In re Dominick D. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, v. T.T.
E078370 (Super.Ct.Nos. J290289 & J290290)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
August 23, 2022
CERTIFIED FOR PUBLICATION
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.
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. (
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 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.
CFS filed a petition alleging Dominick is a person described by
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 grandparents or his other adult maternal aunt or to ask them about Dominick‘s possible Indian ancestry. (See
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
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
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. (
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. (
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.” (
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 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
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.
CERTIFIED FOR PUBLICATION
MENETREZ
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.