In re M.G. CA1/3 ( 2021 )

Filed 9/28/21 In re M.G. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
In re M.G., a Person Coming Under
the Juvenile Court Law.
NAPA COUNTY HEALTH AND
HUMAN SERVICES, A161940
Plaintiff and Respondent, (Napa County Super Ct.
v. No. 20JD000060)
M.G.,
Defendant and Appellant.
In re M.G., a Person Coming Under
the Juvenile Court Law.
NAPA COUNTY HEALTH AND
HUMAN SERVICES, A162302
Plaintiff and Respondent, (Napa County Super. Ct.
v. No. 20JD000060)
J.B.,
Appellant.
M.G. (Father) is the presumed father of minor M.G., and J.B. is
godmother and first cousin twice removed to the minor. In this consolidated
appeal, Father and J.B. appeal from the juvenile court’s order denying
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placement of the minor with J.B. under the “relative placement” provisions of
section 361.3 of the Welfare and Institutions Code.1 We hold the juvenile
court did not abuse its discretion in concluding that M.G.’s placement with
J.B. would not be in the child’s best interests.
Father also purports to appeal from the order sustaining the
allegations in the juvenile dependency petition and the disposition order
removing M.G. from his parents’ custody. However, we lack jurisdiction to
review these issues, as Father’s notice of appeal clearly and unmistakably
indicated his intent to appeal only from the order denying relative placement.
But even if we were to consider such matters, we would conclude that Father
forfeited his challenge to the disposition order by submitting to the
recommendations of Napa County Health and Human Services, Child
Welfare Services Department (Department),2 and that substantial evidence
supported the jurisdiction findings.
Finally, we conclude the Department did not sufficiently comply with
the inquiry and notice requirements of the federal Indian Child Welfare Act
of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). Accordingly, we conditionally
reverse the judgment and remand the matter to the juvenile court to ensure
the Department’s compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
A. Section 300 Petition
On September 24, 2020, the Department filed a dependency petition
alleging that newborn M.G. was at substantial risk of serious physical harm
1 Further section references are to the Welfare and Institutions Code
unless specified otherwise.
2 In so concluding, we note the January 27, 2021 minute order of the
disposition hearing should be corrected to reflect that Father submitted on
the Department’s recommended case plan.
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due to the inability of Father and A.Y. (Mother) to adequately supervise and
protect him (§ 300, subd. (b)(1)) stemming from Mother’s untreated mental
illness (bipolar disorder), developmental disability, and substance abuse;
Father’s “volatile impulsive behaviors” and past instances of intimate partner
violence; and both parents’ extensive histories of homelessness.
As relevant here, paragraph b-4 of the petition alleges that on July 25,
2020 and October 11, 2019, Father was “arrested for Intimate Partner
Violence after threatening to kill [Mother] and their unborn child. [In] [t]he
second incident [Father] pushed [Mother] to the ground and struck her three
times in the chest. [Mother] was granted an [emergency protective order];
however, she failed to pursue a permanent restraining order and continued
residing with [Father].” Paragraph b-5 alleges that Father had “expressed a
threat to physically harm the child prior to his birth. The father has volatile
impulsive behaviors that places [M.G.] at risk of serious harm or injury.”
The petition further alleges that M.G. was left without any provision
for support (§ 300, subd. (g)) due to Mother’s homelessness and Father’s lack
of stable housing. Specifically, paragraph g-1 alleges that Father “was
evicted from stable housing, the Rainbow House, because he engaged in a
physical altercation with another resident. [Father’s] impulsive and
explosive behaviors place[] the minor . . . at serious risk of harm or injury.
[Mother] . . . is unable to provide adequate care, protection and shelter for the
minor, . . . placing the newborn minor at serious risk of harm and without
safe and adequate housing.”
B. Detention Report and Hearing
The Department filed its detention report recommending that M.G. be
detained in foster care. According to the report, Mother had been in and out
of the home of her great-grandmother, C.H., for approximately 10 years and
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struggled to maintain stable housing. Mother was “cognitively functioning at
the level of a ten year old,” had an IQ in the 50’s or 60’s, and had been under
limited conservatorship for approximately 10 years.
The Department also reported on Father’s criminal history, his parole
status for possession and sale of a controlled substance with gang and
firearm enhancements, and statements from parole officers that Father was
“very dangerous, extremely volatile and impulsive” and “non-compliant
during his parole” with regard to alcohol consumption.
The Department identified two individuals for assessment as relative
or “nonrelative extended family member” (NREFM) placements: J.B., the
minor’s “Maternal cousin and Godmother,” and C.C., the minor’s “Maternal
cousin.” Meanwhile, J.B. filed a relative information form (Judicial Council
Forms, form JV-285) requesting that M.G. be placed with her in the event he
was removed from his parents’ custody.3
At the detention hearing on September 25, 2020, both Mother and
Father appeared, and Father was given alleged father status.4 J.B. also
appeared, identifying herself as Mother’s cousin and M.G.’s godmother and
claiming she had a “Certificate in Midwifery.”
Maternal grandfather, J.H., was present and told the juvenile court
there was Cherokee ancestry on Mother’s side of the family through both
himself and maternal grandmother, A.L. J.H. provided the court with his
name and birthdate, the name and birthdate of his mother, C.B. (M.G.’s
maternal great-grandmother), and the name of his father, R.H. (M.G.’s
maternal great-grandfather). Mother provided the court with the name of
3 J.B. filed additional relative information forms (JV-285) in November
2020 and December 2020, along with supporting documents.
4 He was eventually elevated to presumed father status.
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her mother, A.L., and J.H. provided a partial birthdate for A.L. but said he
was unsure of its accuracy. As to A.L.’s birthdate, the Department informed
the court, “I believe we have that at the Department.”
The Department then informed the juvenile court that it was having
difficulty getting Mother to sign a consent-to-treat form authorizing medical
care for M.G. in foster care. The court asked Mother if she was willing to sign
the form, and Mother responded, “Yeah, I will sign it.” However, J.B. told the
court that M.G.’s parents were “hesitant to give a blanket permission to
treat” and wanted to “be involved in the decisions regarding medical care.”
J.B. raised concerns that M.G. was exposed in utero to Mother’s antiseizure
medication and was born prematurely, and that he had “interrupted
breastfeeding.” The court reassured J.B. that the Department’s social
workers were careful in making sure that proper care was given.
The juvenile court ordered M.G. placed in an approved Napa County
Resource Family Home.
C. Initial ICWA Notice
Three days after the disposition hearing, the Department filed and
served Judicial Council Forms, form ICWA-030, Notice of Child Custody
Proceeding for Indian Child (hereafter ICWA notice) by certified mail to the
Secretary of the United States Department of the Interior, the Sacramento
Area Director of the Bureau of Indian Affairs, and to representatives of the
Cherokee Nation, the Eastern Band of Cherokee Indians, and the United
Keetoowah Band of Cherokee.
