In re Jordan J. CA4/2 ( 2022 )

Filed 10/11/22 In re Jordan J. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re JORDAN J., a Person Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E078539
Plaintiff and Respondent, (Super.Ct.No. J265931)
v. OPINION
S.J.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed in part, vacated in part, and remanded with directions.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
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Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for
Plaintiff and Respondent.
In this dependency case, S.J. (Mother) appeals from the juvenile court’s order
terminating her visitation with her son, Jordan J. She argues that San Bernardino County
Children and Family Services (CFS) failed to discharge the duty of initial inquiry into
whether Jordan is or may be an Indian child. (Welf. & Inst. Code, § 224.2, subd. (b),
unlabeled statutory citations refer to this code.)
In 2016, the juvenile court found that the Indian Child Welfare Act of 1979 (25
U.S.C. §§ 1901 et seq.) (ICWA) did not apply to Jordan under the former state law
implementing ICWA. The court selected legal guardianship as the child’s permanent
plan and terminated jurisdiction on August 11, 2017.
Effective January 1, 2019, Assembly Bill No. 3176 (2017-2018 Reg. Sess.)
(Assembly Bill 3176) revised “‘the specific steps a social worker, probation officer, or
court is required to take in making an inquiry of a child’s possible status as an Indian
child.’” (In re T.G. (2020) 58 Cal.App.5th 275, 296 (T.G.).) In 2020, the juvenile court
terminated Jordan’s guardianship and reopened his dependency case. The court and CFS
then had “an affirmative and continuing duty to inquire” (§ 224.2, subd. (a)) as to
ICWA’s applicability and failed to discharge the expanded duty of initial inquiry under
current law. That failure requires us to vacate the juvenile court’s finding that ICWA
does not apply and order a limited remand for the juvenile court to order CFS to fulfil its
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duty of initial inquiry under section 224.2. The order terminating Mother’s visitation is
unaffected by the juvenile court’s ICWA finding, so we otherwise affirm.
BACKGROUND 1
A. 2016-2017 Dependency Proceedings
In May 2016, CFS received a referral from Dane County, Wisconsin, alleging
severe neglect of Jordan, then age four, and his sister2 after medical neglect contributed to
the death of one of Jordan’s brothers. Another brother had been removed from the home
in January 2016 by Wisconsin authorities, and the family subsequently moved to San
Bernardino County while the Wisconsin investigation was pending.
Both Mother and Jordan are diagnosed with Kniest dysplasia, a bone growth
disorder causing dwarfism, impaired vision and hearing, and other complications.
Jordan’s medical history included multiple corrective surgeries. He had a gastrostomy
tube (G-tube) surgically placed when he was a few months old to assist with feedings,
and Mother admitted having missed an appointment for removal of the G-tube. Because
of Jordan’s special healthcare needs, Mother’s history of missed medical appointments
for the children, the substantiated finding of medical neglect in the Wisconsin
dependency proceeding, and the family’s flight risk, Jordan was taken into CFS
protective custody pursuant to a warrant on June 13, 2016. At that time, Mother denied
1 This court on its own motion ordered the record in case No. E067046
incorporated into the record of the current case. (Cal. Rules of Court, rule 8.147.)
2 Jordan’s sister is not a subject of this appeal. The same referral also led to the
filing of a dependency petition for the five children of Mother’s stepsister, C.R.
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any Indian ancestry. A juvenile dependency petition was filed two days later, and Jordan
was detained from Mother’s custody on June 16, 2016. Mother was present at the
detention hearing, was questioned on the record, and denied any Indian heritage. Mother
completed the Parental Notification of Indian Status form (ICWA-020) that same date
denying any known Indian ancestry.
