Filed 6/22/22 In re M.B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Linda L. Sun, Judge. Conditionally reversed and remanded with instructions.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Kelly Emling, Deputy County Counsel for Plaintiff and Respondent.

________________________________

D.T. (mother) appeals from the order terminating parental rights to her child, M.B. (minor), under Welfare and Institutions Code section 366.26.[1] Mother contends the Los Angeles County Department of Children and Family Services (the Department) and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California law. We conditionally reverse, and remand for ICWA compliance.

FACTUAL AND PROCEDURAL BACKGROUND

Because the sole issue raised in mother’s appeal is ICWA compliance, we focus primarily on the facts and procedural background relevant to that issue. Shortly after minor’s birth in October 2019, she was detained from parental custody based on domestic violence between mother and J.B. (father).[2] Mother denied any Indian ancestry, and both parents filed ICWA-020 forms that did not provide any information regarding Indian ancestry. At the detention hearing, the juvenile court found that ICWA did not apply. At the jurisdiction and disposition hearing in January 2020, the court noted parents’ prior responses on the ICWA-020 forms, asked if there was any additional information, and not receiving any information to the contrary from either parent or their counsel, found no reason to believe or know that the case was covered by ICWA. Minor was placed with paternal aunt, and remained there throughout the dependency proceeding. In May 2020, the Department’s social worker received a phone call from mother’s grandmother (the child’s maternal great grandmother) inquiring about the case. There is no indication in the record that the Department asked paternal aunt, maternal great grandmother, or any other maternal or paternal relatives, about possible Indian ancestry. The Department’s subsequent reports noted the court’s November 8, 2019 finding that ICWA did not apply.

The juvenile court terminated mother’s reunification services in April 2021, and terminated parental rights as to minor at a hearing under section 366.26 in October 2021. The order terminating parental rights did not mention ICWA, but the order was “necessarily premised on a current finding by the juvenile court that it had no reason to know [minor] was an Indian child.” (In re Isaiah W. (2016) 1 Cal.5th 1, 10, italics omitted (Isaiah W.).

DISCUSSION

ICWA Requirements and Standard of Review

“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.’ [Citation.]” (Isaiah W., supra, 1 Cal.5th at p. 7.) Both ICWA and California law define an “Indian child” as a child who is either a member of an Indian tribe or 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); § 224.1, subds. (a) & (b); see also In re Elizabeth M. (2018) 19 Cal.App.5th 768, 783.)

California statutory law incorporates the requirements of ICWA, and imposes some additional requirements as well. (In re Abbigail A. (2016) 1 Cal.5th 83, 91; In re Benjamin M. (2021) 70 Cal.App.5th 735, 741–742 (Benjamin M.).) State and federal law require the court to ask parties and participants at the outset of an involuntary child custody proceeding whether they have reason to know a minor is an Indian child, and to “instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.” (25 C.F.R. § 23.107(a); § 224.2, subd. (c); see also Benjamin M., supra, 70 Cal.App.5th at p. 741.) 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 a social services agency takes a minor into temporary custody, state law imposes on the agency a duty of initial inquiry, which “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.” (§ 224.2, subd. (b); In re H.V. (2022) 75 Cal.App.5th 433, 437.) When there is “reason to believe that an Indian child is involved in a proceeding,” further inquiry is required. (§224.2, subd. (e); In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.)

We review the juvenile court’s ICWA findings for substantial evidence, and the appellant bears the burden of showing insufficient evidence to support the ICWA finding. (In re Josiah T. (2021) 71 Cal.App.5th 388, 401.) 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.)

Analysis

The record reflects the Department made no effort to interview paternal aunt or any other extended family members about minor’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.” (In re H.V., supra, 75 Cal.App.5th at p. 438; see also § 224.2, subd. (b).)

