Opinion
G063170
04-03-2024
In re A.P., a Person Coming Under the Juvenile Court Law. v. L.P. et al., Defendants and Appellants. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant L.P. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant K.C. Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, Super. Ct. No. 21DP1465, Joseph Kang, Judge.
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant L.P.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant K.C.
Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
MOTOIKE, J.
L.P. (Father) and K.C. (Mother) appeal from the order terminating their parental rights as to their daughter A.P. (the child) and placing her for adoption. Father and Mother raise a single issue on appeal. They contend the order must be reversed because the Orange County Social Services Agency (the Agency) and the juvenile court failed to comply with their respective inquiry duties under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law. Because the child was taken into temporary custody without a warrant (Welf. & Inst. Code, § 306), the duty of initial inquiry includes asking extended family members whether the child is or may be an Indian child. (§ 224.2, subd. (b); In re Robert F. (2023) 90 Cal.App.5th 492, 500, review granted July 26, 2023, S279743 (Robert F.).) The Agency concedes it failed its duty of initial inquiry because available paternal extended family members were not asked about the child's Indian heritage and the matter must therefore be remanded.
Because ICWA and related California law use the term "Indian," we will do the same for consistency. But "we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
All further statutory references are to the Welfare and Institutions Code.
We agree error occurred. We conditionally reverse the order terminating Mother's and Father's parental rights and remand for the limited purpose of ensuring compliance with ICWA and related state law. As explained further in the disposition, post, we direct the Agency and juvenile court to satisfy their duties within certain time periods, given the importance of expediency and need for finality at this stage. Once the Agency has satisfied its duties, if the juvenile court finds ICWA does not apply to the proceedings involving the child, then the order terminating parental rights and placing her for adoption shall be reinstated.
Furthermore, we encourage the parties to stipulate to the immediate issuance of the remittitur in this case. (See Cal. Rules of Court, rule 8.272(c)(1).)
PROCEDURAL HISTORY
In June 2021, the Los Angeles County Department of Children and Family Services (DCFS) took custody of the child without a warrant, after Mother was arrested for child cruelty. DCFS filed a petition alleging the child came within the jurisdiction of the Los Angeles County Juvenile Court under section 300, subdivision (b)(1). The juvenile court ordered the child detained in the protective custody of DCFS. Mother was present at the detention hearing, but Father was not.
In August 2021, DCFS filed a first amended section 300 petition, and both parents were arraigned on the amended petition.
At the jurisdiction and disposition hearing in September 2021, the first amended petition was sustained as to three allegations under section 300, subdivision (b)(1): (1) Mother left the child home alone for an extended period and was arrested for child cruelty; (2) Mother suffers from mental and emotional health issues; and (3) Father has a history of substance abuse. The juvenile court declared the child a dependent of the court and ordered reunification services for both parents.
Three months later, the case was transferred to the Orange County Juvenile Court based on Mother's change of residency. In 2022 and 2023, the Orange County Juvenile Court held review hearings at the six-month, 12-month, and 18-month intervals. At the contested 18-month review hearing, the juvenile court terminated reunification services for the parents and ordered a permanency hearing (§ 366.26) to be held.
At the permanency hearing in October 2023, the juvenile court ordered Mother's and Father's parental rights terminated and the child placed for adoption. Mother and Father timely appealed.
Our factual summary is limited to those facts relevant to the single issue presented in this appeal.
When DCFS filed the initial section 300 petition in June 2021, it included the Indian Child Inquiry Attachment (Judicial Council form ICWA-010(A)). The form indicated the social worker questioned Mother about the child's Indian ancestry on June 25, 2021, and Mother's answer gave the social worker no reason to believe the child may be an Indian child.
The detention report prepared by DCFS noted Mother had denied the child had Indian ancestry, and the report stated ICWA did not apply. Mother provided Father's name but was unable to provide his contact information.
