In re A.B. CA4/2 ( 2022 )

Filed 8/11/22 In re A.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.B., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E078402
Plaintiff and Respondent, (Super.Ct.No. J291369)
v. OPINION
G.V.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed in part and reversed in part.
Michelle D. Peña, 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.
G.V. (mother) appeals the removal of her daughter A.B. (Welf. and Inst. Code,
§ 300, subd. (b), unlabeled statutory citations refer to this code.) She argues the judge
erred in two ways: first, by not considering reasonable alternatives to removal, and
second by concluding the San Bernardino County Children and Family Services
(department) conducted a sufficient inquiry into G.V.’s Indian ancestry as required under
the Indian Child Welfare Act (ICWA). We vacate the ICWA finding and remand, but
otherwise affirm.
I
FACTS
The subject of this dependency is mother’s four-year-old daughter, A.B. Mother
has two other adult children who are not the subjects of this dependency. Father struggles
with mental health issues, including bipolar disorder and schizophrenia. He takes
psychiatric medication, though he often struggles to remain on these medications. Mother
had a criminal history, with an active warrant for shoplifting in Arizona. Father also had a
criminal history, a misdemeanor trespassing conviction in 2008, and an aggravated
trespassing conviction from August 2020. Father received three years’ probation for the
latter and was still on probation when these dependency proceedings began.
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A. Events Leading to Dependency Proceedings
Between 2019 and November 2021, police responded to domestic violence calls at
mother and father’s residence at least 20 times. Father’s probation officer told the
department that at some point police were responding to the parents’ home on a weekly
basis. The majority of these happened between May 29, 2021, and November 10, 2021,
during which time the police responded to mother and father’s residence 12 times.
On May 29, 2021, someone called the police to report that mother and father were
in a dispute that had lasted for “a few hours.” But when police arrived at their residence,
nobody answered.
Two further incidents occurred in June. On June 4, 2021, mother called the police
and told them father was under the influence, hadn’t taken his mental health medication,
and was trying to take A.B. A little over a week later, on June 13, police again responded
to reports of domestic violence at the home. In the home they found a glass pipe used to
smoke methamphetamine. Mother told the police she was just in a physical fight with
father where he shoved her on the couch. Mother told police she feared for her safety and
asked neighbors to call 911 but insisted she didn’t want father arrested. Police arrested
father for domestic battery, but the next day mother called to say she didn’t want to press
charges.
On July 9, 2021, an anonymous caller reported a verbal dispute between mother
and father to the police. Again no one answered the door when the police arrived.
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Two incidents occurred in September 2021. On September 16 mother called the
police saying father “was not in his right mind,” was yelling about mother going to hell,
he physically dragged her into their apartment and locked her inside, and he threatened to
kill himself. When police arrived, father agreed to be taken to the hospital. On
September 26, 2021, an anonymous caller called police again saying they heard mother
and father yelling and pushing each other, yet when police arrived mother denied father
hit her.
Five incidents occurred in October 2021, all within just over a week of each other.
On October 21 mother called the police saying she and father were getting divorced and
father refused to leave. She said she didn’t want father around A.B. “when he is acting in
this manner.” Two days later, someone called the police to report mother and father were
arguing while A.B. was in the home. Someone called again the next day, October 24,
reporting the parents were arguing, A.B. was home, and someone was throwing items. On
October 28, someone reported that father was “becoming violent.” The parents told the
police they agreed to sleep in separate rooms for the night. Two days after that, on
October 30, mother went to a neighbor’s home and told them father took her phone and
pushed A.B. The neighbor called the police. Father denied pushing A.B. He told them
A.B. was jumping on him, and he got angry and put her on the couch, prompting an
argument between him and mother.
On November 3, 2021, father’s probation officer spoke to the couple about their
fighting. He recommended father go to the “Department of Behavioral Health” for his
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mental health issues and warned him he would be arrested if the police responded to
another report of domestic violence.
Finally, on November 10, someone called the police reporting mother and father
were in a verbal and physical fight. The parents yelled profanities at each other, father
threw a lotion bottle at mother, and at some point mother fell to the ground and was
bruised on her arm and chest. Father told the police that mother broke a door and put a
hole in the wall by throwing a Minnie Mouse chair at him. The police arrested father for
inflicting corporal injury on a spouse. The department also received a referral regarding
A.B.
