Opinion
B318066
06-15-2023
In re DOMINYK E., a Person Coming Under the Juvenile Court Law. v. AMANDA W., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, 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NOT TO BE PUBLISHED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. 18LJJP00784E, Pete R. Navarro, Juvenile Court Referee.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
PERLUSS, P. J.
Amanda W., the mother of now-15-year-old Dominyk E., appeals the juvenile court's disposition order removing Dominyk from her custody with family reunification services. Amanda contends, the Los Angeles County Department of Children and Family Services does not dispute, and we agree, the Department and the juvenile court failed to fulfill their statutory duty of inquiry under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law (Welf. &Inst. Code, § 224.2). We conditionally affirm the court's disposition order and remand for the Department and the juvenile court to comply with the inquiry provisions of ICWA and California law.
Statutory references are to this code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prior Dependency Proceedings
In November 2018 the Department filed a section 300 petition alleging Amanda's substance abuse while supervising Dominyk and his younger siblings, Kielynn W. and Brentley W., and her failure to ensure Dominyk received proper medical treatment for his diagnosed epilepsy placed Dominyk and his younger siblings at substantial risk of serious physical harm (§ 300, subds. (b), (j)). Amanda and her children did not appear at the detention hearing. The court ordered the children detained and issued an arrest warrant for Amanda and protective custody orders for the children.
In June 2019 Amanda appeared in the action for the first time and filed an ICWA-020 form denying she had any Indian ancestry as far as she knew. After a progress hearing, the court ordered the children remain detained and deferred ICWA findings pending appearance of Dominyk's father, Michael E., and the Department's investigation of Amanda's Indian ancestry.
Michael is not the father of Kielynn or Brentley.
The court's June 14, 2019 minute order stated the court learned at the hearing that Amanda may have some Indian ancestry of unknown origin and had ordered the Department to investigate.
On July 23, 2019 Michael appeared at a scheduled arraignment hearing and filed an ICWA-020 form stating he may have Indian ancestry through his paternal grandmother, Juanita R., a Texas resident. The court found Michael to be Dominyk's presumed father and ordered the Department to investigate Michael's potential ICWA ancestry.
In August 2019 the Department filed an amended section 300 petition alleging, among other things, Amanda and her spouse, Coressa W., had a history of domestic violence and recently had engaged in violent conduct toward each other in the presence of Dominyk and his younger siblings.
In its January 2020 jurisdiction/disposition report for the jurisdiction hearing on the amended petition, the Department addressed ICWA by informing the court that, in a prior dependency proceeding in 2012, Michael stated he did not have any Indian ancestry. It also reported Michael had told a social worker in July 2019 he may have "Aztec heritage." (The Department notes on appeal that Aztec is not a federally recognized tribal entity.) The Department's report acknowledged the court's July 2019 order to investigate Michael's claim of potential Indian ancestry through his paternal grandmother but, other than reporting on Michael's statements in 2012, the Department did not indicate whether that investigation occurred.
At the February 2020 jurisdiction hearing, the court sustained an amended section 300 petition alleging domestic violence/failure to protect (§ 300, subd. (b)) and dismissed all remaining allegations. The record is silent as to whether the court or the Department addressed ICWA.
At the July 2020 disposition hearing the court declared Dominyk a dependent child of the court and ordered him placed with Amanda under Department supervision with family maintenance services. The July 2, 2020 minute order is silent on ICWA.
In February 2021, following a section 364 review hearing, the court terminated its jurisdiction over Dominyk and issued a final custody order giving Amanda sole physical and legal custody of Dominyk. Dominyk's siblings remained at that time dependents of the court.
2. The Case at Bar
On April 29, 2021 the Department filed a new section 300 petition on behalf of Dominyk, primarily alleging Amanda and Coressa continued to engage in domestic violence in Dominyk's presence, placing Dominyk at substantial risk of serious physical harm (§ 300, subd. (b)).
On May 4, 2021 Amanda appeared at the detention hearing on the new petition and filed an ICWA-020 form again denying Indian ancestry as far as she knew. The court ordered Dominyk detained. It did not make any ICWA findings.
In its August 5, 2021 supplemental report prepared for the hearing on the same date, the Department stated, without explanation or elaboration, ICWA did not apply.
On August 5, 2021 Michael completed a new ICWA-020 form, once again writing he believed he may have Indian ancestry through his paternal grandmother although he was unsure of the tribe.
In September 2021 the court sustained the amended section 300 petition. Neither the court nor the Department addressed ICWA.
Finally, at the December 3, 2021 disposition hearing the court declared Dominyk a dependent child of the court and removed him from parental custody with family reunification services for Amanda and Michael. Neither the court nor the Department addressed ICWA.
The juvenile court also removed Dominyk's siblings, Kielynn and Brentley, from Amanda's custody at the December 2021 disposition hearing following the filing and adjudication of a section 387 petition on their behalf. On March 20, 2023 we granted the Department's request for judicial notice and unopposed motion to dismiss Amanda's appeal relating to Kielynn and Brentley as mooted by subsequent events, finding no reason to exercise our discretion to consider the moot appeal. (See generally In re D.P. (2023) 14 Cal.5th 266, 284-285.)