Absent any evidence that the Department met its first-step inquiry duty under ICWA, the court’s ICWA determination—based solely on the parents’ denial of Indian ancestry—was prejudicial error. As in In re H.V., 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 this court should reverse the holding from In re H.V., because the language of section 224.2 offers no predictable endpoint to the Department’s inquiry duties, instead leaving the Department “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.” (In re H.V., supra, 75 Cal.App.5th at p. 442 (dis. opn. of Baker, J.).) The Department also argues that absent any affirmative representation by mother on appeal that any attempts to interview maternal or paternal relatives would bear meaningfully on whether the child was an Indian child, the parents’ initial denial of any Indian ancestry is sufficient to support the court’s determination that ICWA did not apply, and any inquiry error is harmless. (In re S.S. (2022) 75 Cal.App.5th 575, 581­­–583; In re A.C. (2021) 65 Cal.App.5th 1060, 1069.)

We decline to depart from the holding and reasoning of In re H.V., supra, 75 Cal.App.5th at page 438, which relies upon the plain language of section 224.2, subdivision (b), in requiring the Department to interview not just parents, but available extended family members as well. Here, minor was placed with paternal aunt, but the Department never interviewed her about possible Indian ancestry. The record also reflects that the Department was contacted by maternal great grandmother; it is unclear if the Department also had contact with other maternal relatives.

“Speculation as to whether extended family members might have information likely to bear meaningfully on whether the child is an Indian child has no place in the analysis of prejudicial error where there is an inadequate initial inquiry. Rather, in determining whether the failure to make an adequate initial inquiry is prejudicial, we ask whether the information in the hands of the extended family members is likely to be meaningful in determining whether the child is an Indian child, not whether the information is likely to show the child is in fact an Indian child.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 435; see also In re J.C. (2022) 77 Cal.App.5th 70, 80–81 [“[b]y failing to conduct an adequate inquiry, the Department virtually guarantees the (incomplete) information it obtains will support a finding [that] ICWA does not apply” and such reasoning “allows the harmless error exception to swallow the rules governing the duty to inquire”].)

A parent does not have an affirmative duty to make a factual assertion on appeal regarding Indian heritage that he or she cannot support with citations to the record. 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 H.V., supra, 75 Cal.App.5th at p. 438; 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 juvenile court’s order terminating parental rights under section 366.26 is conditionally reversed. The case is remanded to the juvenile court to order the Department to interview available extended family members—including at least those relatives the Department has already interviewed, such as paternal aunt—about mother’s claim of Indian ancestry, and report on the results of the Department’s investigation. Based on the information presented, if the juvenile court determines that no additional inquiry or notice to tribes is necessary, the termination of parental rights is affirmed. If additional inquiry or notice is warranted, the court shall make orders consistent with ensuring compliance with ICWA and related California law.

MOOR, J.

I concur:

KIM, J.

In re M.B.

B315837

BAKER, Acting P. J., Dissenting

The majority correctly states the standard of review that governs resolution of this Indian Child Welfare Act (ICWA) appeal—substantial evidence. (In re H.V. (2022) 75 Cal.App.5th 433, 441 (dis. opn. of Baker, J.); In re J.S. (2021) 62 Cal.App.5th 678, 688 [applying substantial evidence standard of review]; see also Welf. & Inst. Code, § 224.2, subd. (i)(2) [“If the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence”], italics added.) But the majority applies the substantial evidence standard incorrectly. The parents’ denials of any Indian ancestry (25 C.F.R. § 23.107(a); Welf. & Inst. Code, § 224.2, subds. (d)(1), (d)(3)), their attorneys’ confirmation of the same (25 C.F.R. § 23.107(c)(1)-(2); Welf. & Inst. Code, § 224.2, subds. (d)(1), (d)(3)), and the absence of any other information that would suggest M.B. is an Indian child (25 C.F.R. § 23.107(c)(3)-(6); Welf. & Inst. Code, § 224.2, subds. (d)(2), (d)(4)-(6)), are substantial evidence ICWA does not apply.

BAKER, Acting P. J.

[1] Further statutory references are to the Welfare and Institutions Code unless stated otherwise.

[2] Mother’s older child, K.G., who is minor’s half-sibling, had a separate ongoing dependency proceeding. K.G.’s dependency case ended in January 2021, when the court terminated jurisdiction with a juvenile court custody order. Neither father, K.G., nor K.G.’s biological father are parties to this appeal.