Filed 1/6/23 In re K.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 K.D., a Person Coming Under
the Juvenile Court Law.
D080817
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ4777)
Plaintiff and Respondent,
v.
D.D. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Conditionally reversed and remanded with directions.
Diana W. Prince, under appointment by the Court of Appeal, for
Defendant and Appellant, Mother D.D.
Clare M. Lemon, under appointment by the Court of Appeal, for
Defendant and Appellant, Father D.D.
Claudia G. Silva, County Counsel, Caitlin E. Rae, Chief Deputy County
Counsel, and Tahra Broderson, Deputy County Counsel for Plaintiff and
Respondent.
INTRODUCTION
Appellants D.D. (Mother) and D.D. (Father) appeal the juvenile court’s
jurisdictional and dispositional order declaring their minor son, K.D., a
dependent and removing him from their custody. The sole issue is whether
the San Diego County Health and Human Services Agency (the Agency)
failed to comply with its inquiry requirements under the Indian Child
Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and Welfare and Institutions
Code1 section 224.2, and thus, substantial evidence does not support the
juvenile court’s finding that ICWA did not apply to K.D.’s juvenile
dependency proceedings. The Agency concedes its initial inquiry under
ICWA was deficient and failed to comply with Welfare and Institutions Code
section 224.2, subidivision (b) and California Rules of Court, rule 5.481(a).
The Agency further concedes, and we agree, that a limited remand is
appropriate to ensure compliance with the inquiry provisions of ICWA.
Therefore, we conditionally reverse the court’s jurisdictional and dispositional
orders.
FACTUAL AND PROCEDURAL BACKGROUND2
1 All undesignated statutory references are to the Welfare and Institutions
Code unless otherwise specified.
2 We provide an abbreviated summary of the dependency proceedings
and focus on the facts and background relevant to the narrow issue on appeal
of the adequacy of the ICWA inquiry and findings.
2
In June 2022, the Agency detained minor K.D. and initiated
dependency proceedings under section 300, subdivision (b), due to Mother’s
drug use and Father’s failure to protect and supervise.
In a detention report, the Agency said it inquired regarding K.D.’s
ICWA status. Father initially denied having any Native American heritage.
But the paternal grandmother told the social worker that she had Cherokee
ancestry through her mother and Blackfoot ancestry through her father, even
though neither she nor her parents belonged to a tribe. Mother told the
Agency that her grandmother was previously a tribal Blackfoot member, but
that neither she nor K.D. is a member of a tribe. Based on this information,
the social worker recommended the court to find that there is reason to
believe that the child may be an Indian Child and to order the Agency to
conduct further inquiry regarding the possible Indian status of the child.
An initial detention hearing was held on June 20 and June 21, 2022.
Both parents submitted Parental Notification of Indian Status forms (ICWA-
020). Father again denied any Indian ancestry. But Mother’s form claimed
that she, K.D., and one or more of her lineal ancestors were members of the
Blackfoot tribe. Mother also claimed to be a resident or domiciled on a tribal
trust land. The court ordered the Agency “to complete reasonable inquiry”
regarding ICWA.
After the detention hearing, Father reported that his family comes
from the Cherokee tribe, though he noted that no one had been enrolled yet.
Father provided the names of the paternal grandparents, the paternal great-
grandmother, and two other relatives. Two paternal uncles also reported
possible Blackfeet ancestry. Mother also reported that Father’s paternal
family is Cherokee and that his maternal family is half Blackfoot.
3
For her side of the family, Mother reported that she has Blackfoot
ancestry through a great-great-grandmother who may have been enrolled
with the tribe. She provided names for a great-grandmother and her
maternal grandmother, along with the maternal grandmother’s date of birth.
She also provided the name of her uncle who was in the process of registering
them and was in contact with the tribe before he passed away in 2021.
Between July 1, 2022, and July 8, 2022, the social worker called several
other family members about K.D.’s tribal ancestry, including two paternal
uncles, the paternal grandmother, and a paternal step-uncle. One of K.D.’s
paternal uncles reported Blackfoot and Cherokee ancestry, and he provided
the dates of birth for K.D.’s paternal grandparents. K.D.’s paternal
grandmother provided the date of birth for a paternal great-grandmother
with Cherokee ancestry and reported that a great-grandfather had Blackfoot
ancestry.