The ICWA notices included the following information regarding M.G.
and his family: the child’s name, birthdate, and place of birth; Mother’s legal
and maiden names and birthdate; Father’s name and birthdate; maternal
grandmother A.L.’s name and the partial birthdate given by J.H. at the
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detention hearing; the names and birthdates of maternal grandfather J.H.
and maternal great-grandmother C.B.; and the name of maternal great-
grandfather R.H.5 The spaces for information on M.G.’s other great-
grandparents (i.e., A.L.’s parents) were designated “Unknown.” Under
“Other relative information,” the IWCA notices listed the names of maternal
great aunt, Ad.L., and “second cousin[s]” J.B. and C.C.
In October 2020, the Department filed ICWA compliance documents
showing that each recipient had received the ICWA notice.
D. Jurisdiction Reports and Hearing
The juvenile court initially set a combined jurisdiction and disposition
hearing for October 2020. The court later bifurcated the hearings and
continued the jurisdiction hearing to November 2020. The court granted a
further continuance of the jurisdiction hearing to December 16, 2020.
1. Initial Jurisdiction Report
The Department filed its initial jurisdiction report in October 2020,
recommending that the juvenile court establish jurisdiction over M.G. The
report indicated that ICWA “does or may apply” and that Mother had
reported “Cherokee ancestry through both the maternal grandfather [J.H.]
and the maternal grandmother [A.L.].” Father reported no known Native
American ancestry on his side of the family.
The Department interviewed Mother’s cousin, C.C., who reported that
Mother was born addicted to methamphetamine, and that Mother and Father
were living in the garage of Mother’s great-grandmother, C.H., which was
unsanitary and had “ ‘stuff piled up everywhere.’ ” C.C. told the Department
that although she had spent many summers with Mother as children, she
5 Notably, the spelling of J.H. and R.H.’s shared last name in the IWCA
notices did not match the spelling that J.H. gave at the detention hearing.
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“never knew or interacted with maternal cousin, [J.B.], prior to” the
dependency proceedings. C.C. expressed her desire to have Mother and
great-grandmother C.H. relocate to Idaho where Mother had family.
Maternal great aunt, Ad.L., told the Department she was concerned
about Mother’s ability to care for M.G. in light of Mother’s developmental and
cognitive delays. Ad.L. also expressed concerns that C.H. could be evicted for
allowing Mother and Father to live in her garage. C.H. had once kicked the
parents out of the house when she discovered that they had used her credit
cards without her permission. The jurisdiction report included photographs
showing that the parents’ sleeping area in the garage contained low hanging
electrical cords, an exposed hot water heater, exposed garbage bins, and
items unsafely stacked in piles.
Father was overseen by a parole officer since 2013, and his parole term
had been repeatedly extended. The parole officer confirmed Father’s history
of homelessness and told the Department that Father had no verifiable
source of income.
The jurisdiction report set forth Father’s extensive criminal history,
including incidents of intimate partner violence against Mother. According to
a Napa Police Department report, Mother called the police on October 11,
2019, and reported that Father had “pushed her in the chest with two hands
three separate times causing her to fall on the ground,” and after she got up
and went after him, he “proceeded to hit her in the chest with an open right
hand” before he “ran off.” Nevertheless, Mother told the police “she did not
want [Father] arrested for the assault” and declined an emergency protective
order. The police officer was not able to locate Father.
In July 2020, Mother reported to the police that during an argument,
Father damaged a door inside the residence and told Mother “he was going to
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kill her and kill their unborn baby.” Mother requested and obtained an
emergency protective order and told the police officer she wanted to press
charges against Father for threats. The police officer later made contact with
Father and served him with the emergency protective order. Thereafter,
Mother did not come to the police department to press charges; nor did she
return the police officer’s phone calls. According to C.C., after the incident in
which Father threatened to kill Mother and the unborn baby, Mother called
Ad.L. and asked her to bring her to Idaho; however, before they could make
arrangements, Mother “ ‘disappeared again.’ ”
In August 2020, the Napa Police Department reported Father’s
altercation at the Rainbow House shelter where he and Mother had been
living. According to the report, Father got into an argument with an
individual who was with his girlfriend and their infant child. Father pushed
the individual, caused a screen door to hit him, and later “said something to
the effect of, you won’t be here later to protect your dumbass kid” before
driving away.
C.C. reported an incident two days before M.G.’s birth in which Father
“charged towards [Mother’s] great-grandmother and threatened her.”
Maternal grandfather J.H. had to intervene and called the police.
In an interview with the Department, Father said he had never been
arrested for domestic violence. He claimed that Mother “made a false
allegation and [he] was detained in the county jail for one night . . . .” Father
denied that their arguments turned physical or that he threatened their baby
in utero. He claimed the garage where he and Mother lived was safe and
clean, and he denied ever having been kicked out of C.H.’s home.
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2. October 23, 2020 Addendum Report
The Department presented the juvenile court with additional
information regarding six emergency 911 calls made from the address where
Mother and Father resided with C.H., including the following. In January
2020, Mother reported that Father had assaulted her “ ‘over the last several
days’ in the great-grandmother’s home and so she went to stay in Vallejo.” In
June 2020, Mother called 911 and reported that Father, who had been
drinking in violation of his parole conditions, had a stick and was threatening
to hurt her. Mother, who was “ ‘crying’ ” and “ ‘frantic,’ ” told the dispatcher
“she did not want the father to have contact with her and the unborn child
due to being in fear of him.” In July 2020, a community member called to
report that “the mother is pregnant and her baby’s father” had broken a door
in the great-grandmother’s home, and that Mother was “ ‘afraid and scared’ ”
of Father. In September 2020, a community member reported “screaming
and yelling” and furniture possibly being thrown inside the home.
3. November 25, 2020 Addendum Report
In an addendum report, the Department notified the juvenile court that
it had denied J.B.’s request to be an emergency placement for M.G.
In explaining its decision, the Department noted that J.B. had
persisted in her claims that M.G. was at risk of developmental and cognitive
delays and physical and emotional deficits despite the evaluations of his
medical care providers concluding he was healthy. J.B. also raised concerns
in her November 2020 relative information form (JV-285) that M.G. was
diagnosed with a cephalohematoma and, in a letter to the Department and
the parties’ counsel, made a “highly alarming” suggestion that the foster care
provider was responsible for the cephalohematoma—even though it was
explained to her that this was a common condition caused by pushing during
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labor and delivery that did not require medical follow-up. In the
Department’s view, J.B.’s “perseverance and insistence on the child having
special medical needs makes it seem that she is either unwilling or unable to
trust the department and [M.G.’s] medical care providers, and that ongoing
positive interactions with these professionals would be challenging for her,
due to her distrust.” Furthermore, the Department questioned why, despite
her stated concerns for the health of M.G., J.B. discouraged Mother from
signing the consent-to-treat form at the detention hearing.
The Department also suggested that J.B. had violated a confidentiality
agreement she signed at a child and family team meeting by sending a letter
to several individuals, including an attorney who had not yet been appointed
as Father’s counsel, detailing M.G.’s health issues.