At the detention hearing, Mother was present, but Father was not. Mother filed a completed, but unsigned, Parental Notification of Indian Status form (Judicial Council form ICWA-020), which indicated the child did not have Indian ancestry. Based on the information before it, the Los Angeles County Juvenile Court found it did not have reason to know the child was an Indian child.
After Father was located, he was questioned and denied Indian heritage. In preparing the jurisdiction and disposition report, DCFS spoke to the paternal grandmother and paternal aunt regarding the allegations in the amended petition, but they were not asked about possible Indian ancestry.
At Father's first appearance in court, he filed an unsigned Parental Notification of Indian Status form (Judicial Council form ICWA-020), on which he checked the box that indicated he had "no Indian ancestry as far as [he] kn[e]w." The Los Angeles County Juvenile Court found it did not have a reason to know the child was an Indian child as defined under ICWA. The juvenile court directed the parents to inform their attorneys, DCFS, and the court of any new information relating to the child's ICWA status.
The order prepared by DCFS transferring the case from Los Angeles County Juvenile Court to the Orange County Juvenile Court stated the juvenile court found ICWA does not apply. After the transfer was accepted by the Orange County Juvenile Court, Father did not respond to the Agency's numerous attempts to contact him. The Agency did not have contact with Father throughout the following year and indicated it did not have contact information for the paternal extended family. On multiple occasions, the Agency asked Mother and the maternal grandparents about Indian ancestry and they denied having any. The Agency also talked to the maternal aunt, who denied Indian ancestry.
At the 18-month review hearing in March 2023, the juvenile court found ICWA does not apply but the Agency has "an affirmative and continuing duty of inquiry." The juvenile court ordered the Agency to continue its statutory obligations and to ask the maternal relatives for the paternal relatives' contact information.
In April 2023, the Agency located Father, who was residing with the paternal aunt and uncle. In June 2023, the paternal grandmother contacted the maternal grandmother and requested visits with the child. The Agency did not contact these paternal extended family members to inquire about potential Indian ancestry.
In a report prepared for the permanency hearing, the Agency indicated the assigned social worker asked Father about Indian heritage in July 2023 and he denied having any. At the permanency hearing in October 2023, the juvenile court found ICWA does not apply but noted the Agency has an affirmative and continuing duty of inquiry.
DISCUSSION
I.
ICWA Inquiry and Notice Requirements
"'ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation. [Citations.] Congress enacted ICWA to further the federal policy "'that, where possible, an Indian child should remain in the Indian community . . . .'"'" (In re A.R. (2022) 77 Cal.App.5th 197, 203.) "ICWA and governing federal regulations [citation] set minimal procedural protections for state courts to follow before removing Indian children and placing them in foster care or adoptive homes." (In re Rylei S. (2022) 81 Cal.App.5th 309, 316.)
The California Legislature has imposed an affirmative and continuing duty of inquiry on both the Agency and the juvenile court. (§ 224.2, subds. (a), (c); In re Y.W. (2021) 70 Cal.App.5th 542, 551.) "The continuing duty to inquire whether a child is or may be an Indian child 'can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.'" (In re Y.W., at p. 552.)
"The duty of initial inquiry applies in every dependency proceeding." (In re Ricky R. (2022) 82 Cal.App.5th 671, 678.) It "begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (a).) "At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) Where a child is placed into the temporary custody of the Agency without a warrant under section 306, the Agency is required to expand the scope of its initial inquiry and ask extended family members and "others who have an interest in the child" whether the child may be an Indian child. (§ 224.2, subd. (b); Robert F., supra, 90 Cal.App.5th at p. 500, rev. granted; but see In re Delila D. (2023) 93 Cal.App.5th 953, 962 [duty of initial inquiry "encompasses available extended family members no matter how the child is initially removed from home"], review granted Sept. 27, 2023, S281447; In re Samantha F. (2024) 99 Cal.App.5th 1062, 1067-1069 [discussing appellate disagreement concerning whether social services is required to inquire of extended family members in every case where child is removed from home].) "Extended family members include adults who are the child's stepparents, grandparents, aunts, uncles, brothers, sisters, nieces, nephews, or first or second cousins." (In re Dominick D. (2022) 82 Cal.App.5th 560, 566.)
