Filed 5/11/22 In re Alyssa P. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Stacy Wiese, Judge. Conditionally affirmed with directions.

Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Melissa L. appeals from the juvenile court’s order terminating her parental rights to Alyssa P. and Laura L. Melissa argues the Los Angeles County Department of Children and Family Services did not comply with the requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because the Department did not ask Alyssa’s and Laura’s known relatives about possible Indian ancestry. She also argues the court did not comply with its duty to ensure the Department conducted an adequate inquiry.

We agree with both contentions. Because the Department breached its duty of inquiry under ICWA and Welfare and Institutions Code section 224.2, subdivision (b),[1] and because the court breached its duty to ensure the Department conducted an adequate inquiry, substantial evidence did not support the court’s finding ICWA did not apply. Therefore, we conditionally affirm the juvenile court’s orders and direct the court to ensure the Department complies with section 224.2 and, if necessary, the notice provisions under ICWA and related California law.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Dependency Proceedings

Melissa is the mother of 11-year-old Alyssa and three-year-old Laura. Alyssa’s father is Joel; Laura’s is Gabriel. In September 2018 the Department filed a petition under section 300 for an order declaring Alyssa and Laura dependent children of the court. The Department alleged Melissa abused methamphetamine and cannabis, was under the influence of drugs while the children were in her care, and failed to take her prescribed medication for bipolar disorder and depression, all of which placed the children at substantial risk of serious physical harm.

The Department initially did not seek to remove the children from Melissa. At the November 2018 jurisdiction and disposition hearing the court sustained an amended version of the Department’s petition, placed the children with Melissa under the supervision of the Department, and ordered the Department to provide family maintenance services. In April 2019, however, the Department filed a supplemental petition under section 387 asking the juvenile court to remove the children from Melissa because she had not participated in a court-ordered substance abuse treatment program and court-ordered drug testing and had failed to “maintain a clean and safe home environment” for the children. In June 2019 the court sustained an amended version of the section 387 petition, removed both children from Melissa, and ordered family reunification services for her.

The Department placed Alyssa with Joel’s mother, Sylvia (Alyssa’s paternal grandmother), and placed Laura with a nonrelative caregiver, Ms. M. At the six-month review hearing the court found Melissa had not made substantial progress toward alleviating or mitigating the causes that necessitated placement and terminated her reunification services. In July 2021 the court, after several continuances, held a hearing to select permanent plans for Alyssa and Laura. The court found both children were adoptable, designated Sylvia as Alyssa’s prospective adoptive parent and Ms. M. as Laura’s prospective adoptive parent, and terminated Melissa’s parental rights to the children.[2]

B. Inquiry Under ICWA and Related California Law

1. The Juvenile Court’s Inquiry

At the initial detention hearing, Melissa completed Judicial Council form ICWA-020, Parental Notification of Indian Status, and checked the box next to the statement, “I have no Indian ancestry as far as I know.” Neither Joel nor Gabriel was present at the hearing. The court asked Melissa if she knew whether Joel or Gabriel has any Indian ancestry. Melissa responded: “No. I do not know.” The court found there was “no reason to know . . . that the Indian Child Welfare Act applies to the case.”

Gabriel first appeared at a court hearing in April 2019.[3] Like Melissa, Gabriel completed Judicial Council form ICWA‑020 and checked the box next to the statement, “I have no Indian ancestry as far as I know.” The court found that there was “no reason to know” Laura was “an Indian child within the meaning of ICWA” and that “ICWA [did] not apply.” There is no indication in the record the court ever inquired again about the children’s possible Indian ancestry.

2. The Department’s Inquiry

In October 2018 an investigator for the Department spoke with Melissa and her mother and asked each whether she had any known Indian ancestry. Each stated she did not. Melissa reported she had three adult siblings, two of whom were close to her. In April 2019 a social worker for the Department spoke with Melissa at Melissa’s residence. When the social worker asked if Alyssa was home, Melissa stated Alyssa was at the store with one of her (Alyssa’s) aunts. Nothing in the record suggests the Department attempted to contact any of Melissa’s siblings.

An investigator for the Department spoke with Joel in May 2018, before the Department filed its petition. Joel stated he had no known Indian ancestry. The Department tried but was unable to contact Joel again.

