Filed 4/3/23 In re Be.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 Be.B. et al., Persons Coming
Under the Juvenile Court Law.
D081284
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. SJ12992A-C)
Plaintiff and Respondent,
v.
B.B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Conditionally reversed and remanded with
directions.
Anna Rak, under appointment by the Court of Appeal, for Defendant
and Appellant.
Claudia G. Silva, County Counsel, Lisa Maldonado, Chief Deputy
County Counsel, and Georgia Braun, Deputy County Counsel, for Plaintiff
and Respondent.
INTRODUCTION
B.B. (Father) appeals from orders terminating parental rights to his
children, Be.B., V.B., and Br.B. (the children), at the Welfare and Institutions
Code section 366.261 hearing.2 His sole contention on appeal is that the San
Diego County Health and Human Services Agency (Agency) did not comply
with its inquiry duties under the federal Indian Child Welfare Act (25 U.S.C.
§ 1901 et seq.) (ICWA). The Agency concedes it did not fully comply with
aspects of its inquiry duties, and therefore agrees that a limited remand is
appropriate. The parties filed a joint stipulation to immediate issuance of the
remittitur. We accept the Agency’s concession as to its duties of inquiry and
the parties’ joint stipulation, conditionally reverse the order terminating
Father’s parental rights, and remand for the limited purpose of compliance
with ICWA and its related statutory provisions.
FACTUAL AND PROCEDURAL BACKGROUND3
In February 2021, the Agency petitioned the juvenile court under
section 300, subdivision (b)(1), alleging the children were at substantial risk
of serious physical harm or illness because the parents did not provide them
with suitable shelter. Specifically, the petitions alleged there were illegal
substances accessible to the children in the family home, and that the
parents allowed known drug users and gang members to be in and around
1 All undesignated statutory references are to the Welfare and
Institutions Code.
2 Mother is not a party to this appeal and is discussed only when
relevant.
3 Because Father’s sole contention on appeal relates to ICWA, we limit
our discussion of the factual and procedural history to those facts relevant to
his claim.
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the home. The Agency also submitted an affidavit asking the court to issue a
protective custody warrant. The juvenile court issued the protective custody
warrant pursuant to section 340, subdivision (a), and the children were
placed in out-of-home care at the detention hearing.
The Agency filed several reports during the pendency of the case that
discussed its investigation of the children’s potential Native American
ancestry. The Agency reported that Mother “denied ICWA,” and that it was
initially unsuccessful in contacting Father to inquire about ICWA. Father
later spoke with the Agency and denied any Native American ancestry. The
Agency noted that in a prior dependency case, the juvenile court found that
ICWA did not apply to Be.B. and V.B.
The Agency also documented its interviews with paternal relatives
relating to the ICWA investigation. Paternal grandmother disclosed that her
family is from Denmark and that she has no relatives who were enrolled in a
tribe or lived on a reservation. To her knowledge, paternal grandfather’s
family members were not enrolled members of a tribe and also never lived on
a reservation. Paternal uncle believed his family had affiliation with the
Blackfeet tribe and stated that paternal great-aunt may have further
information. Paternal great-aunt denied any Native American ancestry but
believed a family member may have received a scholarship to college based
on affiliation with a Native American tribe. She was unable to confirm this
information but she believed the relative’s father, L.B., could substantiate
her claim. The record does not reflect that the Agency contacted L.B.
The juvenile court reviewed the Agency’s reports and made several
ICWA-related findings. At the six-month review hearing, the court found
that reasonable inquiry had been made to “determine whether the child[ren]
[are] or may be . . . Indian child[ren].” It further found that notice pursuant
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to ICWA was not required because the court had no reason to know the
children were “Indian child[ren].” At a pretrial status conference, the
juvenile court inquired directly from Father if he was aware of any Native
American ancestry, and Father responded “no.” The juvenile court again
found, without prejudice, that ICWA was not applicable to the proceeding.
