Opinion
B329677
01-23-2024
In re B.H., a Person Coming Under the Juvenile Court Law. v. J.H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, and Jessica S. Mitchell, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 21CCJP04070A Pete R. Navarro, Judge Pro Tempore. Conditionally affirmed and remanded.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, and Jessica S. Mitchell, Senior Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
J.H. (father) appeals from the juvenile court's order terminating parental rights to B.H. (the child) pursuant to Welfare and Institutions Code section 366.26. We conditionally affirm and remand.
All further statutory references are to the Welfare and Institutions Code.
The parties are familiar with the facts and procedural history, and our opinion does not meet the criteria for publication. (Cal. Rules of Court, rule 8.1105(c).) We therefore resolve this appeal by memorandum opinion pursuant to Standard 8.1 of the Standards of Judicial Administration and consistent with constitutional principles (Cal. Const., art. VI, § 14 ["Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated"]; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1263, fn. omitted [three-paragraph discussion of issue on appeal satisfies constitutional requirement because "an opinion is not a brief in reply to counsel's arguments. [Citation.] In order to state the reasons, grounds, or principles upon which a decision is based, [an appellate court] need not discuss every case or fact raised by counsel in support of the parties' positions"].)
Father contends that the juvenile court and the Los Angeles County Department of Children and Family Services (Department) did not comply with their obligations under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California statutes (§ 224 et seq.). According to father, the Department failed to comply with its continuing duty to interview extended family members regarding ICWA despite having contact with several maternal and paternal family members.
The Department concedes error and requests that we conditionally affirm the order terminating parental rights to the child and remand the matter with directions to the juvenile court to reinstate jurisdiction for the limited purpose of conducting additional ICWA inquiry.
We agree with the parties that this case involves reversible error because there was noncompliance with the inquiry requirements of ICWA and related California law. (See In re H.V. (2022) 75 Cal.App.5th 433, 438; In re Charles W. (2021) 66 Cal.App.5th 483, 489.) Specifically, the record indicates that the Department located and interviewed the maternal grandparents, the paternal grandparents, and a paternal cousin, J. Flores, concerning possible placement of the child. But there is no indication that those reasonably available extended family members were asked about the child's possible Indian ancestry. It therefore appears that the Department failed to fulfill its initial duty of inquiry under ICWA. We will therefore conditionally affirm and remand for further proceedings.
DISPOSITION
The juvenile court's order terminating parental rights to the child under section 366.26 is conditionally affirmed and remanded for further proceedings required by this opinion. The court shall order the Department to make reasonable efforts to: (1) interview all available extended family members about the possibility of the child's Indian ancestry, including those extended family members that the Department had previously contacted about placement, namely, the maternal grandparents, the paternal grandparents, and the paternal cousin J. Flores; and (2) report on the results of those efforts. Nothing in this disposition precludes the court from ordering the Department to make inquiry of the additional family members identified in the record or others who may have an interest in the child. 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: MOOR, J.
BAKER, Acting P. J., Dissenting
I would affirm unconditionally because substantial evidence supports the juvenile court's finding that the Indian Child Welfare Act 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.).)