Opinion
B308058
03-30-2021
In re I.L., Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.L., Defendant and Appellant.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. 20CCJP03856A-C APPEAL from an order of the Superior Court of Los Angeles County, Krysten Byrdsong, Commissioner. Conditionally affirmed and remanded. Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
J.L. (father) appeals from the juvenile court's jurisdictional and dispositional orders entered pursuant to Welfare and Institutions Code sections 300 and 361. He raises the sole issue of whether the Los Angeles County Department of Children and Family Services (Department) complied with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et. seq.) and section 224 et seq. When there is reason to believe a child is an Indian child, but there is not sufficient information to make an ICWA applicability determination, ICWA requires the Department to conduct further inquiry to help determine whether a child is an Indian child. The Department contends it complied with ICWA's initial inquiry, further inquiry, and notice requirements. We agree only with its contention that it complied with its initial inquiry obligations, as there is insufficient evidence upon which to conclude it complied with ICWA's further inquiry and notice requirements. We reject the Department's contention that any error was harmless.
All further undesignated statutory references are to the Welfare and Institutions Code.
Accordingly, we remand with directions to the trial court to ensure the Department conducts or has conducted an adequate investigation of the children's Indian ancestry, and if applicable, complies with applicable notice requirements. In all other respects, the orders are conditionally affirmed.
BACKGROUND
Because father's appeal raises only the issue of the Department's ICWA compliance, we provide only a brief synopsis of the factual and procedural history.
Appellant, J.L. (father) and M.D. (mother) are the parents of I.L., O.L., and P.L. At the time the case was initiated in 2020, all three children resided with the parents and six other adults in a two-bedroom apartment.
Mother is not a party to this appeal.
In July 2020, the Department filed a section 300 petition alleging father physically abused I.L. and O.L., that mother knew or should reasonably have known of the abuse, and that father's abuse of I.L. and O.L. and mother's failure to protect from such abuse placed P.L. at risk of physical harm.
At the July 23, 2020 detention hearing both parents submitted ICWA-020 forms indicating they may have Indian ancestry. Specifically, mother claimed she may have Cherokee ancestry, and father claimed he may be a member of the Cherokee or Aztec tribe. As a result, the juvenile court ordered the Department to investigate the parents' claims of Indian ancestry. At the same hearing, the juvenile court detained the children from their parents and placed them in shelter care under Department supervision pending adjudication.
At the adjudication hearing held on October 1, 2020, the juvenile court sustained the petition as alleged. Consequently, the juvenile court declared all three children dependents of the court, removed them from their parents, and granted the parents reunification services. It adopted the Department's recommendation and ordered the children to remain in foster care. The juvenile court made no express rulings on whether ICWA applied or whether the ICWA notice process was complete.
Father filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
As an initial matter, we note the record in this case does not reflect the juvenile court made any explicit findings that it or the Department satisfied its duties of inquiry under ICWA or state law. By entering its jurisdictional and dispositional orders, however, it appears the court impliedly found those duties had been satisfied. (See In re Austin J. (2020) 47 Cal.App.5th 870, 879, 887 [suggesting that, by sustaining the Department's petitions and removing the children from their parents, the juvenile court impliedly found it and the Department satisfied its duties of inquiry under ICWA and state law].)
"[W]e review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court's order. [Citations.]" (In re A.M. (2020) 47 Cal.App.5th 303, 314; see also In re Austin J., supra, 47 Cal.App.5th at p. 887 [reviewing juvenile court's implied findings regarding its and the Department's duties of inquiry for substantial evidence].)
II. Notice and Inquiry Requirements
"ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family. [Citation.]" (In re T.G. (2020) 58 Cal.App.5th 275, 287.) "[P]ersistent noncompliance with ICWA led the Legislature in 2006 to 'incorporate[ ] ICWA's requirements into California statutory law.' [Citations.]" (In re Abbigail A. (2016) 1 Cal.5th 83, 91.) "An 'Indian child' is defined in the same manner [under California state law] as under federal law, i.e., as '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); accord, Welf. & Inst. Code, § 224.1, subd. (a) [adopting the federal definition].)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.)
"[I]n an appeal raising ICWA compliance issues, the parent "is in effect acting as a surrogate for the tribe." [Citation.] (In re N.G. (2018) 27 Cal. App. 5th 474, 484.)
"[C]ourts and county welfare departments 'have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . has been[ ] filed is or may be an Indian child in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care.' [Citation.]" (In re T.G., supra, 58 Cal.App.5th 275, 290.)
Because each child was placed into temporary custody of the Department, the Department had 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." (§ 224.2, subd. (b).) Extended family members include any adult who is the 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 U.S.C. § 1903(2).)
A duty of further inquiry also arises when the juvenile court or the Department "has reason to believe that an Indian child is involved in a proceeding." (§ 224.2, subd. (e).) "Welfare and Institutions Code section 224.3, subdivision (c), provides that if the court or social worker knows or has reason to know that an Indian child is involved in dependency proceedings, the social worker must make further inquiry, as soon as practicable, by interviewing the parents, Indian custodian and extended family members to gather the information required, under . . . section 224.2, to be provided to the relevant tribes. [T]hat information includes '[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.' [Citation.] The social services agency must make a meaningful effort to contact specified family members who might have pertinent information. [Citation.]" (In re K.R. (2018) 20 Cal.App.5th 701, 706-707.)
