In re A.B. CA4/1 ( 2023 )

Filed 3/9/23 In re A.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.B. et al., Persons Coming
Under the Juvenile Court Law.
D081215
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ4582AB)
Plaintiff and Respondent,
v.
J.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Mark T. Cumba, Judge. Affirmed.
Christopher R. Booth, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Evangelina Woo, Deputy County Counsel, for Plaintiff
and Respondent.
J.B. (Father) appeals the juvenile court’s order terminating his
parental rights to his minor children, A.B. and R.B., under Welfare and
Institutions Code1 section 366.26.2 The sole issue on appeal is whether the
San Diego County Health and Human Services Agency (Agency) failed to
conduct an adequate initial inquiry under section 224.2, subdivision (b) into
the children’s possible status as “Indian children,” as defined by the Indian
Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.), because it failed to
conduct ICWA inquiries with all of the children’s paternal aunts and uncles.
Father contends this was prejudicial error requiring reversal. Meanwhile,
the Agency concedes error due to its failure to inquire of one of the paternal
aunts but contends the error was harmless.
We disagree with both parties and find no error. Initially, it is unclear
whether the Agency was required to question any extended family members
as part of its initial inquiry under ICWA, because the children were not
removed through the warrantless removal procedure “pursuant to [s]ection
306.” (§ 224.2, subd. (b); see In re Adrian L. (2022) 86 Cal.App.5th 342, 353–
374 (conc. opn. of Kelley, J.).) Regardless, however, we conclude there was no
abuse of discretion under In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004-
1008 (Ezequiel G.). Because the Agency’s inquiry yielded reliable information
from paternal grandfather that the children had possible Native American
ancestry but were not affiliated with a tribe, the juvenile court did not abuse
its discretion in finding that the Agency’s ICWA inquiry was sufficient.
Accordingly, we reject the Agency’s partial concession and affirm.
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 The court also terminated J.S.’s (Mother’s) parental rights. Because
Mother did not appeal this order, however, we discuss her only as needed.
2
FACTUAL AND PROCEDURAL BACKGROUND3
In December 2020, the Agency petitioned the juvenile court under
section 300, subdivision (b)(1) on behalf of the children, alleging that the
children were at substantial risk of serious physical harm because of Mother
and Father’s substance abuse. The Agency also alleged that the children
sustained injuries during Mother’s automobile accident because they were
not secured in the vehicle and Mother had driven while intoxicated.
According to the Agency’s detention report, the Agency interviewed
Mother and Father in November 2020. Mother denied having any Native
American ancestry, and Father thought he had ancestry with a tribe “ ‘but
not enough to be enrolled or considered a part of a tribe.’ ” He reported that
paternal grandfather said relatives had lived on a reservation, but Father
had not looked into that history further. On December 1, 2020, the Agency
also spoke with paternal aunt, K.B., but there is no indication that it ever
asked her about the children’s potential Native American ancestry.4
At the December 3, 2020 detention hearing, Mother and Father,
through their counsel, denied having any Native American ancestry. The
court found that ICWA did not apply.
Several weeks later, Father reiterated to the Agency that he had
Native American ancestry on his father’s (paternal grandfather’s) side. This
time, he stated that he believed the tribe was the Narragansett Tribe in
Rhode Island. He denied being registered with the tribe or knowing of any
family members who were registered, and he denied ever having lived on a
3 Because Father’s only contention on appeal concerns ICWA, we limit
our factual background accordingly.
4 K.B. did not attend any of the juvenile dependency hearings.
3
tribal reservation or receiving assistance from a tribe. During the same
interview, Father also identified six siblings (paternal aunts and uncles) by
name and age, and said that he had a good relationship with all of them. As
the Agency concedes, there is no indication that any of these paternal aunts
and uncles were ever asked about the children’s possible Native American
ancestry.
