In re L.H. CA2/6 ( 2023 )

Filed 12/18/23 In re L.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 L.H., et al., Persons 2d Juv. No. B328256
Coming Under the Juvenile (Super. Ct. Nos.:
Court Law. 22JV00100, 22JV00101,
22JV00102, 22JV00103)
(Santa Barbara County)
SANTA BARBARA COUNTY
CHILD PROTECTIVE
SERVICES,
Plaintiff and Respondent,
v.
M.W., et al.,
Defendants and Appellants.
M.W. (mother) and K.H. (father) appeal from the juvenile
court’s orders terminating parental rights to their four minor
children and selecting adoption as the permanent plan. (Welf. &
Inst. Code, § 366.26.)1 Mother’s sole contention, joined by father,
is that the Santa Barbara County Child Welfare Services (“CWS”)
and the juvenile court failed to comply with the statutory
requirements for adequate inquiry whether the children are or
may be Indian children pursuant to the Indian Child Welfare Act
of 1978 (ICWA) (25 U.S.C., § 1901 et seq.) and related California
law, necessitating remand.2 We affirm.
Facts and Procedural History
Mother and father have four children: L.H. (born January
2017), A.H. (born February 2018), L.J.H. (born July 2019), and
O.H. (born September 2020). In March 2022, all four children
were detained pursuant to a protective custody warrant following
concerns about the parents’ domestic violence and substance
abuse. The protective custody warrants for the children listed
their race as American Indian.
CWS filed section 300 petitions on behalf of all four
children containing allegations related to parents’ domestic
violence, father’s violation of a restraining order that was issued
due to previous domestic violence, mother’s methamphetamine
use, both parents’ previous child welfare history, and both
parents’ criminal history. The petitions each included an ICWA-
010(A) form stating that neither parent provided the child
1 All further undesignated statutory references are to the
Welfare and Institutions Code.
2 “[B]ecause 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.” (In
re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin
M.).)
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welfare worker with any reason to believe the children are or
may be Indian children.
At the detention hearing, both parents denied Native
American heritage. Father submitted an ICWA-020 form stating
that none of the enumerated indicators of Indian status applied.
CWS prepared a detention report and indicated that father told a
child welfare worker that paternal grandmother claimed she had
Native American ancestry, but father did not know of any tribal
affiliation. The report also indicated mother denied having any
known Native American ancestry.
In April 2022, at the jurisdiction and disposition hearing,
the juvenile court stated it was prepared to make a finding that
ICWA did not apply. County counsel reminded the juvenile court
that father claimed he had “ancestry through paternal
grandmother of an unknown tribe.” County counsel also stated
that CWS would continue its inquiry and would request an
updated finding if additional information was found. The
juvenile court found the allegations of the amended petition to be
true, ordered the children removed from parents’ custody, and
ordered CWS to provide reunification services for both parents.
The juvenile court’s written findings and orders reflect its finding
that ICWA does not apply.
In December 2022, at the six-month status review hearing,
the juvenile court found the parents failed to substantially
comply with the case plan, terminated reunification services, and
set the matter for a permanency planning hearing pursuant to
section 366.26.
In March 2023, CWS filed an addendum report, which
included an ICWA matrix documenting the agency’s inquiries as
to each parent, as well as paternal aunt who denied any Native
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American ancestry in her family. The report also indicated that
CWS located an obituary for paternal grandmother who passed
away in 2012.
In April 2023, at the section 366.26 hearing, the juvenile
court found there was no reason to believe ICWA applied based
on the further inquiry conducted by CWS. After a contested
hearing, the juvenile court terminated parental rights and
ordered adoption as the children’s permanent plan.
ICWA Inquiry
Mother and father contend the orders terminating their
parental rights should be conditionally affirmed and the matter
remanded to the juvenile court because CWS failed to make an
adequate initial inquiry whether the children are or may be
Indian children.
We review the juvenile court’s ICWA findings for
substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th
1426, 1430.)
ICWA defines an “Indian child” as “any unmarried person
who is under age eighteen and 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) & (8); § 224.1, subd. (a).) The juvenile court and
the county welfare department have an affirmative and
continuing duty to inquire whether a child subject to dependency
proceedings is or may be an Indian child. (§ 224.2, subd. (a); Cal.
Rules of Court, rule 5.481(a).)
“‘The continuing duty to inquire whether a child is or may
be an Indian child “can be divided into three phases: the initial
duty to inquire, the duty of further inquiry, and the duty to
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provide formal ICWA notice.”’” (In re Antonio R. (2022) 76
Cal.App.5th 421, 429.)
The duty to inquire begins with the initial contact and
obligates the juvenile court and the county welfare department to
ask the child, parents, extended family members, and others who
have an interest in the child, whether the child is, or may be, an
Indian child. (§ 224.2, subds. (a)-(c).)
Relying on In re Robert F. (2023) 90 Cal.App.5th 492,
review granted July 26, 2023, S279743, and In re Ja.O. (2023) 91
Cal.App.5th 672, review granted July 26, 2023, S280572, CWS
contends it had no duty to inquire of extended family members
about any Indian ancestry because the children were detained on
a protective custody warrant pursuant to section 340, not section
306, which is the prerequisite to the section 224.2, subdivision (b)
extended family member inquiry requirement. (See Robert F., at
pp. 500, 504, citing In re Adrian L. (2022) 86 Cal.App.5th 342(conc. opn. of Kelley, J.); Ja.O., at p. 679; In re Andres R. (2023)
94 Cal.App.5th 828, review granted Nov. 15, 2023, S282054.)
Recently, however, the court in In re Delila D. (2023) 93
Cal.App.5th 953 (Delila D.), review granted Sept. 27, 2023,
S281447, declined to follow Robert F. After a detailed review of
the legislative history of section 224.2 and Assembly Bill No.
