Filed 10/30/23 In re J.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.B., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E081657
Plaintiff and Respondent, (Super.Ct.No. DPIN2200015)
v. OPINION
A.B.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Natalie M. Lough, Judge.
Conditionally reversed and remanded with directions.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant.
Gregory P. Priamos, County Counsel, and Larisa R-McKenna, Deputy County
Counsel, for Plaintiff and Respondent.
1 A.B. (Mother) is the mother of 16-month-old J.B. Mother appealed from a
judgment terminating her parental rights as to the child. (Welf. & Inst. Code,1 § 366.26.)
Mother filed an opening brief contending that the Riverside County Department of Public
Social Services (the Department) and the juvenile court failed to adequately comply with
the inquiry requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et
seq.; Cal. Rules of Court, rule 5.480 et seq.) On October 19, 2023, the parties filed a
joint application and stipulation for a conditional reversal of judgment and remand. After
our own careful review of the entire record, we conclude that the Department and the
juvenile court did fail to adequately comply with the inquiry requirements of ICWA, and
we reverse and remand with directions.
FACTUAL AND PROCEDURAL HISTORY
The child was placed in protective custody in July 2022 at 27 days’ old, after
Mother brought him to a hospital stating he was not breathing, and medical findings
showed the child had two bilateral subdural hematomas and bruising and scratches on his
body. Mother denied the child was shaken and noted that she lived with M.J. (Father)
and a paternal uncle. Mother later disclosed Father being rough with the child and
expressed her concerns to the paternal grandmother about Father “‘man handling’” the
child. After Father was arrested, Mother moved in with the paternal grandmother. The
social worker spoke with the paternal grandmother but did not inquire whether the family
had Native American ancestry.
1 All future statutory references are to the Welfare and Institutions Code.
2 A dependency petition on behalf of the child was filed on July 20, 2022, pursuant
to section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), (e)
(severe physical abuse of child under five years of age), and (g) (no provision for
support). Both parents denied Native American ancestry orally and through signed
ICWA-020 Parental Notification of Indian Status (ICWA-020) forms. The Department
reported that an ICWA inquiry of the parents gave them no reason to believe the child
was an Indian child.
The detention hearing was held on July 21, 2022. Mother, Father, the maternal
grandparents, and a maternal great-aunt were present. The juvenile court noted that it had
Mother and Father’s signed ICWA-020 forms and informed the parents that if they heard
anything about having Native American heritage through a relative, they needed to share
that information with the Department. The court formally detained the child from
parental custody and found the Department had conducted a sufficient ICWA inquiry and
that ICWA did not apply. Although the court informed the parents that they were
required to disclose any Native American heritage, the court did not personally inquire of
the parents or the maternal relatives present in court if they had Native American
ancestry.
Both parents again denied Native American ancestry in August 2022. The
Department reported that ICWA did not apply. At an August 23, 2022, hearing, the
parents, the maternal grandparents, the paternal grandmother, and the paternal aunt were
3 present. However, no ICWA inquiry was conducted of these relatives by the juvenile
court.
The Department had contact information for the maternal grandparents, the
paternal grandmother, the paternal aunt, and the maternal great-aunt. The Department
spoke with the maternal grandfather, the paternal grandmother, and the maternal great-
aunt as to placement of the child, but there is no indication in the record that an ICWA
inquiry was conducted of these relatives. The Department was also aware that Mother
had an older brother and older sister. Father did not want the child placed with the
maternal grandparents or Mother, but instead with the paternal grandmother, the paternal
aunt, a paternal great-uncle, or a paternal cousin.
The contested jurisdictional/dispositional hearing was held on November 8, 2022.
The parents, the maternal grandmother, the maternal aunt, the paternal grandmother, and
the paternal aunt were present in court. The maternal grandfather and paternal cousins
were also present but were excluded from the courtroom. The juvenile court did not
question these relatives as to their Native American ancestry. The court found true the
allegations in the petition, declared the child a dependent of the court, denied the parents
reunification services, and set a section 366.26 hearing. The court also found the
Department had conducted a sufficient ICWA inquiry, and that ICWA did not apply.
The juvenile court again found that ICWA did not apply at a de facto parent
hearing on March 8, 2003.
4 On May 24, 2023, Father reported having no Native American ancestry on his side
of the family. On June 15, 2023, Mother also reported having no Native American
ancestry on her side of the family. The Department reported that it had received no new
information to indicate ICWA applies to the proceedings. The child remained in a
medically fragile foster home with caregivers who desired to adopt him.
Mother and Father were present at the contested section 366.26 hearing held
June 27, 2023. The juvenile court found the child was adoptable and terminated parental
rights. Mother timely appealed.
