In re A.H. CA4/1 ( 2022 )

Filed 10/5/22 In re A.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.H. et al., Persons Coming
Under the Juvenile Court Law.
D080504
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY,
(Super. Ct. Nos. J517838B-G)
Plaintiff and Respondent,
v.
J.H.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Marissa A. Bejarano, Judge. Conditionally reversed in part; dismissed in
part; and remanded with directions.
Suzanne M. Davidson, under appointment by the Court of Appeal, for
Defendant and Appellant.
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Claudia Silva, County Counsel, Caitlin E. Rae, Chief Deputy County
Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and
Respondent.
The San Diego County Health and Human Services Agency (Agency)
concedes it did not comply with its initial 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. It agrees with appellant J.H. (Father), that
the juvenile court erred in finding a reasonable inquiry had been made into
the possible Indian ancestry of his daughter, V.H., and that ICWA did not
apply, allowing the court to declare her a dependent and removing her from
his custody. 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 conditionally
reverse the dispositional orders as to V.H. and remand the matter with
directions for the limited purpose of compliance with ICWA and section
224.2.2
1 All undesignated statutory references are to the Welfare and
Institutions Code.
2 Father also appeals the juvenile court’s jurisdictional orders as to his
other five children—A.H., L.H., N.H., J.H., Jr., and Le.H. He correctly
acknowledges, however, that ICWA is not applicable to these children
because they remained in his custody at disposition. (25 C.F.R. § 23.103(b)
[ICWA does not apply to an award of custody of an Indian child to one of the
parents]; see In re M.R. (2017) 7 Cal.App.5th 886, 904 [“ICWA . . . do[es] not
apply to a proceeding in which a dependent child is removed from one parent
and placed with another.”].) Accordingly, Father’s ICWA argument on appeal
applies only to V.H. who was removed from his custody at disposition.
Because no claim of error or other defect has been raised in this matter as to
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FACTUAL AND PROCEDURAL BACKGROUND3
In June 2010, the juvenile court found that ICWA did not apply to V.H.
In February 2022, the Agency filed a new dependency petition for V.H. The
social worker filed an ICWA-010A form indicating the ICWA inquiry provided
no reason to believe V.H. is or may be an Indian child. At the detention
hearing, Father’s counsel informed the juvenile court that Father had no
Native American heritage. Based on Father’s representation and the
Agency’s representation that Mother had no Native American heritage, the
juvenile court found, without prejudice, that ICWA did not apply.4 At V.H.’s
contested jurisdictional and dispositional hearing the juvenile court again
found, without prejudice, that ICWA did not apply. Father timely appealed
the court’s dispositional orders as to V.H.
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 . . .
A.H., L.H., N.H., J.H., Jr., and Le.H., the appeal filed on June 7, 2022, is
dismissed as to these children. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
3 Because Father’s sole contention on appeal challenges the compliance
by the Agency with its section 224.2, subdivision (b) initial inquiry duties, we
limit our discussion of the facts and procedural history to information
necessary to determine that issue.
4 The maternal grandmother denied that she or Mother J.M., who is
deceased, had any Native American heritage.
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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.) In dependency
proceedings, 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).) “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.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
The Agency’s initial duty of inquiry includes “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.” (§ 224.2, subd. (b).)5
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
5 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].)
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not support the juvenile court’s finding that the Agency complied with its
ICWA inquiry obligations under section 224.2. The Agency’s concession is
proper.
The initial ICWA inquiry was deficient because the Agency failed to ask
the paternal grandmother and a paternal aunt about the possibility of Indian
ancestry, although the Agency interviewed both individuals.6 A reversal is
appropriate, where, as here, “the record demonstrates that the agency has
not only failed in its duty of initial inquiry, but where 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 Benjamin M.
(2021) 70 Cal.App.5th 735, 744 (Benjamin M.); In re Y.M. (2022) 82
Cal.App.5th 901, 916 [this division has adopted the approach articulated
Benjamin M.].) The fact Father denied any Native American heritage at the
beginning of the proceeding does not relieve the Agency of its “broad duty” to
inquire of readily ascertainable extended family members whether V.H. is an
Indian child. (In re Y.W. (2021) 70 Cal.App.5th 542, 554.) A contrary rule
would “ignore[ ] the reality that parents may not know their possible
relationship with or connection to an Indian tribe.” (Ibid.; In re Ricky R.
(2022) 82 Cal.App.5th 671, 680 [applying Benjamin M. standard and finding
reversible initial inquiry error where agency “asked the parents about Indian
ancestry” but “failed to ask extended family members about it”].)
6 We acknowledge the juvenile court concluded in 2010 that ICWA did
not apply to V.H. This finding, however, was made before the changes to the
ICWA statutes became effective. The statutes at that time did not require a
due diligence finding or contain a “duty to inquire” by “asking . . . extended
family members.” (§ 224.2, subd. (b), compare former §§ 224.2 & 224.3.) It is
unknown whether the Agency’s ICWA inquiry in the 2010 dependency
proceeding comported with the standards required by the current ICWA
statutes.
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Because substantial evidence does not support the juvenile court’s
finding that ICWA did not apply, we conditionally reverse the dispositional
orders as to V.H. with a limited remand for the Agency and the juvenile court
to comply with ICWA and section 224.2.7
7 Before reversing or vacating a judgment based upon a stipulation of the
parties, an appellate court must find “both of the following: [¶] (A) There is
no reasonable possibility that the interests of nonparties or the public will be
adversely affected by the reversal. [¶] (B) The reasons of the parties for
requesting reversal outweigh the erosion of public trust that may result from
the nullification of a judgment and the risk that the availability of stipulated
reversal will reduce the incentive for pretrial settlement.” (Code Civ. Proc.,
§ 128, subd. (a)(8).) The present case involves reversible error because the
parties agree, and we concur, that the Agency failed to comply with ICWA
and related California provisions. Because this case would be subject to
reversal to permit compliance with ICWA and corresponding California
statutes and rules absent the parties’ stipulation, a stipulated remand
advances the interests identified by Code of Civil Procedure section 128,
subdivision (a)(8). (See In re Rashad H. (2000) 78 Cal.App.4th 376, 379–382.)
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DISPOSITION
The appeal is dismissed as to minors A.H., L.H., N.H., J.H., Jr., and
Le.H. (In re Sade C. (1996) 13 Cal.4th 952, 994.) As to minor V.H., the
dispositional orders are conditionally reversed and the matter is remanded to
the juvenile court with directions that, within 30 days of the remittitur, the
Agency must file a report demonstrating its compliance with the initial
inquiry provisions of section 224.2, subdivision (b), and, if required, conduct
further inquiry under section 224.2, subdivision (e). Within 45 days of the
remittitur, the juvenile court must conduct a hearing to determine whether
the Agency’s investigation satisfied its affirmative duty to investigate. The
juvenile court has the discretion to adjust these time periods on a showing of
good cause.
If neither the Agency nor the juvenile court has reason to believe or to
know that V.H. is an Indian child, the dispositional orders issued at the May
12, 2022, contested Welfare and Institutions Code section 361 hearing shall
be reinstated by the juvenile court. Alternatively, if after completing the
inquiry the Agency or the juvenile court has reason to believe that V.H. is an
Indian child, the court shall proceed accordingly. The clerk of this court shall
issue the remittitur forthwith. (Cal. Rules of Court, rule 8.272(c)(1).)
O’ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DO, J.
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