Opinion
B327781
11-03-2023
In re L.E., a Person Coming Under the Juvenile Court Law. v. D.B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP05765, Marguerite D. Downing, Judge. Conditionally reversed and remanded with directions.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
D.B. (father) appeals from the juvenile court's order terminating his parental rights to four-year-old L.E. (the child) pursuant to Welfare and Institutions Code section 366.26. He contends 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 order terminating parental rights and remand for the limited purpose of ensuring compliance with ICWA's requirements.
All further statutory references are to the Welfare and Institutions Code.
II. BACKGROUND
The Los Angeles Department of Children and Family Services (Department) filed a dependency petition in October 2020 alleging the child was at substantial risk of suffering serious physical harm from his mother's substance abuse and as a result of his siblings having been previously adjudicated dependent children on the same basis. An amended petition was later filed adding an allegation that the child was at risk of suffering serious physical harm because father was incarcerated on a six-year prison sentence for a domestic violence conviction and unable to care for the child. The juvenile court sustained certain counts of the dependency petition at a hearing in 2021 and thereafter terminated father's (and mother's) parental rights at a hearing in March 2023.
Mother is not a party to this appeal.
During the dependency proceedings, some efforts were made to determine whether the child may be an Indian child. The Department interviewed the child's maternal grandmother, maternal uncle, and the maternal uncle's wife in October 2020; all denied awareness of any Indian ancestry. Mother also filed a form with the juvenile court in November 2020 and represented neither she nor the child was or might be a member of an Indian tribe, or eligible for membership in an Indian tribe. Father, through counsel, filed the same form that same month and made the same representation.
The record is unclear, but it is possible that in May 2022 the Department inquired of the child's adult maternal cousin (who was serving as the child's caregiver by then) and obtained no information that the child may be an Indian child.
The forms filed in the court that are included in the appellate record bear the parents' names (plus the notation "via telephone" for father) but no handwritten signatures.
Through most of the dependency proceedings, the Department had little contact with father. The juvenile court appointed counsel to represent him, but he was in custody and not present for arraignment, the detention hearing, the February 2021 adjudication and disposition hearing (for which father waived his appearance through counsel), and the November 2021 review hearing at which reunification services were terminated (father again waived his appearance). Outside of court, the Department was unable to make contact with father during this period.
The juvenile court issued multiple orders to permit father to be present for the proceedings notwithstanding his incarceration, but the court understood that, as a practical matter, father likely would not be transported (perhaps due to prevailing public health conditions at the time).
Before the scheduled permanency planning hearing, the Department learned father had been released from prison in July 2022 and later succeeded in locating him. Although father's phone was disconnected for a time and he was returned to custody for two days in October 2022, father visited with the child at the Department's offices on at least one occasion in September 2022 (the assigned social worker monitored the visit), father met with the social worker outside his home in October 2022, and father spoke to the social worker by phone in November 2022. There is no indication in the appellate record that father was asked about ICWA issues or asked to identify members of his extended family in these interactions.
III. DISCUSSION
Father contends the Department did not comply with its obligations under ICWA and related California law because it made no inquiry of paternal extended family members and did not inquire of certain other maternal family members with whom it had contact (though father never precisely identifies which maternal family members). We agree there was inadequate inquiry at least on the paternal side of the family. That alone requires conditional reversal.
Father asserts the Department made ICWA-related inquiry of only the child's maternal grandmother. That is incorrect; the record indicates the maternal uncle and his wife also "denied ICWA."
The Department's inquiry duties under ICWA and related California statutes are well established. Section 224.2 "'"creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department]'s initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the [Department] 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. [Citations.]" [Citation.]
"'At the first step, "[s]ection 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department, such as the [Department], the duty to inquire 'includes, but is not limited to, asking 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.'" [Citation.]' [Citation.]
"We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence. [Citation.]" (In re H.V. (2022) 75 Cal.App.5th 433, 437-438 (H.V.).)
We hold the Department did not satisfy its obligation to inquire of extended family members on the paternal side of the family. ICWA inquiry was made of only father himself, and that is insufficient. (In re Antonio R. (2022) 76 Cal.App.5th 421, 431 ["By requiring the Department to inquire of a child's extended family members as to the child's possible Indian ancestry, the Legislature determined that inquiry of the parents alone is not sufficient"].) The Department's only response is the claim that it could not inquire of paternal extended family members because father "did not maintain contact with [the Department] or make himself available." We find the response unpersuasive in light of the record-which establishes Department personnel had multiple contacts with father when questions about extended family and ICWA could have been posed.
We adhere to our prior holding in H.V. that the inquiry error here cannot be disregarded as harmless. (H.V., supra, 75 Cal.App.5th at p. 438.) We will therefore conditionally reverse the parental rights termination order and remand for compliance with section 224.2, subdivision (b).
IV. DISPOSITION
The juvenile court's March 1, 2023, parental rights termination order under section 366.26 is conditionally reversed and remanded for proceedings required by this opinion. The court shall order the Department to make reasonable efforts to interview available paternal extended family members, and available maternal extended family members with whom it has not already inquired, about the possibility of father's and mother's Indian ancestry and to report on the results of the Department's investigation. Nothing in this disposition precludes the court from ordering additional inquiry of others having an interest in the child. Based on the information reported, if the court determines no additional inquiry or notice to tribes is necessary, the order terminating father's parental rights is to be reinstated. If additional inquiry or notice is warranted, the court shall make all necessary orders to ensure compliance with ICWA and related California law.
I concur: RUBIN, P. J.
BAKER, J., Dissenting
I would affirm because substantial evidence supports the juvenile court's finding that the Indian Child Welfare Act does not apply. (In re A.C. (2022) 86 Cal.App.5th 130, 132 (dis. opn. of Baker, J.); In re Ezequiel G. (2022) 81 Cal.App.5th 984; In re H.V. (2022) 75 Cal.App.5th 433, 439 (dis. opn. of Baker, J.).)