In re D.A. CA4/2 ( 2024 )

Filed 10/16/24 In re D.A. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
In re D.A., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E083669
Plaintiff and Respondent, (Super.Ct.No. J296065)
v. OPINION
E.A.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Mansi Thakkar, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel and Landon Villavaso, Deputy County Counsel for
Plaintiff and Respondent.
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The sole issue in this appeal following the termination of parental rights is whether
the social services agency fulfilled its duty of initial inquiry under ICWA (25 U.S.C.
§ 1901 et seq.; ICWA). We find it did, reject the father’s claim to the contrary, and
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affirm.
I. BACKGROUND
In February 2023, plaintiff and respondent San Bernardino County Children and
Family Services (CFS) filed a dependency petition for D.A. The petition alleged both
parents had criminal and substance abuse histories and the whereabouts of both parents
were unknown. D.A., born just days earlier, had remained in the hospital, and CFS
obtained a detention warrant. At the initial hearing, which both parents attended, the
juvenile court ordered D.A. removed from the parents. The following month, the
juvenile court declared D.A. a dependent of the court, and in April 2024 it terminated
both parents’ parental rights to D.A. In doing so, the court found that ICWA did not
apply.
1
Undesignated statutory references are to the Welfare and Institutions Code, and
undesignated rule references are to the California Rules of Court. Additionally, “[t]he
language of both federal and state law uses the term ‘Indian,’” but “California courts
have used alternative terms, such as ‘American Indian’ or ‘Native American’; we use the
term ‘Indian’ throughout to reflect the statutory language.” (In re Dezi C. (2024) 16
Cal.5th 1112, 1125, fn. 1 (Dezi C.).)
2
A. Father’s ICWA Inquiry
On forms filed the same day as the initial hearing, defendant and appellant E.A.
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(father) indicated that one of his family members was a member of the Chumash tribe.
At the initial hearing, father stated: “I think my uncle belongs to the Chuma[sh] . . .
tribe.”
CFS’s subsequent jurisdiction/disposition report stated that father denied having
Indian ancestry. Father “reported that his uncle is part of the Chuma[sh] Tribe by
marriage, and not through blood relation. The father denied attending tribal schools,
living on reservations, or having tribal association. The father denied any additional
family members” having Indian ancestry.
Because father had indicated on a form that one of his family members was a
member of the Chumash tribe, CFS contacted the Santa Ynez Band of Chumash Indians
despite father’s subsequent denial of Indian ancestry. A CFS social worker emailed the
tribe, which responded by stating: “Family is NOT a member of Santa Ynez Band of
Chumash Indians.”
CFS’s section 366.26 report, filed in February 2024, stated that D.A.’s paternal
uncle denied knowledge of Indian ancestry. Interviewing father again, CFS reported that
father “believes his family only has Mexican Native Ancestry” and that a paternal aunt
“would most likely know more about it.”
2
The record and the appellate briefs variously refer to the tribe as “Chuma,”
“Chumas,” and “Chumash.”
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B. Mother’s ICWA Inquiry
At the initial hearing, when asked about whether she had Indian ancestry, A.G.
(mother) responded: “I’m not sure – I’m unsure. It’s on my grandfather’s side.” On
forms filed that day, mother indicated she did not know whether any of her family
members were members of a federally recognized Indian tribe.
In its jurisdiction/disposition report, CFS stated mother remained “unsure” about
having Indian ancestry and stated that her father, D.A.’s maternal grandfather, might have
additional information. D.A.’s maternal grandfather was interviewed a few days later
and denied having Indian ancestry. In a later interview, he reiterated his denial about
having Indian ancestry and clarified that there was no Indian ancestry on D.A.’s maternal
grandmother’s side either.
II. DISCUSSION
ICWA establishes minimum standards “for the removal of Indian children from
their families and the placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture.” (25 U.S.C. § 1902.) California’s counterpart
to ICWA (§ 224 et seq.; Cal-ICWA) imposes on juvenile courts and county welfare
departments “an affirmative and continuing duty to inquire” whether a child subject to a
section 300 petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55
Cal.App.5th 558, 566 (D.F.).) “This continuing duty can be divided into three phases:
the initial duty to inquire, the duty of further inquiry, and the duty to provide formal
ICWA notice.” (Ibid.) Only the initial duty is at issue in this appeal.
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Father’s opening brief contends that “the juvenile court and the child welfare
agency failed to discharge its statutory duty of initial inquiry.” CFS’s brief implicitly
argues only the duty of further inquiry is at issue, as it argues only that it “conducted an
adequate further inquiry of Indian ancestry.” Instead of accepting CFS’s implied
invitation to treat this issue as one of further inquiry, we address father’s argument as he
has framed it. He argues an adequate initial inquiry might have revealed additional
potential tribes (beyond the Chumash tribe) to contact as part of CFS’s further inquiry.
