Filed 4/26/22 In re J.A. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Affirmed with directions.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant E.G.B.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant S.R.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Olivia Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent Los Angeles County Department of Children and Family Services.

_____________________________

Appellants S.R (Mother) and E.G.B. (Father) are the parents of J.R. (born September 2015), J.G. (born June 2019), and G.G. (born April 2020) (collectively, the children).[1] The court declared the children to be dependents of the court and removed them from the parents’ custody. Mother and Father appealed from the court’s dispositional orders. They contend that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with its duty to inquire whether the children are Indian children within the meaning of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) We agree, and will direct the court to ensure DCFS’s compliance with the duty of inquiry.

FACTUAL AND PROCEDURAL SUMMARY[2]

On June 9, 2020, DCFS responded to a child abuse/neglect referral concerning G.G. A social worker interviewed Mother and Father, and each denied having any Indian ancestry. Social workers were unable to locate J.R.’s alleged biological father.

DCFS filed a petition seeking juvenile court jurisdiction for the children under Welfare and Institutions Code section 300, subdivisions (a), (b), and (j).[3] DCFS attached to the petition Judicial Council form ICWA-010 indicating that a social worker made ICWA-related inquiries of Mother on June 9, 2020, and that the children had no known Indian ancestry.

At a detention hearing held on June 26, 2020, Mother submitted a Parental Notification of Indian Status form (Judicial Council Forms, form ICWA-020 (rev. Jan. 1, 2008)), indicating that she had no Indian ancestry as far as she knew. Father submitted a more recent version of the form (Judicial Council Forms, form ICWA-020 (rev. Mar. 25, 2020)), indicating that he had no reason to believe or know that the children were Indian children.[4]

During the detention hearing, the court reviewed the parents’ Judicial Council ICWA-020 forms and noted that the forms “indicate no Indian ancestry as far as they know.” The court then found that there was no reason to believe or know that any of the children are Indian children, within the meaning of ICWA. The court detained the children from Mother and Father, and ordered the parents to keep their attorneys, DCFS, and the court aware of any new information related to possible ICWA status.

In February 2021, DCFS filed a second amended petition under section 300, subdivisions (a), (b), and (j).

After a jurisdiction and disposition hearing held in March 2021, the court sustained the petition and removed the children from Mother and Father. Mother and Father appealed.[5]

The record indicates during the course of the proceedings social workers had contact with, or were able to contact, the maternal grandmother, other “maternal family” members, J.G. and G.G.’s paternal grandparents, and at least two of Father’s sisters. Our record does not indicate, however, that any social worker asked any of these extended family members any questions to determine whether there was reason to believe or know any of the children is an Indian child.

DISCUSSION

When, as here, a child has been placed in temporary custody of a county welfare department pursuant to section 306, DCFS has “a duty to inquire whether that child is an Indian child.” (§ 224.2, subd. (b).) The 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 and where the child, the parents, or Indian custodian is domiciled.” (Ibid.; see Cal. Rules of Court, rule 5.481(a)(1).) An extended family member is, generally, one who is related to the child as a grandparent, aunt or uncle, sibling, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent. (Cal. Rules of Court, rule 5.481(a)(4)(A); 25 U.S.C. § 1903(2).) DCFS is also required, “on an ongoing basis,” to “include in its filings 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).)

Here, it is undisputed that DCFS social workers were in contact with, or were able to contact, several extended family members, including the maternal grandmother, paternal grandparents and aunts (as to J.G. and G.G.), and unidentified maternal family members, but failed to ask any of them questions to determine whether the children are or may be Indian children. DCFS therefore failed to comply with its obligations under California law.

The test for determining whether the failure to comply with California’s duty of inquiry is prejudicial is unsettled. (See, e.g., In re Benjamin M. (2021) 70 Cal.App.5th 735, 745; In re Y.W. (2021) 70 Cal.App.5th 542, 556; In re A.C. (2021) 65 Cal.App.5th 1060, 1070−1073; see also In re A.C., supra, 65 Cal.App.5th at pp. 1074−1078 (dis. opn. of Menetrez, J.).) We need not resolve that question here. Because social workers failed to ask several extended family members on both the maternal and paternal sides of the family who were available to the social workers, the failure to comply with the duty of inquiry is prejudicial under any standard.

We disagree with the parents, however, that the error requires reversal of the court’s orders. When, as here, the appeal is from a dispositional order, the appropriate remedy is to affirm with instructions to require compliance with the duty of inquiry. (See In re A.C. (2022) 75 Cal.App.5th 1009, 1018; see also In re H.V. (2022) 75 Cal. App. 5th 433, 438 [conditionally affirming dispositional order with instructions to direct DCFS comply with its duty of inquiry]; In re Brooke C. (2005) 127 Cal.App.4th 377, 385 [same].)

DISPOSITION

The juvenile court’s dispositional orders are affirmed. The juvenile court is directed to order DCFS (1) to comply with the requirements of Welfare and Institutions Code section 224.2 and California Rules of Court, rule 5.481(a) forthwith, and (2) to file a report with the juvenile court within 30 days of our remittitur containing the information required by California Rules of Court, rule 5.481(a)(5), including a description of all inquiries to extended family members. The court shall conduct further proceedings in accordance with the ICWA, if applicable, and related California law.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.

[1] The court found E.G.B. to be the presumed father of J.G. and G.G. based on E.G.B.’s voluntary declarations of parentage and Family Code section 7611, subdivision (d). The court found E.G.B. to be the presumed father of J.R. based on Family Code section 7611, subdivision (d). The whereabouts of an alleged biological father of J.R. remained unknown throughout the proceeding.

Mother is also the mother of a fourth child born in 2011. The court placed that child in the custody of her presumed father (not E.G.B.). For that reason, Mother does not assert any error in the proceedings with respect to that child.

[2] Because the issues on appeal are whether DCFS has complied with its duty of inquiry under ICWA-related California law and, if not, what is the appropriate disposition on appeal, we focus our summary of facts and procedural history on the facts relevant to these issues.

[3] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

[4] Judicial Council form ICWA-020 that Father submitted included checkboxes next to the following statements: (a) “I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe”; (b) “The child is or may be a member of, or eligible for membership in, a federally recognized Indian tribe”; (c) “One or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe”; (d) “I am a resident of or am domiciled on a reservation, rancheria, Alaska Native village, or other tribal trust land”; (e) “The child is a resident of or is domiciled on a reservation, rancheria, Alaska Native village, or other tribal trust land”; (f) “The child is or has been a ward of a tribal court”; (g) “Either parent or the child possesses an Indian identification card indicating membership or citizenship in an Indian tribe”; and (h) “None of the above apply.” Father checked the box next to “None of the above apply.”

[5] We assigned case No. B311092 to Father’s appeal and case No. B312186 to Mother’s appeal. We have ordered the two cases consolidated for purposes of briefing, oral argument, and decision.