Filed 4/28/22 In re J.M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Nichelle L. Blackwell, Judge Pro Tempore. Conditionally affirmed and remanded with directions.

Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

R.M. (father) appeals from the juvenile court’s jurisdiction and disposition orders, contending that the juvenile court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with their duties under the federal Indian Child Welfare Act (ICWA) and related state statutes and court rules. We conditionally affirm the court’s orders but remand for the limited purpose of ensuring compliance with ICWA’s requirements.

BACKGROUND[1]

1. Section 300 Petition

R.M. and A.V. (mother)[2] are the parents of J.M. In May 2021, the juvenile court sustained the Department’s amended section 300[3] petition alleging J.M. was at risk due to the parents’ history of engaging in violent altercations in the home, mother was arrested for perpetrating domestic battery and assault with a deadly weapon on father, mother failed to protect the child from the violence, father was arrested for domestic violence against mother, mother had a restraining order against father, father was issued a restraining order against mother, mother subsequently attacked father using a box cutter, J.M. intervened by attempting to take the box cutter away from mother, father hit mother, mother failed to protect J.M. from the violence by allowing father to visit J.M. in the home in violation of the juvenile court’s orders, mother had a history of alcohol abuse, mother was a current abuser of alcohol, and father had a history of illicit drug abuse and was a current abuser of methamphetamine. Moreover, the juvenile court removed J.M. from his parents and placed him in foster care.

2. ICWA Facts

In January 2021, mother filed a Parental Notification of Indian Status form and reported she had no affiliation with any Tribe. Subsequently, at the detention hearing in February 2021, the juvenile court asked mother whether she or father had “any Native American Indian heritage in [their] background.” Mother said she did not and had no knowledge of father having any. Consequently, the juvenile court found it had “no reason to know” J.M. was an Indian child. In March 2021, father reported to the Department that he did not have Native American Indian ancestry. Father confirmed the same to the juvenile court in April 2021. That same month, father filed an unsigned Parental Notification of Indian Status form and reported having no affiliation with any Tribe. The juvenile court subsequently found it had no reason to know J.M. was an Indian child and therefore ICWA did not apply.

Father notes the Department spoke with the following family members: Veronica V. (maternal aunt), Ramona D. (maternal great grandmother), Leyanie M. (paternal aunt/godmother), Graciella C. (maternal grandmother), Robert M. (adult sibling), Cassandra M. (adult sibling), Catalina R. (paternal grandmother), Monica A. (paternal aunt), and Alberto V. (maternal uncle). The Department admits the record is silent regarding whether it asked these relatives about possible Indian ancestry.

DISCUSSION

1. Inquiry Duties Under ICWA

“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, 7 (Isaiah W.); see In re T.G. (2020) 58 Cal.App.5th 275, 287; In re E.H. (2018) 26 Cal.App.5th 1058, 1067.) Pursuant to ICWA, “n 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 . . . termination of parental rights to[ ] an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe” of the pending proceedings and their right to intervene. (25 U.S.C. § 1912(a); [i]In re Isaiah W., supra, 1 Cal.5th at p. 8.) “As the Supreme Court recently explained, notice to Indian tribes is central to effectuating ICWA’s purpose, enabling a tribe to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the matter. (Isaiah W., supra, 1 Cal.5th at pp. 8[–]9.)” (In re Michael V. (2016) 3 Cal.App.5th 225, 232.)[4] “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., supra, 58 Cal.App.5th at p. 287; see 25 U.S.C. § 1902; In re Benjamin M. (2021) 70 Cal.App.5th 735, 740 [“‘Congress enacted ICWA to further the federal policy “‘that, where possible, an Indian child should remain in the Indian community.’”’”].)

“‘“ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal regulations implementing ICWA, however, 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 Y.W. (2021) 70 Cal.App.5th 542, 551; see 25 C.F.R. § 23.107(a) (2021).) “State law, however, 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 Benjamin M., supra, 70 Cal.App.5th at pp. 741–742; see § 224.2, subd. (a); In re Y.W., supra, 70 Cal.App.5th at p. 551.)

“Following changes to the federal regulations concerning ICWA compliance, California made conforming amendments to its statutory scheme regarding ICWA, effective in 2019. (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).) In D.S., the court explained that the resulting clarification of law, found in part in section 224.2, ‘creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department]’s initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a “reason to believe” the child is an Indian child, then the [Department] “shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. [Citations.]’ (D.S., supra, [46 Cal.App.5th] at p. 1052.)” (In re Charles W. (2021) 66 Cal.App.5th 483, 489 (Charles W.).)

“At the first step, ‘[s]ection 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department, such as the [Department], the duty to inquire “includes, but is not limited to, 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.”’ (D.S., supra, 46 Cal.App.5th at pp. 1048–1049.)” (Charles W., supra, 66 Cal.App.5th at p. 489.)

We review claims of inadequate inquiry into a child’s Indian ancestry for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.).)

2. Analysis

The record reflects the Department spoke only with the parents about J.M.’s possible Indian ancestry. The Department’s first-step inquiry duty under ICWA and state law was broader, requiring it also to interview, among others, extended family members and others who had an interest in the child. (§ 224.2, subd. (b); Charles W., supra, 66 Cal.App.5th at p. 489; D.S., supra, 46 Cal.App.5th at pp. 1048–1049.)

The Department does not contend that it discharged its first-step inquiry duty, thus effectively conceding that it did not. Instead, the Department argues that because father has not made an “affirmative representation of Indian [ancestry] on appeal,” he has failed to show prejudice and that remand is not necessary for the Department to discharge its inquiry duty. That is, the Department argues, “Any failure to comply with . . . ICWA must be held harmless unless [father] can show a reasonable probability that . . . [he] would have enjoyed a more favorable result in the absence of the error.” (Citing In re A.C. (2021) 65 Cal.App.5th 1060, 1069 and Rebecca R., supra, 143 Cal.App.4th at pp. 1430–1431.)

Like our colleagues in Division 7 of this Court, “[w]e recognize the Courts of Appeal are divided as to whether a parent must make an affirmative showing of prejudice to support reversal where the Department failed fully to perform its initial duty of inquiry.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 433.) For the reasons articulated in that case (see id. at pp. 435–436), father does not have an affirmative duty to make a factual assertion on appeal regarding Indian heritage that he cannot support with citations to the record. (See Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 846.) Instead, on this record, which demonstrates that the Department failed to discharge its first-step inquiry duty, we conclude that the claimed ICWA error was prejudicial and reversible. (In re Antonio R., supra, 76 Cal.App.5th at pp. 435-436; see also In re N.G. (2018) 27 Cal.App.5th 474, 484.)

DISPOSITION

The jurisdiction and disposition orders are conditionally affirmed The matter is remanded to the juvenile court with directions to instruct the Department to comply with ICWA.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

WILLHITE, Acting P.J.

COLLINS, J.

[1] Because the sole issue father raises on appeal concerns the juvenile court’s and the Department’s compliance with ICWA and related state statutes and court rules, we limit our recitation of facts to those relevant to that compliance issue except as is necessary for context.

[2] Mother is not a party in this appeal.

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

[4] ICWA defines an “‘Indian child’ as “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, subd. (a).) The trial court and the Department have an affirmative and continuing duty in every dependency proceeding to determine whether ICWA applies. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); [footnote omitted.] Isaiah W., supra, 1 Cal.5th at pp. 10–11.)