Filed 10/6/22 In re R.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 R.S., a Person Coming Under
the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH D080503
AND HUMAN SERVICES
AGENCY,
(Super. Ct. No. J518610C)
Plaintiff and Respondent,
v.
C.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Marissa A. Bejarano, Judge. Conditionally reversed and remanded with
directions.
Landon Villavaso, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia Silva, County Counsel, Emily Harlan, Senior Deputy County
Counsel, for Plaintiff and Respondent.
C.C. (Father) appeals from the juvenile court’s order terminating his
parental rights for his daughter, R.S. Father’s sole claim on appeal is that
substantial evidence does not support the juvenile court’s finding that the
Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) did not apply. San
Diego County Health and Human Services Agency (the Agency) concedes that
a limited remand is appropriate to ensure ICWA compliance, and the parties
have stipulated to the immediate issuance of remittitur. We accept the
Agency’s concession, conditionally reverse, and remand for compliance with
ICWA.
FACTUAL AND PROCEDURAL BACKGROUND1
In August 2019, the Agency initiated this dependency proceeding under
Welfare and Institutions Code section 300 subdivision (b)(1)2 on behalf of
R.S. The Agency alleged there was a substantial risk R.S. had suffered or
would suffer serious physical harm or illness based on Father’s and V.S.’s
(Mother’s)3 failure to provide adequate supervision or protection.
Specifically, the Agency alleged that Mother was hospitalized for a mental
illness, that R.S. had been removed from Mother’s care previously in 2018
due to the same mental health concerns, that both Mother and Father had a
history of drug abuse, and that Father had violated the Agency’s safety plan
by leaving R.S. alone in Mother’s care.
1 Because Father’s only contention on appeal concerns ICWA, we limit
our factual background accordingly.
2 All further section references are to the Welfare and Institutions Code
unless otherwise indicated.
3 Mother is not a party to this appeal, and we discuss her only as needed.
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The Agency’s August 2021 detention report indicated that, in July 2018
during R.S.’s prior dependency case, the juvenile court there found that
ICWA did not apply. The detention report also stated that during the
Agency’s July 2021 interview of Father, Father had denied any Native
American ancestry. In the social worker’s notes attached to the detention
report, the social worker stated that during a July 8, 2021 interview with
Mother, Mother said she had Native American ancestry but denied being
registered with a tribe. In contrast, the detention report reflected that at an
interview with Mother the same day, Mother had denied any Native
American ancestry. The Agency concedes the record on appeal is ambiguous
about why Mother changed her response.
The juvenile court’s minute order from the August 2021 detention
hearing provided that the court had read and considered the Agency’s August
2021 detention report and found, “Based on the previously made finding [at
R.S.’s prior 2018 dependency proceeding] . . . [ICWA] does not apply to this
case.”
The Agency’s September 13, 2021 jurisdiction/disposition report
indicated that during a September 2021 conference with a social worker,
Father again denied any Native American ancestry. The report also reflected
that the Agency interviewed maternal aunt and maternal grandmother.
There is no indication in the record, however, that the Agency ever asked
maternal aunt and maternal grandmother about R.S.’s possible Native
American ancestry.
In the Agency’s later request for judicial notice in support of its motion
for denying reunification services, the Agency attached various minute orders
entered between 2016 and 2019 from R.S.’s siblings’ prior juvenile cases. The
minute orders indicated that, in these prior cases, someone claimed Cherokee
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heritage on behalf of R.S.’s siblings and that the court had ordered the
Agency to notify it if one of R.S.’s siblings was eligible for membership with a
Cherokee tribe. Because the record does not contain the hearing transcripts
corresponding to these minute orders, it is unclear which family members
claimed Cherokee ancestry and what ICWA information was discussed at the
hearings.
About a month after the Agency’s filing, Mother attended a pretrial
settlement conference and, through her attorney, denied having Native
American ancestry.
At a November 2021 hearing, the court stated, “The court has reviewed
the social worker’s report dated September 13, 2021, in addition to all the
other evidence that has been admitted into evidence today. Based on that
finding, the court finds without prejudice that [ICWA] does not apply in this
case.”
At the April 21, 2022 contested section 366.26 hearing, the court
adopted the Agency’s recommendations, including a renewed finding that
ICWA did not apply. Father appealed from that order, challenging only the
court’s ICWA finding.
DISCUSSION
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 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
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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.).)
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 (Austin J.) [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”].) 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.)
Father contends substantial evidence does not support the court’s
finding that ICWA did not apply to R.S.’s juvenile dependency proceeding.
