In re K.S. CA4/3 ( 2024 )

Filed 10/18/24 In re K.S. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
In re K.S., a Person Coming Under
the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G064072
Plaintiff and Respondent,
(Super. Ct. No. 20DP0036A)
v.
OPINION
K.T.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
Julie Anne Swain, Judge. Conditionally reversed and remanded for further
proceedings.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Debbie Torrez and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the minor child.
* * *
The Orange County Social Services Agency (the Agency) filed a
child welfare petition on behalf of seven-year-old K.S., alleging he came
within the jurisdiction of the juvenile court under Welfare and Institutions
Code section 300, subdivisions (b)(1) and (j).1 The juvenile court sustained the
petition as amended by interlineation, declared K.S. a dependent child, and
ordered him removed from the custody of his mother, K.T. (Mother), vesting
temporary placement and care with the Agency. Mother filed a notice of
appeal, challenging the court’s jurisdiction and disposition orders and
asserting the court failed to comply with the federal and state Indian Child
Welfare Acts.
Finding the Agency failed to satisfy its duty of further inquiry
under the federal Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901et seq.) and the California Indian Child Welfare Act (Cal-ICWA) (§ 224 et
seq.), we conditionally reverse and remand for further proceedings.2
1
All further statutory references are to the Welfare and
Institutions Code.
2
As the California Supreme Court explained in In re Dezi C.
(2024) 16 Cal.5th 1112, 1125, fn. 1 (Dezi), we use the term “Indian” as it is
used in the federal and state statutes. No disrespect is intended.
2
FACTS
A. Events of December 2023 through February 2024
On December 18, 2023, Mother and her boyfriend, J.D., engaged
in a physical altercation that began when Mother asked to see J.D.’s phone.
J.D. refused and pushed Mother away with both hands. The following day,
Mother and J.D. had another physical altercation. Mother again asked to see
J.D.’s phone. In response, J.D. threw the phone and it hit Mother’s hand.
This time, Mother called the police. When the police arrived, they arrested
J.D., who was detained and then released. Mother’s minor child, K.S. (then
seven years old), was present for both incidents. 3
Following the altercation, the Agency attempted a welfare check.
In late December 2023, a social worker with the Agency called Mother and
left a voicemail. Mother left a return message the following day, reporting
she and K.S. were on their way to Las Vegas, Nevada and would not be
returning until January 4, 2024. The social worker returned Mother’s call,
but there was no answer, so the social worker texted Mother, asking if she
and K.S. could be available for a video call that day. Mother texted back
saying she did not have the video call application identified by the social
worker but would download a different one during her next stop so they could
talk later in the day. The social worker agreed to the plan, but Mother did not
call back that day and did not respond to the social worker’s text message
asking when Mother would be available for the call.
3 K.S.’s father (Father) lives in Florida and has only sporadic
contact with K.S. Father submitted to the first amended petition as amended
by interlineation and did not appeal any order or ruling.
3
The same day, the social worker made an unannounced visit to
Mother’s home. A third party answered the door and told the social worker he
was watching the family dog because Mother and K.S. were out of town for
the next few days. The following day, Mother sent a text to the social worker,
responding to the text message sent on December 28, 2023. Mother said she
had just received the voicemail from the social worker and asked if they could
have the video call at that time. The social worker handling the case was not
at work that day, so the video call did not take place.
The next Tuesday, the social worker received a call from Mother’s
CalWORKs worker, who reported Mother and K.S. stopped by the
CalWORKs office in southern California to report a missing EBT card.4 The
CalWORKs worker called back later that day and informed the social worker
Mother had left her car keys in the CalWORKs office and had not returned
for them. Later that day, the social worker met, in person, with Mother and
K.S. Mother told the social worker she was leaving to return to Las Vegas for
a few more days but gave permission for K.S. to be interviewed.
K.S. was interviewed with Mother nearby but not directly next to
or in front of him. K.S. reported he lived with Mother and that J.D. stayed
over sometimes but did not live in the home. He reported his basic needs
were met. He denied there was any fighting in the home. He denied ever
seeing J.D. push Mother. He said Mother and J.D. had infrequent verbal
arguments. Regarding the December 19, 2023 incident, K.S. said J.D. was
4
California Work Opportunity and Responsibility to Kids
(CalWORKS) is a welfare program that provides cash aid and services to
eligible California families in need.