As stated, the Department eventually placed Alyssa with Sylvia, Joel’s mother (Alyssa’s paternal grandmother). Department social workers spoke with Sylvia multiple times. In September 2020 a social worker met with Sylvia and her adult daughter, Ashley (Joel’s sister and Alyssa’s paternal aunt). The two stated that Ashley was planning to move in with Sylvia and that they, along with Sylvia’s husband (Joel’s father and Alyssa’s paternal grandfather), were interested in adopting Alyssa. In July 2021, immediately before the permanency planning hearing, the Department reported that Sylvia, her husband, and Ashley were still committed to adopting Alyssa. Nothing in the record suggests anyone from the Department asked any of the three family members about possible Indian ancestry.

In April 2019 a social worker spoke with Gabriel’s mother (Laura’s paternal grandmother) about whether she could care for Laura.[4] At some point prior to September 2020 the Department, at Gabriel’s request, tried to mail documents intended for Gabriel to the address of two people the Department identified as Laura’s “paternal aunt” and “paternal uncle.” The aunt and uncle sent the documents back and told the Department they would not accept mail addressed to Gabriel. Nothing in the record suggests the Department asked Laura’s paternal grandmother, the aunt, or the uncle about possible Indian ancestry.

DISCUSSION

A. Applicable Law

“Congress enacted ICWA in 1978 in response to ‘rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of 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.’” (In re Isaiah W. (2016) 1 Cal.5th 1, 8; see In re J.C. (2022) 77 Cal.App.5th 70, 76; In re T.G. (2020) 58 Cal.App.5th 275, 287.) ICWA provides: “‘In any involuntary proceeding in a State 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, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ [Citation.] This notice requirement, which is also codified in California law [citation], enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding.” (In re Isaiah W., at p. 5; see 25 U.S.C. § 1912(a); § 224.3, subd. (a); In re J.C., at p. 76; In re H.V. (2022) 75 Cal.App.5th 433, 436.)^[5]

“‘“‘Federal regulations implementing ICWA . . . require that state courts “ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.” [Citation.] The court must also “instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.”’”’” (In re J.C., supra, 77 Cal.App.5th at p. 77; see 25 C.F.R. § 23.107(a).) California law “‘more broadly imposes on social services agencies and juvenile courts (but not parents) an “affirmative and continuing duty to inquire” whether a child in the dependency proceeding “is or may be an Indian child.”’” (In re J.C., at p. 77; see § 224.2, subd. (a); In re Benjamin M. (2021) 70 Cal.App.5th 735, 741-742.)

“Section 224.2 ‘“‘creates three distinct duties regarding ICWA in dependency proceedings.’”’” (In re J.C., supra, 77 Cal.App.5th at p. 77; see In re H.V., supra, 75 Cal.App.5th at p. 437; In re Charles W. (2021) 66 Cal.App.5th 483, 489.) “First, section 224.2, subdivision (b), requires the child protective agency 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 neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.’” (In re J.C., at p. 77; see In re H.V., at p. 437; Cal. Rules of Court, rule 5.481(a)(1).) Although this duty is “commonly referred to as the ‘initial duty of inquiry,’ it ‘begins with the initial contact’ (§ 224.2, subd. (a)) and continues throughout the dependency proceedings.” (In re J.C., at p. 77.)

“Second, if the court or 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 and the Department ‘shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.’” (In re J.C., supra, 77 Cal.App.5th at p. 78; see § 224.2, subd. (e); In re H.V., supra, 75 Cal.App.5th at p. 437; Cal. Rules of Court, rule 5.481(a)(4).) “Third, if the further inquiry ‘“‘results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply.’”’” (In re J.C., at p. 78; see 25 U.S.C. § 1912(a); § 224.3, subd. (a); In re H.V., at p. 437.)

“‘“‘The juvenile court must determine whether . . . ICWA applies to the proceedings.’” [Citation.] “If the court makes a finding that proper and adequate further inquiry and due diligence as required in [section 224.2] 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.”’” (In re J.C., supra, 77 Cal.App.5th at p. 78; see § 224.2, subd. (i)(2); In re D.S. (2020) 46 Cal.App.5th 1041, 1050; Cal. Rules of Court, rule 5.481(b)(3).) The court may not, however, “find that ICWA does not apply when the absence of evidence that a child is an Indian child results from a [child protective agency] inquiry that is not proper, adequate, or demonstrative of due diligence . . . .” (In re Josiah T. (2021) 71 Cal.App.5th 388, 408; see In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)

B. The Department Failed To Conduct an Adequate Inquiry into the Children’s Possible Indian Ancestry, and the Court Failed To Ensure the Department Complied with ICWA and California Law

Melissa argues the Department failed to conduct an adequate inquiry into whether Alyssa and Laura may be Indian children. She is correct. The Department failed to ask several known extended family members—some of whom Department social workers and investigators spoke with, others the Department had leads to locate—whether the children had possible Indian ancestry. (See In re H.V., supra, 75 Cal.App.5th at p. 438 [child protective agency’s “first-step inquiry duty under ICWA and state law was broader” than simply asking the parent about possible Indian ancestry, “requiring it also to interview, among others, extended family members”].)

