Opinion
B320423
09-26-2023
In re EZRA K., a Person Coming Under the Juvenile Court Law. v. L.M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jill S. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal 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NOT TO BE PUBLISHED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. DK16835A Susan Ser, Judge. Affirmed in part, vacated in part, and remanded in part with directions.
Jill S. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST J.
L.M. (mother) appeals from the juvenile court's May 6, 2022, order maintaining her son, Ezra K. (Ezra, born 2012), in suitable placement. (Welf. &Inst. Code, § 366.21.) Mother does not challenge the substance of this order; instead, she objects to the juvenile court's prior finding that the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) does not apply. The Los Angeles County Department of Children and Family Services (DCFS) concedes that mother's challenge has merit. As explained below, the appropriate remedy is to affirm the juvenile court's May 6, 2022, order, but vacate its earlier finding that ICWA does not apply and remand for further proceedings.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Because ICWA is the only issue on appeal, we limit our summary to those facts that pertain to this limited issue.
Initial section 300 petition and detention
In April 2016, DCFS filed a dependency petition under section 300 seeking the juvenile court's exercise of jurisdiction over Ezra. (In re Ezra K. (Feb. 1, 2022, B311192) [nonpub. opn.], at pp. *1-*2.) Attached to the petition was an ICWA-010 form, which indicated that DCFS had inquired into Ezra's possible Native American ancestry and that he had no known ancestry. The detention report filed the same day disclosed that the parents denied Native American heritage.
ICWA-020 forms were filed at the April 27, 2016, detention hearing. Mother denied Native American ancestry. Father indicated that he might have Native American ancestry, but did not know which tribe. The juvenile court found that there was no reason to know that Ezra was an Indian child as defined by ICWA. It ordered DCFS to interview and investigate as required by law.
Section 342 petition and detention
In December 2020, after Ezra had been returned to mother, the juvenile court again ordered him removed from mother's care. (In re Ezra K., supra, B311192, at pp. *4-*5.) DCFS then filed a section 342 petition on Ezra's behalf. (Id. at p. *5.) In the attached ICWA-010 form, DCFS reported that an inquiry had been made and Ezra had no known Native American ancestry. At the section 342 detention hearing, the juvenile court stated that the parents had filed ICWA-020 forms indicating that they had no Native American ancestry and found that ICWA did not apply.
Section 366.21 hearing
At the 12-month review hearing on May 6, 2022, the juvenile court found that returning Ezra to mother's care would create a substantial risk of detriment to his well-being. Thus, it ordered Ezra to remain suitably placed.
DISCUSSION
Mother challenges the juvenile court's May 6, 2022, order that Ezra remain suitably placed, solely arguing that the juvenile court erred earlier in the proceedings when it found that ICWA did not apply. In support, she points out that DCFS had contact with the maternal grandmother and three aunts, but they were not questioned about the family's possible Native American ancestry. Furthermore, DCFS did not attempt to contact Ezra's paternal grandparents to inquire whether they knew the missing information about father's ancestry.
A. Applicable law
"ICWA was enacted to curtail 'the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement' [citation], and 'to promote the stability and security of Indian tribes and families by establishing . . . standards that a state court . . . must follow before removing an Indian child from his or her family' [citations]." (In re Dezi C. (2022) 79 Cal.App.5th 769, 780 (Dezi C.), review granted Sept. 21, 2022, S275578; see also Haaland v. Brackeen (2023) __U.S.__, __ [143 S.Ct. 1609, 1623, 216 L.Ed.2d 254].)
An "'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 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); see also § 224.1, subd. (a) [adopting federal definition].)
Under California law enacted to implement ICWA, DCFS and the juvenile court have "three distinct duties . . . in dependency proceedings." (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) The first is the initial duty of inquiry, which DCFS "discharges . . . chiefly by 'asking' family members 'whether the child is, or may be, an Indian child.' ([§ 224.2], subd. (b).) This includes inquiring of not only the child's parents, but also others, including but not limited to, 'extended family members.' (Ibid.) For its part, the juvenile court is required, '[a]t the first appearance' in a dependency case, to 'ask each participant' 'present' 'whether the participant knows or has reason to know that the child is an Indian child.' (Id., subd. (c).)" (Dezi C., supra, 79 Cal.App.5th at p. 780; see also Cal. Rules of Court, rule 5.481(a)(1)-(2).) The second duty-the duty of further inquiry-is triggered if there is "reason to believe that an Indian child is involved" (§ 224.2, subd. (e)), while the third duty-to notify the relevant tribes-is triggered if there is "reason to know . . . that an Indian child is involved" (§ 224.3, subd. (a)).