4
upset and threw the phone at the couch but Mother put her hand out and was
hit by the phone. He reported feeling safe in the home.
The next contact between Mother and the social worker was the
following week, when the social worker sent a text asking when Mother
would return from Las Vegas. Mother responded she was not home yet but
would let the social worker know when she and K.S. returned. Two days
later, the social worker sent another text message to Mother, asking that she
have J.D. reach out to the social worker and reminding her a home
assessment still needed to be completed. Mother responded by reporting she
and K.S. were flying to Wisconsin for three days and she would update the
social worker when she returned.
Six days later, the social worker sent a follow-up text message to
Mother asking when she and K.S. would be home. Mother did not respond.
Six days after that, the social worker sent another text message to Mother.
Mother did not respond. Two days after sending that message, the social
worker attempted an in-person visit at Mother’s local address. No one
answered the door, so the social worker left a business card at the door with a
note asking for a call. Mother did not call.
A week later, the social worker attempted, twice, to text Mother.
Both times, the social worker received the message “‘message send failure.’”
The social worker also attempted to contact Father at two telephone numbers
identified with Father. The first number did not accept calls. The second
number belonged to someone other than Father.
Two weeks after that, a newly-assigned social worker learned the
police had been to Mother’s home twice during the preceding week and found
no one there. When police went to the home for a third time later that day,
they detained someone named Katherine on a “‘5150’” hold because she
5
appeared to have possible mental health issues or be under the influence of
drugs or alcohol. The police reported Katherine was the only person at the
home, which “‘looked like it was a boarding house for the homeless’” and
appeared to be an inappropriate living condition for a child. When the social
worker conducted an unannounced visit at Mother’s home later that day,
Mother did not answer the door. Later that day, Mother called the social
worker and reported that Katherine, her mother, had been living in Mother’s
home for about four days.
B. K.S. in Wisconsin
During that same call, Mother informed the social worker she
had left K.S. in Wisconsin two to three weeks earlier. She stated she left K.S.
with K.K. and A.K., K.S.’s former foster parents who had adopted K.S.’s
younger half brother E.K. Mother stated she left K.S. in Wisconsin “because
‘things are not healthy’” for him at her home. She reported she was going to
leave K.S. in Wisconsin until May 2024 so he could finish the school year.
Mother gave K.K. and A.K. a power of attorney for K.S.
The social worker spoke with K.K., who reported K.S. arrived on
January 13, 2024. K.K. said Mother called in January and asked for help and
they agreed to take K.S. K.K. reported K.S. was doing well in school. He was
being evaluated at school for possible behavioral problems, but she had not
seen any behavioral or other issues. K.K. said she and her husband were
“‘100% committed’” to having K.S. in their home. After the telephone
conversation, K.K. sent the social worker a text message stating K.S. was
now on K.K.’s insurance and had already seen a physician and a behavioral
health counselor. In addition, K.S., who had arrived in Wisconsin without his
prescription eyeglasses, had an appointment with the eye doctor for the
following week. A dentist appointment also had been scheduled.
6
The social worker spoke with K.S.’s elementary school in
Wisconsin. The school reported K.S. was “‘doing well, making friendships,
kind to his peers, and adjusting well.’” He did not have behavioral issues but
was somewhat delayed. K.S., who was at a chronological age for second
grade, was placed in first grade because he was behind in both literacy
(reading at a pre-k/kindergarten level) and math skills. Wisconsin police
conducted a welfare check on K.S. and reported the house was “‘more than
appropriate for the child’” and K.S. appeared happy.