Most obviously, the Department could and should have asked the three biological family members who wanted to adopt Alyssa: her paternal grandmother, Sylvia; her paternal grandfather; and her paternal aunt, Ashley. (See 25 U.S.C. § 1903(2) [“‘extended family member’” includes the child’s “grandparent” and adult “aunt or uncle”]; § 224.1, subd. (c) [“‘extended family member’” is “defined as provided in Section 1903 of the federal Indian Child Welfare Act”].) Department social workers had repeated communications with Sylvia over a period of almost two years. Nothing in the record suggests the Department contacted Alyssa’s paternal grandfather, despite knowing he lived with Sylvia and intended to adopt Alyssa. The Department’s failure to ask the grandparents about possible Indian ancestry violated section 224.2, subdivision (b). (See In re J.C., supra, 77 Cal.App.5th at p. 79 [child protective agency’s failure to ask the child’s paternal grandmother about possible Indian ancestry “violated the express mandate of section 224.2, subdivision (b)”]; In re Antonio R. (2022) 76 Cal.App.5th 421, 431 [child protective agency’s failure to ask maternal grandparents, with whom the agency placed child, about possible Indian ancestry violated section 224.2]; In re Y.W. (2021) 70 Cal.App.5th 542, 552-553 [child protective agency violated section 224.2, subdivision (b), by failing to “make meaningful efforts to locate and interview” the child’s grandparents].) So did the Department’s failure to ask Melissa’s paternal aunt, Ashley, whom a social worker spoke with at least once. (See In re Antonio R., at p. 421 [child protective agency’s failure to interview maternal aunt and uncle about possible Indian ancestry violated section 224.2]; In re Darian R. (2022) 75 Cal.App.5th 502, 509 [child protective agency violated section 224.2 by failing to interview a maternal aunt about possible Indian ancestry]; In re N.G. (2018) 27 Cal.App.5th 474, 482 [child protective agency breached its duty of inquiry by failing to ask a maternal uncle about possible Indian ancestry].)

The Department also violated section 224.2 by failing to ask Laura’s paternal relatives (i.e., Gabriel’s relatives) about possible Indian ancestry. The Department spoke at least once with Gabriel’s mother (Laura’s paternal grandmother). And the Department had contact information for two people identified as Laura’s paternal aunt and paternal uncle, but made no effort to contact them. (See In re K.R. (2018) 20 Cal.App.5th 701, 709 [“a social services agency has the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child’s possible Indian status”].)

Finally, the Department failed to contact some of Melissa’s known relatives to ask about possible Indian ancestry. While the Department did ask Melissa’s mother about possible Indian ancestry, Melissa also identified three adult siblings (the children’s maternal aunts and uncles). Nothing in the record suggests the Department attempted to contact them. (See In re S.R. (2021) 64 Cal.App.5th 303, 314 [section 224.2 “obligates the court and child protective agencies to ask all relevant involved individuals . . . ‘whether the child is, or may be, an Indian child’”].)

Melissa also correctly argues the juvenile court erred in failing to ensure the Department adequately investigated whether Alyssa and Laura may be Indian children. (See § 224.2, subd. (a).) Nothing in the record shows the juvenile court inquired about the Department’s efforts. (See In re J.C., supra, 77 Cal.App.5th at p. 79 [juvenile court “did not satisfy its duty to ensure the [child protective agency] adequately investigated whether [the child] may be an Indian child” where there was “no indication in the record that, after the detention hearing, the juvenile court gave ICWA another thought in the almost three years of this dependency case”].) Most significantly, the court was aware the Department had placed Alyssa with her paternal grandmother, Sylvia. The court easily could have asked the Department whether it had asked Sylvia and the other relatives with whom Alyssa lived about whether the children had any possible Indian ancestry. (See In re N.G., supra, 27 Cal.App.5th at p. 482 [juvenile court “also had a duty to ensure” the child protective agency made the relevant inquiries].)