The department spoke to the parents’ apartment manager on November 17, 2021.
The manager said she had numerous complaints from other tenants about the parents
fighting, and that A.B. was usually present for these fights. The manager said she called
the police a number of times and knew of at least one neighbor who took A.B. in to
protect her on a number of occasions. The manager also said earlier that day mother was
in the office calling to see when father would be released and trying to arrange to pick
him up. The manager said she was sure father would be back in the home as soon as he
was released.
The next day, November 18, 2021, the department spoke to mother, first over the
phone and then in person. Over the phone, mother said the neighbors are nosy and call
the police because her family is loud. She said she and father argue a lot, but the
arguments are only ever verbal. She denied the November 10 incident ever became
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physical, and explained her bruises were because she tripped on a piece of wood. Mother
also said father’s domestic violence charge was dropped and he was being held on a
probation violation.
The department then spoke to father’s probation officer, who confirmed they were
pursuing a probation violation against him based on the November 10 incident. He said
the parents’ fighting was becoming more violent, and since father’s arrest, mother was
“ ‘blowing his phone up trying to find out when [father] is being released.’ ”
Afterwards, the department met with mother in person. Mother said she and father
separated for eight months because of his mental health issues and drug use, but recently
reunified because mother thought he wasn’t using drugs anymore. She reiterated that her
neighbors are overly nosy and only call because she and father are too loud. However,
she admitted to throwing a Minnie Mouse chair at father and putting three gouges in the
wall. She again denied the fight on November 10 ever became physical, though this time
she said her bruises were because she tripped on carpet rather than a piece of wood. She
denied any substance abuse and said sores she had on her body were from a liver
disorder.
Finally, the department spoke to A.B. A.B. told the department father was in jail
“ ‘because he powed my mommy,’ ” and added that “ ‘mommy pows him too.’ ” She also
demonstrated what she meant, swinging with her fists in a punching motion. She said
father pushed her and mother both, causing them both to fall.
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Based on these interviews and a review of police service logs, the department
sought and obtained a detention warrant on November 19, 2021.
B. Petition and Detention
The department filed a section 300 petition on November 23, 2021, under
subdivisions (b) (threat of physical harm) and (g) (no provision for support). The petition
alleged mother and father abused substances, engaged in domestic violence in front of
A.B., and that father suffers from unresolved mental health issues. (§ 300, subd. (b).) It
also alleged father left A.B. without provision for support because he was arrested.
(§ 300, subd. (g).)
On November 19, 2021, the department interviewed A.B. again. A.B. said father
was in jail because “he ‘pushed mommy and she fell down,’ ” and that “ ‘he pushed me
too.’ ”
The department asked mother whether A.B. had any Indian ancestry, and mother
said no. Mother did identify other family members and the department said it would
continue its inquiry.
Before the detention hearing Mother and father filed ICWA-020 forms (Judicial
Council Forms, form ICWA-020 (ICWA-020)). Both said they had no Indian ancestry as
far as they knew. The parents also each filed a “PARENT: Family Find and ICWA
Inquiry” form. Mother checked a box saying she didn’t know whether she had Indian
ancestry. In answering whether he had any Indian ancestry, father checked both the box
saying “no” and the box saying “unknown,” with some illegible writing above the “no”
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box. The maternal grandmother, maternal aunt, and a sister also filled out forms for the
department which included questions about A.B.’s potential Indian ancestry. Maternal
grandmother and maternal aunt said they didn’t know whether they had Indian ancestry.
Sister said she didn’t have any Indian ancestry.
San Bernardino Superior Court Judge Steven A. Mapes held a detention hearing
on November 24, 2021. Both parents were present, though father was in custody. They
denied the allegations in the petition and objected to detention.
The judge asked both parents if they had any Indian ancestry, and they both
responded “[n]ot that I know of.” The judge then asked if there were any blood relatives
in the courtroom, and the maternal grandmother, a sibling, and a maternal aunt identified
themselves. The maternal grandmother said the maternal great-great-grandmother was
Indian, born in Arizona. However, maternal grandmother didn’t know the name of
maternal great-great-grandmother’s tribe. The sister and maternal aunt both said they
didn’t have any Indian ancestry. The judge said that he didn’t have enough information to
conclude whether or not there was a reason to believe A.B. was an Indian child and
directed the department to “address that.”