The social worker also was able to interview K.S. through a video
application. K.S. reported he was attending school and was going to start
piano lessons. He reported he did not skip meals with his current caregivers,
but he skipped meals a “‘medium’” number of times when he was living with
Mother. K.S. reported when he lived with Mother, sometimes there was no
food in the refrigerator. When asked about being homeschooled by Mother,
K.S. said “‘it was hard for her to teach me. Most day[s] she would try to teach
me, but she didn’t.’” He also reported Mother sometimes left him alone to go
to a convenience store and he witnessed some physical altercations between
Mother and J.D. He reported living with Mother was “‘sometimes good and
sometimes bad.’” It was bad because Mother and J.D. fought and “‘it was a
mess in the house and the car.’” He said it was good because Mother “‘helps
[him] with stuff.’” He denied seeing any drugs in Mother’s house and denied
any sexual abuse.
When asked about Las Vegas, K.S. reported he did not go to Las
Vegas in December or January because Mother did not have money for food
or gas.
On February 29, 2024, the social worker again interviewed K.K.,
who reported she had given money to Mother to buy plane tickets to bring
7
K.S. to Wisconsin. The following day, Mother told K.K. the flight had been
canceled. K.K. told Mother to use the money for a ticket on another plane, but
Mother claimed she had used the ticket money to buy K.S. toys. K.K. reported
she had previously given Mother money for specified purposes and had
learned from K.S. that Mother did not use the money for those purposes.
C. K.S.’s Life with Mother
In January 2020, three years before the December 2023 incidents
described above, K.S. was removed from Mother’s care and taken into
protective custody because Mother had exposed K.S. to the negative effects of
substance abuse. Family reunification services were ordered. After about 18
months, K.S. was returned to Mother’s custody. Subsequently, Mother
completed her reunification services and the child welfare case was
terminated. Mother was granted sole custody, and Father was given four
hours of supervised visitation per month.
After K.S. was returned to Mother’s care, allegations of general
neglect or physical abuse of K.S. were made on at least six occasions between
October 2021 and April 2023. On September 1, 2023, Mother reported J.D.
had hit K.S. with a belt on his back, threatened to kill K.S., and shoved
narcotics down his mouth. When questioned by the police, K.S. denied J.D.
had shoved narcotics down his mouth and reported J.D. hit him with a belt
on his bottom, not his back.
In October 2023, a report was made that K.S. was heard yelling
for help and screaming “‘stop hitting me, you stupid bitch.’” It was reported
that sounds of Mother and K.S. screaming had been going on for months and
slamming sounds also had been overheard. A welfare check was completed,
and Mother told law enforcement K.S. had autism and attention deficit
8
hyperactivity disorder (ADHD) and had been hitting the door with a
skateboard. Mother declined resources.
K.S. reportedly had been homeschooled by Mother for an
unknown period of time. Pursuant to his homeschooling agreement, K.S. was
to be evaluated every 20 days. As of December 2023, however, K.S. had not
submitted any schoolwork and Mother had cancelled seven scheduled school
meetings.
Mother reported to the social worker that K.S. has autism and
ADHD. However, there was no individualized education plan (IEP) on file for
K.S. Mother informed the social worker she withdrew K.S. from school
because the school did not recognize K.S.’s autism or provide an IEP. Mother
acknowledged she had not been successful at homeschooling K.S.
D. Mother’s History
Mother has a total of five children—two adults (18 and 21) and
three minors. The 21 year old lives with her paternal step grandmother, who
obtained legal guardianship when the child was three. The 18 year old has
lived with his father since he was three months old. (Mother was homeless at
the time and voluntarily gave the child to his father.) The oldest minor (E.T.)
is 16 years old and lives with his father, who has full custody. The youngest
(two years old) was adopted by K.K. and A.K. and resides with them in
Wisconsin. K.S. was the only child living with Mother in 2023.
In addition to her contacts with the Agency regarding K.S.,
Mother had contact with the Agency in connection with E.T., K.S.’s 16-year-
old maternal half-brother. E.T. was declared a dependent of the Los Angeles
County Juvenile Court in 2010 because Mother and E.T.’s father (not Father)
had a history of domestic violence that endangered E.T.’s physical and
emotional health and safety. In addition, Mother had an unresolved history of
9
mental and emotional problems and substance abuse that rendered her
periodically unable to provide regular care and supervision for E.T., and
E.T.’s father had an unresolved history of substance abuse. In 2011, E.T. was
returned to the custody of Mother and E.T.’s father. In 2012, child welfare
proceedings were terminated, with E.T. remaining in legal custody of both
parents and the sole physical custody of Mother.
