Filed 12/29/22 In re D.E. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re D.E., a Person Coming Under the Juvenile
Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F084874
SERVICES,
(Super. Ct. No. JD142427-00)
Plaintiff and Respondent,
v. OPINION
TOMMY E. et al.,
Defendants and Appellants.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Christie Canales
Norris, Judge.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and
Appellant Tommy E.
Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for
Defendant and Appellant Brittany M.
Margo A. Raison, County Counsel, and Alexandria M. Ottoman, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.
Brittany M. (mother) appeals the juvenile court’s order terminating her parental
rights to her now two-year-old daughter, D.E., pursuant to Welfare and Institutions Code
section 366.26.1 Her sole contention on appeal is the juvenile court and the Kern County
Department of Human Services (department) failed to comply with the Indian Child
Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because the
department failed to inquire of extended family members whether D.E. has Indian
ancestry.2 D.E.’s father, Tommy E., joins. The department concedes the error. We
accept the department’s concession and conditionally reverse the juvenile court’s finding
that ICWA does not apply and remand for full compliance with ICWA.
PROCEDURAL AND FACTUAL SUMMARY
Dependency proceedings were initiated in August 2021 after then 14-month-old
D.E. tested positive for methamphetamine. Mother had taken her to the emergency room
because she was fussy. Mother was arrested at the hospital for child endangerment,
possession of methamphetamine and being under the influence of a controlled substance.
D.E. was taken into protective custody by the department and placed in foster care.
Over the several days following D.E.’s removal, Denise M., D.E.’s maternal
grandmother, and Tommy spoke to a social worker regarding D.E. and were asked
whether the family had Indian heritage. Denise stated there was none on her side and she
did not think there was any on the paternal grandfather’s side because he was of Mexican
and German descent. Tommy also denied any Indian heritage. His mother is deceased
and his father was incarcerated. He was living with his paternal aunt, Stephanie, and
asked if she could have legal guardianship. Mary E., the paternal great-grandmother, also
1 Statutory references are to the Welfare and Institutions Code.
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even
though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are
preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1
(Benjamin M.) .)
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spoke to the social worker. There is no mention in the record that she was asked about
Indian heritage.
The department filed an original dependency petition, alleging D.E. was a minor
described under section 300 based on mother’s substance abuse.
On September 1, 2021, mother filed a Parental Notification of Indian Status form
(ICWA-020), stating she had no Indian ancestry. At the detention hearing that same day,
the juvenile court acknowledged mother’s ICWA-020. The court elevated Tommy to
presumed father status and based on his conversation with the social worker found ICWA
did not apply.
In October 2021, the juvenile court adjudged D.E. a dependent child as alleged in
the petition, ordered her removed from parental custody and provided the parents
reunification services until the six-month review hearing in April 2022. At that time, the
court terminated reunification efforts and set a section 366.26 hearing to implement a
permanent plan of adoption.
On August 4, 2022, Tommy filed a modification petition under section 388
(section 388 petition), asking the juvenile court to place D.E. in his custody with family
maintenance services or provide him an additional six months of services. He explained
that he was incarcerated during the reunification period and unable to participate in
services. Providing him services would allow D.E. to develop a bond with him.
A hearing on Tommy’s section 388 petition was set to be heard on August 12,
2022, the date set for the section 366.26 hearing.
In its report for the section 366.26 hearing, the department recommended the
juvenile court terminate parental rights and free D.E. for adoption. Regarding ICWA, the
department reported it had not received any new information regarding the family’s
Indian ancestry since the juvenile court found ICWA did not apply at the detention
hearing.
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On August 16, 2022, the juvenile court denied Tommy’s section 388 petition and
terminated parental rights.
DISCUSSION
I. ICWA
Congress enacted ICWA “ ‘to protect the best interests of Indian children and to
promote the stability and security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will reflect the unique
values of Indian culture .…’ ” (In re Isaiah W. (2016) 1 Cal.5th 1, 7–8.) Both ICWA
and state law define an “ ‘Indian child’ ” 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); § 224.1, subd. (a) [adopting federal definition].)
“Because it typically is not self-evident whether a child is an Indian child, both
federal and state law mandate certain inquiries to be made in each case. These
requirements are sometimes collectively referred to as the duty of initial inquiry.”