However, the appellate record shows that the social worker was aware
of but did not speak with several other living family members before
submitting a jurisdiction and disposition report on July 13, 2022. These
family members included the paternal grandfather, the paternal great-
grandfather, and the paternal great-grandmother, Mother’s two siblings, the
maternal grandmother, and three of Mother’s uncles. Nevertheless, even
without speaking with these family members, the Agency’s jurisdiction and
disposition report concluded that the “Indian Child Welfare Act does or may
apply.”
The Agency reported that it sent certified inquiries to the Cherokee
Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the United
Keetoowah Band of Cherokee on July 5, 2022, and again on July 13, 2022,
with “additional information.” The appellate record contains undated letters
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from the Agency to the Cherokee Nation of Oklahoma and the United
Keetoowah Band of Cherokee, though the record does not have a copy of any
letter sent to the Eastern Band of Cherokee Indians. The letters listed the
names and dates of birth for K.D., both parents, the maternal grandmother,
both paternal grandparents, and a paternal great-grandmother. The letters
also listed the names, but no birthdates, of two maternal great-grandmothers
(though Mother previously identified one as a great-great-grandmother), a
“3rd maternal great-uncle,” and a paternal great-grandfather. Each of these
three tribes sent response letters, but none were able to establish tribal
heritage for K.D.3
The Agency also reported that it sent a certified inquiries to the
Blackfeet tribe on July 5, 2022, and again with “additional information” on
July 13, 2022. However, the appellate record does not contain copies of these
inquiries nor any inquiry responses from the Blackfeet tribe. The Agency
subsequently reported that it called the Blackfeet tribe on August 2, 2022.
According to the Agency, the tribe said that it “was out in July for a Tribal
Holiday” and “would be out of the Office again Aug 11th-16th,” but that “the
tribe is now doing Inquiries/Notices for June 2022.”
The record also does not contain a copy of the Notice of Child Custody
Proceeding for Indian Child form (ICWA-030) that the Agency said it
submitted on July 1, 2022, which was a week before the Agency obtained the
birthdate for a paternal great-grandmother identified as having Cherokee
ancestry. Nor is there any record that the Agency contacted the Bureau of
3 The Eastern Band of Cherokee Indians sent its response on July 12,
2022, which was a day before the Agency claims to have sent a supplemental
letter with “additional information” to each of the identified tribes.
5
Indian Affairs (BIA) or the State Department of Social Services (SDSS) for
assistance in identifying the names and contact information of the tribes in
which the child may be a member or eligible for membership.4
The court held a contested adjudication and disposition hearing on
August 11, 2022. When the court asked about ICWA, the Agency said it still
had “one outstanding letter or response from the Blackfeet tribe.”
Nevertheless, the Agency asserted: “[B]ased on the totality of the
information in the record, including all the prior conversations with all of the
relatives and our efforts to garner a response, we can find that there’s no
reason to believe at this point that there’s an Indian child involved.” The
court agreed, stating, “[t]here’s no reason to believe that the Indian Child
Welfare Act applies; therefore, I’ll find it does not apply at this point.”
However, the court noted that “if something changes in the future we’ll
recalendar this.”
Mother and Father timely appealed the court’s order following the
August 11, 2022, hearing. After Mother and Father filed appeal briefs, the
Agency filed a letter brief conceding that a limited reversal and remand is
appropriate to ensure ICWA compliance.
APPLICABLE STANDARDS
4 Father contends that the Agency erred by not contacting the BIA. The
duty of further inquiry generally includes contacting both the BIA and SDSS
for assistance in identifying the names and contact information of the tribes
in which the child may be a member or eligible for membership. (§ 224.2,
subd. (e)(2)(B).) However, Mother and Father do not claim that the identity
of the relevant tribes was unknown. Because notice to the BIA and SDSS is
not required when the identity of the tribe is known, there is no need to
decide in this appeal whether the absence of a notice to the BIA or SDSS
constitutes error. (See In re Karla C. (2003) 113 Cal.App.4th 166, 175, fn. 5.)
