Opinion
B298639
01-23-2020
In re I.H., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOHN H., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates, Arezoo Pichvai, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK01100) APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Conditionally reversed and remanded with directions. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates, Arezoo Pichvai, for Plaintiff and Respondent.
John H. (Father) appeals from a juvenile court order terminating his parental rights over his three-year-old daughter I.H. (Minor). Father argues the Department of Children and Family Services (the Department) and the juvenile court did not comply with their inquiry and notice obligations under the Indian Child Welfare Act (ICWA). The Department concedes a conditional reversal of the parental rights termination order is warranted to remedy this noncompliance. Because we agree the investigation into Minor's potential Indian ancestry was inadequate, we accept the concession, conditionally reverse the order, and remand for compliance with ICWA and related California law.
This was I.H.'s age at the commencement of dependency proceedings.
Umi H. (Mother), whose parental rights were also terminated, does not appeal.
I. BACKGROUND
A. Initial Proceedings
In May 2017, the Department received a referral alleging Mother and a male companion had "sexually played with" Minor while Mother and the companion were high on methamphetamine. The person making the referral also alleged Mother reported having thoughts about wanting to hurt her daughter.
Approximately two months later, the Department filed a five-count petition under Welfare and Institutions Code section 300, subdivisions (b)(1) and (d) alleging Mother and a male companion had sexually abused Minor, Minor was at substantial risk of harm because of that sexual abuse and Mother's abuse of marijuana and methamphetamine, and Mother had placed Minor in a detrimental and endangering situation by allowing her male companion unlimited access to Minor when Mother knew her companion used illicit drugs.
Undesignated statutory references that follow are to the Welfare and Institutions Code.
At an initial detention hearing, the juvenile court ordered Minor detained from her parents. The court also addressed ICWA issues at this hearing. Mother submitted a parental notification of Indian status form stating she had no Indian ancestry. Based on that representation, the juvenile court initially observed it had no reason to believe Minor was an Indian child under ICWA. The Department asked to go off the record, however, and the court agreed. When the court went back on the record, the court stated Mother might have Cherokee ancestry through the maternal grandfather. The court explained there had apparently been "investigation and notice and ICWA findings" in prior dependency proceedings involving Minor in Monterey County, and the court stated it would "wait to get the old volume to readdress that." The court also asked Mother and the maternal grandmother, who was also present at the detention hearing, whether they had learned any information since 2015 about the maternal grandfather's Cherokee ancestry. They both stated they had not.
Minor was eventually placed with maternal grandmother.
The record contains a brief overview of the Monterey County proceedings, which commenced in November 2013 and terminated in November 2015—granting full legal and sole physical custody of Minor to Mother.
A few months after the detention hearing, the Department filed an amended section 300 petition further alleging Mother had been diagnosed with bipolar disorder and schizophrenia, which rendered her incapable of providing regular care to Minor. After that, the Department filed a section 342 petition alleging Mother failed to protect Minor under section 300, subdivision (b)(1) because a different unrelated male sexually abused Minor in Mother's presence by having Minor engage in a pornographic video with him.
In various reports filed during the initial stages of the dependency proceedings, there is no indication that the file from the prior Monterey County matter had been obtained. A Department report filed in August 2017 nonetheless represented "[t]he Indian Child Welfare Act does not apply." Similarly, a report filed the following month stated "[o]n 5/30/2017, the mother stated that she and her family do not have any native American heritage. The Indian Child Welfare Act does not apply."
B. Initial Jurisdiction Hearing and Subsequent Proceedings
Later in 2017, the court held a jurisdiction hearing and sustained the dependency petition as amended. The record does not include a reporter's transcript of the hearing, but the minute order states Father made his first appearance via phone. The minute order also indicates Father reported he had no Indian heritage and reads "PREVIOUS NON ICWA FINDINGS REMAIN IN FULL FORCE AND EFFECT."
The court held another hearing in September 2017. Though a minute order states it was a detention hearing, the transcript of the hearing indicates it was held to determine whether the court should authorize a forensic physical exam of Minor. The minute order also says the court found it "does not have a reason to know that this is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the BIA." No discussion of ICWA is reflected in the reporter's transcript of the hearing.
