In re K.C. CA4/1

Filed 6/14/23 In re K.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 K.C., et al., Persons Coming D081537
Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. Nos. J520852,
Plaintiff and Respondent, J520852AB)
v.
K.C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Conditionally reversed in part and remanded
with directions.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant
and Appellant.
Claudia G. Silva, County Counsel and Natasha C. Edwards, Senior
Deputy County Counsel.
K.C. (Father) appeals two orders arising from special hearings in the
Welfare and Institutions Code1 section 300 dependency proceedings for
minors, Kd.C. and Km.C.2 His sole contention on appeal is that the San
Diego County Health and Human Services Agency (Agency) and the juvenile
court failed to conduct an adequate initial inquiry under the Indian Child
Welfare Act (ICWA; 25 U.S.C. § 1901 et seq) and section 224.2. Specifically,
Father contends there was no inquiry into the Native American ancestry of
the paternal grandfather, who appeared at two hearings, and two paternal
relatives, whom the Agency contacted. The Agency concedes error. We
accept the concession, conditionally reverse the orders, and remand for the
limited purpose of compliance with ICWA.
BACKGROUND3
In September 2021, the Agency filed a section 300, subdivision (b),
dependency petitions for Km.C. and Kd.C., alleging then two- and three-year-
old minors (respectively) were at substantial risk of harm because Father was
physically abusing Mother and violating a criminal protective order (CPO).
The Agency placed the children in foster care.
At a detention hearing that month, the court detained Km.C. and Kd.C.
and ordered reunification services for the parents. The court also asked
Mother and maternal grandfather—both appeared at the hearing—about
their Native American ancestry. Maternal grandfather stated he was not
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 G.C. (Mother) is not a party to this appeal.
3 Because Father’s sole contention on appeal concerns ICWA, we limit
our factual background accordingly.
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aware of any such ancestry, but Mother said she had Native American
ancestry based on her recent DNA test. The court stated the DNA test did
not “necessarily qualif[y] as a basis to believe there is a specific tribal
registration” and found “[M]other’s family history . . . does not apply.”
At the initial jurisdiction and disposition hearing, Father denied any
known Native American ancestry. The court found without prejudice that
ICWA was inapplicable.
Around October 2021, the Agency called a paternal relative about
placement and mailed another paternal relative a relative notification
letter.4 There is no documentation the Agency asked these relatives about
their Native American ancestry.
That month, the paternal grandfather appeared at a jurisdiction and
disposition hearing, but the court did not inquire about his Native American
ancestry.
At the contested jurisdiction hearing in December 2021, the court found
true the allegations in the petitions. Although the paternal grandfather
again appeared, the court did not ask him about his Native American
ancestry. The Agency later spoke to the paternal grandfather, but there is no
documentation he was asked about his Native American ancestry.
In the meantime, Father completed his substance abuse assessment,
tested negative for alcohol and substances, and took domestic violence,
parenting, and education classes. Then in March 2022, Father was arrested
for violating two CPOs, both prohibiting him from coming within 100 yards of
Mother. According to the police report, Father and Mother were still living
together and had an altercation before the police arrived at the home. Father
4 It is unclear from the record exactly how these relatives are related to
the children.
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left the state after the incident and never completed the remainder of his
reunification services. Around the same time, Mother moved to another
county and filed a motion to transfer the case to that county. The Agency
agreed to the transfer.
At a special hearing on December 19, 2022, the court terminated
reunification services for Father and transferred the case to Mother’s county
of residence. The court again found without prejudice that ICWA was not
applicable. Father appealed.
DISCUSSION
In response to concerns regarding the separation of Native American
children from their tribes through adoption or foster care placement with
non-Indian families (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.)),
Congress enacted ICWA to give tribes the “right to intervene in or exercise
jurisdiction over a dependency proceeding involving the Indian child”5 (In re
I.F. (2022) 77 Cal.App.5th 152, 160). Under California law adopted pursuant
to ICWA, the juvenile court and Agency have an “affirmative and continuing
duty to inquire” whether a child “is or may be an Indian child.” (§ 224.2,
subd. (a); see Isaiah W., supra, at p. 9.)