C. The Department Must Conduct an Adequate Inquiry

Citing In re Benjamin M., supra, 70 Cal.App.5th 735, the Department argues that remanding for the Department “to conduct an additional inquiry of relatives” is “not likely to bear meaningfully upon whether [the child] is an Indian child.” According to the Department, the juvenile court was able to make a “reliable determination” ICWA did not apply based solely on the children’s parents’ (and one grandparent’s) statements they had no known Indian ancestry.

We have repeatedly rejected similar arguments by the Department. (See, e.g., In re J.C., supra, 77 Cal.App.5th at p. 80; In re Antonio R., supra, 76 Cal.App.5th at pp. 432-433; In re Y.W., supra, 70 Cal.App.5th at p. 556.) As we have explained, where a child protective agency fails to discharge its duty of inquiry under ICWA and related California law, “the error is in most circumstances . . . prejudicial and reversible.” (In re Antonio R., at p. 435; see In re N.G., supra, 27 Cal.App.5th at p. 484 [“In the absence of an appellate record affirmatively showing the court’s and the agency’s efforts to comply with ICWA’s inquiry and notice requirements, . . . as a general rule, we will find the appellant’s claims of ICWA error prejudicial and reversible.”].) “Speculation as to whether extended family members might have information likely to bear meaningfully on whether the child is an Indian child has no place in the analysis of prejudicial error where there is an inadequate initial inquiry.” (In re Antonio R., at p. 435; see In re Christopher L. (2022) ___ Cal.5th ___, ___ [2022 WL 1210274, p. 9] [“appellate courts should be wary of finding harmless error ‘[w]hen a counterfactual inquiry appears too difficult to responsibly undertake, or a counterfactual conclusion relies on inferences that really amount to guesswork,’” quoting In re. J.P. (2017) 15 Cal.App.5th 789, 804 (conc. opn. of Baker, J.)].)

The Department also misapplies the holding in In re Benjamin M. to the facts here. As the court in In re Benjamin M. explained, the question is whether the readily obtainable information is likely to bear meaningfully on the inquiry whether a child is an Indian child, not whether the information is likely to show the child is an Indian child. (In re Benjamin M., supra, 70 Cal.App.5th at p. 744; see In re J.C., supra, 77 Cal.App.5th at p. 82.) The court in In re Benjamin M. acknowledged “[t]here are cases where . . . it was obvious that additional information would not have been meaningful to the inquiry. This might occur where the evidence already uncovered in the initial inquiry was sufficient for a reliable determination.” (In re Benjamin M., at p. 743.)

But here, the Department’s inquiry was not “sufficient for a reliable determination”—particularly its inquiry into whether Alyssa and Laura may have Indian ancestry through their respective fathers, Joel and Gabriel. A parent’s denial of known Indian ancestry, absent confirmation from other family members or additional efforts by the Department to inquire about possible Indian ancestry, is not sufficient for a reliable determination. (See In re J.C., supra, 77 Cal.App.5th at p. 81 [“the extensive inquiry requirements under section 224.2 presume that a parent’s declaration on the ICWA-020 form, reliable or not, is not enough and that the child protective agency must do more than look at the form”]; In re Y.W., supra, 70 Cal.App.5th at p. 554 [“parents may not know their possible relationship with or connection to an Indian tribe”].)[6] There were a whole host of family members the Department should have, and easily could have, asked about possible Indian ancestry and whose responses would have borne meaningfully on the inquiry. (See In re Antonio R., supra, 76 Cal.App.5th at p. 435 [“In most circumstances, the information in the possession of extended relatives is likely to be meaningful in determining whether the child is an Indian child—regardless of whether the information ultimately shows the child is or is not an Indian child.”]; cf. In re T.G., supra, 58 Cal.App.5th at p. 295 [“[a]dditional investigation may not develop further information establishing the need for ICWA notice, but it is essential to the enforcement of the court’s and child protective agency’s ‘affirmative and continuing duty to inquire’ to construe broadly the duty to make further inquiry”].) Indeed, the court in In re Benjamin M. held remand was necessary where the child protective agency failed to ask the child’s paternal relatives about possible Indian ancestry because, while the court could not “know how [the relatives] would answer,” the “information those relatives could have given would likely have shed meaningful light” on whether ICWA applied. (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.)

