Filed 5/31/22 In re K.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of San Diego County, Rohanee Zapanta, Judge. Conditionally reversed and remanded with directions.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent.

P.B. (Mother) appeals from orders issued at a January 26, 2022, review hearing pertaining to her daughter, K.T. She contends the juvenile court erred in finding that the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.) did not apply. Counsel for Mother and the San Diego County Health and Human Services Agency (Agency) have conferred and agree that the Agency’s investigation under ICWA was inadequate. The parties filed a joint stipulation seeking the issuance of an immediate remittitur. We accept the stipulation, conditionally reverse, and remand for the limited purpose of ensuring compliance with ICWA’s requirements.

FACTUAL AND PROCEDURAL BACKGROUND[1]

Mother fostered K.T. for over four years and adopted her in 2011. In September 2020, the Agency filed a petition alleging then 15-year-old K.T. came within the meaning of Welfare and Institutions Code section 300, subdivision (a), because Mother had “choked the child” and has a history of using inappropriate discipline.[2] Mother told the social worker that K.T. did not have any Native American ancestry. Mother later represented that she had possible Native American heritage with the Seminole tribe in Florida through the maternal great-great-great grandmother.

The Agency sent an ICWA-030 inquiry to the Seminole Tribe of Florida that provided the following information: Mother’s name and date of birth; maternal grandmother’s name and date of birth; maternal great-grandmother’s name and date of birth; the maternal great-great-grandmother’s name; and the maternal great-great-great-grandmother’s name. The record does not contain a response from the Seminole Tribe of Florida. In December 2020, the juvenile court concluded that ICWA did not apply and found that reasonable inquiry had been made regarding the child’s Indian ancestry.

DISCUSSION

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) [adopting federal definition of “ ‘Indian child’ ”].) In dependency proceedings, 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).) “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.)

At the first appearance by a parent in any dependency case, the juvenile court must “[a]sk each participant present whether the participant knows or has reason to know the child is an Indian child” and “[o]rder the parent, . . . to complete Parental Notification of Indian Status (form ICWA-020).” (Cal. Rules of Court, rule 5.481(a)(2)(A), (C); see also § 224.2, subd. (c).)[3] The Agency’s 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).)[4] 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.)

We review a juvenile court’s findings that the Agency has made reasonable inquiries regarding a child’s possible Indian ancestry under ICWA and that the Agency has complied with ICWA’s notice requirements, or that no such notice is required, for substantial evidence. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)

Mother contends, and the Agency concedes, that the Agency and the juvenile court did not comply with ICWA by failing to conduct adequate inquiry of the relatives available to it. The Agency also did not review K.T.’s dependency adoption file, ask Mother for information about the child’s biological family, or pursue further inquiry into the possible Native American ancestry of K.T.’s biological family. We agree.

Mother represented that K.T. had no contact with K.T.’s biological family but said that K.T.’s biological mother was “ ‘heavyset’ ” and had “ ‘anger issues.’ ” This information suggests that Mother knows the identity of K.T.’s biological family. However, there is no indication in the record that the Agency asked Mother for any names and contact information for K.T.’s biological family. (In re Y.W. (2021) 70 Cal.App.5th 542, 552–553 [Department failed to satisfy its duty to inquire by not “making meaningful efforts to locate and interview [the child’s] biological parents.”].)

Additionally, the Agency had contact with K.T.’s adult adoptive sister but failed to ask her about possible Indian heritage. Mother also informed the Agency that she had a “large family” including three brothers and three sisters but there is nothing in the record showing that the Agency asked Mother for the names and contact information of these individuals. Moreover, K.T. was old enough for the social worker to inquire of her regarding any Native American ancestry. (§ 224.2, subd. (b).)

Courts and agencies are duty-bound to inquire into a child’s potential Native American ancestry to ensure protection of tribal interests. (In re A.R. (2022) 77 Cal.App.5th 197, 207.) Absent such inquiry, “tribes effectively have no mechanism for ascertaining whether they have an interest in the care and well-being of any specific child.” (Ibid.) The failure to conduct adequate inquiry also leaves a case vulnerable to collateral attack in the event Native American heritage is later discovered. (Id. at p. 208.) Where, as here, there is an inadequate initial inquiry, under ICWA and related California law, “the error is in most circumstances . . . prejudicial and reversible.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 435 [“Speculation as to whether extended family members might have information likely to bear meaningfully on whether the child is an Indian child has no place in the analysis of prejudicial error. . . .”]; In re A.R., at p. 202 [“the failure to conduct the inquiry in each case constitutes a miscarriage of justice”].)[5]

Because substantial evidence does not support the juvenile court’s findings that ICWA did not apply and that a reasonable inquiry had been made into K.T.’s possible Indian ancestry, we reverse the orders issued at the January 26, 2022, review hearing with a limited remand for the Agency and the court to comply with ICWA and section 224.2.[6]

DISPOSITION

The orders issued at the January 26, 2022, hearing are conditionally reversed and the matter is remanded to the juvenile court with directions that within 30 days of the remittitur the Agency must file a report demonstrating its compliance with the inquiry provisions of ICWA and section 224.2, subdivision (b), and, if required, conduct further inquiry under section 224.2, subdivision (e). Within 45 days of the remittitur, the juvenile court must conduct a hearing to determine if the Agency’s investigation satisfied its affirmative duty to investigate. The juvenile court has the discretion to adjust these time periods on a showing of good cause.

If neither the Agency nor the juvenile court has reason to believe or to know that K.T. is an Indian child, the orders issued at the January 26, 2022, hearing shall be reinstated. Alternatively, if after completing the inquiry the Agency or the juvenile court has reason to believe or to know that K.T. is an Indian child, the court shall proceed accordingly. The remittitur shall issue immediately. (Rule 8.272(c)(1).)

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

AARON, J.

[1] Because Mother’s challenge on appeal is limited to ICWA compliance, we limit our recitation of the facts and procedural history to those necessary to determine that issue.

[2] Undesignated statutory references are to the Welfare and Institutions Code.

[3] Further rule references are to the California Rules of Court.

[4] 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 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]].)

[5] We also note that an ICWA-020 form is not in the record and it appears that the juvenile court never ordered Mother to complete the form. (Rule 5.481(a)(2)(C).)

[6] Before reversing or vacating a judgment based upon a stipulation of the parties, an appellate court must find “both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.” (Code Civ. Proc., § 128, subd. (a)(8).)

The present case involves reversible error because the parties agree, and we concur, that the Agency failed to comply with ICWA and related California provisions. Because this case would be subject to reversal to permit compliance with ICWA and corresponding California statutes and rules absent the parties’ stipulation, a stipulated remand advances the interests identified by Code of Civil Procedure section 128, subdivision (a)(8). (See In re Rashad H. (2000) 78 Cal.App.4th 376, 379–382.)