In re J.M. CA4/2 ( 2023 )

Filed 8/14/23 In re J.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 J.M. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E080701
Plaintiff and Respondent, (Super.Ct.No. J288335, J288336)
v. OPINION
A.M.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Conditionally affirmed with directions.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, Joseph R. Barrell, Deputy County Counsel, for
Plaintiff and Respondent.
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In this appeal following the termination of parental rights, the mother contends
that the social services agency failed to comply with its duty of further inquiry under the
Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). We agree,
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conditionally affirm, and remand with directions.
I. BACKGROUND
In March 2021, plaintiff and respondent San Bernardino County Children and
Family Services (CFS) filed a section 300 petition for J.G. (born 2017) and J.M. (born
2019), whose mother is A.M. (Mother). Because this appeal raises only ICWA
compliance, we need not discuss in detail the circumstances leading to the children’s
removal or Mother’s reunification efforts; the juvenile court terminated Mother’s parental
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rights to the children in February 2023.
At an April 2022 hearing, the juvenile court asked Mother’s grandfather whether
he was aware of any Indian ancestry in his family. He answered no. Mother’s
grandfather reiterated the denial at a May 2022 hearing. At a July 2022 hearing,
however, Mother’s grandfather gave a different answer. He stated that he “was told that
[his] mother’s mother had a little Indian in her,” adding that the tribe was “Cherokee” but
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Undesignated statutory references are to the Welfare and Institutions Code. In
addition, because ICWA uses the term “Indian,” we do the same for consistency, even
though we recognize that other terms, such as “Native American” or “indigenous,” are
preferred by many.
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We note that few days after the petition was filed, Mother gave birth to a third
child, who was also detained. That petition was dismissed a year later, after the child
died. Mother has been charged with the child’s murder.
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that he did not know where the tribe was located. Although he also did not know his
grandmother’s name, Mother’s grandfather provided the court with his mother’s name,
place of birth, and date of death, and he stated that he would provide the court with his
mother’s obituary. CFS does not appear to have obtained a copy of the obituary.
Mother’s grandfather later informed a social worker that there were no other living
relatives that could be contacted to inquire about Indian ancestry. At two subsequent
hearings, when the juvenile court asked Mother’s grandfather whether it was correct that
he previously stated there’s no Indian ancestry, he answered affirmatively. Several of
Mother’s other relatives, including five siblings who share Mother’s last name, also
denied having Indian ancestry when asked by social workers.
In September 2022, CFS sent an email to the Cherokee Nation and the Bureau of
Indian Affairs asking for assistance in determining whether the children or their family
may have Indian ancestry. It included the names and birthdates for the children and
several of their relatives, but it did not include any information about Mother’s great-
great-grandmother (the relative that may have had Cherokee ancestry), Mother’s great-
grandmother (the closest relative to the great-great grandmother that CFS had
information for), or Mother’s siblings. CFS did not contact the other two federally
recognized Cherokee tribes: the Eastern Band of Cherokee Indians and the United
Keetoowah Band of Cherokee Indians in Oklahoma. (See 88 Fed. Reg. 2112 (Jan. 12,
2023).) At the permanency planning hearing in February 2023, the juvenile court found
that ICWA did not apply.
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II. DISCUSSION
“Congress enacted ICWA over 40 years ago to address ‘“abusive child welfare
practices that resulted in the separation of large numbers of Indian children from their
families and tribes through adoption or foster care placement, usually in non-Indian
homes.”’ [Citation.] . . . As a result, ICWA’s express purpose is ‘to protect the best
interests of Indian children and to promote the stability and security of Indian tribes and
families by the establishment of minimum Federal standards for the removal of Indian
children from their families and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture.’” (In re K.T. (2022) 76
Cal.App.5th 732, 740.)
“When ICWA applies, the Indian tribe has a right to intervene in or exercise
jurisdiction over the proceeding. [Citation.] If the tribe does not assume jurisdiction, the
state court must nevertheless follow various heightened procedural and substantive
requirements, such as stricter removal standards and mandatory placement preferences
that promote keeping Indian children with family members or members of their tribe.”
(In re K.T., supra, 76 Cal.App.5th at p. 741.) “Violations of ICWA ‘“render[] the
dependency proceedings, including an adoption following termination of parental rights,
vulnerable to collateral attack if the dependent child is, in fact, an Indian child.”’” (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 741.)
“Section 224.2, subdivision (b) specifies that once a child is placed into the
temporary custody of a county welfare department, . . . the duty to inquire ‘includes, but
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is not limited to, asking the child, parents, legal guardian, Indian custodian, extended
family members, others who have an interest in the child, and the party reporting child
abuse or neglect, whether the child is, or may be, an Indian child.’” (In re D.S. (2020) 46
Cal.App.5th 1041, 1048-1049.) This duty, sometimes referred to as the duty of initial
inquiry, is not at issue in this case.
However, when an agency “has ‘reason to believe’ that an Indian child is
involved, further inquiry regarding the possible Indian status of the child is required.
