In re Y.D. CA4/1 ( 2022 )

Filed 5/5/22 In re Y.D. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re Y.D. et al., Persons Coming
Under the Juvenile Court Law.
D080004
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY,
(Super. Ct. No. EJ4727A,B)
Plaintiff and Respondent,
v.
R.D.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Gary
M. Bubis, Judge. Reversed and remanded with directions.
Christine E. Johnson under appointment by the Court of Appeal, for
Defendant and Appellant.
1
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for
Plaintiff and Respondent.
INTRODUCTION
The San Diego County Health and Human Services Agency (Agency)
concedes it did not comply with its inquiry duties under the federal Indian
Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and Welfare and
Institutions Code1 section 224.2. And thus it agrees, the juvenile court erred
in finding that reasonable inquiry had been made into the possible Indian
ancestry of Y.D. and G.D. (the Children) and that ICWA did not apply,
allowing the court to declare them dependents and removing them from their
father, R.D. (Father). On the record before us, we agree with the Agency’s
concession. The parties have submitted a joint stipulation for issuance of an
immediate remittitur pursuant to California Rules of Court, rule 8.272(c)(1).
We will reverse the jurisdictional and dispositional orders and remand the
matter with directions for the limited purpose of compliance with ICWA and
section 224.2.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2021, the Agency filed dependency petitions for then one-
year-old Y.D. and then one-month-old G.D.. At the detention hearing,
Father’s counsel informed the juvenile court that Father claimed Cherokee
ancestry. Father had no specific information but stated the paternal
grandmother would have the most relevant information about such ancestry.
1 All undesignated statutory references are to the Welfare and
Institutions Code.
2
The court found Father to be the Children’s presumed father and that the
Agency had made a prima facie showing in support of its petitions. It then
detained the Children in out-of-home care.
In its jurisdiction and disposition report, the Agency stated it had been
unable to conduct an ICWA inquiry because of the parents’ minimal
communication with the Agency. It noted that “the family denied any Native
American/American Indian ancestry” in its prior child welfare investigations.
The Agency further stated that ICWA “does or may apply.” Mother had
denied any Native American ancestry. The Agency’s social worker had
spoken with the paternal grandmother who reported that her family had
Native American or Indian ancestry, but she did not know which tribe. The
paternal grandmother gave the social worker the name and birth date of the
paternal great-grandmother. The social worker had also spoken with the
maternal grandmother, but apparently had not asked her about possible
Indian ancestry. In its initial recommendations, the Agency recommended
that the court find, among other things, that the Children may be Indian
children and order the Agency to conduct further inquiry regarding their
possible Indian ancestry.
In an addendum report, the Agency reported that its social worker had
spoken with the maternal grandmother again, but apparently had not asked
her about the Children’s possible Indian ancestry. The Agency stated that it
would continue to assess ICWA eligibility for the Children, noting that “[a]s
of this time there is not anyone with known tribal enrollment.” The Agency
conducted no further inquiry into the matter.
At the February 2022 jurisdiction and disposition hearing, the juvenile
court found the allegations in the dependency petitions to be true, declared
the Children dependents of the court, removed them from the physical
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custody of their parents, and placed them in a licensed foster home. The
court further found that reasonable inquiry had been made regarding the
Children’s Indian ancestry and that ICWA did not apply to their dependency
proceedings. Father timely appealed the court’s jurisdictional and
dispositional orders.2
DISCUSSION
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[.]”].)
Effective January 1, 2019, sections 224.2 and 224.3 were enacted,
setting forth California’s current ICWA inquiry and notice requirements for
juvenile dependency cases. (Stats. 2018, ch. 833, §§ 5, 7.) Under sections
224.2 and 224.3, the Agency and the juvenile court are generally obligated to:
(1) conduct an initial inquiry regarding whether there is a reason to believe
the child is an Indian child; (2) if there is, then further inquire whether there
is a reason to know the child is an Indian child; and (3) if there is, then
2 Mother did not appear at the jurisdiction and disposition hearing and
did not appeal the jurisdictional and dispositional orders.
