In re R.M. CA4/1 ( 2022 )

Filed 8/23/22 In re R.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 R.M., et al., Persons Coming
Under the Juvenile Court Law.
D080259
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. J520333A/B)
Petitioner and Respondent,
v.
R.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Affirmed in part; reversed in part and
remanded.
Donna B. Kaiser, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia Silva, Acting County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and J. Jeffrey Bitticks, Deputy County Counsel, for Plaintiff
and Respondent.
I.
INTRODUCTION
R.W. (Mother) appeals a juvenile court’s order arising from a Welfare
and Institutions Code section 361.3 1 placement hearing in which the court
denied placement of Mother’s minor children, R.M. and Z.M., with maternal
grandmother. The sole issue on appeal is whether the San Diego County
Health and Human Services Agency (Agency) failed to conduct adequate
initial and further inquiries into the children’s potential Native American
ancestry, as required by the Indian Child Welfare Act (ICWA; 25 U.S.C.
§ 1901 et seq.).
The Agency concedes that its initial inquiry under ICWA was deficient,
and does not contest or otherwise respond to Mother’s challenge to its further
inquiry. We agree with Mother and conclude that the ICWA initial and
further inquiries were deficient. Therefore, we reverse the court’s ICWA
finding, remand for the limited purpose of ICWA compliance, and otherwise
affirm the placement order. Because the parties filed a joint stipulation
seeking the issuance of an immediate remittitur, the remittitur shall issue
immediately.
II.
FACTUAL AND PROCEDURAL BACKGROUND2
In March 2020, the Agency petitioned the juvenile court under section
300, subdivision (b)(1), on behalf of five-year-old R.M. and three-year-old Z.M.
1 Further statutory references are to the Welfare and Institutions Code
unless noted.
2 Because Mother’s only contention on appeal concerns ICWA, we limit
our factual background accordingly. The children’s father, Ro.M. (Father), is
not a party to this appeal, and we discuss him as needed.
2
In both petitions, the Agency alleged that Mother negligently and willfully
failed and refused to provide the children with adequate food. In the petition
regarding R.M., the Agency alleged that R.M. was admitted to the hospital
below the first percentile for weight, and that his severe malnutrition and
vitamin deficiencies led to rickets and inability to walk normally. In the
petition regarding Z.M., the Agency alleged that due to malnutrition, Z.M.
was admitted to the hospital severely underweight, in critical condition
because of respiratory failure, unable to walk or stand on his own, and with
numerous broken ribs, brain atrophy, bone demineralization, muscle wasting,
and a profound developmental delay, among other conditions.
According to the petitions, the social worker asked Mother about any
Native American ancestry, and Mother responded that her father (maternal
grandfather) might have Cherokee heritage but she was unsure. Likewise,
the Agency’s detention report indicated Mother’s belief that maternal
grandfather might have Cherokee ancestry. The report also indicated,
however, that both parents had denied Native American ancestry.
At the April 1, 2020 detention hearing, Mother again indicated that she
might have Cherokee ancestry, and Father indicated for the first time that he
also had Cherokee ancestry. The court deferred making a finding under
ICWA.
The next month, Agency staff (including the children’s social worker)
facilitated a Child and Family Team meeting. Many of the children’s family
members attended, including Mother, maternal grandmother, paternal
grandmother and grandfather, maternal aunt V., maternal great-aunt G.,
paternal great-aunt S., and maternal great-uncles L. and D. The record on
appeal does not indicate whether maternal grandmother, maternal aunt V.,
maternal great-aunt G., paternal great-aunt S., and maternal great-uncles L.
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and D. were ever asked about the children’s Native American ancestry—at
this meeting or at any other time during the dependency proceedings.
In June 2020, both maternal grandfather and another maternal aunt
(R.) sent letters to the juvenile court, asking it to reunite Mother with the
children. The record does not reflect whether maternal grandfather or
maternal aunt R. were ever asked about the children’s Native American
ancestry.
The juvenile court held the contested adjudication and jurisdiction
hearing on October 2, 2020. According to the corresponding minute order,
the court received stipulated testimony from the social worker that Mother
denied Native American ancestry, that Father had not made himself
available to the Agency for an inquiry regarding his claim of Cherokee
ancestry, and that paternal grandparents denied Native American ancestry.
The court then found without prejudice that a reasonable inquiry was made
and that ICWA did not apply.
At the March 5, 2021 contested disposition hearing, the court again
found without prejudice that ICWA did not apply. The record on appeal does
not reflect any other findings or testimony related to ICWA at this hearing or
subsequent hearings.
