Filed 6/14/23 In re K.C. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered pub lished for purposes of rule 8.11 15.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re K.C ., et al., Person s Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY , Plaintiff and Respondent,

v.
K.C. , Defendant and Appellant. D081537

(Super. Ct. No s

. J520852, J 520852 A B )

APPEAL from order s of the Superior Court of San Diego County, Browder A. Willis III , Judge. Conditionally reversed in part and remanded
with directions

. Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant. Claudia G. Silva, County Counsel and Natasha C. Edwards, Senior Deputy County Counsel.2

K .C. (Father) appeals two order s arising from special hearing s in the
Welfare and Institutions Co de 1 section 300 dependency proceeding s for
minors , Kd.C. and Km.C

. 2 His sole contention on appeal is that the San Diego County Health and Human Services Agency (Agency) and the juvenile court failed to conduct an adequate initial inquiry under the Indi an Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq) and section 224.2

. Specifically, Father contends there was no inquiry into the Native American ancestry of the paternal grandfather, who appeared at two hearings, and two paternal relatives, whom the Agency contacted. The Agency concedes error

. W e accept the concession, conditionally reverse the order s , and remand for the limited purpose of compliance with IC WA

. BACKGROUND 3

In September 2021 , the Agency filed a section 300, subdivision (b) , dependency petition s for Km.C. and Kd.C. , alleging then two

- and three

- year
old minor s (respectively) were at substantial risk of harm because Father was physically abusi ng Mother and violating a criminal protective order (CPO)

. The Agency placed the children in foster care

. At a detention hearing that month , the court detained Km.C. and Kd.C. and ordered reunification services for the parents . The court also asked Mother and maternal grandfather

— both appeared at the hearing

— about
the ir Native American ancestry

. Maternal grandfather stated he was not

1 Undesignated statutory references are to the Welfare and Institutions Code.

2 G

. C . (Mother) is not a party to this appeal.

3 Because Father’s sole contention on appeal concerns ICWA, we limit our factual background accordingly

.3

aware of any such ancestry, but Mother said she had Native American ancestry based on her rec ent DNA test. The court stated the DNA test d id not “necessarily qualif [y] as a basis to believe there is a specific tribal registration” and found “ [ M ] other’s family history

. . . does not app l y.”
At the initial jurisdiction and disposition hearing , Father denied any
known Native American ancestry

. The court found without prejudice that ICWA was inapplicable. Around October 2021, the Agency called a paternal relative about placement and mailed another paternal relative a relative notificatio n letter. 4 T here is no documentation the Agency asked these relatives about
the ir Native American ancestry

. T hat month, t he paternal grandfather appeared at a jurisdiction and disposition hearing , but the court did not inquire about hi s Native American

a ncestry. At t he contested jurisdiction hearing in December 2021 , the court found true the allegation s in the petition s

. Although t he paternal grandfather again appeared , the court did not ask him about his Native American ancestry. The Agency later spoke to the paternal grandfather , but there is no
documentation he was asked about his Native American ancestry. In the meantime, Father completed his substance abuse assessment , tested negative for alcohol an d substances, and took domestic violence , parenting, and education class es

. Then in March 2022, Father was arrested for violating two CPO s, both prohibiting him from coming within 100 yards of
Mother

. According to the police report, Father and Mother wer e still living together and had an altercation before the police arrived at the home

. Father

4 It is unclear from t he record exactly how these relatives are related to the children.4

left the state after the incident and never completed the remainder of his reunification services

. Around the same time, Mother moved to another county and filed a motion to transfer the case to that county

