In re K.B. CA3 ( 2024 )

Filed 2/13/24 In re K.B. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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In re K.B. et al., Persons Coming Under the Juvenile C099035
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. Nos. JD240791,
CHILD, FAMILY AND ADULT SERVICES, JD240792)
Plaintiff and Respondent,
v.
M.A.,
Defendant and Appellant.
Appellant M.A., mother of K.B. and G.B. (the minors), appeals from the juvenile
court’s orders terminating parental rights and freeing the minors for adoption. (Welf. &
Inst. Code, §§ 366.26, 395.)1 Mother contends the initial inquiry under the Indian Child
1 Undesignated statutory references are to the Welfare and Institutions Code.
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Welfare Act (ICWA) by the Sacramento County Department of Child, Family and Adult
Services (Department) was insufficient because, although the father of the minors, M.B.,
claimed to have Native American ancestry, the Department failed to contact known
relatives to inquire whether they knew of possible Native American ancestry and failed to
contact multiple tribes. (25 U.S.C. § 1901 et seq.; § 224.2.) The Department agrees that
further ICWA compliance is warranted. We agree with the parties, and remand for
compliance with the ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
On August 31, 2020, the Department filed a petition alleging that the minors came
within the provision of section 300, subdivision (a), serious physical harm, and
subdivision (b)(1), failure to protect. The Department asked the parents about possible
Native American ancestry, and mother denied any such ancestry. Father provided
Parental Notification of Indian Status (ICWA-020) forms, stating he had Cherokee and
Blackfoot ancestry.2 At the detention hearing, the juvenile court found reason to believe
the minors were Indian children within the meaning of the ICWA and directed the
Department to conduct further inquiry. The Department inquired with the paternal
grandmother, who claimed she had Powhatan ancestry and the paternal grandfather had
Blackfeet ancestry. Although the Department did inquire with the Rappahannock tribe,
the record does not reveal that the Department inquired with the maternal relatives, the
five other federally recognized Powhatan-affiliated tribes, the paternal grandfather, or any
Cherokee tribes. Additionally, the Department formally inquired with the Blackfeet tribe
2 “[T]here is frequently confusion between the Blackfeet tribe, which is federally
recognized, and the related Blackfoot tribe, which is found in Canada and thus not
entitled to notice of dependency proceedings. When Blackfoot heritage is claimed, part
of the Agency’s duty of inquiry is to clarify whether the parent is actually claiming
Blackfoot or Blackfeet heritage.” (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
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without first obtaining any additional information from the paternal grandfather, on
whose behalf the paternal grandmother had claimed Blackfeet ancestry.
The juvenile court found the ICWA did not apply based on the responses from the
Rappahannock and Blackfoot tribes and the determination that the claimed Cherokee
heritage was through a step-grandparent. Subsequently, at the contested selection and
implementation hearing pursuant to section 366.26, the court terminated parental rights as
to mother and father.
DISCUSSION
“The ICWA defines an ‘ “Indian child” ’ as a child who ‘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).) The juvenile court and the
social services department have an affirmative and continuing duty, beginning at initial
contact, to inquire whether a child who is subject to the proceedings is, or may be, an
Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)” (In re G.A. (2022)
81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056.) “[F]rom the
[Department]’s initial contact with a minor and his [or her] family, [section 224.2]
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), italics added.) Third, if that further inquiry results in a
reason to know the child is an Indian child, then the formal notice requirements of section
224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance
whether anyone ‘knows or has reason to know that the child is an Indian child’]; id.,
subd. (d) [defining circumstances that establish a ‘reason to know’ a child is an Indian
child]; § 224.3 [ICWA notice is required if there is a ‘reason to know’ a child is an Indian
child as defined under § 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041,
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1052.) Section 224.2, subdivision (b) provides: “Inquiry includes, but is not limited to,
asking the child, parents, legal guardian, Indian custodian, extended family members,
others who have an interest in the child, and the party reporting child abuse or neglect,
whether the child is, or may be, an Indian child.” (§ 224.2, subd. (b).) We review claims
of inadequate inquiry into a child’s Native American ancestry for substantial evidence.
(In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
The Department does not dispute mother’s claim that it had sufficient information
to inquire of multiple relatives, and there is nothing in the record indicating the
Department asked any relatives, other than the paternal grandmother, about the minor’s
ancestry. Nor does the Department dispute the claim that it failed to inquire with five of
the Powhatan affiliated tribes or any of the Cherokee tribes, and that its inquiry with the
Blackfeet tribe may be insufficient because it did not first attempt to obtain more
information from the paternal grandfather. Accordingly, although we conditionally
affirm the orders terminating parental rights (as no other claim of error was made), we
must remand the case to the juvenile court for further proceedings to address compliance
with the inquiry and notice provisions of the ICWA and to enter new findings regarding
the applicability of the ICWA. (See § 224.2, subd. (b); see also In re Y.W. (2021)
70 Cal.App.5th 542, 554; In re A.C. (2022) 75 Cal.App.5th 1009, 1016-1018.)
DISPOSITION
The orders terminating parental rights are conditionally affirmed as to both parents
subject only to full compliance with the ICWA as described in this opinion. If, on
remand, the juvenile court determines the minors are Indian children within the meaning
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of the ICWA, the court shall vacate its previous orders terminating parental rights and
conduct further proceedings consistent with the ICWA, including a new section 366.26
hearing. (25 U.S.C. § 1914; § 224, subd. (e).)
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P. J.
/s/
Ashworth, J. 
 Judge of the El Dorado County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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