Wisconsin authorities reported to CFS that genetic testing revealed Mother’s
father, J.J., to be the biological father of both of Jordan’s brothers. Paternity testing
ordered by the juvenile court subsequently confirmed that J.J. is also the biological father
of Jordan and his sister. Despite the medical evidence, J.J. denied paternity of Mother’s
children but did admit fathering all five children of Mother’s stepsister, C.R. When
questioned by CFS on June 13, 2016, J.J. denied any known Indian ancestry. On July 7,
2016, J.J. completed an ICWA-020 form denying any known Indian ancestry. He also
denied any Native American ancestry when questioned on the record by the juvenile
court at the initial jurisdiction hearing that same date. J.J. is not a party to this appeal.
Mother’s and J.J.’s parental rights as to Jordan’s surviving brother were
terminated by the Wisconsin court on August 11, 2016. Documentation from that
proceeding indicates that Jordan’s brother was determined not to be an Indian child, and
the Wisconsin court found ICWA did not apply.
At the continued contested jurisdiction hearing on October 18, 2016, the juvenile
court found Jordan came within subdivisions (b), (d), (e), and (j) of section 300. The
following day, the juvenile court found J.J. to be merely the biological father of Jordan
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and not entitled to reunification services, found that ICWA does not apply, declared
Jordan a dependent child of the court, ordered his removal, denied reunification services
to both parents, denied visitation for J.J. as detrimental, and ordered supervised visitation
for Mother.
At the selection and implementation hearing, the juvenile court selected legal
guardianship as Jordan’s permanent plan, appointed C.T. as legal guardian, found
termination of Mother’s parental rights would be detrimental because she had maintained
regular visitation and Jordan would benefit from continuing the relationship, and ordered
monthly visitation for Mother. At the August 11, 2017, post-permanency review hearing,
the juvenile court dismissed the petition and terminated jurisdiction.
B. Reopened Dependency Proceedings
On July 1, 2020, C.T., Jordan’s guardian, filed a petition pursuant to section 388
requesting that the court terminate the guardianship. The juvenile court set the petition
for hearing and ordered CFS to file a response.
CFS recommended that the court grant the petition. C.T. explained that his wife
had died, he had remarried, and his job was being transferred to Los Angeles. Rather
than uproot Jordan from his school and friends, C.T. proposed that his stepdaughter,
Tiffanie O., and her husband, Tadd O., become Jordan’s guardians. Tiffanie worked as a
licensed vocational nurse, and the couple was already familiar with Jordan’s healthcare
needs and had been providing respite care for Jordan for some time. Mother had not
visited Jordan since February 2018, but she called every once in a while. CFS
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recommended that Jordan remain with Tiffanie and Tadd, where he appeared to be happy
and well cared for.
On August 26, 2020, the juvenile court terminated C.T.’s guardianship, reinstated
Jordan as a dependent child of the court, and approved his continued his placement in
Tiffanie and Tadd’s home. Permanency planning review hearings were held every six
months thereafter. Jordan remained in the home of Tiffanie and Tadd, which received
resource family approval on March 2, 2021.
In its August 2021 report, CFS noted that Jordan had some emotional and
behavioral disturbances, including fits of anger during which he screams, slams doors,
breaks things, and threatens the other children in the home. Those issues were being
addressed by Jordan’s caregivers, a new therapist, a new psychiatrist who had begun
treating Jordan for disruptive behavior disorder and anxiety disorder, and his special
education teacher who was working with Jordan’s caregivers and the school to develop a
new individual education plan. After several years without any visits, Mother contacted
CFS sometime in mid-2021 about resuming visits with Jordan. A video visit was
conducted, which increased Jordan’s negative behaviors. At the request of Jordan’s
counsel, the court limited Mother’s visits to a therapeutic setting “until [Jordan’s]
behaviors stabilize.”
After each visit with Mother, Jordan’s disruptive behaviors continued to escalate
and would include physical aggression, kicking, biting, smearing feces, and urinating on
the carpet. Jordan’s extreme reactions after each visit with Mother required his
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psychologist to stop whatever she was doing and work with Jordan to quell the behaviors,
which had slowed Jordan’s therapeutic progress significantly. Jordan’s behavior was
much improved when a monthly visit did not occur. CFS requested that visitation be
terminated as detrimental to Jordan’s well-being. At the February 2022 review hearing,
the juvenile court found Jordan’s visits with Mother detrimental and , over Mother’s
counsel’s objection, terminated further visitation.
