In re J.W. CA4/1 ( 2022 )

Filed 6/24/22 In re J.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 J.W., a Person Coming Under
the Juvenile Court Law.
D079636
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ4645)
Plaintiff and Respondent,
v.
H.H. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Ana
L. Espana, Judge. Conditionally affirmed and remanded with directions.
Vincent Uberti, under appointment by the Court of Appeal, for
Defendant and Appellant, H.H.
Pamela Rae Tripp, under appointment by the Court of Appeal, for
Defendant and Appellant, John W.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Jesica N. Fellman, Deputy County Counsel, for Plaintiff
and Respondent.
H.H. (Mother) appeals a jurisdictional and dispositional order in the
Welfare and Institutions Code section 3001 dependency proceeding for her
son, J.W. Mother argues substantial evidence does not support the juvenile
court’s jurisdictional finding under section 300, subdivision (b). Mother also
argues substantial evidence does not support the court’s order removing J.W.
from her custody under section 361, subdivision (c). Lastly, Mother argues
the requirements under the Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.) were not satisfied.
John W. (Father) filed a separate appeal joining Mother’s arguments
regarding jurisdiction and removal.
We conclude substantial evidence supports the juvenile court’s
jurisdictional finding and removal order. However, because the San Diego
County Health and Human Services Agency (the Agency) did not ask
available extended family members about J.W.’s potential Indian ancestry,
the Agency failed to comply with its initial inquiry obligations, and
substantial evidence does not support the court’s finding that ICWA does not
apply. As such, we conditionally affirm, but remand for the limited purpose
of requiring the Agency to complete its inquiry obligations.
1 All further section references are to the Welfare and Institutions Code,
unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading to Petition
Mother had a prior voluntary services case in 2016, due to concerns
about her mental health and ability to care for her then-newborn son, J.H.2
During that investigation, it was found Mother had developmental and/or
cognitive delays. She received parenting services and attended counseling,
and the case was successfully closed after about six months.
In 2018 and 2019, the Agency received reports that J.H. was at times
left in a soiled diaper, played in the cat litter box, went to bed without dinner
and may skip other meals, and was heard screaming because he was hungry.
By this time, J.H. was diagnosed with autism. Several child welfare cases for
general neglect were opened but closed as inconclusive.
In September 2020, a voluntary case was opened after the Agency
received reports that Mother and Father, who is the father of J.W. but not
J.H., constantly hit, punch, and “toss [J.H.] around.” It was also reported
Father verbally assaults J.H. A doctor observed bruising around multiple
areas of J.H.’s left buttock. Mother claimed J.H. fell off a scooter four days
prior, however, the doctor reported that bruising to the fleshy part and
around multiple areas of the buttock would be unusual for a short fall with a
single impact on a flat surface. The doctor expressed concern that the
bruising on J.H.’s buttock was due to spanking, which constitutes physical
abuse when done with enough force to cause bruises that last more than
several minutes.
Father admitted spanking J.H. with an open hand, stating he “freaked
out, [J.H.] was going to kill my cat.” Mother defended Father and blamed the
2 J.H. is not party to or a subject of this appeal and appellant Father is
not J.H.’s father.
3
incident on J.H.’s behavior. J.H.’s biological father obtained full custody,
Mother was limited to supervised visits, and a restraining order was put in
place preventing Father from having contact with J.H.
Although Mother consistently denied having a relationship with Father
during her voluntary services case regarding J.H., Father is the biological
father of J.W. J.W. was born in May 2021. After giving birth to J.W., Mother
planned to discharge to maternal grandmother’s residence, however, Father
did not want Mother to take J.W. and instead wanted to take him for a few
days. Father did not cooperate with the hospital social worker, who
suspected Father had mental health issues. Father threatened to sue the
hospital and presented “interesting papers” purporting to assert the hospital
was infringing on his freedom and rights if they would not allow him to visit
J.W.
While the hospital social worker had some concerns, she did not believe
there were any acute or immediate protective issues regarding J.W. She was
under the impression Mother was “definitely going to her mother’s house,”
and Father did not live there. The hospital social worker noted Mother was
appropriate with J.W., and while she was at high risk for post-partum
depression, she already had an appointment with her psychiatrist and was
open to a social worker from Family Health Centers of San Diego (FHCSD)
following up on her mental health needs. The hospital discharged Mother
and J.W. on May 10, 2021.
The next day, Mother informed her voluntary services social worker
that she was still at the hospital and was seeking advice because Father did
not want her taking J.W. to maternal grandmother’s home. Mother stated
she felt “a little” unsafe with Father and gave the impression that there may
have been a hostile situation with Father trying to coerce her to give him
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J.W. Mother’s voluntary services social worker called the hospital social
worker, who indicated Mother was discharged the day prior.
Mother then admitted to her voluntary services social worker that she
was discharged the day prior and was currently at paternal grandparents’
home. According to Mother, paternal grandfather drove her and J.W. there
after being discharged from the hospital. She admitted Father was also in
the home but denied he was ever alone with J.W. Mother claimed she was
going to maternal grandmother’s home and that she had her dates mixed up
regarding her discharge. When asked why she lied about being at the
hospital that day, she stated she was “out of it.”
On May 12, 2021, sheriff officers did a welfare check at paternal
grandparents’ home. Mother and J.W. were not there, although there was a
crib, baby carriers, and baby supplies, which Father stated were from a baby
shower. Father denied that Mother and J.W. were staying there. When
social workers went to paternal grandparents’ home, Father opened the door
and stated he was video recording the interaction. He claimed he did not
know where Mother and J.W. were, he would not allow the social workers to
check the home themselves, and he produced a paper saying they were
trespassing.
A social worker called maternal grandmother, who said Mother and
J.W. were not at her residence either, and had not been there since they left
the hospital. She believed they were with Father. They were supposed to
arrive to her house on May 11, 2021, but she received a text from Mother
indicating they would come on May 12, 2021. Maternal grandmother
informed the social worker that Mother does not communicate well with her
and she had concerns about Mother parenting J.W. on her own.
5
Mother appeared at maternal grandmother’s house on May 13, 2021.
She informed the investigating social workers that paternal grandfather
picked her and J.W. up from the hospital and took them to see Mother’s
friends where they ended up staying the night before going to maternal
grandmother’s home the next evening. Mother claimed she lived with
maternal grandmother and denied living with Father. She also denied that
Father did not want her taking J.W. to maternal grandmother’s house or that
she said she felt “a little” unsafe around him. Mother had no concerns with
J.W. being in Father’s care. She admitted Father spanked J.H. but stated
“[w]hat happened with my other son was a mistake and misconstrued.”
Mother admitted to having post-partum depression and agreed to a safety
plan but would not sign it without consulting with her attorney.
