In re E.B. CA4/1

Filed 5/11/23 In re E.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 E.B., a Person Coming Under the D081478
Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J520063)
Plaintiff and Respondent,
v.
J.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Alexander M. Calero, Judge. Conditionally reversed in part and remanded
with directions.
Lelah S. Fisher, under appointment by the Court of Appeal for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and
Respondent.
J.C. (Father) appeals the juvenile court’s order adopting a permanent
plan of guardianship for his daughter, E.B., under Welfare and Institutions
Code1 section 366.26.2 The sole issue on appeal is whether the San Diego
County Health and Human Services Agency (Agency) and the juvenile court
failed to conduct an adequate initial inquiry under section 224.2 into E.B.’s
possible Native American ancestry, as defined by the Indian Child Welfare
Act (ICWA; 25 U.S.C. § 1901 et seq.). The Agency concedes it did not conduct
an adequate initial inquiry but contends the error is harmless. We accept the
concession but disagree the error is harmless. Applying the standard of
prejudice set forth in In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin
M.), we conclude that the record reveals the existence of readily obtainable
information from extended family members likely to bear meaningfully on
whether the child is an Indian child. Because the Agency failed to inquire of
the available extended family members, we conditionally reverse the court’s
ICWA finding and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND3
In June 2019, the Agency filed a section 300, subdivision (b)(1)
dependency petition for eight-year-old E.B., alleging that she had been
sexually abused by Father or there was substantial risk of sexual abuse.
Both parents indicated they had no known Native American ancestry
in their ICWA-010 forms and again when asked by the Agency.
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 M.B. (Mother) is not a party to this appeal.
3 Because Father’s sole contention on appeal challenges the Agency’s
compliance with its section 224.2, subdivision (b) initial inquiry duties, we
limit our discussion of the facts and procedural history to information
necessary to determine that issue.
2
At the June 2019 detention hearing, the trial court found the Agency
made reasonable inquiry into E.B.’s Native American ancestry and ICWA did
not apply. The court detained E.B. and ordered reunification services for
parents.
The parents engaged in reunification services, including individual
therapy. The therapist reported Father showed no empathy toward E.B.,
blamed E.B. for her own removal, and accused E.B. of being a “ ‘pathological
liar.’ ” Father denied the allegations of sexual abuse. Mother stated the
dependency case was an “ ‘injustice’ ” to her family and denied E.B. was
sexually abused. The Agency concluded that Mother’s inability to believe
E.B. was affecting E.B. emotionally and behaviorally. Both parents failed to
reunify with E.B. and reunification services were terminated.
Between July 2020 and December 2021, the Agency spoke with a
maternal uncle or cousin4 over the phone about possibly being E.B.’s
caregiver; it received contact information for a maternal aunt; and it had
contact with seven other maternal relatives (six maternal aunts plus a
“maternal relative”) during a child and family team meeting. But the record
does not indicate that the Agency asked any of them about the family’s
Native American ancestry. The Agency nevertheless concluded that ICWA
was inapplicable in its August 2020 and April 2021 reports. At the six- and
12-month review hearings, the court found that the Agency reasonably
inquired into E.B.’s possible Native American ancestry and that ICWA did
not apply.
The Agency placed E.B. with the maternal uncle or cousin and his wife
in March 2022. The caregivers said they were willing and committed to being
4 The record is conflicting as to whether J.R. is Mother’s uncle or cousin.
We are unable to discern from the conflicting record which is correct.
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E.B.’s legal guardians. In its January 2023 report, the Agency recommended
that they be E.B.’s legal guardians.
At the contested section 366.26 hearing on January 5, 2023, the
juvenile court again found without prejudice that ICWA did not apply. It also
selected a permanent plan of legal guardianship for E.B., appointed the
relative caregivers as her guardians, and terminated jurisdiction.
Father appealed.
DISCUSSION
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 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.” (In re D.F. (2020) 55 Cal.App.5th 558,
566.) If a child is placed into the Agency’s temporary emergency custody
under section 306, the initial duty of inquiry includes “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.” (§ 224.2, subd. (b).)5 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
5 If the initial inquiry reveals a reason to believe the child is an Indian
child, then further inquiry into whether there is a reason to know the child is
an Indian child is required. (In re D.F., supra, 55 Cal.App.5th at pp. 566–
567.) If there is reason to know that a child is an Indian child (§ 224.2, subd.
(d)), then notice must be sent to the pertinent tribe to allow the tribe to make
a determination regarding the child’s tribal membership. (In re D.F., at
pp. 567–568.) Further inquiry is not an issue on this appeal.
4
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].)
