWA inquiry and notice requirements for
juvenile dependency cases. (Stats. 2018, ch. 833, §§ 5, 7.) Under sections
224.2 and 224.3, the Agency and the juvenile court are generally obligated to:
(1) conduct an initial inquiry regarding whether there is a reason to believe
the child is an Indian child; (2) if there is, then further inquire whether there
is a reason to know the child is an Indian child; and (3) if there is, then
provide ICWA notice to allow the tribe to make a determination regarding
the child’s tribal membership. (See In re D.S. (2020) 46 Cal.App.5th 1041,
1048-1052; In re Austin J. (2020) 47 Cal.App.5th 870, 882-885.)

Specifically, section 224.2, subdivision (a), imposes on the juvenile court
and the Agency “an affirmative and continuing duty to inquire whether a
child for whom a petition under Section 300 . . . may be, or has been filed, is

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or may be an Indian child[.]” (Italics added.) Section 224.2, subdivision (b),
establishes the Agency’s duty of initial inquiry, providing:

“If a child is placed into the temporary custody of [the
Agency] . . . , [the Agency] . . . has a duty to inquire whether
that child is an Indian child. Inquiry 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
and where the child, the parents, or Indian custodian is
domiciled.” (Italics added.)

Section 224.2, subdivision (e), imposes a duty of further inquiry, providing:
“If the court [or] social worker . . . has reason to believe that an Indian child
is involved in a proceeding, but does not have sufficient information to
determine that there is a reason to know that the child is an Indian child, the
court [or] social worker . . . shall make further inquiry regarding the possible
Indian status of the child, and shall make that inquiry as soon as
practicable.” Before the juvenile court can find that ICWA does not apply to a
child’s case, it must make a finding that “due diligence as required in this
section [has] been conducted.” (§ 224.2, subd. (i)(2).)

We review a juvenile court’s findings that the Agency has made
reasonable inquiries regarding a child’s possible Native American heritage
under ICWA and that the Agency has complied with ICWA's notice
requirements, or that no such notice is required, for substantial evidence. (In
re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)

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 II

Noncompliance with ICWA Initial Inquiry Duties

Mother contends, and the Agency concedes, that substantial evidence
does not support the juvenile court’s finding that ICWA does not apply to
I.G.’s case and, in particular, that substantial evidence does not support its
finding that the Agency complied with its initial inquiry obligations under
section 224.2. We agree.

Mother asserts that the Agency’s initial ICWA inquiry was deficient
because it failed to ask I.G.’s maternal grandfather about the possibility of
her Native American heritage, despite the fact that the Agency had received
from Mother a copy of a letter from him in support of Mother in this case.
The record does not show that the Agency contacted the maternal
grandfather, much less asked him about any possible Native American
heritage. The Agency’s duty to make an initial inquiry into I.G.’s possible
Native American heritage applies to “extended family members,” which term
includes the maternal grandfather. (§ 224.2, subd. (b).) The Agency
concedes, and we agree, it failed to comply with its initial ICWA inquiry duty
in this case.

Because substantial evidence does not support the juvenile court’s
findings at the jurisdiction and disposition hearing that ICWA did not apply
to I.G.’s case and that the Agency complied with its initial ICWA inquiry
obligations regarding I.G.’s possible Native American heritage, we conclude
the court erred by finding at that hearing that ICWA did not apply to her
case.

We further conclude that the Agency inquiry error is prejudicial and
requires conditional reversal of the jurisdictional and dispositional orders

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with remand of the matter for the limited purpose of compliance with the
inquiry provisions of ICWA and section 224.2. Because the failures in this
case concerned the Agency’s state statutory duties to inquire regarding I.G.’s
possible Native American heritage, we must reverse the orders if the error is
prejudicial under the state law standard for prejudicial error. (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.”]; People
v. Watson (1956) 46 Cal.2d 818, 836 [miscarriage of justice may be found
when court concludes it is reasonably probable result more favorable to
appellant would have been reached in absence of error].) As Mother notes,
there currently is a split of authority among the California courts of appeal
regarding how to apply this general state law standard for prejudicial error to
juvenile dependency cases in which agencies and/or juvenile courts have
failed to satisfy their statutory duties of inquiry regarding a child’s possible
Native American heritage. (See, e.g., In re A.R. (2022) 77 Cal.App.5th 197,
201, 206-207 [agency’s failure to conduct ICWA inquiry is per se reversible
error and miscarriage of justice]; In re J.C. (2022) 77 Cal.App.5th 70, 80
[reversal and remand required because agency’s failure to make adequate
inquiry made it impossible for parent to show prejudice]; In re H.V. (2022) 75
Cal.App.5th 433, 438 [same]; In re Y.W. (2021) 70 Cal.App.5th 542, 556
[same]; In re N.G. (2018) 27 Cal.App.5th 474, 484 [same]; cf. In re Antonio R.
(2022) 76 Cal.App.5th 421, 435 (Antonio R.) [error is prejudicial if
information that could have been obtained from extended family members is
likely to be meaningful in determining whether child is Indian child]; In re
Benjamin M. (2021) 70 Cal.App.5th 735, 744-745 (Benjamin M.) [reversal
required where record indicates there was readily obtainable information