Later that day, Mother changed her story again, admitting that after
leaving the hospital, she went to Father’s house for a few hours before going
to her friend’s house where she spent the night. She wanted Father to see
J.W., who was supervised by paternal grandparents. She denied being in a
relationship with Father and stated she planned to file for custody. Mother
wanted Father to have supervised visits and indicated paternal grandparents
and maternal grandmother could supervise. Mother was not willing to sign a
safety plan for her to stay with maternal grandmother because she believed it
caused problems resulting in J.H. being taken away from her despite a social
worker explaining that the purpose was to safely keep J.W. with her.
In the course of the investigation, paternal grandparents were
defensive of Father. Paternal grandfather told a social worker Father would
never hurt J.W. and asserted J.H. is a different person with different
circumstances. He stated J.H. would not let go of the cat after a verbal
request and asked if they were supposed to let J.H. “strangle my cat.” While
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standing over Mother who was sitting on a couch, he told Mother that the two
situations were not related. He denied Father physically abused other kids
and did not understand what J.H. had to do with J.W. Paternal grandmother
also asserted Father has never been violent, claiming the cat incident was the
first time and would not happen again. According to paternal grandmother,
if Father was a “child beater,” J.H. would have had bruises before.
Maternal grandmother informed a social worker that Mother and
Father are “very connected” and that Mother talks to Father, paternal
grandfather, and paternal grandmother. She stated Mother lies to her and
does not tell her much, but she believed Mother was still in a relationship
with Father. She expressed concern that Father can be “deceptive” and
wanted Mother to “hurry” to close her voluntary services case so that Mother
could start spending time with him and spend the night at his house, which
she did up until she had J.W. Maternal grandmother also indicated that
when Father raises his voice at J.H. or tries to “step in and correct” him,
Mother does not do or say anything to Father.
Mother’s voluntary services social worker was also concerned that
Mother could be influenced by Father and had not always been honest with
the Agency regarding her contact or relationship with Father during the
voluntary case. She was also concerned that Mother needed to be told what
to do in order to protect J.W.
On May 20, 2021, a child family team (CFT) meeting was held with
Mother, Father, paternal grandmother, paternal grandfather, maternal
grandmother, Mother’s voluntary services social worker, and the
investigative social workers in attendance. Father claimed he had no
problem holding himself accountable and admitted to spanking J.H. after he
tried “everything” to get J.H. to let the cat go, although he did not intend to
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leave bruises. Father had since successfully completed parenting and anger
management services at McAlister Institute of Treatment and Education
(McAlister). He claimed that after learning how to control his emotions and
how he reacts, he would now take “both of [J.H.’s] arms to move him back or
let him ‘strangle the cat dead.” Father declined to take any parenting
classes, asserting he had enough at McAlister, but refusing to sign a release
for the Agency to verify his services. Mother believed Father would not do
anything to hurt anyone and said Father is not a danger to J.W. Mother and
Father agreed that J.W. would stay with Mother at maternal grandmother’s
home until a doctor provided clearance for Father to visit J.W.3 Father
agreed to have video visits only in the meantime.
When social workers made an unannounced visit to maternal
grandmother’s home on May 24, 2021, maternal grandmother informed the
Agency that Father had been harassing Mother. Mother, on the other hand,
informed that Agency that she had no concerns about Father being around
J.W. and thought it would be “okay” leaving J.W. with Father, stating “he is
really good with him.” She planned to co-parent with him although she
would stay at maternal grandmother’s house and be the main caregiver, and
she had “no plans to be with him right now.”
On May 26, 2021, Mother again asserted she was not dating Father
and he was not her boyfriend. She also denied that Father had seen J.W.
since the CFT meeting. Mother was not afraid that Father would hurt J.W.
and stated he is “doing great” and has not shown any anger. Mother was
attending parenting classes and therapy, although she had missed a child
abuse class. Mother said she felt like her “normal self” and decided not to go
3 A doctor had told Mother to wait until J.W. was two months old before
bringing him out in public, due to the COVID-19 pandemic.
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on post-partum depression medication because she would likely need to stop
breastfeeding. She felt as though she had “covered everything” in her
voluntary services case and had not decided whether she planned to continue
child abuse group.
The next day, Mother sent an email to her voluntary services social
worker stating “I would like to close the voluntary case with [J.H.] as I feel
all of his needs have been met.”
On May 28, 2021, a social worker spoke with maternal grandmother,
who expressed “high concerns” about Mother’s functioning level such as not
understanding how to obtain medical insurance for J.W., not knowing how
much to feed him, and not being able to do many things without help from
others. Mother had been diagnosed with attention deficit hyperactivity
disorder, bipolar disorder, borderline personality disorder, self-harming,
unspecified mood disorder, and impulsivity in the past. She was recently
offered medication but did not want to take it because she was breastfeeding.
Maternal grandmother asserted Mother was living with Father before J.W.
was born, and was still spending a lot of time at the paternal family home but
lying about it. She believed Mother would move out and take J.W. to live
with Father in paternal grandparents’ shared home. She was concerned
Father would get frustrated and lose his temper under the stress of a
newborn, which could lead to him abusing J.W., as he did with J.H. She also
worried Mother would fail to protect J.W. just as she failed to protect J.H. on
multiple occasions, and paternal grandparents would cover up for Father, as
they tried to do with J.H.
Later that day, maternal grandmother called the Agency to report that
Mother left the house and said she was taking J.W. to see paternal
9
grandfather. Instead, maternal grandmother found mother sitting in a
vehicle with Father, who was holding J.W.
When a social worker confronted Mother about bringing J.W. into
contact with Father that day, Mother “continued to blatantly deny” it and
told the social worker to call paternal grandfather who would deny that
Father was present for the visit. She eventually admitted that she did bring
J.W. to see Father and that she had also done so on one other occasion. She
did not understand why she could not bring J.W. around Father. She
indicated she planned to lift the restraining order protecting J.H., and bring
him around Father as well. Mother had no concerns with J.W. being around
Father and talked negatively about J.H., stating he has behavioral issues and
had been pulling on the cat regularly.
The next day, May 29, 2021, a social worker received a text from Father
stating, “[Mother] told me about your extortion and your threats imma [sic]
personally see to it you and who ever [sic] is involved with this child trafficng
[sic] goes to jail I warned you if you keep harassing me and [Mother] what I
would do so guess what I’m filing charges against you.” He asserted he was
going to “file [a] power of attorney for [Mother] so anyone wants to talk to her
has to go through me.”