Some relatives appeared at dependency hearings before the court’s
March 5, 2021 ICWA ruling. For example, maternal aunt V. and great aunt
G. appeared at a February 2, 2021 hearing and at the March 5, 2021
disposition hearing. Other maternal relatives appeared at later dependency
hearings, as well. Maternal grandmother appeared at hearings in
September, October, November, and December 2021. Again, the record does
not reflect that any of these relatives were ever asked about the children’s
Native American ancestry.
4
At a special hearing on April 1, 2022, the juvenile court denied
Mother’s request to place the children with maternal grandmother. Mother
timely appealed from that order.3
III.
DISCUSSION
Mother argues that the juvenile court erred by finding ICWA
inapplicable before the Agency had completed its initial and further inquiries.
She raises no other appellate issue concerning the placement order she is
appealing. The Agency concedes that its ICWA inquiry was deficient and
needs to be completed. Accordingly, we reverse the court’s ICWA finding,
remand for the limited purpose of ICWA compliance, and otherwise affirm
the placement order.
A. ICWA Inquiry Duties, Generally
Congress enacted ICWA to address concerns regarding the separation
of Indian children from their tribes through adoption or foster care placement
with non-Indian families. (Isaiah W., supra, 1 Cal.5th at p. 7.) Under
California law adopted pursuant to ICWA, the juvenile court and Agency
3 Mother did not appeal from the juvenile court’s prior jurisdictional and
dispositional orders in which the court made its ICWA rulings. Ordinarily,
“California follows a ‘one shot’ rule under which, if an order is appealable,
appeal must be taken or the right to appellate review is forfeited.” (In re
Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8.) Because the duty of
inquiry under ICWA is a continuing one, however, the one shot rule does not
apply here. (See § 224.2, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 6
(Isaiah W.) [“Because ICWA imposes on the juvenile court a continuing duty
to inquire whether the child is an Indian child, we hold that the parent may
challenge a finding of ICWA’s inapplicability in an appeal from the
subsequent [termination of parental rights] order, even if she did not raise
such a challenge in an appeal from the initial [jurisdictional and
dispositional] order.”].)
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have an “affirmative and continuing duty to inquire” whether a child “is or
may be an Indian child.” (§ 224.2, subd. (a); see Isaiah W., at p. 9.)
“[S]ection 224.2 creates three distinct duties regarding ICWA in
dependency proceedings. 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.” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052 (D.S.).)
A juvenile court finding that ICWA is inapplicable generally implies
that the Agency has fulfilled its inquiry duty. (See In re Austin J. (2020)
47 Cal.App.5th 870, 885 (Austin J.) [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”].) We review ICWA findings for substantial evidence, but “where
the facts are undisputed, we independently determine whether ICWA’s
requirements have been satisfied.” (D.S., supra, 46 Cal.App.5th at p. 1051.)
B. Initial Inquiry
The first stage of initial inquiry “ ‘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 p. 1049.) ICWA defines “ ‘extended family
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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].)
Here, Mother contends that the Agency failed to ask maternal great-
aunt G., maternal aunts R. and V., maternal grandmother, and maternal
great-uncles D. and L. if they had Native American ancestry. Mother also
alleges that the court failed to ask several of these relatives about Native
American ancestry, despite their presence at multiple court hearings.
We agree that the initial inquiry is incomplete as to maternal aunts R.
and V. and maternal grandmother. Maternal aunt V. and maternal
grandmother appeared at multiple hearings and at a family team meeting,
which indicates their availability to the court and the Agency. As to
maternal aunt R., her June 2020 letter to the court suggests that the Agency
could have requested her contact information and contacted her. Yet, there is
no indication that any of these maternal relatives were ever asked about
Native American ancestry.
We also note that there is no indication maternal grandfather was ever
asked about Native American ancestry, despite Mother identifying him as the
source of her potential Cherokee ancestry. Moreover, the record indicates
that maternal grandfather was available—he wrote a letter to the court
requesting that Mother be reunited with the children, and his wife (maternal
grandmother) requested the children’s placement in their home.
Because grandparents and aunts are “ ‘extended family members’ ”
within the meaning of ICWA, the Agency was required to ask maternal aunts
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and maternal grandparents about Native American ancestry, and the
juvenile court had to ensure this inquiry took place before it could make a
final determination that ICWA did not apply. (25 U.S.C. § 1903(2); § 224.1,
subd. (c); D.S., supra, 46 Cal.App.5th at p. 1049; see In re Josiah T. (2021)
71 Cal.App.5th 388, 403-404 (Josiah T.) [agency’s “initial inquiry was
inadequate,” where “[d]espite having four paternal family
members . . . potentially available to consult about American Indian
ancestry,” agency did not ask paternal grandmother until 18 months after the
petition or other paternal relatives until later].) We do not agree, however,
that the Agency was required to make an ICWA inquiry of maternal great-
aunt G. and maternal great-uncles L. and D. Great-aunts and great-uncles
are not “ ‘extended family members’ ” under ICWA. (See 25 U.S.C. § 1903(2).)