DISCUSSION
On appeal from the juvenile court’s order terminating her visitation, Mother does
not challenge that order on the merits. Rather, she contends that CFS failed to discharge
its duty of initial inquiry under state law implementing ICWA, and therefore the juvenile
court’s finding that ICWA did not apply is unsupported by substantial evidence.
“ICWA was enacted to curtail ‘abusive child welfare practices that resulted in the
separation of large numbers of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.’ [Citation.] ‘ICWA
reflects a congressional determination to protect Indian children and to promote the
stability and security of Indian tribes and families by establishing minimum federal
standards a state court must follow before removing an Indian child from his or her
family.’ [Citation.]” (In re Dominick D. (2022) 82 Cal.App.5th 560, 565 (Dominick
D.).)
An Indian child is any unmarried person under 18 who is either “a member of an
Indian tribe or . . . eligible for membership in an Indian tribe and is the biological child of
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a member of an Indian tribe.” (25 U.S.C. § 1903(4); § 224.1, subd. (a).) Because
membership and eligibility criteria are set by each tribe, whose determinations are
conclusive (§ 224.2, subd. (h)), notice must be provided to all relevant tribes whenever
there is “reason to know” that an Indian child is subject to certain proceedings that may
culminate in termination of parental rights, adoptive or preadoptive placement, or foster
care placement. (§§ 224.3, subd. (a), 224.1, subd. (d).) Notice to the tribes is therefore
“central to effectuating ICWA’s purpose” because it enables the tribe “to determine
whether the child involved in a dependency proceeding is an Indian child and, if so,
whether to intervene in, or exercise jurisdiction over, the matter.” (T.G., supra, 58
Cal.App.5th at p. 288.)
“Because it typically is not self-evident whether a child is an Indian child, both
federal and state law mandate certain inquiries to be made in each case.” (In re Benjamin
M. (2021) 70 Cal.App.5th 735, 741 (Benjamin M.).) The duty to inquire consists of two
phases—the duty of initial inquiry and the duty of further inquiry. (In re D.F. (2020) 55
Cal.App.5th 558, 566.) Only the duty of initial inquiry is implicated in the instant case.
The duty of initial inquiry begins at the referral stage when CFS must ask “the party
reporting child abuse or neglect whether the party has any information that the child may
be an Indian child.” (§ 224.2, subd. (a).) Once a child is taken into temporary custody,
CFS must ask the child, parents, legal guardian, extended family members, and others
who have an interest in the child whether the child is or may be an Indian child.
(§§ 224.2, subd. (b), 306, subd. (b).) Extended family members include adults who are
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the child’s stepparents, grandparents, aunts, uncles, brothers, sisters, nieces, nephews, or
first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) The juvenile court
must ask each participant at the first appearance “whether the participant knows or has
reason to know that the child is an Indian child,” and the court must “instruct the parties
to inform the court if they subsequently receive information that provides reason to
know the child is an Indian child.” (§ 224.2, subd. (c); see 25 C.F.R. § 23.107(a).) The
court must also have each parent complete an ICWA-020 form. (Cal. Rules of Court,
rule 5.481(a)(2)(C) & (a)(3).)
CFS is required to document its ICWA inquiry efforts throughout the proceedings,
beginning with the petition. (Cal. Rules of Court, rule 5.481(a)(1).) All filings thereafter
must include “a detailed description of all inquiries, and further inquiries it has
undertaken, and all information received pertaining to the child ’s Indian status.” (Cal.
Rules of Court, rule 5.481(a)(5).)
If the court finds that CFS has complied with its duty of inquiry and there is no
reason to know that the child is an Indian child, then the court may find that ICWA does
not apply. (§ 224.2, subd. (i)(2); Cal. Rules of Court, rule 5.481(b)(3)(A).) Before the
juvenile court makes such a finding, it must “first ensur[e] that [CFS] has made an
adequate inquiry under ICWA and California law, and if necessary, the court must
continue the proceedings and order [CFS] to fulfill its responsibilities.” (In re Antonio R.
