In re A.D. CA2/8 ( 2023 )

Filed 5/22/23 In re A.D. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.D. et al., Persons Coming B318696
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. Nos. 18CCJP07070C–D)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.R. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County. Mary E. Kelly, Judge. Conditionally
affirmed and remanded with directions.
California Appellate Project, under appointment by the
Court of Appeal, for Defendant and Appellant M.R.
Richard L. Knight, under appointment by the Court of
Appeal, for Defendant and Appellant R.B.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
M.R. (Mother) and Robert B. (Father) appeal from the
juvenile court’s dispositional order, declaring their children
dependents of the court under Welfare and Institutions Code1
section 300, subdivisions (a) and (b), and removing them from
parental custody. Mother argues the court abused its discretion
in ordering her to participate in a domestic violence support
group for victims. Both parents assert the court and the Los
Angeles County Department of Children and Family Services
(Department) failed to comply with the applicable provisions of
the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et
seq.) and related California law. We conclude the juvenile court
did not abuse its discretion in requiring Mother to participate in
a domestic violence support group as part of her reunification
services. However, the Department concedes, and we agree, that
the ICWA inquiry was inadequate. Accordingly, we conditionally
affirm the dispositional order and remand for ICWA compliance.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has two children that are the subject of the current
proceedings: A.D., a girl born in November 2012, and R.B., a boy
born in December 2017. Father is the father of R.B. L.D., who is
nonoffending and not a party to this appeal, is the father of A.D.
Mother also has an older child, M.M., from a prior relationship.
1 Unless otherwise stated, all further statutory references
are to the Welfare and Institutions Code.
2
I. Prior Child Welfare History
The family has a history with the dependency system. In
2011, the juvenile court sustained a petition filed on behalf of the
children’s half-sibling, M.M., under section 300, subdivisions (a)
and (b). The court found that M.M. had sustained a leg fracture
consistent with nonaccidental trauma, the parents had failed to
obtain necessary treatment for the child’s cerebral palsy, and the
parents had an unresolved history of domestic violence, including
in the child’s presence. In 2013, parental rights over M.M. were
terminated, and the child was adopted by the paternal
grandmother.
In 2013, the juvenile court sustained a petition filed on
behalf of A.D. under section 300, subdivisions (b) and (j). The
court found that Mother had a history of substance abuse and
had tested positive for marijuana on the day of A.D.’s birth.
The court also found that A.D. was at risk of serious physical
harm based on the prior nonaccidental injury sustained by her
half-sibling, M.M. Following the child’s removal, Mother was
able to reunify with A.D., and the court terminated its
jurisdiction in 2014.
II. Current Dependency Petition
The current matter came to the Department’s attention in
June 2020 based on a referral alleging the general neglect of A.D.
and R.B. by Mother. According to the reporting party, Mother
was incoherent and rambling during a recent telephone call with
the maternal grandmother. Mother and the children had been
staying with a friend, and Mother believed they were not safe at
that residence because she was being targeted for retaliation by a
gang.
3
After several attempts, a social worker for the Department
was able to interview Mother at the maternal grandmother’s
home. Mother reported that Father had been threatening her
because she “snitched” about a robbery and no longer wanted to
be in a relationship with him. According to Mother, Father was a
gang member and a pimp, and had a recent arrest for violating
his probation. When asked about any domestic violence with
Father, Mother disclosed that he had hit her in front of A.D. on
two occasions. Father also choked Mother and struck her with
the back of his hand when she was pregnant with R.B. Father
lived in both Texas and Los Angeles, and Mother did not have his
contact information. With respect to A.D.’s father, L.D., Mother
reported that he also lived in Los Angeles, and she only had
minimal contact with him through Facebook. Mother stated that
L.D. was the person who inflicted the injury on her oldest child,
M.M., when L.D. accidentally pulled the child’s leg out of its
socket as they were playing.
Mother admitted that she had a history of drug use,
including methamphetamines and marijuana. She stopped using
methamphetamines in 2010. She currently smoked marijuana,
but only did so outside the home when the children were with the
maternal grandmother. Mother denied having any mental health
issues. She stated, however, that “weird things” involving light
bulbs had happened at her friend’s home where she and the
children had been staying. Mother acknowledged that she had
been drinking alcohol on the day that she became paranoid about
the light bulbs. Both A.D. and R.B. were with Mother at the time
she was drinking, but were asleep.