Numerous appellate courts have weighed in recently on the consequence, on appeal from an order prior to termination of parental rights, of a social services agency's failure to conduct the required initial ICWA inquiry. At least five different types of dispositions have emerged. (See In re Dominick D. (2022) 82 Cal.App.5th 560, 563-564, 567-568 (Dominick D.) [affirming the juvenile court's jurisdictional and dispositional findings and orders, vacating the finding that ICWA did not apply, and remanding for ICWA compliance]; In re S.H. (2022) 82 Cal.App.5th 166, 171 ["hold[ing] that when a social services agency accepts its obligation to satisfy its inquiry obligations under ICWA, a reversal of an early dependency order is not warranted simply because a parent has shown that these ongoing obligations had not yet been satisfied as of the time the parent appealed" and affirming findings and orders in their entirety]; In re Baby Girl M. (2022) 83 Cal.App.5th 635, 638-639 [dismissing appeal as moot on the theory that no effective relief could be provided]; J.J. v. Superior Court (2022) 81 Cal.App.5th 447, 461 [finding that ICWA issue was unripe for review as "any perceived deficiencies with ICWA inquiry and noticing may still be resolved during the normal course of the ongoing dependency proceedings"]; D.S. v. Superior Court (2023) 88 Cal.App.5th 383, 387-389, 391-392 [construing appeal as a writ petition seeking order directing compliance with ICWA duties and, upon consideration of the merits, granting the requested relief].)
Appellate courts have also issued a spate of opinions on the proper remedy in an appeal from an order terminating parental rights when the ICWA duty of initial inquiry has not been satisfied. (See Dezi C., supra, 79 Cal.App.5th at pp. 777-778.) We need not address that issue here.
B. Standard of review
"On appeal, we review the juvenile court's ICWA findings for substantial evidence. [Citations.] But where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied. [Citation.]" (In re D.S., supra, 46 Cal.App.5th at p. 1051.)
C. Analysis
The parties agree that "there were several maternal and paternal extended family members of whom DCFS did not inquire regarding Ezra's possible Indian ancestry." The parties also agree that this was error. We agree with the parties.
Having found ICWA error, we must determine the remedy. We elect to follow Dominick D., supra, 82 Cal.App.5th 560 and vacate the juvenile court's finding that ICWA does not apply and remand for compliance with ICWA and related California law, and otherwise affirm the order made at the section 366.21 hearing.
In so doing, we recognize that the juvenile court and DCFS "have an affirmative and continuing duty to inquire" into Ezra's Indian status as these dependency proceedings continue. (§ 224.2, subd. (a); see also In re Isaiah W. (2016) 1 Cal.5th 1, 14; In re S.H., supra, 82 Cal.App.5th at pp. 176-177.) DCFS "has a duty 'on an ongoing basis' to report 'a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status.' ([Cal. Rules of Court, r]ule 5.481(a)(5).) And the juvenile court, even after it concludes that ICWA does not apply, retains the power (and duty) to reverse that determination 'if it subsequently receives information providing reason to believe that the child is an Indian child.' (§ 224.2, subd. (i)(2); see also [Cal. Rules of Court,] rule 5.482(c)(2).)" (In re S.H., supra, at p. 176.) Thus, while in some respects, there may be no reason to remand this case at all (as DCFS urges us to do), we also recognize that we should not allow an erroneous finding to stand when it can be corrected.
For this reason, the juvenile court's July 21, 2023, order, of which we take judicial notice, that DCFS make an additional ICWA inquiry by contacting all known extended family members, including Ezra's maternal grandmother, three maternal aunts, and his paternal grandparents, does not persuade us not to vacate the juvenile court's prior erroneous finding.
DISPOSITION
The juvenile court's finding that ICWA does not apply is vacated. The matter is remanded for further proceedings in which (1) DCFS shall make all reasonable efforts to ask all known and available family members whether Ezra is or may be an Indian child; (2) DCFS shall document these efforts to the juvenile court; (3) the juvenile court shall make a finding regarding ICWA's applicability as to mother's family; and (4) depending on the juvenile court's finding, it and DCFS shall proceed in accordance with sections 224.2 and 224.4. The May 6, 2022, order is otherwise affirmed.
We concur:, P. J. LUI, J. CHAVEZ