Opinion
B303009
09-02-2020
In re X.L., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. W.L., Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant W.L. Mary C. Wickham, County Counsel, Sarah Vesecky, Senior 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).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. 19CCJP05422A) APPEAL from an order of the Superior Court of Los Angeles County, Steven Marpet, Commissioner. Conditionally affirmed and remanded with directions. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant W.L. Mary C. Wickham, County Counsel, Sarah Vesecky, Senior Deputy County Counsel for Plaintiff and Respondent.
Three-year-old X.L. was declared a dependent child of the court under Welfare and Institutions Code section 300. The Los Angeles County Department of Children and Family Services (the Department) had a clear lead about whether X.L. had American Indian heritage, but did not follow up on that lead. This was error under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). W.L. (father) seeks reversal of the disposition order on that ground. The Department concedes the error, but disagrees with W.L.'s position the disposition order must be reversed. We affirm the disposition order but remand for compliance with the inquiry and notice provisions of ICWA.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Department filed a petition in August 2019 alleging jurisdiction over X.L. under section 300, subdivisions (a), (b)(1) and (j). Mother submitted a Parental Notification of Indian Status form indicating she may have Indian ancestry with the Yaqui tribe. W.L.'s form stated he had no Indian ancestry as far as he knew.
At the August 23, 2019 detention hearing, mother told the juvenile court that J.A., her father, was still living, belonged to the Yaqui tribe, and was not registered with the tribe. Mother stated J.A. would know whether his father, X.L.'s maternal great grandfather, who is now deceased, was registered with the tribe and had lived on the reservation. Mother stated she did not know J.A.'s telephone number "by heart," but she could obtain it. The court decided to have the Department follow up by talking to J.A. to gain information, and, "if appropriate," the Department would "need to walk it on prior to noticing any tribe. Otherwise, at this time, I'm finding that it's not an ICWA case as I have no reason to know."
The minute order of the detention hearing states: "The Court 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. Parents are to keep the Department, their Attorney and the Court aware of any new admonition relating to possible ICWA status. ICWA-020, the Parental Notification of Indian Status is signed and filed." The order also stated, "The Dept [sic] may follow up with further investigation of ICWA with the mother who informs the court that she may have possible Yaqui Indian Tribe [sic]. The court will find that ICWA does not exist but the Dept [sic] may walk the matter back on if ICWA is confirmed."
In the October 7, 2019 jurisdiction/disposition report, the Department referenced the juvenile court's August 23, 2019 finding that ICWA was not applicable. The report also stated the court had noted mother's possible Yaqui Indian heritage and ordered the Department to walk the matter on "if ICWA is confirmed." The Department reported since the end of September 2019, mother was in a residential treatment facility that, for the first 30 days, did not allow her any outside contacts, including interviews with the Department social workers. Nor would the facility confirm she was a current resident. The Department reported X.L. was placed with the maternal aunt with whom the Department social worker had multiple contacts.
Mother appeared at the jurisdiction/disposition hearing on December 6, 2019. The juvenile court sustained the section 300 petition as pleaded, declared X.L. a dependent of the court, and ordered that mother be provided with reunification services, but denied them to father. The court did not address mother's reported Yaqui heritage nor the applicability of ICWA.
Father timely appealed.
DISCUSSION
Father argues the disposition order must be reversed because the Department and the juvenile court failed to comply with ICWA. Because the material facts underlying father's claim are undisputed, "we review independently whether ICWA requirements have been satisfied." (In re Michael V. (2016) 3 Cal.App.5th 225, 235, fn. 5; accord In re J.L. (2017) 10 Cal.App.5th 913, 918.)
Although mother is not a party to this appeal, the Department does not dispute father has standing to raise the issue of ICWA compliance. (See In re B.R. (2009) 176 Cal.App.4th 773, 779-780.)
