Filed 5/3/23 In re N.W. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
In re N.W. et al., Persons Coming Under the Juvenile C096840
Court Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No. STK-JD-DP-
AGENCY, 2020-0000425)
Plaintiff and Respondent,
v.
F.W.,
Defendant and Appellant.
Appellant F.W., father of the minors, appeals from juvenile court orders
terminating parental rights and freeing the minors for adoption. (Welf. & Inst. Code,
§§ 366.26, 395.)1 Father contends the orders should be reversed because the juvenile
court and the San Joaquin County Human Services Agency (Agency) failed to comply
1 Undesignated statutory references are to the Welfare and Institutions Code.
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with the notice and inquiry requirements of the Indian Child Welfare Act (25 U.S.C.
§ 1901 et seq.) (ICWA).
Because the juvenile court did not make ICWA findings, we will conditionally
reverse and remand the matter for ICWA compliance.
BACKGROUND
A section 300 petition was filed on behalf of the minors in November 2020
following a failed safety plan. The detention report reflected that mother indicated she
did not have any Indian ancestry and father indicated he had “Oklahoma Cherokee”
heritage through his maternal grandmother. The social worker completed an ICWA-10
form and stated that ICWA notices would be sent. Neither parent appeared at the
November 2020 detention hearing. The minors were ordered detained from parental
custody and were placed in the home of T., a paternal relative.
The parents attended the jurisdiction hearing on December 1, 2020, and were
appointed counsel. The juvenile court inquired about possible Indian ancestry. Mother
stated she did not have any Indian ancestry and father stated that, on his maternal side, his
grandmother’s mother was “Cherokee Indian out of Oklahoma, but she passed away” and
her husband had remarried. The juvenile court directed father to provide that information
to the Agency and the jurisdiction hearing was continued.
On December 8, 2020, the Agency filed ICWA-20 forms that had been completed
and signed by the parents on October 16, 2020. On the forms, mother indicated she had
no Native American ancestry; father indicated he had Cherokee Indian ancestry with a
tribe in Oklahoma through his maternal grandmother.
On January 5, 2021, the Agency filed ICWA notice documentation. The notice
contained identifying information for mother and the maternal grandparents who were
born in Vietnam. The notice also contained names, addresses, birth/death dates, and
tribal affiliations (Apache, Cherokee, Choctaw, and Navajo) for father and his maternal
line, which included the minors’ grandmother, great-grandmother (deceased), great-
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grandfather (deceased), great-great grandfather (deceased), and great-great grandmother
(deceased). The notice was sent to The Choctaw Nation of Oklahoma, Cherokee Nation,
Apache Tribe of Oklahoma, Colorado River Indian Tribes, Eastern Band of Cherokee
Indians, Jena Band of Choctaw Indians, Mescalero Apache Tribe, Navajo Nation, Fort
Sill Apache Tribe of Oklahoma, Jicarilla Apache Nation, Mississippi Band of Choctaw
Indians, Ramah Navajo School Board, Inc., San Carlos Apache Tribe, United Keetoowah
Band of Cherokee Indians of Oklahoma, Yavapai-Apache Nation of Camp Verde Indian
Reservation Arizona, Tonto Apache Tribe of Arizona, and White Mountain Apache Tribe
of Fort Apache Reservation Arizona. The notice was also sent to the Bureau of Indian
Affairs (BIA). The notice included the completed ICWA-20 forms, along with birth
certificates for father, one of the minors, and the paternal grandmother. Father’s birth
certificate indicated that the identifying information for his father had been withheld.
The Agency’s February 18, 2021 jurisdiction report reflected that the investigating
social worker completed and signed an ICWA-10 form which gave her reason to believe
the minors might have Indian ancestry in a Cherokee tribe from Oklahoma. The report
provided the parents’ responses regarding Indian ancestry in their completed ICWA-20
forms. The report reflected that notice was sent to the tribes in a completed ICWA-30
form and an ICWA compliance hearing was set for March 23, 2021. But there is no
indication in the record that the hearing occurred. The juvenile court took jurisdiction on
March 2, 2021.
The Agency’s November 23, 2021 disposition report provided a summary of the
ICWA information and status and noted responses had not been received from the BIA,
Colorado River Indian Tribes, Yavapai-Apache Nation, and San Carlos Apache Tribe.
Each of the other tribes had responded that the minors were not enrolled or eligible for
enrollment. The Agency concluded there was no reason to believe the minors were
Indian children within the meaning of ICWA.