(§ 224.2, subd. (e).) The required further inquiry includes (1) interviewing the parents
and extended family 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. At this stage, contact with a tribe ‘shall, at a minimum,’ include
telephone, facsimile, or electronic mail contact to each tribe’s designated agent for receipt
of ICWA notice, and ‘sharing information identified by the tribe as necessary for the tribe
to make a membership or eligibility determination, as well as information on the current
status of the child and the case.’” (In re D.S., supra, 46 Cal.App.5th at p. 1049, fns.
omitted.) “The sharing of information with tribes at this inquiry stage is distinct from
formal ICWA notice, which requires a ‘reason to know’—rather than a ‘reason to
believe’—that the child is an Indian child.” (Ibid., fn. omitted; see also In re K.T., supra,
76 Cal.App.5th at p. 743 [duty of further inquiry “applies even if the information
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suggesting a child may have an affiliation with a tribe ‘isn’t strong enough to trigger the
notice requirement’”].)
Mother contends that CFS did not adequately discharge its duty of further inquiry
because it neither contacted the other Cherokee tribes nor provided the Cherokee tribe it
did contact with adequate information. We agree. Given that Mother’s grandfather
stated that his grandmother might have some Cherokee ancestry and did not know where
that tribe might have been located, there was no reason for CFS to have contacted only
one of the Cherokee tribes. Moreover, the omission of several of Mother’s relatives in
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CFS’s emails to the Cherokee Nation and the Bureau of Indian Affairs made those e-
mails deficient. First, although CFS does not appear to have obtained information about
Mother’s great-great-grandmother (the relative who may have been in a Cherokee tribe),
it also did not document any efforts to obtain the obituary that Mother’s grandfather
stated he would provide the court, which the court noted “may have some information
and names of other relatives.” Second, CFS had a name and other information for
Mother’s great-grandmother, as Mother’s grandfather provided them in court, but her
information was not included in CFS’s emails. And third, CFS similarly omitted names
and birthdates for Mother’s aunts and uncles Mother and her grandfather share a last
name with, family members who arguably could have contacts with a Cherokee tribe that
her grandfather lacked. As this court stated in In re K.T., Mother’s grandfather’s “claims
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It does not appear that CFS contacted the California Department of Social
Services. (See § 224.2, subd. (e)(2)(B) [further inquiry includes “[c]ontacting the Bureau
of Indian Affairs and the State Department of Social Services for assistance”].)
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of Indian heritage may lead to a dead end, but that determination should be the result of
investigation not assumption.” (In re K.T., supra, 76 Cal.App.5th at p. 744.)
CFS contends that the duty of further inquiry was never triggered, relying on In re
Q.M. (2022) 79 Cal.App.5th 1068. The reliance is misplaced. There, the father informed
the juvenile court that he may have Cherokee ancestry but later repeatedly disavowed that
statement. (Id. at pp. 1082-1083.) Citing no precedent, the court concluded that “[u]nder
these unique facts, we are not persuaded that father’s [initial] statement . . . gave rise to
‘reason to believe’ the children were Indian children.” (Id. at p. 1083.) However,
because “reason to believe” is broadly defined as “information suggesting that either the
parent of the child or the child is a member or may be eligible for membership in an
Indian tribe” (§ 224.2, subd. (e)(1), italics added), we agree with those cases that have
held that an unexplained conflict in the evidence triggers the duty of further inquiry.
(See, e.g., In re Josiah T. (2021) 71 Cal.App.5th 388, 405 [“a mere change in reporting,
without more, is not an automatic ICWA free pass; when there is a conflict in the
evidence and no supporting information, [an agency] may not rely on the denial alone
without making some effort to clarify the relative’s claim”]; In re Gabriel G. (2012) 206
Cal.App.4th 1160, 1167 [“At a minimum, a conflict in the evidence exists. Under these
circumstances, the social worker had a duty of further inquiry”].)
We suggest that CFS continue its inquiry by returning to Mother’s grandfather to
determine whether he can provide the obituary he stated that he would provide; whether
he persists in (or instead disavows) his statement about information that he had some
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level of Indian ancestry; and, if he persists, whether he can provide any more information
about that ancestry and persons who may know about it. Depending on the answers to
these questions, CFS should decide whether further steps are needed to properly comply
with its inquiry duties.
III. DISPOSITION
The orders terminating parental rights to J.G. and J.M. are conditionally affirmed.
The matter is remanded to the juvenile court with direction to comply with the inquiry
provisions of ICWA and of Welfare and Institutions Code section 224.2 (and, if
applicable, the notice provisions as well), consistent with this opinion. If, after
completing the inquiries, neither CFS nor the court has reason to know that J.G. or J.M.
are Indian children, the orders terminating parental rights will remain in effect. If CFS or
the court has reason to know that J.G. or J.M. is an Indian child, the court shall proceed
accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
CODRINGTON
Acting P. J.
MENETREZ
J.
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