Filed 9/2/22 In re J.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.M., a Person Coming Under
the Juvenile Court Law.
IMPERIAL COUNTY D080007
DEPARTMENT OF SOCIAL
SERVICES,
(Super. Ct. No. JJP000771)
Plaintiff and Respondent,
v.
I.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County,
Marco D. Nunez, Judge. Conditionally reversed and remanded with
directions.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for
Defendant and Appellant.
Veronica A. Henderson, Office of County Counsel, for Plaintiff and
Respondent.
I.M. (Mother) appeals from the juvenile court’s order terminating her
parental rights over J.M. pursuant to Welfare and Institutions Code section
366.26.1 Mother argues the Imperial County Department of Social Services
(Department) and the juvenile court did not comply with their initial inquiry
duties under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA)
and section 224.2. Mother also argues the Department failed in its duty to
report its inquiry efforts to the juvenile court. We disagree that the
Department failed to report on its inquiry efforts. However, we conclude the
Department and the juvenile court failed to satisfy their initial inquiry
obligations. We conditionally reverse and remand for the limited purpose of
ensuring compliance with ICWA and section 224.2.
FACTUAL AND PROCEDURAL BACKGROUND2
The Department initiated this dependency proceeding under section
300, subdivision (b)(1) on behalf of J.M. in February 2020, alleging there was
a substantial risk J.M. would suffer serious physical harm or illness based on
Mother’s failure to provide adequate supervision or protection, and regular
care due to illness, developmental disability, or substance abuse. The
Department alleged Mother tested positive for amphetamines and
cannabinoids, and admitted consuming methamphetamine while pregnant
with J.M. The Department further alleged J.M. tested positive for
phencyclidine, amphetamines, and methamphetamine the day after he was
born.
1 All statutory references are to the Welfare and Institutions Code unless
otherwise specified.
2 In light of the limited scope of this appeal, we provide an abbreviated
summary of the dependency proceedings focused on the facts relevant to the
issues on appeal.
2
In its February 20, 2020 detention report, the Department reported
that J.M. was removed from Mother and placed with father J.D. (Father) on
February 14, 2020.3 The Department also reported that on February 11,
2020, both Mother and Father informed a social worker that the family does
not have any Indian ancestry. It also reported that a social worker spoke to
maternal aunt M.M. about placement for J.M., to which M.M. agreed.
Mother and Father appeared at the detention hearing on February 20,
2020. That same day, both Mother and Father completed ICWA-020
Parental Notification of Indian Status forms stating they had no Indian
ancestry. The court did not ask Mother and Father in court whether they
know or have reason to know J.M. is an Indian child, nor did the court
instruct Mother and Father to inform the court if they subsequently receive
information that provides reason to know J.M. is an Indian child. The court
found that J.M. does not come under the provisions of ICWA.
In its March 18, 2020 jurisdiction report, the Department stated that
on March 12, 2020, Father again denied having any Indian ancestry. Mother
and Father appeared at the jurisdiction hearing, however, the court did not
make any ICWA inquiry. The court set the matter for a pre-trial hearing.
On April 13, 2020, the Department filed an amended petition under
section 300, subdivision (b)(1), adding allegations that Father tested positive
for methamphetamine and amphetamine in March 2020. The Department
also alleged Father admitted to consuming up to eight cans of beer every day
while Father’s 17-year-old child K.D. (J.M.’s half-sibling) supervises J.M.
Additionally, K.D. disclosed to a social worker that she had requested
behavioral services for “ ‘stress, depression, and anxiety,’ ” and that she
informed Father of her behavioral health concerns and needs. Father had
3 Father is not a party to this appeal.
3
nonetheless left J.M. in K.D.’s care. Father also failed to acquire medical
coverage for J.M. and missed two behavioral health evaluations for J.M. due
to the lack of medical coverage. Finally, a social worker observed J.M. to be
in “filthy clothes” with urine stains, an “extremely soiled diaper,” and dried
urine on J.M.’s inner thighs.
In its April 14, 2020 detention report, the Department reported that
J.M. was removed from Father’s custody and placed in the Betty Jo McNeece
Receiving Home on April 9, 2020. The Department also reported that on
April 13, 2020, Mother again denied having any Indian ancestry.
In its May 13, 2020 jurisdiction report, the Department reported that
J.M. was placed with maternal aunt, M.M. on April 21, 2020.