The decision to deny J.B.’s placement request was also based on
concerns about her honesty. The Department noted its discovery that J.B.
was not a certified nurse midwife as she had claimed. The Department
further reported that J.B. acted in a “duplicitous manner” by attempting to
arrange an in-person visit with M.G. through his foster caregiver despite
having been told by the Department that in-person contact was not permitted
due to the COVID-19 pandemic. J.B. had also made “false allegations in an
effort to have [M.G.] moved from the foster home” by claiming that Mother
had witnessed the foster caregiver doing drugs in the past. When asked
about this allegation, Mother denied ever having witnessed the foster
caregiver doing drugs. The Department further accused J.B. of falsely telling
Mother that the Department intended to move M.G. to Idaho with her other
relatives, causing Mother “to become emotionally distraught.”
The Department concluded that J.B. was not capable of supporting a
plan of family reunification because she had caused distress to the parents
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and distrust between them and the Department. According to the
Department, J.B. was “ ‘harassing’ ” Mother and ignoring Mother’s wishes
about breastfeeding M.G., as J.B. planned to breastfeed M.G. by taking
lactation supplements, despite Mother’s discomfort with this.
4. December 14, 2020 Addendum Report
The Department reported that Father had posted a video clip on social
media of himself in the garage of C.H.’s home smoking a substance out of a
clear glass pipe, in apparent violation of his parole restrictions. The video
also showed multiple flammable items on top of an electric heater next to the
bed. The Department further reported that Father had missed four visits in
a row with M.G. claiming scheduling conflicts due to work, even though he
acknowledged he was not working.
5. Additional ICWA Notices
The Department gave additional ICWA notice of the continued
jurisdiction hearing to the Cherokee Nation, the Eastern Band of Cherokee
Indians, and the United Keetoowah Band of Cherokee. It appears the ICWA
notices were unchanged from the prior notices. For maternal grandmother
A.L., the ICWA notice still only provided a partial birthdate, and the spaces
for information on M.G.’s great-grandparents/A.L.’s parents were still
marked as “Unknown.” The Department filed ICWA compliance documents
showing that the second set of ICWA notices had been received by
representatives of the tribes.
On November 4, 2020, the Department filed an ICWA compliance
document attaching a letter from the Indian Child Welfare Advocate for the
United Keetoowah Band of Cherokee Indians. The letter stated, in relevant
part, “Based on the information that has been provided to us, we are unable
to establish Keetoowah heritage,” and accordingly, M.G. was ineligible to
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become a member and was not recognized as a member of the tribe. The
letter went on to note, “This determination is based on the information that
was exactly provided by you. All incorrect or omitted family information
could invalidate this determination.”
After the jurisdiction hearing was continued to December 2020, the
Department gave notice of the continued hearing date to the Cherokee
Nation and the Eastern Band of Cherokee Indians and later filed ICWA
compliance documents showing receipt of the third set of ICWA notices. The
ICWA notices contained mostly the same family information as before, except
that the birthdate for maternal grandmother, A.L., was now designated
“Unknown.” There was still no information on A.L.’s parents, and J.H. and
R.H.’s last names were still spelled differently than as indicated at the
detention hearing.
The Department also filed an ICWA compliance document attaching a
letter from the Eastern Band of Cherokee Indians stating, “Our office has
reviewed the Eastern Band of Cherokee Indians’ tribal registry and, based on
the information received from you, [M.G.] is neither registered nor eligible to
register as a member of this tribe.” A further ICWA compliance document
filed by the Department attached an email correspondence from the eligibility
supervisor of the Cherokee Nation stating, “Neither parent nor child are
registered as Cherokee Nation tribal members. [¶] The child is not an ‘Indian
child’ in relation to the Cherokee Nation as defined in the Federal ICWA. . . .
Any incorrect or omitted information could invalidate this determination. An
official response letter has not been generated yet but will be once the
received notice has been fully researched and processed.”
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6. Jurisdiction Hearing
At the December 16, 2020, contested jurisdiction hearing, the court
admitted the Department’s jurisdiction report and addendum reports without
objection. The court heard testimony from Mother’s family friend, M.T.;
Mother’s great-grandmother, C.H.; social worker Tawnya Stansell; Father;
and Mother. As relevant here, C.H. denied that the arguments between
Mother and Father turned physical. She further testified as to a “slight
disagreement” she had with Father but claimed he never threatened or
charged at her. Both M.T. and C.H. attested to Mother’s ability to care for
young children.
Social worker Stansell testified in relevant part that Father had spent
one night in jail following one of the incidents of intimate partner violence
alleged in paragraph b-4 of the petition. Stansell acknowledged that after
Father threatened Mother with a stick, he was detained for public
drunkenness, not domestic violence. The juvenile court clarified on the
record that the Department was not claiming Father had a domestic violence
conviction—only that Mother had claimed domestic violence by Father.
Father disputed the Department’s allegations against him, claiming he
never got into a physical altercation with Mother or pushed her in the chest,
never threatened to harm their unborn child, and never had an arrest for
domestic violence. He testified he got into “shouting matches” with Mother
and admitted he was served with an emergency protective order in July 2020.
He denied the police report that he was banging on the door with a stick, and
he claimed he and Mother left the Rainbow House voluntarily because it was
not a good environment for a newborn.
Mother likewise denied that Father had threatened to harm her, the
baby, and C.H., and that he had physically harmed her. She admitted she
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called the police and obtained an emergency protective order against Father
in July 2020, but insisted she had made false claims against him because she
was acting on past traumas and “thinking about something that happened in
[her] past.”
Finding both parents’ testimony lacking in credibility, the juvenile
court concluded that the allegations of the petition were sustained by a
preponderance of the evidence, and that M.G. was a child described by
section 300, subdivisions (b) and (g). The court found that Father “has
expressed a threat to physically harm the child” and “is also engaged in
intimate partner violence. It’s unhealthy for a child to be in a home that is
volatile and violent, and I think that the child being placed with father puts
the child at risk of . . . growing up in a home where domestic violence is a
normal part of daily life[.]”
The juvenile court also found that although there was initially reason
to believe ICWA might apply, after inquiry and due diligence from the
Department, “there is currently no reason to know this case involves an
‘Indian Child’, [and] the court will proceed as if ICWA does not apply.” The
court set the matter for a disposition hearing.
E. Disposition Report and Hearing
In its disposition report, the Department recommended that the
juvenile court find M.G. to be a dependent, with a plan for family
reunification. The case plan identified the goal that M.G. return home, with
a projected completion date of July 13, 2021. The case plan required Father
to, among other things, demonstrate that he could provide and maintain a
safe home, stable income, and live in an environment free of drugs, drug
paraphernalia, angry outbursts, domestic violence, and physical violence. He
was also required to develop and demonstrate strategies for managing
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mental health symptoms; to participate in parenting education courses,
individual therapy and drug and alcohol classes; and to submit to a
psychological evaluation and random drug testing.