The Department filed an amended section 342 petition a few days after this September hearing. The amended petition alleged Mother had diagnoses of bipolar disorder and schizophrenia, failed to take psychotropic medication as prescribed, and had mental and emotional problems that endangered Minor. It also alleged Father failed to provide Minor with basic necessities of life, including food, clothing, shelter, and medical care, thus endangering Minor's physical and emotional health and well-being. The Department filed a second amended section 342 petition the next month, alleging Father abused marijuana, had a criminal history, and had a history of behaving violently and aggressively towards Mother, Minor, and maternal grandmother. The Department also filed another report that month, again stating Mother had denied Indian ancestry and ICWA did not apply.
The petition is not in the record, but a subsequent Department report describes the allegations.
In January 2018, the juvenile court held a hearing at which it ruled on the jurisdictional allegations in the second amended section 342 petition and made a disposition order in connection with the previously sustained dependency petition. As to the section 342 petition, the juvenile court dismissed the allegation regarding Mother's bipolar and schizophrenia diagnoses because a similar allegation had been sustained in the earlier petition. The court also struck the allegation that Father failed to provide Minor with basic necessities. The court found true the allegations that Minor had been sexually abused by an unrelated male in Mother's presence and that Father had a criminal history including domestic violence and a history of behaving in a violent and aggressive manner toward Mother, Minor, and maternal grandmother.
As to disposition, the juvenile court found by clear and convincing evidence that giving Mother custody of Minor would expose her to a risk of substantial danger and detriment, that the Department provided reasonable services to prevent the need to remove Minor from Mother's custody, and that no available services existed to prevent the need for removal. The court also found placement of Minor with Father would be detrimental to her safety, protection, or physical and emotional well-being. The court denied Mother reunification services pursuant to section 361.5, subdivision (b)(6), which permits such denial in cases of severe sexual abuse. The court ordered reunification services for Father but directed Mother was not to have any contact with Minor.
C. Review Hearings and Termination of Parental Rights
The juvenile court held a combined six- and 12-month review hearing in August 2018. It found Father had made partial progress in completing his case plan services and ordered the Department to continue providing Father with reunification services. A status review report filed a few months later represented the following regarding ICWA: "On 6/22/2017, the mother stated in Court she has no American Indian heritage. On 8/23/2017, the father stated in Court he has no American Indian heritage. The Court further ordered the previous Non-ICWA finding remain in full force and effect."
Subsequent reports stated the juvenile court had found ICWA did not apply in September 2017.
At a later 18-month review hearing held in January 2019, the juvenile court found the Department had provided reasonable services but Father still had only partially complied with his case plan. The juvenile court at that point ordered reunification services terminated.
Father sought writ review. His appointed counsel filed a letter stating there were no arguable issues and the writ petition was deemed nonoperative. (J.H. v. Superior Court, B295376.)
Roughly five months later, Father filed a section 388 petition asking the court to either return Minor to his custody or reinstate his reunification services. The court denied the petition without a hearing, concluding, among other things, that it did not state sufficient new evidence or changed circumstances.
The juvenile court held a section 366.26 permanency planning hearing shortly thereafter. The court found that Minor was adoptable, that her parents had not maintained regular visitation and had not established bonds with Minor, and that any benefit to Minor from her relationship with her parents was outweighed by the physical and emotional benefit she would receive through the permanency and stability of adoption. The juvenile court terminated Mother and Father's parental rights and designated the maternal grandmother as the prospective adoptive parent.
II. DISCUSSION
ICWA, codified at Title 25, United States Code, section 1901 et seq., "protect[s] the best interests of Indian children and . . . promote[s] the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . ." (25 U.S.C. § 1902.) "'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).)
To ensure compliance with ICWA, a dependency court must determine whether there is reason to know the child is an "Indian child" as defined by ICWA. (§§ 224.1, subd. (a), 224.2, subds. (a)-(c).) If there is reason to believe an Indian child is involved in a dependency proceeding, the court or social worker must inquire regarding the possible Indian status of the child. (§ 224.2, subd. (e)(1)-(3).) The duty to inquire is affirmative and continuing. (§ 224.2, subd. (a); see also In re Isaiah W. (2016) 1 Cal.5th 1, 14 ["juvenile court has an affirmative and continuing duty in all dependency proceedings to inquire into a child's Indian status"] (Isaiah W.).)