If either the juvenile court or the Agency "has reason to believe that an Indian child is involved in a proceeding," then the court or the Agency must "make further inquiry regarding the possible Indian status of the child . . . as soon as practicable." (§ 224.2, subd. (e).) If "there is reason to know" an Indian child is involved in the proceeding (§ 224.2, subd. (f)), formal notice must be sent to the child's parents or legal guardian, Indian custodian, if any, and the child's tribe (§ 224.3, subd. (a)).
"[T]he juvenile court 'has a responsibility to ascertain that [the Agency] has conducted an adequate investigation'" (In re D.F. (2020) 55 Cal.App.5th 558, 568) and must determine whether ICWA applies to the child's proceedings (In re Y.W., supra, 70 Cal.App.5th at p. 552). The court may conclude ICWA does not apply to the proceedings if it finds the Agency has satisfied its duty of inquiry and due diligence as required in section 224.2 and there is no reason to know the child is an Indian child. (§ 224.2, subd. (i)(2).) "Before the juvenile court makes a finding that ICWA does not apply, it must 'first ensur[e] that [the Agency] has made an adequate inquiry under ICWA and California law, and if necessary, the court must continue the proceedings and order [the Agency] to fulfill its responsibilities.' [Citation.] A juvenile court's finding that ICWA does not apply implies 'that social workers had fulfilled their duty of inquiry.'" (In re Dominick D., supra, 82 Cal.App.5th at pp. 566-567.)
II.
The Agency Concedes the Initial Inquiry Was Inadequate and the Matter Must Be Remanded
Mother and Father argue the order terminating their parental rights must be reversed because the Agency failed to comply with its duty of initial inquiry into the child's possible Indian ancestry and the juvenile court failed to ensure the Agency discharged this duty. The Agency concedes error because the child was taken into custody without a warrant and neither DCFS nor the Agency asked paternal extended family members, who were contacted or were reasonably able to be contacted, about the child's Indian heritage. The Agency acknowledges the duty of initial inquiry (§ 224.2, subd. (b)) was not satisfied, and therefore, the order must be conditionally reversed, and the matter remanded for further proceedings to permit the Agency to discharge it duty. We accept the Agency's concession.
This court has "established a clear rule that requires reversal in all cases where the ICWA inquiry rules were not followed." (In re E.V. (2022) 80 Cal.App.5th 691, 694; accord, In re G.H. (2022) 84 Cal.App.5th 15, 32 [adhering to the rule].) We agree with the parties the matter must be remanded for compliance with the inquiry and, if necessary, notice requirements of ICWA and California law.
DISPOSITION
The postjudgment order terminating parental rights as to the child is conditionally reversed and the matter is remanded to the juvenile court with the following directions. Within 30 days of issuance of the remittitur, the Agency must file a report demonstrating its compliance with ICWA and section 224.2. Within 45 days of issuance of the remittitur, the juvenile court must conduct a hearing to determine whether the Agency has complied with ICWA and related California law. After the juvenile court ensures compliance with the applicable inquiry and notice requirements, it shall make a finding as to whether ICWA applies to the proceedings involving the child. The juvenile court has the discretion to adjust these time periods on a showing of good cause.
If the juvenile court finds the Agency has satisfied its duties and finds ICWA does not apply to the proceedings involving the child, then the juvenile court shall reinstate the order terminating parental rights and placing A.P. for adoption. Alternatively, if the juvenile court finds there is reason to know A.P. is an Indian child, the court shall proceed accordingly.
WE CONCUR: SANCHEZ, ACTING P. J., DELANEY, J.