(Benjamin M., supra, 70 Cal.App.5th at p. 741.)
Federal regulations implementing ICWA require courts to ask participants in a
dependency case whether they know or have reason to know the child is an Indian child
and to instruct the parties to inform the court “ ‘if they subsequently receive information
that provides reason to know the child is an Indian child.’ ” (Benjamin M., supra, 70
Cal.App.5th at p. 741.)
California law, however, “more broadly imposes on [the department] and [the]
juvenile court[] (but not parents) an ‘affirmative and continuing duty to inquire’ whether
a child in the dependency proceeding ‘is or may be an Indian child.’ ” (Benjamin M.,
supra, 70 Cal.App.5th at pp. 741–742, quoting § 224.2, subd. (a).) That duty to inquire
“begins with [the] initial contact … and obligates the juvenile court and [the department]
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to ask all relevant involved individuals whether the child may be an Indian child.” (In re
T.G. (2020) 58 Cal.App.5th 275, 290, citing § 224.2, subds. (a)–(c).)
Under the statute, when the department takes a child into its temporary custody, its
duty of initial inquiry “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 ….” (§ 224.2, subd. (b).) Extended family members include adults who are
the child’s stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles,
nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
The juvenile court, in turn, at a party’s first appearance, must ask “each participant
present in the hearing whether the participant knows or has reason to know that the child
is an Indian child” (§ 224.2, subd. (c)) and require each party to complete an ICWA-020
form (Cal. Rules of Court, rule 5.481(a)(2)(C)).3 “The parties are instructed to inform the
court ‘if they subsequently receive information that provides reason to know the child is
an Indian child.’ (25 C.F.R. § 23.107(a) (2020); § 224.2, subd. (c).)” (In re D.F. (2020)
55 Cal.App.5th 558, 566.)
If that initial inquiry gives the juvenile court or department a “reason to believe
that an Indian child is involved,” then their duty to “make further inquiry regarding the
possible Indian status of the child” is triggered. (§ 224.2, subd. (e).) And, once there is a
“reason to know” an Indian child is involved, formal notice under ICWA must be given
to the child’s “parents or legal guardian, Indian custodian, if any, and the child’s tribe.”
(§ 224.3, subd. (a); rule 5.481(c)(1); 25 U.S.C. § 1912(a).)
Additionally, the department is required by the rules to document its inquiries.
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
3 All further rule references are to the California Rules of Court.
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information received 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.”
The juvenile court may find ICWA does not apply to a child’s proceeding if it
finds the department’s duty of inquiry has been satisfied and there is no reason to know
that the child is an Indian child. (§ 224.2, subd. (i)(2); rule 5.481(b)(3)(A).) The juvenile
court’s finding that ICWA does not apply thus “ ‘ “implies that … social workers and the
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.” [Citations.]’ ” (In re Josiah T. (2021)
71 Cal.App.5th 388, 401.)
Social workers have no duty under federal law to ask extended family members
about possible tribal membership. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The
error, if any, is an error of state law. (Ibid.)
II. Standard of Review
As recently set forth in our decision in K.H., “[t]he juvenile court’s finding that
ICWA does not apply to the proceeding rests on two elemental determinations, ‘subject
to reversal based on sufficiency of the evidence.’ (§ 224.2, subd. (i)(2).) The court must
find there is ‘no reason to know whether the child is an Indian child,’ which is dependent
upon whether any of the six circumstances set forth in subdivision (d) of
section 224.2 apply. [Citation.] This inquiry is essentially factual and, therefore, is
reviewed for substantial evidence. [Citations.] Under this standard, ‘a reviewing court
should “not reweigh the evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts.” [Citation.] The determinations should “be upheld if … supported
by substantial evidence, even though substantial evidence to the contrary also exists and
the trial court might have reached a different result had it believed other evidence.” ’
[Citations.] The standard recognizes that ‘[t]rial courts “generally are in a better position
to evaluate and weigh the evidence” than appellate courts’ [citation], and ‘an appellate
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court should accept a trial court’s factual findings if they are reasonable and supported by
substantial evidence in the record’ [citation]. ‘[I]f a court holds an evidentiary hearing, it
may make credibility determinations, to which an appellate court would generally
defer.’ ” (In re K.H. (2022) 84 Cal.App.5th 566, 601 (K.H.).)
