Filed 1/13/23 In re K.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.B., a Person Coming Under
the Juvenile Court Law.
D080888
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. NJ15664)
Plaintiff and Respondent,
v.
H.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Honorable Michael Imhoff, Judge. Conditionally reversed and remanded
with directions.
Konrad S. Lee, 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, Senior Deputy County Counsel for Plaintiff and
Respondent.
INTRODUCTION
H.B. (Mother)1 appeals from the juvenile court’s order terminating her
parental rights for K.B.2 pursuant to Welfare and Institutions Code section
366.26.3 The sole issue on appeal is whether the San Diego County Health
and Human Services Agency (Agency) and the juvenile court failed to conduct
an adequate inquiry into K.B.’s potential Native American ancestry, as
required by the Indian Child Welfare Act (ICWA).
The Agency concedes that its investigation under ICWA was deficient.
The parties filed a joint stipulation seeking the issuance of an immediate
remittitur. We accept the stipulation, conditionally reverse, and remand for
the limited purpose of ensuring compliance with ICWA’s requirements.
FACTUAL AND PROCEDURAL BACKGROUND4
In September 2020, the Agency petitioned the juvenile court under
section 300, subdivision (c), on behalf of 11-year-old K.B. The Agency alleged
that K.B. was suffering from an emotional disorder which included suicidal
1 L.B. (Father) is not a party to this appeal.
2 As noted in H.B.’s appellate brief, the minor child prefers the pronouns
“they/their” and recently changed names. But because the child was
identified as “she/her” and by the prior name earlier in the case, Mother
employs the “she/her” pronouns and the prior name (K.B.) throughout her
brief to maintain consistency in writing. We will do the same. No disrespect
is meant to the child by either practice.
3 Further undesignated statutory references are to the Welfare and
Institutions Code.
4 Because Mother’s challenge on appeal is limited to ICWA compliance,
we provide an abbreviated summary of the dependency proceedings focused
on the facts relevant to the issue on appeal.
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ideation, anxiety and depression and that Mother failed to address the child’s
issues through treatment.
The Agency submitted a detention report on September 2, 2020.
Although the Agency said in the detention report that it had “inquired of the
parents/relatives about the Indian status/heritage of the child,” the only
documentation of the inquiry was that Mother denied being “a member of an
American Tribe.” Nevertheless, the detention report stated “ICWA does or
may apply.”
The court held an initial detention hearing on September 4, 2020.
Father appeared by telephone, but Mother was not present. Both Father’s
and Mother's counsel represented that their clients had no Native American
heritage. Based on counsel representations, the court said that it did “not
have any reason to believe that the child would be considered an Indian
child” and found that ICWA did not apply at that time. The court did not
question Father directly about any potential Indian ancestry. Nor did the
court order the parents to complete Parental Notification of Indian Status
forms (ICWA-020) or instruct them to keep the court informed of any related
new information.
About three weeks later, the Agency submitted an addendum report,
which stated that the investigating social worker “completed a full ICWA
inquiry with the father.” That inquiry comprised of the following five
questions:
1. Has anyone in the family ever lived on a
reservation?
2. Has anyone in the family ever received any
financial, medical, or education assistance from a
tribe?
3. Does anyone in the family speak a Native
American language?
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4. Is anyone active in tribal activities such as tribal
council meetings, religious rituals, or pow-wows?
5. Is any family member a member of a tribe or an
enrolled member in a tribe?
Father denied any Indian ancestry during this inquiry. The social worker
was unable to complete a similar inquiry with Mother as of an October 15,
2020, jurisdiction and disposition report. Still, the Agency reported that
ICWA “does or may apply.”
On December 9, 2020, the court held a contested adjudication and
disposition hearing. The court found that notice pursuant to ICWA was not
required “because the court knows the child is not an Indian child” based on a
“[r]easonable inquiry.” Subsequently, at a six-month review hearing on June
9, 2021, the court again found that notice pursuant to ICWA was not required
because of a reasonable inquiry showing that K.B. is not an Indian child.