. The Agency agreed to the transfer.
At a special hearing o n December 19, 2022, the court terminated reunification services for Father and transferred the case to Mother’s count y of residence. The court again found without prejudice that ICWA was not applicable. Father appealed.
DISCUSSION In response to concerns regarding the separation of Native American children from their tribes through adoption or foster care placement w ith

non
- Indian families ( In re Isaiah W. (2016) 1 Cal.5th 1, 7 ( Isaiah W. )), Congress enacted ICWA to give tribes the “right to intervene in or exercise jurisdiction over a dependency proceeding involving the Indian child” 5 ( In re
I.F. (2022) 77 Cal.App.5th 152, 160). Under California law adopted pursuant to ICWA, the juvenile court and Agency have an “affir mative and continuing duty to inquire” whether a child “is or may be an Indian child.” (§ 224.2, subd. (a); see Isaiah W. , supra , at p. 9.)
Section 224.2 creates three distinct duties : the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice. ( In re D.S. (2020) 46 Cal.App.5th 1041, 1052 ( D.S. ) ; In re D.F. (2020) 55 Cal.App.5th 558, 566 .) Relevant here is the duty of initial inquiry. Th at duty

“ begins with the initial contact, including, but not limited to, ask ing the party

5 An “ ‘Indian child’ ” is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the bio logical child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); see § 224.1, subd. (a) .)5

reporting child abuse or neglect whether the party has any information that the child may be an Indian child. ” (§ 224.2, subd. ( a ) .) Th e duty further requires the juvenile court to ask , at “the first appearance in court of each party , ” whether each participant knows or has reason to know the child is an
Indian child. (§ 224.2, subd. (c).) “If a child is placed into the temporary custody of a county welfare department pursuant to Sectio n 306 or county probation department pursuant to Section 307,” the Agency has a duty to ask

“ 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 neg lect, whether the child is, or may be, an Indian child

. ” (§ 224.2, subd. (b).) The Agency “ must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received per taining to the child ’ s Indian status .” (Cal. Rules of Court, rule 5.481(a)(5).)
When the facts are undisputed, as here, “ we independently determine whether ICWA ’ s requirements have been satisfied. ” ( D.S. , supra , 46 Cal.App.5th at p. 1051 .)
Father contends the Agency and court failed to fulfill their initial duty of inquiry under subdivisions (a) to (c) of section 224.2. Father asserts
neither the court nor the Agency asked the paternal grandfather and
relatives about the ir Native American ancestry

. The Agency concedes it s failure to ask the paternal relatives is inconsistent with subdivision (b) of
section 224.2 , and it should have asked the paternal grandfather as well

. We question whether subdivision (b) of section 224.2 was triggered if
the c hildren were not placed in temporary custody under section 306 or by6

the probation department pursuant to section 307. 6 (See In re Robert F. (2023) 307 Cal.Rptr.3d 492 , 501

- 502 [ duty to inquire extended family members under section 224.2, subdivision (b) , is triggered only when the
child is placed in temporary custody under section 306 ] ; In re Ja.O. ( 2023 ) 91 Cal.App.5th 672, 681 [ [same] )

. Even so, we need not reach this question here
and conclude the duty of initial inquiry was not satisfi ed independently of whether subdivision (b) applies.
S ubdivision ( c ) imposed on the court a duty to inquire the paternal grandfather about his Native American ancestry when he appeared at two of the hearing s

. (§ 224.2, subd. (c).) The court, however, did not do so , and the Agency never follow ed up with him

. Because t his falls short of the inquiry obligations imposed by section 224.2 , we accept the Agency’s concession. Accordingly , conditional revers al and limited remand are approp riate to

ensur e compliance with the initial duty to inquire

. DISPOSITION
The December 19, 2022 , order s are conditionally reversed

. T he matter
is remanded to the court with directions to comply with the inquiry provisions set forth in section 224.2. If, a fter completing its inquiry, neither the Agency nor the juvenile court has reason to believe or reason to know the children are Indian children, the order s shall be reinstated. If the Agency or the juvenile court has reason to believe or reason to know either of the

6 Section s 306 and 307 authorize a social worker and the probation department to take a child into temporary custody “without a warrant” in certain situations , whereas section 340 provides for the issuance of protective custody warrants. (§ § 306, subd. (a)(1) & (2), 307, 340, subd. (b)(2) .)7

children is an Indian child, the juvenile court shall proceed accordingly. In all other respects, the order s are affirmed. By stipulation of the parties, the clerk of this court is directed to issue the remittitur immediately. (Cal. R ules of Court, rule 8.272(c)(1).)

CASTILLO, J.

WE CONCUR:

DATO, Acting P. J.

KELETY, J.