On May 30, 2021, maternal grandmother informed a social worker that
Mother called the police on her. She texted the social worker a photo of a
letter signed by Mother, Father, and paternal grandfather stating Mother
was accepting a bag of baby clothes and supplies from Father and that Father
agreed to help wash J.W.’s clothes and sheets. Maternal grandmother
informed the social worker that she was not present for the signing of the
letter and that paternal grandfather keeps showing up to her house daily.
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The next day, Mother called her voluntary services social worker to ask
about the status of her case closing. Mother stated Father was giving her a
hard time. She felt she was doing everything she is supposed to for her
mental health and wanted her case to close.
B. Petition and Detention Hearing
On June 2, 2021, the Agency filed a petition for J.W. under section 300,
subdivision (b)(1), alleging J.W. has suffered or there is substantial risk that
J.W. will suffer serious physical harm or illness due to his parent’s failure or
inability to supervise or protect him and his parent’s inability to provide
regular care for him due to the parent’s mental illness, developmental
disability or substance abuse. The Agency alleged the following factual bases
for the petition:4
“On or about and between May [ ] 2021 to present the mother
had a mental illness including but not limited to post-
partum depression for which she has not obtained treatment
and developmental delays which rendered her incapable of
providing adequate care for this child. Additionally, the
mother has failed to protect this child from [Father], who
physically abused mother’s 5-year-old autistic son in
September 2020, and the mother and [Father] continue to
deny the physical abuse, the mother declines to continue in
voluntary services designed to protect her children from the
risk of physical abuse and this child is in need of the
protection of the Juvenile Court.”
Concurrently with the petition, the Agency filed an application for a
protective custody warrant. The Agency stated J.W. was currently with
4 After trial, the juvenile court modified the language regarding the
factual bases for petition, to conform to the evidence presented at trial. On
appeal, Mother argues substantial evidence does not support the petition as
modified. Thus, we quote and address the allegations of the petition as
modified.
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Mother at maternal grandmother’s home and Mother refused to sign a safety
plan with the Agency. The Agency was concerned that once Mother’s
voluntary case regarding J.H. was closed, Mother would take J.W. to live
with Father, and they would not follow through with services and would not
cooperate with the Agency. The protective custody warrant was issued and
J.W. was detained in a foster home.
In its detention report, the Agency recommended that J.W. remain
detained in a foster home or Polinsky Children’s Center, and that Mother and
Father have supervised visitation.
At the detention hearing on June 4, 2021, the court made a prima facie
finding that J.W. is a child as described by section 300, subdivision (b) and
that J.W.’s initial removal from Mother’s custody was necessary. The court
ordered J.W. detained in a foster home with liberal supervised visits and
voluntary services for Mother and Father. The court set the jurisdiction and
disposition hearing for June 24, 2021.
C. Jurisdiction and Disposition Report
In its jurisdiction and disposition report dated June 24, 2021, the
Agency indicated that J.W. had adjusted well in the foster home.
When interviewed on June 10, 2021, Mother stated she was dishonest
with the Agency and she should have been honest because it caused “a lot of
problems.” She admitted she was currently staying at Father’s home, and
had been staying with Father since her pregnancy with J.W. Mother agreed
to be honest with the Agency going forward and further admitted that she
continues to be in a relationship with Father and has support from his
family. She had not been staying with maternal grandmother because they
argue a lot. Mother wanted to continue her child abuse group and
counseling.
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When interviewed on June 11, 2021, Father stated he and Mother have
been together since July 2020. He asserted they were co-parenting but were
not living together and were not lying. He believed J.W. was taken into
protective custody due to “false allegations of general neglect.” He admitted
he “spanked” J.H. but denied that he left bruises, urging that he was never
charged by law enforcement because there was not enough evidence. He said
he “only hit him 2 or 3 times, not even that hard,” and complained that the
petition “forgot to mention that this kid was choking my cat and I had to
spank him. . . . Either I can let my cat die or do something.”
On June 15, 2021, Mother’s therapist from FHCSD informed the
Agency that Mother completed her intake in December 2020. Mother
reported being diagnosed with unspecified anxiety and mood disorder. The
therapist thought Mother was motivated but required a higher level of care
and more consistent sessions than the one session per month that is provided
at FHCSD. Mother was referred to TERM for a psychological evaluation.
Father was also referred to TERM for a psychological evaluation, individual
therapy, and child physical abuse group.
When interviewed again on June 16, 2021, Mother understood that
J.W. was brought into protective custody because she was lying to the Agency
and allowed Father to visit with J.W. However, she did not agree that she
failed to protect J.W. from Father. She also did not think what Father did to
J.H. was intentional, stating that J.H. was “strangling the animals,” “could
be a little bit aggressive,” has “behavioral problems,” and can be “bratty
sometimes.” Mother said seeing the marks and bruises that Father caused to
J.W. was “uncomfortable and shocking,” although she believed it was a
mistake and Father did not know his strength or how to handle J.H. She did
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not have any concerns with Father hurting J.W. and asserted Father “has
been loving and nurturing to [J.W.] even under pressure.”
Mother was not sure if she had a developmental delay but knew she
had a learning disability, although she did not believe it prevented her from
caring for J.W. She also stated she had a mental health diagnosis and was in
the hospital often as a teenager for self-harm and took psychotropic
medication “on and off” as an adult. She did not take medication during her
pregnancy to avoid risk of hurting J.W., but was now open to taking
medication. Mother was willing to cooperate with the Agency and participate
in services in order to get J.W. back into her care.
The Agency also talked to maternal grandfather and maternal
grandmother on June 16, 2021. Maternal grandfather thought Mother
needed counseling and would be a good mother if she could stay away from
Father. Maternal grandmother believed Mother could not control her lying.
For example, Mother had told maternal grandmother she was staying with a
friend who had a baby, which is why she was taking J.W.’s baby things.
However, Mother later admitted to maternal grandmother that she was
actually staying with Father. Additionally, while Mother would call
maternal grandmother for advice when J.W. would get fussy, she would
otherwise does not listen to maternal grandmother. Maternal grandmother
wanted to be assessed for placement and understood that once the
assessment processes began, Mother would not be able to live with her.
On June 17, 2021, Father called the Agency social worker because he
heard from maternal grandmother that she was going to have J.W. in her
care. The social worker explained that all relatives who come forward have a
right to be assessed for placement. The social worker heard another person
on the phone telling Father “[y]ou don’t have to do what they say.” Father
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became aggressive, refused to submit to drug testing, and stated he was not
going to participate in services to get J.W. back. Father then passed the
phone to “Michael,” who claimed he was Father’s power of attorney and
stated all conversations with Father must go through him. The social worker
explained that she could not speak to Michael due to the confidential nature
of the case and ended the phone call after Michael began to get aggressive.
