In re G.D. CA2/4 ( 2021 )

Filed 12/8/21 In re G.D. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re G.D., Person Coming Under B311108
the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 18CCJP06036
Plaintiff and Respondent,
v.
S.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Pete R. Navarro, Commissioner. Reversed
and remanded.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
INTRODUCTION
The juvenile court exercised jurisdiction over G.D., the
child of D.M. (mother)1 and S.D. (father) under Welfare and
Institutions Code section 300, subdivision (b).2 The court found
father violated, and mother failed to enforce, a restraining order
requiring him not to have contact with G.D. except during
monitored visits. It therefore found the parents placed G.D. at
substantial risk of serious physical harm, given father’s history
of: (1) inflicting domestic violence on mother; (2) substance abuse;
and (3) convictions for drug-related and violent crimes.
At the dispositional hearing, the juvenile court placed G.D.
with mother under the supervision of the Department of Children
and Family Services (Department). It also found the Department
had satisfied its duties of inquiry and notice under the Indian
Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq. (ICWA).
Further, while the Department had yet to receive responses to
ICWA-030 notice forms it had sent to two tribes, the court found
no further analysis into the Department’s compliance with ICWA
was required because G.D. was placed with mother.
On appeal, father contends: (1) the juvenile court
prejudicially erred by adjudicating the section 300 petition in his
absence, in violation of his right to be present under Penal Code
section 2625; (2) the jurisdictional findings are unsupported by
substantial evidence; and (3) the juvenile court erred by finding
the Department satisfied its duties of inquiry and notice under
ICWA, and that no further analysis into its compliance with
1 Mother is not a party to this appeal.
2 Unless otherwise specified, all further undesignated
statutory references are to the Welfare and Institutions Code.
2
ICWA was required given G.D.’s placement with mother. As
discussed below, we agree with his first and third contentions of
error. We therefore need not address his second contention. Thus,
we reverse the jurisdictional and dispositional orders, vacate the
juvenile court’s ICWA findings, and remand the case for further
proceedings consistent with this opinion.
BACKGROUND
Mother and father have one child together, G.D., born in
November 2014. At the time this case arose in July 2020, G.D.
resided with mother and his three older maternal half-siblings:
J.T., born in March 2003, E.T., born in August 2004, and M.T.,
born in August 2009. Although the underlying dependency case
pertained to all four of the children in mother’s care, this appeal
relates only to G.D.
The family was involved in a prior dependency case
initiated in September 2018, when the Department filed a section
300 petition on behalf of J.T., E.T., M.T., and G.D. The juvenile
court sustained the petition on December 7, 2018, finding true its
allegations that the children were at risk of harm due to father’s
infliction of domestic violence on mother, his abuse of illicit
drugs, his unresolved history of engaging in dangerous criminal
activity, and mother’s failure to protect the children from him. On
December 21, 2018, the juvenile court issued a permanent
restraining order in favor of mother, which is set to expire on
December 21, 2021. Among other things, the restraining order
requires father to stay away from G.D. except during monitored
visits.
The juvenile court terminated jurisdiction over the children
in June 2019 and issued an order granting mother sole legal and
physical custody of G.D. The court also granted father monitored
3
visitation and ordered the parents to abide by the restraining
order issued in December 2018.
As noted above, this case arose in July 2020, when the
Department received a referral alleging the children were being
emotionally abused by father and neglected by mother. The
reporting party stated that even though mother has an active
restraining order against father, she has allowed him to frequent
her home. Further, two days before, the reporting party saw
father “throwing ‘stuff’ at mother’s front door” while “mother was
yelling at him through the window.” According to the reporting
party, “[t]he children cry because mother and father are arguing.”
During its initial investigation, the Department was unable
to contact father. Nonetheless, on September 8, 2020, the juvenile
court authorized a warrant for the children’s detention. They
were placed with their maternal grandmother on that date.
Two days later, the Department filed a petition on the
children’s behalf under section 300, subdivisions (a), (b), and (j).