The Department reported that ICWA “does not apply,” outlining the
responses received from the United Keetoowah Band of Cherokee Indians,
the Eastern Band of Cherokee Indians, and the Cherokee Nation, and the
juvenile court’s ICWA ruling at the jurisdiction hearing.
On January 19, 2021, the juvenile court called the matter for a
disposition hearing. Mother’s counsel told the court that Mother was
“prepared to submit on the recommendation” and “want[ed] to move forward
with the case plan.” Father’s counsel, however, reported that Father “has
sent me some email feedback about some parts that he’s not happy with. I’ve
let him know his choices are to either submit on the report as written or to
set a contest. I don’t know what he wants to do.” The court asked Father,
“do you wish to contest this with a hearing or do you wish to submit?” Father
responded that the case plan was “unclear” because “there’s some things in
that I think should be more explained before, before I agree to something like
this.” The court then set the matter for a contested disposition hearing on
January 27, 2021.
At the start of the January 27 hearing, Father’s counsel informed the
juvenile court that Father had spoken to the social worker and was “now
prepared to submit on the case plan.” On voir dire, Father testified that he
“spoke with the social worker concerning one of the things I was concerned
with. . . . And she made it clear to me what I would be agreeing to, and what
classes I would be participating in. So she’s okay with the case plan that
she’s giving me. And she seems to already be aware of what exactly she
wants me to do. She’s okay with it. I’m fine with it. I’m fine with the case
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plan. I’m ready to move forward.” Father confirmed he had a copy of the
case plan and had no further questions about it. When asked whether he was
“prepare[d] to comply with the case plan, and have the court review this
matter in six months,” Father replied, “Yes, of course.”
The juvenile court ordered M.G. removed from his parents’ custody
based on “the facts of the sustained petition, the social worker’s report and
the evidence presented” and set the six-month review hearing for July 2021.
The Department then raised the issue of J.B.’s placement request and argued
that “pursuant to . . . section 361.3, the Court actually needs to make a
finding on the record that . . . the placement has been denied, and state on
the record the reasons that placement with the relative was denied.
Accordingly, the juvenile court heard testimony from Father, J.B., and
Mother on J.B.’s placement request. Father testified that the statements in
the Department’s report about J.B. were false and that J.B. should be M.G.’s
caregiver until the parents were able to regain custody. Mother likewise
testified that it was her preference M.G. be placed with J.B.
M.G.’s counsel argued that placement with J.B. was not in the minor’s
best interest. Counsel was “very, very concerned about the trust situation”
between J.B. and the Department because “[i]t’s extremely important for a
foster parent to be able to work closely with the Department, and follow all of
the rules and regulations, some of which have to do with not getting overly
involved in case issues, just providing care for the child.” M.G.’s counsel also
raised concern for the minor’s welfare in that J.B. lived in Davis while the
parents lived in Napa.
J.B. was questioned extensively regarding the Department’s concerns.
She denied disparaging M.G.’s foster caregiver and testified she believed the
foster caregiver to be a good person, but was advised by the assistant director
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of social services to put the allegation of the foster caregiver’s drug use in
writing. J.B. admitted she was not a certified nurse midwife but explained
she had a “Certificate of Midwifery” from Mercy in Action College of
Midwifery. She further testified that she was a lactation specialist, and that
Mother had called her many times to ask about breastfeeding. J.B. continued
to believe M.G. was at risk of developmental and cognitive delays and
physical and emotional deficits based on “[t]he risk factors in his medical
chart,” but she acknowledged that M.G. had no known developmental delays.
She denied advising the parents not to sign the consent-to-treat form and
claimed that Father had simply wished to speak to his attorney before
signing it. J.B. expressed her commitment to working with the Department
and providing for visitation between the parents and M.G. in Napa.
After hearing further argument from counsel, the juvenile court denied
placement with J.B., indicating it was in M.G.’s best interest to remain in his
current placement “for the time being.” The court acknowledged it was “not
an easy decision” but found that M.G. was “doing well in the current
placement,” and that placement with J.B. was not suitable because she had
“contributed to a distrustful relationship between herself and the
Department” and had demonstrated “boundary issues with the mother.”
Moreover, the court found, J.B. had “made a lot of medical diagnoses” and
was unwilling to trust the experts or the Department. In the court’s words,
“There’s just been a level of distrust and advocacy that I think has caused
damage, and will continue to create problems in working with the
Department.”
In its written disposition order, the juvenile court ruled, in relevant
part: M.G. was not an Indian child and ICWA did not apply; M.G. was
declared a dependent child and removed from his parents’ custody, with
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family reunification services and a return date goal of July 2021; the parents
were granted supervised visitation; J.B.’s request for relative placement was
denied; and a six-month review hearing was set for July 2021.
Father and J.B. each appealed. The appeals were consolidated for
purposes of briefing, oral argument (if any), and disposition.
DISCUSSION
I. Scope of Father’s Appeal
Dependency appeals are governed by section 395, which makes the
disposition order the appealable judgment. Jurisdiction findings can be
reviewed on appeal from the disposition order. (In re Tracy Z. (1987) 195
Cal.App.3d 107, 112.) “A consequence of section 395 is that an unappealed
disposition or postdisposition order is final and binding and may not be
attacked on an appeal from a later appealable order.” (In re Meranda P.
(1997) 56 Cal.App.4th 1143, 1150.) Furthermore, “ ‘ “[o]ur jurisdiction on
appeal is limited in scope to the notice of appeal and the judgment or order
appealed from.” [Citation.] We have no jurisdiction over an order not
mentioned in the notice of appeal.’ ” (In re J.F. (2019) 39 Cal.App.5th 70, 75
(J.F.).)
Father purports to appeal from the jurisdiction findings and disposition
order, but his notice of appeal (Judicial Council Forms, form JV-800)
identifies only the juvenile court’s order denying relative placement.
Specifically, in the area after the preprinted sentence “I appeal from the
findings and orders of the court (specify date of order or describe order),” the
notice states: “Denial of placement per parent’s request to [J.B.], Mother and
Child’s relative.” On the following page, after the sentence, “The order
appealed from was made under Welfare and Institutions Code (check all that
apply),” the form lists various statutory sections with boxes that can be
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checked, but Father did not check the boxes in section 7(b) for “Section 360
(declaration of dependency),” “Removal of custody from parent or guardian,”
“Other orders,” or “with review of section 300 jurisdictional findings.” The
only box checked was in section 7(f), “Other appealable orders relating to
dependency (specify),” once again specifying “Denial of placement with
relative at disposition per WIC 361.3” and identifying the hearing date as
“1/27/21[.]”
