Filed 7/14/22 In re A.P. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Brett Bianco, Judge. Conditionally reversed and remanded with directions.

Emily Uhre, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly Emling, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Mother appeals from an order terminating parental rights to her children under Welfare and Institutions Code section 366.26.[1] Mother argues the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with section 224.2, subdivision (b)—the California statute implementing the initial inquiry rules of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). Mother also contends that the juvenile court failed to carry out its duty to question the parents about Indian heritage and ensure DCFS performed a proper ICWA inquiry. We conditionally reverse and remand for DCFS and the juvenile court to comply with their ICWA inquiry statutory responsibilities.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and father have two children (born 2011 and 2018). On December 31, 2018, DCFS filed a two-count section 300 petition, requesting the court take jurisdiction over the children. The petition, which was later amended in May 2019, alleged that mother’s mental and emotional problems, and failure to consistently participate in mental health treatment and take prescribed psychotropic medications rendered mother periodically incapable of providing appropriate care and supervision for the children. It alleged father’s ongoing incarceration prevented him from providing for the children’s life necessities. DCFS attached ICWA-010(A) forms to the petition showing the social worker questioned mother on December 27, 2018 about her ancestry, and mother reported “no known Indian ancestry.”

On January 29, 2019, DCFS detained the children in foster care.

On February 1, 2019, mother completed ICWA-020 forms, reporting she had no known Indian ancestry. At the detention hearing the same day, mother appeared but the court did not ask if she had Indian ancestry. Rather, the court found ICWA inapplicable to mother based on mother’s ICWA-020 forms. The minute order stated the same.

On February 1, 2019, DCFS filed a “Relative Information Sheet” listing the names and contact information for a maternal great aunt and the maternal grandmother. DCFS contacted them regarding placement of the children, but the record is silent about whether DCFS inquired about Indian heritage. The detention report contained an interview with the maternal grandmother, spoke of the children’s godmother, and identified a maternal aunt (different from the maternal great aunt) who wanted to be considered for placement. The record does not indicate these extended family members were asked about Native American ancestry.

On March 14, 2019, father completed an ICWA-020 form and checked the box indicating “I have no Indian ancestry as far as I know.” At the hearing on that same day with father present, the court stated, “Based on Father’s notification of Indian status form, the court will find ICWA does not apply to him.” The court did not ask father any questions regarding Indian ancestry. The corresponding minute order stated: “The Court does not have a reason to know that this is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the BIA. Parents are to keep the Department, their Attorney and the Court aware of any new information relating to possible ICWA status. ICWA-020, the Parental Notification of Indian Status is signed and filed.” Subsequent status reports likewise stated that the court had no reason to know ICWA applied to the family.

On May 2, 2019, mother pleaded no contest to count 1, and the juvenile court adjudicated count 2 pertaining to father. The court sustained both counts. At the disposition hearing on June 4, 2019, the court removed the children from the parents. The court ordered reunification services for mother and denied reunification services to father due to the length of his prison sentence. The court ordered monitored visitation for both parents.

At the six-month review hearing on December 3, 2019, mother’s reunification services were continued despite her noncompliance with the case plan.

On June 26, 2020, the children were placed with the paternal grandparents. The household consisted of paternal great-grandparents, paternal grandparents, and three paternal aunts. It does not appear that DCFS asked them about Indian heritage during the pendency of this case.

On September 15, 2020, the court found mother was in substantial compliance and continued her reunification services. On March 16, 2021, the court terminated mother’s reunification services and set the matter for a permanency planning hearing.

On November 8, 2021, the court terminated parental rights. Mother filed a timely notice of appeal, challenging the order terminating parental rights. Father did not appeal.

DISCUSSION

The only error mother asserts on appeal deals with ICWA compliance. She contends: (1) DCFS failed to inquire with extended family members about Indian heritage, and (2) the juvenile court failed to ask the parents about their heritage at their first court appearance and otherwise ensure that DCFS properly investigated Indian heritage. She argues these violations of the California statutes implementing ICWA were prejudicial and require conditional reversal. DCFS contends that substantial evidence supports the trial court ICWA findings and any error was harmless.

