In re T.G. CA4/1 ( 2023 )

Filed 9/29/23 In re T.G. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re T.G. et al., Persons Coming
Under the Juvenile Court Law.
D082163
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ4648CD)
Plaintiff and Respondent,
v.
L.B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Mark
T. Cumba, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Natasha C. Edwards, Deputy County Counsel, for
Plaintiff and Respondent.
MEMORANDUM OPINION1
L.B. (Mother) appeals from orders terminating parental rights to her
children, T.G. and J.G. (Children), after a Welfare and Institutions Code
section 366.262 hearing. Mother contends that the San Diego County Health
and Human Services Agency (Agency) did not comply with its inquiry duties
under the federal Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA)
and section 224.2. However, Mother has not shown that the Agency failed to
inquire of any persons who qualify as “extended family member[s]” for
purposes of ICWA.
Section 224.2 imposes an “affirmative and continuing duty” upon the
Agency and the juvenile court to inquire whether a child subject to juvenile
dependency may be an Indian child. (§ 224.2, subd. (a).) Subdivision (b) of
section 224.2 creates an expanded duty of initial inquiry that requires the
Agency to ask “extended family member[s]” whether the child may be an
Indian child. 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-law or sister-in-law,
niece or nephew, first or second cousin, or stepparent.” (25 U.S.C. § 1903(2); §
224.1, subd. (c) [“ ‘extended family member’ . . . defined as provided in [§]
1903” of ICWA].)
There is currently a split in authority as to whether this duty only
applies to a child who has been taken into temporary custody without a
1 We resolve this case by memorandum opinion because it “raise[s] no
substantial issues of law or fact.” (Cal. Stds. Jud. Admin., § 8.1.)
2 Undesignated statutory references are to the Welfare and Institutions
Code.
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warrant pursuant to sections 306 or 307, and the Supreme Court has granted
review to decide the question. (See In re Ja.O. (2023) 91 Cal.App.5th 672,
678, review granted July 26, 2023, S280572; In re Robert F. (2023) 90
Cal.App.5th 492, 500-504, review granted July 26, 2023, S279743; In re
Delila D. (2023) 93 Cal.App.5th 953, 962.) Although Mother does not contend
that Children were taken into temporary custody under sections 306 or 307,
both parties assume that the expanded duty of inquiry applies. In light of the
Agency’s implicit concession, we do not decide this issue.
Mother contends the Agency “failed to conduct an adequate initial
inquiry as to whether [Children] were Indian children” because it “never
inquired of the various available paternal ‘extended family members’ about
the children’s possible Indian heritage.” Mother points to 11 individuals
listed in the Agency’s Jurisdiction/Disposition Report who have the same last
name as the Children’s father.3 The Jurisdiction/Disposition Report explains
that the Agency had identified “potential relatives” and describes each
individual’s relationship to Children simply as “Relative.” Although Mother
assumes that these individuals are actual “extended family member[s],” she
fails to explain how they are related to the Children or to point to evidence in
the record that would enable us to conclude that any one of them is a
“grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law,
niece or nephew, first or second cousin, or stepparent.” (25 U.S.C. § 1903(2);
§ 224.1, subd. (c).)
Mother cites In re J.C. (2022) 77 Cal.App.5th 70, and In re Darian R.
(2022) 75 Cal.App.5th 502, in support of her position. In each case, however,
3 Although the Agency argues that J.G. was only an “alleged” father,
multiple Agency reports list J.G. as the “Father,” and the juvenile court
ultimately found that he was the father of both Children.
3
the parent identified specific individuals who qualified as extended family
members and with whom the Agency could or did speak. (See In re J.C.,
supra, at pp. 79, 82, 84 [ICWA inquiry was insufficient where social worker
was in regular contact with one grandmother and had spoken to the other
grandmother’s husband but had not asked either grandmother about Indian
heritage]; In re Darian R., supra, at pp. 505, 509 [ICWA inquiry was
insufficient where “social worker interviewed maternal aunt and had contact
with maternal grandfather” but had not asked either about Indian heritage].)
Here, Mother fails to establish a qualifying relationship for any of the
individuals she identifies. Moreover, although the Agency sent contact
letters to these relatives, none responded.4 Therefore, we cannot say the
Agency was statutorily required to conduct inquiries with the “potential
relatives” identified in the Jurisdiction/Disposition Report. Because this is
Mother’s sole argument on appeal, Mother has not shown any error in the
juvenile court’s orders.
4 Children’s aunt, the one paternal family member who responded to the
Agency’s letter, denied Indian heritage. The Agency asked this paternal
aunt, “Is there anyone in your family who may have more information about
the child’s Native American, Alaska Native, or American Indian heritage?”
She responded “No.”
4
DISPOSITION
The orders are affirmed.
McCONNELL, P. J.
WE CONCUR:
DO, J.
CASTILLO, J.
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