4
provide ICWA notice to allow the tribe to make a determination regarding
the child’s tribal membership. (See In re D.S. (2020) 46 Cal.App.5th 1041,
1048–1052; In re Austin J. (2020) 47 Cal.App.5th 870, 882–885.)
Specifically, section 224.2, subdivision (a), imposes on the juvenile court
and the Agency “an affirmative and continuing duty to inquire whether a
child for whom a petition under Section 300 . . . may be or has been filed, is or
may be an Indian child[.]” Section 224.2, subdivision (b), establishes the duty
of initial inquiry and it provides that:
“If a child is placed into the temporary custody of [the
Agency] . . . , [the Agency] . . . has a duty to inquire whether
that child is an Indian child. 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
and where the child, the parents, or Indian custodian is
domiciled.”
Section 224.2, subdivision (e), imposes a duty of further inquiry where: “If
the court [or] social worker . . . has reason to believe that an Indian child is
involved in a proceeding, but does not have sufficient information to
determine that there is reason to know that the child is an Indian child, the
court [or] social worker . . . shall make further inquiry regarding the possible
Indian status of the child, and shall make that inquiry as soon as
practicable.”
We review a juvenile court’s findings that the Agency has made
reasonable inquiries regarding a child’s possible Indian ancestry under ICWA
and that the Agency has complied with ICWA’s notice requirements, or that
no such notice is required, for substantial evidence. (In re Charlotte V. (2016)
6 Cal.App.5th 51, 57.) Here, the Agency concedes substantial evidence does
not support the juvenile court’s finding that the Agency complied with its
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ICWA inquiry obligations under section 224.2. The Agency’s concession is
proper.
As the Agency acknowledges, the initial ICWA inquiry was deficient
because the Agency failed to ask the maternal grandmother about the
possibility of the Children’s Indian ancestry, although she was twice
interviewed. Father also contends that even though Mother denied any
Indian ancestry, the Agency had a duty to, but did not, make reasonable
efforts to locate or interview extended family members, including the
maternal grandfather, maternal uncle, and other maternal relatives who may
have information regarding the Children’s possible Indian ancestry.
The Agency also acknowledges the paternal grandmother reported that
her family had Native American or Indian ancestry and, although she did not
know which tribe, she provided the name and birthdate of the paternal great-
grandmother. The Agency did not ask whether the paternal great-
grandmother was available to be contacted for further investigation of the
Children’s Indian ancestry, nor did it take reasonable steps to locate her with
the information it was provided.
The Agency’s duty to make an initial inquiry into the Children’s
possible Indian ancestry extends to “extended family members,” which
includes at least the maternal grandmother and paternal great-grandmother.
(§ 224.2, subd. (b).) Moreover, once Father claimed Cherokee ancestry, the
Agency had a reason to believe the Children were of possible Indian ancestry,
triggering its duty to make further inquiry as soon as practicable. (§ 224.2,
subd. (e).) The Agency concedes, and we agree, it failed to comply with both
duties of initial and further inquiry in this case.
Father further argues, and the Agency does not dispute, that the
juvenile court did not comply with its independent duties under section 224.2,
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subdivision (c). Under that provision, “[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 “[t]he court 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), italics added.) The record establishes
the court did not comply with either of its duty here.
Because substantial evidence does not support the juvenile court’s
findings that reasonable inquiry had been made into the Children’s possible
Indian Ancestry and ICWA did not apply, we reverse the jurisdictional and
dispositional orders with a limited remand for the Agency and the court to
comply with ICWA and section 224.2.
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DISPOSITION
The jurisdictional and dispositional orders are reversed and the matter
is remanded to the juvenile court with directions that the Agency and the
court comply with their section 224.2 inquiry obligations and for further
proceedings in accordance with the law. If, after compliance with section
224.2, the court finds that no ICWA notice is required to be given to any
tribe, the original jurisdictional and dispositional orders shall be reinstated.
However, if after such compliance with section 224.2 the Agency or the court
finds that ICWA notice is required, the Agency shall comply with its ICWA
notice obligations. The clerk of this court shall issue the remittitur forthwith.
(Cal. Rules of Court, rule 8.272(c)(1).)
DO, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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