Opinion
D082067
09-15-2023
In re J.G., a Person Coming Under the Juvenile Court Law. v. E.N., Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Claudia G. Silva, County Counsel and Emily Harlan, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. NJ15738D Donal B. Donnelly, Judge. Conditionally reversed and remanded with directions.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Claudia G. Silva, County Counsel and Emily Harlan, Senior Deputy County Counsel, for Plaintiff and Respondent.
IRION, J.
INTRODUCTION
E.N. (Mother) appeals an order terminating parental rights to minor J.G. under Welfare and Institution's Code section 366.26. Mother contends the San Diego County Health and Human Services Agency (Agency) did not comply with its inquiry duties under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and section 224.2, subdivisions (b) and (c). The Agency concedes it did not comply with its duty of initial inquiry and agrees a limited remand is appropriate because it cannot say that initial inquiry with available extended family members would not have shed meaningful light on the issue of whether ICWA applies. We accept the concession. Accordingly, we conditionally reverse the order terminating parental rights and remand for the limited purpose of requiring the Agency and juvenile court to comply with ICWA and section 224.2.
Undesignated statutory references are to the Welfare and Institutions Code.
Because Mother's sole contention on appeal relates to ICWA, we limit our discussion of the factual and procedural history to those facts relevant to her claim.
The Agency filed a petition in April 2021, alleging J.G. was a child within the jurisdiction of the juvenile court pursuant to section 300, subdivision (b)(1) because he was at substantial risk of serious physical harm or illness due to his parents' failure or inability to adequately supervise and protect him. The petition alleged Mother's history of substance use and her exposure of J.G. to hazardous conditions in the home, including drugs and drug paraphernalia, placed him at risk.
The petition alleged J.G.'s father was incarcerated and was unable to provide protection for J.G. Because father is not a party to this appeal, we discuss him only when relevant. Similarly, we do not address J.G.'s halfsiblings, for whom the Agency filed related petitions, because they are not parties to this appeal.
The juvenile court issued a protective custody warrant pursuant to section 340, subdivision (a) and ordered J.G. be detained at an emergency shelter. Shortly thereafter, J.G. was placed with his paternal grandparents.
In the detention report, the Agency said it asked Mother, a paternal uncle, and a paternal grandfather if anyone in the family ever lived on a reservation, received financial, medical, or educational assistance from a tribe, and if any family member spoke a Native American language, was active in tribal activities, or was a member or enrolled member of a tribe. They each responded, "No." Mother's counsel said at the detention hearing that Mother had no known Native American heritage. The court, however, deferred on the ICWA issue.
In May 2021, Mother told a social worker her cousin may have lived on a reservation. She also thought J.G.'s grandparents spoke a Mayan dialect. Mother did not know if any family member was a member of a tribe or an enrolled member in a tribe.
Father also denied Native American heritage, but told the social worker that his family speaks "Quahombal" [sic], which he described as "Native tongue." Father said he speaks only some of the language, but understands it fluently. He also said his parents (paternal grandparents) speak the language to J.G.
"Q'anjob'al (also spelled Kanjobal or Kanjobal or Kanhobal) is a Mayan language spoken in Guatemala and Mexico." (Mayan Languages.net, Q'anjob'al < https://www.mayanlanguages.net/mayan-languages/qanjobal> [as of Sept. 15, 2023], archived at <https://perma.cc/B3QB-ECEH>.; Shosted, University of Illinois, Illinois Language Resource Initiate, Q'anjob'al (Maya) <http://faculty.las.illinois.edu/rshosted/Qanjobal.html> [as of Sept. 15, 2023], archived at <https://perma.cc/4XXH-CVVR>. Father was born in Guatemala and came to the United States as a toddler.
At the jurisdictional hearing in June 2021, counsel for both Mother and Father denied they were claiming Native American heritage. The court found there was an insufficient basis to conclude J.G. was likely to be an Indian child and, therefore, ICWA did not apply.
There was no additional ICWA inquiry documented during the case. The Agency frequently contacted the paternal grandparents, who were caring for J.G. These contacts included unannounced visits to their home over the course of several months.
In November 2021, at the contested adjudication and disposition hearing, the court found true allegations that J.G. was a child described in section 300, subdivision (b)(1) and declared him a dependent child of the juvenile court. The court removed J.G. from Mother's custody and ordered him placed in the approved home of a relative. The court ordered reunification services for Mother, but no reunification services for Father.
In May 2022, the Agency reported that J.G. had adjusted well to living with his paternal grandparents. He used basic words in both Spanish and Q'anjob'al languages to communicate with his grandparents.
At the six-month review hearing, the court incorporated the recommendation for a finding that ICWA did not apply. Mother made some progress with her reunification case plan, but it did not appear J.G. would be returned home by the next hearing. The court continued J.G.'s placement with the paternal grandparents and continued reunification services for Mother.
