Opinion
B325561
07-25-2023
In re M.E. et al., Persons Coming Under the Juvenile Court Law. v. J.E., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP05773B-C, Tara L. Newman, Judge. Affirmed in part and conditionally reversed with directions in part.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
MOOR, J.
Mother appeals from the November 16, 2022 orders denying her motions to change court orders under Welfare and Institutions Code section 388, and terminating parental rights to her sons (minors) under section 366.26. Mother's sole contention on appeal is that the juvenile court erroneously failed to ensure compliance with the inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related California statutes (Welf. &Inst. Code, § 224 et seq.). We conditionally reverse and remand the matter solely for the court to ensure compliance with ICWA and related California statutes.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has three children. Minors were born in November 2019 and January 2021, and their half-sibling was born in January 2016. The Los Angeles County Department of Children and Family Services (Department) filed a petition under section 300, subdivision (b), as to the older two children in October 2020, based on substance abuse by mother and father. When the youngest child tested positive for marijuana and methamphetamine at birth in January 2021, a second petition was filed.
Father and minors' half-sibling are not parties to the current appeal.
Both mother and father submitted ICWA-020 Parental Notification of Indian Status forms indicating they had no knowledge of possible Indian ancestry. At various hearings in 2020 and 2021, the court found that ICWA did not apply. Minors were temporarily placed with paternal grandmother and a caregiver at the beginning of the case; later, paternal greatgrandmother and a paternal aunt were assessed for placement, and minors were placed with the paternal aunt around July 2021. According to father, paternal grandfather was in and out of father's life, struggled with substance use, and lived on the streets. Mother explained that maternal grandfather died in 2018, and she did not know maternal grandmother's current whereabouts. In addition, mother's biological sister and brothers were older, moved frequently, and she did not have contact with them often. There is no evidence in the record that the Department asked any extended relatives about potential Indian ancestry before 2022.
In September 2022, noting the scope of ICWA inquiry required under case law, the juvenile court ordered the Department to contact known relatives, including paternal grandfather, paternal aunt, and any known maternal relatives, about possible Indian ancestry, and to report the results of the inquiry. In a Last Minute Information Report submitted in November 2022, the Department reported that it had contacted paternal grandmother and maternal grandparents, and all three denied any Indian ancestry.
We know from the record that the maternal grandparents identified in the Department's report are mother's adoptive parents. They are mother's paternal aunt and uncle, so by biology, they are minors' maternal great aunt and uncle.
On November 16, 2022, the court summarily denied two petitions filed by mother seeking a change of court orders under section 388, and then ordered parental rights to be terminated.
DISCUSSION
ICWA inquiry
"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.) 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 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.) State law imposes on the Department a first-step inquiry duty to "interview, among others, extended family members and others who had an interest in the child." (In re H.V. (2022) 75 Cal.App.5th 433, 438; see § 224.2, subd. (b).) Federal regulations explain that the term "[e]xtended family member is defined by the law or custom of the Indian child's Tribe or, in the absence of such law or custom, is a person who has reached age 18 and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 C.F.R. § 23.2 (2017).) The duty of initial inquiry includes making a meaningful effort to interview available relatives. (In re Y.W. (2021) 70 Cal.App.5th 542; 552-553.) When there is "reason to believe that an Indian child is involved in a proceeding," further inquiry is also required. (§ 224.2, subd. (e); In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.) "We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence." (In re H.V., at p. 438.)
Mother contends the juvenile court erred in finding ICWA inapplicable without evidence that the Department had made a meaningful effort to locate and interview paternal and maternal relatives, specifically paternal aunt (minors' adoptive caregiver), paternal grandfather, and other maternal relatives, about possible Indian ancestry.
The Department concedes on appeal that the initial inquiry requirements of ICWA and related state law were not met in this case, and asks us to remand with directions for the juvenile court to order the Department to conduct further inquiry and, if required by the Indian Child Welfare Act (ICWA), proceed in accordance with the ICWA's notice mandates. In particular, the Department concedes that, "in as much as Mother's biological parents are unavailable to provide information, the Department erred in failing to contact Mother's biological siblings."
As minors' adoptive caregiver, paternal aunt was already in contact with the Department, and so we agree that the Department had a duty to ask paternal aunt if she had information about minor's possible Indian ancestry. Similar reasoning applies to the Department's obligation to ask paternal great-grandmother.
We note, however, that the Department has already made reasonable efforts with respect to other family members. Mother and father denied knowing of any Indian ancestry, and paternal grandmother and mother's adoptive parents also denied any knowledge of Indian ancestry. Father told the social worker that his father struggled with substance abuse and lived on the streets. Mother provided the social worker with some limited information about her biological family: maternal grandfather died in 2018; mother did not know maternal grandmother's whereabouts, although she might be residing in Honduras; and maternal uncles and aunt (mother's biological brothers and sister) were older, moved a lot, and mother did not have contact with them often. Further investigation to locate these or additional extended relatives was not required. (In re Levi U. (2000) 78 Cal.App.4th 191, 199 [child protective agency is not required to conduct an extensive independent investigation or to "cast about" for investigative leads]; see also In re H.B. (B322472, June 20, 2023) 92 Cal.App.5th 711, *5 [where "representatives from both sides of two generational levels" of minor's family denied Indian ancestry, but not every extended relative was contacted, ICWA determination supported by substantial evidence].)
Section 388 petitions
Mother's brief has not raised any contentions of error with respect to juvenile court's orders summarily denying her petitions under section 388. "The juvenile court's orders are 'presumed to be correct, and it is appellant's burden to affirmatively show error.'" (In re J.F. (2019) 39 Cal.App.5th 70, 79.)
DISPOSITION
The juvenile court's November 16, 2022 order terminating parental rights under Welfare and Institutions Code section 366.26 is conditionally reversed and remanded for proceedings required by this opinion. All other orders are affirmed. The court shall order the Department to make reasonable efforts to interview available extended relatives, including the paternal aunt who is the adoptive caregiver for minors, about the possibility of minors' Indian ancestry and to report on the results of the Department's investigation. Nothing in this disposition precludes the court from ordering additional inquiry of others having an interest in the children. Based on the information reported, if the court determines that no additional inquiry or notice to tribes is necessary, the order terminating parental rights is to be reinstated. If additional inquiry or notice is warranted, the court shall make all necessary orders to ensure compliance with ICWA and related California law.
I concur: KIM, J.
BAKER, Acting P. J., Dissenting
I would affirm because substantial evidence supports the juvenile court's finding that the Indian Child Welfare Act (ICWA) does not apply. (In re A.C. (2022) 86 Cal.App.5th 130, 132 (dis. opn. of Baker, J.); In re Ezequiel G. (2022) 81 Cal.App.5th 984; In re H.V. (2022) 75 Cal.App.5th 433, 439 (dis. opn. of Baker, J.).) The majority says it is employing a substantial evidence standard of review, but if that is true on this record, it is a substantial evidence review that is unrecognizable. I submit we are instead where I thought we would be: "follow[ing] a new unspoken rule[ that requires] interrogat[ing] every person contacted in a child welfare investigation about ICWA issues." (In re H.V., supra, at 442.)