9
that was likely to bear meaningfully on question of whether child is Indian
child]; In re Dezi C. (2022) 79 Cal.App.5th 769, 774, 779 [failure to comply
with duty of initial inquiry is harmless error unless record and any proffer by
appellant suggest reason to believe child may be Indian child]; In re A.C.
(2021) 65 Cal.App.5th 1060, 1065, 1071 [failure to comply with inquiry duty
is harmless error unless appellant makes offer of proof or other assertion of
Native American heritage]; In re Rebecca R. (2006) 143 Cal.App.4th 1426,
1430-1431 [unless appellant makes representation of Indian heritage, there
can be no prejudice and no miscarriage of justice requiring reversal].) The
California Supreme Court has yet to address this question or otherwise
resolve the current split of authority.

However, for purposes of our disposition of this appeal, we need not,
and do not, weigh in on this highly disputed question of the proper standard
for prejudicial error in cases in which agencies and/or juvenile courts have
failed to satisfy their statutory duties of initial and continuing inquiry under
section 224.2. Rather, we conclude that regardless of the particular standard
for prejudicial error applied, there has been a miscarriage of justice in the
circumstances of this case based on the failures of the Agency to satisfy its
statutory duties of initial and continuing inquiry. (Cal. Const., art. VI, § 13.)
For example, if we were to apply the apparent “middle ground” standard set
forth in Antonio R. and Benjamin M., prejudicial error would clearly be
shown. Because the Agency did not satisfy its initial inquiry duty, we cannot
know what information such inquiry might have revealed regarding I.G.’s
possible Native American heritage. Based on its failure to reasonably inquire
of I.G.’s maternal grandfather (for whom it had contact information)
regarding her possible Native American heritage, we must presume that
there was readily obtainable information from him that was likely to bear

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meaningfully on the question of whether there is reason to believe that she is
an Indian child under ICWA. (Cf. Antonio R., supra, 76 Cal.App.5th at p. 435
[where agency fails to discharge its initial duty of inquiry and juvenile court
finds ICWA does not apply, “the error is in most circumstances . . . prejudicial
and reversible”]; Benjamin M., supra, 70 Cal.App.5th at pp. 745-746.)

III

Motion to Augment and Motion to Dismiss Appeal

On June 14, 2022, the Agency filed combined motions to augment the
record and dismiss the appeal as moot. In its motion to augment, the Agency
asks that we augment the record with two documents: (1) Exhibit A, which is
its addendum report filed with the juvenile court on June 6, 2022; and (2)
Exhibit B, which is the juvenile court’s minute order for its June 7, 2022
hearing. The Agency argues that augmentation of the record with
information regarding events occurring after the February 24, 2022
jurisdictional and dispositional orders challenged on appeal is appropriate
and would show that it has made additional inquiry regarding whether I.G.
may be an Indian child. In particular, the Agency represents that the
information would show that it has attempted, albeit unsuccessfully, to
contact I.G.’s maternal grandfather. Exhibit A attached to the motion to
augment indicates that an Agency social worker made an attempt on June 3,
2022, to reach the maternal grandfather, but was unable to leave a voicemail
message because the phone number’s voicemail had not been set up. Exhibit
A also indicates the social worker made a similar unsuccessful attempt on
June 6, 2022 to reach the maternal grandfather. Exhibit B attached to the
motion to augment is a copy of the minute order for a special hearing on June
7, 2022 indicating that the juvenile court granted the Agency’s unopposed

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request to continue the matter until July 5, 2022 to allow further ICWA
inquiry to be made.

In her opposition to the motion to augment, Mother argues that the
Agency’s motion to augment the record was untimely filed and improperly
seeks to augment the record with new evidence occurring after the February
24, 2022 jurisdictional and dispositional orders that are challenged on appeal.

