Filed 1/3/23 In re I.H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re I.H. et al., Persons Coming
Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH D080730
AND HUMAN SERVICES
AGENCY,
(Super. Ct. No. J520301AB)
Plaintiff and Respondent,
v.
M.O.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Michael P. Pulos, Judge. Reversed and remanded with directions.
Donna P. Chirco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Caitlin E. Rae, Chief Deputy County
Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
INTRODUCTION
M.O. (Mother) appeals from orders terminating her parental rights to
her children, I.H. and J.O (the Children), at the Welfare and Institutions
Code section 366.261 hearing. Her sole contention on appeal is that the San
Diego County Health and Human Services Agency (Agency) did not comply
with their inquiry duties under the federal Indian Child Welfare Act
(25 U.S.C. § 1901 et seq.) (ICWA). The Agency concedes that it did not fully
comply with its inquiry duties with regards to certain known and available
extended family members, and that its inquiries with relevant Native
American tribes were deficient and, therefore, agrees that a limited remand
is appropriate to ensure compliance with ICWA. On the record before us, we
agree with the Agency’s concessions. We will conditionally reverse the orders
terminating Mother’s parental rights and remand the matter with directions
for the limited purpose of compliance with ICWA and related statutory
provisions.2
FACTUAL AND PROCEDURAL BACKGROUND
In March 2020, the Agency filed juvenile dependency petitions alleging
the Children were within the jurisdiction of the juvenile court pursuant to
section 300. The following day, the Agency filed a detention report that
discussed potential Native American ancestry of the Children. The detention
1 All undesignated statutory references are to the Welfare and
Institutions Code.
2 In its letter brief conceding the ICWA error, the Agency stated it would
prepare a stipulation for immediate remittitur and file it with this court if
Mother signed the stipulation. We have not received such a stipulation, but
we encourage the parties to stipulate to the immediate issuance of the
remittitur in this case. (See Cal. Rules of Court, rule 8.272, subd. (c)(1).)
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report documented a conversation between the social worker and Mother, in
which Mother stated she was unsure if her family had any Native American
heritage, but that no family member was registered to any tribe or lived on a
Native American reservation. However, the detention report also discussed
prior investigations by the Agency in which Mother reported she was half-
Cherokee and claimed the maternal grandmother belonged to a Cherokee
tribe. The detention report also documented conversations between the social
worker and the father of I.H. and the father of J.O, in which both fathers
denied any Native American heritage.
At the detention hearing, Mother and I.H.’s father filed ICWA-20 forms
attesting they had, to their knowledge, no Native American ancestry. During
the hearing, counsel for Mother and I.H.’s father confirmed that neither
parent indicated they had Native American heritage. The juvenile court
inquired about prior claims of Cherokee heritage by the maternal
grandmother. In response, counsel for Mother and the Agency proffered that
both Mother and maternal grandmother presently denied any Native
American ancestry. Maternal grandfather was present but no inquiry was
made of him.
Based on the representations of the parties claiming a lack of Native
American ancestry, the juvenile court found, “[b]ased on the [detention]
report and confirmation of all parties of no Native American
ancestry, . . . that ICWA does not apply[.]” The court found the Agency made
a prima facie showing that the Children were persons described in section
300, subdivision (b), and removed custody of the Children from the parents.
At the contested jurisdiction and disposition hearing, the court took
jurisdiction over the Children and ordered family reunification services for
the parents. In its jurisdiction and disposition report, the Agency stated
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ICWA did not apply based on the juvenile court’s prior finding at the
detention hearing that ICWA was not applicable.
The court terminated reunification services for Mother in December
2020, and set the matter for a contested section 366.26 hearing. The hearing
was continued when the Agency requested additional time to conduct further
ICWA inquiries related to the Children’s extended family members. In
response to the juvenile court’s inquiry, Mother stated she believed her
grandfather had Native American ancestry and her mother had the most
information about this heritage. The Agency’s counsel represented the
Agency intended to follow up with the maternal grandmother regarding
potential Native American ancestry.