In early January 2021, the Agency identified five of the children’s
“potential” relatives, including paternal grandmother, paternal aunt K.B.,
and three other relatives sharing Father’s last name but whose relationship
to the children was not specified. The Agency mailed letters regarding the
dependency proceedings to these potential relatives. But there is no
indication that the letters included any questions about the children’s
possible Native American ancestry.
In July 2022, paternal grandmother reported to the Agency that
paternal great-great grandmother was Native American and that paternal
grandfather would know more information. Paternal grandfather gave the
Agency the names of his parents and the first name and last initial of his
grandfather, and he reported that his parents and grandfather had lived on a
Narragansett tribal reservation in Rhode Island.
The same month, Mother reported to the Agency that her maternal
great-great grandmother had Native American ancestry through the
Chickasaw tribe in Oklahoma. Mother stated that her great-great-great-
great grandmother was Native American, but Mother did not know her name,
date of birth, or any other identifying information. Maternal grandmother
also reported Native American ancestry but stated that Mother could not
obtain tribal citizenship because “ ‘[t]here was not enough evidence.’ ”
Maternal grandmother provided the only information she had to the Agency:
4
the name of her great-great grandmother, that her great-great grandmother
married an English man in Georgia named T.C., and that she had passed
away in 1818.
In its July 29, 2022 addendum report, the Agency indicated it had
contacted the Narragansett Indian Tribe in Charlestown, Rhode Island about
the children’s potential membership eligibility. The Agency also reported
having contacted The Chickasaw Nation in Oklahoma and that the tribe’s
response was pending. At a July 29, 2022 hearing, the juvenile court granted
the Agency’s request for a 60-day continuance of the section 366.26 hearing to
address the remaining “ICWA issues.”
As of the continued September 22, 2022 section 366.26 hearing, both
tribes’ responses were still pending despite the Agency’s follow-up efforts.
The Agency requested, and the juvenile court granted, a further 30-day
continuance of the section 366.26 hearing.
In its November 9, 2022 addendum report, the Agency indicated that,
the previous month, it had received confirmation from both the Narragansett
Indian Tribe and The Chickasaw Nation that the children did not have any
ancestry or affiliation with the tribes. The Agency attached a copy of the
letter it faxed to the Narragansett Tribe in July 2022, which included the
information the Agency had collected from the children’s relatives; the names
of Father, Mother, paternal grandfather, paternal great-grandparents, and
paternal great-great grandfather; and the dates of birth for Father, Mother,
and paternal grandfather. The Agency also attached the responses received
from the tribes: an e-mail correspondence with the Narragansett Indian
Tribe of Rhode Island stating that the children “are not enrolled registered
members” and a letter from The Chickasaw Nation stating that the children
were not “Indian Children” under ICWA.
5
At the November 9, 2022 contested section 366.26 hearing, the juvenile
court found without prejudice that ICWA did not apply, terminated parental
rights, and ordered adoption as the children’s permanent plan.
Father appeals that order but challenges only the juvenile court’s
finding that ICWA does not apply.5
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. (Isaiah W., supra, 1 Cal.5th at p. 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.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.)
First, the Agency’s duty of initial inquiry “includ[es], but [is] not limited to,
asking the party reporting child abuse or neglect whether the party has any
information that the child may be an Indian child.” (§ 224.2, subd. (a).)
“Second, if that initial inquiry creates a ‘reason to believe’ the child is an
5 Notably, Father did not appeal from the juvenile court’s earlier
December 2020 detention order in which the court found that ICWA did not
apply. Ordinarily, “California follows a ‘one shot’ rule under which, if an
order is appealable, appeal must be taken or the right to appellate review is
forfeited.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8.)
However, because the duty of inquiry under ICWA is a continuing one, the
one-shot rule does not apply here. (See § 224.2, subd. (a); In re Isaiah W.