The petition alleged that “[o]n prior occasions,” mother “failed to
enforce,” and father “failed to comply with,” the December 2018
restraining order “by having contact with one another.” It also
alleged mother “allowed . . . father to reside in the children’s
home and have unlimited access to [them]” in violation of the
restraining order. Thus, the petition alleged that by failing to
abide by the restraining order, the parents placed the children at
risk of harm, given father’s: (1) history of inflicting domestic
violence on mother (counts a-1, b-1, and j-1); (2) history of
substance abuse and current use of methamphetamine (counts b-
2 and j-2); and (3) history of dangerous criminal activity (counts
b-3 and j-3).
4
Sometime after the petition was filed, the Department
conducted a due diligence search to ascertain father’s
whereabouts. The search revealed he was arrested in September
2020 for violating the terms of his post-release community
supervision. As of October 2020, he was still incarcerated.
The adjudication hearing was initially set for November 3,
2020. At that hearing, however, the juvenile court granted the
request by father’s recently-appointed counsel to continue the
petition’s adjudication so father could speak to counsel about the
allegations against him. Accordingly, the juvenile court continued
the adjudication hearing to December 14, 2020. Further, after
being informed that father indicated he may have Native
American ancestry, and that ICWA-related issues had arisen in a
pending dependency case pertaining to G.D.’s paternal half-
brother, the juvenile court instructed the Department to
ascertain whether those issues had any “possible connection” to
the proceedings in the present case.
At the December 14, 2020 hearing, father’s counsel again
asked the juvenile court to continue the adjudication hearing
because the Department had yet to interview father regarding
the petition’s allegations,3 and “there [were] still issues related to
[ICWA] that . . . need[ed] to [be] sort[ed] out[.]” The court granted
the request and continued the adjudication hearing to January
12, 2021. It also ordered the Department to send out ICWA
notices regarding G.D., and to prepare and submit an order
authorizing father’s appearance at the next hearing.
3 On December 8, 2020, a Department social worker went to
father’s place of incarceration to speak with him, but was unable
to do so because his unit had been placed on a two-week
quarantine, presumably due to COVID-19.
5
On January 6, 2021, a Department social worker spoke
with G.D.’s paternal great-uncle, whom father indicated may
have more information about his Native American heritage.
Paternal great-uncle stated the family “possibly ha[d] some
Apache native ancestry” and “may have Navajo native
ancestry[.]” Subsequently, on January 8, 2021, the Department
sent ICWA-030 notices regarding G.D.’s dependency case to his
parents, the Sacramento Area Director of the Bureau of Indian
Affairs, the Secretary of Interior, and the following tribes: Apache
Tribe of Oklahoma; Fort Sill Apache Tribe; Jicarilla Apache
Nation; Mescalero Apache Tribe; San Carlos Apache Tribe; Tonto
Apache Tribe of Arizona; White Mountain Apache Tribe;
Yavapai-Apache Nation; Colorado River Indian Tribes; and
Navajo Nation.
Father was not present at the January 12, 2021 hearing.4
Consequently, at the outset of the hearing, his counsel asserted
she knew he wanted to be present, objected to the court
proceeding with the petition’s adjudication in his absence, and
“request[ed] a brief continuance for him to be present.” She noted
father was set to be released from custody later that month. The
court denied the request and sustained counts b-1,5 b-2, and b-3.
Counts a-1, j-1, j-2, and j-3 were stricken.
4 The parties do not dispute that although the Department
prepared an order for father’s removal from custody for purposes
of attending the hearing, the order apparently was never signed
by the bench officer.
5 The juvenile court amended count b-1 by interlineation to
read as follows: “The mother failed to protect the children in that
[she] allowed . . . father to frequent the children’s home and have
unrestricted access to [them.]” (Italics added.) While counts b-2
6
With respect to disposition, the Department requested the
proceedings be continued because it was still waiting for several
tribes to respond to the ICWA-030 notice forms it had sent. The
juvenile court granted the request and continued the
dispositional hearing to March 9, 2021. It also ordered the
Department to “supply follow-up information on ICWA.”
