Filed 6/16/22 In re C.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Debra Archuleta, Judge. Conditionally reversed and remanded with directions.

Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Senior Deputy County Counsel, for Plaintiff and Respondent.

________________________

INTRODUCTION

Father appeals from the order terminating his parental rights to son under Welfare and Institutions Code section 366.26.[1] Father contends 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.). We conditionally reverse and remand for DCFS to comply with section 224.2, subdivision (b).

FACTUAL AND PROCEDURAL BACKGROUND

As the only issue raised in father’s appeal is ICWA

compliance, we focus on the facts and procedural background relevant to that issue.

1. Parents’ Dependency History

Both parents have a history with the dependency courts. Father’s three older children (by a different mother) became dependents in 2014 and 2016. In those cases, father filed a Parental Notification of Indian Status (ICWA-020) form, and the juvenile court found no reason to know that father’s children were Indian children as defined under ICWA. Proceedings were eventually terminated and a family law order provided their mother full custody.

In October 2017, DCFS filed a section 300 petition on behalf of mother’s older child (by another father), alleging mother and her male companion (father in the present case) engaged in domestic violence and mother abused drugs. In January 2018, the court sustained jurisdiction over the older child and removed the older child from mother’s custody. The court ordered reunification services for mother. Mother submitted an ICWA-020 form denying knowledge of Indian ancestry, and the court found ICWA did not apply. The older child’s dependency case was pending when son was born.

2. Dependency Proceedings for Son

In September 2018, mother gave birth to son, the sole child involved in these dependency proceedings (and the parents’ only child together). On October 3, 2018, DCFS filed a petition under section 300, subdivisions (a), (b)(1), and (j) alleging that son was at risk due to the parents’ history of violent altercations and substance abuse.

The day before the detention hearing, father and mother filed ICWA-020 forms declaring under penalty of perjury that they had no Indian ancestry as far as they knew. In the detention report, the social worker reported, “The Indian Child Welfare Act does or may apply. . . . It is unknown whether or not the child is identified ICWA.” The social worker interviewed the maternal grandfather, maternal step-grandmother, both paternal and maternal grandmothers, maternal uncle, and his wife, but the record does not show they were asked about Indian ancestry.

At the detention hearing, the court removed son from the parents’ custody; and placed him with a maternal uncle and his wife. The juvenile court stated the parents indicated no Native American ancestry and found no reason to know that this case was governed by ICWA. The court ordered the parents to keep DCFS, their counsel, and the juvenile court aware of any new information relating to possible ICWA status.

For the subsequent jurisdiction and disposition report, DCFS interviewed the maternal grandparents, paternal grandmother, and a maternal aunt. There is no indication DCFS asked these family members about Indian ancestry.

On October 25, 2018, the court sustained the petition under section 300, subdivisions (b)(1) and (j), During the reunification period, the social worker discussed with the maternal grandparents and maternal uncle placement and visitation, but not Indian ancestry.

At the contested 12-month review hearing on January 23, 2020, the court terminated the parents’ reunification services.

On November 3, 2021, after multiple continuances due to pandemic restrictions and notice problems, the juvenile court conducted the final section 366.26 hearing.[2] The court found by clear and convincing evidence son was adoptable and no exception applied. The court terminated mother’s and father’s parental rights.

Father timely appealed.

DISCUSSION

Father contends that DCFS failed to comply with section 224.2, subdivision (b), because it did not inquire of any extended family members whether son had Indian ancestry. He also argues that the failure, not remedied by the juvenile court, created prejudicial error that compels reversal.

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.).)

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 Failed to Comply with Section 224.2, Subdivision (b)

There were multiple relatives involved in this dependency case, including the maternal grandparents, maternal step-grandmother, maternal aunt, paternal grandmother, and maternal uncle, who fostered son. Father correctly contends DCFS had an obligation under section 224.2, subdivision (b) to ask these extended family members (to the extent they were available) about Indian ancestry. We agree that the trial court’s finding that ICWA did not apply, which was based on DCFS’s failure to interview any extended family members, was error.