Almost a year and a half later, in April 2014, E.T. was again
declared a dependent of the Los Angeles County Juvenile Court due, in part,
to Mother’s unresolved substance abuse and mental and emotional problems.
In July 2014, the Los Angeles County Juvenile Court terminated jurisdiction
and granted sole legal and physical custody to E.T.’s father.
As to her own history, Mother reported she was in foster care
between the ages of 11 and 18. Mother suffered emotional, physical, and
sexual abuse as a child, with periods of homelessness and trauma resulting
from drugs and violence. Mother reported she has a distant but supportive
relationship with her own mother, who has a history of drug and alcohol use.
She has infrequent contact with her father, who also has a history of drug
and alcohol use.
Mother has a history of substance abuse, including
methamphetamine, marijuana, and alcohol use. Mother has admitted to
using methamphetamine with K.S. present in her home and driving with
K.S. in the car while under the influence. Mother has completed several drug
treatment programs but continued to relapse, including during periods while
K.S. was in her care.
Mother also has a history of unresolved and untreated mental
health issues. She has self-reported diagnoses of bipolar disorder, manic-
depressive disorder, autism, anxiety, PTSD, and ADHD and has been in and
10
out of treatment. She also has a history of domestic violence in past
relationships.
Mother has been arrested for and/or convicted of, among other
things, petty theft, grand theft, possession of a controlled substance, battery,
shoplifting, theft of personal property, making or passing a fictitious check,
possession of unlawful paraphernalia, possession of burglary tools, second
degree burglary, unlawful alteration of a driver’s license, and willful cruelty
to a child.
E. Proceedings in Juvenile Court
On February 5, 2024, the Agency filed a non-custody petition on
behalf of K.S. based on substantiated allegations of domestic violence
between Mother and J.D. Mother was notified of the non-custody petition and
the detention hearing scheduled for February 6, 2024 by certified mail. No
one appeared for Mother or Father at the hearing. Because K.S.’s
whereabouts were unknown, the juvenile court issued a protective custody
warrant.
A certified letter was mailed to Mother, notifying her of the
detention/warrant review hearing scheduled for February 20. Father also was
notified by certified mail. On February 17, 2024, the social worker sent
Mother a text message with the detention hearing information, including
date, time, and location. A similar message was left for Father.
The warrant review hearing was held on February 20, 2024.
Mother, Father, K.S., K.K., and A.K. appeared remotely. Counsel was
appointed for Mother, K.S., and Father. Mother and Father denied the
allegations of the first amended petition. The juvenile court recalled the
warrant, found Father to be the presumed father of K.S., ordered the Agency
to conduct an initial inquiry and provide the results to the court, and deferred
11
any finding under ICWA. The hearing was continued for one day to allow
Mother to appear in person.
At the continued hearing on February 21, 2024, Mother appeared
in person, and Father appeared remotely. The juvenile court again deferred
any finding on whether ICWA applied. The court found there was substantial
danger to the physical health of K.S. and there were no reasonable means by
which K.S.’s physical or emotional health could be protected without
removing him from Mother’s and Father’s physical custody. K.S. was
detained from both parents. Mother was given eight hours of supervised
electronic visitation per week. Father was given six hours of supervised
visitation per week. The Agency was ordered to provide reunification services
as quickly as possible. A pretrial hearing was set for March 27, 2024, and
trial was set for April 10, 2024.
By stipulation, the March 27, 2024 hearing was continued to
April 10, 2024. Later, the trial was continued to April 23, 2024. Mother
appeared in person at the trial; Father appeared remotely. Father submitted
on the amended petition and agreed to family reunification services.
At trial, the juvenile court admitted the Agency’s report as
evidence. Among other things, the report contained evidence Mother missed
random drug tests several times in March 2024 and on March 25, 2024,
notified the social worker that a staff member at the drug testing location
had informed her she could not take a drug test on March 19, 2024 because
she had been COVID-19 positive and would need a negative COVID-19 test.