3176 (2017-2018 Reg. Sess.), the majority in Delila D. concluded,
“there is only one duty of initial inquiry, and that duty
encompasses available extended family members no matter how
the child is initially removed from home.” (Delila D., at p. 962.)
As Delila D. explained, “[t]he goal of the initial inquiry is to
determine whether ICWA’s protections may apply to the
proceeding, and the way a child is initially removed from home
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has no bearing on the question of whether they may be an Indian
child.” (Delila D., supra, 93 Cal.App.5th at p. 962.)
We conclude Delila D.’s analysis is persuasive. As Delila D.
explains, section 340 provides that when a child is taken from
home by means of a warrant, the child must be “delivered to” the
social worker. (§ 340, subd. (c).) In turn, section 306, subdivision
(a)(1) authorizes the social worker to “[r]eceive” the child and
“maintain” them in temporary custody, pending investigation.
(Ibid.) And “because the department, not law enforcement, is
charged with conducting the ICWA investigation in a dependency
proceeding, it simply makes more sense that section 224.2(b)
would tie the initial inquiry to when the child is delivered to the
department under section 306, subdivision (a)(1) and not when
they are initially taken from home under section 340.” (Delila D.,
supra, 93 Cal.App.5th at pp. 971-973.)
Consequently, Delila D. concluded, “[t]here is no practical
difference between children taken by warrant and those taken
without a warrant, and so there is no reason to distinguish
between them for ICWA inquiry purposes.” (Delila D., supra, 93
Cal.App.5th at p. 972.)
Applying this analysis here, we conclude CWS had a duty
to inquire of available extended family members whether the
children are or may be Indian children. CWS contends it
satisfied that requirement by inquiring of all relatives with whom
it had contact.
Here, father told CWS that paternal grandmother claimed
she had Native American ancestry but he did not know of any
tribal affiliation. When CWS interviewed paternal aunt and
inquired about Native American ancestry, she stated there was
no Native American ancestry in her family. At the detention
6
hearing, both father and mother denied having any Native
American heritage when asked by the juvenile court. Father also
completed an ICWA-020 form indicating that none of the
enumerated indicators of Indian status applied. There was no
objection when the juvenile court found that ICWA did not apply.
Mother and father identify several extended family
members that CWS should have attempted to locate and make
inquiry, including maternal aunt, maternal grandmother, and
paternal uncle. Mother’s reply brief also lists paternal
grandfather.
But there is no evidence that CWS ever had contact with
these extended family members or that they were readily
available. For example, CWS spoke to mother and inquired
about maternal relatives as part of the agency’s social
study/family assessment and consideration of relative
placements. Mother told CWS she had no relatives to consider
for placement. She stated she was raised by her mother and
stepfather and has a younger sister who lives in Texas, but
mother did not know her contact information. Mother did
provide CWS with maternal grandmother’s contact information,
but CWS was unable to reach maternal grandmother by phone
and left a voicemail requesting a call back. There is no indication
maternal grandmother ever returned CWS’s call.
CWS also interviewed father as part of the agency’s social
study/family assessment. He stated that he has two older
siblings who live in Lompoc. Father did not have a relationship
with paternal grandfather, and paternal grandmother had passed
away. When the agency asked about paternal relatives who
could be contacted for possible placement, father referred CWS to
paternal aunt but told the social worker that paternal uncle,
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Kevin, “[h]as a disease and is dying” and could not be contacted.
CWS conducted an internet search for paternal relatives and
mailed an inquiry letter to seven possible relatives, including a
relative named Kevin. There is no indication CWS received any
response to the letters it sent.
Notwithstanding these facts, mother and father contend
“nothing was documented about any inquiry of mother’s extended
family members and given father’s information that paternal
grandmother claimed Indian ancestry, the social worker should
have made a greater attempt to flush out and report on the
discrepant information they had about Indian ancestry on the
paternal side.”
These contentions are meritless. We recognize any
investigation could always be more robust. However, the law
requires a child services agency to make a “meaningful effort” to
locate and interview available extended family members. It is
not required to “cast about” for information or pursue
unproductive investigative leads. (See In re K.R. (2018) 20
Cal.App.5th 701, 709; In re Levi U. (2000) 78 Cal.App.4th 191,
199; In re Q.M. (2022) 79 Cal.App.5th 1068, 1082 [“we cannot ask
the agency to intuit the names of unidentified family members or
to interview individuals for whom no contact information has
been provided”].)
Furthermore, there is no indication that mother and
father’s extended family members had “readily obtainable
information” that would “shed meaningful light” on the children’s
Indian status such that the absence of inquiry was prejudicial.
(See Benjamin M., supra, 70 Cal.App.5th at pp. 742, 744.)
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No remand is warranted. We will not “set aside” the
juvenile court’s judgment unless it “has resulted in a miscarriage
of justice.” (Cal. Const., art. VI, § 13.) Here, it has not.
Disposition
The judgment (orders terminating parental rights and
selecting adoption as the permanent plan) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
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Gustavo E. Lavayen, Judge
Superior Court County of Santa Barbara
______________________________
Carol A. Koenig, under appointment by the Court of
Appeal, for Defendant and Appellant, M.W.
Deborah Dentler, under appointment by the Court of
Appeal, for Defendant and Appellant, K.H.
Rachel Van Mullem, County Counsel, Lisa A. Rothstein,
Snr. Deputy County Counsel, for Plaintiff and Respondent.