In re Dominick D.

• Court: California Court of Appeal
• Decided: August 23, 2022
• Docket: E078370
• Status: Published

Opinion

Filed 8/23/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re Dominick D. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E078370

Plaintiff and Respondent, (Super.Ct.Nos. J290289 & J290290) v. OPINION T.T.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Annemarie G.

Pace, Judge. Affirmed in part, vacated in part, and remanded with directions.

Christine E. Johnson, under appointment by the Court of Appeal, for Defendant

and Appellant.

Tom Bunton, County Counsel and Richard W. Van Frank, Deputy County

Counsel, for Plaintiff and Respondent.

1 On this appeal from the juvenile court’s dispositional findings and orders, T.T.

(Mother) challenges the court’s finding that the Indian Child Welfare Act of 1978 (25

U.S.C. §§ 1901 et seq.) (ICWA) does not apply to the dependency proceedings

concerning her son, Dominick D. (Welf. & Inst. Code, § 224.2, subd. (i)(2), unlabeled

statutory citations refer to this code.) She argues the juvenile court failed to ensure that

San Bernardino County Children and Family Services (CFS) discharged its duty of initial

inquiry into Dominick’s possible Indian1 ancestry under section 224.2, subdivision (b).

We agree. We decline to address the parties’ arguments concerning harmlessness,

however, because ICWA inquiry and notice errors do not warrant reversal of the juvenile

court’s jurisdictional or dispositional findings and orders other than the finding that

ICWA does not apply. (In re Brooke C. (2005) 127 Cal.App.4th 377, 385-386 (Brooke

C.); Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 268 (Tina L.); In re Veronica

G. (2007) 157 Cal.App.4th 179, 188 (Veronica G.); see In re K.B. (2009) 173

Cal.App.4th 1275, 1282 (K.B.); contra, Nicole K. v. Superior Court (2007) 146

Cal.App.4th 779, 785 (Nicole K.).) We accordingly vacate that finding and remand for

compliance with ICWA and related California law, but we otherwise affirm.

BACKGROUND

On August 22, 2021, CFS responded to a referral alleging that Mother had left her

five-month-old son, Dominick, without appropriate arrangements. Mother reportedly

1 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)

2 showed up unannounced at the home of N.M., a woman she had met through a Facebook

group, and handed Dominick to her to watch while Mother went to Nevada. N.M. told

Mother that she could not watch the child and did not even know the child’s or Mother’s

name. Mother provided her name and phone number and the baby’s name, and she then

left. N.M. ran after Mother, who drove off with an unknown male. N.M. observed that

there was no child car seat in Mother’s vehicle, and Dominick had been left with no

diaper bag, formula, or bottles. N.M. called the county sheriff to report the incident and

request that someone pick up the child.

The CFS social worker spoke with W.M., who was initially identified by law

enforcement as Dominick’s maternal grandfather but is identified in later reports as the

child’s maternal great-grandfather.2 W.M. said he had arrived from Texas approximately

two months earlier to help Mother and was Dominick’s primary caregiver. He confirmed

that Mother also has an older daughter who lives with her father. (The older daughter is

not a subject of this appeal.) There is no indication that CFS asked W.M. whether

Dominick is or may be an Indian child.

2 The responding deputy’s identification of W.M. as Mother’s father or Dominick’s maternal grandfather appears to have been in error. Mother identified W.M. as her grandfather and named a different person as her father, and W.M. is thereafter identified in the record as the child’s maternal great-grandfather. Grandparents are included in the statutory definition of “‘extended family member,’” but great- grandparents are not. (25 U.S.C. § 1903(2); Welf. & Inst. Code § 224.1, subd. (c).) The distinction ultimately has no impact on our analysis because W.M., who had been Dominick’s primary caregiver for two months, is included within “others who have an interest in the child,” for whom the statutory duty of initial inquiry is the same as for “extended family members.” (§ 224.2, subd. (b).)