The Agency filed an addendum report that discussed further ICWA
inquiries. The maternal grandmother reported she heard rumors that her
grandmother may have been connected to the Cherokee tribe. She further
reported that no one in her family had lived on a reservation, received
benefits from a tribe, spoke a native language, or was an enrolled member in
a tribe. The social worker attempted to contact the maternal grandfather,
but the phone number provided was not in service. The social worker also
attempted to contact I.H.’s father, but he did not return her phone call.
The Agency also submitted inquiry letters to the Cherokee Nation, the
Eastern Band of Cherokee Indians, and the United Keetoowah Band of
Cherokee Indians (the tribes). As the Agency concedes, the letters sent to the
tribes omitted the names and other identifying information for the maternal
grandmother, maternal great-grandmother, and maternal grandfather. Two
of the tribes responded that the Children were not eligible for tribal
membership, and the third tribe did not respond before the section 366.26
hearing.
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At the section 366.26 hearing in May 2022, neither Mother nor the
Children’s fathers were present. The juvenile court found as to both children
the “Agency’s investigation and further inquiry [was] sufficient, that the
court has no reason to know that the child is [a Native American] child and
therefore [it found] that the Indian Child Welfare Act does not apply.” The
court terminated Mother’s parental rights to the Children, as well as that of
both fathers. Mother timely appealed.3
DISCUSSION
Mother contends the Agency failed to comply with its inquiry duties
pursuant to ICWA and section 224.2. Specifically, she contends an inquiry of
the maternal grandfather did not occur even though he was present and
available for an interview at the detention hearing; the Agency did not
conduct the required inquiry of I.H.’s father or his extended family members;
and the inquiry letters submitted to the various tribes contained insufficient
information because they did not include information pertaining to the
maternal grandmother, maternal great-grandmother, or maternal
grandfather. We review a juvenile court’s ICWA findings for substantial
evidence. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.) Doing so, we
accept the Agency’s concessions and conclude substantial evidence does not
support the juvenile court’s ICWA findings.
In California dependency proceedings, the juvenile court and Agency
have an “affirmative and continuing duty to inquire” whether a child “is or
may be [a Native American] child.” (§ 224.2, subd. (a).) “[S]ection 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
3 Neither father has appealed the juvenile court’s section 366.26 orders.
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statute imposes a duty of inquiry to ask all involved persons whether the
child may be [a Native American] child. (§ 224.2, subds. (a), (b).) Second, if
that initial inquiry creates a ‘reason to believe’ the child is [a Native
American] child, then the Agency ‘shall make further inquiry regarding the
possible [Native American] 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 [a Native American] child,
then the formal notice requirements of section 224.3 apply.” (In re D.S.
(2020) 46 Cal.App.5th 1041, 1052.)
The Agency’s initial inquiry must include, “but is not limited to, asking
the child, parents, legal guardian, [Native American] custodian, [and]
extended family . . . whether the child is, or may be, [a Native American]
child.” (§ 224.2, subd. (b).) ICWA defines “ ‘extended family member’ ” by
“the law or custom of the [Native American] child’s tribe” or, absent such law
or custom, as “a person who has reached the age of eighteen and who is the
[Native American] 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].) Extended family
members must be interviewed, in addition to the child’s parents, because
there may be circumstances in which “the parents themselves may have
scant information about their ancestry[.]” (In re Darian R. (2022) 75
Cal.App.5th 502, 509.)
At the second stage of further inquiry, there is “reason to believe” a
child is a Native American child if the Agency has information that suggests
the child or parents of the child are a member or may be eligible for
membership in a Native American tribe. (§ 224.2, subd. (e)(1).) If the Agency
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has “reason to believe” a child involved in a dependency proceeding is a
Native American child, it must conduct further inquiry by interviewing the
child’s parents and extended family members. (§ 224.2, subd. (e)(2)(A).) The
Agency must also contact tribes that may reasonably be expected to have
information regarding the child’s membership within the tribe. (§ 224.2,
subd. (e)(2)(C).) As part of the Agency’s communication with a relevant tribe,
the Agency must share information necessary for that tribe to make a
determination regarding potential tribal membership of the child. (Ibid.)