Father was released from custody on January 29, 2021.
Five days later, on February 4, 2021, a Department social worker
interviewed father for the first time regarding the petition’s
allegations. Shortly thereafter, on February 8, 2021, the social
worker was informed by father’s girlfriend that he had been
arrested again.
Before the dispositional hearing, the Department received
responses to the ICWA-030 notice forms from the following tribes:
Fort Sill Apache Tribe; Mescalero Apache Tribe; Tonto Apache
Tribe; San Carlos Apache Tribe; and Yavapai-Apache Nation. In
each response, the tribe stated G.D. was not enrolled in the tribe
or eligible for enrollment therein.
The ICWA-030 notice forms sent to Navajo Nation and
Jicarilla Apache Nation were returned to the Department, as the
packages had gone unclaimed and could not be forwarded.
Therefore, on March 3, 2021, a Department social worker
contacted both tribes by phone. The representative from Navajo
Nation provided an updated address and instructed the social
worker to email the notice form to her for an expedited response.
The representative from Jicarilla Apache Nation informed the
social worker that notice forms are only accepted by mail, and
and b-3 contained identical language regarding mother’s failure
to protect, the court did not amend those counts.
7
provided a new address. Per this new information, the social
worker sent the ICWA-030 form to the email address provided by
the Navajo Nation representative, and mailed another copy of the
form to the updated address for Jicarilla Apache Nation.
At the dispositional hearing held on March 9, 2021, counsel
for the children and father informed the juvenile court that
Navajo Nation and Jicarilla Apache Nation had yet to respond to
the ICWA-030 notices, which had been recently resent.
Nonetheless, the juvenile court found “ICWA notice has been
given as required by law.” Subsequently, the court declared G.D.
a dependent of the court and placed him with mother under the
Department’s supervision. Father’s counsel “object[ed] to . . . [the
court’s finding of] ICWA being . . . proper unless the court is
continuing or setting [a] progress [hearing] on results from . . .
Jicarilla [Apache Nation] and Navajo Nation.” The juvenile court
responded it was “not going to consider a progress report[ ]”
because it had issued a “home of parent order.”
Father timely appealed.
DISCUSSION
I. Violation of Father’s Right to Be Present for
Adjudication under Penal Code Section 2625
A. Governing Legal Principles
Penal Code, section 2625, subdivision (d) provides: “Upon
receipt by the court of a statement from the prisoner or the
prisoner’s attorney indicating the prisoner’s desire to be present
during the court’s proceedings, the court shall issue an order for
the temporary removal of the prisoner from the institution, and
for the prisoner’s production before the court. . . . [A] petition to
adjudge the child of a prisoner a dependent child of the court
8
pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j) of Section
300 of the Welfare and Institutions Code may not be adjudicated
without the physical presence of the prisoner or the prisoner’s
attorney, unless the court has before it a knowing waiver of the
right of physical presence signed by the prisoner or an affidavit
signed by the warden, superintendent, or other person in charge
of the institution, or a designated representative stating that the
prisoner has, by express statement or action, indicated an intent
not to appear at the proceeding.” “[T]he statute requires both the
prisoner and the prisoner’s attorney to be present.” (In re Jesusa
V. (2004) 32 Cal.4th 588, 622, italics in original.)
The violation of a prisoner’s right to be present under Penal
Code section 2625 is not jurisdictional, and therefore is not
reversible per se. (See In re Jesusa V., supra, 32 Cal.4th at pp.
624-625.) In evaluating whether violation of this statutory right
requires reversal, we “apply[ ] [the] familiar harmless-error test”
set forth in People v. Watson (1956) 46 Cal.2d 818. (In re Jesusa
V., supra, at p. 625.) Under that test, reversal is required where
“it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.” (People v. Watson, supra, at p. 836.)