(2022) 76 Cal.App.5th 421, 431 (Antonio R.).) A juvenile court’s finding that ICWA
does not apply implies “that social workers had fulfilled their duty of inquiry.” (In re
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Austin J. (2020) 47 Cal.App.5th 870, 885.) “We review a court’s ICWA findings for
substantial evidence. [Citations.] ‘We must uphold the court’s orders and findings if any
substantial evidence, contradicted or uncontradicted, supports them, and we resolve all
conflicts in favor of affirmance.’ [Citation.] Mother, as the appellant, ‘has the burden to
show that the evidence was not sufficient to support the findings and orders.’ [Citation.]”
(Ibid.)
Mother argues that after the dependency proceedings were reopened in 2020, CFS
failed to discharge its expanded duty of initial inquiry by failing to ask extended family
members whether Jordan is or may be an Indian child, as required by subdivision (b) of
section 224.2. That provision was added to the Welfare and Institutions Code by
Assembly Bill 3176, effective January 1, 2019. Among other changes, the legislation
established “‘a higher standard for determining if a child may be an Indian child’” (T.G.,
supra, 58 Cal.App.5th at p. 296) by setting forth specific inquiries into possible Indian
status that must be undertaken by child welfare agencies, probation officers, and juvenile
courts for any “child for whom a petition under Section 300, 601, or 602 may be or has
been filed.” (§ 224.2, subd. (a).)
Although the expanded duty of initial inquiry set forth in section 224.2 was not in
effect in 2016 when Jordan’s dependency petition was filed or when the juvenile court
made its finding that ICWA does not apply, it was in effect for all of the proceedings
after the July 2020 filing of the petition to terminate the dependency guardianship.
Mother contends that the current law, in effect at the time of the orders appealed from,
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governs this appeal. CFS does not address the issue, citing cases decided both before and
after the enactment of Assembly Bill 3176 without acknowledging there was any change
in the law. We agree with Mother that the current state law implementing ICWA applies
to this appeal. (See In re A.M. (2020) 47 Cal.App.5th 303, 321; T.G., supra, 58
Cal.App.5th at p. 289, fn. 13; Cal. Rules of Court, rule 5.481(a)(1), amended eff. Jan. 1,
2020.)
Mother points out that CFS had the names and identifying information for
maternal grandmother and three maternal aunts with whom she was living when Jordan
was removed from the home, but the record does not indicate CFS ever made any inquiry
of those extended family members.3 CFS does not deny that those relatives were never
asked about Jordan’s possible Indian ancestry. Rather, CFS claims that the juvenile
court’s finding that ICWA does not apply is supported by substantial evidence because of
the “unequivocal denials of Indian ancestry” by both Mother and J.J., bolstered by the
Wisconsin court’s finding that ICWA did not apply to Jordan’s brother. The argument is
contrary to section 224.2, subdivision (b), which imposes on CFS a duty “to inquire of a
child’s extended family members—regardless of whether the parents deny Indian
ancestry.” (Antonio R., supra, 76 Cal.App.5th at p. 431.) Furthermore, the Wisconsin
court’s 2016 ICWA finding is not useful in determining CFS’s compliance with the duty
3Mother argues for the first time in her reply brief that “CFS failed to make any
inquiries of mother when Jordan became a dependent again in 2020” and that it “had a
duty to inquire and ask mother about Indian ancestry.” On remand, CFS should ask
Mother about Indian ancestry if it has not already done so.
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of initial inquiry under current California law, particularly where the record does not
disclose the factual or legal basis for the Wisconsin court’s finding. (See T.G., supra, 58
Cal.App.5th at pp. 288-290 [duty of initial inquiry under California law exceeds the
minimum procedural protections provided by federal ICWA statute and regulations];
Benjamin M., supra, 70 Cal.App.5th at p. 742 [only California law governs an agency’s
duty of initial inquiry].)