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ICWA provides: “In any involuntary proceeding in a State court,
‘where the court knows or has reason to know that an Indian child is
involved,’ the party seeking the foster care placement of, or termination of
parental rights to, an Indian child shall notify the parent or Indian custodian
and the Indian child’s tribe” of the pending proceedings and their right to
intervene. (25 U.S.C. § 1912(a); In re Isaiah W. (2016) 1 Cal.5th 1, 8.)
California law also requires such notice. (§ 224.3, subd. (a) [“If the court [or]
a social worker . . . knows or has reason to know . . . that an Indian child is
involved, notice pursuant to [ICWA] shall be provided for hearings that may
culminate in an order for foster care placement, termination of parental
rights, preadoptive placement, or adoptive placement[.]”].)
The juvenile court and the Agency have an “affirmative and continuing
duty to inquire” whether a dependent child “is or may be an Indian child” in
all dependency proceedings. (§ 224.2, subd. (a).) California’s statutory
scheme contains “three distinct duties regarding ICWA in dependency
proceedings. First, from the Agency’s initial contact with a minor and his [or
her] family, the statute imposes a duty of inquiry to ask all involved persons
whether the child may be an Indian child. ([Id.], 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. (See § 224.2, subd. (c) [court is obligated to inquire at the
first appearance whether anyone ‘knows or has reason to know that the child
is an Indian child’]; id., subd. (d) [defining circumstances that establish a
‘reason to know’ a child is an Indian child]; § 224.3 [ICWA notice is required
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if there is a ‘reason to know’ a child is an Indian child as defined under
§ 224.2, subd. (d)].).” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052 (In re
D.S.).)
The Agency’s initial duty of inquiry includes “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 and where the child, the
parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).) 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].)
After a “reason to believe” that an Indian child is involved has been
established, further inquiry regarding the possible Indian status of the child
is required. (§ 224.2, subd. (e).) The duty of further inquiry includes
(1) interviewing the parents and extended family members; (2) contacting the
BIA and SDSS for assistance in identifying the names and contact
information of the tribes in which the child may be a member, or eligible for
membership; and (3) contacting tribes and anyone else that might have
information regarding the child’s membership or eligibility in a tribe. (Id.,
subd. (e)(2).)
Pursuant to section 224.2, subdivision (e)(2)(C), the Agency must
contact “the tribe or tribes and any other person that may reasonably be
expected to have information regarding the child’s membership, citizenship
status, or eligibility.” The Agency’s contact with the tribe “shall include
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sharing information identified by the tribe as necessary for the tribe to make
a membership or eligibility determination, as well as information on the
current status of the child and the case.” (Ibid.)
DISCUSSION
Mother and Father contend the Agency and the juvenile court failed to
comply with the ICWA in failing to conduct adequate inquiry regarding
whether there was “reason to know” the child was Indian under ICWA. 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 [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.” (In re D.S., supra, 46 Cal.App.5th at p. 1051.)
A. The Agency’s Inquiries with K.D.’s Family Members
Mother and Father contend the Agency failed to ask maternal relatives
it contacted as part of family finding efforts about the family’s possible Native
American heritage. They also contend the Agency erred by not attempting to
interview the paternal grandfather, the paternal great-grandfather, and the
paternal great-grandmother, particularly when the paternal grandmother
reported the family’s Cherokee and “Blackfoot” heritage came from the
paternal great-grandparents.
The Agency concedes, and we accept, that it should have conducted
ICWA inquiries with these family members. Mother’s two siblings, the
maternal grandmother, three of Mother’s uncles, and the paternal
grandfather are all “extended family members” as defined by section 1903 of
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ICWA. Although the paternal great-grandfather and the paternal great-
grandmother do not fall within ICWA’s “extended family member” definition,
they still are individuals “who have an interest in the child.” (§ 224.2, subd.
(b).). The Agency was aware of each of these family members’ existence, so it
should have asked them whether K.D. is, or may be, an Indian child. If for
some reason it was not possible to contact these individuals, the Agency
should have documented why it was unable to interview them. (See In re
Benjamin M. (2021) 70 Cal.App.5th 735, 745–746.) Because this information
“appears to have been both readily available and potentially meaningful,” the
Agency failed to comply with its duty of inquiry. (Id. at p. 744.)