B. Analysis
The parties do not dispute that the juvenile court ran afoul
of Penal Code section 2625, subdivision (d) by adjudicating the
section 300 petition in father’s absence. Consequently, resolution
of this issue turns on whether “it is reasonably probable that a
result more favorable to [father] would have been reached in the
absence of the error.” (People v. Watson, supra, 46 Cal.2d at p.
836.)
9
Analogizing this case to In re M.M. (2015) 236 Cal.App.4th
955 (M.M.), father contends the violation of his statutory right to
be present was not harmless because, had he been present at the
hearing, he could have provided live testimony refuting the
Department’s evidence in support of the allegations against him.
The Department counters father’s reliance on M.M. “is
misplaced[,]” and asserts that on the record in this case, “there is
no reasonable probability that [f]ather’s appearance . . . would
have resulted in the juvenile court dismissing the section 300
petition in its entirety[.]” As discussed below, we agree with
father’s argument.
In M.M., the mother’s arrest for prostitution in May 2014
prompted the Department to file a petition on behalf of her child
under section 300, subdivisions (b) and (g). (See M.M., supra, 236
Cal.App.4th at pp. 957-958.) The petition alleged the mother took
the child with her when she went to solicit sex as a prostitute and
failed to make an appropriate plan for the child’s ongoing care
and supervision while she was incarcerated. (Ibid.)
During an interview with the Department, mother
admitted she had a history of prostitution but denied soliciting
sex on the night she was arrested. (M.M., supra, 236 Cal.App.4th
at p. 960.) She related that she had gone to a strip club to seek
employment, and had left her child in the care of her boyfriend at
the time, who was not her pimp. (Id. at pp. 959-960.) The mother
stated the police officers who reported that her boyfriend had
admitted to being her pimp “must have lied[.]” (Id. at p. 960.)
At the adjudication hearing, the mother’s counsel informed
the juvenile court that the mother was not present because she
was incarcerated, and objected to the court proceeding in her
absence. (M.M., supra, 236 Cal.App.4th at p. 960.) The juvenile
10
court overruled the objection, sustained the petition based solely
on the evidence submitted by the Department, and removed the
child from the mother. (See id. at pp. 960-961.)
The Court of Appeal reversed the jurisdictional findings
and dispositional order, holding the juvenile court had violated
the mother’s right to be present for the petition’s adjudication
under Penal Code section 2625, subdivision (d), and that the
error was not harmless. (M.M., supra, 236 Cal.App.4th at pp.
961, 964-965.) With respect to latter point, the Court of Appeal
rejected the Department’s contention that the mother was not
prejudiced because her “theory of the case . . . was documented in
the Department’s reports and argued to the juvenile court by her
counsel[,]” and she “d[id] not suggest she could have presented
any additional evidence had she been present at the hearing[.]”
(Id. at p. 963.) In so doing, it explained: “The Department’s
position ignores the vital role that live testimony plays in a
court’s assessment of credibility and its evaluation of conflicting
evidence: ‘Oral testimony of witnesses given in the presence of
the trier of fact is valued for its probative worth on the issue of
credibility, because such testimony affords the trier of fact an
opportunity to observe the demeanor of witnesses. [Citation.] A
witness’s demeanor is “‘part of the evidence’” and is “of
considerable legal consequence.”’ [Citation.]” (Id. at p. 964.)
The Court of Appeal emphasized that, “[w]ithout hearing
directly from [the mother] and assessing her demeanor, the
juvenile court rejected her account of the events” leading up to
her arrest and found she had placed the child at substantial risk
of physical harm by leaving him with her pimp while she solicited
for prostitution. (M.M., supra, 236 Cal.App.4th at p. 964.) Under
those circumstances, the Court of Appeal determined that “if [the
11
mother’s] oral testimony were believed, there is no doubt the
result of the challenged proceedings would have been more
favorable to her.” (Ibid.) Accordingly, the Court of Appeal stated
it “c[ould] not conclude the juvenile court’s error in proceeding in
violation of [the mother’s] right to be present at the hearing was
harmless.” (Ibid.)