In its June 10, 2020 jurisdiction and disposition report, the Department
reported that it had contacted two of J.M.’s maternal aunts, M.M. (with
whom J.M. was placed) and G.P. in February 2020. The Department did not
report making any ICWA inquiries of M.M. or G.P.
At the June 15, 2020 jurisdiction and disposition hearing, Father’s
counsel informed the court that she “lost track” of Father, Father was not
answering her phone calls, Father’s phone goes straight to voicemail, and
Father stopped attending visits. At the continued hearing on June 17, 2020,
Father’s counsel informed the court that she was still unable to contact
Father, but a proof of service confirmed that he was served with the
jurisdiction and disposition report. Mother’s and Father’s counsel both
submitted on the report. The court declared J.M. a dependent, removed him
from Mother’s and Father’s custody, and ordered reunification services for
Mother and Father. J.M. was ordered to remain placed with maternal aunt
M.M.
4
After several continuances, the six-month review hearing occurred on
March 1, 2021, at which time the court terminated reunification services and
scheduled a section 366.26 hearing.
Father and maternal aunt M.M. appeared at the scheduled section
366.26 hearing on July 7, 2021. The court did not make any ICWA inquiries.
The court continued the hearing to allow time to review a section 388 petition
filed by Mother.
At the continued hearing on August 25, 2021, the Department informed
the court that it lost contact with Mother and the court granted the
Department’s motion to allow service on Mother’s counsel. The court again
continued the hearing under section 366.26 and for Mother’s section 388
petition.
On November 15, 2021, Mother’s counsel informed the court that he did
not know Mother’s whereabouts. The court made a good notice finding for
Mother and Father and continued the hearing.
At the next hearing on December 13, 2021, Mother’s counsel stated
there was no justification to proceed with Mother’s section 388 petition. The
court took the section 388 petition off calendar and continued the section
366.26 hearing.
The court terminated Mother’s and Father’s parental rights on
January 24, 2022.
DISCUSSION
Mother argues the Department and the court did not satisfy their
initial inquiry obligations under ICWA. She also argues the Department
failed to satisfy its obligation to report on its inquiry efforts.
5
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
Department 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.) 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, Welf. & Inst. Code, § 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 Department’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 Department ‘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.”
“On appeal, we review the juvenile court’s ICWA findings for
substantial evidence.” (D.S., supra, 46 Cal.App.5th at p. 1051.) However,
6
where the facts are undisputed, we independently determine whether ICWA’s
requirements have been satisfied. (Ibid.)
B. ICWA Inquiry Duties
Mother argues the Department failed to ask extended family members
about J.M.’s potential Indian ancestry. She also argues the juvenile court
erred in finding that J.M. did not come under the provisions of ICWA at the
February 20, 20204 detention hearing without making an inquiry of Mother
and Father while they were present at the hearing.5 We agree.
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 [Department], 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
4 In her opening brief, Mother states that the juvenile court made this
finding at a February 10, 2020 hearing. This date appears to be a
typographical error where the court made this finding at the February 20,
2020 detention hearing and no hearing occurred on February 10, 2020.
5 To the extent Mother’s notice of appeal expressly challenged only the
January 24, 2022 order terminating Mother’s parental rights in which the
juvenile court did not make any ICWA finding, we construe her appeal as
challenging both the February 20, 2020 detention order in which the court
expressly found ICWA did not apply as well as the January 24, 2022 order
terminating parental rights in which the court impliedly found ICWA
continued to not apply, given the affirmative and continuing duties of the
Department and juvenile court to inquire regarding J.M.’s possible Indian
ancestry. (§ 224.2, subd. (a); see Isaiah W., supra, 1 Cal.5th at p. 15 [because
of court’s affirmative and continuing duty, parent may challenge order
terminating parental rights although parent did not appeal prior
dispositional order in which court found ICWA did not apply; court’s
termination order “necessarily subsumed a present determination of ICWA’s
inapplicability”].)
7
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); Welf. & Inst.
Code, § 224.1, subd. (c) [“ ‘extended family member’ . . . defined as provided in
[§] 1903” of ICWA].)
Additionally, pursuant to section 224.2, subdivision (c), “[a]t 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. The court shall instruct the parties to
inform the court if they subsequently receive information that provides
reason to know the child is an Indian child.”
Here, the Department was in contact with maternal aunt M.M., with
whom J.M. was placed, as well as another maternal aunt G.P. Although
M.M. and G.P. qualified as extended family members subject to the
Department’s initial inquiry obligations, the Department does not claim that
it asked M.M. or G.P. about J.M.’s potential Indian ancestry and our review
of the record does not reveal such inquiries. As such, the Department failed
to satisfy its initial inquiry obligation under section 224.2, subdivision (b).