In an interview with the social worker, the maternal
grandmother reported that Mother and the children had been
4
residing in her home for about a week. While they were staying
with Mother’s friend, Mother called the maternal grandmother
because she believed that someone was waiting outside the home
to hurt her and the children. The maternal grandmother had not
previously seen Mother act in such a paranoid manner. While
R.B. was too young to make a statement, A.D. indicated that she
felt safe living with Mother and did not have any concerns in her
care.
At the Department’s request, Mother participated in an
Up Front Assessment. The assessor reported a number of
concerns about Mother’s current situation. Mother had lacked
stable housing for a significant period of time, and she recently
had been living in an unhealthy environment for the children.
She also admitted she used marijuana on a daily basis, and the
drug could make her paranoid. In addition, Mother had a history
of childhood trauma and abusive relationships, and appeared to
have mental health issues that had not been addressed.
On September 1, 2020, the Department filed a dependency
petition on behalf of the children under section 300, subdivisions
(a) and (b). The petition alleged the children were at substantial
risk of harm based on the history of domestic violence between
Mother and Father, Mother’s history of substance abuse and
current use of marijuana, and Mother’s history of mental and
emotional problems. At a detention hearing held on September 4,
2020, the juvenile court released the children to Mother on the
condition that she and the children reside with the maternal
grandmother. The court also ordered Mother to submit to on-
demand drug testing. The matter was set for an adjudication
hearing.
5
III. Adjudication Hearing
For its November 2020 jurisdiction/disposition report, the
Department interviewed Mother and A.D. about the allegations
in the petition. Mother admitted she had a history of domestic
violence with multiple partners. She first experienced domestic
violence in her relationship with M.M.’s father. They also used
methamphetamines together, and Mother eventually ended the
relationship because M.M.’s father continued to consume drugs.
Mother again experienced domestic violence in her relationship
with Father. In 2017, when Mother was pregnant with R.B.,
Father “backhanded” her during a dispute over prostitutes and
money. On another occasion, Father choked Mother and struck
her. She denied that A.D. was present during these incidents.
Mother decided to leave Father because of his criminal lifestyle.
With respect to her drug use, Mother reported that she began
using methamphetamines as a teenager, but had stopped years
ago because of her children. While she continued to smoke
marijuana, she recently had stopped using that drug as well
because she realized it made her paranoid. With respect to her
mental health, Mother denied she had any history of mental or
emotional problems. She noted that she had been raising the
children on her own, and that they were doing well in her care.
In her interview with the Department, A.D. indicated that
she once heard Father hitting Mother. While the child did not
see the altercation, she could hear Father and Mother fighting,
and felt scared because she thought Father might have a knife.
A.D. did not know whether Mother used drugs or alcohol, but
denied that she ever saw Mother act in strange manner.
In a series of last minute information for the court reports,
the Department provided updates on its contacts with the family.
6
In December 2020, the social worker had a call with Father, who
was incarcerated for a parole violation. He denied he ever
engaged in domestic violence against Mother, and did not know if
Mother abused drugs or had any mental or emotional problems.
In March 2021, the social worker spoke with A.D.’s father, L.D.,
who also denied knowledge of any domestic violence, drug abuse,
or mental health issues involving Mother. Both Father and L.D.
indicated that they wanted to participate in the proceedings.
Since the detention hearing, Mother had been participating
in individual therapy. She had not, however, been compliant
with the juvenile court’s order for on-demand drug testing.
Between June 2020 and May 2021, Mother tested negative for
drugs on three occasions, but failed to appear for numerous other
tests. In May 2021, she called the police while the children were
in her care because she was experiencing paranoia.
On June 24, 2021, the juvenile court held the adjudication
hearing. The court sustained the petition, as amended, under
section 300, subdivisions (a) and (b). The court found true the
allegation that Father and Mother had a history of engaging in
violent physical altercations, which placed the children at
substantial risk of harm. The court also found true the
allegations that Mother had a history of substance abuse and
mental and emotional problems, which impaired her ability to
provide the children with regular care and supervision. The
court ordered that the children remain released to Mother under
the Department’s supervision. The court also ordered Mother to
continue to submit to on-demand drug testing. The matter was
continued for the dispositional hearing.
