In re N.W. CA4/1 ( 2023 )

Filed 2/23/23 In re N.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 N.W. et al., Persons Coming D080974
Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH (San Diego County
AND HUMAN SERVICES Super. Ct. No. EJ4771A-B)
AGENCY,
ORDER RECALLING
Plaintiff and Respondent, REMITTITUR, MODIFYING
OPINION AND DIRECTING
v. ISSUANCE OF NEW
REMITTITUR
E.C.,
NO CHANGE IN JUDGMENT
Defendant and Appellant.
THE COURT:
On this court’s own motion, it is ordered that the remittitur that issued
in this case on February 15, 2023, be recalled. We may recall a remittitur for
“good cause.” (Cal. Rules of Court, rule 8.272(c)(2); Pacific Legal Foundation
v. California Coastal Com. (1982) 33 Cal.3d 158, 166 [“order recalling the
remittitur was the appropriate procedural mechanism to correct the clerical
error”].) Here, the need to make the corrections identified below to the
opinion filed herein on February 15, 2023, is “good cause” to recall the
remittitur.
It is ordered that the opinion filed herein on February 15, 2023, be
modified as follows:
1. On page 2, line 1, the sentence beginning “E.C. (Mother)” is deleted
and replaced with a new sentence, which reads:
E.C. (Mother) appeals from the juvenile court’s rulings at the
contested jurisdiction and disposition hearing held on September 20,
2022, with respect to her daughter, A.R.
2. Footnote 1 remains in place following the new sentence.
3. On page 5, line 9, the sentence beginning “The juvenile court’s” is
deleted and replaced with a new sentence, which reads:
The juvenile court’s rulings at the jurisdiction and disposition
hearing with respect to A.R. are conditionally reversed.
4. On page 5, line 12, the sentence beginning “If, after” is deleted and
replaced with a new sentence, which reads:
If, after completing its inquiry, neither the Agency nor the juvenile
court has reason to believe or know A.R. is an Indian child, the
court’s rulings with respect to A.R. shall be reinstated.
There is no change in the judgment.
Given the importance of expediency and need for finality, and having
received no objection to the issuance of the February 15, 2023 remittitur, we
direct the Clerk of the Court to issue a new remittitur.
MCCONNELL, P. J.
Copies to: All parties
2
Filed 2/15/23 In re N.W. CA4/1 (unmodified opinion)
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 N.W. et al., Persons Coming D080974
Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH (San Diego County
AND HUMAN SERVICES Super. Ct. No. EJ4771A-B)
AGENCY,
Plaintiff and Respondent,
v.
E.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Conditionally reversed and remanded with directions.
Landon Villavaso, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, Jesica N. Fellman, Deputy County Counsel, for Plaintiff and
Respondent.
E.C. (Mother) appeals from the juvenile court’s order terminating her
parental rights for her son, A.R.1 Mother’s sole claim on appeal is that
substantial evidence does not support the juvenile court’s finding that the
Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) did not apply.
San Diego County Health and Human Services Agency (the Agency) concedes
that a limited remand is appropriate to ensure ICWA compliance. We accept
the Agency’s concession, conditionally reverse, and remand for compliance
with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2022, the Agency initiated this dependency proceeding under
Welfare and Institutions Code section 300 subdivision (b)(1)2 on behalf of
A.R. and N.W. The Agency alleged there was a substantial risk the children
would suffer serious physical harm due to violent physical altercations in the
family home between Mother and her male companions. The Agency also
alleged Mother relapsed on alcohol after completing a substance abuse
treatment program, continued to use alcohol to excess and was unable to
provide regular care for the children.
The Agency’s detention report stated that Mother and N.W.’s father
denied any Indian Ancestry. Later that month, Mother and N.W.’s father
both filed a parental notification of Indian status indicating no Indian
ancestry. The Agency was unable to determine if A.R.’s father has Indian
ancestry because he is deceased. At the June 2022 detention hearing, based
1 The father did not file an appeal and Mother makes no claims of error
as to N.W.
2 All further section references are to the Welfare and Institutions Code
unless otherwise indicated.
2
on the Agency’s report and the parent’s representations, the juvenile court
found the Indian Child Welfare Act did not apply.
The Agency’s July 2022 jurisdiction/disposition report indicated that
Mother again denied any Native American ancestry in a conference with a
social worker. A social worker from the Agency also spoke to the following
extended family members: maternal grandmother, maternal uncle, and the
maternal aunt. The maternal relatives denied having any information that
Mother has Indian ancestry, with the maternal grandmother further denying
that she had any information A.R. and N.W. are Indian children. The social
worker also had the names of four paternal relatives of A.R. and attempted to
contact them, but there is no indication the attempts were successful or that
the Agency attempted to ask them about A.R.’s Indian ancestry.
In September 2022, the juvenile court held a contested jurisdiction and
disposition hearing, adopted the Agency’s recommendation, and removed the
children from Mother’s custody. Mother appealed from that order,
challenging only the court’s ICWA finding as to A.R.
DISCUSSION
Congress enacted ICWA to address concerns regarding the separation
of Indian children from their tribes through adoption or foster care placement
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., at p. 9.)
“[S]ection 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).)
3
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.” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052 (D.S.).)
A juvenile court finding that ICWA is inapplicable generally implies
that the Agency has fulfilled its inquiry duty. (See In re Austin J. (2020)
47 Cal.App.5th 870, 885 [a finding that “ICWA does not apply” implies social
workers and court “did not know or have a reason to know the children were
Indian children and that social workers had fulfilled their duty of inquiry”].)
We review ICWA findings for substantial evidence, but “where the facts are
undisputed, we independently determine whether ICWA’s requirements have
been satisfied.” (D.S., supra, 46 Cal.App.5th at p. 1051.)
Mother contends substantial evidence does not support the court’s
finding that ICWA did not apply to A.R.’s juvenile dependency proceeding.
Mother argues the Agency failed to satisfy its duty to interview paternal
relatives who had information relevant to whether A.R. is an Indian child.
The Agency concedes it failed to conduct sufficient ICWA inquiry as to A.R.
“The Agency agrees the record does not demonstrate that ICWA inquiry was
conducted with several of A.R.’s extended family members.”
The Agency contacted four paternal relatives about whether they were
interested in the “care and placement” of A.R. while she was in protective
custody. The paternal relatives were also informed “the preference for
relative placement is by law applicable at disposition,” but that opportunity
“may diminish” as A.R.’s case progresses. The record does not, however,
4
reflect any attempt by the Agency to discuss Indian ancestry with the
paternal relatives. Because there was readily obtainable information that
was likely to bear meaningfully upon whether A.R. is an Indian child, the
Agency failed in its duty of initial inquiry. (In re Benjamin M. (2021)
70 Cal.App.5th 735, 744 [conditionally reversing order terminating parental
rights where the social services agency never asked any “ ‘extended family
members’ ” whether the minor “has Indian ancestry on his paternal side”].)
DISPOSITION
The juvenile court’s order terminating Mother’s parental rights for A.R.
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
(and, if applicable, the notice provisions under section 224.3). If, after
completing its inquiry, neither the Agency nor the juvenile court has reason
to believe or reason to know A.R. is an Indian child, the order terminating
parental rights shall be reinstated. If the Agency or the juvenile court has
reason to believe or reason to know A.R. is an Indian child, the juvenile court
shall proceed accordingly. Remittitur shall issue immediately.
MCCONNELL, P. J.
WE CONCUR:
IRION, J.
DATO, J.
5