The Agency concedes that under section 224.2, subdivision (b), “it had a
duty to conduct initial ICWA inquiry of available extended family members
because E.B. was taken into temporary emergency custody by law
enforcement and the Agency pursuant to section 306.” (See In re Robert F.
(Apr. 12, 2023, E080073) ___ Cal.App.5th ___ [2023 Cal.App. LEXIS 277]
[duty to inquire of extended family members under section 224.2, subdivision
(b) is triggered only when the child is taken into temporary emergency
custody under section 306].) The Agency also concedes that under section
224.2, subdivision (c), “the juvenile court should have inquired of the
maternal uncle (or cousin) and his wife at the hearings at which they
appeared.”
We agree and accept the Agency’s concessions. During the dependency
proceedings, the Agency had contact with the maternal uncle or cousin and
his wife; it had contact information for one maternal aunt; and it had in-
person contact with seven other maternal relatives at the child and family
team meeting. Nothing in the record suggests the Agency ever asked these
extended family members about the family’s Native American ancestry. We
therefore conclude that there is insufficient evidence to establish the Agency
adequately fulfilled its initial ICWA inquiry obligations, and the juvenile
court erred in finding that ICWA did not apply. (See, e.g., Benjamin M.,
supra, 70 Cal.App.5th at p. 744 [failure to ask father’s known relatives about
possible Indian ancestry violated ICWA requirements].)
5
The parties dispute whether the error was harmless. The Courts of
Appeal have applied varying analytical frameworks to evaluate whether
ICWA initial inquiry errors are prejudicial or harmless. We need not address
these various approaches because this division has adopted the approach
articulated in Benjamin M., supra, 70 Cal.App.5th 735. (In re Y.M. (2022) 82
Cal.App.5th 901, 916 (Y.M.).) Under that standard, “a court must reverse
where the record demonstrates that the agency has not only failed in its duty
of initial inquiry, but where the record indicates that there was readily
obtainable information that was likely to bear meaningfully upon whether
the child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
The “standard does not require ‘proof of an actual outcome (that the parent
may actually have Indian heritage).’ [Citation.] The missing information
need only be relevant to the ICWA inquiry, ‘whatever the outcome will be.’ ”
(In re Ricky R. (2022) 82 Cal.App.5th 671, 679; id. at p. 680 [applying
Benjamin M. standard and finding reversible initial inquiry error where
agency “asked the parents about Indian ancestry” but “failed to ask extended
family members about it”].)
On this record, we cannot say the Agency’s failure to comply with its
initial inquiry duties was harmless. Extended family members were readily
available and their responses would likely have borne meaningful
information, regardless of the outcome of the inquiry. (Benjamin M., supra,
70 Cal.App.5th at p. 744.) Moreover, the fact that the parents denied any
Indian heritage does not relieve the Agency of its “broad duty” to inquire of
readily ascertainable extended family members whether the child is an
Indian child. (In re Y.W. (2021) 70 Cal.App.5th 542, 554.) A contrary rule
would “ignore[ ] the reality that parents may not know their possible
relationship with or connection to an Indian tribe.” (Ibid.; In re S.R. (2021)
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64 Cal.App.5th 303, 314 [“the children’s parents apparently had no idea of
their family’s connection to the . . . tribe . . . , even though the children’s
great-grandmother was a member”]; see also In re T.G. (2020) 58 Cal.App.5th
275, 295 [noting that ICWA’s “expansive” duty of inquiry “is premised on the
commonsense understanding that, over time, Indian families, particularly
those living in major urban centers . . . , may well have lost the ability to
convey accurate information regarding their tribal status”]; In re Rylei S.
(2022) 81 Cal.App.5th 309, 321–322 [same].) Thus, we conditionally reverse
the juvenile court’s ICWA finding and remand the matter for the limited
purpose of ensuring compliance with the ICWA inquiry obligations.
Given the importance of expediency and need for finality, we encourage
the parties to stipulate to immediate issuance of the remittitur in this case.
(Cal. Rules of Court, rule 8.272(c)(1).)
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DISPOSITION
The juvenile court’s finding that ICWA does not apply and the portion
of its order of January 5, 2023 terminating jurisdiction are conditionally
reversed. The matter is remanded to the court with directions to comply with
the inquiry provisions set forth in section 224.2, subdivision (b). If, after
determining that an adequate inquiry was made by the Agency consistent
with the reasoning in this opinion, the court finds that ICWA applies, the
court shall vacate its existing order approving the plan of permanent
guardianship and proceed in compliance with ICWA and related California
law. If the court instead finds that ICWA does not apply, it shall reinstate its
ICWA finding and its order terminating jurisdiction. In all other respects,
the court’s order of January 5, 2023 is affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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