In re G.E. CA4/2

Filed 8/28/23 In re G.E. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re G.E., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E081092

Plaintiff and Respondent, (Super.Ct.No. J292049)

v. OPINION

S.S.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Conditionally reversed with directions.

Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and

Appellant.

Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for

Plaintiff and Respondent.

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 S.S. (mother) appeals from an order terminating her parental rights to her son G.E.

(the child). Mother’s sole claim of error is that the San Bernardino County Children and

Family Services (CFS) did not comply with its duty to adequately inquire whether the

child was an Indian child under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C.

§ 1901 et seq.) and related state law. More specifically, she argues CFS failed to make

sufficient inquiry by locating mother’s and father’s biological parents (both mother and

father were adopted as children) and obtain information about possible Indian ancestry.1

CFS contends its duty to contact extended family members when inquiring into

whether a child is an Indian child was not triggered in this case because the child was

detained pursuant to a detention warrant. In any event, CFS contends the inquiry it made

as to the child’s maternal grandmother (mother’s biological mother) was sufficient.

However, CFS concedes it did not inquire into the name of father’s biological mother

(the child’s paternal grandmother), through whom father claimed his Indian ancestry, and

that a limited remand for further inquiry and noticing as to father is appropriate.

We need not address whether CFS had the duty to inquire of extended family

members under the circumstances of this case, because, even if it erred by not making a

meaningful effort to contact and interview mother’s biological mother, the error was

harmless. In addition, we accept CFS’s concession that conditional reversal with a

limited remand is appropriate for it to conduct further inquiry as to father’s biological

1 “‘[B]ecause ICWA uses the term “Indian,” we do the same for consistency, even
though we recognize that other terms, such as “Native American” or “indigenous,” are
preferred by many.’” (In re Dominick D. (2022) 82 Cal.App.5th 560, 563, fn. 1.)

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mother and for any additional inquiry and notice as the juvenile court may deem

appropriate. Therefore, we conditionally reverse the orders terminating parental rights

and remand for additional ICWA inquiry and new notice to relevant Indian tribes, if

appropriate.

I.

FACTS AND PROCEDURAL HISTORY

Because mother challenges none of the juvenile court’s other findings made before

or during the permanency hearing, we will focus primarily on the limited facts that bear

on CFS’s inquiry and notice under ICWA.

After investigating a report of abuse or neglect because part of the child’s ear had

been cut off, CFS removed the child from mother and father2 pursuant to a protective

custody warrant. At the initial detention hearing, the juvenile court made a prima facie

finding that the child should be detained and that visits with the parents would be

detrimental to the child. Thereafter, the juvenile court found true the allegations of

neglect and severe physical abuse pleaded in an amended petition, declared the child to

be a dependent of the court pursuant to Welfare and Institutions Code3 section 300,

subdivisions (a), (b), (e), and (i), bypassed reunification services and visitation because

the parents themselves were in custody and because it would be detrimental to the child,

2 Father did not appeal the order terminating his parental rights to the child, but our
conditional reversal will inure to his benefit. (See Cal. Rules of Court, rule 5.725(a)(1),
(f); all further references to rules will be to the Cal. Rules of Court.)

3 All undesignated statutory references are to the Welfare and Institutions Code.

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and set a permanency hearing under section 366.36 for termination of parental rights. At

the close of the permanency hearing, the juvenile court found the child was likely to be

adopted, found inapplicable the parent-child beneficial interest exception to termination

of parental rights, and terminated mother and father’s parental rights to the child.

The detention report submitted by CFS stated that mother had initially denied

having any Indian ancestry. Father had indicated he had possible Apache and Navajo

ancestry. Therefore, CFS informed the juvenile court that it had reason to believe the

child was or might be an Indian child. At the detention hearing, the juvenile court stated

it had tried to call “the grandfather” (the record is unclear whether this meant the

mother’s or the child’s grandfather) to make “some ICWA inquiry,” but the court had

been unable to reach him. Moreover, neither parent made an appearance, so the court

was unable to make any ICWA inquiry from them directly.