A. ICWA Inquiry and Notice Requirements
ICWA was enacted to curtail "the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement." (Miss. Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32, 109 S.Ct. 1597, 1600 104 L.Ed.2d 29, 36.) Under ICWA and the California statutes our Legislature enacted to implement it (§§ 224-224.6), a juvenile court and, as its delegate, the Department, have (1) a duty to investigate whether a child is an "Indian child" and, if the court "knows or has reason to know" that the child is, (2) a duty to notify the child's parent and either the Indian child's tribe or, if the tribe is unknown, the Secretary of the Interior and the Bureau of Indian Affairs. (25 U.S.C. § 1912, subd. (a); see also 25 U.S.C. § 1903 (11); §§ 224.2, subd. (d)(4) & 224.3, subds. (a), (c), & (d); Cal. Rules of Court, rule 5.481(a).) Once notified, the tribe then decides whether the child is, in fact, an "Indian child"—that is, a child who (1) is "a member of an Indian tribe," or (2) "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); §§ 224.1 subd. (a) & 224.3, subd. (a)(3); In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165-1166.)
To satisfy ICWA's duty to investigate, the juvenile court (and its delegate, the Department) "is required . . . to interview the child's parents, extended family members, . . . and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility" in an Indian tribe. (In re Michael V., supra, 3 Cal.App.5th at p. 233; In re K.R (2018) 20 Cal.App.5th 701, 706 ["The court and the agency must act upon information received from any source, not just the parent . . . ."].)
Because ICWA does not require the juvenile court or the Department "to cast about" for investigative leads (In re Levi U. (2000) 78 Cal.App.4th 191, 199), the court and Department meet their obligation to inquire if the parents "fail[] to provide any information requiring follow-up" (In re S.B. (2005) 130 Cal.App.4th 1148, 1161), or if the individuals who may have additional information are deceased (In re J.D. (2010) 189 Cal.App.4th 118, 123), or refuse to talk to the Department. (In re K.M. (2009) 172 Cal.App.4th 115, 119.) However, if there is a viable indication of Indian heritage, the Department must undertake "a meaningful effort to locate and interview extended family members to obtain whatever information they may have [about] the child's possible Indian status. [Citaiton.]" (In re K.R., supra, 20 Cal.App.5th at p. 709.) B. The Court and the Department Failed To Comply With ICWA's Inquiry and, Potentially, Notice Requirements
The juvenile court and the Department failed to satisfy ICWA's duty to inquire. During the detention hearing, both had information from mother that J.A. and the maternal great grandfather were of Indian heritage. Mother informed the court she could obtain contact information from J.A., and the court ordered the Department to "follow up" with mother. Yet, at the same hearing, the court prematurely found it had "no reason to know" of X.L.'s possible Indian heritage. Additionally, the Department thereafter failed to contact the maternal aunt about X.L.'s Indian heritage and to attempt to obtain J.A.'s contact information from mother before she entered the treatment facility. The Department made a mistake, and the court also erred by failing to ask mother at the jurisdiction/disposition hearing whether she had J.A.'s contact information. (In re J.M. (2012) 206 Cal.App.4th 375, 381 ["Thorough compliance with ICWA is required.[Citation.]"].)
C. Limited Remand Is Appropriate
The only remaining issue is the remedy. "'[A] notice violation under ICWA is not jurisdictional in the fundamental sense. . . . "' (In re Christian P. (2012) 208 Cal.App.4th 437, 452.) Nonetheless, there is some disagreement among our sister courts concerning whether the appropriate remedy includes reversal or merely a limited remand. Father urges us to follow those courts concluding it was reversible error for the juvenile court to proceed with the dispositional hearing without first ensuring ICWA compliance. (See Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 785 ["[e]ven assuming ICWA errors are not jurisdictional, we conclude the failure to give ICWA notice means that the orders in this case cannot stand"]; In re S.E. (2013) 217 Cal.App.4th 610, 616 [reversal and remand].) This court generally follows the rule that where, as here, there is a failure to comply with ICWA procedures before disposition, all jurisdictional and dispositional orders remain in effect while there is a limited remand to the juvenile court for the Department to give ICWA notice. (See In re Damian C. (2009) 178 Cal.App.4th 192, 199-200 ; In re Veronica G. (2007) 157 Cal.App.4th 179, 187-188.) Accordingly, we remand for compliance with ICWA's inquiry requirements, and if applicable, notice requirements.
Upon remand, if the juvenile court finds X.L. is an Indian child after appropriate inquiry, and if warranted, notice, it shall conduct a new dispositional hearing in compliance with ICWA and related California law. (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1388-1389.)
DISPOSITION
The matter is remanded to the juvenile court with directions to comply with the inquiry and, if applicable, notice provisions of ICWA as stated in this opinion. In all other respects, the court's orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.