In arguing that there was no initial inquiry error, CFS cites Benjamin M. and other
cases that CFS misconstrues as applying differing tests for “whether the duty of inquiry
had been satisfied.” As we explained in Benjamin M., however, the differing tests
concern the determination of prejudice, not error. (Benjamin M., supra, 70 Cal.App.5th
at p. 742.)
CFS argues that any error was harmless under the test articulated in Benjamin M.
because information from extended family members was neither “readily obtainable” nor
“likely to bear meaningfully upon whether the child is an Indian child.” (See Benjamin
M., supra, 70 Cal.App.5th at p. 744.)
In arguing the information is not readily obtainable, CFS points out that both
Mother and J.J. had been uncooperative in providing truthful information to CFS, that
both had moved out of state by 2020 when the proceedings resumed, that the record
contains no information that the extended family members continue to reside with
Mother, and that CFS lacks their current contact information. The argument fails
because CFS never made any attempt to reach the four maternal extended family
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members. Mother travelled to the county for several monthly therapeutic visits between
August 2021 and February 2022, and CFS failed to ask Mother for her relatives’ contact
information. We rejected the same argument in In re K.R.: “The agency cannot omit
from its reports any discussion of its efforts to locate and interview family members who
might have pertinent information and then claim that the sufficiency of its efforts cannot
be challenged on appeal because the record is silent.” (In re K.R. (2018) 20 Cal.App.5th
701, 709; accord In re N.G. (2018) 27 Cal.App.5th 474, 484; In re Y.W. (2021) 70
Cal.App.5th 542, 554.)
CFS’s argument that the information is unlikely to bear meaningfully on the
question of whether Jordan is an Indian child is equally unavailing. CFS claims that “it is
not reasonably probable that further inquiry would yield a different result” because both
Mother and J.J. denied Indian ancestry and resided at the outset of the case with the
extended family members, none of whom came forward with additional or different
information. As we explained in Benjamin M., however, the test is whether the
information is likely to bear meaningfully on the inquiry, not on the result: “[I]t would
frustrate the statutory scheme if the harmlessness inquiry required proof of an actual
outcome (that the parent may actually have Indian heritage), rather than meaningful proof
relevant to the determination, whatever the outcome will be.” (Benjamin M., supra, 70
Cal.App.5th at pp. 743-744; accord Antonio R., supra, 76 Cal.App.5th at p. 426 [“the
information in the possession of extended relatives is likely to be meaningful in
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determining whether the child is an Indian child, regardless of whether the information
ultimately shows the child is or is not an Indian child”].)
Nevertheless, in the particular circumstances presented by this appeal, we need not
further address the question of harmless error. Although Mother contends without
elaboration that the order terminating visitation must be conditionally reversed, she
provides no legal argument as to how Jordan’s possible Indian child status would have
any relevance to the issue of visitation. Indeed, she fails to respond to CFS’s argument
that the visitation order is independent of the juvenile court’s finding that ICWA does not
apply. We agree with CFS that the order terminating visitation is unaffected by CFS’s
failure to discharge its duty of initial inquiry and need not be conditionally reversed. We
accordingly vacate the juvenile court’s finding that ICWA does not apply, remand for
compliance with ICWA and related California law, and otherwise affirm. (See Dominick
D., supra, 82 Cal.App.5th at p. 568 [failure to discharge duty of initial inquiry does not
warrant reversal of findings and orders that are not affected by ICWA error]; In re S.H.
(2022) 82 Cal.App.5th 166, 177 [there is “no need to ‘conditionally’ affirm (or reverse)
the juvenile court’s order, since the order will not necessarily be reversed even if new
information were to be discovered confirming the child’s Indian heritage”].)
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DISPOSITION
The finding that ICWA does not apply is vacated. The juvenile court is directed to
order CFS to comply with its inquiry and (if applicable) notice obligations under ICWA
and related California law. In all other respects, the findings and orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
SLOUGH
Acting P. J.
FIELDS
J.
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