Filed 10/13/22 In re C.M. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re C.M. et al., Persons Coming
Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH D080389
AND HUMAN SERVICES
AGENCY,
(Super. Ct. No. J520946AB)
Plaintiff and Respondent,
v.
L.M. et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County,
Marissa Bejarano, Judge. Affirmed with directions.
Christine E. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant S.M.
Christy C. Peterson, under appointment by the Court of Appeal, for
Defendant and Appellant L.M.
Claudia Silva, Acting County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff
and Respondent.
S.M. (Father) and L.M. (Mother) appeal the jurisdictional and
dispositional order in the Welfare and Institutions Code section 300
dependency proceeding for their daughters, C.M. and M.M. Father argues
the San Diego County Health and Human Services Agency (Agency) 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 Welfare and
Institutions Code section 224.2.1 Mother joins in Father’s arguments. The
Agency concedes in a letter brief that the ICWA inquiry was deficient but
argues reversal is not necessary because the ICWA inquiry is a continuing
duty. The parties have stipulated to the immediate issuance of remittitur.
We accept the Agency’s concession, conclude substantial evidence does not
support the juvenile court’s finding that ICWA does not apply to the
proceedings, and agree with the Agency that reversal is not necessary. As
such, we affirm the order and direct the Agency and juvenile court to comply
with the inquiry provisions of ICWA and section 224.2 (and, if applicable, the
notice provisions under section 224.3) on remand.
FACTUAL AND PROCEDURAL BACKGROUND2
The Agency initiated these dependency proceedings under section 300
subdivision (d) on behalf of C.M. and M.M. (collectively referred to as the
children) in January 2022, alleging the children had been sexually abused, or
there was a substantial risk the children will be sexually abused as defined in
subdivision (b) of section 11165.1 of the Penal Code by their parent or
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.
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guardian or a member of the child’s household. The Agency further alleged
the parent or guardian has failed to protect the children adequately from
sexual abuse and the parent or guardian knew or reasonably should have
known that the children were in danger of sexual abuse. The Agency alleged
that Father sexually abused the children in 2018. Additionally, Mother does
not believe the children’s disclosures and allowed Father to return to the
family home in November 2021. The Agency alleged Father and Mother
remain untreated and there is substantial risk the children will continue to
be sexually abused.
The petition stated the Agency asked Mother and Father about the
children’s Indian status and they both gave no reason to believe the children
are or may be Indian children.
In its January 20, 2022 detention report, the Agency reported that
Mother and Father were interviewed on January 12, 2022, and they both
denied having any Indian ancestry. The Agency reported interviewing three
maternal aunts, T.B., C.T., and Aunt M.M.,3 but did not indicate asking
these maternal aunts about potential Indian ancestry.
Mother and Father appeared at the detention hearing by video.
Father’s counsel informed the court that Father identified no Indian
ancestry. Mother’s counsel likewise stated Mother denied any Indian
ancestry. The court found that “based on the representation of counsel as
well as the information provided in the report for today” ICWA does not apply
to the proceedings. The court made a prima facie finding that the children
came within section 300, subdivision (d), and ordered the children detained.
3 Because one of the children at issue has the initials M.M., we refer to
this maternal aunt as Aunt M.M.
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In the course of the Agency’s investigation, Mother reported that
maternal grandparents reside in Florida. Father reported that paternal
grandmother resides in Alabama and paternal grandfather resides in
Tennessee. He also reported that he has three siblings but did not indicate
their whereabouts.
The Agency reported that at some point, Mother wanted to send M.M.
to live with paternal grandmother in Alabama. C.M. stated she lived with
paternal grandmother in Alabama for “a couple months” in 2021.
Mother stated she would want the children to be placed with paternal
grandmother or maternal aunt, M.B.
At the contested jurisdiction and disposition hearing, the court
sustained the petitions, made true findings on the section 300, subdivision (d)
allegations, declared the children dependents, and placed the children with a
nonrelative extended family member. In its written jurisdictional and
dispositional order, the court found “without prejudice that the Indian Child
Welfare Act does not apply to this proceeding.”
DISCUSSION
Father argues the Department and the juvenile court did not satisfy
their initial inquiry obligations under ICWA and section 224.2. The Agency
concedes error but argues reversal is not necessary. We accept the Agency’s
concessions and agree that reversal is not necessary. Accordingly, we affirm
the order and remand with directions for the Agency and the juvenile court to
comply with ICWA and section 224.2 on remand.
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.).)
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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, § 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 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.”
“On appeal, we review the juvenile court’s ICWA findings for
substantial evidence.” (D.S., supra, 46 Cal.App.5th at p. 1051.) However,
where the facts are undisputed, we independently determine whether ICWA’s
requirements have been satisfied. (Ibid.)
B. The Agency’s ICWA Inquiry Duties
Father argues the Agency failed to comply with its inquiry obligations
because it failed to ask available extended family members about potential
Indian ancestry. Specifically, the Agency interviewed three maternal aunts,
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T.B., C.T., and Aunt M.M., but did not conduct any ICWA inquiry. Father
also argues the Agency failed to make any effort to locate or interview other
family members identified by Mother and Father during the investigation.
Specifically, the Agency did not attempt to locate a fourth maternal aunt,
M.B., who was identified as someone to consider for placement, maternal
grandparents who were known to reside in Florida, paternal grandmother
who was known to live in Alabama, paternal grandfather who was known to
live in Tennessee, and Father’s three siblings who Father mentioned during
the investigation.
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
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].)
