In re J.N. CA2/6 ( 2023 )

Filed 8/14/23 In re J.N. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re J.N., a Person Coming 2d Juv. No. B325408
Under the Juvenile Court Law. (Super. Ct. No. J072946)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
M.S.,
Defendant and Appellant.
M.S. (Mother) appeals from the juvenile court’s order
terminating dependency jurisdiction over her minor son, J.N.,
and selecting legal guardianship as the permanent plan. (Welf.
& Inst. Code,1 § 366.26.) Mother contends, and county counsel
1 Unlabeled statutory references are to the Welfare and
Institutions Code.
concedes, the case should be remanded for compliance with the
inquiry requirements of the Indian Child Welfare Act of 1978 (25
U.S.C. § 1901 et seq.) and related provisions of California law
(§ 224.2). We agree, and remand.
FACTUAL AND PROCEDURAL HISTORY
J.N. was born in 2014. In 2021, the Ventura County
Human Services Agency (HSA) petitioned the juvenile court to
take dependency jurisdiction over J.N. due to Mother’s substance
abuse and mental health issues. The court did so, and ordered
reunification services for Mother.
When dependency proceedings began, Mother reported that
she had Yucca Indian ancestry. The maternal grandmother also
reported Yucca Indian ancestry, but said tribal officials told her
that her family was not eligible for enrollment in the tribe and
that all other family members with information on their ancestry
were deceased. HSA social workers investigated and found no
federally recognized Yucca Indian tribe.
Social workers also spoke with J.N.’s paternal relatives.
The paternal grandmother reported that the family had Cherokee
ancestry. But a paternal aunt denied that the family had
Cherokee ancestry, and said that no one in J.N.’s family lived on
a reservation or had tribal membership.
The juvenile court found ICWA inapplicable. It terminated
dependency jurisdiction over J.N., and ordered him placed in a
legal guardianship with his paternal aunt.
DISCUSSION
Mother contends, and county counsel concedes, the case
should be remanded for compliance with ICWA’s inquiry
requirements. We agree.
2
For purposes of ICWA, an “Indian child” is a child who
either is a “member of an Indian tribe” or “is eligible for
membership in an Indian tribe” because they are the biological
child of a tribe member. (25 U.S.C § 1903; see also § 224.1, subd.
(a) [adopting federal definition].) There is an “affirmative and
continuing duty to inquire whether a child . . . is or may be an
Indian child.” (§ 224.2, subd. (a).) This duty “can be divided into
three phases: the initial duty to inquire, the duty of further
inquiry, and the duty to provide formal ICWA notice.” (In re D.F.
(2020) 55 Cal.App.5th 558, 566 (In re D.F.).)
At issue here is the second phase, the duty of further
inquiry. This duty “is imposed when [HSA] or the juvenile court
has ‘reason to believe that an Indian child is involved’ in the
proceedings.” (In re D.F., supra, 55 Cal.App.5th at p. 566.) It
requires: (1) interviewing the child’s relatives about possible
Indian ancestry, (2) contacting the Bureau of Indian Affairs
(BIA), and (3) contacting any tribe “that may reasonably be
expected to have information regarding the child’s membership or
eligibility.” (Id. at pp. 566-567.)
A non-Indian parent has standing to raise an ICWA
challenge on appeal. (In re Jonathon S. (2005) 129 Cal.App.4th
334, 339.) Where, as here, the facts are undisputed, we
independently review whether ICWA’s inquiry requirements
have been satisfied. (In re A.M. (2020) 47 Cal.App.5th 303, 314.)
They have not. The paternal grandmother said that J.N.
may have Cherokee ancestry. This gave HSA and the juvenile
court reason to believe that J.N. is an Indian child (see § 224.2,
subd. (e)(1)), and required them to contact the BIA and federally
recognized Cherokee tribes about that possible ancestry (see id.,
subd. (e)(2)). Nothing in the record shows that those contacts
3
were made. Remand is accordingly required. (In re J.K. (2022)
83 Cal.App.5th 498, 511-512.)
DISPOSITION
The juvenile court’s order terminating dependency
jurisdiction over J.N. and ordering legal guardianship as the
permanent plan, entered November 10, 2022, is conditionally
affirmed, and the matter is remanded for compliance with the
further-inquiry requirements of ICWA and related California
law. After these inquiries have been made, the court shall make
ICWA findings at a noticed hearing. If the court finds ICWA
inapplicable, its November 2022 order terminating dependency
jurisdiction over J.N. shall remain the order of the court. If the
court determines that J.N. is an Indian child, however, it shall
vacate the November 2022 termination order and conduct further
proceedings consistent with this opinion, including a new section
366.26 hearing that conforms with all relevant provisions of
ICWA and the Welfare and Institutions Code.
NOT TO BE PUBLISHED.
BALTODANO, J.
I concur:
GILBERT, P. J.
4
YEGAN, J., Dissenting:
I respectfully dissent for the reasons stated in my
dissenting opinion in In re J.K. (2022) 83 Cal.App.5th 498 (dis.
opn. of Yegan, J.).
NOT TO BE PUBLISHED.
YEGAN, J.
1
Manuel J. Covarrubias, Judge
Superior Court County of Ventura
______________________________
Konrad S. Lee, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.