The social worker texted Father to have him provide the Agency with a copy
of his power of attorney. Father responded, questioning the social worker’s
background and how much the social worker gets paid for the drug test,
asserting “I also charge 500 million per DNA sample which I will be billing to
the stae [sic] to cps and to you and who ever [sic] is involved in this.”
The Agency expressed concern about J.W.’s safety in Mother’s and
Father’s care due to their mental instability, which can interfere with their
ability to adequately care for and parent J.W. if left untreated. The Agency
was also concerned that while both Mother and Father admit that Father
physically abused J.H., they both continue to blame J.H. and minimize his
injuries. Mother was willing to engage in services including continuing her
child abuse and parenting classes. She also requested a psychological
evaluation and was open to taking medication to stabilize her mental health.
The Agency emphasized the importance of Mother gaining insight and
articulating the risks of exposing J.W. to an environment where he could be
physically abused. Father stated he completed anger management, therapy,
and parenting classes, through McAlister but complained that he was “still
being questioned” about what he did. He was not willing to engage in any
other services, demonstrating his unwillingness to gain insight and learn
coping skills to protect J.W. from his own triggers and erratic behavior.
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D. Special Hearings and Visitations After First Jurisdiction and
Disposition Hearing Is Continued
From the very beginning of the jurisdiction and disposition hearing on
June 24, 2021, an unidentified person immediately began interrupting the
court in the background of the virtual hearing. The unidentified person
asserted “the judge is not obeying the oath of office . . . the judge is denying
me my freedom of speech.” After attempting to obtain the identification of
the person and unsuccessfully admonishing the person not to interrupt the
court, the court directed the clerk to disconnect the unidentified person.
Mother’s counsel informed the court that Mother no longer wanted
legal representation. Mother indicated she would “hand over power of
attorney to Michael C.” When the court informed Mother there was no
information showing that person is a licensed attorney, Mother asked the
court to repeat itself because “my phone was taken away from me.” Mother
then stated she wanted to represent herself. The court relieved Mother’s
counsel of record.
Father’s attorney also represented that Father “fired” her and was no
longer communicating with her. The court relieved her as Father’s counsel of
record. Father did not respond to the court’s questions and the court noted
Father had voluntarily absented himself from the proceedings. The
unidentified person interrupted again asserting “the judge has violated
[Father’s] due process of law. Let the record reflect the judge is not obeying
his office. Let the record reflect that each and every one of you are
proceeding without your amenities.”
The Agency asked the court to admonish Mother, Father, and the
unidentified individual that the proceedings are confidential and should not
be recorded. Maternal grandmother informed the court that she wanted to be
assessed for placement and that Mother had not been in her home on her own
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accord since J.W.’s removal. The court continued the jurisdiction and
disposition hearing to August 20, 2021.
The Agency filed an addendum report on July 8, 2021, to report that
Michael C. appeared as Father’s “power of attorney” at a CFT meeting, and
was seen recording the meeting on his cell phone. After agreeing to the
confidential nature of the meeting “under duress,” he and Father became
aggressive and asserted that the Agency was involved in kidnapping J.W.,
the Agency was participating in child trafficking, and the protective custody
warrant was fraudulent and not signed by a real judge. Father asserted he
was not going to participate in any services.
After the CFT meeting, the Agency discovered Michael C. uploaded a
video of the meeting online, which included mention of the social worker’s
first name and J.W.’s last name. The Agency later discovered Michael C.
uploaded another video wherein he shows a document that had information
about the June 24, 2021 jurisdiction and disposition hearing as well as the
full name of the presiding judge, and a third video that showed Father’s
name. The court held a special hearing and strongly admonished the parties
as to the confidential nature of the proceedings, and ordered that Mother and
Father not disseminate any information regarding this matter to Michael C.,
and that any video or information posted on social media regarding this
matter be removed. Father interrupted the court throughout the hearing.
On July 14, 2021, Mother and Father visited J.W. together. They fed
J.W. a bottle, burped him, and took turns holding him. At some point, J.W.
became fussy and began crying. J.W. gagged when Father attempted to feed
him. Father attempted again and J.W. gagged again. The social worker told
Father that it appeared J.W. was no longer hungry. Father thought J.W. was
congested and listened to his lungs. Father firmly told Mother that J.W. was
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sick and became upset asserting it was due to the foster caregivers’ neglect.
J.W. continued crying and Father began to yell at the social worker stating
J.W. needed to be taken to the hospital. A security guard came in to tell
Father to calm down. Father escalated and began to raise his voice and point
his finger at the social worker, then began to cry out of frustration. Mother
told the social worker she was going to have a panic attack and asked for help
getting J.W. into his car seat. The social worker was able to get J.W. out of
the room. The social worker then burped J.W. and heard him pass a lot of a
gas. J.W. then fell asleep. Father caused a scene outside the building and
called police and paramedics to the scene. The paramedics assessed J.W.
while he was asleep in the social worker’s arms and determined J.W. was
fine.
Later that day, Mother informed the social worker she wanted an
attorney appointed to represent her again and apologized for what happened
during the visit.
On July 19, 2021, Mother had a positive visit with J.W. According to
Mother, Father did not attend this visit because he “had things to do.” When
J.W. became fussy, Mother did a great job consoling him, demonstrated great
patience, and was using skills from her parenting class. Later that day,
Mother called to inform the Agency that she and Father were not currently
speaking and requested separate visits from Father. She later called again,
indicating she decided to continue having visits together with Father, but she
wanted to be sure separate visits were an option in the future. The social
worker confirmed this was possible and heard paternal grandfather in the
background reprimanding Mother for requesting separate visits.
On July 26, 2021, Mother had another positive visit with J.W. Father
did not attend again, but paternal grandmother and paternal aunt did
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accompany Mother as support. Paternal grandmother asked about
placement, however, once the social worker indicated Father and Mother
would not be able to live with her if she is assessed for placement, she
decided not to be assessed.
The court held another special hearing on July 29, 2021, to appoint
counsel for Mother. Father again interrupted the court throughout the
hearing. When the Agency recommended that Father accept appointment of
counsel, Father stated he was “not accepting any help from any court officer
because they are not competent.” The judge then indicated that a federal
case had been filed naming him as a party, requiring him to recuse himself
from the matter.
At a subsequent special hearing with a different judge on August 11,
2021, Father asserted he would “take an attorney” only if “they recognize my
status and so does the Court, and recognizes my status as a state national
with limited diplomatic immunity . . . .” The court set a continued
jurisdiction and disposition hearing for September 28, 2021.
E. Addendum Jurisdiction and Disposition Report
In its addendum report for the September 28, 2021 jurisdiction and
disposition hearing, the Agency confirmed Father had declined services and
had not participated in parent education or a psychological evaluation.
