Opinion
B326345
08-22-2023
In re L.B., a Person Coming Under Juvenile Court Law. v. L.B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Appellant Mother. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. 21LJJP00028B Donald A. Buddle, Judge. Conditionally affirmed and remanded.
Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Appellant Mother.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, P. J.
INTRODUCTION
Mother appeals from termination of parental rights to L.B. (son). Her sole argument on appeal is that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with its inquiry duties under Welfare and Institutions Code section 224.2, subdivision (b)-the California statute implementing the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We conditionally affirm the termination of parental rights and remand to allow DCFS to remedy the ICWA inquiry errors as to the three extended family members, and the juvenile court to determine anew whether ICWA applies.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has ten children; son is her youngest child. In 2000, mother's parental rights were terminated as to her two oldest children in Nevada dependency proceedings. Another child, born to mother in 2009, died in 2010 from blunt force trauma and extensive internal injuries sustained in mother's custody. As a result, in 2010, mother was convicted of felony child neglect with substantial bodily harm.
Mother has lost custody or parental rights to all of her children, some of whom are now adults. All are half-siblings of son. We discuss the children who are relevant to our ICWA analysis.
At the inception of these dependency proceedings, mother's two youngest children (three-year-old daughter and infant son) lived with her. The children have different fathers. The daughter was removed from mother's care in companion proceedings to the instant case; the juvenile court terminated jurisdiction over the daughter and placed her in her father's physical custody. Only son, mother's youngest, is at issue in this case.
1. Case Overview
On January 12, 2021, the juvenile court issued a section 340 protective custody warrant for son's detention based on the section 300 petition's allegations of recent domestic violence between the parents, mother's mental health issues, and mother's history of substantiated child abuse allegations and dependency cases. Three days later, the court held the detention hearing and detained son from parental custody.
On February 25, 2021, the court found jurisdiction over infant son based on domestic violence between the parents and mother's 2010 felony conviction for child neglect with substantial bodily harm to her deceased child. The court removed son from parental custody, and ordered reunification services and visitation for parents.
At the six-month review hearing on December 8, 2021, the court terminated reunification services. On December 20, 2022, the juvenile court found son was adoptable by clear and convincing evidence and terminated parental rights to son.
2. ICWA Inquiry and Findings
The parents reported to DCFS that they did not have Native American ancestry, and filed ICWA-020 Parental Notification of Indian Status forms indicating the same. DCFS reported that the "ICWA form" from mother's 2010 Nevada dependency case indicated ICWA did not apply.
In February 2021, son was placed in the home of nonrelated extended family member R.A. She reported that to her knowledge, neither son nor the parents had Native American ancestry. DCFS does not appear to have inquired with anyone else regarding son's heritage.
At the section 366.26 permanency planning hearing held on December 8 and 20, 2022, the court found there was no reason to know the ICWA applied.
DISCUSSION
1. Duty of Inquiry
Mother contends DCFS did not fulfill its duty of inquiry under section 224.2, subdivision (b). In response, DCFS acknowledges it did not inquire with certain extended family members, but also points out that the law is unsettled whether it was required to inquire of extended relatives in this case because son was detained pursuant to a warrant under section 340, citing In re Robert F. (2023) 90 Cal.App.5th 492, 500, review granted (July 26, 2023, No. S279743) 2023 WL 4777174 (Robert F.). DCFS nonetheless concedes "most appellate courts (including this one) have held that section 224.2, subdivision (b), applies in every juvenile dependency proceeding in which a child is taken from parental custody, regardless of whether the removal was pursuant to section 306 or some other statute."
Robert F. held that subdivision (b) of section 224.2 does not require a social services department to inquire with extended family members about a detained child's Native American ancestry at the initial inquiry stage unless the "child is placed into the temporary custody of a county welfare department pursuant to [s]ection 306." (Robert F., supra, 90 Cal.App.5th at p. 500.) Section 224.2, subdivision (b), states: "If a child is placed into the temporary custody of a county welfare department pursuant to Section 306 or county probation department pursuant to Section 307, the county welfare department or county probation department has a duty to inquire whether that child is an Indian child. Inquiry 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 and where the child, the parents, or Indian custodian is domiciled." (Italics added.)
After In re Robert F. was published, the same court- Division Two of the Fourth District Court of Appeal- published two more opinions on the issue. First, In re Ja.O. (2023) 91 Cal.App.5th 672, 677-678 (Ja.O.), review granted (Cal., July 26, 2023, No. S280572) 2023 WL 4772422, agreed with Robert F., stating: DCFS "must ask extended family members and others who have an interest in the child about the possible Indian status of a child only if that child has been placed into [D]CFS's temporary custody pursuant to section 306."