The judge found the petition made a prima facie case, adopted the department’s
findings and orders, and ordered mother to drug test that day.
C. Jurisdiction and Disposition
The department interviewed mother again on November 30, 2021. Mother
admitted she and father get into loud arguments, but again denied they ever became
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physical. Mother said she could only recall two heated disputes, denied these disputes
turned physical, and said she told A.B. to go to her room during the disputes. Mother said
the neighbors who called the police are racist and made calls about multiple families in
the complex. Mother again insisted the argument with father that led to this dependency
didn’t become physical. She said her bruises were from falling and injuries to her lip
were from a cold sore. She said she called the police because she “was ‘being petty and
bitter.’ ”
The department also asked mother whether she had any Indian ancestry again, and
this time she responded “Maybe.” Specifically, mother said she didn’t think she had any
Indian ancestry but maternal grandmother said she did. However, mother said she thought
maternal grandmother might have been confused.
On December 6, 2021, the department interviewed maternal grandmother about
her Indian ancestry. Maternal grandmother said her family belonged to a tribe in Arizona,
but she didn’t know the name of the tribe. She gave the department the maternal great-
grandmother’s name, date of birth, place of birth (Mexico), and address at the time she
died. She also gave the department her great-great-grandmother’s name and year of birth,
and said she was born in Arizona. Maternal grandmother said maternal grandfather and
great-grandfather were born in Mexico. She said she didn’t believe maternal grandfather
had any Indian ancestry but provided his name and told the department he lived in Puerto
Vallarta.
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Two days later, December 8, 2021, the department attempted to contact the
paternal grandmother to ask about her Indian ancestry but were only able to leave a
message. The same day the department spoke to maternal grandmother again. She said
mother and father lived with her for two years, and during that time their arguments were
loud. She denied ever seeing the arguments turn physical. The department also spoke to
the responding police officer. He said mother told him father pushed her. He stated that
according to A.B., father pushed A.B. as well.
The next day, December 9, 2021, the social worker tried to talk to father again, but
was unable to due to quarantine issues at his detention center.
On December 13, 2021, the department filed its jurisdiction/disposition report, and
recommended dismissing the substance abuse allegation against mother.
According to the San Bernardino Superior Court’s website, on January 4, 2022,
father was sentenced to a determinate term of one year four months. (Public Portal –
Superior Court of California, San Bernardino County [as of
August 10, 2022], case No. FVI20002115.)
The judge held a jurisdiction and disposition hearing on January 19, 2022. The
county dismissed the substance abuse allegation against mother. The county also
summarized the department’s ICWA inquiries and said they “believe the Court can make
a finding today.” Nobody objected to county counsel’s representation, and the judge
found ICWA didn’t apply.
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Mother objected to the remaining allegation against her and requested it be
dismissed. Mother said that because father was in custody, he doesn’t live in the home
with her anymore and there were no further domestic violence concerns. She said she was
already enrolled in services, including domestic violence services.
The judge found the allegations true, ordered reunification services for both
parents, and kept A.B. detained from both parents. Mother’s reunification services
included counseling to address domestic violence and parenting education.
Mother timely appealed the judge’s jurisdiction and disposition orders.
II
ANALYSIS
Mother argues there was insufficient evidence to support the judge’s dispositional
findings. Namely, mother argues there was insufficient evidence “[t]here is or would be a
substantial danger to the physical health, safety, protection, or physical or emotional
well-being of [A.B.] if [A.B.] were returned home, and there are no reasonable means by
which [A.B.]’s physical health can be protected without removing [her] from [mother].”
(§ 361, subd. (c)(1).) Mother also argues the department failed to conduct a sufficient
inquiry into whether ICWA applied to A.B., and the judge erred in concluding otherwise.
A. Removal
“Before the court may order a child physically removed from his or her parent’s
custody, it must find, by clear and convincing evidence, the child would be at substantial
risk of harm if returned home and there are no reasonable means by which the child can
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be protected without removal. . . .The parent need not be dangerous and the minor need
not have been actually harmed before removal is appropriate. The focus of the statute is
on averting harm to the child. [Citation.]” (In re T.V. (2013) 217 Cal.App.4th 126, 135-
136 (T.V.).)