(2016) 1 Cal.5th 1, 6 (Isaiah W.) [“Because ICWA imposes on the juvenile
court a continuing duty to inquire whether the child is an Indian child, we
hold that the parent may challenge a finding of ICWA’s inapplicability in an
appeal from the subsequent [termination of parental rights] order, even if she
did not raise such challenge in an appeal from the initial [detention] order”].)
6
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.” (D.S., at p. 1052.)
Here, Father challenges only the sufficiency of the Agency’s initial
inquiry.6 He contends that it fell short because the Agency failed to question
all of the children’s “extended family members”—his six siblings (paternal
aunts and uncles)—about the children’s possible Native American ancestry,
which he claims was required by section 224.2, subdivision (b). The Agency
concedes it should have conducted an ICWA inquiry with paternal aunt, K.B.,
with whom it was in contact. But the Agency disagrees that it was required
to conduct ICWA inquiries with the remaining five paternal aunts and
uncles.
As a preliminary matter, it is unclear whether the Agency was required
to ask any “extended family members” about ICWA as part of its initial
6 In his opening brief, Father challenged only the initial inquiry. Yet, in
his supplemental brief, he purports to challenge the Agency’s further inquiry
of the children’s extended relatives, despite our order mandating that
supplemental briefing was “strictly limited” to the initial inquiry question.
Because Father could have raised his further inquiry challenge in his opening
brief but did not, the argument is waived. (See Gordon v. Law Offices of
Aguirre & Meyer (1999) 70 Cal.App.4th 972, 980, fn. 10 [arguments not raised
in an opening brief are waived]; see also In re J.N. (2006) 138 Cal.App.4th
450, 459, fn. 5 [“The issue is waived, however, because it was raised for the
first time in mother’s reply brief”].) Moreover, a party cannot raise issues for
the first time in supplemental briefing without the court’s permission. (See
Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105,
1136, fn. 30.) Even if we considered this new argument, however, we would
reject Father’s claim of further inquiry error as to the extended relatives for
the same reasons we are rejecting his claim of initial inquiry error.
7
inquiry under section 224.2, subdivision (b), much less that it was required to
ask all six paternal aunts and uncles. Section 224.2, subdivision (b) provides
that “[i]f a child is placed into the temporary custody of a county welfare
department pursuant to Section 306 . . . the county welfare department or
county probation department has a duty to inquire whether that child is an
Indian child. Inquiry includes, but is not limited to, asking the . . . extended
family members[7] . . . whether the child is, or may be, an Indian child.”
(§ 224.2, subd. (b).) Thus, the statute’s plain language would seem to narrow
its application to situations where “a child is placed into the temporary
custody of a county welfare department pursuant to [s]ection 306.”8 (§ 224.2,
subd. (b), italics added; see also § 306 [authorizing a child’s warrantless
removal in an emergency].) Yet, here, the children were placed into the
Agency’s custody pursuant to court order under section 340, subdivision (a),
not through the warrantless removal procedure provided by section 306.
Accordingly, it is not at all clear that the Agency was required to conduct
ICWA inquiries with “extended family members” at this initial inquiry stage.
(See, e.g., In re Adrian L. (2022) 86 Cal.App.5th 342, 353-374 (conc. opn. of
Kelley, J.) [concluding agency did not have an initial inquiry duty to inquire
7 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); § 224.1, subd. (c)
[extended family member “defined as provided in [§] 1903” of ICWA].) There
is no dispute that Father’s siblings—the children’s aunts and uncles—qualify
as the children’s “extended family members.”
8 In response to our request, the parties provided supplemental briefing
addressing this issue.
8
of extended family members under § 224.2, subd. (b) because child was not
placed into agency’s temporary custody “pursuant to section 306”].)
We need not decide that issue, however, because regardless of section
224.2, subdivision (b)’s application, we conclude there was no abuse of
discretion under Ezequiel G., supra, 81 Cal.App.5th at pp. 1004-1008. (Ibid.)