Shortly after, the Agency completed and filed an Indian Child Inquiry
Attachment form (ICWA-010(A)). The ICWA-010(A) form stated that the
social worker asked the parents about K.B.’s Indian ancestry. The Agency
said this inquiry gave the social worker “no reason to believe the child is or
may be an Indian child. Thereafter, the court proceeded to find both at a
jurisdictional hearing on July 19, 2021, and at a contested section 366.26
hearing on August 3, 2022, that ICWA did not apply. Neither parent ever
submitted an ICWA-020 form as of these hearings, nor is there any record of
the court ever instructing either parent to keep the court informed of any
related new information.
The appellate record shows that the Agency either spoke with or
obtained the name, age, and city of residence of several of K.B.’s family
members throughout these proceedings. On the maternal side, these family
members included the maternal grandmother, T.B.; a maternal aunt, A.C.;
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and a maternal uncle, T.M. On the paternal side, the Agency either spoke
with or was aware of the paternal grandmother, B.D.; paternal uncles, T.D.,
B.D., and R.J.; a paternal aunt, A.A.; and a paternal adult sibling of the
minor, A.B.5 Although they were not mentioned in Mother’s brief, the Agency
also spoke with a maternal great-grandmother, B.T., and was aware of
another paternal adult sibling of the minor, E.B. The Agency also spoke
extensively with K.B., who was 11 years old at the start of the juvenile
dependency case. There is nothing in the record to suggest that either the
Agency or the juvenile court ever inquired of K.B. or any of these relatives
about K.B.’s potential Indian ancestry.
Mother appealed, challenging only the court’s compliance with the
inquiry provisions of ICWA and the related state provisions under California
law.
DISCUSSION
Mother contends that the Agency and court failed to comply with their
inquiry duties under ICWA. The Agency concedes, and we agree, that the
inquiries were deficient. Because we conclude the error is prejudicial, we
conditionally reverse and remand for the limited purpose of requiring
compliance with ICWA.
I.
ICWA Inquiry Duties, Generally
Congress enacted ICWA to address concerns regarding the separation
of Indian children from their tribes through adoption or foster care placement
5 Mother argues that the Agency was also aware of the paternal
grandfather. However, Father says that the paternal grandfather passed
away.
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with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Under
California law adopted pursuant to ICWA, the juvenile court and Agency
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., supra, 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.”
The first stage 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.”
(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
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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].) In addition, “[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” and “shall instruct the parties to inform the
court if they subsequently receive information that provides reason to know
the child is an Indian child.” (§ 224.2, subd. (c).)
“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.)
II.
The Agency’s and the Juvenile Court’s Inquiry
Mother contends that there is no evidence to show that the juvenile
court asked Mother, Father, or several identified family members about their
possible Indian ancestry. The Agency concedes, and we agree, that the
Agency and the court did not satisfy their initial inquiry obligations under
ICWA.
The record reflects that both Mother and Father appeared at several
hearings between September 2020 and August 2022, but the court never
asked them about K.B.’s potential Native American ancestry. (§ 224.2, subd.
(c).) The court also failed to instruct Mother or Father to keep the court
apprised of any new information providing reason to know that K.B. is an
Indian child. (Ibid.) Further, neither parent ever filed an ICWA-020 form in
this case. (Cal. Rules of Court, rule 5.481(a)(2)(B), (C).)
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The Agency also concedes, and we agree, that there were several
available “extended family member[s]” whom the Agency did not ask about
K.B.’s potential Indian heritage, as was statutorily required. (25 U.S.C. §
1903(2); § 224.1, subd. (c); § 224.2, subd. (b).) The Agency disagrees, however,
that the three paternal uncles and a maternal uncle identified by Mother
were sufficiently “available” to the Agency to trigger the duty of inquiry. But
the record shows that the Agency either spoke with or had the full names,
ages, and cities of residence for each of these family members. The Agency
was therefore fully capable of either inquiring with these individuals or
searching further for their contact information.
To fulfill their initial duty obligations, the Agency and the court were
required to ask the parents and the extended family members about K.B.’s
potential Indian ancestry, and the court was required to order the parties to
keep it apprised of new ancestry information. If for some reason it was not
possible to contact K.B.’s family members, 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 (Benjamin M.).) 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.) Thus, the Agency and court failed to satisfy their initial inquiry
obligations under section 224.2, subdivisions (b) and (c).