Once such a harm is identified, the judge must still find “there are no reasonable
means by which the child’s physical and emotional health can be protected without
removing the child from the child’s parent[].” (§ 361, subd. (d).) “Removal on any
ground not involving parental rejection, abandonment, or institutionalization requires a
finding that there are no reasonable means of protecting the child without depriving the
parent of custody.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525.) Out-of-home
placement is a “last resort, to be considered only when the child would be in danger if
allowed to reside with the parent.” (Id. at p. 525.)
In addition, “Section 361, subdivision (c), requires the trial court to (1) determine
if reasonable efforts had been made to prevent or eliminate the need for removing the
minor from his or her home and (2) to state on the record the facts that led the court to
order removal.” (In re Basilio T. (1992) 4 Cal.App.4th 155, 171, superseded by statute on
another point, as noted in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1242.) Failure to
do so is error. (In re Basiolio T., at p.171.)
However, “when a juvenile court fails to make the factual findings required under
section 361, subdivision (e), its removal order is subject to the constitutional mandate that
no judgment shall be set aside ‘unless, after an examination of the entire cause, including
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the evidence, the [appellate] court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.’ ” (In re D.P. (2020) 44 Cal.App.5th 1058, 1068.)
“[A] ‘miscarriage of justice’ will be declared only when the appellate court, after
examining the entire case, is of the opinion that ‘ “it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.” ’ ” (Ibid.) Where a judge fails to make express findings, the appellate court
implies such findings where the evidence is clear. (See In re Marquis D. (1995) 38
Cal.App.4th 1813, 1825.)
“We review the court’s dispositional findings for substantial evidence.” (T.V.,
supra, 217 Cal.App.4th at p. 136.) “ ‘In reviewing a challenge to the sufficiency of the
evidence supporting the jurisdictional findings and disposition, we determine if
substantial evidence, contradicted or uncontradicted, supports them. “In making this
determination, we draw all reasonable inferences from the evidence to support the
findings and orders of the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues of fact and credibility are
the province of the trial court.” [Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are sufficient facts to support the
findings of the trial court. [Citations.] ‘ “[T]he [appellate] court must review the whole
record in the light most favorable to the judgment below to determine whether it discloses
substantial evidence . . . such that a reasonable trier of fact could find [that the order is
appropriate].” ’ [Citation.]” ’ ” (In re I.J. (2013) 56 Cal.4th 766, 773.)
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The alleged risk of harm here is that A.B. was exposed to domestic violence
between mother and father and possibly actual abuse from father. The department doesn’t
allege, and there is no evidence to suggest, that mother herself ever harmed or abused
A.B. Nevertheless, exposure to domestic violence “in the same household where children
are living is neglect; it is a failure to protect [the children] from the substantial risk of
encountering the violence and suffering serious physical harm or illness from it. Such
neglect causes the risk.” (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) The
department alleges mother’s past behavior demonstrates she is unwilling or unable to
acknowledge father is abusive towards her, which is in and of itself a substantial risk to
her child’s physical safety. Mother argues there is insufficient evidence to conclude she
remains unwilling to protect A.B. from the risk posed by the domestic violence, and that
the risk of harm no longer exists because father is incarcerated.
