Filed 10/20/22 In re J.R. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re J.R., a Person Coming 2d Juv. No. B319648
Under the Juvenile Court Law. (Super. Ct. No. 21JV00065)
(Santa Barbara County)
SANTA BARBARA COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Respondent,
v.
JENNIFER G.,
Defendant and Appellant.
Jennifer G. (Mother) appeals an order of the juvenile court
declaring that her minor child J.R. is adoptable and terminating
her parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1).)1
All further statutory references are to the Welfare and
1
Institutions Code unless otherwise indicated.
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We conclude that error in failing to make initial inquiries of
extended family members pursuant to the Indian Child Welfare
Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related
California law was harmless in view of the recent augmentation
of the appellate record to reflect the additional inquiries and
responses thereto. (In re Allison B. (2022) 79 Cal.App.5th 214,
219.) We affirm.
This appeal concerns the single issue of the adequacy of
initial inquiries regarding possible Indian ancestry of a
dependent minor child. Following the filing of the notice of
appeal, however, the Santa Barbara County Department of Social
Services (DSS) made additional inquiries of extended family
members and received negative responses thereto regarding
Indian ancestry. We have augmented the record to include the
DSS’s inquiries and responses. (In re Allison B., supra, 79
Cal.App.5th 214, 219.)
FACTUAL AND PROCEDURAL HISTORY
Mother and F.R. (Father) are parents to the minor child
J.R. The child was a newborn when detained by DSS. On
February 23, 2021, DSS filed a dependency petition and an
amended dependency petition alleging that Mother and Father
had longstanding substance abuse issues and significant criminal
histories. At birth, J.R. had a positive test for amphetamine and
cannabinoids which Mother admitted using during her
pregnancy. (§ 300, subd. (b)(1).)
On February 24, 2021, the juvenile court held a detention
hearing and inquired of Mother and Father whether either had
Indian ancestry. Mother and Father personally replied that they
did not. The court then made a finding that there was no reason
to believe the child was an Indian child and that ICWA did not
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apply. Mother later filed a Parental Notification of Indian Status
form (ICWA-020) in which she did not assert any Indian
ancestry. Following the detention hearing, the court ordered the
child detained, gave care and custody of the child to DSS with
parental visitation, and ordered the parents to submit to random
drug testing. DSS placed the child in the care of the maternal
grandmother and step-grandfather.
On March 30, 2021, DSS filed a jurisdiction and disposition
report with the juvenile court. Among other things, the report
noted that Mother and Father had been interviewed and neither
indicated that they had been adopted. Following an uncontested
hearing, the court sustained the allegations of the dependency
petition and ordered Mother to participate in family reunification
services. Mother’s reunification services included counseling,
parent education, and substance abuse treatment and testing.
The court was then awaiting the outcome of Father’s paternity
test.
Mother and Father continued to abuse drugs and miss
random drug testing. Father did not participate in his services
plan. On October 26, 2021, the juvenile court terminated family
reunification services and set the matter for a permanent plan
hearing.
On March 14, 2022, Mother filed a modification petition
pursuant to section 388. She declared that she participated in
residential drug treatment, tested negative for illegal substances,
participated in therapy, and attended Narcotics Anonymous
meetings. Following an evidentiary hearing, the juvenile court
found that there were changed circumstances but that a return of
the child to Mother was not in the child’s best interests. The
court denied the modification petition.
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On March 16, 2022, DSS filed an addendum to the
permanent plan report, indicating that Father had filed an
ICWA-020 form earlier suggesting that he may have Indian
ancestry. Accordingly, DSS then interviewed Father who
insisted that he did not have Indian ancestry and the form was
filed in error by counsel.
On April 7, 2022, the juvenile court held a contested
permanent plan hearing. Mother, but not Father, attended the
hearing. Father’s counsel stated that Father was not present to
file an amended ICWA-020 form. The court responded that
Father “has made [it] clear to [DSS] that it was an error, there is
no ancestry. There’s no reason to believe that [ICWA] applies to
the child.” Following an evidentiary hearing and argument, the
court found J.R. likely to be adopted and it terminated parental
rights.
Motion to Augment Record
On August 25, 2022, we granted DSS’s unopposed motion
to augment the appellate record to include an updated “ICWA
MATRIX” for J.R. On August 3, 2022, DSS filed this document
with the juvenile court following the section 366.26 proceedings
and the filing of the notice of appeal. DSS also served a copy
upon all interested parties, including Mother and Father. The
document reveals that in early August 2022, a DSS social worker
contacted the maternal grandmother, maternal aunt and uncle,
adult sibling N.G., and the paternal grandmother. Each person
stated there is no Indian ancestry in the family as far as he or
she was aware.
Mother appeals and contends that the juvenile court erred
by finding that ICWA was not applicable because DSS and the
court did not fully comply with their initial duties of inquiry
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regarding Indian ancestry. (§§ 224.2, subd. (b), 224.) Father is
not a party to this appeal.
DISCUSSION
Mother argues that insufficient evidence supports the
juvenile court’s ICWA finding because the court and DSS did not
question extended family members concerning Indian ancestry.
They assert that the matter must be conditionally reversed and
remanded to ensure compliance with the initial inquiry
requirements of ICWA and related California law.
We examine the juvenile court’s ICWA findings for
substantial evidence. (In re H.V. (2022) 75 Cal.App.5th 433, 438.)
Where the inquiry was deficient, we assess whether the juvenile
court would have made the same ICWA finding had the inquiry
been proper.
An “Indian child” is defined as an unmarried individual
under 18 years of age who is either 1) a member of a federally
recognized Indian tribe, or 2) is eligible for membership in a
federally recognized tribe and is the biological child of a member
of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); § 224.2,
subd. (e)(1).) The juvenile court and the county child welfare
department have affirmative and continuing duties to inquire
whether a child subject to dependency proceedings is or may be
an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rules
5.481(a) & 5.668(c).) The duties include asking the child,
parents, extended family members, and others who have an
interest in the child whether the child is or may be an Indian
child. (§ 224.2, subd. (b); In re E.L. (2022) 82 Cal.App.5th 597,
607.)
Here Mother completed the IWCA-020 form stating that
she had no Indian ancestry as far as she knew, but neither DSS
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nor the juvenile court queried members of the extended family.
The question becomes whether the error is harmless. “When,
however, postjudgment evidence is offered to an appellate court
in support of a motion to dismiss a juvenile dependency appeal, it
is ‘routinely consider[ed]’ because, if the motion is granted, it will
have ‘the beneficial consequence’ of ‘ “expedit[ing] the proceedings
and promot[ing] the finality of the juvenile court’s orders and
judgment.” ’ ” (In re Allison B., supra, 79 Cal.App.5th 214, 219.)
Augmentation of the record here permits us to “achieve
now what the trial court would do on remand – find that ICWA
does not apply.” (In re E.L., supra, 82 Cal.App.5th 597, 608.) The
ICWA matrix reflects that DSS interviewed all extended
maternal and paternal relatives with whom it made contact and
they each denied Indian ancestry. Remand would unnecessarily
delay the likelihood of adoption of J.R. and would achieve the
same result we do here by the unopposed augmentation of the
record.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Paul A. Swiller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rachel Van Mullem, County Counsel, and Lisa A.
Rothstein, Senior Deputy, for Plaintiff and Respondent.
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