The Agency reported Mother completed her TERM psychological
evaluation on July 23, 2021. Mother’s diagnoses were borderline intellectual
functioning, adjustment disorder with mixed anxiety and depressed mood,
and “child physical abuse, suspected, subsequent encounter.” Additionally,
Mother had a low cognitive function and her scores fell within the range of
impairment, with her learning disorder being consistent with her cognitive
19
score. The psychologist reported that Mother was guarded during her
interview and did not want to talk about certain things.
On August 23, 2021, Mother told the Agency that she “felt really
stressed out and upset yesterday” and had felt unstable and suicidal. She
called a crisis line and spoke with paternal grandfather and felt better soon
after. She was still living with Father in paternal grandparents’ home and
had still not begun taking her psychotropic medications prescribed by her
doctor at FHCSD. Mother informed the Agency she found out J.H. had been
aggressive with other animals. The social worker explained that due to his
autism, it is the adult’s responsibility to teach him appropriate ways to
redirect behaviors rather than reacting with physical discipline. When asked
to describe Father’s reactions toward J.H., Mother responded, “I don’t know.”
The social worker explained that Mother needs to gain insight into how adult
behaviors puts her children at risk of physical abuse and she needs to know
how to protect them. Mother then stated, “I wasn’t honest with the Agency.
I left [J.H.] with [Father] because I did not know how to handle him and I
never intended for this to happen.”
On September 7, 2021, Mother’s therapist from FHCSD informed the
Agency that Mother would be discharged from therapeutic and psychiatry
services on October 16, 2021, because mother needed a higher level of care
than what FHCSD could provide.
On September 17, 2021, Mother informed the Agency that she planned
to move in with friends, but had not yet told Father. Also, she began taking
her psychotropic medicine on August 23, 2021, but did not feel that it was
working. Mother reported she had been attending her child abuse classes
and was trying to focus on herself and her mental health.
20
On September 20, 2021, Mother’s therapist from TERM stated that
Mother was making some progress and “understands what is important” and
“does not know how to change things but is well aware of what is not right.”
Mother informed the Agency she planned to move in with her friends the
following day.
The Agency reported Mother had engaged in voluntary services
including weekly therapy sessions with TERM, in-home parenting,
completing a psychological evaluation, monthly therapy sessions with
FHCSD, and psychotropic medication management with FHCSD. Father, on
the other hand, declined all services, and all service providers reported that
he threatened to pursue legal action against them. The Agency was
concerned about Father’s behavior and resistance to learning coping skills for
his triggers and frustrations. Also concerning was that Mother still could not
articulate the risks of exposing J.W. to an environment where he could be
physically abused, as well as articulate how she will protect J.W.
F. Jurisdiction and Disposition Hearing
At the jurisdiction and disposition hearing on September 28, 2021, the
Agency and J.W.’s counsel both asked the court to sustain the petition and
remove J.W. from Mother’s and Father’s custody. Mother asked the court to
dismiss the petition, or if the court made a true finding on the petition, asked
that J.W. be placed with her. Mother stipulated she would be willing to live
with maternal grandmother if J.W. were placed in her care. Likewise,
maternal grandmother stipulated that if J.W. were placed with Mother, she
was willing to have Mother and J.W. live with her. Father, representing
himself, argued the Agency had not come forward with a real claim.
21
The court found by clear and convincing evidence that the allegations of
the petition as modified5 were true and that J.W. was a child described
within section 300, subdivision (b). As to disposition, the court likewise found
by clear and convincing evidence that removal of J.W. from Mother’s and
Father’s custody was appropriate under section 361, subdivision (c)(1). The
Agency informed the court that the assessment of maternal grandmother’s
home was in the process of being completed and Mother would not be able to
move in with maternal grandmother without prejudicing the assessment.
The court placed J.W. in a licensed foster home.
DISCUSSION
Mother argues substantial evidence does not support the juvenile
court’s jurisdictional finding and dispositional order. We disagree.
Mother also argues ICWA requirements were not met. We agree and
conditionally affirm, remanding for the limited purpose of ICWA compliance.
A. Jurisdiction Finding
Mother claims substantial evidence does not support the finding that
she suffered from untreated post-partum depression and there is no evidence
her mental health issues or developmental delays had any impact on her
ability to safely care for J.W. Additionally, while she does not deny Father’s
physical abuse of J.H., she argues the juvenile court’s dependency jurisdiction
cannot be based on a single incident where there is no evidence of ongoing
risk of further incidents or harm to J.W. She claims J.H. is differently
situated and substantial evidence does not support a finding that Mother and
Father minimized the incident. Lastly, Mother argues her failure to continue
voluntary services cannot provide a basis for jurisdiction where there is no
substantial evidence of a substantial risk of harm to J.W. in the first place.
5 See ante, footnote 4.
22
Section 300, subdivision (b)(1) authorizes dependency jurisdiction if a
child “has suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or inability of the
child’s parent . . . to adequately supervise or protect the child, . . . by the
inability of the parent . . . to provide regular care for the child due to the
parent’s . . . mental illness, developmental disability, or substance abuse.”
(§ 300, subd. (b)(1).)
On appeal, we review the record for substantial evidence to support the
juvenile court’s section 300 jurisdictional findings. (In re Isabella F. (2014)
226 Cal.App.4th 128, 137.) In so doing, we consider the entire record, draw
all reasonable inferences in favor of the prevailing party, and then affirm the
order if substantial evidence supports court’s findings. (Id. at pp. 137–138.)
A finding is supported by substantial evidence if a trier of fact could
reasonably make that finding in light of the entire record. (In re Savannah
M. (2005) 131 Cal.App.4th 1387, 1393–1394.).) We must affirm an order that
is supported by substantial evidence even if other evidence, or other
inferences from the evidence, would have supported a contrary finding. (In re
N.M. (2011) 197 Cal.App.4th 159, 168 (N.M.).) The appellant has the burden
to show there is insufficient evidence to support the juvenile court’s order.
(In re Lana S. (2012) 207 Cal.App.4th 94, 103 (Lana S.); N.M., at p. 168.)
Juvenile dependency proceedings are intended to protect children who
are currently being abused or neglected, “and to ensure the safety, protection,
and physical and emotional well-being of children who are at risk of that
harm.” (§ 300.2.) Although “the question under section 300 is whether
circumstances at the time of the hearing subject the minor to the defined risk
of harm” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824), the court may
nevertheless consider past events when determining whether a child
23
presently needs the juvenile court’s protection. (In re Troy D. (1989) 215
Cal.App.3d 889, 899–900.) A parent’s past conduct is a good predictor of
future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169–1170.)