Reading the record in the light most favorable to the judge’s disposition, we agree
with the department there is sufficient evidence to conclude maintaining A.B. in mother’s
custody would create a substantial risk of harm. Mother and father have a substantial
history of domestic violence, which includes multiple police interventions spanning most
of A.B.’s life. Nevertheless, mother continued to live with father, told police she didn’t
want father to be prosecuted, took him back after every incident, and generally failed to
take steps to remove herself and A.B. from her toxic relationship with father. Indeed,
despite mother herself calling the police multiple times, a specific intervention by father’s
probation officer, and father’s incarceration, there is still every indication mother intends
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to invite father back into their home once he is released. Even after the incident giving
rise to this dependency and which resulted in father’s incarceration, father’s probation
officer told the department mother was “ ‘blowing his phone up’ ” trying to figure out
how soon she could bring father home. While there is admittedly no evidence that mother
herself represents any risk to A.B., the evidence is overwhelming that mother does not
appreciate the threat posed by the continued domestic violence in the home. “A parent’s
denial of domestic violence increases the risk of it recurring.” (In re V.L. (2020) 54
Cal.App.5th 147, 156 (V.L.).) Thus, the risk of A.B. being exposed to further domestic
violence is high should she remain with mother.1
Because mother fails to acknowledge the risk of harm posed by domestic violence,
there was also sufficient evidence for the judge to conclude that reasonable means didn’t
exist to mitigate this harm. Mother argues the judge could have issued a restraining or
move out order regarding father. However, mother’s behavior suggests she very much
wants to keep father in the home despite the threat of violence. This alone is enough for
the judge to conclude mother might ignore the court’s orders or otherwise undermine
them, placing A.B. at risk of further exposure to domestic violence. In other words, while
1 We understand that domestic violence victims often experience cyclical abuse
patterns which are sometimes hard to recognize and harder to break from. Nevertheless, a
pattern of domestic violence does represent a real risk of harm to A.B. Recognizing this
reality is not intended to indict mother but acknowledge that until mother and father can
break this cycle. A.B. is not safe in their care. “Dependency proceedings are civil in
nature, designed not to prosecute a parent, but to protect the child. . . . [T]he paramount
concern is the child’s welfare.” (In re Mary S. (1986) 186 Cal.App.3d 414, 418-419.)
15
we can’t say whether such orders could have worked, there was sufficient evidence for
the judge to conclude they wouldn’t have, and we are bound by that determination.
Mother also points to the fact that father is currently incarcerated, and therefore
there is no present risk that mother could expose A.B. to domestic violence. But father
was sentenced to 16 months five months ago. Therefore, it is highly likely father will be
released before this dependency is complete, and even more likely he will be released
without the dependency judge’s knowledge and before the judge has an opportunity to
address the changed circumstances with appropriate orders. Thus, there is sufficient
evidence to conclude that removal was appropriate in order to prevent contact between
mother, father, and A.B. outside the judge’s or department’s purview.
Given this, “we conclude a reasonable trier of fact could have found it highly
probable that placement of [A.B.] with [mother] would pose a substantial risk of [her]
being harmed by exposure to future domestic violence, and that there were no reasonable
means to protect [her] without removal from [mother]’s physical custody.” (V.L., supra,
54 Cal.App.5th at pp. 156-157.)
For this reason, we also conclude the judge’s failure to state the factual basis for
the disposition was harmless error. Given the overwhelming evidence mother didn’t
appreciate the risk of harm posed by the ongoing domestic violence in the home, it is not
reasonably probable that stating the factual basis for the removal order would have
changed the outcome or otherwise prompted the judge to consider reasonable alternatives
to removal.
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B. ICWA
Next, we turn to mother’s argument that the jurisdictional findings and disposition
order must be reversed in part because the finding ICWA does not apply to her children is
not supported by substantial evidence. She argues the department failed to conduct a
sufficient inquiry under section 224.2, subdivision (b).
“[W]e review the juvenile court’s ICWA findings under the substantial evidence
test, which requires us to determine if reasonable, credible evidence of solid value
supports the court’s order. [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.” (In re A.M. (2020) 47 Cal.App.5th 303, 314 (A.M.).)
ICWA requires that “ ‘[i]n any involuntary proceeding in a State court, where the
court knows or has reason to know that an Indian child is involved, the party seeking the
foster care placement of, or termination of parental rights to, an Indian child shall notify
the parent or Indian custodian and the Indian child’s tribe . . . of the pending proceedings
and of their right of intervention.’ [Citation.] This notice requirement, which is also
codified in California law [citation], enables a tribe to determine whether the child is an
Indian child and, if so, whether to intervene in or exercise jurisdiction over the
proceeding.” (In re Isaiah W. (2016) 1 Cal.5th 1, 5.) “There are two separate ICWA
requirements which are sometimes conflated: the obligation to give notice to a tribe, and
the obligation to conduct further inquiry to determine whether notice is necessary. Notice
to a tribe is required, under federal and state law, when the court knows or has reason to
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know the child is an Indian child.” (A.M., supra, 47 Cal.App.5th at p. 315.) In order to
determine whether such notice is necessary, California law states, “[t]he court, county
welfare department, and the probation department have an affirmative and continuing
duty to inquire whether a child for whom a petition under Section 300 . . . may be or has
been filed, is or may be an Indian child.” (§ 224.2, subd. (a).) Though federal law
obligates courts to conduct this inquiry, California state law goes further by imposing this
obligation on social services agencies as well. (In re Benjamin M. (2021) 70 Cal.App.5th
735, 741-742 (Benjamin M.).)