Generally, we must liberally construe a notice of appeal in favor of its
sufficiency. (Cal. Rules of Court, rules 8.100(a)(2), 8.405(a)(3).) However,
“ ‘[t]he policy of liberally construing a notice of appeal in favor of its
sufficiency [citation] does not apply if the notice is so specific it cannot be
read as reaching a judgment or order not mentioned at all.’ [Citations.] ‘[I]t
is well “beyond liberal construction” to view an appeal from one order as an
appeal from a “further and different order.” [Citation.] “Despite the rule
favoring liberal interpretation of notices of appeal, a notice of appeal will not
be considered adequate if it completely omits any reference to the judgment
being appealed.” [Citation.] . . . . Therefore, when a notice of appeal
manifests a ‘ “clear and unmistakable” ’ intent to appeal only from one order,
we cannot liberally construe the notice to apply to a different, omitted order.”
(J.F., supra, 39 Cal.App.5th at p. 76.)
Here, the notice of appeal, prepared by Father’s appointed counsel,
manifests Father’s clear and unmistakable intent to appeal only from the
order denying relative placement. The notice twice describes that ruling—
and only that ruling—and cites only the specific statute regarding relative
placements (§ 361.3), while leaving unchecked the boxes for appealing from
other judgments and orders—including the removal order and the
jurisdiction findings. Because the notice of appeal completely omits any
19
reference to the jurisdiction findings and disposition order, we cannot
liberally construe the notice to encompass the unmentioned rulings.6
We recognize that lack of prejudice to the respondent is a relevant
consideration in applying the policy of liberal construction (In re Joshua S.
(2007) 41 Cal.4th 261, 272), and that the Department identifies no prejudice
or confusion resulting from Father’s notice of appeal. Nonetheless, the policy
of liberal construction is simply inapplicable where, as here, the notice of
appeal manifests a clear and unmistakable intent to appeal only from a
specified order. (J.F., supra, 39 Cal.App.5th p. 76.) Thus, the absence of
prejudice is immaterial.
Father nevertheless contends that under In re Madison W. (2006) 141
Cal.App.4th 1447 (Madison W.), we have discretion to construe his notice of
appeal to encompass the unmentioned rulings. In Madison W., the Court of
Appeal construed a notice of appeal citing only a parental rights termination
order under section 366.26 to encompass an order denying the parent’s
section 388 petition issued three days prior, as the notice of appeal was
timely as to both orders. (Madison W., at p. 1450.) The Madison W. court
stated it “routinely” deemed a notice of appeal challenging the termination of
parental rights to include an “eleventh-hour section 388 petition” that was
filed on or before the termination order but within 60 days of when the notice
of appeal was filed. (Madison W., at p. 1450.) Though not condoning the
practice of drafting notices of appeal in this manner, Madison W. explained it
was being “pragmatic” due to concerns of ineffective assistance of counsel
6 We do, however, have jurisdiction to consider Father’s arguments
regarding ICWA, which can be raised at any time. (In re Isaiah W. (2016) 1
Cal.5th 1, 9; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267–1268.)
20
claims, motions to dismiss, and the consumption of limited judicial resources
reviewing such matters. (Id. at p. 1451.)
As J.F. observed, however, Madison W. failed “to recognize the well-
settled limits on the rule of liberal construction.” (J.F., supra, 39 Cal.App.5th
at p. 78.) Furthermore, the discretionary rule announced in Madison W. was
in response to frequent section 388 petitions filed at the “eleventh-hour” to
avert termination of parental rights. (Madison W., supra, 141 Cal.App.4th at
p. 1450.) Those circumstances are absent here. We are not aware of any case
applying Madison W. to a notice of appeal that clearly and unambiguously
specifies a narrow dependency ruling, such as the denial of relative
placement. Nor does Father demonstrate that the situation presented here
arises so frequently as to justify a pragmatic workaround as in Madison W.
In any event, even if we were to construe Father’s notice of appeal as
encompassing the jurisdiction and disposition rulings, we would conclude
that Father forfeited his challenge to the disposition order and that
substantial evidence supported the jurisdiction findings.
a. Disposition Order
A parent in a dependency proceeding who submits to a county welfare
department’s recommended findings and orders—as distinct from the
department’s report—waives for appellate purposes any right to challenge
the court’s issuance of its recommended findings and orders. (In re Richard
K. (1994) 25 Cal.App.4th 580, 590 (Richard K.).) Submission on the report
simply means “the parent acquiesces as to the state of the evidence yet
preserves the right to challenge it as insufficient to support a particular legal
conclusion.” (Id. at p. 589.) By contrast, submission on the county welfare
department’s recommendations waives the parent’s right to contest the
juvenile court’s disposition if it coincides with the department’s
21
recommendations, as a parent “who consents to an act is not wronged by it.”
(Richard K., supra, 25 Cal.App.4th at p. 590.)
Father insists he did not forfeit his challenge to the disposition order,
noting that the disposition hearing was “contested” and that the minute order
stated Father submitted “on the report.” In context, however, the record
makes reasonably clear that Father submitted to the Department’s
recommendations. At a hearing on January 19, 2021, the juvenile court set
the matter for a “contested” hearing on January 27 based on representations
by Father’s counsel that Father was unhappy with the case plan and counsel
did not “know what [Father] wants to do.” But at the start of the January 27
hearing, Father’s counsel informed the court that Father had talked to the
social worker and was “prepared to submit on the case plan.” (Italics added.)
On voir dire, Father testified the social worker clarified “what [he] would be
agreeing to, and what classes [he] would be participating in,” and therefore,
he was “fine with the case plan.” Father also confirmed he was prepared to
comply with the case plan and have the court review the matter in six
months. Despite contrary language in the minute order, the reporter’s
transcript confirms that Father was submitting on the recommended “case
plan,” as opposed to the “report.” (People v. Stephenson (1974) 10 Cal.3d 652,
656 [reporter’s transcript controls over discrepancies in minute order].)
That Father agreed to submit to the case plan after clarifying what he
was “agreeing to” and what “classes” he had to take can only be understood
as his acquiescence to the steps outlined by the Department for family
reunification—that is, the Department’s recommendations. Furthermore,
Father’s agreement that the juvenile court would review the matter in six
months was consistent with the case plan’s goal of family reunification by
July 2021. In sum, even if we were to exercise appellate jurisdiction over the
22
disposition order, we would conclude Father forfeited his appeal from that
order by submitting to the Department’s recommendations. (Richard K.,
supra, 25 Cal.App.4th at p. 590.)
b. Jurisdiction Findings
Jurisdiction under section 300, subdivision (b), requires proof, by
preponderance of the evidence, that the “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 his or her parent or guardian to
adequately supervise or protect the child . . . .” (§§ 300, subd. (b)(1), 355,
subd. (a).) Although risk to the child must be shown to exist at the time of
the jurisdiction findings (In re J.K. (2009) 174 Cal.App.4th 1426, 1435), the
juvenile court need not wait until a child is seriously injured to assume
jurisdiction if there is evidence that the child is at risk of future harm (In re
N.M. (2011) 197 Cal.App.4th 159, 165).