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The disposition report included mother’s family background, as provided by
mother. Mother was the oldest of six siblings and was raised by her mother. The
January 5, 2021 ICWA notice contained information showing that both of mother’s
parents originated from Vietnam. She never knew her father. The report also contained
father’s family background interview which was completed with the assistance of his
relative Sharon, who helped father with the minors’ care and appointments. Father, who
was diagnosed with schizophrenia as a child, stated he was the only child born to his
mother and his father. His mother was an alcoholic and inconsistent in his life, so he was
often left in the care of his maternal grandmother, who passed away in 2007. Father
reported that he never met his father, who was in and out of prison most of his life.
The disposition report also reflected that, in addition to paternal relatives T. and
Sharon, the Agency identified a maternal uncle, T.L., and one non-related extended
family member. The Agency further identified the paternal grandmother, maternal
grandmother, and a maternal aunt – none of whom had responded to the Agency’s
attempt at contact. The Agency identified three additional maternal relatives but lacked
sufficient information to contact them. In February 2022, the minors were moved from
T.’s home to the home of T.’s mother -- unnamed in the social worker’s reports -- where
they have remained.
The disposition hearing did not commence until January 5, 2022, and was not
completed until March 1, 2022. The juvenile court adjudicated the minors dependent
children of the court, ordered them removed from parental custody, bypassed parents for
reunification services, and set a section 366.26 hearing.
The contested section 366.26 hearing took place on August 17, 2022. The juvenile
court found the minors likely to be adopted, found no exceptions to adoption applied, and
terminated parental rights. Father appealed.
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DISCUSSION
Father contends the juvenile court did not make required ICWA findings.
The Agency concedes the juvenile court did not make express findings. We agree with
the parties that the juvenile court did not make any findings as to the adequacy of the
Agency’s inquiry or whether ICWA applied. A juvenile court must make findings as
to the applicability of ICWA, and failure to do so is error. (In re Jennifer A. (2002)
103 Cal.App.4th 692, 704-705, 709.)
The Agency nevertheless argues that on this record, the juvenile court could be
deemed to have made implied ICWA findings. But when findings are implied, the record
must “ ‘reflect that the court considered the issue and decided whether ICWA applies.’ ”
(In re G.A. (2022) 81 Cal.App.5th 355, 361, review granted Oct. 12, 2022, S276056,
quoting In re Asia L. (2003) 107 Cal.App.4th 498, 506.) For example, in Asia L., the
appellate court concluded the juvenile court implicitly found ICWA did not apply when it
“expressly found that ‘notice had been given pursuant to ICWA’ and then proceeded to
terminate appellants’ parental rights under the usual rather than the heightened ICWA
standards.” (In re Asia L., at p. 506.)
Here, the record does not show any finding or even comment by the juvenile court
as to the adequacy of the Agency’s inquiry or whether ICWA applied. We decline to
imply ICWA findings on this record.
The Agency suggests there can be no prejudice because the minors were placed
with a paternal relative who planned to provide permanency to the minors through
adoption, and such a relative placement would have been the first placement preference if
the minors had been found to be Indian children. But the Agency did not develop this
point into a complete argument. Among other things, it did not address whether, on this
record, a tribe could have possibly been prevented from seeking intervention, transfer to
tribal court, or tribal customary adoption. Because we have not been provided with a full
argument on this specific point, we decline to decide it.
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Moreover, we decline to make our own ICWA findings. Appellate courts can
make findings of fact on appeal, but the authority is exercised sparingly. (In re Zeth
S. (2003) 31 Cal.4th 396, 405.) “[I]t is up to the juvenile court to review the information
concerning the notice given, the timing of the notice, and the response of the tribe, so that
it may make a determination as to the applicability of [ICWA], and thereafter comply
with all of its provisions, if applicable.” (In re Jennifer A., supra, 103 Cal.App.4th at
p. 705.) We will remand for the juvenile court to make the requisite findings.
DISPOSITION
The orders terminating parental rights are conditionally reversed and the matter
remanded for the juvenile court to determine whether compliance with ICWA has
occurred, and to enter ICWA findings. If the minors are found not to be Indian children
falling within the provisions of ICWA, the orders shall be reinstated. However, if the
minors are determined to be Indian children as defined by ICWA, and the juvenile court
determines ICWA applies to this case, the court shall proceed in accordance with ICWA.
/S/
MAURO, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
MESIWALA, J.
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