Filed 8/22/22 In re Richard B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 orders of the Superior Court of Los Angeles County, Stephanie M. Davis, Judge Pro Tempore. Affirmed with directions.

Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.

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

Samantha B. (Mother) appeals from the juvenile court’s orders terminating her parental rights to her son, Richard B. Mother contends that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with its duty of inquiry to determine whether there is a reason to believe or know that Richard is an Indian child within the meaning of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We conditionally affirm the orders with directions to ensure DCFS’s compliance with its applicable duties.

FACTUAL AND PROCEDURAL SUMMARY[1]

Eight days after Richard was born in September 2019, DCFS filed a juvenile dependency petition concerning him under section 300, subdivisions (a), (b), and (j) of the Welfare and Institutions Code.[2] The petition includes a statement by a social worker that she had made an “Indian child inquiry” and determined that Richard “has no known Indian ancestry.” DCSF’s detention report, filed the same day, stated that Mother “reported that she doesn’t have any Native American Ancestry in her family.”

Father’s identity and whereabouts remained unknown throughout the proceedings.

On September 26, 2019, the court held a detention hearing and removed Richard from Mother and placed him in DCFS’s custody. DCFS placed Richard with a foster parent who was eventually identified as his prospective adoptive parent.

On October 22, 2019, Mother filed a Parental Notification of Indian Status form (Judicial Council Forms, form ICWA-020 (rev. Jan. 1, 2008) (ICWA-020)), in which she checked a box next to the statement, “I have no Indian ancestry as far as I know.” During a hearing held on October 23, 2019, the court acknowledged its receipt of the form and stated that it does not have a reason to know that Richard is an Indian child under ICWA. The court issued a minute order the same day directing Mother to keep DCFS, her attorney, and the court “aware of any new information relating to possible ICWA status.”

On November 25, 2019, the court sustained the petition and declared Richard a dependent of the court under section 300, subdivisions (a), (b), and (j). The court ordered reunification services for Mother. Richard remained in foster care.

Over the course of the dependency case, Mother’s health deteriorated. During a review hearing held in September 2020, the court appointed a guardian ad litem for her. Since at least June 2021, Mother has been in hospice care and by August 2021, she was reported “to be in a vegetative state and non-responsive.”

On February 17, 2021, the court terminated reunification services for Mother and set a hearing to be held pursuant to section 366.26.

On December 16, 2021, the court terminated Mother’s parental rights. Based on Mother’s ICWA-020 form, the court found that ICWA does not apply. The next day, Mother, through her guardian ad litem, filed a notice of appeal.

Our record indicates that DCFS social workers had contact with, or could make contact with, numerous maternal relatives including Mother’s adult son, who had previously lived with a maternal aunt (now deceased) and a maternal grandmother,[3] another son, who was 15 years old when Richard was detained and who also lived with a maternal aunt for approximately eight years prior to the maternal aunt’s death in 2016, another maternal aunt living in New York,[4] at least one, and possibly two, maternal cousins, and possibly a maternal uncle. In September 2019, before she became uncommunicative, Mother had informed a social worker that she has “other family members . . . in New York.” The record does not indicate that DCFS asked any maternal relatives questions to determine whether Richard is or might be an Indian child within the meaning of ICWA.

DISCUSSION

When DCFS files a petition under section 300 concerning a child, it has “an affirmative and continuing duty to inquire whether [the] child . . . is or may be an Indian child” within the meaning of ICWA. (§ 224.2, subd. (a); In re Antonio R. (2022) 76 Cal.App.5th 421, 429.) When DCFS seeks foster care placement for the child, pre‑adoptive placement, or termination of parental rights, it “must ask the child, if the child is old enough, and the parents, . . . extended family members, [and] others who have an interest in the child . . . whether the child is or may be an Indian child.” (Cal. Rules of Court, rule 5.481(a)(1); see In re J.C. (2022) 77 Cal.App.5th 70, 77 (J.C.); In re Darian R. (2022) 75 Cal.App.5th 502, 507 (Darian R.).)[5] DCFS must also provide to the court “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).) These descriptions provide the court with the information it needs to “rule on the question of whether the ICWA applies.” (In re Josiah T. (2021) 71 Cal.App.5th 388, 406.)

Here, there is no evidence that DCFS ever asked any maternal relatives identified above any questions to determine whether Richard is or may be an Indian child. Mother’s adult son, who at one point sought to have Richard placed with him, lived with a now deceased maternal aunt for approximately 10 years until adulthood. The same son also apparently lived with the maternal grandmother for an unknown period of time when the son was approximately seven years old. Mother’s second son, born in 2004, also appears to have lived with the now deceased maternal aunt until he was approximately 12 years old. In addition, the record indicates that another maternal aunt, living in New York, was in contact with DCFS social workers, and that there were one or more maternal cousins, a maternal great cousin, and possibly a maternal uncle with whom social workers could have contacted. Social workers, however, do not appear to have asked any such persons any questions to determine whether Richard was or might be an Indian child. DCFS thus failed to fulfill its duty of initial inquiry under section 224.2 and rule 5.481(a) of the California Rules of Court.