More recently, in In re Delila D. (2023) 93 Cal.App.5th 953 (Delila D.), Division Two of the Fourth District concluded "there is only one duty of initial inquiry, and that duty encompasses available extended family members no matter how the child is initially removed from home. Applying a narrower initial inquiry to the subset of dependencies that begin with a temporary removal by warrant frustrates the purpose of the initial inquiry and 'den[ies] tribes the benefit of the statutory promise' of [Assembly Bill] 3176. [Citation.] The goal of the initial inquiry is to determine whether ICWA's protections may apply to the proceeding, and the way a child is initially removed from home has no bearing on the question of whether they may be an Indian child. The holding of Robert F. is, in our view, contrary to both the letter and spirit of A.B. 3176." (Ibid.)
The Supreme Court has granted review of Robert F. and Ja.O. Given the procedural posture of Robert F., the split in authority, and DCFS's concession that it did not inquire with several available extended family members, we assume without deciding that section 224.2, subdivision (b) applies to this case.
2. DCFS's Duty of Inquiry Was Limited to the Three Available and Accessible Extended Family Members
Mother argues DCFS "did not complete ICWA inquiry because multiple extended family members and others with an interest in [son] were not asked about Indian ancestry." Mother asserts DCFS should have contacted 21 people: 12 extended family members and nine unrelated persons "with an interest in" son. DCFS concedes it should have contacted three extended family members, with whom it was in contact. But, DCFS asserts it did not have a duty to contact the additional people mother identifies. We agree.
Non-Relatives. The nine non-relatives "with an interest in" son primarily include paternal relatives and caregivers of son's nine half-siblings who are referenced in DCFS's reports describing the half-siblings' dependency cases. Mother does not explain how these non-relatives have an interest in son and there is no indication in the record that any of these individuals were involved in son's life or knew of son. We conclude on this record, DCFS did not have an obligation under section 224.2, subdivision (b), to contact these non-relatives about son's heritage.
Extended Family Members. Mother next lists 12 extended family members, including aunts, uncles, and adult half-siblings. DCFS had telephone contact information for three of those extended family members: maternal aunt Nicole, maternal great-aunt Lisa E., and paternal aunt Kendra A., who DCFS in fact interviewed. The record does not contain any contact information for the nine remaining extended family members identified by mother's counsel on appeal. Rather, their names are simply referenced as half-siblings or in child welfare reports that were issued by DCFS and/or Nevada's protective services agency many years earlier. Neither parent provided updated contact information for any of these individuals.
We conclude DCFS had a duty to inquire with the three family members for whom it had available contact information. DCFS need not contact all family members listed in dependency cases adjudicated many years earlier. (See In re Q.M. (2022) 79 Cal.App.5th 1068, 1083 ["Without reliable contact information, DCFS could not reasonably have been expected to interview extended family members"]; In re A.M. (2020) 47 Cal.App.5th 303, 323 ["ICWA does not obligate the court or [DCFS] 'to cast about' for investigative leads"].)
DISPOSITION
The termination of parental rights order is conditionally affirmed and remanded to the juvenile court for the limited purpose of ensuring compliance with the inquiry provisions of section 224.2. The court shall order DCFS to inquire of son's
Mother argues we should conditionally reverse and not conditionally affirm, asserting the court will not have jurisdiction to ensure ICWA compliance under a conditional affirmance. We disagree. "Although conditional affirmances are rare, they have previously been issued in various types of cases by both the appellate courts and our Supreme Court. We issue such a disposition here because time is of the essence and a conditional affirmance provides the best opportunity for the error to be handled expeditiously without unduly prolonging the finality of the proceedings. Appeals from orders terminating parental rights are governed by section 395, so they 'have precedence over all other cases in the court to which the appeal is taken.' (§ 395, subd. (a)(1).) Moreover, the appealed order or judgment is not stayed while the appeal is pending. (Ibid.) With a conditional affirmance, the judgment remains in place on remand. When a judgment is conditionally reversed, the judgment is reinstated on the date the underlying condition is satisfied." (In re J.K. (2022) 83 Cal.App.5th 498, 507-508, fn. omitted.)
Indian ancestry by making reasonable efforts to interview maternal aunt Nicole, maternal great-aunt Lisa E., and paternal aunt Kendra A. Our identification of these individuals does not preclude the juvenile court from concluding that reasonable efforts can be made as to other extended family members. If, after ICWA compliance, the juvenile court issues an order determining that ICWA does not apply, the order terminating parental rights shall remain in effect. If the court determines ICWA applies, it shall vacate the order and proceed in accordance with ICWA and related state law.
I CONCUR: KIM, J.
BAKER, J., Dissenting
In re Robert F. (2023) 90 Cal.App.5th 492 is wrongly decided and the majority should say so rather than assume the issue away-which only invites further reliance on that opinion in future briefs filed by the Los Angeles County Department of Children and Family Services. We should affirm the order under review (without conditions) 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.).)