In a report submitted for the jurisdiction and disposition hearing, CFS continued to

opine that ICWA does or may apply. The social worker reported that mother now

claimed she might have Indian ancestry based on what she had read in the paperwork for

her own adoption. Mother said she was not a registered member of a tribe and had never

lived on an Indian reservation. Mother completed a “Parent: Family Find and ICWA

Inquiry” form indicating that she did not know whether she had Indian ancestry. She

provided some contact information for the child’s godmother (a first name, but no last

name), maternal grandmother, and maternal great-grandmother. Mother’s parental

notification of Indian status (ICWA-020) form indicated that neither she nor the child

were members or eligible for membership in an Indian tribe. When contacted by the

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social worker, the maternal great-grandmother (mother’s biological grandmother)

reported having no knowledge of Indian ancestry.

At father’s first appearance, the juvenile court inquired into his possible Indian

ancestry. Father told the juvenile court he had Apache and Navajo ancestry, but that

neither he nor the child were registered members. He told the court that his biological

mother was both Apache and Navajo, that he believed his mother had one parent that was

Apache and one that was Navajo, but that he did not know whether his mother was a

registered tribal member or whether she had been born on or had ever lived on an Apache

or Navajo reservation. Father also informed the juvenile court that his biological mother

was still alive and living in Sacramento, but he did not have her phone number.

Father completed a “Parent: Family Find and ICWA Inquiry” form, and indicated

he does or may have Indian ancestry with Apache and Navajo tribes in Arizona. He

provided no information for relatives who know of his Indian ancestry. Father did list his

sister (the child’s paternal aunt) as an additional family contact person. When contacted

by the social worker, the paternal aunt confirmed that she and father had read in their

adoption paperwork that their biological mother had Indian ancestry, but neither had any

further details and neither had any contact with their biological mother. She also reported

that neither she nor father had ever registered with an Indian tribe or lived on a

reservation, and their Indian ancestry “was only suspected.”

At the jurisdiction and disposition hearing, the juvenile court followed CFS’s

recommendation and found that ICWA did not apply. However, CFS continued to make

ICWA inquiries prior to the permanency hearing. In the report submitted for the

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permanency hearing, CFS reported the social worker had interviewed the paternal aunt a

second time, during which she specified possible Apache and Navajo ancestry but that

otherwise her representations remained the same. Another paternal aunt also indicated

that the Apache and Navajo tribes were listed in her adoption paperwork but that she was

not a registered member and she had no contact information for other relatives. The

social worker left a message for the child’s paternal great-aunt, but no response was

received. Father’s adoptive mother denied having any knowledge of Indian ancestry

except what she had been told by father and his sister(s).

The social worker also contacted mother’s biological grandmother a second time

and she again denied having any Indian ancestry. Likewise, the child’s maternal great-

aunt denied having any Indian ancestry. The social worker tried to contact a second

maternal great-aunt, but no response was received. Mother’s adoptive mother told the

social worker that mother has no Indian ancestry. The social worker tried unsuccessfully

to contact mother’s stepfather. Mother’s “great cousin” denied having Indian ancestry and

told the social worker that the child’s biological maternal grandmother was incarcerated in

Arizona. However, the social worker was unable to contact the maternal grandmother.

Finally, the social worker spoke with the child’s godmother (who mother listed on the

ICWA inquiry form with a first name only). She said she was unaware of mother having

any Indian ancestry.

Based on its inquiries, CFS mailed certified letters to all Apache and Navajo

tribes. Three of the Apache tribes responded and reported the child was not a member or

eligible for membership. Five of the Apache tribes, including the Jicarilla Apache Nation

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of New Mexico, made no response.4 The Navajo Nation responded that it was unable to

verify whether the child was eligible for membership.

II.

DISCUSSION

“ICWA establishes minimum federal standards that a state court must follow

before removing Indian children from their families. [Citation.] California law

implementing ICWA also imposes requirements to protect the rights of Indian children,

their families, and their tribes. (See §§ 224-224.6; [citation].) An Indian child is any

unmarried person under 18 who ‘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); see § 224.1, subd. (b).)” (In re Ricky R. (2022)