He first complains that the court erroneously based its August 2021 ICWA
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finding4 on the previous juvenile court’s July 2018 ICWA finding in R.S.’s
prior dependency proceeding. We are not persuaded. As the Agency
contends, it is not error for a juvenile court to consider prior ICWA findings
from a child’s or child’s siblings’ previous dependency cases. (See, e.g., In re
Charles W. (2021) 66 Cal.App.5th 483, 490 [concluding that substantial
evidence supported the court’s finding that ICWA did not apply, including
evidence that “the court reasonably relied on a prior [ICWA] finding involving
the same family”].) Moreover, in determining that ICWA did not apply to
R.S.’s case, the juvenile court considered more than the prior 2018 ICWA
finding. In its August 20, 2021 minute order, the juvenile court said that it
had “considered the report(s) of the Social Worker dated 8/20/2021 . . .,”
which included the social worker’s statement that Mother and Father had
both denied any Native American ancestry during interviews on July 8, 2021.
Father also complains that the juvenile court made its ICWA finding
without obtaining ICWA-020 Parental Notification of Indian Status forms
from Mother and Father, and without directly asking Father at the hearing
about R.S.’s possible Native American ancestry. California Rules of Court,
4 Father did not appeal from the juvenile court’s August 20, 2021 order
in which the court made its first ICWA ruling. Rather, he appeals from the
April 21, 2022 order terminating his parental rights, which reiterated the
court’s finding that ICWA did not apply. Ordinarily, “California follows a
‘one shot’ rule under which, if an order is appealable, appeal must be taken or
the right to appellate review is forfeited.” (In re Baycol Cases I & II (2011) 51
Cal.4th 751, 761, footnote 8.) Because the duty of inquiry under ICWA is a
continuing one, however, the one-shot rule does not apply here. (See § 224.2,
subd. (a); Isaiah W., supra, 1 Cal.5th at p.7.) [“Because ICWA imposes on the
juvenile court a continuing duty to inquire whether the child is an Indian
child, we hold that the parent may challenge a finding of ICWA’s
inapplicability in an appeal from the subsequent [termination of parental
rights] order, even if she did not raise such a challenge in an appeal from the
initial [jurisdictional and dispositional] order.”].)
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rules 5.481(a)(2)(A) and (C) require that at a parent’s first appearance in a
dependency case, the court must ask the parent if he or she “knows or has
reason to know the child is an Indian child” and must order the parent, “if
available, to complete a Parental Notification of Indian Status (form ICWA-
020).” Rule 5.481(a)(3) further provides that if the parent does not appear,
“the court must order the [Agency] to use reasonable diligence to find and
inform the parent” of the court’s order to complete the ICWA-020 form. Here,
the court complied with rule 5.481(a)(2)(C) by ordering Mother and Father to
complete the ICWA-020 forms. Yet, neither parent ever did. But we agree
with Father that the court should have directly asked him at the August
2021 hearing about R.S.’s possible Native American ancestry and that the
court should have ordered the Agency to inform Mother, who was not present
at the hearing, about the court’s order to complete the ICWA-020 form. (See
Cal. Rules of Court, rule 5.481(a)(2)(A); id. at rule 5.481(a)(3); section
224.2(c).)
Finally, Father contends that the Agency failed to interview Mother,
maternal aunt, and maternal grandmother about R.S.’s possible Native
American ancestry. Father is mistaken as to Mother. The record reflects
that the Agency asked Mother about R.S.’s possible Native American
ancestry in July 2021. But as the Agency concedes, the record is unclear
about the circumstances surrounding Mother’s claim of and same-day denial
of Native American ancestry, and this discrepancy requires further
investigation and documentation. (See § 224.2, subd. (a); Isaiah W., supra, 1
Cal.5th at p. 9 [agency and court have an “affirmative and continuing duty to
inquire” whether a child “is or may be an Indian child”]; Cal. Rules of Court,
rule 5.481(a)(5) [agency has duty “on an ongoing basis” to report “a detailed
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description of all inquiries, and further inquiries it has undertaken, and all
information received pertaining to the child’s Indian status”].)
The Agency also concedes that there were available extended family
members, including maternal aunt and maternal grandmother, with whom it
should have conducted ICWA inquiries. Because grandmothers and aunts
qualify as “extended family members” under ICWA, the Agency’s concession
is proper. (See 25 U.S.C. § 1903(2); § 224.1, subd. (c).)
For the previous reasons, we conclude substantial evidence does not
support the juvenile court’s finding that ICWA did not apply. The Agency
and Father agree that a limited remand is appropriate to ensure compliance
with the inquiry provisions of ICWA and section 224.2. The Agency and
Father have also submitted a joint stipulation for issuance of an immediate
remittitur pursuant to California Rules of Court, rule 8.272(c)(1). Therefore,
we conditionally reverse the order terminating Father’s parental rights with
a limited remand for the Agency and juvenile court to comply with ICWA and
section 224.2.
DISPOSITION
The juvenile court’s order terminating parental rights 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 (and, if
applicable, the notice provisions under section 224.3). If, after completing its
inquiry, neither the Agency nor the juvenile court has reason to believe or
reason to know that R.S. is an Indian child, the order terminating parental
rights shall be reinstated. If the Agency or the juvenile court has reason to
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believe or reason to know R.S. is an Indian child, the juvenile court shall
proceed accordingly. The remittitur shall issue immediately.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
BUCHANAN, J.
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