Here, based on our review of the record, substantial evidence supports
the juvenile court’s true finding on the allegations in the petition as modified
by the court. The petition alleged that between May 2021 to present, Mother
had a mental illness “including but not limited to post-partum depression . . .
and developmental delays.” Indeed, the results of Mother’s July 23, 2021
psychological evaluation included diagnoses of borderline intellectual
functioning, and adjustment disorder with mixed anxiety and depressed
mood. The psychologist noted Mother had a low cognitive function, consistent
with her learning disorder.
There is also substantial evidence that Mother’s mental health issues
rendered her incapable of providing adequate care for J.W. As recently as
five weeks before the jurisdictional and dispositional hearing, Mother became
stressed and upset, to the point that she felt unstable and suicidal. Mother
had just begun taking her psychotropic medication at that time and she did
not feel that it was working, providing substantial evidence that her mental
illness remained untreated. Further, just three weeks before the hearing,
Mother’s therapist from FHCSD stated Mother would be discharged because
she needed a higher level of care than what FHCSD could provide. And her
therapist from TERM stated that she was making some progress and
understood what is not right, but still “does not know how to change things.”
To the extent Mother cites evidence and argues that she was
appropriate with J.W. in the hospital after his birth and during supervised
visits thereafter, she misconstrues and/or misapplies the substantial evidence
standard of review. (N.M., supra, 197 Cal.App.4th at p. 168.) That is, we
24
must affirm the court’s jurisdictional finding where it is supported by
substantial evidence even if other evidence would have supported a contrary
finding. (Ibid.)
Because substantial evidence supports the juvenile court’s finding that
Mother’s mental illness or developmental delays rendered her incapable of
providing adequate care for J.W., we need not address whether substantial
evidence supports the jurisdictional finding based on Father’s physical abuse
of J.H. (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1127 [“[T]he
juvenile court’s jurisdiction may rest on a single ground”].) Nonetheless, we
briefly address Mother’s argument that jurisdiction cannot be based on the
single incident involving J.H. because there is no evidence of ongoing risk of
further incidents or harm to J.W.
As an initial matter, there is substantial evidence Mother and Father
continued to minimize the physical abuse and deny that there was an issue
with what Father did to J.H. While Mother argues that she said what
happened was “uncomfortable and shocking,” she also claimed what
happened to J.H. was “a mistake and misconstrued,” and she did not think
what Father did was intentional. Mother also blamed J.H. asserting he had
behavioral issues and was “bratty sometimes.” It is concerning that Father
claimed to hold himself accountable and explained that he did not intend to
leave bruises, but later denied that he left bruises. Father also stated he
“only hit him 2 or 3 times, not even that hard,” which is not merely
explaining what happened but rather expressing there was nothing wrong
with what he did.
Father’s refusal to participate in any services to learn skills to cope
with his triggers and erratic behavior is further evidence that a substantial
risk of harm to J.W. existed at the time of the jurisdictional and dispositional
25
hearing. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“[o]ne cannot
correct a problem one fails to acknowledge”]; In re Esmeralda B. (1992) 11
Cal.App.4th 1036, 1044 [“denial is a factor often relevant to determining
whether persons are likely to modify their behavior in the future without
court supervision”].)
Mother’s argument on appeal that Father’s physical abuse of J.H.
cannot support a finding of risk to J.W. holds no weight. Substantial
evidence shows the risk caused by Father was not limited to J.H. or J.H.’s
autistic behavior. As recently as two and one-half months before the
jurisdictional and dispositional hearing, Father became frustrated and upset
to the point that he began to cry, raise his voice to a social worker, and
accused the foster caregivers of neglect all because J.W. would not stop crying
during a visit. A security guard could not get Father to calm down, and
Father ultimately called the police and paramedics. As it turned out, J.W.
simply needed to pass gas. During this incident, Mother felt that she was
going to have a panic attack and asked the social worker for help, showing
Mother’s inability to adequately protect J.W.
Mother’s final argument that jurisdiction cannot be based on her
declining to continue further voluntary services fails because it is based on a
false premise. Mother argues the lack of voluntary services cannot pose a
risk to J.W. if there is no substantial risk of harm to J.W. in the first place.
As discussed above, Mother’s untreated mental illness and developmental
delays as well as Father’s past physical abuse to J.H. and continuing erratic
behavior, created a substantial risk that J.W. would suffer serious physical
harm.
In summary, substantial evidence supports the court’s jurisdictional
findings.
26
B. Removal from Custody
Mother further challenges the sufficiency of evidence to support the
court’s dispositional order removing J.W. from her custody under section 361,
subdivision (c). Mother’s arguments regarding the juvenile court’s
dispositional findings are similar to the arguments she raises regarding the
jurisdictional findings. She contends there was “very little evidence” that
J.W. would be in any danger in her custody because there was no evidence
her mental health issues and developmental delays impaired her ability to
safely parent J.W. and the single incident of Father’s physical abuse of J.H.
was too far removed to justify removal of J.W. Mother claims any risk posed
by Father was resolved because she was no longer living with Father at the
time of the hearing and she was being protective. Mother also argues there
were reasonable means of protecting J.W. other than removal such as
frequent unannounced visits, in-home services, or ordering Mother to reside
with maternal grandmother. Contrary to Mother’s assertions, we conclude
substantial evidence supports the juvenile court’s finding that removal of
J.W. from Mother’s custody was necessary and that there was no other
reasonable means to protect J.W.
After a juvenile court exercises jurisdiction over a child pursuant to
section 300, it must determine the appropriate disposition for that child.
(§§ 360, subd. (d), 361, 362; N.M., supra, 197 Cal.App.4th at p. 169.) The
court has broad discretion in choosing an appropriate disposition that serves
the child’s best interests. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)
Section 361, subdivision (c), provides in pertinent part: “A dependent
child shall not be taken from the physical custody of his or her
parents . . . with whom the child resides at the time the petition was
initiated, unless the juvenile court finds clear and convincing evidence of any
27
of the following circumstances . . . : [¶] (1) There is or would be a substantial
danger to the physical health, safety, protection, or physical or emotional
well-being of the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be protected
without removing the minor from the minor’s parent’s . . . physical custody.”
(§ 361, subd. (c).)
“In determining whether a child may be safely maintained in the
parent’s physical custody, the juvenile court may consider the parent’s past
conduct and current circumstances, and the parent’s response to the
conditions that gave rise to juvenile court intervention.” (In re D.B. (2018) 26
Cal.App.5th 320, 332.) A child does not have to be “actually harmed before
removal is appropriate. The focus of the statute is on averting harm to the
child.” (In re T.V. (2013) 217 Cal.App.4th 126, 135–136.)