The remedy on appeal for a social welfare agency’s failure to comply with the duty of initial inquiry is unsettled. (See, e.g., In re Rylei S. (2022) 81 Cal.App.5th 309, 325 [failure to comply with duty of inquiry may be harmless if “the record affirmatively reflects that the protections intended to be afforded through the exercise of that duty have been provided”]; In re Dezi C. (2022) 79 Cal.App.5th 769, 779, petn. for review pending, petn. filed July 19, 2022, S275578 [failure to comply with duty of initial inquiry is harmless unless the record, together with any proffer by the appellant, suggests a reason to believe that the child may be an Indian child]; In re A.R. (2022) 77 Cal.App.5th 197, 207 [reversal is required “in all cases where ICWA requirements have been ignored”]; In re Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.) [reversal required when “the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child”]; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [in the absence of a representation by the appellant of Indian heritage, “there can be no prejudice and no miscarriage of justice requiring reversal”].)

This division of this court has generally evaluated this issue to determine whether, if further inquiry is required after remand, “ ‘the probability of obtaining meaningful information is reasonable in the context of ICWA.’ ” (Darian R., supra, 75 Cal.App.5th at p. 509, quoting Benjamin M., supra, 70 Cal.App.5th at p. 744.) In making this determination, we have rejected “a wooden approach to prejudice” (In re A.C. (2022) 75 Cal.App.5th 1009, 1017 (A.C.)) and refused to require further inquiry when, based upon the particular circumstances revealed by the record, it is apparent “that additional information would not have been meaningful to the inquiry” (Benjamin M., supra, 70 Cal.App.5th at p. 743; see, e.g., In re S.S. (2022) 75 Cal.App.5th 575, 582 [failure to inquire of the child’s maternal grandmother was harmless where the maternal grandmother was in contact with the social worker and had a strong incentive to bring to the court’s attention facts suggesting the child is an Indian child].)

Here, our record does not disclose any facts suggesting that the information obtainable from Mother’s two older sons (who previously lived with a maternal aunt), a maternal aunt living in New York, and other maternal relatives available to DCFS, would not be meaningful to the ICWA inquiry. Although Mother indicated in her ICWA-020 form that she had no knowledge of any Indian ancestry, the filing of that form, without more, is insufficient to render the failure to ask extended family members harmless. (See In re Y.W. (2021) 70 Cal.App.5th 542, 554.) We do, however, consider the filing of such forms in the context of the record as a whole to determine if further inquiry would be likely to yield material information. (See Darian R., supra, 75 Cal.App.5th at p. 510).

Here, Mother refused to be interviewed by DCFS for its jurisdiction/disposition report, so the dependency investigator had to rely on information about Mother’s family, social and cultural background from a 2004 dependency case involving Mother’s eldest son. That history, though dated, reveals that Mother’s father (Richard’s maternal grandfather) had died when Mother was a teenager. As noted above, there is conflicting evidence about whether the maternal grandmother may have also passed away when Mother was relatively young. One maternal aunt is deceased. Although there is a maternal aunt living in New York, it is unclear how close Mother and she have been. In short, Mother’s historical connections with her family are sufficiently unclear and tenuous that we cannot conclude that the surviving family members, or Mother’s other living sons—who had extended contact with Mother’s now-deceased sister—do not have information that would add materially to the record.

Finally, the fact that Mother was unavailable to her counsel throughout much of this case due to her incapacitation means that she was unable to assist them in presenting factual arguments for why relatives may have material information on the question whether Richard is or may be an Indian child. This further supports the finding that the error in not interviewing them was prejudicial. We cannot, therefore, conclude that DCFS’s failure to inquire of the maternal relatives available to DCFS is harmless.

When, as here, the failure to conduct an adequate inquiry is not harmless, we will ordinarily conditionally affirm the challenged order with directions to ensure the agency’s compliance with ICWA and related law. (See, e.g., J.C., supra, 77 Cal.App.5th at p. 84; In re Antonio R., supra, 76 Cal.App.5th at pp. 436−437 & fn. 11; A.C., supra, 75 Cal.App.5th at p. 1018.) We do so here.

DISPOSITION

The orders made at the section 366.26 hearing are conditionally affirmed. Upon remand, the juvenile court shall appoint counsel for Mother and Richard, and direct DCFS to comply with its duties of inquiry under section 224.2 and to make the report to the court required by rule 5.481(a)(5) of the California Rules of Court as soon as practicable. If, after a hearing, the court determines that DCFS has fulfilled its duty of inquiry and finds that Richard is not an Indian child, the order terminating parental rights shall remain in effect and become final. If the juvenile court finds that notice is required under section 224.3, it shall vacate its section 366.26 orders and proceed in accordance with ICWA and related California law.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

KELLEY, J. *

[1] Because the only issues on appeal are whether DCFS failed to comply with its duty of inquiry under section 224.2 and, if so, what remedy is appropriate, we focus on the facts and procedural history relevant to that issue.

[2] Subsequent unspecified statutory references are to the Welfare and Institutions Code.

[3] According to one document in our record, Mother stated that the maternal grandmother died when she was 15 years old, in approximately 1992. A report filed by DCFS, however, states that, during a dependency proceeding concerning Mother’s eldest son, the son had been placed with the maternal grandmother in 2004. Our record does not otherwise indicate whether the maternal grandmother is now living.

[4] In the DCFS’s detention report, a social worker described a particular relative living in New York as “Great Aunt, [L.B.]” The same relative is thereafter described repeatedly and consistently as Mother’s “sister,” which would make the relative Richard’s aunt, not a great aunt.

[5] The language we quote from rule 5.481 of the California Rules of Court was made effective January 1, 2020, about five weeks after the court made its jurisdictional findings and dispositional orders in this case. After the amendment became effective, the dependency case proceeded for approximately two years.

* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.