When the social worker followed up with the drug testing location, she was
told no patient had come to the location stating they had contracted COVID-
19 and, further, patients did not need to prove they were COVID-19 negative
to take a drug test. When asked to provide proof she had been COVID-19
12
positive, Mother provided a test result letter created by a website that creates
a positive COVID-19 test based on a self-report of the user. Several days
later, Mother reported she had e-mailed the Agency documentation from the
doctor showing she had tested positive for COVID-19. However, there were no
e-mails from Mother and when the social worker followed up, Mother failed to
respond. Mother’s call-in compliance as of April 5, 2024, was 47 percent.
Mother had failed to sign counseling and parent education referrals and did
not demonstrate any effort to comply with the requirement that she attend
self-help meetings and participate in a substance abuse program.
Following submission of evidence and argument, the juvenile
court found the allegations of the first amended petition true by a
preponderance of the evidence and declared K.S. a dependent child of the
Orange County Juvenile Court. The court found reasonable efforts were made
to remove K.S. from his home and that vesting custody with K.S.’s parents
would be detrimental to K.S. The court found K.S.’s placement in Wisconsin
was not a parent-initiated placement that obviated the need for court
supervision because Mother had not alleviated the current circumstances
that created risk to K.S. and there was no evidence the current risk would be
mitigated by Mother without court supervision. The court authorized K.S.’s
current placement in Wisconsin.
F. ICWA
On January 2, 2024, during her interview with the social worker,
Mother reported having Native American ancestry through connections with
the White Earth Chippewa tribe and possibly with a Cherokee tribe. On
February 16, 2024, the Agency received a text message from Mother stating
K.S.’s maternal great-grandmother was registered White Earth Chippewa. At
13
the hearing on February 21, 2024, the court ordered the Agency to continue
its efforts to determine whether ICWA applied and deferred any findings.
On February 21, 2024, Mother filed a parental notification of
Indian status, notifying the court K.S. might have Native American ancestry
through the White Earth Chippewa, Blackfoot, or Cherokee tribes by way of
his maternal great-grandmother. On February 22, 2024, Mother notified the
Agency she claimed White Earth Chippewa-Anishinaabeg (Minnesota
Chippewa Tribe-White Earth Band) ancestry through her father and paternal
grandparents and Blackfeet and Cherokee ancestry through her mother and
maternal grandfather. Mother denied being enrolled in a tribe and could not
identify other relatives who might provide additional information. The
Agency did not ask Mother’s parents or brothers about K.S.’s possible Native
American ancestry.
On March 6, 2024, the Agency sent e-mail inquiries regarding
K.S.’s possible Native American ancestry to the Blackfeet Tribe of the
Blackfeet Indian Reservation of Montana, Cherokee Nation, Eastern Band of
Cherokee Indians; United Keetoowah Band of Cherokee Indians in
Oklahoma; and the Minnesota Chippewa Tribe—White Earth Band. As of
April 17, 2024, the Blackfeet Tribe and Minnesota Chippewa Tribe had not
responded to the inquiry, while the Cherokee Nation, the Eastern Band of
Cherokee Indians, and the United Keetoowah Band responded K.S. was not
eligible for membership. On April 23, 2024, the court found ICWA did not
apply.
14
DISCUSSION
I.
5
SUBSTANTIAL EVIDENCE SUPPORTS THE DISPOSITION ORDER
Following trial, the juvenile court declared K.S. a dependent child
of the juvenile court. The court found, by clear and convincing evidence, that
section 361, subdivision (c)(1) applied and reasonable efforts had been made
“to prevent or eliminate the need for removal” of K.S. from his home under
section 361, subdivision (d).
Section 361 allows the juvenile court to limit a parent’s control
over a child who has been adjudged a dependent child of the court. (Id., subd.
(a).) Subdivision (c) of section 361 allows removal of a dependent child from
the physical custody of his or her parents only where the juvenile court
makes at least one of five specified findings by clear and convincing evidence.