“ ‘The child welfare department’s initial duty of inquiry includes “asking the
child, parents, legal guardian, Indian custodian, extended family members, others who
have an interest in the child, and the party reporting child abuse or neglect, whether the
child is, or may be, an Indian child and where the child, the parents, or Indian custodian
is domiciled.” ’ ” (In re J.S. (2021) 62 Cal.App.5th 678, 686 (J.S.); see § 224.2,
subd. (b).) Extended family members include adults who are the child’s stepparents,
grandparents, aunts, uncles, brothers, sisters, nieces, nephews, and first or second
cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
The law requires further inquiry only “ ‘when “the court, social worker, or
probation officer has reason to believe that an Indian child is involved [or, under Cal.
Rules of Court, rule 5.481(a)(4), ‘may be involved’] in a proceeding . . . .” ’ ” (J.S.,
supra, 62 Cal.App.5th at p. 677.) “ ‘When that [“reason to believe”] threshold is reached,
the requisite “further inquiry” “includes: (1) interviewing the parents and extended family
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members; (2) contacting the Bureau of Indian Affairs and State Department of Social
Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that
might have information regarding the child’s membership or eligibility in a tribe.” ’ ”
(Ibid.) Thus there are two types of inquiry relevant entities are required to conduct: an
initial inquiry, which is always required, and a further inquiry, which is required only
when the relevant entity has reason to believe an Indian child is or may be involved in the
proceeding.
Mother argues the department failed in its further inquiry. Namely, mother argues
that there was a “reason to believe” A.B. was an Indian child, yet the department did no
further investigation except asking the maternal grandmother to repeat her original
claims.
However, we need not address mother’s contention regarding whether the
department failed in its further inquiry because we conclude the department failed at the
first step, the initial inquiry, in part because they didn’t ask any paternal relatives about
A.B.’s possible Indian status, didn’t ask A.B.’s other sibling, and generally failed to
demonstrate they’d properly inquired with all of A.B.’s extended relatives.
As the department acknowledges, section 224.2, subdivision (b), requires social
workers to interview extended family members about whether they have Indian ancestry.
Extended family members “include the child’s ‘grandparent, aunt or uncle, brother or
sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or
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stepparent.’ ” (In re D.S. (2020) 46 Cal.App.5th 1041, 1053.) Failing to interview
extended family members is error. (In re Darian R. (2022) 75 Cal.App.5th 502, 509.)
The department admits it tried and failed to contact the paternal grandmother and
makes no mention of any other attempts to contact any other paternal relatives. At
minimum the department should have followed up to obtain some information from any
paternal relative. This is compounded by the fact the department also failed to interview
father himself. In addition, mother has two adult children—A.B.’s half siblings—only
one of whom provided any information regarding possible Indian heritage. Therefore,
from this record it is clear the department didn’t ask every statutorily defined extended
family member as an initial inquiry requires.
However, when an appeal concerns “the agency’s duty of initial inquiry, only state
law is involved. Where a violation is of only state law, we may not reverse unless we find
that the error was prejudicial.” (Benjamin M., supra, 70 Cal.App.5th at p. 742.) This
means “in ICWA cases, a court must reverse where the record demonstrates that the
agency has not only failed in its duty of initial inquiry, but where the record indicates that
there was readily obtainable information that was likely to bear meaningfully upon
whether the child is an Indian child.” (Id. at p. 744.) Thus, though the department failed
in its duty to interview extended relatives, we must still determine whether this error
prejudiced mother.