7
IV. Supplemental Dependency Petition
On July 7, 2021, the Department detained the children
from Mother after she tested positive for methamphetamines in a
recent drug test. When the social worker informed Mother of the
result, she indicated that she had taken a pill that she found in
the maternal grandmother’s bathroom. Although Mother later
identified the pill as phenylephrine, the lab that performed the
drug test reported that such medication would not cause a
positive result. During this period of supervision, Mother
continued to attend therapy, but had stopped participating in
other family preservation services, including parenting education
and a drug abuse program. Mother’s therapist reported that
their sessions were focused on addressing Mother’s past trauma
and discussing coparenting dynamics, given that Mother wanted
the children’s fathers to remain involved in their lives.
On July 9, 2021, the Department filed a supplemental
petition on behalf of the children under section 387. The petition
alleged that Mother continued to abuse methamphetamines, and
consistently failed to submit to drug testing and to participate in
family preservation services. At a detention hearing held on
July 14, 2021, the juvenile court detained the children from
Mother pending the dispositional hearing.
V. Dispositional Hearing
As of December 2021, the children had been placed with a
maternal great aunt, L.E. Although Mother had been granted
monitored visitation with the children, she had not been visiting
them on a consistent basis. L.E. also reported that Mother
recently had been spending time with Father. While Mother
remained enrolled in individual therapy, she repeatedly failed to
appear for drug testing. By March 2022, Mother was no longer in
8
contact with the Department and had only sporadic visits with
the children. Neither Father nor L.D. had maintained contact
with the Department, or made any effort to visit their children.
On April 5, 2022, the juvenile court held the dispositional
hearing. The court declared A.D. and R.B. dependents of the
court under section 300, subdivisions (a) and (b), removed them
from the custody of their parents, and ordered that they be
suitably placed under the supervision of the Department.
The court also granted each parent monitored visitation and
reunification services. Mother’s case plan included a full drug
and alcohol program, on-demand drug testing, and individual
counseling to address case issues. Over Mother’s objection, the
case plan also required her to participate in a domestic violence
support group for victims.
VI. ICWA Investigation
At the September 4, 2020 detention hearing, Mother
submitted a Parental Notification of Indian Status (ICWA-020)
form in which she checked a box indicating that she did not have
Indian ancestry as far as she knew. Mother’s counsel also
informed the court that Mother did not have any Indian ancestry.
The court deferred a determination of whether ICWA applied
pending the fathers’ appearance.
In its jurisdiction/disposition report, the Department noted
that Mother had denied Indian ancestry during a November 2020
interview. In a subsequent interview with the Department in
July 2021, Mother was again asked about Indian ancestry.
At that time, Mother reported that she thought she had Indian
ancestry on the maternal grandfather’s side of the family, but she
was not sure. During the proceedings, the Department had
multiple interviews with the maternal grandmother and the
9
maternal great aunt, L.E., and had contact information for a
maternal aunt, R.V. There is no indication in the record that the
Department made any ICWA inquiry of these maternal relatives.
With respect to Father, the Department interviewed R.B.’s
paternal grandmother in March 2021 to inquire whether the
family had any Indian ancestry. R.B.’s paternal grandmother
stated, “As far as my side of the family, I know my great great
grandmother was Native American but I don’t know what tribe.”
She denied that this ancestor was ever enrolled in a tribe or lived
on a reservation, and she was not aware of any other relatives
who might have additional information. R.B.’s paternal
grandmother did not know about Indian ancestry on the paternal
grandfather’s side of the family, and suggested that the
Department ask Father to inquire of R.B.’s paternal grandfather.
Father made his first appearance in the case at the
June 24, 2021 adjudication hearing. On that date, he submitted
an ICWA-020 form in which he checked a box indicating that
none of the categories of Indian status applied. At the hearing,
his counsel advised the court that Father “feels there could be
some type of Indian ancestry,” but he had no specific information
to provide. The court ordered the Department to conduct a
further inquiry.
In July 2021, the Department asked Father if he had any
Indian ancestry. Father stated that he did, but he was not sure
“what kind.” When the Department later asked Father if he had
additional information about ICWA, he indicated that he did not
because all of the elders in his family were deceased. The
Department also followed up with R.B.’s paternal grandmother,
who confirmed that she did not have any further information
10
about ICWA. However, she advised the Department to contact
R.B.’s paternal great-grandmother, M.Y.