In Ezequiel G., the Court of Appeal adopted an abuse of discretion standard
for reviewing the adequacy of the Agency’s ICWA inquiry. In so doing, the
court explained that, “[d]eciding whether an inquiry was ‘adequate’ and an
agency acted with appropriate diligence requires more of a court than simply
applying a statutory checklist to undisputed facts. Instead, it requires the
court to ‘engage in a delicate balancing’ [citation], to assess whether an ICWA
inquiry was appropriate and sufficient in light of the facts of a particular
case. In short, the statute directs the juvenile court to perform a
quintessentially discretionary function, and thus . . . our review should be for
abuse of discretion.” (Id. at pp. 1004-1005.)
Notably, section 224.2, subdivision (b) does not “specify how many
extended family members the [A]gency must interview.” (Ezequiel G., supra,
81 Cal.App.5th at p. 1007.) And “given the statute’s expansive language and
the vagaries of the extended family information parents are willing or able to
provide, determining compliance with ICWA requires a significant exercise of
discretion.” (Id. at p. 1006.) Accordingly, “the focus of the court’s analysis
should not be on the number of individuals interviewed, but on whether the
[A]gency’s ICWA inquiry has yielded reliable information about a child’s
possible tribe affiliation.” (Id. at p. 1009, italics added.)
The Agency’s ICWA inquiry here did so. It included interviewing some
of the children’s “extended family members” on both sides—paternal and
maternal grandparents—and it yielded reliable information about the
9
children’s possible tribal affiliation on their paternal side.9 The record
indicates that paternal grandfather was a reliable source on this subject:
Father and paternal grandmother both told the Agency that paternal
grandfather would know this information. And he did. Specifically, he
reported that his parents and grandfather had lived on a Narragansett
Indian reservation in Rhode Island, and he provided their names and known
dates of birth to the Agency. Based on that reliable information, there was
simply no reason for the Agency to seek additional information from Father’s
six siblings, who were unlikely to know more than paternal grandfather
about his own parents’ and grandfather’s ancestry.10 Finally, the Agency
provided the information obtained from paternal grandfather to the
Narragansett Tribe in Rhode Island and learned that the children were not,
in fact, enrolled members. (See Ezequiel G., supra, 81 Cal.App.5th at p. 1009
9 We observe that the Agency’s ICWA inquiry with Mother and maternal
grandmother likewise yielded reliable information about their possible
affiliation with The Chickasaw Tribe on their maternal side, but because this
line of inquiry is not at issue on appeal, we need not and do not address it
further.
10 We reject the Agency’s concession that it should have conducted an
ICWA inquiry with paternal aunt, K.B. As discussed above, there was simply
no reason for the Agency to seek additional information from K.B. about the
children’s possible Native American ancestry given the information received
directly from paternal grandfather. Nor was the court required to conduct
such an inquiry with K.B., who was not a “participant” in the initial juvenile
dependency hearing or any other hearings. (See § 224.2, subd. (c) [“[T]he
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”].)
10
[“[A]n Indian child is one with a tribal affiliation, not merely Indian
ancestry”] (italics added).)11
In short, because the Agency’s inquiry of several extended family
members yielded reliable information that the children had possible Indian
ancestry but were not affiliated with any tribe, we conclude the juvenile court
did not abuse its discretion by finding that the Agency conducted a sufficient
ICWA inquiry. Therefore, we affirm.
DISPOSITION
The November 9, 2022 order is affirmed.
BUCHANAN, J.
WE CONCUR:
MCCONNELL, P. J.
DO, J.
11 Although not specifically challenged by Father, we further conclude
there is no evidence before us indicating a “reason to know” the children are
Indian children under ICWA. Father does not contend there is evidence that
the children met any of the six statutory criteria required to qualify as Indian
children under 224.2, subdivision (d). (See Ezequiel G., supra, 81 Cal.App.5th
at p. 1004 [where none of these six factors exists, “the court must make a
finding that there is no reason to know the child is an Indian child”].)
11