1. ICWA and the Standard of Review

The juvenile court and DCFS have an affirmative and continuing duty under ICWA and related California law to inquire whether a child who is the subject of a dependency proceeding is or may be an Indian child. (In re Isaiah W. (2016) 1 Cal.5th 1, 10–11.) The scope of the duty of inquiry is defined in regulations promulgated under ICWA (see 25 C.F.R. § 23.107 et seq. (2020)), California statutes, and rules of court. (In re T.G. (2020) 58 Cal.App.5th 275, 290–291 (T.G.).) Here, we apply the statutes in effect in July 2021, when the section 366.26 hearing took place. (In re A.M. (2020) 47 Cal.App.5th 303, 321.)

By statute, DCFS’s initial duty of inquiry at the beginning of a child welfare proceeding 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).) The court must inquire at each party’s first appearance, whether any participant in the proceeding “knows or has reason to know that the child is an Indian child.” (Id. at subd. (c).) Part of the initial inquiry includes requiring each party to complete the ICWA-020 form. (Cal. Rules of Court, rule 5.481(a)(2)(C).) When there is “reason to believe that an Indian child is involved in a proceeding,” further inquiry is required. (§ 224.2, subd. (e); T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.)

On undisputed facts, we make an independent determination whether ICWA’s requirements have been satisfied. (In re D.F. (2020) 55 Cal.App.5th 558, 565.)

2. DCFS and the Juvenile Court Failed to Comply with Section 224.2

Mother correctly contends DCFS had an obligation under section 224.2, subdivision (b) to ask extended family members about Indian ancestry. Here, DCFS failed to ask the paternal and maternal grandparents and aunts, many of whom were involved in the dependency proceedings, about Indian ancestry. “Nothing in section 224.2, subdivision (b), relieves the Department of its broad duty to seek that information from ‘all relevant’ individuals [citation] simply because a parent states on the ICWA-020 form, . . . ‘I have no Indian ancestry as far as I know.’ Such a rule ignores the reality that parents may not know their possible relationship with or connection to an Indian tribe.” (In re Y.W. (2021) 70 Cal.App.5th 542, 554.) Relying entirely on the parents’ written representations was error in the circumstances present here, where DCFS was in direct contact with and interviewing several relatives, and asked none of them about the children’s possible Indian ancestry.

We also agree with mother that the juvenile court failed to discharge its duty of inquiry under section 224.2, subdivision (c). The court did not inquire with each participant present in court at mother’s first court appearance on February 1, 2019 and father’s first court appearance on March 14, 2019, “whether the participant knows or has reason to know that the child is an Indian child.” (Id. at subd. (c).)

3. DCFS’s Error Was Prejudicial

DCFS acknowledges that another panel of this Division has found prejudice based on similar facts in In re H.V. (2022) 75 Cal.App.5th 433 (H.V.). There, DCFS asked mother about the child’s Indian ancestry, and mother “did not give the social worker any reason to believe the child was or might be an Indian child.” (Id. at p. 436.) The social worker interviewed maternal great-grandmother and paternal great-grandfather, but failed to ask questions about the child’s Indian heritage. Mother also executed an ICWA-020 form in which she denied any knowledge of Indian ancestry. (Ibid.) In response to an inquiry from the juvenile court, mother (through counsel) “indicated that alleged father did not have Indian ancestry.” (Ibid.)

On the appeal from jurisdiction and disposition orders, DCFS did not contend it discharged its first-step inquiry. It instead argued that mother must make an affirmative representation of Indian ancestry or any error is deemed harmless. (H.V., supra, 75 Cal.App.5th at p. 438.) The appellate court disagreed. “Mother does not have an affirmative duty to make a factual assertion on appeal that she cannot support with citations to the record.” (Ibid.) It found the error prejudicial and remanded for ICWA compliance.[2] (Id. at pp. 438–439.)

Here and in H.V., DCFS knew about extended family members but asked them nothing about the child’s Indian ancestry. As in H.V., we conclude here that DCFS’s error was prejudicial.[3]

DCFS asserts that we should not follow the majority opinion in H.V. DCFS contends that adhering to the “literal words” of section 224.2, which mandate DCFS’s inquiry of available extended family members, “leads to a legally untenable result.” DCFS asserts that if we reverse, DCFS may be “ ‘left to follow a new unspoken rule: interrogate every person contacted in a child welfare investigation about ICWA issues and hope both the juvenile courts and reviewing courts will agree that is enough.’ ”

We disagree and decline to depart from the court’s analysis and resolution in H.V. DCFS is not left with a new rule or untenable result — it is left to follow section 224.2, as it has been in effect since January 1, 2019. DCFS must 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.” (§ 224.2, subd. (b).)