The Department interviewed M.Y. in July 2021. When the
social worker asked her about the family’s Indian ancestry, M.Y.
stated, “Oh, honey, you’re expecting too much from me. I don’t
have many details. I just know it was my grandfather’s mother
that was Native American but that is it. I don’t know what tribe
or anything.” Later that month, M.Y. informed the Department
that R.B.’s great-great-great-great-grandmother was Navajo.
M.Y. also disclosed that she had spoken with a cousin who
confirmed that the family had Navajo heritage. M.Y. provided
the names and birth places of R.B.’s great-great-great
grandparents and his great-great-great-great grandmother, D.S.
In August 2021, the Department mailed a set of ICWA
notices to the Navajo Nation, the Ramah Navajo Chapter of the
Navajo Nation, the Bureau of Indian Affairs (BIA), and the
Secretary of the Interior. The notices included the biographical
information that M.Y. had provided about R.B.’s ancestors,
including D.S. In a September 2021 letter, the Navajo Nation
responded that it had been unable to verify R.B.’s eligibility for
tribal membership enrollment based on the ancestry information
provided, and that it was closing the referral. In a December
2021 letter, the Ramah Navajo Chapter responded that it did not
have access to the Navajo Nation’s complete membership records,
and that the Department should refer to the Navajo Nation’s
ICWA response as the determining letter. In March 2022, the
BIA indicated in an e-mail that it did not determine tribal
eligibility, and that such information must be obtained from the
tribe itself. The BIA also stated that an ICWA response would be
mailed to the Department, and that it could not send a response
11
via e-mail. As of the April 5, 2021 dispositional hearing, the
Department had not received the BIA’s mail response.
With respect to A.D.’s father, L.D., he submitted an ICWA-
020 form on March 25, 2021, in which he checked a box indicating
that he did not have Indian ancestry as far as he knew. In a
March 2021 interview with the Department, L.D. also denied
having any Indian ancestry. At the June 24, 2021 adjudication
hearing, however, L.D.’s counsel informed the court that L.D.
believed that A.D.’s paternal great-grandmother was Cherokee.
In July 2021, the Department spoke with A.D.’s paternal
grandmother, who stated, “We got a little Indian but that is all
I know.” A.D.’s paternal grandmother reported that she had
learned this information from the paternal great-grandmother,
but was never told the name of the tribe or the relative with
Indian ancestry. She also was not aware of any living relatives
who might have additional information.
At the April 5, 2021 dispositional hearing, the Department
asked the juvenile court to find that ICWA did not apply. The
court initially expressed concern that the Navajo Nation’s
response was not a definitive statement of R.B.’s ineligibility for
tribal membership, but then stated that it was “taking that
[response] as a refusal.” The court continued to express concern,
however, that the Department had not received a formal response
from the BIA, and that the BIA’s e-mail correspondence was not
conclusive as to R.B.’s lack of tribal membership eligibility.
The court ordered the Department to follow up with the BIA, and
deferred making a determination on the applicability of ICWA
pending further information about the BIA’s response.
Both Mother and Father filed timely appeals.
12
DISCUSSION
On appeal, Mother argues the juvenile court abused its
discretion in ordering her to participate in a domestic violence
support group for victims. In addition, both Mother and Father
contend the juvenile court failed to ensure that the Department
complied with its duty of further inquiry by interviewing known
and available extended family members about their respective
claims of Indian ancestry.2 We conclude the juvenile court acted
within its broad discretion in ordering Mother to participate in a
domestic violence support group as part of her reunification
services. However, as the Department concedes, remand is
required in this case for full compliance with ICWA.
I. The Juvenile Court Did Not Abuse Its Discretion in
Ordering Mother to Participate in a Domestic
Violence Support Group
Mother challenges the portion of the juvenile court’s
dispositional order requiring her to participate in a domestic
violence support group for victims. Mother claims the order was
unreasonable because she was already addressing her past
trauma in therapy, and the support group requirement was not
tailored to the family’s unique needs. We disagree.
When fashioning a dispositional order, the juvenile court
may make “all reasonable orders for the care, supervision,
custody, conduct, maintenance, and support of the child.” (§ 362,
subd. (a).) The court also may “direct any reasonable orders to
the parents or guardians of the child who is the subject of any
proceedings . . . as the court deems necessary and proper to carry
2 Neither Mother nor Father contend that there was any
inquiry error with respect to L.D.’s claim of Indian ancestry.
