Filed 9/26/22 In re J.M. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.M., a Person Coming Under
the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH D080554
AND HUMAN SERVICES
AGENCY,
(Super. Ct. No. EJ4679)
Plaintiff and Respondent,
v.
S.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Conditionally reversed and remanded with directions.
Emily Uhre, under appointment by the Court of Appeal, for Defendant
and Appellant.
Claudia Silva, County Counsel, Caitlin E. Rae, Chief Deputy County
Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and
Respondent.
In this dependency proceeding, the juvenile court granted J.M.’s
petition under Welfare and Institutions Code section 388 to stop visits with
her mother, S.S. (Mother).1 Mother appeals that order, on the sole basis that
the San Diego County Health and Human Services Agency (Agency) and the
juvenile court did not comply with their inquiry duties under the federal
Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and section 224.2.
She contends the Agency failed to ask paternal grandmother, maternal
grandparents, and maternal aunt about the family’s possible Native
American heritage, and it failed to make sufficient efforts to locate an
additional 25 potential relatives it had contacted by mail as part of the family
finding efforts.2
The Agency concedes the error, acknowledging its “initial ICWA
inquiry was deficient and failed to comply with . . . section 224.2, subdivision
(b).” The Agency’s concession is proper. In California dependency
proceedings, 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).) The Agency’s initial duty of inquiry includes “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.” (§ 224.2, subd.
(b).) ICWA defines “ ‘extended family member’ ” by “the law or custom of the
1 All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
2 As Mother acknowledges, it is unclear what type of relationship, if any,
these individuals had with J.M. It is therefore also unclear whether any of
these persons qualify as an “extended family member” or a necessary subject
of ICWA inquiry under section 224.2, subdivision (b).
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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].)
Thus, the Agency is correct that it should have contacted the paternal
grandmother, maternal grandparents, and maternal aunt about the family’s
possible Native American heritage. We therefore conclude substantial
evidence does not support the juvenile court’s finding that ICWA did not
apply.
The Agency further agrees a conditional reversal and limited remand is
appropriate to ensure compliance with the inquiry provisions of ICWA and
section 224.2. Mother and the Agency have submitted a joint stipulation for
issuance of an immediate remittitur pursuant to California Rules of Court,
rule 8.272(c)(1). We shall conditionally reverse the order granting J.M.’s
section 388 petition with a limited remand for the Agency and the juvenile
court to comply with ICWA and section 224.2.3
3 Before reversing or vacating a judgment based upon a stipulation of the
parties, an appellate court must find “both of the following: [¶] (A) There is
no reasonable possibility that the interests of nonparties or the public will be
adversely affected by the reversal. [¶] (B) The reasons of the parties for
requesting reversal outweigh the erosion of public trust that may result from
the nullification of a judgment and the risk that the availability of stipulated
reversal will reduce the incentive for pretrial settlement.” (Code Civ. Proc.,
§ 128, subd. (a)(8).) The present case involves reversible error because the
parties agree, and we concur, that the Agency failed to comply with ICWA
and related California provisions. Because this case would be subject to
reversal to permit compliance with ICWA and corresponding California
statutes and rules absent the parties’ stipulation, a stipulated remand
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DISPOSITION
The June 14, 2022 order granting J.M.’s section 388 petition is
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 investigation
satisfied its affirmative duty to investigate. 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 J.M. is an Indian child, the June 14, 2022 order shall be reinstated.
Alternatively, if after completing the inquiry, the Agency or the juvenile court
has reason to believe or to know J.M. is an Indian child, the juvenile court
shall proceed accordingly. The remittitur shall issue immediately. (Cal.
Rules of Court, rule 8.272(c)(1).)
DO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
advances the interests identified by Code of Civil Procedure section 128,
subdivision (a)(8). (See In re Rashad H. (2000) 78 Cal.App.4th 376, 379–382.)
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