“The juvenile court must also find a ‘proper and adequate further inquiry and due
diligence .…’ (§ 224.2, subd. (i)(2).) While we review the court’s factual findings on the
second element for substantial evidence as well, we agree with [In re] Ezequiel
G. [(2022) 81 Cal.App.5th 984] that, consistent with the reasoning in [In re] Caden C.
[(2021) 11 Cal.5th 614], a hybrid standard of review is appropriate. (Ezequiel G., supra,
81 Cal.App.5th at pp. 1004–1005.) The inquiry is ultimately discretionary because it
requires the juvenile court to ‘engage in a delicate balancing of’ various factors in
assessing whether the agency’s inquiry was proper and adequate within the context of
ICWA and California law, and whether the agency acted with due diligence.” (K.H.,
supra, 84 Cal.App.5th at p. 601.)
“ ‘Review for abuse of discretion is subtly different [from review for substantial
evidence], focused not primarily on the evidence but the application of a legal standard.
A court abuses its discretion only when “ ‘ “the trial court has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination.” ’ ”
[Citation.] But “ ‘ “[w]hen two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court” ’ ” [Citations.] [¶] While each standard here fits a distinct type of determination
under review, the practical difference between the standards is not likely to be very
pronounced.’ ” (K.H., supra, 84 Cal.App.5th at p. 602.)
“Review of the juvenile court’s findings under the foregoing standards is
deferential, but ‘ “an appellate court [nevertheless] exercises its independent judgment to
determine whether the facts satisfy the rule of law.” ’ [Citations.] Where the material
facts are undisputed, courts have applied independent review to determine whether
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ICWA’s requirements were satisfied. [Citations.] In this case, because we are
confronted with an undeveloped record, the outcome is the same irrespective of the
standards of review applied.” (K.H., supra, 84 Cal.App.5th at p. 602.)
III. The Department Failed to Conduct an Adequate Initial Inquiry and the
Juvenile Court Erred in Finding ICWA Did Not Apply
Pursuant to its duty under section 224.2, the juvenile court through the department
had mother complete an ICWA-020 for the purpose of determining whether she had any
Indian heritage. She indicated that she did not. Tommy did not submit an ICWA-020,
either because he was not provided one or did not complete and submit it. Nevertheless,
he told the social worker that he did not have any Indian ancestry and his response was
documented in the department’s detention report filed with the court. At the detention
hearing, the court acknowledged mother’s completed ICWA-020 and the parents’ denial
of Indian ancestry. Based on their responses, the court found ICWA did not apply.
The duty of inquiry, however, did not end with asking the parents whether D.E. is
or may be an Indian child. The department was also required under section 224.2,
subdivision (b) to ask extended family members. Extended family members include
adults who are the child’s stepparents, grandparents, siblings, brothers- or sisters-in-law,
aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); 224.1,
subd. (c).) Although the social worker did ask the maternal grandmother about the
family’s Indian heritage, there were at least two relatives identified and accessible that
the social worker did not ask. There were also 56 relatives the department identified and
notified by mail that D.E. was in its temporary custody. (§ 309, subd. (e)(1).) Nothing in
the record indicates that any of the extended family members among those relatives were
asked whether the family had Indian heritage.
Under the circumstances, we conclude the department did not fulfill its statutory
duty of inquiry. (§ 224.2, subd. (b).) As a result, the juvenile court’s finding that ICWA
did not apply was not supported by substantial evidence that the department conducted an
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adequate, proper, and duly diligent inquiry, and its contrary conclusion was an abuse of
discretion.
DISPOSITION
The juvenile court’s finding that ICWA does not apply is conditionally reversed,
and the matter is remanded to the juvenile court with directions to order the department to
comply with the inquiry and documentation provisions set forth in section 224.2,
subdivision (b) and rule 5.481(a)(5). If, after determining that an adequate inquiry was
made consistent with the reasoning in this opinion, the court finds that ICWA applies, the
court shall vacate its existing order and proceed in compliance with ICWA and related
California law. If the court instead finds that ICWA does not apply, its ICWA finding
shall be reinstated. In all other respects, the court’s order terminating parental rights is
affirmed.
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