“Physical violence between a child’s parents may support the exercise of
jurisdiction under [section 300,] subdivision (b) but only if there is evidence
that the violence is ongoing or likely to continue and that it directly harmed
the child physically or placed the child at risk of physical harm.” (In re Daisy
H. (2011) 192 Cal.App.4th 713, 717 (Daisy H.).) While evidence of past
conduct, without more, is insufficient to support a jurisdiction finding under
section 300, it conduct may be probative of current conditions. (In re James
R. (2009) 176 Cal.App.4th 129, 135–136.) To establish a defined risk of harm
at the time of the hearing, there “must be some reason beyond mere
speculation to believe the alleged conduct will recur.” (Id. at p. 136.)
On appeal, we review jurisdiction findings for substantial evidence.
(J.K., supra, 174 Cal.App.4th at p. 1433.) “ ‘[W]e view the record in the light
most favorable to the juvenile court’s determinations, drawing all reasonable
23
inferences from the evidence to support the juvenile court’s findings and
orders. Issues of fact and credibility are the province of the juvenile court
and we neither reweigh the evidence nor exercise our independent
judgment.’ ” (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560.)
Here, substantial evidence supported dependency jurisdiction based on
paragraph b-4 of the petition, which alleged that Father committed intimate
partner violence against Mother on two occasions in October 2019 and July
2020. The allegations of both incidents were supported by Napa Police
Department reports. In the July 2020 incident, Mother reported that Father
had threatened to kill her and their unborn baby and damaged a door,
leading Mother to request and obtain an emergency protective order against
him. Although Father’s acts of violence against Mother in October 2019
occurred prior to M.G.’s conception, the trial court could permissibly conclude
that this instance of violence—coupled with Father’s direct threat to kill the
unborn baby eight months later—was probative of conditions existing at the
time of the dependency to support a finding that Father’s violent tendencies
were ongoing and that M.G. was at risk of future physical harm. That
Mother never filed charges against Father and remained willing to stay with
him supported the juvenile court’s conclusion that Mother was unable “to
make wise choices to protect the safety of her child.” Notwithstanding both
parents’ denials of the Department’s allegations, we defer to the juvenile
court’s finding that their testimony was not credible in this respect.
Moreover, the juvenile court’s credibility findings were corroborated by
the additional evidence of Mother’s 911 calls and other accounts of Father’s
violent behavior in the year leading up to M.G.’s birth. The evidence included
Mother’s “scared” and “frantic” 911 call in June 2020 in which she told the
dispatcher that Father was threatening to hurt her and that she did not
24
“want this man to have contact with her unborn child due to being in fear of
him[.]” The Rainbow House incident, which occurred shortly before M.G.’s
birth, involved not only Father’s violent and angry conduct but his threat
against an infant child. Finally, Father’s angry “charge” toward Mother’s
great-grandmother, which required intervention from J.H. and the police,
occurred just two days before M.G.’s birth.
In sum, the evidence, viewed in a light most favorable to the juvenile
court’s determination, supported a finding beyond mere speculation that
Father’s violent tendencies were likely to continue and placed the child at
substantial risk of future physical harm. (Daisy H., supra, 192 Cal.App.4th
at p. 717.) Because the juvenile court’s exercise of jurisdiction over a child
will be upheld if substantial evidence supports any one of the statutory bases
for jurisdiction enumerated in the petition, the true finding as to paragraph
b-4 was sufficient to sustain dependency jurisdiction in this case. (In re M.R.
(2017) 7 Cal.App.5th 886, 896.)7
II. Relative/NREFM Placement
Father and J.B. contend the juvenile court’s denial of relative
placement was an abuse of discretion because the court failed to consider
several of the statutory factors for relative placement determinations and
gave undue weight to the “best interest” factor (§ 361.3, subd. (a)(1)).
However, the Department contends, and Father and J.B. concede, that J.B. is
7 Father requests our review of the sufficiency of the evidence supporting
paragraphs b-5 and g-1, arguing that the true findings on these paragraphs
could have “substantially adverse collateral consequences” for him. We
decline to exercise our discretion to do so. Father’s claim of future impact is
speculative and conclusory, as he fails to provide any meaningful argument
as to how the true findings could affect a future dependency, family law, or
other proceeding. (In re I.A. (2011) 201 Cal.App.4th 1484, 1494–1495.)
25
not a “relative” within the meaning of section 361.3, subdivision (c)(2),
because she is not within the fifth degree of kinship to M.G.
Father and J.B. alternatively contend the juvenile court abused its
discretion in denying placement because J.B. was an NREFM. We conclude
this argument was forfeited and, in any event, lacks merit.
Where a child has been removed from a parent’s care under section
361, and the child is not placed with a noncustodial parent or relative, the
child may be placed in the approved home of an NREFM. (In re Joshua A.
(2015) 239 Cal.App.4th 208, 213–214 (Joshua A.).) We will not disturb a
juvenile court’s placement decision “ ‘ “unless the trial court has exceeded the
limits of legal discretion by making an arbitrary, capricious, or patently
absurd determination.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Section 362.7 defines an NREFM as “an adult caregiver who has an
established familial relationship with a relative of the child, as defined in
[section 361.3, subdivision (c)(2)], or a familial or mentoring relationship with
the child. The county welfare department shall verify the existence of a
relationship through interviews with the parent and child or with one or
more third parties. The parties may include relatives of the child, teachers,
medical professionals, clergy, neighbors, and family friends.” The statute
further provides that “[w]hen the home of [an NREFM] is being considered
for placement of a child, the home shall be evaluated, and approval of that
home shall be granted or denied, pursuant to the same standards set forth in
the regulations for the licensing of foster family homes that prescribe
standards of safety and sanitation for the physical plant and standards for
basic personal care, supervision, and services provided by the caregiver.”
The issue of whether J.B. was a suitable NREFM placement for M.G.
was never presented to the juvenile court below. Thus, any claim of error
26
based on this contention is forfeited on appeal. (In re Dakota H. (2005) 132
Cal.App.4th 212, 221–222.) In any case, Father and J.B. provide no analysis
or supporting authority for their assumption that J.B. satisfied the statutory
definition of an NREFM as set forth above. (See § 362.7.) Although they
emphasize that J.B. was M.G.’s godmother and Mother’s cousin, they provide
no meaningful analysis for concluding that J.B.’s mere status as M.G.’s
godmother demonstrates “a familial or mentoring relationship with the
child,” or that her mere cousinship with Mother shows “an established
familial relationship with a relative of” M.G. within the meaning of section
362.7. (In re S.C. (2006) 138 Cal.App.4th 396, 408–409 [claim of error lacking
meaningful analysis is forfeited].)
Furthermore, Father and J.B. have pointed to no evidence in the record
indicating that J.B.’s home was found to have met regulatory standards for
the licensing of foster family homes. (§ 362.7.) Although the record contains
various documents related to J.B.’s application to become a certified foster
parent, including certificates of completion of foster care education courses,
she indicated in her December 2020 relative information form (JV-285) that
she was still “in the process of becoming fully approved as a resource parent
in Yolo County.” At the disposition hearing in January 2021, the Department
told the juvenile court that it “was waiting” on the child welfare department
of Yolo County to conduct a home study.