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We conclude it did. The information the identified extended family members had
was readily obtainable and likely to bear on the children’s Indian status. The department
had paternal grandmother’s phone number and yet called only once to try to talk to her. It
is also likely the department could have obtained A.B.’s other adult sibling’s contact
information easily and worked with law enforcement to interview father directly despite
his incarceration in order to identify any other extended paternal family members.
The department argues the error was not prejudicial because almost every person
questioned, including the parents but excluding the maternal grandmother, denied Indian
ancestry. However, section 224.2, subdivision (b), “requires the [d]epartment to ask, as
part of its initial duty of inquiry, extended family members (including the biological
grandparents) whether the child is or may be an Indian child,” and nothing “relieves the
[d]epartment of its broad duty to seek that information . . . simply because a parent states
on the ICWA-020 form . . . ‘I have no Indian ancestry as far as I know.’ ” (In re Y.W.
(2021) 70 Cal.App.5th 542, 554.) “Such a rule ignores the reality that parents may not
know their possible relationship with or connection to an Indian tribe.” (Id. at p. 554.)
Moreover, the department’s “position ignores the express obligation that section 224.2,
subdivision (b), imposes on the [d]epartment to inquire of a child’s extended family
members—regardless of whether the parents deny Indian ancestry.” (In re Antonio R.
(2022) 76 Cal.App.5th 421, 431 (Antonio R.).)
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Nor can the department claim their error to follow up with any additional family
members wasn’t prejudicial simply because they were unlikely to have information
showing the children had Indian heritage. “Speculation as to whether extended family
members might have information likely to bear meaningfully on whether the child is an
Indian child has no place in the analysis of prejudicial error where there is an inadequate
initial inquiry. Rather, in determining whether the failure to make an adequate initial
inquiry is prejudicial, we ask whether the information in the hands of the extended family
members is likely to be meaningful in determining whether the child is an Indian child,
not whether the information is likely to show the child is in fact an Indian child.”
(Antonio R., supra, 76 Cal.App.5th at p. 435.) For these reasons, “[w]here the
[d]epartment fails to discharge its initial duty of inquiry under ICWA and related
California law, and the juvenile court finds ICWA does not apply notwithstanding the
lack of an adequate inquiry, the error is in most circumstances, as here, prejudicial and
reversible.” (Ibid.)
Accordingly, we vacate the court’s findings that ICWA doesn’t apply as not based
on substantial evidence, and remand to permit the department to complete its initial
inquiry. On remand the department should interview all those listed in the federal
statutory definition of extended family members that section 224.1 incorporates (see 25
U.S.C. § 1903(2)), which includes grandparents, aunts, uncles, brothers, sisters, first
cousins, second cousins, and stepparents. The department should also interview any
person with information regarding the maternal grandmother’s claimed Indian heritage
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through the maternal great-great-grandmother, and anyone else with information likely to
meaningfully bear upon whether A.B. is an Indian child.
C. Errors in Minute Order
Finally, both mother and the department agree there are errors in the court’s
minute order from the jurisdiction and disposition hearing. Namely, the minute order says
the judge “finds by clear and convincing evidence reasonably diligent efforts were made
in attempting to locate child’s absent parent(s) and these efforts were unsuccessful.” The
judge likely adopted this finding from a nearly identical recommended finding in the
department’s jurisdiction/disposition report. The parties agree this finding is simply not
true because the parents were not absent and had been located. Both parents were present
at the jurisdiction and disposition hearing, the department was in regular contact with
mother, and the department knew where father was incarcerated.
Accordingly, we reverse the judge’s factual finding that the parents were absent
and efforts to contact them were unsuccessful and direct the judge to issue an amended
minute order striking the erroneous finding.
III
CONCLUSION
We vacate the judge’s finding that ICWA does not apply and remand. On remand
we direct the judge to order the department to comply with the inquiry provisions of
ICWA and of sections 224.2 and 224.3 (and, if applicable, the notice provisions as well)
in accordance with this opinion. If, after completing the initial inquiry, the department or
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the judge has reason to believe the children are Indian children, then the department and
the judge shall proceed according to the terms of sections 224.2 and 224.3. Finally, we
reverse the judge’s finding that “reasonably diligent efforts were made in attempting to
locate child’s absent parent(s) and these efforts were unsuccessful.” We direct the judge
to amend the minute order from the jurisdiction and disposition hearing by striking that
finding. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
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