13
out this section,” including orders “to participate in a counseling
or education program.” (Id., subd. (d).) “At disposition, the
juvenile court is not limited to the content of the sustained
petition when it considers what dispositional orders would be in
the best interests of the children. [Citations.] Instead, the court
may consider the evidence as a whole.” (In re Briana V. (2015)
236 Cal.App.4th 297, 311.) “ ‘[T]he juvenile court has broad
discretion to determine what would best serve and protect the
child’s interest and to fashion a dispositional order in accordance
with this discretion. [Citations.] The court’s determination in
this regard will not be reversed absent a clear abuse of
discretion.’ ” (In re Corrine W. (2009) 45 Cal.4th 522, 532.)
Here, the juvenile court acted well within its discretion in
requiring Mother to participate in a domestic violence support
group as part of her reunification services. Mother admitted that
she had a history of domestic violence with multiple partners. In
a prior case, the court assumed jurisdiction over Mother’s oldest
child, M.M., based, in part, on the parents’ unresolved history of
domestic violence. Mother failed to reunify with M.M., and her
parental rights over the child were terminated. In the present
case, the court assumed jurisdiction over A.D. and R.B. based, in
part, on the violent physical altercations that occurred between
Mother and Father in which Father slapped, choked, and struck
Mother. The altercations took place in the presence of A.D. when
Mother was pregnant with R.B. While Mother was forthcoming
with the Department about the nature of the abuse perpetrated
by Father, she appeared to minimize its seriousness, telling the
social worker that “[t]his is from 2017 though.” She also gave
conflicting accounts as to whether A.D. witnessed the abuse.
Mother initially told the social worker that Father hit her in front
14
of A.D. on two occasions, but later denied that A.D. was ever
present during these incidents.
Mother argues that the order requiring her to attend a
domestic violence support group for victims was an abuse of
discretion because the incidents of domestic violence were remote
in time, and she was no longer in a relationship with any of the
perpetrators as of the dispositional hearing. She also asserts that
she was consistently participating in therapy to address her past
trauma, and that her therapist never recommended a domestic
violence support group as part of her mental health services.
There was evidence, however, that Mother had not been able to
fully extricate herself from the relationship with Father. When
the Department first interviewed Mother, she reported that
Father had been threatening her because, among other reasons,
she no longer wanted to be in a relationship with him. Later in
the proceedings, as the dispositional hearing date approached,
the maternal great-aunt told the Department that Mother had
been spending time with Father, including visiting Father out of
state instead of celebrating the children’s birthdays with them.
Moreover, Mother’s therapist disclosed that she and Mother had
been discussing coparenting dynamics in therapy due to Mother
still wanting the children’s fathers to be involved in their lives.
Given the totality of this record, the juvenile court
reasonably could conclude that Mother was unable to fully
appreciate the risk of harm that domestic violence posed to the
children and to understand how to best protect the children from
that risk. The juvenile court accordingly did not abuse its
discretion in ordering Mother to attend a domestic violence
support group for victims as part of her reunification plan.
15
II. Remand Is Required for ICWA Compliance
Both Mother and Father argue that the juvenile court and
the Department failed to comply with the inquiry provisions of
ICWA and related California law. They specifically assert that
the Department failed to conduct an adequate further inquiry
into their claims of Indian ancestry, and that the court failed to
ensure a proper inquiry was made. The Department concedes
that there is no record of inquiry being made of several known
maternal and paternal relatives, and that the matter must be
remanded for compliance with ICWA. We agree.
A. Governing Law
“ICWA reflects a congressional determination to protect
American Indian children and to promote the stability and
security of Indian tribes and families.” (In re Josiah T. (2021)
71 Cal.App.5th 388, 401.) To that end, ICWA mandates that “[i]n
any involuntary proceeding in a [s]tate court, where the court
knows or has reason to know that an Indian child is involved, the
party seeking the foster care placement of, or termination of
parental rights to, an Indian child shall notify the parent or
Indian custodian and the Indian child’s tribe” of the pending
proceedings and the right to intervene. (25 U.S.C. § 1912(a).)
