In re J.H. CA4/1 ( 2024 )

Filed 2/15/24 In re J.H. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.H., a Person Coming Under
the Juvenile Court Law.
D082851
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520892)
Plaintiff and Respondent,
v.
T.H. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County,
Michael P. Pulos, Judge. Conditionally reversed and remanded with
directions.
Tracy M. De Soto, under appointment by the Court of Appeal, for
Defendant and Appellant T.H.
William D. Caldwell, under appointment by the Court of Appeal, for
Defendant and Appellant C.W.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and
Respondent.
C.W. (Mother) and T.H. (Father) (together, Parents) appeal from the
order terminating their parental rights to their daughter, J.H. (Child).
Parents’ sole contention on appeal is that the San Diego County Health and
Human Services Agency (Agency) and the juvenile court did not comply with
inquiry requirements pursuant to the Indian Child Welfare Act of 1978
(ICWA), 25 United States Code section 1901 et seq., and Welfare and
Institutions Code section 224 et seq.1 They request conditional reversal and
remand for compliance with ICWA.2
The Agency submitted a letter conceding that a limited remand is
necessary to ensure ICWA compliance. We agree that a limited remand is
appropriate. We conditionally reverse the juvenile court’s orders and remand
the matter for compliance with ICWA, subject to reinstatement if the juvenile
court determines J.H. is not an Indian child.
FACTUAL AND PROCEDURAL BACKGROUND3
Child was exposed to marijuana and methamphetamine in utero.
Mother was arrested for a federal probation violation and gave birth while in
custody. Following Child’s birth, the Agency filed a dependency petition
1 Further undesignated statutory references are to the Welfare and
Institutions Code.
2 We deny Mother’s request for judicial notice as it is unnecessary to
resolve the matter before us. (See generally Riley v. Alameda County
Sheriff's Office (2019) 43 Cal.App.5th 492, 518.)
3 Because the sole issue on appeal relates to the adequacy of the ICWA
inquiry, we summarize the facts briefly, focusing on the ICWA inquiry.
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under section 300, subdivision (b). Parents denied Native American ancestry.
At the detention hearing in October 2021, Parents informed the court that
neither had any known Native American ancestry. At that hearing, the court
ordered both Parents to complete the “Parental Notification of Indian Status”
form. Copies of those forms are not included in the record before us.
At the jurisdictional/dispositional hearing in November 2021, Mother
told the court that she may have Native American ancestry through the
maternal grandfather, though she was not aware of a specific tribe. She
“barely know[s]” his name and has “no communication with him.”
Nevertheless, the maternal aunt and maternal great-aunt provided his name
to the Agency for further ICWA inquiry. The social worker reports indicate
they mailed formal ICWA inquiries; however, neither copies of the letters nor
any responses are included in the record. The court terminated parental
rights at the section 366.26 hearing in September 2023 after finding that
ICWA did not apply.
DISCUSSION
Congress enacted ICWA to address concerns regarding the separation
of Indian children from their tribes through adoption or foster care placement
with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) In
dependency proceedings, the juvenile court and the Agency have an
“affirmative and continuing duty to inquire” whether a child “is or may be an
Indian child.” (§ 224.2, subd. (a).) This duty of inquiry extends to asking
parents, legal guardians, extended family members and others who have an
interest in the child. (§ 224.2, subd. (b).) ICWA defines “ ‘extended family
member’ ” by “the law or custom of the Indian child’s tribe” or, absent such
law or custom, as “a person who has reached the age of eighteen and who is
the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-
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law or sister-in-law, niece or nephew, first or second cousin, or stepparent.”
(25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c).)
Mother contends the Agency failed to satisfy its duty of initial inquiry
under section 224.2, subdivision (b) because it did not ask her available
extended family members if they had Native American ancestry. Social
workers spoke with several extended maternal family members throughout
the life of the case, including a maternal aunt and the maternal great-aunt
who raised Mother. At the same time, the Agency was aware it had not
contacted the maternal grandmother or the maternal grandfather, even
though it is the maternal grandfather who may have Native American
ancestry. Although the exact relationship is unclear, Mother also argues the
Agency should have completed an inquiry with Terry L.W.