We therefore conclude that the Agency and court failed to satisfy their
initial inquiry obligations under section 224.2, subdivisions (b) and (c).
C. Further Inquiry
Mother also argues that the Agency’s duty of further inquiry was
triggered but not satisfied. We agree.
As amended in 2020, section 224.2 specifies that “[t]here is reason to
believe a child involved in a proceeding is an Indian child whenever the court,
social worker, or probation officer has information suggesting that either the
parent of the child or the child is a member or may be eligible for membership
in an Indian tribe.” (Id. at subd. (e)(1), italics added.) Courts have broadly
construed the “reason to believe” standard and concluded that such a broad
application is essential to the remedial purpose of the affirmative and
ongoing duty to inquire under California law. (In re S.R. (2021) 64
Cal.App.5th 303, 317 (S.R.) [new subdivision (e) “forecloses [a] narrow
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interpretation of what constitutes reason to believe”]; In re T.G. (2020)
58 Cal.App.5th 275, 295 (T.G.).)
Mother’s repeated statement that she might have Cherokee ancestry
through her father provided a reason to believe that the children might have
Native American ancestry. Broadly construing the statute as amended, this
constituted “[i]nformation suggesting” that the children “may be eligible for
membership in an Indian tribe.” (§ 224.2, subd. (e)(1); see, e.g., In re Rylei S.
(2022) 81 Cal.App.5th 309, 314, 319 (Rylei S.) [mother’s statement on ICWA-
020 form that she “ ‘may have’ ” Cherokee heritage on maternal grandfather’s
side triggered duty of further inquiry]; T.G., supra, 58 Cal.App.5th at
pp. 294–297 [broadly interpreting “reason to believe” to conclude that
mother’s claim of Native American ancestry on her maternal side triggered
duty of further inquiry]; In re D.F. (2020) 55 Cal.App.5th 558, 563, 569-570
[Agency satisfied duty of further inquiry where mother stated she “ ‘may have
Indian ancestry’ ” from unknown tribe in New Mexico and maternal
grandfather reported his “family ‘believed they were of [N]ative American
descent,’ ” “ ‘but that it was never proven’ ”]; see also In re I.F. (2022)
77 Cal.App.5th 152, 163 [noting that synonyms for the word “ ‘ “suggest” ’ ” as
used in § 224.2, subd. (a)(1) “ ‘include “imply,” “hint,” “intimate,” and
“insinuate” ’ ”]; but see Austin J., supra, 47 Cal.App.5th at p. 888 [concluding
mother’s statement that she “ ‘may have Indian ancestry’ ” did not call for
further inquiry because mere possibility of Native American ancestry was not
a reason to believe].4)
4 Several courts of appeal have explicitly rejected Austin J.’s narrow
interpretation of the kind of information sufficient to trigger the duty of
further inquiry. (In re M.E. (2022) 79 Cal.App.5th 73, 83; In re Y.W. (2021)
70 Cal.App.5th 542, 554 (Y.W.); S.R., supra, 64 Cal.App.5th at pp. 316-317;
T.G., supra, 58 Cal.App.5th at pp. 280-281.)
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Mother’s later denial of Cherokee ancestry does not negate the duty of
further inquiry, particularly where the record does not indicate any basis for
her changed response. (See, e.g., Josiah T., supra, 71 Cal.App.5th at pp. 404–
405 [further inquiry required when paternal grandmother disclosed and later
denied Cherokee ancestry: “a mere change in reporting, without more, is not
an automatic ICWA free pass; when there is a conflict in the evidence and no
supporting information, [the Agency] may not rely on the denial alone
without making some effort to clarify the relative’s claim”]; see also In re
Breanna S. (2017) 8 Cal.App.5th 636, 650 [“ ‘parents may be unsure or
unknowledgeable of their own status as a member of a tribe’ ”]; Y.W., supra,
70 Cal.App.5th at p. 554 [“That [mother] disclaimed any Indian ancestry at
the outset of the dependency proceedings did not end the Department’s duty
of inquiry, especially where relevant contact and identifying information was
readily available.”].) Thus, the Agency had a duty of further inquiry under
ICWA.