At the section 366.26 hearing, counsel for the Agency informed the
court that it had submitted an “informal inquiry” with the Blackfeet tribe via
email and certified mail. Although the Agency received a confirmation
receipt for the inquiry letter, it had not yet received any response from the
tribe. The Agency asked the juvenile court to find that it had conducted an
adequate inquiry and that ICWA did not apply. The court found that the
Agency made a sufficient inquiry from the children’s relatives, and based on
the family’s denials of Native American ancestry and the lack of response
from the Blackfeet tribe, the court found, without prejudice, that ICWA did
not apply. The court then terminated parental rights and ordered adoption
as the children’s permanent plan.
Father appeals the termination orders but only challenges the juvenile
court’s finding that ICWA does not apply.
DISCUSSION
Father contends the Agency failed to comply with its duties of initial
and further inquiry pursuant to ICWA and section 224.2. As to its duty of
initial inquiry, Father asserts the Agency did not inquire of the paternal
relatives in a timely manner, and further asserts the Agency failed to inquire
of the children, the maternal aunt, and the maternal half-siblings, despite
having their contact information. As to its duty of further inquiry, Father
argues the Agency erroneously failed to contact the Bureau of Indian Affairs
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(BIA), or extended paternal family members, when it received information
from a relative suggesting potential affiliation with the Blackfeet tribe.
The Agency concedes that it did not adequately comply with its inquiry
duties. “On appeal, we review the juvenile court’s ICWA findings for
substantial evidence. [Citations.] But where the facts are undisputed, we
independently determine whether ICWA’s requirements have been satisfied.”
(In re D.S. (2020) 46 Cal.App.5th 1041, 1051 (D.S.).) We accept the Agency’s
concession as to its duties of inquiry, and under either standard of review, we
conclude the juvenile court’s ICWA findings were inadequately supported by
the evidence.
Congress enacted ICWA in order to address the separation of “Indian
children from their families and tribes through adoption or foster care
placement, usually in non-Indian homes. [Citation].” (In re Isaiah W. (2016)
1 Cal.5th 1, 7.) Thereafter, our Legislature enacted provisions to effectuate
ICWA’s purposes, including section 224.2. (Id. at p. 9.) Section 224.2
imposes an “affirmative and continuing duty” upon the Agency and the
juvenile court to inquire whether a child subject to juvenile dependency may
be an Indian child. (§ 224.2, subd. (a).)
“This continuing duty [of inquiry] can be divided into three phases: the
initial duty to inquire, the duty of further inquiry, and the duty to provide
formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.) In the first
phase, the Agency’s initial duty requires it to, at a minimum, inquire from
the party reporting child abuse or neglect whether they have information
that suggests “the child may be an Indian child.” (§ 224.2, subd. (a).) In the
second phase, “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
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practicable.’ ” (D.S., supra, 46 Cal.App.5th at p. 1052.) In the third stage, “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.” (Ibid.)
Subdivision (b) of section 224.2 creates an expanded duty of initial
inquiry that requires the Agency to ask extended family members whether
the child may be an Indian child.4 We note, however, that the plain language
of section 224.2, subdivision (b), suggests this expanded duty applies only
when the child has been taken into temporary custody without a warrant
pursuant to sections 306 or 307. (§ 224.2, subd. (b) [expanded duty to inquire
of extended family members is triggered “[i]f a child is placed into the
temporary custody of a county welfare department pursuant to section 306 or
a county probation department pursuant to Section 307 . . . .”]; see also In re
Adrian L. (2022) 86 Cal.App.5th 342, 355–359 (conc. opn. of Kelley, J.)
[concluding agency did not have an initial inquiry duty to inquire of extended
family members under § 224.2, subd. (b) because child was not placed into
agency’s temporary custody pursuant to section 306 or 307].)
Here, the juvenile court issued a protective custody warrant under
section 340, subdivision (a), and the children were not taken into temporary
custody under sections 306 or 307. We therefore question whether the
Agency had the expansive duty of initial inquiry mandated by section 224.2,
subdivision (b). But we need not decide this issue because, as discussed
below, we find independent grounds to conditionally reverse and remand
4 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); Welf. &. Inst.
Code, § 224.1, subd. (c) [“ ‘extended family member’ . . . defined as provided in
[§] 1903” of ICWA].)