DCFS argues that “given that both Mother and Father denied Indian ancestry [citations], that the children were placed with and slated to be adopted by paternal relatives [citations], and that Mother makes no affirmative representation on appeal that additional inquiry of the maternal and paternal relatives would bear meaningfully on whether the child is an Indian child (see AOB), the juvenile court had sufficient information to find the ICWA did not apply.”

These arguments are factually correct. The second and third, however, are legally unpersuasive. As to the parents’ failure to represent that further inquiry is likely to be meaningful, the H.V. court stated, “Mother does not have an affirmative duty to make a factual assertion on appeal that she cannot support with citations to the record.” (H.V., supra, 75 Cal.App.5th at p. 438.) “By failing to conduct an adequate inquiry, the Department virtually guarantees that the (incomplete) information it obtains will support a finding ICWA does not apply” and such reasoning “allows the harmless error exception to swallow the rules governing the duty to inquire.” (In re J.C. (2022) 77 Cal.App.5th 70, 80–81.)

Nor does the fact that the children are to be adopted by paternal grandparents support affirmance of the trial court’s order. The paternal grandparents did not have an obligation, absent inquiry, to bring to DCFS’s attention information about the family’s Indian ancestry.

We do not suggest that in every case where initial DCFS inquiry is limited to the receipt of negative Indian ancestry on an ICWA-020 that error is automatically prejudicial. There may be circumstances that make further inquiry unavailable or unnecessary. For example, in In re Darian R. (2022) 75 Cal.App.5th 502, 510, the appellate court held that failure to inquire of the children’s maternal aunt and grandfather was not prejudicial because in earlier dependency proceedings the juvenile court had found that the children did not have Indian ancestry. That is not our case.

Lastly, DCFS’s argument that “Because substantial evidence supported the juvenile court’s finding, this Court should affirm” misses the point. “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, we will not, as a general rule, conclude that substantial evidence supports the court’s finding that proper and adequate ICWA notices were given or that ICWA did not apply. Instead, as a general rule, we will find the appellant’s claims of ICWA error prejudicial and reversible.” (In re N.G. (2018) 27 Cal.App.5th 474, 484.)

We remand for the juvenile court to order DCFS to comply with its ICWA inquiry duties.

DISPOSITION

The order terminating mother’s parental rights to the children is conditionally reversed and the matter is remanded with directions to the juvenile court to order the DCFS to comply with ICWA by making diligent efforts to interview available extended family members, as defined by section 224.1, subdivision (c) and 25 U.S.C. section 1903(2). At a minimum, those efforts shall be directed to the two maternal great aunts, the maternal grandmother, and those relatives of father who live in paternal grandparent’s home.

Based on those efforts, if no further inquiry is required, the court’s original order shall be reinstated. If further inquiry is required, the court shall ensure that DCFS complies with all applicable ICWA statutes and regulations, as well as related state statutes and rules. After ICWA compliance, unless a tribe indicates the children are Indian children, the court shall reinstate the order terminating mother’s parental rights. If the children are Indian children, the court shall proceed in accord with all applicable ICWA statutes and regulations, as well as related state statutes and rules.

In all other respects, the order is affirmed.

RUBIN, P. J.

WE CONCUR:

MOOR, J.

KIM, J.

[1] All further undesignated statutory references are to the Welfare and Institutions Code.

[2] Justice Baker, in his dissent in H.V., decried ICWA’s complexity, finding it anything but straightforward, a point with which we agree. (H.V., supra, 75 Cal.App.5th at p. 440 (dis. opn. of Baker, J.).) He concluded that under appropriate substantial evidence review, there was “substantial evidence supporting the juvenile court’s determination that ICWA does not apply.” (Id. at p. 441.)

[3] Arguably In re H.V., supra, 75 Cal.App.5th 433, is a stronger case for prejudice than the present one as the only information about father there came not from father or his family, but from mother.