Here, as in M.M., the record contains conflicting evidence
regarding whether father engaged in conduct placing G.D. at
substantial risk of serious physical harm. During an interview
with the Department in October 2020, mother stated she and
father had been in an on-and-off relationship, and that early on
in 2020, she and father “were trying to work things out[ ]” even
though she had obtained a restraining order against him several
years prior. She reported that in April or May 2020, father spent
time with her and G.D. by going to her home, going out to eat
together, going to the park, and attending G.D.’s speech therapy
services. While mother stated there was no domestic violence
during that time, she related father began harassing her in June
or July 2020, “when [she] decided to end things with him again”
and “get rid of his things that were stored in [her] garage.”
According to mother, father “started to come around the house
and started throwing stuff at the house[.]” She also stated father
“broke [a] window” at her home, and that she called the police
four times because she “felt threatened” and was “fear[ful] he
might do something.”
In contrast with mother’s statements, during his interview
with the Department, father stated he ended his relationship
with mother in May 2020 and has not been to her home or visited
G.D. since. He reported that prior to his release, his last visit
with G.D. was in February 2020. Consistent with these
12
statements, at the jurisdictional hearing, his counsel asserted
“father adamantly maintains that . . . [the] current allegations of
domestic violence are not true.”
As in M.M., had father been permitted to attend the
jurisdictional hearing, he could have testified in person to his
version of the events leading up to the referral giving rise to the
underlying dependency case. His testimony, if believed, could
have influenced the juvenile court’s determination whether he
had recently engaged in any violent conduct toward mother
threatening G.D.’s safety, and therefore whether G.D. was at
substantial risk of serious physical harm, given his failure to
abide by the restraining order and his history of violence with
mother.
Moreover, as father’s counsel pointed out at the
jurisdictional hearing, the evidence before the juvenile court did
not address whether he continued to abuse methamphetamine or
any other illicit substances since the prior dependency case was
terminated. Nor did the evidence address whether father had
been convicted of any drug-related or violent crimes since 2017.
Had he attended the jurisdictional hearing, father also could
have testified to these issues. His testimony certainly would have
been material to the juvenile court’s analysis whether his failure
to abide by the restraining order exposed G.D. to a substantial
risk of serious physical harm due to his substance abuse issues
and history of criminal activity.
In determining whether jurisdiction is warranted under
section 300, subdivision (b), the question is whether, at the time
of the adjudication hearing, a parent’s conduct has “‘“exposed [the
child] to a substantial risk of serious physical harm or illness.”’
[Citations.]” (In re Jesus M. (2015) 235 Cal.App.4th 104, 111-112,
13
italics in original.) Accordingly, based on the record in this case
and “the vital role that live testimony plays in a court’s
assessment of credibility and its evaluation of conflicting
evidence[ ]” (M.M., supra, 236 Cal.App.4th at p. 964), we conclude
“it is reasonably probable” father’s presence at the jurisdictional
hearing would have resulted an outcome “more favorable” to him.
(People v. Watson, supra, 46 Cal.2d at p. 836.)
We also reject the Department’s contention that father
failed to demonstrate the juvenile court’s error was harmless. In
support of its position, the Department emphasizes “[f]ather’s
counsel did not inform the juvenile court that [he] sought to
testify at the jurisdictional hearing or indicate what actual
testimony [he] sought to provide.” Further, the Department
argues that father’s testimony “was not crucial” to the juvenile
court’s decision to sustain the petition because, regardless of his
testimony, father does not dispute: (1) the juvenile court
previously exercised jurisdiction over G.D. under section 300,
subdivision (b) based on father’s infliction of domestic violence
against mother; and (2) father violated the restraining order by
going to mother’s home and having unrestricted contact with
G.D. in 2020.