“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 (Y.W.).) Relying entirely on the parents’ representations was error under the circumstances present here, where DCFS was in direct contact with, and interviewed several additional relatives, but had asked none of them about son’s possible Indian ancestry.

3. The Error Was Prejudicial

In In re H.V. (2022) 75 Cal.App.5th 433 (H.V.), an appeal decided by another of panel of this division, DCFS asked the mother about the child’s Indian ancestry, and the 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 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.[3] (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.^[4] As in H.V., we conclude here that DCFS’s error was prejudicial.

4. DCFS’s Arguments are Unpersuasive

DCFS urges this court to abandon the reasoning in H.V. and adopt analysis set forth by Division 1 of the Second District in In re Darian R. (2022) 75 Cal.App.5th 502 (Darian R.) and In re S.S. (2022) 75 Cal.App.5th 575 (S.S.).

In Darian R., “There was a prior juvenile court finding that two of mother’s children are not Indian children, the juvenile court asked mother, father, and paternal aunt about Indian ancestry, both parents eschewed Indian ancestry, and mother was living with extended family members whom she could have asked about potential Indian ancestry.” (Darian R., supra, 75 Cal.App.5th at p. 504.) The appellate court concluded that DCFS’s inquiry error was harmless because “under these circumstances, it was unlikely that any further inquiry of family members would have yielded information about Indian ancestry.” (Ibid.)

Unlike the children in Darian R., this was son’s first dependency case and there were no prior ICWA findings made as to him or any full siblings. No other extended family member was asked about his heritage. Although the parents’ earlier dependency cases involved negative ICWA findings for half-siblings, there was no evidence in the record that DCFS inquired with any extended family member in those cases. The parents’ ICWA-020 forms from the prior cases (of which we have taken judicial notice) provide no more support for DCFS’s arguments than the ICWA-020 forms filed in son’s case.

In S.S., the other case cited by DCFS, the appellate court concluded DCFS’s failure to ask a grandmother (who sought to adopt the child) about Indian ancestry was harmless because ICWA gives preference to placing an Indian child with a member of the Indian child’s extended family. (S.S., supra, 75 Cal.App.5th at p. 582.) The court assumed the grandmother had “a strong incentive to bring to the court’s attention any facts that suggest that [the child] is an Indian child” and that her failure to do so implied she knew of no Indian heritage. (Ibid.) No such facts exist here.

S.S. is unpersuasive for two reasons expressed in In re J.C. (2022) 77 Cal.App.5th 70. First, the court’s “analysis erroneously place[d] the burden on a parent or the parent’s family to provide information about possible Indian ancestry, when under ICWA and California law that burden is on the child protective agency.” (Id. at p. 83.) Second, “not only was the court’s decision in In re S.S. based on speculation about the maternal grandmother’s incentives, it was based on a false premise: As the prospective adoptive parent, the grandmother’s incentive would be not to provide any information suggesting the child was an Indian child, so that she could adopt the child without any potential interference from the tribe.” (Id. at pp. 83–84.)

Lastly, DCFS’s argument that “substantial evidence supports the juvenile court’s finding that the ICWA does not apply” 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; see In re J.C., supra, 77 Cal.App.5th at pp. 80–81.)

As the error was prejudicial, we must remand for DCFS to comply with its ICWA inquiry duties.

DISPOSITION

The order terminating father’s parental rights to son 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 son’s available extended family members, as defined by section 224.1, subdivision (c) and 25 U.S.C. section 1903(2). 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 son is an Indian child, the court shall reinstate the order terminating father’s parental rights. If son is an Indian child, 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] DCFS corresponded with the maternal grandfather prior to the section 366.26 hearing in an effort to locate and notice mother for the section 366.26 hearing. Again, the record is silent on any discussion of Indian ancestry.

[3] 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.)

[4] In re H.V., supra, 75 Cal.App.5th at p. 433, is arguably 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.