Similarly, California law requires notice to the child’s parent,
Indian custodian, if any, and the child’s tribe if there is “reason to
know . . . that an Indian child is involved” in the proceeding.
(§ 224.3, subd. (a).)
Both juvenile courts and child protective agencies “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); see In re Isaiah
W. (2016) 1 Cal.5th 1, 14 [“juvenile court has an affirmative and
16
continuing duty in all dependency proceedings to inquire into a
child’s Indian status”].) “ ‘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
Josiah T., supra, 71 Cal.App.5th at p. 402.)
California law provides that the duty to inquire “begins
with the initial contact” (§ 224.2, subd. (a)) and requires the
juvenile court and child protective agency to ask all relevant
involved individuals whether the child is or may be an Indian
child (id., subds. (a)–(c)). At the first appearance of each party,
the court must inquire whether that party “knows or has reason
to know that the child is an Indian child,” and must “instruct the
parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian
child.” (Id., subd. (c).) Additionally, when the agency takes a
child into temporary custody, it must inquire of a nonexclusive
group that includes the child, the parents, and extended family
members “whether the child is, or may be, an Indian child.” (Id.,
subd. (b)). Extended family members include adults who are the
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).)
If the juvenile court or the child protective agency “has
reason to believe that an Indian child is involved in a proceeding,
but does not have sufficient information to determine that there
is reason to know that the child is an Indian child,” the court or
social worker “shall make further inquiry regarding the possible
Indian status of the child . . . as soon as practicable.” (§ 224.2,
subd. (e).) “[R]eason to believe” means the court or social worker
has information “suggesting that either the parent of the child or
17
the child is a member or may be eligible for membership in an
Indian tribe.” (Id., subd. (e)(1).) “Further inquiry includes, but is
not limited to . . . [¶] [i]nterviewing the parents, Indian
custodian, and extended family members,” and “[c]ontacting the
tribe or tribes and any other person that may reasonably be
expected to have information regarding the child’s membership,
citizenship status, or eligibility.” (Id., subd. (e)(2)(A), (C).)
“If the [juvenile] court makes a finding that proper and
adequate further inquiry and due diligence . . . have been
conducted and there is no reason to know whether the child is an
Indian child, the court may make a finding that [ICWA] does not
apply to the proceedings, subject to reversal based on sufficiency
of the evidence.” (§ 224.2, subd. (i)(2).) We generally review the
juvenile court’s ICWA findings under the substantial evidence
test, “ ‘ “which requires us to determine if reasonable, credible
evidence of solid value supports the court’s order.” ’ ” (In re
Josiah T., supra, 71 Cal.App.5th at p. 401.)
B. The Matter Must Be Remanded Because the
Department Did Not Adequately Investigate the
Mother and Father’s Claims of Indian Ancestry
In this case, the parents’ respective claims that they
believed they had Indian ancestry triggered the Department’s
duty to conduct further inquiry into the possible Indian status of
the children. Although Mother initially denied having any
Indian ancestry in her statements to the Department and the
juvenile court, she later told the Department that she thought
she had Indian ancestry on the maternal grandfather’s side of the
family. Likewise, while Father indicated in his ICWA-020 form
none of the categories of Indian status applied, his counsel
informed the court at the adjudication hearing that Father “feels
18
there could be some type of Indian ancestry.” Father also told the
Department in a subsequent interview that he did have Indian
ancestry, but he was not sure “what kind.” In addition, in an
interview with the Department prior to the adjudication hearing,
R.B.’s paternal grandmother indicated that the child’s great-
great-great-great-grandmother was Native American, although
she did not know which tribe. These statements from Mother,
Father, and R.B.’s paternal grandmother were sufficient to
require the Department to conduct further inquiry into whether
A.D. and R.B. might be Indian children. (See In re Josiah T.,
supra, 71 Cal.App.5th at p. 404 [paternal grandmother’s
statement that she had Cherokee ancestry through her
grandmother triggered duty of further inquiry]; In re T.G. (2020)
58 Cal.App.5th 275, 292 [mother’s statement indicating possible
Indian ancestry through her paternal grandfather triggered duty
of further inquiry].)
With respect to Mother’s claim of Indian ancestry, the
record reflects that the Department failed to make any inquiry of
known and available maternal relatives. During the course of
the proceedings, the Department maintained contact with both
the maternal grandmother and the maternal great-aunt, L.E.,
and the children were placed in the homes of these two relatives
at various times. The Department also had contact information
for the maternal aunt, R.V. There is no indication in the record,
however, that the Department ever made any ICWA inquiry of
these extended family members.