Both the Department’s arguments are without merit. With
respect to its first point, the Department does not cite, and we
have not located, any authority requiring counsel for an
incarcerated parent to represent that the parent seeks to testify
at the jurisdictional hearing, or make an offer of proof regarding
his or her testimony. Indeed, in M.M., the Court of Appeal held
the juvenile court’s violation of Penal Code, section 2625,
subdivision (d) was not harmless even though, at the adjudication
hearing, the mother’s counsel did not state the mother wished to
14
testify or provide an offer of proof. (See M.M., supra, 236
Cal.App.4th at pp. 960-961, 963-964.)
The Department’s second contention is unavailing because
it effectively assumes the evidence demonstrating father violated
the restraining order by having contact with G.D. outside
monitored visitation, coupled with the sustained jurisdictional
findings in the prior dependency case that he inflicted domestic
violence on mother in 2018, was sufficient to support jurisdiction
under section 300, subdivision (b). However, absent evidence
suggesting the potential recurrence of a parent’s prior harmful
behavior, or evidence of recent conduct presenting a risk of
physical harm to the child, a parent’s violation of a restraining
order alone does not justify the assertion of jurisdiction under
section 300, subdivision (b). (See In re Jesus M., supra, 235
Cal.App.4th at pp. 106, 111-114 [reversing jurisdictional findings
under section 300, subdivision (b) where, although father violated
a restraining order entered in mother’s favor, the record did not
reflect any recent incidents of domestic violence or suggest past
violence was likely to recur].) This is so because “[d]ependency
proceedings are designed not to prosecute a parent or ‘for the
reproof and improvement of erring parents,’ but to protect
children. [Citations.]” (Id. at p. 113.)
In sum, for the reasons discussed above, we cannot
conclude the juvenile court’s violation of father’s right to be
present under Penal Code section 2625, subdivision (d) was
harmless. Accordingly, we reverse the jurisdictional and
dispositional orders and remand the case to the juvenile court to
hold a new adjudication hearing at which father has the
opportunity to be present and testify.
15
II. Sufficiency of Evidence Supporting Jurisdiction
In addition to arguing the jurisdictional and dispositional
orders should be reversed because the juvenile court violated his
right to be present under Penal Code section 2625, subdivision
(d), father also argues those orders must be reversed because the
jurisdictional findings are unsupported by substantial evidence.
Having concluded reversal is required based on his first
argument (see section I.B, ante), we need not address his
arguments challenging the sufficiency of the evidence supporting
the jurisdictional findings, and therefore decline to do so.
III. ICWA
A. Governing Legal Principles
“ICWA reflects ‘a congressional determination to protect
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimal federal
standards that a state court . . . must follow before removing an
Indian child from his or her family.’ [Citation.] Both ICWA and
the Welfare and Institutions Code define an ‘Indian child’ as ‘any
unmarried person who is under age eighteen and 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); § 224.1, subds. (a) and (b)
[incorporating federal definitions].)” (In re D.F. (2020) 55
Cal.App.5th 558, 565, fn. omitted (D.F.).) ICWA applies “[i]n any
involuntary proceeding in a State court, where the court knows or
has reason to know that an Indian child is involved, [and a] party
[is] seeking foster care placement of, or termination of parental
rights to, an Indian child . . . .” (25 U.S.C. § 1912(a).)
16
“The juvenile court and [the Department] have an
‘affirmative and continuing duty to inquire whether a child for
whom a Section 300 petition . . . may be or has been filed, is or
may be an Indian child.’ [Citations.] This continuing duty can be
divided into three phases: the initial duty to inquire, the duty of
further inquiry, and the duty to provide formal ICWA notice.”
(D.F., supra, 55 Cal.App.5th at p. 566.) Only the second and third
phases are relevant to this appeal.
The duty of further inquiry “is imposed when [the
Department] or the juvenile court has ‘reason to believe that an
Indian child is involved’ in the proceedings. [Citation.]” (D.F.,
supra, 55 Cal.App.5th at p. 566.) “Further inquiry as to the
possible Indian status of the child includes: (1) interviewing the
parents and extended family members to gather required
information; (2) contacting the Bureau of Indian Affairs and
State Department of Social Services for assistance in identifying
the tribes in which the child may be a member or eligible for
membership in; and (3) contacting the tribes and any other
person that may reasonably be expected to have information
regarding the child’s membership or eligibility. [Citations.]