As relevant here, a child may be removed from his home if the court finds
“[t]here is or would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor if the minor were
returned home, and there are no reasonable means by which the minor’s
physical health can be protected without removing the minor from the
minor’s parent’s . . . physical custody.” (Id., subd. (c)(1), italics added.) The
5
Mother’s notice of appeal and opening brief state that Mother is
appealing both the jurisdiction and disposition orders. Mother’s argument,
however, is limited to the juvenile court’s disposition order under section 361,
subdivision (c) and does not address the juvenile court’s jurisdiction under
section 300, subdivisions (b)(1) and (j). Accordingly, Mother’s jurisdictional
challenge under section 300 is forfeited. (Cal. Rules of Court, rule 8.204(a);
Martine v. Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715,
728 [“‘[w]hen legal argument with citation to authority is not furnished on a
particular point, we may treat the point as forfeited and pass it without
consideration’”].)
15
court is required to “make a determination as to whether reasonable efforts
were made to prevent or to eliminate the need for removal of the minor from
his or her home . . . .” (Id., subd. (e).)
We review a removal order under the substantial evidence
standard. (In re M.D. (2023) 93 Cal.App.5th 836, 856–857.) “Because section
361, subdivision (c), requires proof by clear and convincing evidence, we must
determine ‘whether the record as a whole contains substantial evidence from
which a reasonable fact finder could have found it highly probable that the
fact was true.’ [Citations.] ‘We do not evaluate the credibility of witnesses,
attempt to resolve conflicts in the evidence or determine the weight of the
evidence. Instead, we draw all reasonable inferences in support of the
findings, view the record favorably to the juvenile court’s order and affirm the
order even if there is other evidence supporting a contrary finding.’ [Citation.]
The party challenging the juvenile court’s order has the burden to show there
is insufficient evidence to support the court’s decision.” (Id. at p. 857.)
Mother argues the juvenile court’s disposition order was not
supported by substantial evidence because she had obviated the “substantial
danger” to K.S. by the “reasonable means” of placing him in Wisconsin before
the hearing. (§ 361, subd. (c)(1).) Mother does not deny K.S. faced substantial
danger in her home; indeed, she acknowledges that is why she removed him.
She argues the court should have accepted her “reasonable means,” left K.S.
in her custody, but ordered that K.S. remain in Wisconsin until Mother could
show her home was safe.
Mother does not cite any authority supporting this argument.
Instead, she offers two cases, In re David M. (2005) 134 Cal.App.4th 822 and
Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, where children were
removed from their parents’ physical custody because of past risk or
16
speculative future risk. The issue here was neither past risk nor speculative
future risk. As mother concedes, her physical custody of K.S. presented an
immediate substantial danger. By her own acknowledgement, that is why she
removed K.S. to Wisconsin.
Mother also relies on In re Ashly F. (2014) 225 Cal.App.4th 803 to
support her claim that voluntary placement of K.S. in Wisconsin was “‘a
reasonable means’” of protecting K.S. The case is not helpful to Mother,
however. In In re Ashly F., the children were removed from a home after
physical abuse by their mother. The appellate court found the removal was
improper because the court had failed to consider existing reasonable means
of protecting the children “in their home,” including the option of removing
the mother from the home, leaving the children with their father. (Id. at p.
810.) Here, Mother was K.S.’s sole caretaker and if she were removed from
the home, no one would be left to care for K.S.
There is substantial evidence to support the juvenile court’s
findings that (1) there was substantial danger to K.S. if he were returned to
Mother’s custody and (2) there were no reasonable means to protect K.S.
without removing him from her custody. Mother, who had a history of
domestic violence, exposed K.S. to physical altercations between herself and
her boyfriend. When the police visited Mother’s home in February 2024, they
described the home as looking like “‘a boarding house for the homeless’” and
described it as an inappropriate living condition for a child. K.S. reported he
missed meals when living with Mother, that sometimes there was no food in
the refrigerator, and that he was left alone when Mother went to the store.