With respect to Father’s claim of Indian ancestry, the
record demonstrates that the Department did interview R.B.’s
paternal grandmother and paternal great-grandmother, M.Y.,
about their family’s Indian ancestry. Based on M.Y.’s statements
19
that R.B.’s great-great-great-great-grandmother was Navajo, the
Department contacted the Navajo tribe, the BIA, and the
Secretary of the Interior, and received a response from the tribe
that it was unable to verify R.B.’s eligibility for tribal
membership based on the ancestry information provided. As
Father points out, however, it appears the Department never
made any inquiry of the unnamed paternal cousin whom M.Y.
had contacted to obtain information about the family’s Navajo
heritage. The record also is silent as to whether the Department
tried to contact R.B.’s paternal grandfather to determine if the
paternal side of Father’s family had any Indian ancestry.
Although the paternal grandmother had recommended that the
Department ask Father to inquire of R.B.’s paternal grandfather,
there is no indication that the Department ever attempted to do
so.
On this record, the Department failed to fully comply with
its duty of further inquiry. Despite this lack of compliance, the
Department asked the juvenile court at the dispositional hearing
to find that ICWA did not apply based on the inquiry that had
been made. The court declined to make an ICWA finding at that
time, however, because the Department had not yet received a
formal response from the BIA about R.B.’s possible Navajo
ancestry. While the court ordered the Department to follow up
with the BIA, it did not direct the Department to conduct further
inquiry by interviewing known and available maternal and
paternal relatives about the parents’ respective claims of Indian
ancestry. Accordingly, as of the dispositional hearing, the court
had failed to ensure that the Department had conducted an
adequate further inquiry.
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Appellate courts have adopted several divergent standards
for determining whether the failure to comply with the duty of
initial inquiry constitutes prejudicial error. (See In re K.H.
(2022) 84 Cal.App.5th 566, 611–618 [describing four approaches
for assessing prejudice at the initial inquiry stage and adopting a
fifth, injury-focused standard].) Some courts also have concluded
that the same standard of prejudice should apply to both initial
inquiry and further inquiry errors. (See In re E.C. (2022)
85 Cal.App.5th 123, 155; In re Rylei S. (2022) 81 Cal.App.5th 309,
324–325.) In this case, however, we need not decide which
standard of prejudice applies. The Department concedes, and we
agree, that remand for full compliance with ICWA and related
California law is the proper remedy here.
As discussed, once Mother and Father indicated that they
believed they had Indian ancestry, the Department had a duty to
conduct further inquiry into whether A.D. and R.B. might be
Indian children, and the juvenile court had a duty to ensure an
adequate inquiry was made. The record establishes that there
were several maternal and paternal extended family members
who either were known to the Department based on their prior
contacts, or had been identified as persons who were likely to
have information about the children’s Indian ancestry. Because
there is nothing in the record to suggest that the Department
attempted to interview any of these relatives about the children’s
possible Indian status, or had been ordered to do so by the court,
remand is required for a proper and adequate further inquiry.
DISPOSITION
The juvenile court’s dispositional order is conditionally
affirmed, and the matter is remanded for compliance with ICWA
and related California law. On remand, the juvenile court must
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promptly direct the Department to conduct further inquiry into
the children’s possible Indian ancestry, including interviews with
known and available extended family members and any other
persons who may reasonably be expected to have information
regarding the children’s tribal membership or eligibility. If that
information establishes a reason to know that an Indian child is
involved, notice must be provided in accordance with ICWA and
section 224.3. The Department shall thereafter notify the court
of its actions and file certified mail return receipts for any ICWA
notices that were sent, together with any responses received.
The court must determine, on the record, whether the ICWA
inquiry and notice requirements have been satisfied and whether
A.D. or R.B. is an Indian child. If the court determines that A.D.
or R.B. is an Indian child, it must vacate its dispositional order
and conduct a new dispositional hearing, as well as all further
proceedings in accordance with ICWA and related California law.
If not, the court’s original dispositional order shall remain in
effect.
VIRAMONTES, J.
We concur:
GRIMES, Acting P. J. WILEY, J.
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