DISCUSSION
1. Governing Law on ICWA Inquiry Requirements ICWA and governing federal regulations (25 C.F.R. § 23.101 et seq. (2023)) set minimal procedural protections for state courts to follow before removing Indian children and placing them in foster care or adoptive homes. (In re Y.W. (2021) 70 Cal.App.5th 542, 551.) The statute authorizes states to provide "'a higher standard of protection'" to Indian children, their families and their tribes than the rights provided under ICWA. (In re T.G. (2020) 58 Cal.App.5th 275, 287-288; see 25 U.S.C. § 1921.) In addition to significantly limiting state court actions concerning out-of-family placements for Indian children (see In re T.G., at pp. 287-288), ICWA permits an Indian child's tribe to intervene in or, where appropriate, exercise jurisdiction over a child custody proceeding (see 25 U.S.C. § 1911(c); In re Isaiah W. (2016) 1 Cal.5th 1, 8).
To ensure Indian tribes may exercise their rights in dependency proceedings as guaranteed by ICWA and related state law (see In re Isaiah W., supra, 1 Cal.5th at p. 5), an investigation of a child's possible Indian ancestry must be undertaken and, where appropriate, notice provided to interested tribes. (See § 224.2, subd. (a) [imposing on the court and child protective services agencies "an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child"].) The duty to inquire "begins with the initial contact" (§ 224.2, subd. (a)) and obligates the juvenile court and child protective services agencies to ask all relevant involved individuals whether the child may be an Indian child. (In re Rylei S. (2022) 81 Cal.App.5th 309, 316; see § 224.2, subds. (a)-(c).)
Section 224.2, subdivision (b), requires the child protective agency to ask "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." (See In re T.G., supra, 58 Cal.App.5th at p. 290; Cal. Rules of Court, rule 5.481(a)(1).) If the court or child protective agency "has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child," the court and the Department "shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (Welf. &Inst. Code, § 224.2, subd. (e); Cal. Rules of Court, rule 5.481(a)(4).) If the further inquiry "results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply." (In re D.S. (2020) 46 Cal.App.5th 1041, 1052; see 25 U.S.C. § 1912(a); Welf. &Inst. Code, § 224.3, subd. (a) [notice under ICWA "shall be provided" if the court, social worker, or probation officer "has reason to know . . . that an Indian child is involved"].)
"'The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents' families.'" (In re Rylei S., supra, 81 Cal.App.5th at p. 317; accord, In re Antonio R. (2022) 76 Cal.App.5th 421, 430; In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 ["the agency has a duty to gather information by conducting an initial inquiry, where the other party-here the parent . . . has no similar obligation"].)
2. Remand Is Required for Compliance with ICWA and ICWA-related California Law
Amanda contends, and the Department concedes, the Department failed to conduct any ICWA investigation following Michael's disclosure of possible Indian ancestry through his paternal grandmother and the court failed to follow-up on its order to ensure that investigation took place. In addition, the Department failed to comply with section 224.2, subdivision (b)'s mandate to identify Amanda's extended family members and question them about potential Indian ancestry, erroneously relying instead solely on Amanda's statement that she had no Indian ancestry as far as she knew. And yet, even as it concedes these errors occurred, the Department still appears to have made no effort as Dominyk's case continues in the juvenile court to correct that clear statutory violation and conduct the inquiry it acknowledges is required by section 224.2, subdivision (b), into Dominyk's possible Indian ancestry-a disregard for the significance of ICWA and related California law that this court finds profoundly troubling.
In its respondent's brief the Department concedes, notwithstanding the express mandate of section 224.2, subdivision (b), it "did not ask any of Dominyk's extended family members (on either Mother's or Michael's side of the family) if the child is or may be an Indian child." Admitting this breach of its statutory duty, the Department "submits" the issue of prejudice based on our past decisions that limiting ICWA-related inquiries to only the child's parents constitutes prejudicial error. (See, e.g., In re Antonio R. supra, 76 Cal.App.5th at p. 436 ["[I]n determining whether the failure to make an adequate initial inquiry is prejudicial, we ask whether the information in the hands of the extended family members is likely to be meaningful in determining whether the child is an Indian child, not whether the information is likely to show the child is in fact an Indian child. In most circumstances, the information in the possession of extended relatives is likely to be meaningful in determining whether the child is an Indian child-regardless of whether the information ultimately shows the child is or is not an Indian child"]; In re Y.W., supra, 70 Cal.App.5th at p. 556 ["the point of the statutory requirement that the social worker ask all relevant individuals whether a child is or may be an Indian child" is "to obtain information the parent may not have"].)
Although there has been vigorous debate among the courts of appeal regarding the proper standard of prejudice to apply when the Department has committed ICWA inquiry error-an issue now pending in the Supreme Court (In re Dezi C. (2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022, S275578)- there has been no dispute that section 224.2, subdivision (b), requires the Department to do more than rely on the parents' statements concerning the child's Indian ancestry.
DISPOSITION
The disposition order is conditionally affirmed. The matter is remanded to the juvenile court for full compliance with the inquiry and notice provisions of ICWA and related California law, including for the Department to make all reasonable efforts to identify and thereafter interview all extended family members, not just those who have previously been identified, as well as others who have an interest in any of the children, regarding Dominyk's possible Indian ancestry and to submit a report of its interviews or efforts to conduct the interviews to the juvenile court, and for further proceedings not inconsistent with this opinion.
We concur: SEGAL, J., FEUER, J.