The Agency concedes its failure to conduct an initial inquiry of the
maternal grandfather, who was an available extended family member,
violated section 224.2, subdivision (b). It further concedes its inquiry with
the tribes were deficient under section 224.2, subdivision (c), because it
omitted the names and other identifying information for the maternal
grandmother, maternal great-grandmother, or maternal grandfather.
Further, although not raised by Mother, the Agency also acknowledged the
juvenile court failed to conduct the required inquiry with Mother, I.H.’s
father, and the maternal grandfather pursuant to section 224.2, subdivision
(c), as these individuals were present at the detention hearing. However, the
Agency disagrees that its inquiry of I.H.’s father or his extended family
members was deficient.
We agree all of the Agency’s concessions are proper. In this case, the
prior claims of Cherokee heritage by Mother and the maternal grandmother
gave the Agency reason to believe the Children had Native American
ancestry based on their maternal lineage. The Agency thus had a statutory
duty to interview the relevant extended family members of the Children and
contact tribes that may reasonably be expected to have information
pertaining to the Children’s potential tribal membership. (§ 224.2, subd.
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(e)(2)(A)–(C).) As the Agency acknowledges, the maternal grandfather was
present at the detention hearing, and he was not questioned regarding
potential Native American ancestry. The Agency appropriately concedes the
maternal grandfather was an available extended family member under
section 224.1, subdivision (c), and was not interviewed as required. Although
the Agency attempted to contact the maternal grandfather by calling an out-
of-service phone number, the record does not reflect the Agency took further
reasonable steps to contact and interview him.
The record further supports the Agency’s concession that the inquiry
letters sent to the tribes was deficient under section 224.2, subdivision (e).
While the Agency did appropriately contact the tribes, it failed to include
information “necessary for the tribe to make a membership or eligibility
determination.” (§ 224.2, subd. (e)(2)(C).) The inquiry letters should have
included available information pertaining to the maternal grandmother,
great-grandmother, and maternal grandfather, who were of potential Native
American ancestry.
The Agency disagrees with Mother’s contention that its inquiry with
I.H.’s father was deficient, or that further inquiry with his extended family
members was required. At the detention hearing, I.H’s father was present
and filed an ICWA-20 form reporting, to his knowledge, he had no Native
American ancestry. Counsel for I.H.’s father also informed the court that the
father denied Native American ancestry. In its letter brief, the Agency
asserts “his relatives did not avail themselves to the Agency or juvenile court
during the case.” Based on the record, we are unable to determine whether
I.H.’s extended family members on father’s side were known or available to
provide readily obtainable information about I.H.’s potential Native
American ancestry. But because the Agency agrees to a limited remand for
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the Agency to comply with ICWA inquiries with regards to the Children’s
maternal lineage and concedes the juvenile court failed its inquiry obligation
to independently inquire of I.H.’s father, we assume the court and the Agency
will fully comply with its inquiry duties under ICWA on remand. (See In re
Y.W. (2021) 70 Cal.App.5th 542, 554 [a parent’s mere denial of Native
American ancestry is not enough to satisfy the Agency’s “broad duty” to ask
known and available extended family members about the child’s ICWA
status]; In re Benjamin M. (2021) 70 Cal.App.5th 735, 743 [“A parent
challenging ICWA compliance cannot always easily obtain the missing
information, even when that missing information is about a parent’s possible
[Native American] ancestry.”].)
In sum, we conclude substantial evidence does not support the juvenile
court’s ICWA findings. We therefore conditionally reverse the orders
terminating Mother’s parental rights with a limited remand for the Agency to
comply with ICWA and section 224.2.
DISPOSITION
The juvenile court’s orders terminating Mother’s parental rights is
conditionally reversed. The matter is remanded to the juvenile court with
directions that the Agency comply with the inquiry provisions of ICWA and
section 224.2. If, after Agency compliance with ICWA and section 224.2, the
juvenile court finds that no ICWA notice is required to be given, the orders
terminating Mother’s parental rights shall be reinstated. If, after compliance
with section 224.2, the juvenile court finds that ICWA notice is required, the
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Agency shall comply with its ICWA notice obligations and the juvenile court
shall proceed accordingly.
DO, J.
WE CONCUR:
DATO, Acting P. J.
BUCHANAN, J.
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