STIPULATION
A stipulated reversal under Code of Civil Procedure section 128,
subdivision (a)(8), is permissible in a dependency case when the parties agree that
reversible error occurred, and the stipulated reversal will expedite the final resolution of
the case on the merits. (In re Rashad H. (2000) 78 Cal.App.4th 376, 380-382.) In the
stipulation, the parties agree that the juvenile court erred under section 224.2,
subdivision (c), when it failed to inquire of the maternal grandparents, the maternal great-
aunt, the paternal grandmother, and the paternal aunt who were present in court on
July 21, 2022, and August 23, 2022, as to their Native American ancestry, that substantial
evidence did not support the juvenile court’s findings that ICWA did not apply, and that a
conditional reversal of the judgment is appropriate with directions to the juvenile court to
make a proper ICWA inquiry.
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Filed 10/30/23 In re J.B. 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 J.B., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E081657
Plaintiff and Respondent, (Super.Ct.No. DPIN2200015)
v. OPINION
A.B.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Natalie M. Lough, Judge.
Conditionally reversed and remanded with directions.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant.
Gregory P. Priamos, County Counsel, and Larisa R-McKenna, Deputy County
Counsel, for Plaintiff and Respondent.
1 A.B. (Mother) is the mother of 16-month-old J.B. Mother appealed from a
judgment terminating her parental rights as to the child. (Welf. & Inst. Code,1 § 366.26.)
Mother filed an opening brief contending that the Riverside County Department of Public
Social Services (the Department) and the juvenile court failed to adequately comply with
the inquiry requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et
seq.; Cal. Rules of Court, rule 5.480 et seq.) On October 19, 2023, the parties filed a
joint application and stipulation for a conditional reversal of judgment and remand. After
our own careful review of the entire record, we conclude that the Department and the
juvenile court did fail to adequately comply with the inquiry requirements of ICWA, and
we reverse and remand with directions.
FACTUAL AND PROCEDURAL HISTORY
The child was placed in protective custody in July 2022 at 27 days’ old, after
Mother brought him to a hospital stating he was not breathing, and medical findings
showed the child had two bilateral subdural hematomas and bruising and scratches on his
body. Mother denied the child was shaken and noted that she lived with M.J. (Father)
and a paternal uncle. Mother later disclosed Father being rough with the child and
expressed her concerns to the paternal grandmother about Father “‘man handling’” the
child. After Father was arrested, Mother moved in with the paternal grandmother. The
social worker spoke with the paternal grandmother but did not inquire whether the family
had Native American ancestry.
1 All future statutory references are to the Welfare and Institutions Code.
2 A dependency petition on behalf of the child was filed on July 20, 2022, pursuant
to section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), (e)
(severe physical abuse of child under five years of age), and (g) (no provision for
support). Both parents denied Native American ancestry orally and through signed
ICWA-020 Parental Notification of Indian Status (ICWA-020) forms. The Department
reported that an ICWA inquiry of the parents gave them no reason to believe the child
was an Indian child.
The detention hearing was held on July 21, 2022. Mother, Father, the maternal
grandparents, and a maternal great-aunt were present. The juvenile court noted that it had
Mother and Father’s signed ICWA-020 forms and informed the parents that if they heard
anything about having Native American heritage through a relative, they needed to share
that information with the Department. The court formally detained the child from
parental custody and found the Department had conducted a sufficient ICWA inquiry and
that ICWA did not apply. Although the court informed the parents that they were
required to disclose any Native American heritage, the court did not personally inquire of
the parents or the maternal relatives present in court if they had Native American
ancestry.
Both parents again denied Native American ancestry in August 2022. The
Department reported that ICWA did not apply. At an August 23, 2022, hearing, the
parents, the maternal grandparents, the paternal grandmother, and the paternal aunt were
3 present. However, no ICWA inquiry was conducted of these relatives by the juvenile
court.
The Department had contact information for the maternal grandparents, the
paternal grandmother, the paternal aunt, and the maternal great-aunt. The Department
spoke with the maternal grandfather, the paternal grandmother, and the maternal great-
aunt as to placement of the child, but there is no indication in the record that an ICWA
inquiry was conducted of these relatives. The Department was also aware that Mother
had an older brother and older sister. Father did not want the child placed with the
maternal grandparents or Mother, but instead with the paternal grandmother, the paternal
aunt, a paternal great-uncle, or a paternal cousin.
The contested jurisdictional/dispositional hearing was held on November 8, 2022.
The parents, the maternal grandmother, the maternal aunt, the paternal grandmother, and
the paternal aunt were present in court. The maternal grandfather and paternal cousins
were also present but were excluded from the courtroom. The juvenile court did not
question these relatives as to their Native American ancestry. The court found true the
allegations in the petition, declared the child a dependent of the court, denied the parents
reunification services, and set a section 366.26 hearing. The court also found the
Department had conducted a sufficient ICWA inquiry, and that ICWA did not apply.