Contact with a tribe must include, at a minimum, ‘telephone,
facsimile, or electronic mail contact to each tribe’s designated
agent’ and include information ‘necessary for the tribe to make a
membership or eligibility determination.’ [Citation.]” (D.F.,
supra, 55 Cal.App.5th at pp. 566-567, fn. and italics omitted.)
The third phase is triggered “once [the Department] or the
juvenile court has a reason to know an Indian child is involved[ ]”
in the dependency proceedings. (D.F., supra, 55 Cal.App.5th at p.
568.) “[N]otice pursuant to ICWA must be sent to the pertinent
tribe(s) via registered or certified mail. [Citation.] The notice
17
must contain sufficient information to enable the tribe to ‘conduct
a meaningful review of its records to determine the child’s
eligibility for membership.’ [Citation.] The required information
includes the names, birth dates, birthplaces, and tribal
enrollment information of the parents and other direct lineal
ancestors of the child, such as grandparents. [Citation.]” (Ibid.)
“On appeal, we review the juvenile court’s ICWA findings
for substantial evidence. [Citations.] But where the facts are
undisputed, we independently determine whether ICWA’s
requirements have been satisfied. [Citation.]” (In re D.S. (2020)
46 Cal.App.5th 1041, 1051, fn. omitted.)
B. Analysis
The parties do not dispute that the Department and the
juvenile court satisfied their duty of initial inquiry under ICWA,
or that their duty of further inquiry was triggered in this case.
Instead, father contends the juvenile court erred by finding the
Department satisfied its duties of further inquiry and notice,
even though it had yet to receive responses to the ICWA-030
forms from two tribes when the dispositional hearing was held.
He also argues the juvenile court erred by “foreclos[ing]” further
analysis into whether ICWA applied because G.D. was placed
with mother.
As an initial matter, we note the juvenile court’s findings
regarding ICWA are not entirely clear. At no point in the
underlying proceedings did the court expressly find ICWA
inapplicable. So far as we can tell, however, the record reflects
that at the dispositional hearing: (1) the court found the
Department satisfied its duties of further inquiry and notice
under ICWA and, based thereon, apparently inferred ICWA did
18
not apply; and (2) by declining to hold a status review hearing or
order a progress report on pending responses to the ICWA-030
notices sent to Jicarilla Apache Tribe and Navajo Nation, the
court effectively found further analysis into ICWA’s applicability
was unnecessary because G.D. had been placed with a parent. As
discussed below, we agree with father and conclude the juvenile
court erred by making these findings.
With respect to father’s first contention, as noted above, the
Department initially sent ICWA-030 notice forms to ten tribes,
including Navajo Nation and Jicarilla Apache Nation, on January
8, 2021. After the forms sent to Navajo Nation and Jicarilla
Apache Nation were returned to the Department, a social worker
contacted representatives from each tribe by phone on March 3,
2021. Subsequently, the social worker emailed a copy of the form
to Navajo Nation and resent a physical copy of the form to
Jicarilla Apache Nation via mail. Assuming those forms were
resent on the same date the social worker spoke to the tribes’
representatives by phone,6 only six days had passed between that
date and the date of the dispositional hearing. At that point, the
Department had not received confirmation of either forms’
receipt, let alone a determinative response from either tribe. On
this record, we conclude the juvenile court’s finding that the
6 The evidence does not demonstrate when specifically the
social worker resent the forms to Navajo Nation and Jicarilla
Apache Nation. In the Last Minute Information filed on March 4,
2021, the social worker did not specify the date on which the
forms were resent. Moreover, the record does not contain a copy
of the e-mail sent to the Navajo Nation representative, nor does it
contain any copy of the Certified Mail Receipt for the form resent
to Jicarilla Apache Nation.