Additionally, Mother and Father were present at the February 20, 2020
detention hearing as well as the March 18, 2020 jurisdiction hearing. Father
and maternal aunt M.M. were also present at a July 7, 2021 hearing. The
court did not inquire of Mother, Father, or M.M. whether they knew, or had
reason to know, that J.M. was an Indian child and did not instruct them to
8
inform the court if they subsequently received information that provided
reason to know J.M. is an Indian child. The Department argues the ICWA-
020 forms completed by Mother and Father satisfied the court’s duty.
However, the Department provides no authority to support this proposition.
Moreover, while the forms were filed on the same day as Mother’s and
Father’s first appearance in court, on February 20, 2020, there is no
indication in the record whether the forms were filed before or after the
hearing, and no indication the court reviewed or relied on the forms. The
court made no mention of ICWA during the hearing and included its finding
that ICWA did not apply in its minute order only. As such, based on this
record, we cannot conclude the court satisfied its independent inquiry duties
under section 224.2, subdivision (c).
Where, as here, there is an inadequate initial inquiry, under ICWA and
related California law, “the error is in most circumstances . . . prejudicial and
reversible.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 435.)6 Because
substantial evidence does not support the juvenile court’s finding that ICWA
did not apply, we conditionally reverse the order terminating parental rights
with a limited remand for the Department and the juvenile court to comply
with ICWA and section 224.2.
C. ICWA Reporting Duties
Mother argues the Department failed to satisfy its duty to report its
inquiry efforts to the juvenile court, citing California Rules of Court, rule
5.481(a)(5). We disagree.
California Rules of Court, rule 5.481(a)(5) provides:
“The petitioner 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
6 The Department did not address prejudice in its respondent’s brief.
9
pertaining to the child’s Indian status, as well as evidence
of how and when this information was provided to the
relevant tribes. Whenever new information is received,
that information must be expeditiously provided to the
tribes.”
Mother argues the Department “ignored their duty under the law to
disclose in a timely fashion any and all further inquiries” as to Mother’s and
Father’s ICWA declarations. Mother cites section 224.2, subdivision (e),
which addresses the duty of further inquiry when there is a “reason to
believe” the child has Indian ancestry. However, Mother’s and Father’s
ICWA-020 forms declared that they did not know of any Indian ancestry.
Therefore, Mother’s and Father’s ICWA declarations did not trigger a duty
for the Department to conduct a further inquiry. (See In re S.R. (2021) 64
Cal.App.5th 303, 315 [“both mother and father filed ICWA-020 forms at the
time of the detention hearing declaring they didn’t know of any Indian
ancestry on either side of the family. These preliminary responses didn’t
provide reason to know or reason to believe an Indian child might be involved
in the dependency”].) Indeed, the Department did not receive any
information giving rise to a “reason to believe.” Thus, the duty of further
inquiry was not triggered and the Department was not compelled to report on
any further inquiry. Further, aside from the ICWA-020 forms, the
Department did inform the court of its initial inquiry efforts when the
Department asked Mother about potential Indian ancestry on February 11,
2020 and April 13, 2020, and when it asked Father about potential Indian
ancestry on February 11, 2020 and March 12, 2020
DISPOSITION
The juvenile court’s order terminating parental rights is conditionally
reversed. The matter is remanded to the juvenile court with directions for
the Department to comply with the inquiry provisions of ICWA and section
10
224.2 (and, if applicable, the notice provisions under section 224.3), including
inquiry of maternal aunt M.M. and maternal aunt G.P. Additionally, the
juvenile court is directed to conduct a hearing to order Mother, Father, and
maternal aunt M.M. to appear at a subsequent hearing for the court to ask
them whether they know or have reason to know that J.M. is an Indian child
and instruct them to inform the court if they subsequently receive
information that provides reason to know J.M. is an Indian child, in
compliance with section 224.2, subdivision (c). If Mother and/or Father fail to
appear at the subsequent hearing, the juvenile court must confirm with
counsel for Mother and/or Father that they have not been able to contact
Mother and/or Father. If, after completing its inquiry, neither the
Department nor the juvenile court has reason to believe or reason to know
J.M. is an Indian child, the order terminating parental rights shall be
reinstated. If the Department or the juvenile court has reason to believe or
reason to know J.M. is an Indian child, the juvenile court shall proceed
accordingly.
O’ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
DATO, J.
11