In an appeal challenging an order in a juvenile dependency proceeding
in the San Diego County Superior Court, a respondent “must serve and file
any . . . motion [to augment the record] . . . within 15 days after the

appellant’s opening brief is filed.” (Cal. Rules of Court, rule 8.416(d)(2).4) On
May 13, 2022, Mother filed her appellant’s opening brief. Accordingly, the
Agency had 15 days thereafter (i.e., until Tuesday, May 31, 2022 as extended
for the Memorial Day holiday weekend) to file a motion to augment the
record. (Rule 8.416(d)(2).) Because the Agency did not file its motion to
augment the record until June 14, 2022, we may deny its motion as untimely
filed, absent any good cause shown for its untimeliness. The Agency’s motion
to augment does not show any good cause for its untimeliness. Accordingly,
we deny its motion to augment. (Rule 8.416(d)(2).)

Assuming arguendo that the Agency’s motion to augment was timely
filed or it had shown good cause for its untimeliness, we nevertheless would
deny that motion because it seeks to augment the record with information
that occurred after the February 24, 2022 jurisdictional and dispositional
orders being challenged by Mother on appeal. (See, e.g., In re Zeth S. (2003)
31 Cal.4th 396, 405 [absent exceptional circumstances, appellate court should
not consider postjudgment evidence]; In re Heather B. (2002) 98 Cal.App.4th

4 All further references to rules are to the California Rules of Court.
12
11, 13 [appeal reviews correctness of judgment or order as of time of its
rendition upon record of matters which were before juvenile court for its
consideration].) “Augmentation does not function to supplement the record
with materials not before the trial court. [Citations.] Rather, normally ‘when
reviewing the correctness of a trial court’s judgment, an appellate court will
consider only matters which were part of the record at the time the judgment
[or order] was entered.’ [Citation.]” (Vons Companies, Inc. v. Seabest Foods,
Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) “The augmentation procedure cannot
be used to bring up matters occurring during the pendency of the appeal
because those matters are outside the superior court record. [Citation.]” (In
re K.M. (2015) 242 Cal.App.4th 450, 456 (K.M.).) Because the Agency’s
motion seeks to augment the record with information that arose after the
February 24, 2022 orders being appealed, we would deny its motion

regardless of its untimeliness.5 (Cf. K.M., supra, at p. 459 [denied motion to
augment record with new postjudgment evidence].) In re Allison B. (2022) 79
Cal.App.5th 214, cited by the Agency, is factually and procedurally inapposite
to this case and does not persuade us to reach a contrary conclusion.

The Agency also filed a motion to dismiss the instant appeal based on
mootness, citing the post-February 24, 2022 order information that it sought

5 The Agency’s motion to augment does not alternatively request that we
consider its motion to be a request for judicial notice. Nevertheless,
assuming arguendo the Agency had made such a request, we would deny its
request to take judicial notice of Exhibits A and B, which consist solely of
information arising after the orders being appealed and are therefore
irrelevant to the sole contention on appeal (i.e., whether the juvenile court
erred by finding at the February 24, 2022 jurisdictional and dispositional
hearing that the Agency had made reasonable ICWA inquiry regarding
whether I.G. was an Indian child and that, based thereon, ICWA did not
apply to her case).
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to have augmented as part of the record as discussed above (i.e., Exhibits A &
B), which information it argued would show that it had complied with its
ICWA inquiry duties. However, because we have denied the Agency’s motion
to augment the record with that information (and any alternative request for
judicial notice of that information), we conclude there is no information in the
record showing that the instant appeal is moot or that we cannot grant

effective relief in this case.6 Accordingly, we deny the Agency’s motion to
dismiss the appeal.

DISPOSITION

The jurisdictional and dispositional orders issued on February 24, 2022
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 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 inquiry satisfied
its statutory duty of inquiry. 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 I.G. is an Indian child, the orders issued on February 24, 2022,
shall be reinstated. Alternatively, if after completing the inquiry the Agency

6 In any event, assuming arguendo that Exhibits A and B were properly
augmented in the record or we were to take judicial notice of them, we would
conclude that those exhibits do not necessarily show, as the Agency asserts,
that it has fully complied with its ICWA inquiry duties. Rather, it appears
that the Agency’s social worker, at most, made two unsuccessful attempts to
contact the maternal grandfather.
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or the juvenile court has reason to believe that I.G. is an Indian child, the
court shall proceed accordingly.

O'ROURKE, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.

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