We first address father's contention that the juvenile court and the Department failed to satisfy ICWA's "initial inquiry" requirement. "The duty to inquire begins with initial contact (§ 224.2, subd. (a)) and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child. (§ 224.2, subds. (a)-(c); [Citation.]" (In re T.G., supra, 58 Cal.App.5th 275, 290.) Here, the detention report indicated the Department asked mother about her Indian ancestry. Additionally, the juvenile court acknowledged receipt of each parent's ICWA-020 forms at the detention hearing. After stating that each parent had made claims of possible Indian ancestry, the juvenile court ordered the department to conduct further inquiry. The juvenile court, therefore, met ICWA's initial inquiry requirements. (In re T.G., supra, 58 Cal.App.5th at p. 293 [finding the juvenile court "fulfilled its initial obligation to ask about" "possible Indian ancestry" when mother was asked about her Indian ancestry at the detention hearing and filed an ICWA-020 form at that time].)
Father next contends the Department failed to comply with its statutory duty to interview the children's extended family members and gather information about their Indian ancestry. For the reasons discussed below, we agree.
The record demonstrates maternal grandparents and two maternal uncles were ready and available to provide additional information to the Department regarding possible Indian ancestry, as they all lived with mother at the time of initial detention. Additionally, the Department noted in its jurisdiction and disposition report that it had interviewed maternal grandmother regarding the allegations in the petition. Furthermore, the Department indicated in its July 23, 2020 last information to the juvenile court that father had provided it with paternal grandparents' contact information. Additionally, the notices sent by the Department show it had current addresses for maternal grandparents and paternal grandmother.
The Department does not identify, however, and we could not locate, any evidence in the record demonstrating it interviewed any of the identified family members (other than maternal grandmother) about the children's possible Indian ancestry. Nowhere in its detention report, jurisdiction and disposition report, or last minute information report submitted to the juvenile court does the Department indicate it interviewed the family members identified above about the children's possible Indian ancestry. In fact, while the record shows the Department interviewed maternal grandmother, there is no indication it inquired into Indian ancestry. Additionally, neither the minute order nor the transcript from the jurisdictional and dispositional hearing indicates the juvenile court asked the Department if it had conducted the required investigation.
"[T]he burden of making an adequate record demonstrating the . . . efforts to comply with ICWA's inquiry and notice requirements must fall squarely and affirmatively on the [juvenile] court and the [Department]. In the absence of an appellate record affirmatively showing the [juvenile] court's and the [Department]'s efforts to comply with ICWA's inquiry and notice requirements, we will not, as a general rule, conclude that substantial evidence supports the court's finding that proper and adequate ICWA notices were given or that ICWA did not apply." (In re N.G., supra, 27 Cal.App.5th at p. 474.)
Accordingly, where, as here, the record is silent with respect to the Department's efforts to contact extended family members, we cannot conclude that it did so. (In re K.R., supra, 20 Cal.App.5th at p. 709.) The Department "has the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status. [Citation.]" (Ibid.) It is not "relieved of its continuing duties of inquiry and notice" where, as, here, it "does not explain what evidence shows that [it] discharged its duty to investigate." (In re N.G., supra, 27 Cal.App.5th at p. 486; see also In re K.R., supra, 20 Cal.App.5th at p. 709.)
Nevertheless, the Department maintains the record demonstrates it conducted the required interviews. Specifically, the Department claims the "breadth of information included in the ICWA notices leaves no doubt [it] interviewed family members," as "[t]here is simply no way the Department could have obtained the information it included in the ICWA notices" if it failed to comply with ICWA's inquiry requirements.
We not persuaded that the notices contain a sufficiently wide "breadth" of information that they necessarily support a finding that the Department interviewed the extended family members as required. For example, the notices reflect limited information about paternal grandmother and show no information regarding her tribal affiliation. Specifically, under tribe information or membership, the notice states "unknown." Additionally, the notices entirely omit the potential ancestry father claimed in his ICWA-020. We cannot "assume that because some information was obtained and relayed to the relevant tribes, the [Department] necessarily complied fully with its obligations." (In re K.R., supra, 20 Cal.App.5th at p. 457.)
In sum, both mother and father indicated that they had actual or possible Indian heritage in their ICWA forms. The evidence, however, does not reflect that the Department conducted an investigation into the children's possible Indian ancestry. Specifically, the record does not indicate Department attempted to interview paternal grandmother, maternal grandparents, or maternal uncles regarding Indian heritage. These are actions "the Department was required to undertake. [Citation.]" (In re K.R., supra, 20 Cal.App.5th at p. 708.)
In addition, we reject the Department's contention that its apparent failure to interview the children's extended family members constitutes harmless error. On this point, we find guidance in In re N.G, where the Court of Appeal rejected that argument on facts similar to those in this case. In so doing, it first acknowledged that, ordinarily, "the appellant (usually a parent) . . . ha[s] the burden of demonstrating prejudicial ICWA error on appeal based on an adequate record. [Citations.]" (In re N.G., supra, 27 Cal.App.5th at p. 484.) "But in a case such as this one, where the record does not show what, if any, efforts the [Department] made to discharge its duty [citations], and the record also does not show that all required ICWA notices were given or that the ICWA notices that were given included all known identifying information, . . . . as a general rule, we will find the appellant's claims of ICWA error prejudicial and reversible." (Ibid.)
III. Remand
"When it is shown that the court or department knew or had reason to know the child was an Indian child but failed to make an inquiry, we remand with instructions to ensure compliance with ICWA; however, in doing so, we do not reverse the jurisdictional or dispositional orders where there is not yet a sufficient showing that the child is, in fact, an Indian child within the meaning of ICWA. [Citation.]" (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; see also In re Damian C. (2009) 178 Cal.App.4th 192, 199-200.) Accordingly, we remand for compliance with ICWA's inquiry requirements, and if necessary, notice requirements. (See ibid.)
DISPOSITION
The jurisdictional and dispositional orders are conditionally affirmed. The matter is remanded to the juvenile court with directions to ensure the Department's compliance with the inquiry and notice provisions of ICWA.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. We concur: MANELLA, P.J. COLLINS, J.