3 CFS filed a petition alleging Dominick is a person described by section 300,

subdivisions (b)(1) and (g)(3). The petition’s Indian Child Inquiry Attachment, Judicial

Council form ICWA-010(A), states that the CFS social worker asked Mother about

Dominick’s Indian status on August 24, 2021, and the inquiry gave no reason to believe

he is or may be an Indian child. Mother was present at the detention hearing on

August 25, 2021. In response to the court’s inquiry, Mother stated she had no

information that she has Indian ancestry. She stated that Dominick’s father was

unknown. Mother filed a Judicial Council form ICWA-020, Parental Notification of

Indian Status, stating she has no known Indian ancestry. Mother also completed a Family

Find and ICWA Inquiry form (CFS 030A), checking the box for “Unknown” in response

to the question, “Do you have/may have Native American Ancestry?” The court found a

prima facie case that Dominick came within section 300, ordered him detained from

Mother, and set a jurisdiction and disposition hearing.

The CFS social worker met with Mother on August 31, 2021, and took a family

history in which Mother identified her father, mother, and three sisters, two of whom are

adults. In response to the social worker’s inquiries, both Mother and maternal aunt T.D.

denied Indian ancestry. The social worker also interviewed maternal great-grandfather

M.W. but did not ask him about Indian ancestry. After conducting an emergency

assessment, CFS placed Dominick in the temporary care of T.D. There is no indication

in the record concerning CFS’s efforts to locate or contact the child’s maternal

4 grandparents or his other adult maternal aunt or to ask them about Dominick’s possible

Indian ancestry. (See § 224.2, subd. (b); § 309, subd. (e)(1).)

The juvenile court found true the allegations that Mother failed to provide a safe

and appropriate living arrangement for Dominick, and that Mother has untreated mental

illness that impairs her ability to provide appropriate care and supervision for the child.

The court found Dominick’s father was unknown and that ICWA did not apply to the

child. The court removed Dominick from Mother’s custody, placed him in the home of

T.D., and ordered reunification services for Mother.

DISCUSSION

ICWA was enacted to curtail “abusive child welfare practices that resulted in the

separation of large numbers of Indian children from their families and tribes through

adoption or foster care placement, usually in non-Indian homes.” (Mississippi Band of

Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) “ICWA reflects a congressional

determination to protect Indian children and to promote the stability and security of

Indian tribes and families by establishing minimum federal standards a state court must

follow before removing an Indian child from his or her family.” (In re T.G. (2020) 58

Cal.App.5th 275, 287.) In a juvenile dependency proceeding, an Indian child is any

unmarried person who is under age 18 and is either (a) a member of a federally

recognized Indian tribe or (b) is eligible for membership in a federally recognized Indian

tribe and is the biological child of a member of a federally recognized Indian tribe. (25

U.S.C. § 1903(4) & (8); see § 224.1, subd. (a).)

5 To determine whether ICWA applies to a dependency proceeding, the juvenile

court and CFS have “an affirmative and continuing duty to inquire whether a child for

whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian

child.” (§ 224.2, subd. (a).) This duty to inquire consists of two phases—the duty of

initial inquiry and the duty of further inquiry. (In re D.F. (2020) 55 Cal.App.5th 558,

566.) The duty of initial inquiry begins at the referral stage when CFS must ask “the

party reporting child abuse or neglect whether the party has any information that the child

may be an Indian child.” (§ 224.2, subd. (a).) Once a child is taken into temporary

custody, the duty of initial inquiry includes asking the child, parents, legal guardian,

extended family members, and others who have an interest in the child whether the child

is or may be an Indian child. (§ 224.2, subd. (b); § 306, subd. (b).) Extended family

members include adults who are the child’s stepparents, grandparents, aunts, uncles,

brothers, sisters, nieces, nephews, or first or second cousins. (25 U.S.C. § 1903(2);

§ 224.1, subd. (c).) The juvenile court must ask each participant at the first appearance

“whether the participant knows or has reason to know that the child is an Indian child,”

and the court must “instruct the parties to inform the court if they subsequently receive

information that provides reason to know the child is an Indian child.” (§ 224.2,

subd. (c); see 25 C.F.R. § 23.107(a).) The court must also order each parent to complete

a Judicial Council form ICWA-020, Parental Notice of Indian Status. (Cal. Rules of

Court, rule 5.481(a)(2)(C) & (a)(3).)