The duty of further inquiry includes, “but is not limited to,”
interviewing extended family members to gather the biographical
information required by section 224.3, subdivision (a)(5), to be included in
ICWA notices; contacting the Bureau of Indian Affairs (BIA); and contacting
“the tribe or tribes and any other person that may reasonably be expected to
have information regarding the child’s membership, citizenship status, or
eligibility.” (§ 224.2, subd. (e)(2)(A)-(C).) Yet, as discussed ante, there is no
indication that any maternal relatives, much less maternal grandfather, were
interviewed about Native American ancestry. Nor is there any indication
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that the Agency ever contacted the BIA or tribe. Thus, the Agency failed to
satisfy its further inquiry obligations under ICWA.5
D. Proper Disposition
The parties disagree over the proper remedy. Mother argues that the
ICWA inquiry errors were prejudicial and require conditional reversal.
Meanwhile, the Agency implicitly concedes prejudice and contends that a
limited remand and conditional affirmance are required. We conclude that a
limited remand is necessary.
We recognize that there is a split of authority in the California courts of
appeal as to the proper standard for prejudicial error under ICWA. (See, e.g.,
In re Dezi C. (2022) 79 Cal.App.5th 769, 777–779 [describing three rules for
“assessing whether a defective initial inquiry is harmless” (“ ‘automatic
5 As Mother concedes, the Agency satisfied its inquiry obligations as to
Father’s claim of Cherokee ancestry. In contrast to Mother—who identified a
specific family member as the potential source of her Cherokee ancestry and
for whom there were numerous available maternal relatives who could have
provided further information on her ancestry claim—Father did not identify a
single relative from whom he inherited Cherokee ancestry or a single relative
who might have more information, and he refused to attend a follow-up
interview. Moreover, the Agency inquired of paternal grandparents, who
reported that there was no Native American ancestry on their side. Thus,
Father’s vague statement, without any further specific information, did not
create a “reason to believe,” and the Agency satisfied its initial inquiry
obligation by interviewing paternal grandparents. (See, e.g., In re A.M.
(2020) 47 Cal.App.5th 303, 323 [holding there is “no need for further inquiry
if no one has offered information that would give the court or [Agency] reason
to believe that a child might be an Indian child” including in “circumstances
where parents ‘fail[] to provide any information requiring followup’ . . . or
refuse to talk to [the Agency]”]; In re Levi U. (2000) 78 Cal.App.4th 191, 199
[ICWA does not obligate the court “to cast about” for investigative leads]; c.f.
T.G., supra, 58 Cal.App.5th at pp. 294–297 [finding reason to believe where
parent’s claim of ancestry included at least some information pointing to
specific relatives who might have Native American ancestry]; Rylei S., supra,
81 Cal.App.5th at pp. 314, 319 [same].)
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reversal,’ ” “ ‘readily obtainable information,’ ” and “ ‘presumptive
affirmance’ ”) and proposing a fourth (“ ‘reason to believe’ ”)].) Here, we need
not and do not take a position on this issue. The Agency’s initial and further
inquiries were clearly inadequate, and it has implicitly conceded prejudice.
The Agency failed to interview any maternal relatives about potential Native
American ancestry. Despite Mother’s claim of potential Cherokee ancestry
through her father, the Agency failed to interview him, contact the BIA, or
contact the tribe. These efforts were a fundamental departure from the
“ ‘affirmative and continuing duty to inquire’ ” under ICWA and a
miscarriage of justice under any standard. (Isaiah W., supra, 1 Cal.5th at
p. 9; Cal. Const., art. VI, § 13 [“No judgment shall be set aside . . . unless,
after an examination of the entire cause, including the evidence, the court
shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.”].)
On this record, therefore, we must reverse the juvenile court’s ICWA
finding and remand for compliance with ICWA. Because Mother does not
contest the placement order on any other grounds, we otherwise affirm the
order. (See In re Damian C. (2009) 178 Cal.App.4th 192, 199-200; In re
Kadence P. (2015) 241 Cal.App.4th 1376, 1389.) We see no reason to disturb
the placement order itself (even conditionally) because the dependency
proceedings are ongoing, the Agency and the juvenile court will have an
opportunity to satisfy their ICWA inquiry duties before any final order
terminating parental rights, and even if information comes to light that the
children are Indian children, it would not necessarily result in a reversal of
the placement order. (See generally In re S.H. (Aug. 12, 2022,
A163623) __ Cal.App.5th __ [2022 Cal.App.Lexis 694] [finding ICWA initial
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inquiry error but declining to order conditional affirmance or conditional
reversal of dispositional order].)
DISPOSITION
The juvenile court’s ICWA finding is reversed, and the placement order
is otherwise affirmed. The matter is remanded to the juvenile court with
directions to vacate its finding that ICWA does not apply and to instruct the
Agency to complete its initial and further inquiries under ICWA. If the
Agency or the juvenile court has reason to know that the children are Indian
children, the juvenile court shall proceed appropriately. The remittitur shall
issue immediately.
BUCHANAN, J.
WE CONCUR:
HALLER, Acting P.J.
O’ROURKE, J.
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