82 Cal.App.5th 671, 678.)

4 On June 1 and 8, 2023, mother requested that this court take judicial notice of
the fact that, according to United States Postal Service tracking, the notice mailed to the
Jicarilla Apache Nation of New Mexico had never been received and is still in transit.
(Evid. Code, §§ 452, subd. (h), 459, subd. (a); rule 8.252(a).) In the alternative, mother
requests that we exercise our authority to take new evidence. (Cal. Const., art. VI, § 11,
subd. (c); Code Civ. Proc., § 909; rule 8.252(b), (c).) Mother contends the notice mailed
to this tribe was not received “due to an insufficient address.” CFS opposed both
requests. By orders dated June 8 and 16, 2023, we deferred ruling on mother’s requests.
Separately, to counter mother’s assertion that the ICWA notice mailed to the
Jicarilla Apache Nation of New Mexico contained an insufficient address, on June 15,
2023, CFS requested that we take judicial notice of the post office box for the tribe as
published by the United States Department of the Interior, Bureau of Indian Affairs, in
87 Federal Register 22552, 22571 (Apr. 15, 2022). (Evid. Code, §§ 451, subd. (b), 459,
subd. (a); rule 8.252(a); see 44 U.S.C. § 1507.) Mother opposed this request. By order
dated June 30, 2023, we deferred ruling on the request.
The requests for judicial notice are hereby granted, and mother’s alternative
request to take additional evidence is denied.

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 “‘Because it typically is not self-evident whether a child is an Indian child, both

federal and state law mandate certain inquiries to be made in each case.’ [Citation.]

[CFS] and the juvenile court have an ‘affirmative and continuing duty to inquire’ whether

a child in a dependency proceeding ‘is or may be an Indian child.’ (§ 224.2, subd. (a).)

The duty to inquire consists of two phases—the duty of initial inquiry and the duty of

further inquiry. [Citation.] ICWA also imposes a duty to provide notice of the

proceedings to the pertinent Indian tribes. (25 U.S.C. § 1912(a); § 224.3, subd. (a).)

Notice enables the tribes ‘to determine whether the child involved in a dependency

proceeding is an Indian child and, if so, whether to intervene in, or exercise jurisdiction

over, the matter.’” (In re Ricky R., supra, 82 Cal.App.5th at p. 678.)

“The duty of initial inquiry applies in every dependency proceeding. [Citation.]

Federal regulations require state courts to ask each participant ‘at the commencement’ of

a child custody proceeding ‘whether the participant knows or has reason to know that the

child is an Indian child.’ (25 C.F.R. § 23.107(a) (2022).) State law requires the court to

pursue an inquiry ‘[a]t the first appearance in court of each party’ by asking ‘each

participant present in the hearing whether the participant knows or has reason to know

that the child is an Indian child.’ (§ 224.2, subd. (c).) In addition, when [CFS] takes a

child into temporary custody, the agency must ask ‘the child, parents, legal guardian,

Indian custodian, extended family members, others who have an interest in the child,’ and

the reporting party whether the child is or may be an Indian child. (§ 224.2, subd. (b).)

Extended family members include adults who are the child’s stepparents, grandparents,

siblings, brothers-or sisters-in-law, aunts, uncles, nieces, nephews, and first or second

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cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)” (In re Ricky R., supra, 82

Cal.App.5th at pp. 678-679.)

There is currently a split within this division about whether a social service agency

has the duty to inquire of extended family members under section 224.2, subdivision (b),

when the child is taken in custody pursuant to a detention warrant. (Compare In re

Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743 ; In re

Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023, S280572 [adopting the

reasoning of Robert F.]; In re Andres R. (Aug. 23, 2023, E079972) Cal.App.5th

[2023 Cal.App. Lexis 638] [majority opinion defending Robert F. and Ja.O.] with In re

Delila D. (2023) 93 Cal.App.5th 953 [majority opinion concluding Robert F. was

wrongly decided].) The California Supreme Court is poised to decide that issue, and we

need not address it further because its resolution is not determinative in this case. Even

assuming CFS had a duty to inquire of extended family members, failure to do so in this

case with respect to mother’s biological family was harmless.

Mother argues CFS failed to make a meaningful attempt to contact her biological

mother. As indicated, the report submitted for the permanency hearing stated the social

worker learned from a maternal “great cousin” that mother’s biological mother was

incarcerated in Arizona. The report states the social worker “was unable to make

contact” with mother’s biological mother. CFS concedes the report should have provided

more specifics about what efforts the social worker made to contact mother’s biological

mother, but ultimately it argues any failure to make meaningful efforts was harmless. We

agree the error, if any, was harmless.

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 This court has held: “When [the child welfare agency] fails to comply with the duty

of initial inquiry under state law, we will find the error to be prejudicial and conditionally

reverse if ‘the record indicates that there was readily obtainable information that was likely

to bear meaningfully upon whether the child is an Indian child.’” (In re Ricky R., supra,

82 Cal.App.5th at p. 679, quoting In re Benjamin M. (2021) 70 Cal.App.5th 735, 744;

accord, In re D.B. (2022) 87 Cal.App.5th 239, 245.) “That standard does not require ‘proof

of an actual outcome (that the parent may actually have Indian heritage).’ [Citation.] The

missing information need only be relevant to the ICWA inquiry, ‘whatever the outcome

will be.’” (In re Ricky R., at p. 679.)