We review a removal order for substantial evidence. (In re V.L. (2020)
54 Cal.App.5th 147, 154.) Because section 361, subdivision (c) requires proof
by clear and convincing evidence, we determine “whether the record as a
whole contains substantial evidence from which a reasonable fact finder could
have found it highly probable that the fact was true.” (Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1011 (O.B.); see also In re V.L., at pp. 154–155
[standard of review described in O.B. applies to removal findings under § 361,
subd. (c)].) Still, we must affirm an order that is supported by substantial
evidence even if other evidence, or other inferences from the evidence, would
have supported a contrary finding. (N.M., supra, 197 Cal.App.4th at p. 168.)
As we have discussed, substantial evidence supports a finding that
J.W. faced a substantial risk of harm as a result of Mother’s untreated
mental illness and developmental delays as well as Father’s past physical
abuse and continuing erratic behavior.
28
Mother’s argument that she was no longer living with Father at the
time of the hearing does not reduce that risk. Mother informed the Agency
only 11 days prior to the hearing that she planned to move in with friends.
She supposedly made the move only seven days prior to the hearing.
Additionally, Mother had previously lied about her whereabouts. At the
hospital after J.W. was born, Mother assured the hospital social worker that
she was going to maternal grandmother’s house. Instead, paternal
grandfather picked her up after she was discharged and took her and J.W. to
paternal grandparent’s home where Father lived. The next day, Mother lied
to the Agency and said she was still at the hospital. She lied to the Agency
once again, claiming she went straight to a friend’s house after being
discharged, when she was actually with Father. Mother also told maternal
grandmother that she was staying with a friend, when she was really staying
with Father. Even when Mother was actually staying with maternal
grandmother, she lied about seeing Father and allowing Father to see J.W.
On appeal, Mother points to some evidence suggesting she had
developed insight into the need be protective of J.W. However, it is not this
court’s role on appeal to reweigh the evidence, but rather to determine
whether “ ‘it is reasonable for a trier of fact to make the ruling in question in
light of the whole record.’ ” (In re Savannah M., supra, 131 Cal.App.4th at
p. 1394.) The juvenile court could reasonably conclude it was highly probable
that J.W. would still be at risk of harm based on evidence that shows Mother
had not yet fully separated herself from Father and did not have a firm grasp
on the risk of harm that Father caused. Again, while a therapist stated
Mother now “understands what is important” she still “d[id] not know how to
change things.” When asked most recently to describe Father’s reactions
toward J.H., Mother merely stated “I don’t know.”
29
Additionally, the record shows Father was exercising control over
Mother’s decisions. Father had been pressuring Mother to close her
voluntary services case regarding J.H. When J.W. was born, Mother asked a
social worker for advice because she felt unsafe and Father did not want her
taking J.W. to maternal grandmother’s house after being discharged. She
later admitted that she was already at paternal grandparent’s house with
Father, and claimed she had her dates mixed up and was “out of it.” She
then denied that Father did not want her taking J.W. to maternal
grandmother’s house or that she ever felt unsafe around Father. Mother’s
voluntary services social worker expressed concern that Mother can be
influenced by Father.
In the course of the investigation, Father asserted control over Mother,
claiming he was going to file a power of attorney for her and anyone from the
Agency would need to talk to Mother through him. At the initial jurisdiction
and disposition hearing on June 24, 2021, Mother informed the court that she
no longer wanted legal representation and sought to “hand over power of
attorney to Michael C.,” the person who spoke for and seemingly defended
Father throughout the proceedings. During the hearing, someone took the
phone away from Mother, supporting an inference that someone was
controlling her conduct during the hearing. Mother was living with Father at
this time.
Overall, Mother’s assertion that she was being protective and resolved
the risk posed by Father asks this court to reweigh the evidence, something
we cannot do. We therefore conclude the record contains sufficient evidence
to support the court’s finding that there would be a substantial risk of harm
to J.W. if he were not removed from Mother’s custody.
30
Mother cites no evidence or authority for her argument that in-home
services or more frequent unannounced visits were viable alternatives to
removal that would address the risks and circumstances in this case.
(Compare with In re Henry V. (2004) 119 Cal.App.4th 522, 529–531
[reversing removal order where child was removed for single, serious incident
of physical abuse; social worker testified about in-home services that could
mitigate risk of further physical abuse, including unannounced visits, public
health nursing services, and in-home counseling, and mother was “fully
cooperative”].) To the contrary, there is evidence these alternatives proposed
by Mother would not work. They turn on social workers or service providers
having access to Mother’s friend’s home and, as already noted, Mother has
been dishonest with the Agency about her residence and whereabouts.
There is also no evidence that an order requiring Mother to reside with
maternal grandmother was an adequate means of protecting J.W. Mother
and maternal grandmother did not have an established stable relationship,
which the juvenile court noted. Indeed, maternal grandmother stated Mother
does not listen to her, lies to her, and does not tell her much. Further, as
already noted, the last time Mother and J.W. were staying with maternal
grandmother, Mother lied to maternal grandmother and the Agency about
seeing Father and allowing Father to see J.W.
In summary, substantial evidence supports the juvenile court’s
findings, under a clear and convincing standard, that there would be
substantial danger to J.W. if he were returned to Mother’s custody, and that
there was no other reasonable means to protect J.W.
C. ICWA
Mother argues the Agency and the court failed to comply with the
ICWA requirements because there is no evidence the Agency made ICWA
31
inquiries of any family members other than Mother, Father, and an attempt
to contact paternal grandmother.
Mother also argues it is impossible to determine whether ICWA “notice
requirements” were satisfied once Father claimed potential Apache ancestry
because the record does not contain the contents of the Agency’s contacts with
various tribes and there is no way to know what information was provided to
those tribes.
We conclude the Agency was not required to provide formal notice to
any tribes because there was no “reason to know” that J.W. was an Indian
child. However, we conclude the Agency failed to satisfy its initial inquiry
obligations because it did not ask available extended family members about
J.W.’s potential Indian ancestry. The Agency concedes this issue. As such,
we conditionally affirm, but remand with directions for the Agency to comply
with its initial inquiry obligations.
1. Additional Facts
In its June 2, 2021 petition, the Agency indicated a social worker made
an inquiry of Mother, who gave the social worker no reason to believe J.W. is
or may be an Indian child. The Agency did not provide any information about
whether it made an inquiry of Father, and noted it had not yet completed its
inquiry.
In its June 3, 2021 detention report, the Agency reported it was
unknown whether Father had any Indian ancestry. The Agency confirmed
Mother denied having any Indian ancestry on May 13, 2021.
At the detention hearing on June 4, 2021, Mother again confirmed she
had no Indian ancestry. Father indicated he may have Indian heritage,
specifically, Apache. The court ordered the Agency to begin its reasonable
32
efforts to verify Father’s claim of possible Apache heritage and provide notice
accordingly. The court deferred on the ICWA issue.