The initial duty applies in every dependency. (In re J.S. (2021) 62 Cal.App.5th
678, 686; see § 224.2, subd. (b).) The initial duty expands under section 224.2,
subdivision (b), when a child is removed from their home. Under that provision, “[i]f a
child is placed into the temporary custody of a county welfare department pursuant to
Section 306,” the department’s obligation includes asking the “extended family
members” about the child’s Indian status. (§ 224.2, subd. (b).) The Judicial Council
revised rule 5.481 to implement section 224.2, subdivision (b), by requiring inquiry of
extended family in every case in which the department seeks to place the child.
(Rule 5.481(a)(1).)
Our Supreme Court recently held “that error resulting in an inadequate initial Cal-
ICWA inquiry requires conditional reversal with directions for the child welfare agency
to comply with the inquiry requirement of section 224.2, document its inquiry in
compliance with rule 5.481(a)(5), and when necessary, comply with the notice provision
of section 224.3. When a Cal-ICWA inquiry is inadequate, it is impossible to ascertain
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whether the agency’s error is prejudicial.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1136
(Dezi C.).) Although the Court did “not have occasion to decide what constitutes an
adequate and proper inquiry necessary to satisfy section 224.2,” it noted that “the juvenile
court’s fact-specific determination that an inquiry is adequate, proper, and duly diligent is
‘a quintessentially discretionary function’ [citation] subject to a deferential standard of
review.” (Id. at p. 1141.) “‘“On a well-developed record, the court has relatively broad
discretion to determine whether the agency’s inquiry was proper, adequate, and duly
diligent on the specific facts of the case. However, the less developed the record, the
more limited that discretion necessarily becomes.”’” (Ibid.) Failures “to obtain
meaningful information or pursue meaningful avenues of inquiry—by, for example, . . .
failing to inquire further after a parent identified an extended family member with more
information about the child’s potential Indian ancestry” are relevant in assessing the
adequacy of initial Cal-ICWA inquiry. (Id. at p. 1151.)
Here, we are not reviewing a trial court’s resolution of an evidentiary conflict, but
the trial court’s implied finding that the department’s “inquiry and due diligence were
‘proper and adequate.’ ” (Dezi C., supra, 16 Cal.5th at p. 1134.) We thus are “not
concerned with the outcome” as to the likelihood of whether the child is an Indian child.
(Id. at p. 1144.) We do not limit our review to “[e]nforcing the requirement of an
adequate inquiry only in cases in which the record affirmatively demonstrates a reason to
believe the child is an Indian child.” (Id. at p. 1147.) Instead, we must “ensur[e] that
tribal heritage is acknowledged and inquired about in dependency cases.” (Id. at p.
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1148.) This requires us to engage in a searching review to protect the tribal interests that
Dezi C. explained are compelling and legally protected. (Ibid.) Yet the deferential
standard means an inquiry need not be perfect to be adequate.
We find no error in the juvenile court’s determination that CFS’s initial inquiry
was adequate, which is implied in its conclusion that ICWA did not apply. Father
contends that CFS’s initial inquiry was inadequate because it did not contact D.A.’s
paternal aunt, maternal aunt, and maternal uncle. In light of repeated denials by father of
Indian ancestry, a denial by a paternal uncle of the same, and an acknowledgment that an
earlier claim of Indian ancestry was based on D.A.’s great-uncle’s association through
marriage, CFS did not need to search for and ask the paternal aunt about Indian ancestry.
Although father identified the paternal aunt as someone who might have additional
information, in the context of CFS’s section 366.26 report where the identification was
made, the additional information father identified the paternal aunt as having is more
properly seen as information about “Mexican Native Ancestry,” not D.A.’s potential
Indian ancestry.
Similarly, CFS did not need to interview D.A.’s maternal aunt and uncle about
potential Indian ancestry in light of the maternal grandfather’s repeated denials. The
maternal aunt and uncle, which CFS mentioned in a September 2023 status review report
as family members interested in having visits with D.A., do not appear to have been
asked about Indian ancestry. We are satisfied nevertheless that CFS conducted an initial
inquiry “adequate to reach a reliable conclusion about the applicability of ICWA.” (Dezi
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C., supra, 16 Cal.5th at p. 1153 (conc. opn. of Kruger, J.); accord, id. at p. 1169 (dis. opn.
of Groban, J.) [“‘the focus of the court’s analysis should not be on the number of
individuals interviewed, but on whether the agency’s [Cal-ICWA] inquiry has yielded
reliable information about a child’s possible tribal affiliation’”].) Father has identified no
reason to think the maternal aunt and uncle might have information the maternal
grandfather, who expressly and repeatedly denied Indian ancestry, did not. Accordingly,
we find no error in the juvenile court’s determination that ICWA did not apply.
III. DISPOSITION
The orders terminating parental rights to D.A. are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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