The Legislature amended several sections of the Welfare and Institutions Code related to ICWA effective January 1, 2019. (Assem. Bill No. 3176 (2017-2018 Reg. Sess.).) The juvenile court terminated Father's parental rights after the effective date of the amendments and our statutory references are to the code sections as currently numbered.
The Department is obligated "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." (In re K.R. (2018) 20 Cal.App.5th 701, 709.) The juvenile court "has a responsibility to ascertain that the agency has conducted an adequate investigation . . . ." (Ibid.) The Department must ask ascertainable and available extended family members about possible Indian ancestry. (In re Michael V. (2016) 3 Cal.App.5th 225, 235; In re Andrew S. (2016) 2 Cal.App.5th 536, 545; see 25 U.S.C. § 1903(2) ["extended family member" includes the Indian child's grandparents, aunts or uncles, siblings, brothers-in-law or sisters-in-law, nieces or nephews, first or second cousins, and stepparents].) Following appropriate inquiry, if a court or social worker has reason to know an Indian child is involved in a dependency proceeding, notice of the proceeding must be sent to all tribes of which the child may be a member or citizen, or eligible for membership or citizenship. (§ 224.3, subd. (a)(3)(A); see generally In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
Father argues the Department and the court did not discharge the duty under ICWA and related California law to inquire into whether Minor is an Indian child and to provide ICWA notice if warranted. The Department concedes conditional reversal and remand is appropriate, stating as follows: "Because there is no information in the record regarding the information in the mother's prior case file and ICWA, and the court did not readdress the issue, [the Department] does not oppose a limited reversal and remand of the matter for the sole purpose of the court to obtain the mother's prior case file and make the appropriate findings under ICWA. If, after review of the mother's prior case file, the court finds further inquiry is needed, then the juvenile court should make appropriate orders in compliance with ICWA. If, however, the court finds there is no reason to know [Minor] is an Indian child, then the juvenile court shall reinstate the order terminating parental rights."
The record indicates that although Mother initially denied Indian ancestry during these dependency proceedings, the juvenile court learned Mother might have Cherokee ancestry and a Monterey County court had made ICWA findings in a prior dependency case. The court stated it would obtain the file from the Monterey County proceedings before readdressing ICWA, but the record does not indicate the court ever received that file. Nor does it indicate the court or the Department made any further attempts to inquire into Minor's potential Cherokee heritage.
Because the juvenile court and the Department needed to do more to satisfy the inquiry obligations imposed under ICWA and related California law, we shall conditionally reverse the parental rights termination order and remand with directions to the juvenile court to ensure full compliance with ICWA. In light of the Department's focus on the Monterey County proceedings, we caution that a review of the Monterey County case materials may or may not be sufficient to satisfy the duty of inquiry and any notice obligation that may arise. (See Isaiah W., supra, 1 Cal.5th at 11 [noting former section 224.3, subdivision (e)(3), which is substantially reflected in current section 224.2, subdivision (i)(2), "implicitly recognizes that any finding of ICWA's inapplicability . . . is not conclusive and does not relieve the court of its continuing duty . . . to inquire into a child's Indian status in all dependency proceedings"].) Beyond that, however, we leave the extent of any necessary inquiry in the juvenile court's hands, guided by the rule that a court must independently satisfy its duty to inquire into a minor's potential Indian status and must ensure the ICWA inquiry complies with section 224.2.
DISPOSITION
The order terminating Father's parental rights is conditionally reversed. The matter is remanded to the juvenile court for the limited purpose of ensuring compliance with ICWA and related California provisions (see, e.g., § 224.3, subd. (c); Cal. Rules of Court, rule 5.481). If, after appropriate inquiry, the juvenile court determines Minor is an Indian child, the court shall proceed as required by ICWA and related California law. If the juvenile court determines Minor is not an Indian child, then it shall reinstate the parental rights termination order and conduct further proceedings as appropriate.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J. We concur:
RUBIN, P. J.
MOOR, J.