The juvenile court again found that ICWA did not apply at a de facto parent
hearing on March 8, 2003.
4 On May 24, 2023, Father reported having no Native American ancestry on his side
of the family. On June 15, 2023, Mother also reported having no Native American
ancestry on her side of the family. The Department reported that it had received no new
information to indicate ICWA applies to the proceedings. The child remained in a
medically fragile foster home with caregivers who desired to adopt him.
Mother and Father were present at the contested section 366.26 hearing held
June 27, 2023. The juvenile court found the child was adoptable and terminated parental
rights. Mother timely appealed.
STIPULATION
A stipulated reversal under Code of Civil Procedure section 128,
subdivision (a)(8), is permissible in a dependency case when the parties agree that
reversible error occurred, and the stipulated reversal will expedite the final resolution of
the case on the merits. (In re Rashad H. (2000) 78 Cal.App.4th 376, 380-382.) In the
stipulation, the parties agree that the juvenile court erred under section 224.2,
subdivision (c), when it failed to inquire of the maternal grandparents, the maternal great-
aunt, the paternal grandmother, and the paternal aunt who were present in court on
July 21, 2022, and August 23, 2022, as to their Native American ancestry, that substantial
evidence did not support the juvenile court’s findings that ICWA did not apply, and that a
conditional reversal of the judgment is appropriate with directions to the juvenile court to
make a proper ICWA inquiry.
5 The juvenile court and the department have an “‘affirmative and continuing duty
to inquire’ whether a child . . . ‘is or may be an Indian child.’ (§ 224.2, subd. (a).) The
duty to inquire consists of two phases—the duty of initial inquiry and the duty of further
inquiry.” (In re Ricky R. (2022) 82 Cal.App.5th 671, 678.) The duty of initial inquiry
applies in every dependency proceeding. (In re Austin J. (2020) 47 Cal.App.5th 870,
883-884.) Federal regulations require state courts to ask each participant “at the
commencement” of a child custody proceeding “whether the participant knows or has
reason to know that the child is an Indian child.” (25 C.F.R. § 23.107(a) (2023).) State
law requires the court to pursue an inquiry “[a]t the first appearance in court of each
party” by asking “each participant present in the hearing whether the participant knows or
has reason to know that the child is an Indian child.” (§ 224.2, subd. (c).) In addition,
when the Department takes a child into temporary custody, the agency must ask “the
child, parents, legal guardian, Indian custodian, extended family members, others who
have an interest in the child,” and the reporting party whether the child is or may be an
Indian child. (§ 224.2, subd. (b).) Extended family members include adults who are the
child’s stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles,
nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
Here, the parties agree that the juvenile court failed to inquire of the maternal
grandparents, the maternal great-aunt, the paternal grandmother, and the paternal aunt
who were present in court on July 21, 2022, and August 23, 2022. It also appears that the
juvenile court failed to personally inquire of the parents at the detention hearing and the
6 parents and maternal and paternal relatives at the November 8, 2022, hearing. The record
also shows that the Department failed to inquire of the maternal and paternal uncles. A
conditional reversal is therefore appropriate given the Department’s and juvenile court’s
failure to inquire of the known relatives concerning their Native American ancestry. (See
e.g., In re Benjamin M. (2021) 70 Cal.App.5th 735, 744; In re A.B. (2008) 164
Cal.App.4th 832, 839.) Although only Mother appealed, the order terminating parental
rights must be conditionally reversed as to Mother and Father. (In re Mary G. (2007) 151
Cal.App.4th 184, 208.)
DISPOSITION
The order terminating parental rights is conditionally reversed as to both parents.
On remand, the juvenile court shall inquire of the parents and the known relatives
(§ 224.2, subd. (c)) as noted above and order the Department to comply with the duty of
initial inquiry (§ 224.2, subd. (b)) of the paternal and maternal relatives and, if applicable,
the duty of further inquiry (§ 224.2, subd. (e)) and the duty to provide notice to the
pertinent tribes (25 U.S.C. § 1912(a); § 224.3). If the court determines that ICWA does
not apply—either (1) because the court and the Department have conducted a sufficient
inquiry of the parents and the maternal and paternal relatives, and there is no reason to
believe the children are Indian children, or (2) because the Department’s inquiry reveals
reason to know they are Indian children, notice was sent to the pertinent tribes, and the
tribes’ responses show that they are not Indian children or there is no response—then the
juvenile court is directed to reinstate all previous findings and the order terminating
7 parental rights. If the juvenile court determines that ICWA applies, the court is directed
to conduct a new section 366.26 hearing in conformity with the provisions of ICWA and
related California law.
Pursuant to the parties’ stipulation, the clerk of this court is directed to issue the
remittitur immediately. (Cal. Rules of Court, rule 8.272(c)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J. We concur:
McKINSTER Acting P. J.
RAPHAEL J.