On June 11, 2021, Father informed the Agency that his mother’s
mother (paternal grandmother’s mother) had a small amount of Apache but it
was not enough to be a registered tribal member. No one from his family was
a registered tribal member or had ever lived on a reservation. According to
Father, his paternal grandmother’s mother had passed away five or 10 years
ago and no other family members had any more information regarding his
ancestry.
The Agency interviewed maternal grandmother and maternal
grandfather on June 16, 2021, but there is no indication the Agency asked
them about J.W.’s potential Indian ancestry.
The Agency called paternal grandmother and left voicemails on June 17
and 18, 2021, to inquire about her potential Apache ancestry but did not
receive a return call.
At the jurisdiction and disposition hearing on June 24, 2021, the
Agency indicated it needed to finish its inquiry as to Father’s alleged Apache
heritage.
In its addendum report for the September 28, 2021 jurisdiction and
disposition hearing, the Agency noted that paternal grandfather attended a
visitation on June 30, 2021. However, there is no indication the Agency
asked him about J.W.’s potential Indian ancestry. Likewise, paternal
grandmother and paternal aunt attended a visitation on July 26, 2021, but
there is no indication the Agency made any ICWA inquiry.
The Agency reported that it sent letters to eight Apache tribes to
further inquire whether J.W. is or may be an Indian child. Seven of those
tribes sent responsive letters, which the Agency attached to its report, stating
33
that J.W. was not eligible for membership in those tribes. The eighth tribe
did not respond after five follow up emails and five follow up calls.
The court found that ICWA does not apply to this case.
2. Applicable Law
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 In re Isaiah W., at p. 9.) An
“Indian child” is defined in the same manner as under federal law, i.e., 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);
accord Welf. & Inst. Code, § 224.1, subd. (a) [adopting the federal definition].)
As outlined by this court in In re D.S. (2020) 46 Cal.App.5th 1041, 1052
(D.S.), “section 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).)
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.”
34
During the first stage of initial inquiry, “[s]ection 224.2, subdivision (b)
specifies that once a child is placed into the temporary custody of a county
welfare department, such as the Agency, the duty to inquire ‘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.’ ” (D.S., supra, 46 Cal.App.5th at pp. 1048–1049.)
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].)
“On appeal, we review the juvenile court’s ICWA findings for
substantial evidence.” (D.S., supra, 46 Cal.App.5th at p. 1051.) However,
where the facts are undisputed, we independently determine whether ICWA’s
requirements have been satisfied. (Ibid.)
3. Analysis
The juvenile court’s finding that ICWA was inapplicable implied that
the Agency 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”].)
The record does not support these findings.
The Agency concedes its initial ICWA inquiry was deficient because it
did not ask extended relatives who were available to the Agency whether
J.W. is or may be an Indian child. Although paternal grandmother did not
35
return the Agency’s calls when it sought to make a further inquiry regarding
Father’s claim of potential Apache ancestry, she did subsequently attend a
visitation with Mother and there is no indication the Agency used this
opportunity to conduct an ICWA inquiry. Likewise, paternal grandfather
and paternal aunt attended a visitation, however, there is no indication the
Agency asked them about J.W.’s potential Indian ancestry. The Agency also
interviewed maternal grandmother and maternal grandfather but did not
make an ICWA inquiry. Because these individuals all qualify as extended
family members under ICWA, the Agency was required to ask them about
J.W.’s potential Indian ancestry, and the juvenile court had to ensure this
inquiry took place before it could find ICWA did not apply. (D.S., supra, 46
Cal.App.5th at pp. 1048–1049.) On this record, we must conditionally affirm
and issue a remand so the Agency and juvenile court can comply with these
obligations.
Mother also argues there is no way to determine whether the Agency
complied with its “notice requirements” because the contents of its
communications with the eight Apache tribes are not included in the record.
The duty to provide formal notice, however, is triggered only where there is a
“reason to know” the child is an Indian child. (§ 224.3 [formal ICWA notice is
required if there is a “reason to know” a child is an Indian child as defined
under § 224.2, subd. (d)].)
A “reason to know” exists under any of the following circumstances:
“(1) A person having an interest in the child, including the child, an officer of
the court, a tribe, an Indian organization, a public or private agency, or a
member of the child’s extended family informs the court that the child is an
Indian child; [¶] (2) The residence or domicile of the child, the child’s
parents, or Indian custodian is on a reservation or in an Alaska Native
36
village; [¶] (3) Any participant in the proceeding, officer of the court, Indian
tribe, Indian organization, or agency informs the court that it has discovered
information indicating that the child is an Indian child; [¶] (4) The child who
is the subject of the proceeding gives the court reason to know that the child
is an Indian child; [¶] (5) The court is informed that the child is or has been
a ward of a tribal court; and [¶] (6) The court is informed that either parent
or the child possess an identification card indicating membership or
citizenship in an Indian tribe.” (§ 224.2, subd. (d).)
Here, Father’s claim that he may have Apache heritage stemming from
paternal grandmother’s mother did not give rise to a “reason to know” that
J.W. is an Indian child. To the contrary, Father stated paternal
grandmother’s mother did not have enough Apache to be a tribal member and
no one from his family was a registered tribal member or ever lived on a
reservation. Thus, the Agency was not required to provide formal notice to
any tribes because there was no “reason to know” that J.W. was an Indian
child.
To the extent Mother intends to argue that Father’s claim of potential
Apache heritage gave rise to a “reason to believe” that J.W. is or may be an
Indian child, Mother cites no authority requiring that the record include the
contents of the Agency’s further inquiry communications with tribes (i.e.,
copies of letters). (See § 224.2, subd. (e)(2)(C) [when there is a “reason to
believe” a child is an Indian child, further inquiry includes contacting tribes
by “telephone, facsimile, or electronic mail”], italics added; compare with
§ 224.3, subds. (a)(1), (c) [when there is a “reason to know” a child is an
Indian child, formal notice “shall be sent by registered or certified mail with
return receipt requested” and proof of formal notice, including copies of
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notices sent and all return receipts and responses received, shall be filed with
the court].)
DISPOSITION
The juvenile court’s jurisdiction and disposition order is conditionally
affirmed. 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), including inquiry of
paternal grandmother, paternal grandfather, maternal grandmother,
maternal grandfather, and paternal aunt. If, after completing its inquiry,
neither the Agency nor the juvenile court has reason to believe or reason to
know J.W. is an Indian child, the order for the jurisdiction and disposition
hearing shall be reinstated. If the Agency or the juvenile court has reason to
believe or reason to know J.W. is an Indian child, the juvenile court shall
proceed accordingly.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
DATO, J.
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