The Department asks us to take judicial notice of a 2014 juvenile court order finding ICWA did not apply in a prior dependency proceeding involving Alyssa and juvenile court orders from 2018 finding ICWA did not apply in a prior dependency proceeding involving Joel’s other children (Alyssa’s half-siblings). The Department argues that, because prior courts found ICWA did not apply to proceedings involving Alyssa and her siblings, there is no need to remand the matter as to Alyssa.

We have no problem taking (and do take) judicial notice of these orders from the prior dependency cases. But the orders do not eliminate the need for the Department in this case to comply with its duty of inquiry under ICWA and California law. Each of the prior orders was issued before January 1, 2019, when “the Legislature amended sections 224.2 and 224.3 . . . to require inquiry of extended family members . . . .” (In re J.C., supra, 77 Cal.App.5th at p. 82.)[7] That juvenile courts may have found ICWA did not apply to Alyssa and her siblings prior to 2019 does not mean the Department complied with its duties of inquiry under the current version of section 224.2. Relying on pre-2019 ICWA findings is particularly inappropriate where, as here, the parent states she is unaware of possible Indian ancestry, but argues the Department violated section 224.2 by failing to inquire of extended family members. (Compare In re Charles W., supra, 66 Cal.App.5th at p. 490 [child protective agency’s inquiry was adequate where the juvenile court found in 2019 that ICWA did not apply to child’s siblings].)[8]

Moreover, the orders from the prior dependency cases do not reflect the bases for the courts’ findings in those cases that ICWA did not apply. There is no evidence, for example, the Department’s inquiry of Alyssa’s possible ancestry in 2014 or her half-sibling’s possible Indian ancestry in 2018 was any different from the Department’s “inquiry” here—asking Joel whether he had any known ancestry and doing nothing more. To allow the Department to repeatedly avoid its obligation to inquire about possible Indian ancestry from known family members would be contrary to the purpose of the statutory inquiry requirements. (See In re T.G., supra, 58 Cal.App.5th at p. 295 [“the imposition of a duty to inquire . . . is premised on the commonsense understanding that, over time, Indian families, particularly those living in major urban centers like Los Angeles, may well have lost the ability to convey accurate information regarding their tribal status,” and “the information available at the outset of dependency proceedings will often be inadequate to ensure the necessary protection of the rights and cultural heritage of Indian children, Indian families and Indian tribes”].)

DISPOSITION

The juvenile court’s orders are conditionally affirmed. The juvenile court is directed to ensure the Department complies fully with the inquiry and, if necessary, notice provisions of ICWA and related California law, including interviewing Alyssa’s grandparents, Ashley, and Laura’s grandmother, and any other extended family members the Department or court identifies.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

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

[2] The court also terminated Joel’s parental rights to Alyssa and Gabriel’s parental rights to Laura. Neither father is a party to this appeal.

[3] Before the Department filed its section 300 petition, Melissa told a social worker for the Department she did not know where Gabriel lived. A social worker eventually spoke with Gabriel in April 2019 after law enforcement arrested him. Gabriel stated that he had been living with Melissa for the past two years and that Melissa had been “hiding” him from the Department “to collect welfare.”

[4] Gabriel said he was not in contact with his father.

[5] “‘Indian child’ means 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 biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); see § 224.1, subds. (a), (b).)

[6] The Department attempts to distinguish In re Y.W., supra, 70 Cal.App.5th 542 by arguing that, “unlike the mother in Y.W.,” Melissa, Joel, and Gabriel did not “report being adopted or being unfamiliar with their biological relatives.” The Department’s insistence that additional inquiry of relatives is only likely to bear meaningfully on the ICWA inquiry under such narrow circumstances is incorrect. (See In re J.C., supra, 77 Cal.App.5th at pp. 80-81 & fn. 4; In re Antonio R., supra, 76 Cal.App.5th at p. 435.)

[7] Prior to 2019, the relevant statutes did not state, as section 224.2, subdivision (b), now states, that the agency’s “affirmative and continuing duty to inquire” beginning with initial contact included “asking . . . extended family members.” (Compare § 224.2, subds. (a), (b), with former § 224.3, subd. (a), added by Stats. 2006, ch. 838, § 32, eff. Jan. 1, 2007.)

[8] As we explained in In re J.C., supra, 77 Cal.App.5th at pages 82-83, we do not agree with the courts’ analysis in In re Darian R., supra, 75 Cal.App.5th at page 509 that a child protective agency’s failure to inquire of extended family members was harmless where a juvenile court found prior to 2019 that ICWA did not apply to the dependent child’s siblings.