III.
Prejudicial Error
We further conclude that the inquiry errors are prejudicial. Therefore,
we conditionally reverse the court’s order and remand the matter for the
limited purpose of compliance with ICWA.
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Because the failures in this case concern the Agency’s and court’s state
statutory duties of inquiry, only state law is involved. Therefore, we may not
reverse unless the error was prejudicial under state law. (Cal. Const., art.
VI, § 13 [“No judgment shall be set aside . . . unless, after an examination of
the entire cause, including the evidence, the court shall be of the opinion that
the error complained of has resulted in a miscarriage of justice.”]; People v.
Watson (1956) 46 Cal.2d 818, 836 [miscarriage of justice may be found when
court concludes it is reasonably probable result more favorable to appellant
would have been reached in absence of error].)
There is a split of authority among the California Courts of Appeal
regarding how to apply this prejudicial error standard to cases in which
agencies and/or juvenile courts have failed to satisfy their inquiry duties
under ICWA. (See In re Dezi C. (2022) 79 Cal.App.5th 769, 777–782, review
granted September 21, 2022, S275578, [discussing the “continuum” of three
rules for assessing whether a defective inquiry is harmless or prejudicial, and
adopting fourth rule].) The California Supreme Court has yet to resolve this
split of authority.
For purposes of this appeal, however, we need not and do not weigh in
on this highly disputed question. Rather, we conclude that the Agency’s and
the court’s failure to satisfy their inquiry duties under ICWA has caused a
miscarriage of justice. (Cal. Const., art. VI, § 13.) For example, if we apply
the apparent “middle ground” standard set forth in Benjamin M. 70
Cal.App.5th at pp. 744–745, prejudicial error exists for at least two reasons.
(Ibid. [prejudice exists and reversal required where “the record indicates that
there was readily obtainable information that was likely to bear meaningfully
upon whether the child is an Indian child”].)
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First, the juvenile court failed to instruct Mother or Father to keep the
court apprised of any new information providing reason to know that K.B. is
an Indian child. Thus, these individuals do not appear to have been under
any continuing order to inform the juvenile court of new information relevant
to ICWA.
Second, the record before us shows that there was virtually no inquiry
into K.B.’s potential Native American ancestry. The juvenile court failed to
ever ask Mother or Father about potential Native American ancestry, and the
Agency failed to ever ask numerous available relatives.
Based on these inquiry failures, we must presume that there was
readily obtainable information that was likely to bear meaningfully on
whether K.B. is an Indian child. (Benjamin M., supra, 70 Cal.App.5th at pp.
745–746.)
Before reversing or vacating a judgment based upon a stipulation of the
parties, an appellate court must find “both of the following: [¶] (A) There is
no reasonable possibility that the interests of nonparties or the public will be
adversely affected by the reversal. [¶] (B) The reasons of the parties for
requesting reversal outweigh the erosion of public trust that may result from
the nullification of a judgment and the risk that the availability of stipulated
reversal will reduce the incentive for pretrial settlement.” (Code Civ. Proc.,
§ 128, subd. (a)(8).) Because this case would be subject to reversal to permit
compliance with ICWA and corresponding California statutes and rules
absent the parties’ stipulation, a stipulated remand advances the interests
identified by Code of Civil Procedure section 128, subdivision (a)(8). (See In
re Rashad H. (2000) 78 Cal.App.4th 376, 379–382.)
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DISPOSITION
The juvenile court’s order issued at the section 366.26 hearing is
conditionally reversed. The matter is remanded to the juvenile court with
directions to comply with the inquiry provisions of ICWA and section 224.2.
If, after completing its inquiry, neither the Agency nor the juvenile court has
reason to believe or reason to know that K.B. is an Indian child, the order
issued at the section 366.26 hearing shall be reinstated. If the Agency or the
juvenile court has reason to believe or reason to know that K.B. is an Indian
child, the juvenile court shall proceed accordingly. The remittitur shall issue
immediately.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DO, J.
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