Additionally, we find no abuse of discretion in the juvenile court’s
conclusion that placement with J.B. would not have been in M.G.’s best
interests. (Joshua A., supra, 239 Cal.App.4th at p. 218 [placement under
section 362.7 must be in child’s best interests]; Samantha T., supra, 197
Cal.App.4th at p. 111 [same].) “ ‘ “The concept of a child’s best interest ‘is an
elusive guideline that belies rigid definition. Its purpose is to maximize a
27
child’s opportunity to develop into a stable, well-adjusted adult.’ [Citation.]” ’
[Citation.] We review the juvenile court’s order for abuse of discretion.
‘[R]eversal is warranted only if there is no reasonable basis upon which the
trial court could conclude that its decision advanced the best interests of the
child.’ ” (Joshua A., at p. 218.) “When the exercise of the court’s discretion
depends on how it resolves questions of fact, we must defer to the court’s
‘ “credibility determinations and findings on questions of historical fact if
supported by substantial evidence.” ’ ” (Nissan Motor Acceptance Cases
(2021) 63 Cal.App.5th 793, 817.)
Here, the juvenile court’s discretionary decision to deny placement with
J.B. was based on its factual determinations that M.G. was doing well in his
foster placement and that J.B. had “contributed to a distrustful relationship
between herself and the Department,” demonstrated “boundary issues” with
Mother, and was unwilling to trust in experts and the Department. Father
and J.B. do not dispute that M.G. was doing well in foster care, and the
record reflects that M.G. had no known developmental delays. Meanwhile,
there was substantial evidence in the record of J.B. prioritizing her judgment
over those of child welfare personnel and medical providers, making
unfounded or untrue accusations against the foster caregiver, and being
uncooperative with the Department. Although we do not doubt the sincerity
of J.B.’s intentions or concerns for M.G. and his family, we conclude it was
not unreasonable for the juvenile court to find that her conduct would not
advance the child’s best interests during efforts to reunify the family.
Father’s extensive arguments attempting to explain J.B.’s actions and
blaming the Department for causing the distrust do not persuade us
otherwise. On review for abuse of discretion, where two or more inferences
can reasonably be deduced from the facts, we have no authority to substitute
28
our decision for that of the lower court. (In re Emmanuel R. (2001) 94
Cal.App.4th 452, 465.)
Father contends the juvenile court’s discretionary decisions may be
reversed if improper criteria were applied or incorrect legal assumptions were
made, but he fails to show that such errors occurred here. Instead, Father
argues in conclusory fashion that the Department was “bias[ed]” against J.B.,
that its accusations were “disingenuous” and “self-serving,” and that the
juvenile court “bowed to the Department’s decision” because it did not accept
J.B.’s “perfectly reasonable explanations for the matters the Department
used against her[.]” These arguments merit little discussion, as Father seeks
to improperly relitigate factual determinations that were within the province
of the juvenile court.
Similarly, Father’s oft-repeated claim that the juvenile court failed in
its “critical ‘oversight role’ ” of placement decisions (In re R.T. (2015) 232
Cal.App.4th 1284, 1306) is based on little more than the fact that the court’s
decision ultimately coincided with the Department’s. This circumstance does
not evidence bias or an abuse of discretion. Moreover, the record shows the
court did not rubber stamp the Department’s decision to deny placement with
J.B. Rather, it reached its decision after receiving the Department’s reports,
J.B.’s relative information forms and supporting documents, and testimony
from both parents and J.B. at the disposition hearing. The court then
explained the basis for its decision, which, as discussed, was not outside the
bounds of reason and was based on factual findings supported by substantial
evidence.
For all of these reasons, we conclude the juvenile court did not abuse its
discretion in denying relative or NREFM placement with J.B.
29
III. ICWA Compliance
Father contends the juvenile court’s ICWA finding must be reversed
because the Department did not adequately investigate M.G.’s possible
Indian ancestry. We agree.
“ICWA protects the interests of Indian children and promotes the
stability and security of Indian tribes by establishing minimum standards
for, and permitting tribal participation in, dependency actions.” (In re A.G.
(2012) 204 Cal.App.4th 1390, 1396.) “Indian child” is defined 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); Welf. &
Inst. Code, § 224.1, subds. (a), (b).)
“ICWA established minimum standards for state courts to follow before
removing Indian children from their families and placing them in foster care
or adoptive homes.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).) As
relevant here, “section 224.2 creates three distinct duties regarding ICWA in
dependency proceedings.” (D.S., supra, 46 Cal.App.5th at p. 1052.) After a
child welfare department’s initial contact with the minor and his or her
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 [Department] ‘shall make further inquiry regarding the possible
Indian status of the child, and shall make that inquiry as soon as practicable.’
(Id., subd. (e).) 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.” (D.S., at p. 1052.)
30
Juvenile courts and county welfare departments “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); Cal. Rules of Court, rule 5.481(a).) When there is reason
to believe an Indian child is involved in a proceeding, “the court, social
worker, or probation officer shall make further inquiry regarding the possible
Indian status of the child . . . as soon as practicable. . . [¶] Further inquiry
includes, but is not limited to, . . . [¶] [i]nterviewing the parents, Indian
custodian, and extended family members to gather the information required
in paragraph (5) of subdivision (a) of Section 224.3.” (§ 224.2, subd. (e)(2)(A).)
If the juvenile court finds that the Department has conducted “proper
and adequate further inquiry and due diligence” and that there is no reason
to know whether the child is an Indian child, the court may make a finding
that ICWA does not apply to the proceedings. (§ 224.2, subd. (i)(2).)
However, the Department and the court have a continuing duty under ICWA,
and the court “shall reverse its determination if it subsequently receives
information providing reason to believe that the child is an Indian child and
order the social worker or probation officer to conduct further inquiry[.]”
(§ 224.2, subd. (i)(2); see D.S., supra, 46 Cal.App.5th at p. 1050.)
“[R]eason to know a child involved in a proceeding is an Indian child”
exists when, among other things, “[a] person having an interest in the child,
including . . . a member of the child’s extended family[,] informs the court
that the child is an Indian child.” (§ 224.2, subd. (d)(1); 25 C.F.R. § 23.107,
subd. (c)(1).) “Under both ICWA and California law, ‘ “extended family
member[s]” ’ 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
stepparent.’ ” (D.S., supra, 46 Cal.App.5th at p. 1053.)
31
Where there is a reason to know a child is an Indian child, section
224.3 requires that formal notice be given to the minor’s parents or legal
guardian, Indian custodian, if any, and the child’s tribe regarding any
hearings that may culminate in an order for foster care placement,
termination of parental rights, preadoptive placement, or adoptive
placement. (§ 224.3, subd. (a).) Section 224.3, subdivision (a)(5), sets forth
the information that must be included in the notice, including “[a]ll names
known of the Indian child’s biological parents, grandparents, and great-
grandparents, or Indian custodians, including maiden, married, and former
names or aliases, as well as their current and former addresses, birth dates,
places of birth and death, tribal enrollment information of other direct lineal
ancestors of the child, and any other identifying information, if known.”