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based on the Agency’s failure to fulfill its duties of further inquiry. We
presume the Agency will fully comply with its inquiry duties on remand.
Pursuant to its duties of further inquiry, if the Agency has “reason to
believe” a child involved in a dependency proceeding is an Indian child, it
must conduct further inquiry by interviewing extended family members, and
contacting tribes that may have information regarding the child’s tribal
membership, and the BIA. (§ 224.2, subd. (e)(2)(A)-(B).) There is “reason to
believe” a child is an Indian child if the Agency has information “suggesting”
the child, or the child’s parents, are a member or may be eligible for
membership in a Native American tribe. (§ 224.2, subd. (e)(1).) Courts have
broadly construed the “reason to believe” standard to enforce the Agency’s
continuing statutory obligation to inquire whether a child may be an Indian
child. (In re S.R. (2021) 64 Cal.App.5th 303, 317 [“[t]he recent amendment to
section 224.2, subdivision (e) confirms the ‘reason to believe’ standard
requiring further inquiry should be broadly interpreted.”]; In re T.G. (2020)
58 Cal.App.5th 275, 295 [construing the duty to make further inquiry broadly
is “essential to the enforcement of the court’s and child protective agency’s
‘affirmative and continuing duty to inquire’ ”].)
The Agency concedes its statutory duty of further inquiry required it to
seek contact with a paternal relative, L.B., who may have had information
regarding potential tribal affiliation. The Agency further concedes that it
should have contacted the BIA and provided proof of this contact to the
juvenile court. Broadly construing the “reason to believe” standard, we agree
with the Agency’s concessions. Paternal great-aunt represented to the
Agency that a relative, L.B., may have information pertaining to familial
tribal affiliation. The paternal aunt’s attempt to contact L.B. was
unsuccessful, and the record does not reflect that the Agency sought contact
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with him. Further, since the Agency had information that the children may
have Blackfeet Tribe ancestry, it had a duty to contact the BIA pursuant to
section 224.2, subdivision (e)(2)(B).5 Because the Agency failed to make
these inquiries after receiving specific information alleging potential Native
American ancestry, a conditional reversal and limited remand to ensure
compliance with ICWA is appropriate. (See In re Josiah T. (2021) 71
Cal.App.5th 388, 404 [grandmother’s representation that she had Cherokee
ancestry was “specific enough to trigger the duty of further inquiry.”]; D.S.,
supra, 46 Cal.App.5th at pp. 1046, 1052 [aunt’s representation that she may
have Sioux and Blackfeet ancestry was sufficiently specific to trigger a duty
of further inquiry even though aunt had no further information or reason to
believe the child was an Indian child.].)
Accordingly, we conclude the Agency did not adequately comply with its
statutory duties of inquiry, and therefore the juvenile court’s ICWA findings
were not supported by the evidence. We therefore conditionally reverse the
court’s orders terminating Father’s parental rights and remand the matter to
the juvenile court so the Agency may comply with ICWA and section 224.2.
DISPOSITION
The juvenile court’s November 18, 2022 orders terminating Father’s
parental rights 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 inquiry
5 We further note that although the Agency provided an informal inquiry
letter to the Blackfeet Tribe, the record is silent as to whether the letter
included information “necessary for the tribe to make a membership or
eligibility determination.” (§ 224.2, subd. (e)(2)(C).) But because the Agency
agrees to a limited remand to comply with its ICWA inquiries, we assume the
Agency will fully comply with its inquiry duties under ICWA on remand.
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provisions of section 224.2. Within 45 days of the remittitur, the juvenile
court must conduct a hearing to determine whether the Agency’s
investigation satisfied its duties of inquiry. 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 know that the
children are Indian children after completion of further inquiry, the juvenile
court shall reinstate the November 18, 2022 orders terminating Father’s
parental rights. Alternatively, if after completing further inquiry the Agency
or the juvenile court has reason to know that the child is an Indian child, the
court shall proceed accordingly.
By stipulation of the parties, the clerk of this court is directed to issue
the remittitur immediately. (Cal. Rules of Court, rule 8.272(c)(1).)
BUCHANAN, J.
WE CONCUR:
IRION, Acting P. J.
DO, J.
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