Here, the Agency concedes, and we agree, it should have conducted an
ICWA inquiry of the three maternal aunts that the Agency interviewed
during its investigation, T.B., C.T., and Aunt M.M. The Agency also
concedes, and we agree, that it should attempt to contact and conduct an
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ICWA inquiry of the fourth maternal aunt, M.B., and paternal grandmother,
both whom Mother requested be considered for placement.
The Agency refuses to concede it has a duty to search for the other
extended family members that Father identified in his opening brief,
maternal grandparents, paternal grandfather, and Father’s three siblings
because “it is unknown whether their contact information was readily
available to the Agency.” We conclude the Agency did not have a duty to seek
to interview these individuals where the record does not reveal the Agency
had any contact information for these individuals, and the Agency is not
required to “cast about” for information. (D.S., supra, 46 Cal.App.5th at p.
1053.)
The Agency added its own concession that it should have conducted an
ICWA inquiry of C.M. and M.M. themselves, who are 16-years-old. We accept
the Agency’s concession where section 224.2, subdivision (b) requires an
inquiry of the child, with no applicable age limit. (Compare with 25 U.S.C. §
1903(2) [defining “extended family member” as a person who has reached the
age of 18]; § 224.1, subd. (c) [“extended family member’ . . . defined as
provided in [§] 1903” of ICWA].)
Because the Agency failed to conduct an ICWA inquiry of available
extended family members and C.M. and M.M. themselves, the Agency failed
to satisfy its initial inquiry obligation under section 224.2, subdivision (b),
and the juvenile court’s ICWA finding is not supported by substantial
evidence.
C. Juvenile Court’s ICWA Inquiry Duties
Father argues the juvenile court failed to ask Mother and Father at the
detention hearing about potential Indian ancestry and neither Mother nor
Father submitted an ICWA-020 form. Father contends the court erred in
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relying solely on Mother’s and Father’s counsels’ representations regarding
Indian ancestry. Father also argues the court failed to advise Mother and
Father that if they subsequently receive information regarding Indian
ancestry, they were required to provide that information to the court.
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.”
The Agency concedes the juvenile court failed to obtain ICWA-020
forms and failed to advise Mother and Father of the need to inform the court
if they obtained additional information about potential Indian ancestry.
However, the Agency contends the juvenile court could properly rely upon
Mother’s and Father’s counsels’ representations regarding Indian ancestry.
We conclude the juvenile court was required to by statute, and thus,
should have asked Mother and Father about Indian ancestry at the detention
hearing and should have instructed them to inform the court if they
subsequently receive additional information. (§ 224.2, subd. (c); Cal. Rules of
Court, rules 5.481(a)(2)(A) and 5.481(a)(2)(B).) Additionally, the ICWA-020
forms should be completed. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Because the juvenile court failed to satisfy its initial inquiry obligations
under section 224.2, subdivision (c), and the juvenile court’s ICWA finding is
not supported by substantial evidence.
D. Appropriate Disposition
While the Agency concedes that it and the juvenile court failed to
satisfy their initial inquiry duties, the Agency contends reversal of the
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juvenile court’s jurisdictional and dispositional order is not required because
the ICWA inquiry is a continuing duty.
The Agency cited In re S.H. (2022) 82 Cal.App.5th 166, where the
Agency conceded error and the Court of Appeal nonetheless affirmed the
dispositional order. The court there reasoned that the Agency has a
continuing duty to inquire and the “agency acknowledges error and we thus
have reason to believe that its duty of inquiry will be satisfied. Where there
is such an acknowledgement, we see no reason to set aside the
jurisdiction/disposition order—even conditionally.” (Id. at p. 176.)
Additionally, “the juvenile court, even after it concludes that ICWA does not
apply, retains the power (and duty) to reverse that determination ‘if it
subsequently receives information providing reason to believe that the child
is an Indian child.’ ” (Id. at p. 176.) The Court of Appeal reasoned the
juvenile court was aware of this continuing duty because it made its ICWA
finding without prejudice. (Id. at p. 177.) “So long as proceedings are
ongoing and all parties recognize the continuing duty of ICWA inquiry, both
the Agency and the juvenile court have an adequate opportunity to fulfill
those statutory duties.” (Id. at p. 179.) The appellant Mother argued that
the Court of Appeal must either conditionally reverse or conditionally affirm.
(Id. at p. 175.) The court refused to do so, instead “hold[ing] that when a
social services agency accepts its obligation to satisfy its inquiry obligations
under ICWA, a reversal of an early dependency order is not warranted simply
because a parent has shown that these ongoing obligations had not yet been
satisfied as of the time the parent appealed.” (Id. at p. 171.) The court
affirmed the juvenile court’s dispositional order. (Id. at p. 180.)
Similarly, here, the Agency acknowledged its initial inquiry was
deficient and that it must conduct an ICWA inquiry of the available extended
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family members as well as C.M. and M.M. themselves. Additionally, in the
jurisdictional and dispositional order from which Father and Mother appeal,
the juvenile court found “without prejudice that the Indian Child Welfare Act
does not apply to this proceeding.” Finally, the order at issue here is an early
jurisdictional and dispositional order, allowing the Agency and the juvenile
court time and opportunity to fulfill their inquiry obligations during the
ongoing proceedings. Under these circumstances, we conclude reversal is not
required.
DISPOSITION
The juvenile court’s jurisdiction and dispositional order is affirmed.
The matter is remanded with directions for the Agency and the juvenile court
to comply with the inquiry provisions of ICWA and section 224.2 (and, if
applicable, the notice provisions under section 224.3). If the Agency or the
juvenile court has reason to believe or reason to know C.M. and M.M. are
Indian children, the juvenile court shall proceed accordingly. Remittitur
shall issue immediately.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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