B. The Information the Agency Provided to the Tribes
Mother and Father also contend that the Agency erred by failing to
provide the tribes with sufficient information to determine whether they
considered K.B. an Indian child. Specifically, they argue that the Agency’s
inquiry letters to the tribe were devoid of important information contained in
the jurisdictional and dispositional report, including: the fact that Mother
believed a maternal great-great-grandmother was enrolled in the Blackfeet
tribe; the year of a maternal great-grandmother’s death; the middle names of
two paternal grandparents; any information about a paternal great-
grandmother; and the fact that a maternal uncle had been working with the
Blackfeet tribe for 10 years to register family members with the tribe before
his death in 2021.
All of this identifying and enrollment information was known to the
Agency by the time it sent inquiry letters to the tribes. Section 224.3,
subdivision (a)(5)(C), requires such information be conveyed to the tribes once
the Agency has reason to know that an Indian child is involved. The Agency
therefore erred by failing to provide this information.
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C. The Timing of the Juvenile Court’s Ruling
Lastly, Mother and Father contend the juvenile court erred by failing to
ensure the Agency had satisfied its duties of inquiry before finding ICWA did
not apply. In addition to the Agency’s deficiencies identified above, Mother
and Father point to various documents missing from the record, including the
ICWA-030 form the Agency said it submitted on July 1, 2022, and the inquiry
letters the Agency said it sent to the Eastern Band of Cherokee Indians and
the Blackfeet Tribe on July 5 and July 13, 2022.
“[W]ithout the [form ICWA-030] notice before the court, it had no
evidence from which to conclude the notice was adequate. [¶] Notice under
the ICWA must, of course, contain enough information to constitute
meaningful notice.” (In re Karla C. (2003) 113 Cal.App.4th 166, 175; see Cal.
Rules of Court, rule 5.481(c)(1) [requiring Notice of Child Custody Proceeding
for Indian Child, form ICWA-030, to be sent to Indian child's tribe].)
“Without a review of the notices, the juvenile court is unable to determine
whether they complied with the ICWA . . . and gave the Bureau or the tribe
all known relevant information and a meaningful opportunity to determine
whether the dependent child is an Indian child within the meaning of the
ICWA.” (In re Karla C., at p. 178.) Accordingly, there was insufficient
evidence in the record for the court to determine that the Agency had
provided adequate notice to the tribes by the time of the August 11, 2022,
hearing.
Mother and Father also emphasize the fact that the Agency was still
awaiting an outstanding response from the Blackfeet Tribe by the time of the
contested adjudication and disposition hearing on August 11, 2022. Both
sides of K.D.’s family extensively reported Blackfeet ancestry. Even though
the Agency disclosed the fact that it was still awaiting a response from the
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Blackfeet Tribe, the court still agreed with the Agency’s recommended
finding that there was no reason to believe that ICWA applied. The court
appeared to recognize the potential prejudice to such a ruling when it noted
that it would “recalendar” the hearing “if something changes in the future” on
the ICWA issues.
Because substantial evidence does not support the juvenile court’s
finding that ICWA did not apply, we conditionally reverse the dispositional
orders as to K.D. with a limited remand for the Agency and the juvenile court
to comply with ICWA and section 224.2.
DISPOSITION
The findings and dispositional orders are conditionally reversed and
the matter is remanded to the juvenile court with directions that, within 30
days of the remittitur, the Agency must file a report demonstrating its
compliance with the initial inquiry provisions of section 224.2, subdivision
(b), and, if required, conduct further inquiry under section 224.2, subdivision
(e). Within 45 days of the remittitur, the juvenile court must conduct a
hearing to determine whether the Agency’s investigation satisfied its
affirmative duty to investigate. The juvenile court has the discretion to
adjust these time periods on a showing of good cause.
If neither the Agency nor the juvenile court has reason to believe or to
know that K.D. is an Indian child, the dispositional orders issued at the
August 11, 2022, hearing shall be reinstated by the juvenile court.
Alternatively, if after completing the inquiry the Agency or the juvenile court
has reason to believe that K.D. is an Indian child, the court shall proceed
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accordingly. The clerk of this court shall issue the remittitur forthwith. (Cal.
Rules of Court, rule 8.272(c)(1).)
O’ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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