Opinion
B324275
05-26-2023
In re ADRIAN R., et al., Persons Coming Under the Juvenile Court Law. v. C.R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Interim County Counsel, Sarah Vesecky, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. DK21226/19CCJP06705A Linda L. Sun, Judge. Conditionally reversed and remanded with directions.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Sarah Vesecky, Senior Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
C.R. (father) appeals from the juvenile court's orders terminating parental rights to Adrian R., Anthony R., and Ynes R. (the children) pursuant to Welfare and Institutions Code section 366.26 contending that the matter should be remanded for compliance with the requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California statutes (§ 224 et seq.). We conditionally reverse the orders terminating parental rights and remand for the limited purpose of ensuring compliance with ICWA's requirements.
The children's stepsister, J.V., is not a subject of father's appeal. The children's mother, M.V., is not a party to this appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
II. BACKGROUND
A. Prior Appeal
On January 27, 2017, the Los Angeles County Department of Children and Family Services (Department) filed a section 300 petition as to Adrian R. and Anthony R. alleging that father threw a cell phone at mother, striking her on the knee, and grabbed and pulled her hair. Father was arrested for domestic battery. (In re Adrian R. (B309345, Nov. 29, 2021) [nonpub. opn.] (In re Adrian R. I).)
Ynes R. was not a subject of the section 300 petition or father's prior appeal.
The juvenile court subsequently sustained the section 300 petition. It declared Adrian R. and Anthony R. court dependents, ordered them placed with mother, and ordered the Department to provide father with family maintenance services. (In re Adrian R. I, supra, B309345.)
At the March 28, 2020, 24-month review hearing, the juvenile court terminated father's services. Father appealed from the court's order and we affirmed. (In re Adrian R. I, supra, B309345.)
B. Instant Appeal
On October 16, 2019, the Department filed a section 300 petition as to Ynes alleging domestic violence between mother and father, that mother had a history of substance abuse and used illicit substances while pregnant with Ynes, and that mother had a positive drug screen at Ynes's birth.
At the January 27, 2020, jurisdiction/disposition hearing, the juvenile court sustained the petition as to mother on various grounds and as to father on the grounds that he knew or should have known of mother's drug abuse and failed to protect Ynes, mother and father had a history of domestic violence and continued to violate active restraining orders by maintaining contact with each other, and Ynes's siblings were receiving permanent placement services due to the parents' domestic violence. The court removed Ynes from mother's and father's custody.
At a section 366.26 hearing on October 21, 2022, the juvenile court terminated father's parental rights to the children.
C. ICWA Evidence
A social worker interviewed mother about possible Indian ancestry. Mother denied Indian ancestry. Mother further reported that father's family was from Mexico and did not have Indian ancestry. Father and mother filed Parental Notification of Indian Status forms stating they had no Indian ancestry as far as they knew. At the section 366.26 hearing, the juvenile court asked father about possible Indian ancestry. Father denied Indian ancestry.
The Department interviewed maternal grandmother A.V. She denied maternal family Indian ancestry. At the section 366.26 hearing, the juvenile court asked maternal grandmother about possible Indian ancestry. She denied Indian ancestry.
The Department interviewed paternal grandfather J.R. He stated the paternal family had no Indian ancestry to his knowledge.
The Department interviewed paternal grandmother R.R. and paternal aunt A.R., but failed to inquire about paternal family Indian ancestry. The Department was aware of maternal aunt V.V., but failed to interview her about maternal family Indian ancestry.
III. DISCUSSION
Father contends we must reverse the order terminating his parental rights because the juvenile court and the Department failed to comply with their ICWA inquiry duties by interviewing known extended family members: paternal grandmother R.R., paternal aunt A.R., maternal aunt V.V., and maternal greatgrandmother S.V. The Department did not file a respondent's brief. Instead, it filed a concession letter acknowledging that ICWA's inquiry provisions were not followed regarding the identified relatives. We accept the Department's concession that the juvenile court failed to comply with the inquiry requirements of ICWA and related California provisions. (In re H.V. (2022) 75 Cal.App.5th 433, 438; In re Charles W. (2021) 66 Cal.App.5th 483, 489.) The Department failed to interview at least three known and available extended family members-paternal grandmother R.R., paternal aunt A.R., and maternal aunt V.V.-about the children's Indian ancestry. This conceded error regarding ICWA compliance thus warrants a conditional reversal.
ICWA's "broad definition of 'extended family member,' however, does not include great-grandparents. (25 U.S.C. § 1903(2).)" (In re Allison B. (2022) 79 Cal.App.5th 214, 220; see also § 224.1, subd. (c) [California law follows the ICWA definition of "extended family member"].)
IV. DISPOSITION
The juvenile court's order terminating father's parental rights to the children under section 366.26 is conditionally reversed and remanded for proceedings required by this opinion. On remand, the court shall order the Department to make reasonable efforts to interview available extended maternal and paternal relatives about the possibility of the children's Indian ancestry and to report on the results of those efforts. Based on the information reported, if the court determines that no additional inquiry or notice to tribes is necessary, the order terminating father's parental rights shall be reinstated. If, however, additional inquiry or notice is warranted, the court shall make all necessary orders to ensure compliance with ICWA and related California law.
I concur: MOOR, J.
BAKER, Acting P. J., Dissenting
In In re H.V. (2022) 75 Cal.App.5th 433, this court declared it would "review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence." (Id. at 438.) Today's majority decision does not live up to that promise. The majority gives no indication it has applied that deferential standard of review, much less attempt to provide a reasoned explanation for why there is no reasonable, credible, and solid evidence (see, e.g., Melissa G. v. Raymond M. (2018) 27 Cal.App.5th 360, 374) that supports the juvenile court's Indian Child Welfare Act (ICWA) determination-which rests in part on the court's own initiative to make inquiry of familial relatives in court.
The juvenile court judge who conscientiously made efforts to ensure compliance with ICWA and related California law will therefore likely be surprised to learn that the same social services agency that repeatedly declared in reports to the juvenile court that ICWA does not apply has declined to defend the finding the court made in reliance on those reports and, importantly, the court's own inquiry. Based on the agency's concession and the majority's acceptance of it, this court accordingly appears to be where I said it would: applying an unspoken rule requiring interrogation of every person contacted in a child welfare investigation about ICWA issues and demanding what looks like perfect compliance to avoid reversal. (In re H.V., supra, 75 Cal.App.5th at 439 (dis. opn. of Baker, J.); see also In re A.C. (2022) 86 Cal.App.5th 130, 143 (dis. opn. of Baker, J.).) Because I believe that result is not what the law requires and has deleterious consequences, I respectfully dissent.
The majority does not even do the juvenile court the courtesy of precisely delimiting what it must do on remand that it has not already done. The majority's disposition says only that the court "shall order the Department to make reasonable efforts to interview available extended maternal and paternal relatives ...." Which ones or how many, the majority's disposition does not say. Nor does the majority explain why only interviews of extended family members will suffice when the statute-as the majority (unwisely) reads it-also requires inquiry of all "others who have an interest in the child." (In re A.C., supra, 86 Cal.App.5th at 141 (dis. opn. of Baker, J.).)