Mother removed K.S. from school to homeschool him, but acknowledged she
was not successful at homeschooling K.S. K.S. reported that Mother tried but
failed to teach him most days, K.S. had not submitted any schoolwork for
17
review, Mother failed to present K.S. for evaluation every 20 days as agreed
and had cancelled seven meetings with the entity reviewing her
homeschooling. Further, Mother has a history of substance abuse, with
several relapses after drug treatment programs and a history of unresolved
and untreated mental health issues.
We find no error in the juvenile court’s finding that reasonable
efforts were made to prevent or eliminate the need for removal of K.S. from
his home.
II.
THE JUVENILE COURT DID NOT SATISFY ITS DUTY OF FURTHER INQUIRY
Mother contends the juvenile court’s finding that ICWA did not
apply was erroneous because: (1) the Agency did not meet its duty of further
inquiry, including questioning additional family members and (2) two of the
potential tribes had not responded to the Agency by the trial date.
“In 1978, Congress enacted [ICWA] to ‘formalize[] federal policy
relating to the placement of Indian children outside the family home.’
[Citation.] Under ICWA’s state analogue, the California Indian Child Welfare
Act (Cal-ICWA; [citation]), courts and child welfare agencies are charged with
‘an affirmative and continuing duty to inquire whether a child . . . is or may
be an Indian child’ in dependency cases. [Citation.] Child welfare agencies
discharge this state law duty by ‘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 and where the child, the parents, or Indian
custodian is domiciled.’” (Dezi, supra, 16 Cal.5th at pp. 1124–1125.)
“‘[E]xtended family member’” includes, among other persons,
uncles and grandparents. (25 U.S.C. § 1903(2); see § 224.1, subd. (c).) A duty
18
of further inquiry exists when “the court, social worker, or probation officer
has reason to believe that an Indian child is involved in a proceeding, but does
not have sufficient information to determine that there is reason to know that
the child is an Indian child . . . .” (§ 224.2, subd. (e), italics added.) There is
reason to believe a child is Indian when there is “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.” (Id., subd. (e)(1).) The further inquiry
required includes, but is not limited to, interviewing parents and extended
family members, contacting the Bureau of Indian Affairs and the State
Department of Social Services for assistance, and contacting the relevant
tribe and “any other person that may reasonably be expected to have
information regarding the child’s membership, citizenship status, or
eligibility.” (Id., subd. (e)(2)(C).)
Based on Mother’s report of Native American ancestry, there was
reason to believe K.S. was an “Indian child” within the statutory meaning,
and the Agency was under a duty of further inquiry. The Agency did not
satisfy that duty because it did not interview Mother’s parents or brothers.
Mother further argues the Agency did not satisfy the duty of
further inquiry because two of the tribes identified by Mother as having a
possible connection to K.S. had not responded by the trial date. Citing In re
M.W. (2020) 49 Cal.App.5th 1034, the Agency argues that because no
response had come within six weeks, the duty was satisfied. In In re M.W.,
the Agency telephoned and twice faxed one tribe and mailed and twice
e-mailed the other tribe. (Id. at pp. 1046–1047.) The record here shows the
Agency sent the ICWA inquiry simultaneously by e-mail and certified mail to
the tribes, but it does not show any other contact or attempt to follow up.
Given the amount of information provided by Mother regarding K.S.’s
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possible Native American ancestry, the simultaneous transmission of an
ICWA inquiry by e-mail and certified mail, without any further attempt to
follow up, did not satisfy the Agency’s duty of further inquiry.
Under Dezi, we conditionally reverse the juvenile court’s
disposition order and remand the matter for further inquiry as required by
ICWA and Cal-ICWA. (Dezi, supra, 16 Cal.5th at pp. 1151–1152.)
DISPOSITION
The juvenile court’s April 23, 2024 disposition order is
conditionally reversed. The matter is remanded to the juvenile court for
compliance with the inquiry and notice requirements of sections 224.2 and
224.3. After inquiry has been made, the court shall make ICWA findings at a
noticed hearing. If evidence of K.S.’s Native American ancestry is uncovered,
the court shall proceed in conformity with ICWA and related California law.
If not, the court shall immediately reinstate its April 23, 2024 order.
GOODING, J.
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
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