Section 224.2 creates three distinct duties: the initial duty to inquire,
the duty of further inquiry, and the duty to provide formal ICWA notice. (In
re D.S. (2020) 46 Cal.App.5th 1041, 1052 (D.S.); In re D.F. (2020) 55
Cal.App.5th 558, 566.) Relevant here is the duty of initial inquiry. That duty
“begins with the initial contact, including, but not limited to, asking the party
5 An “ ‘Indian child’ ” is “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); see § 224.1, subd. (a).)
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reporting child abuse or neglect whether the party has any information that
the child may be an Indian child.” (§ 224.2, subd. (a).) The duty further
requires the juvenile court to ask, at “the first appearance in court of each
party,” whether each participant knows or has reason to know the child is an
Indian child. (§ 224.2, subd. (c).) “If a child is placed into the temporary
custody of a county welfare department pursuant to Section 306 or county
probation department pursuant to Section 307,” the Agency has a duty to ask
“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.” (§
224.2, subd. (b).)
The Agency “must on an ongoing basis include in its filings a detailed
description of all inquiries, and further inquiries it has undertaken, and all
information received pertaining to the child’s Indian status.” (Cal. Rules of
Court, rule 5.481(a)(5).)
When the facts are undisputed, as here, “we independently determine
whether ICWA’s requirements have been satisfied.” (D.S., supra, 46
Cal.App.5th at p. 1051.)
Father contends the Agency and court failed to fulfill their initial duty
of inquiry under subdivisions (a) to (c) of section 224.2. Father asserts
neither the court nor the Agency asked the paternal grandfather and
relatives about their Native American ancestry. The Agency concedes its
failure to ask the paternal relatives is inconsistent with subdivision (b) of
section 224.2, and it should have asked the paternal grandfather as well.
We question whether subdivision (b) of section 224.2 was triggered if
the children were not placed in temporary custody under section 306 or by
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the probation department pursuant to section 307.6 (See In re Robert F.
(2023) 307 Cal.Rptr.3d 492, 501-502 [duty to inquire extended family
members under section 224.2, subdivision (b), is triggered only when the
child is placed in temporary custody under section 306]; In re Ja.O. (2023) 91
Cal.App.5th 672, 681[[same]). Even so, we need not reach this question here
and conclude the duty of initial inquiry was not satisfied independently of
whether subdivision (b) applies.
Subdivision (c) imposed on the court a duty to inquire the paternal
grandfather about his Native American ancestry when he appeared at two of
the hearings. (§ 224.2, subd. (c).) The court, however, did not do so, and the
Agency never followed up with him. Because this falls short of the inquiry
obligations imposed by section 224.2, we accept the Agency’s concession.
Accordingly, conditional reversal and limited remand are appropriate to
ensure compliance with the initial duty to inquire.
DISPOSITION
The December 19, 2022, orders are conditionally reversed. The matter
is remanded to the court with directions to comply with the inquiry
provisions set forth in section 224.2. If, after completing its inquiry, neither
the Agency nor the juvenile court has reason to believe or reason to know the
children are Indian children, the orders shall be reinstated. If the Agency or
the juvenile court has reason to believe or reason to know either of the
6 Sections 306 and 307 authorize a social worker and the probation
department to take a child into temporary custody “without a warrant” in
certain situations, whereas section 340 provides for the issuance of protective
custody warrants. (§§ 306, subd. (a)(1) & (2), 307, 340, subd. (b)(2).)
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children is an Indian child, the juvenile court shall proceed accordingly. In
all other respects, the orders are affirmed.
By stipulation of the parties, the clerk of this court is directed to issue
the remittitur immediately. (Cal. Rules of Court, rule 8.272(c)(1).)
CASTILLO, J.
WE CONCUR:
DATO, Acting P. J.
KELETY, J.
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