In July 2022, the Agency reported that it was unable to contact Mother and she failed to complete any of the services in her case plan. The Agency recommended termination of her reunification services. It recommended that J.G. remain with his paternal grandparents and that the court set a permanency hearing. The court set a contested 12-month review hearing at Mother's request.
In early July 2022, the Agency filed another dependency petition for J.G.'s newborn half-sibling because mother tested positive for amphetamine at the newborn's birth.
Father was still incarcerated and agreed with terminating Mother's reunification services. He wanted J.G. to remain with the paternal grandparents.
At the contested 12-month review hearing in August 2022, the court's minute order again stated that ICWA did not apply to this proceeding. The court terminated Mother's reunification services and set a permanency planning hearing under section 366.26.
The paternal grandparents were evaluated and approved for placement through the Resource Family Approval process. After caring for J.G. for over a year, they wanted to continue providing him with stability and a permanent home. J.G. was happy in the home and referred to the paternal grandparents as" 'mom and dad.'" The Agency recommended termination of parental rights and adoption as the permanent plan for J.G.
On March 27, 2023, the court terminated all parental rights and ordered adoption as the permanent plan. The court designated the parental grandparents as the prospective adoptive parents. As part of the order, the court again found "without prejudice that [ICWA] does not apply to this proceeding." Mother appealed.
DISCUSSION
In California 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).) 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." (§ 224.2, subd. (b).) 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-inlaw 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].)
Mother contends the Agency failed to satisfy its duty of initial inquiry under section 224.2, subdivision (b) because it did not ask available extended family members if they had Native American ancestry. Social workers spoke with several extended family members throughout the life of the case, including the maternal grandmother, a maternal uncle, the paternal grandmother, and a paternal aunt. The Agency was also aware of a maternal cousin, maternal uncles, a paternal aunt, and paternal uncles. The Agency did not ask these family members about Native American ancestry.
The Agency concedes it failed to comply with the duty of initial inquiry. It concedes "a duty to inquire of extended family members was triggered . . . in May 2021 when the mother said her cousin might have lived on a reservation and the father said his parents spoke a "Native tongue" to the child." Recognizing it has an affirmative and continuing duty under section 224.2, subdivision (a) to inquire about a child's Indian status during a dependency case, "the parents' comments should have triggered efforts to inquire of the paternal grandparents and the mother's cousin, at a minimum, to clarify the parents' uncertain claims." Under these facts, the Agency states it "cannot definitively say that initial ICWA inquiry with any available extended family members would not have shed meaningful light upon whether J.G. is an Indian child." (Cf. In re Y.M. (2022) 82 Cal.App.5th 901, 917-918.) We agree.
There is a split of authority as to whether the initial duty to inquire of extended family members under section 224.2, subdivision (b) applies when a child is taken into protective custody with a warrant rather than temporary custody under the authority of sections 306 or 307. (Compare In re Robert F. (2023) 90 Cal.App.5th 492, 497 [review granted July 26, 2023] ["because subdivision (b) of section 224.2 applies only when a child is placed in temporary custody under section 306, it does not apply when a county welfare department takes a child into protective custody pursuant to a warrant"] with In re Delila D. (2023) 93 Cal.App.5th 953, 962 [petition for review pending Aug. 22., 2023] ["there is only one duty of initial inquiry, and that duty encompasses available extended family members no matter how the child is initially removed from home"].) Irrespective of the child's custody status, the Agency concedes a duty to inquire of extended family members was triggered in this case. We accept this concession.
Under these circumstances, we conclude substantial evidence does not support the juvenile court's finding that ICWA did not apply. Because we accept the Agency's concession regarding its failure to comply with the duty of initial inquiry, we need not reach the issue of whether further inquiry is required.
The Agency agrees a conditional reversal and limited remand is appropriate to complete the initial inquiry. Once the Agency complies with initial inquiry efforts with extended family members, the court will evaluate if further inquiry is necessary. Accordingly, we conditionally reverse the order terminating Mother's parental rights and remand for the limited purpose of allowing the Agency and the juvenile court to comply with ICWA and section 224.2. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 746; In re K.H. (2022) 84 Cal.App.5th 566, 621.)
DISPOSITION
The juvenile court's March 27, 2023 order terminating parental rights to J.G. is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry provisions of ICWA and Welfare and Institution's Code sections 224.2. If, after completing an appropriate initial inquiry, neither the Agency nor the court has reason to believe or to know that J.G. is an Indian child, the order terminating parental rights to J.G. shall be reinstated. Alternatively, if after completing the initial inquiry the Agency or the juvenile court has reason to know that the child is an Indian child, the court shall proceed according to statute.
WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.