6 If the initial inquiry gives the juvenile court or CFS “reason to believe that an

Indian child is involved in a proceeding,” then “further inquiry regarding the possible

Indian status of the child” must be made. (§ 224.2, subd. (e).) Mother does not contend

that there is “reason to believe” Dominick is an Indian child, so only the duty of initial

inquiry is at issue here.

CFS is required to document its ICWA inquiry efforts throughout the proceedings,

beginning with the petition, which must be filed with a completed Judicial Council form

ICWA-010(A), Indian Child Inquiry Attachment (Cal. Rules of Court, rule 5.481(a)(1)).

All filings thereafter must include “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).) If the court finds that CFS has complied

with its duty of inquiry and there is no reason to know that the child is an Indian child,

then the court may find that ICWA does not apply. (§ 224.2, subd. (i)(2); Cal. Rules of

Court, rule 5.481(b)(3)(A).) Before the juvenile court makes a finding that ICWA does

not apply, it must “first ensur[e] that [CFS] has made an adequate inquiry under ICWA

and California law, and if necessary, the court must continue the proceedings and order

[CFS] to fulfill its responsibilities.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 431.)

A juvenile court’s finding that ICWA does not apply implies “that social workers had

fulfilled their duty of inquiry.” (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) “We

review a court’s ICWA findings for substantial evidence. [Citations.] ‘We must uphold

the court’s orders and findings if any substantial evidence, contradicted or

7 uncontradicted, supports them, and we resolve all conflicts in favor of affirmance.’

[Citation.] Mother, as the appellant, ‘has the burden to show that the evidence was not

sufficient to support the findings and orders.’ [Citation.]” (Ibid.)

Mother argues the juvenile court’s finding that ICWA does not apply to Dominick

is not supported by substantial evidence because CFS did not discharge its statutory duty

of initial inquiry. First, CFS failed to ask “the party reporting child abuse or neglect

whether the party has any information that the child may be an Indian child.” (§ 224.2,

subd. (a).) Second, CFS did not ask maternal great-grandfather W.M. about Dominick’s

potential Indian status, as required of “others who have an interest in the child.” (§ 224.2,

subd. (b).) Third, CFS failed to contact three of the extended family members identified

by Mother—maternal grandmother, maternal grandfather, and maternal aunt S.—to ask

them “whether the child is, or may be, an Indian child.” (§ 224.2, subd. (b).) CFS

expressly concedes that it failed to ask the reporting party or W.M. about Dominick’s

Indian ancestry, and by failing to address Mother’s contention regarding extended family

members, CFS implicitly concedes that it did not make any ICWA inquiry of maternal

grandparents or maternal aunt S. (See People v. Bouzas (1991) 53 Cal.3d 467, 480;

People v. Isaac (2014) 224 Cal.App.4th 143, 147, fn. 4.) We agree with Mother that by

failing to ask the reporting party, W.M., the maternal grandparents, and maternal aunt S.

about Indian ancestry, CFS failed to discharge its duty of initial inquiry.

CFS argues that any ICWA inquiry error was harmless, and Mother argues that it

was not. We need not address those arguments, because ICWA inquiry and notice errors

8 do not warrant reversal of the juvenile court’s jurisdictional or dispositional findings and

orders other than the ICWA finding itself. (Brooke C., supra, 127 Cal.App.4th at

pp. 385-386; Tina L., supra, 163 Cal.App.4th at p. 268; Veronica G., supra, 157

Cal.App.4th at p. 188; see K.B, supra, 173 Cal.App.4th at p. 1282; contra, Nicole K.,

supra, 146 Cal.App.4th at p. 785.) The First District recently reached a similar

conclusion in In re S.H. (Aug. 12, 2022, A163623) __ Cal.App.5th__ [2022 Cal.App.

Lexis 694].) We accordingly vacate the finding that ICWA does not apply, but we

otherwise affirm and direct the juvenile court on remand to order CFS to comply with its

inquiry and (if applicable) notice obligations under ICWA and related California law.

DISPOSITION

The finding that ICWA does not apply is vacated. The juvenile court is directed to

order CFS to comply with its inquiry and (if applicable) notice obligations under ICWA

and related California law. In all other respects, the dispositional findings and orders are

affirmed.

MENETREZ J. We concur:

RAMIREZ P. J.

RAPHAEL J.