(§ 224.3, subd. (a)(5)(C).) The notice “must include enough information for
the tribe to ‘conduct a meaningful review of its records to determine the
child’s eligibility for membership’ [citation], including the identifying
information for the child’s biological parents, grandparents, and great-
grandparents, to the extent known[.]” (D.S., supra, 46 Cal.App.5th at
p. 1050; see § 224.3, subd. (a)(5)(C).)
“On appeal, we review the juvenile court’s ICWA findings for
substantial evidence. [Citations.] 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.)
Here, the Department’s continuing duty of inquiry was unquestionably
triggered at the detention hearing when Mother and maternal grandfather
J.H. informed the juvenile court of possible Native American ancestry on the
maternal side of the family. Notably, the colloquy at the hearing revealed
there was reason to believe the child might have Indian ancestry from both of
32
Mother’s parents—J.H. and A.L.—which was acknowledged by the
Department in its jurisdiction and disposition reports. While the Department
and the court obtained basic information about J.H. and his parents, we see
no indication in the record that the Department engaged in any further
inquiry as to A.L.
As the child’s maternal grandmother, A.L. was an “extended family
member” for purposes of the Department’s duty of further inquiry. (§ 224.2,
subd. (e)(2)(A); D.S., supra, 46 Cal.App.5th at p. 1053.) The record suggests
A.L. was readily available to provide information to the Department, as she
attended some of the hearings. It goes without saying that A.L. could have
provided the Department with the names of her parents and her own full
birthdate, as well as any former names and addresses, and it is possible she
could have provided more detailed information about her parents such as
their dates and places of birth. Although we agree with the Department that
it was not required to interview the child’s great-grandparents in order to
satisfy its duty of inquiry under section 224.2, subdivision (e)(1) (D.S., supra,
46 Cal.App.5th at p. 1053), it was at least required to interview A.L. in order
to obtain the child’s great-grandparents’ information. (§§ 224.2, subd.
(e)(2)(A), 224.3, subd. (a)(5)(C).)
The Department contends it went beyond what was called for by
“sending formal notices to each of [the tribal] entities and receiving
confirmation from all three tribes that M.G. was not eligible for membership
even though there was not ‘reason to know’ he was an Indian Child.” While
we agree there was not yet reason to know that M.G. was an Indian child
(and therefore the formal notice provisions of section 224.3 were not
triggered), the Department’s early issuance of ICWA notices did not dispense
with further inquiry and due diligence, and to the extent the notices were
33
part of the Department’s inquiry efforts, it was incumbent on the Department
to provide as much information as possible to assist the notice recipients in
attempting to determine M.G.’s tribal membership or eligibility. (See § 224.2,
subd. (e)(2)(B) [further inquiry includes contacting the U.S. Department of
the Interior, Bureau of Indian Affairs; the State Department of Social
Services; tribes; and any persons that may reasonably be expected to have
information], (C) [contact with tribe shall include sharing information
necessary for tribe to make membership or eligibility determination].)
Without interviewing A.L to obtain basic information about herself and her
parents, and having left the spaces for her parents’ information “Unknown”
in all three rounds of ICWA notices, the Department gave the recipients little
information from which to determine if there was tribal eligibility stemming
from A.L.’s family history.
Likewise, to the extent the ICWA notices were intended as information-
sharing with the tribes in furtherance of the Department’s duty of inquiry
(§ 224.2, subd. (e)(2)(C)), the spelling discrepancy regarding the surname of
J.H. and R.H. may have hindered the tribes’ ability to conduct a meaningful
review of their records. It is unclear why there was a discrepancy in the
spellings between the ICWA notices and the statements made at the
detention hearing, but on the record before us, we cannot ascertain whether
the misspelling was in the ICWA notices themselves or in the reporter’s
transcript of the detention hearing. Nor is there any indication that the
Department or the juvenile court attempted to clarify this discrepancy.
We acknowledge the Department was not required to “cast about” for
information or pursue unproductive investigative leads. (In re Levi U. (2000)
78 Cal.App.4th 191, 199.) But given the Department’s acknowledgment that
there was possible Indian ancestry stemming from A.L., as well as her
34
apparent availability throughout the dependency proceedings, we cannot
conclude this was an unproductive avenue of inquiry. Even where
“[a]dditional investigation may not develop further information establishing
the need for ICWA notice, . . . it is essential to the enforcement of the court’s
and [the Department’s] ‘affirmative and continuing duty to inquire’ to
construe broadly the duty to make further inquiry.” (In re T.G. (2020) 58
Cal.App.5th 275, 295.)
Based on the foregoing, we conclude substantial evidence was lacking
to support the juvenile court’s findings that proper and adequate further
inquiry and due diligence had been conducted and that ICWA does not apply.
(§ 224.2, subd. (i)(2).)8 We cannot conclude the error was harmless. The
record does not show that the Department made any effort to interview A.L.
to obtain information on her and her parents, and the ICWA notices sent to
the tribes as part of the Department’s duty of inquiry did not contain A.L.’s
family history information and also may have misspelled the names of
maternal grandfather J.H. and great-grandfather R.H. Meanwhile, the
responses received from the Eastern Band of Cherokee Indians, United
Keetoowah Band of Cherokee Indians, and Cherokee Nation indicated that
their determinations were based on the information provided and could
change if the information they received was incorrect or incomplete. On this
8 However, we reject Father’s remaining contentions that ICWA
compliance was lacking due to incomplete information about M.G.’s birth
certificate and Father’s parentage in the ICWA notices, and the Department’s
failure to interview J.B., C.C., and C.H. about their Indian ancestry. (See
D.S., supra, 46 Cal.App.5th at p. 1053 [“extended family member” does not
include great-grandparents]; In re Charlotte V. (2016) 6 Cal.App.5th 51, 58
[no requirement under ICWA or California law that information about
nonlineal ancestors be provided].)
35
record, we find the claim of ICWA error to be prejudicial and reversible. (In
re N.G. (2018) 27 Cal.App.5th 474, 484.)
DISPOSITION
The disposition order of the juvenile court is conditionally reversed. (In
re Francisco W. (2006) 139 Cal.App.4th 695, 705–706.) The juvenile court is
directed to order the Department to investigate and obtain complete and
accurate information, if known, about M.G.’s maternal relatives (specifically
A.L., her parents, J.H., and R.H.) and to provide corrected ICWA notices to
the relevant tribes. If a tribe intervenes after receiving proper notice, the
court shall proceed in accordance with ICWA. If no tribe intervenes or
otherwise responds after receiving proper notice, the disposition order shall
be reinstated.
Additionally, the juvenile court is directed to correct the January 27,
2021 minute order of the disposition hearing to reflect that Father submitted
on the Department’s recommended case plan. (People v. Mitchell (2001) 26
Cal.4th 181, 188.)
In all other respects, the orders are affirmed.
36
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A161940, A162302/Napa County Health and Human Services v. M.G., J.B.
37