As indicated, mother initially claimed to have no Indian ancestry, but later

reported she might have Indian ancestry based on what she had read in her adoption

papers. Twice, the child’s maternal great-grandmother told the social worker that she had

no knowledge of mother having Indian ancestry. One of the child’s maternal great-aunts

denied having any Indian ancestry, and the social worker was unable to contact a second

maternal great-aunt. Mother’s adoptive mother told the social worker that mother had no

Indian ancestry, but the social worker was unable to speak to mother’s stepfather.

Mother’s “great cousin” denied having any Indian ancestry. Finally, mother’s godmother

told the social worker she was unaware of mother having any Indian ancestry.

Even if we were to agree with mother that, with reasonable diligence, CFS could

have tracked down the child’s maternal grandmother and asked her about possible Indian

ancestry, we would conclude any information she might provide was not “‘likely to bear

meaningfully upon whether the child is an Indian child.’” (In re Ricky R., supra,

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82 Cal.App.5th at p. 679, italics added.) The maternal grandmother’s own mother and

aunt denied having any Indian ancestry or having any knowledge of such ancestry. Who

better would know whether maternal grandmother herself has Indian ancestry?

Moreover, mother’s adopted mother (who presumably would have firsthand knowledge

of the contents of mother’s adoption paperwork) and her godmother both denied that

mother had any Indian ancestry.5

The same is not true for father’s family. Father consistently stated that, on his

biological mother’s side, he had Indian ancestry through Apache and Navajo tribes in

Arizona. His sister confirmed this to the social worker. And father told the juvenile

court that his biological mother was alive and living in Sacramento. Yet, the record fails

to show any meaningful effort by CFS to learn the name of father’s biological mother’s

and to locate and interview her. CFS contends the information father provided to the

juvenile court about his biological mother was vague and that a search for her would not

have netted meaningful information because father’s claim of Indian ancestry had already

been confirmed by his sister. However, CFS concedes it erred by not obtaining the name

of father’s biological mother and providing it to the relevant Indian tribes during noticing.

CFS does not oppose a limited remand for it to obtain that information and provide new

notice.6

5 For the same reason, we conclude CFS’s failure to search mother’s adoption
papers, if error, was harmless.

6 Because we remand for additional inquiry into father’s biological mother and, if
appropriate, for additional notice to the relevant Indian tribes, mother’s claim of error
[footnote continued on next page]

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 We accept CFS’s concessions but, in the interest of judicial efficiency, we will

direct that on remand CFS must inquire into the name of father’s biological mother and

make meaningful efforts to locate, contact, and inquire of her about the child’s possible

Indian ancestry.

III.

DISPOSITION

The juvenile court’s orders terminating the parental rights to the child are

conditionally reversed. On remand, the juvenile court shall direct CFS to provide the

court with a supplemental report detailing what additional efforts, if any, it has taken to

obtain information about the child’s possible Indian ancestry, including the names and

other relevant information of family members interviewed. The juvenile court shall then

determine whether the ICWA inquiry was adequate and, if applicable, whether proper

notice has been given to relevant Indian tribes. If the juvenile court determines the

inquiry completed and the notice given were adequate (and, if after receiving notices, the

relevant tribes do not respond or respond that the child is not an Indian child within the

meaning of ICWA), the orders terminating parental rights to the child shall immediately

be reinstated and further proceedings shall be conducted as appropriate.

In the alternative, if the juvenile court determines the inquiry and/or notice

conducted was inadequate, it shall direct CFS to conduct additional inquiry and provide

with respect to the notice not received by the Jicarilla Apache Nation of New Mexico is
premature. (See ante, fn. 3.) Mother can address that argument to the juvenile court
when it determines whether additional notice to the relevant tribes is required.

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additional notice to the relevant Indian tribes of any additional relevant information CFS

might have received. The court shall then determine whether the additional inquiry and

notice are adequate. If, after receiving notices, the relevant tribes do not respond or

respond that the child is not an Indian child within the meaning of ICWA, the orders

terminating parental rights to the child shall immediately be reinstated, and further

proceedings shall be conducted, as appropriate.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:

MILLER
J.

RAPHAEL
J.

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