19
Department satisfied its duties of inquiry and notice, and its
finding that ICWA did not apply based on thereon, were
premature. (Cf. In re M.W. (2020) 49 Cal.App.5th 1034, 1047
[affirming findings that the Department satisfied its duty of
inquiry and that ICWA did not apply where “two tribes were
given nearly two months within which to provide a determinative
response to the Department’s ICWA inquiry, a time period [the
appellate court] f[ound] reasonable in the context of a dependency
proceeding.”].)
In considering father’s second argument, we find In re
Jennifer A. (2002) 103 Cal.App.4th 692 instructive. There, the
child was living with her mother when a section 300 petition was
filed on behalf. (Id. at p. 697.) She was detained and placed in an
emergency shelter home. (Id. at p. 698.) Prior to the dispositional
hearing, the social services agency filed a report recommending
the child remain in foster home care, with visits by both parents.
(Ibid.) At the hearing, the juvenile court sustained the petition
and placed the child with her father. (Ibid.)
On appeal, the mother argued the juvenile court “erred in
failing to apply the notice and other procedural requirements of
the ICWA.” (In re Jennifer A., supra, 103 Cal.App.4th at p. 698.)
In response, the social services agency argued its failure to
comply with ICWA’s notice requirements was harmless. (Id. at p.
699.) Specifically, it argued ICWA did not apply because, among
other reasons, the juvenile court ultimately did not place the
child in foster care, and instead placed her with her father. (Ibid.)
The Court of Appeal disagreed with the agency, explaining
that its “argument ignores the fact that the issue of possible
foster placement was squarely before the juvenile court[,]” and
improperly “fixate[d] on the result of the proceedings, i.e., the
20
order that [the child] be placed in the custody of her father,
rather than on the possibility that the [juvenile] court could have
ordered continued foster home care.” (In re Jennifer A., supra,
103 Cal.App.4th at p. 700.) Because the child “was temporarily
placed in a foster home and [the agency] was seeking to have the
temporary placement continue[,]” and the child “had been
removed from her custodial parent . . . who could not have [the
child] returned to her upon demand[,]” the Court of Appeal
concluded the dispositional hearing was an “involuntary
proceeding[ ]” within the meaning of Title 25 United States Code
section 1912(a), to which ICWA applied. (Id. at pp. 700-701.)
Here, as in In re Jennifer A., G.D. was detained from
mother, his custodial parent, and placed in foster care with his
maternal grandmother pending the petition’s adjudication.
Mother could not have G.D. returned to her on demand.
Subsequently, in each of its reports leading up to the
dispositional hearing, the Department consistently recommended
that G.D. remain in his foster care placement. At the
dispositional hearing, the juvenile court found that although the
Department had yet to receive responses to the ICWA-030 forms
sent to Navajo Nation and Jicarilla Apache Nation, no further
analysis into its compliance with ICWA was needed because G.D.
had been placed with mother. In so doing, the court “fixat[ed] on
the result of the proceedings, i.e., the order that [G.D.] be placed
in the custody of [mother], rather than on the possibility that [it]
could have ordered continued foster home care[ ]” to, in effect,
conclude ICWA did not apply. (In re Jennifer A., supra, 103
Cal.App.4th at p. 700.) This was error. (See id. at pp. 700-701.)
In sum, we conclude the juvenile court erred to the extent it
found: (1) the Department satisfied its duties of inquiry and
21
notice and, based thereon, concluded ICWA did not apply; and (2)
no further analysis into ICWA’s applicability was necessary
because G.D. was placed in the home of a parent. Accordingly,
those findings are vacated. On remand, the juvenile court should
conduct further proceedings as needed to ensure ICWA
compliance and ascertain the statute’s applicability in this case.
DISPOSITION
The jurisdictional and dispositional orders are reversed.
The juvenile court’s ICWA findings are vacated. The case is
remanded to the juvenile court for further proceedings consistent
with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
22