Father similarly contends the Agency failed to satisfy its duty of initial
inquiry under section 224.2, subdivision (b), asserting it did not ask Father’s
extended family members if they had Native American ancestry. Social
workers spoke with Father and the paternal grandmother. The Agency was
aware of a four paternal aunts and uncles, two of whom lived with the
paternal grandmother. While the Agency did inquire of the paternal
grandmother, the mother to Father’s siblings, they did not ask Father’s
siblings about Native American ancestry.4 The record also does not reflect
any attempts to contact the paternal grandfather.
The Agency concedes it failed to comply with the duty of initial inquiry
with respect to the maternal grandmother, maternal grandfather, and
4 The record is unclear which of Father’s siblings are full siblings and
share the same father.
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paternal grandfather.5 All parties agree a conditional reversal and limited
remand is appropriate to complete the initial inquiry.
Mother contends the Agency should also be required to ask about Terry
L.W.’s ancestry. Based on the record before us, however, we cannot
definitively conclude whether Terry qualifies as an extended family member
for the purposes of ICWA. If so, it may well be appropriate for the Agency to
inquire as to Terry’s Native American ancestry. But we note that an agency
is only obligated to make “a good faith effort to gather information about the
children’s membership status or eligibility” (In re D.F. (2020) 55 Cal.App.5th
558, 570) and it need not “ ‘cast about’ for information or pursue unproductive
investigative leads.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1053.)
Father similarly contends the Agency should make inquiries to each of
his siblings. Aunts and uncles are considered extended family members for
the purposes of ICWA inquiries; however, half-aunts and half-uncles are not
included within the definition of “extended family member.” (See 25 U.S.C.
§ 1903(2); Welf. & Inst. Code, § 224.1, subd. (c) [“ ‘extended family
member’ . . . defined as provided in [§] 1903” of ICWA].) The Agency is not
necessarily obligated to make inquiries to a parent’s half-siblings and the
record before us is not clear which of Father’s siblings are full siblings. In
5 In light of the Agency’s concession, we do not consider the significance,
if any, of the prefatory statutory language, “[i]f a child is placed into the
temporary custody of a county welfare department pursuant to Section 306
or county probation department pursuant to Section 307 . . . .” (§ 224.2,
subd. (b); compare In re Robert F. (2023) 90 Cal.App.5th 492, review granted
July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672, review
granted July 26, 2023, S280572; In re Andres R. (2023) 94 Cal.App.5th 828,
review granted Nov. 15, 2023, S282054; with In re Delila D. (2023)
93 Cal.App.5th 953, review granted Sept. 27. 2023, S281447; In re C.L. (2023)
96 Cal.App.5th 377; In re Jerry R. (2023) 95 Cal.App.5th 388; In re V.C.
(2023) 95 Cal.App.5th 251.)
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any event, the Agency may be able to resolve questions of Father’s possible
Native American ancestry through the paternal grandfather. Should this be
the case, it may not be necessary to conduct inquiries of Father’s siblings,
full, half, or otherwise.
Once the Agency complies with initial inquiry efforts with extended
family members, the court will evaluate if further inquiry is necessary.
Accordingly, we conditionally reverse the order terminating parental rights
and remand for the limited purpose of allowing the Agency and the juvenile
court to comply with ICWA and section 224.2. (In re Benjamin M. (2021)
70 Cal.App.5th 735, 746; In re K.H. (2022) 84 Cal.App.5th 566, 621.)
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DISPOSITION
The juvenile court’s September 25, 2023 orders terminating parental
rights to J.H. are conditionally reversed. The matter is remanded with
directions that the Agency comply with the inquiry provisions of ICWA and
section 224.2, including at least the maternal grandmother, maternal
grandfather, and paternal grandfather. If, after completing ICWA inquiry,
neither the Agency nor the juvenile court has reason to believe or to know
that J.H. is an Indian child, the order terminating parental rights to J.H.
shall be reinstated. Alternatively, if after completing the initial inquiry the
Agency or the juvenile court has reason to know J.H. is an Indian child, the
court shall proceed according to statute.
DATO, J.
WE CONCUR:
IRION, Acting P. J.
BUCHANAN, J.
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