Opinion
B316367
06-27-2022
In re J.A.C., A Person Coming Under the Juvenile Court Law. v. E.C.G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 19CCJP07313A Gabriela H. Shapiro, Judge Pro Tempore. Conditionally reversed and remanded with directions.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Senior Deputy County Counsel, for Plaintiff and Respondent.
BAKER, Acting P. J. 1
E.C.G. (Mother) appeals from orders (1) denying her petition for reinstatement of reunification services and (2) terminating her parental rights over her son J.A.C. (Minor). The sole contention Mother asks us to decide is whether the juvenile court erred when it found the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law inapplicable.
I. BACKGROUND
On the afternoon of November 11, 2019, a neighbor found Minor, who was 20 months old at the time, clothed only in a t-shirt and walking alone outside his home near a busy street. The police, who were summoned to the scene by the neighbor, reported the incident to the Los Angeles County Department of Children and Family Services (the Department), who detained Minor and began a child welfare investigation. A medical examination of Minor revealed injuries consistent with physical abuse inflicted by a belt or electrical cord.
The following day, after being unable to contact Minor's father F.A. (Father), a Department social worker interviewed Mother. During her interview, Mother denied having any American Indian heritage. As part of her investigation, the social worker reviewed a Department file regarding allegations of emotional abuse of Minor arising out of an incident of domestic violence between Mother and Father in August 2019. When Mother was interviewed in connection with that earlier incident, she similarly denied having any Indian ancestry. 2
Two days after detaining Minor, the Department, pursuant to section 300 of the Welfare and Institutions Code, filed a petition alleging Minor was at risk of harm as a result of his parents' physical abuse, domestic violence, and failure to adequately supervise him. Included as part of the petition was an Indian Child Inquiry Attachment (Judicial Council Forms, form ICWA-010(A) (Jan. 1, 2008) (ICWA-010(A)), which stated, based on Mother's denials, that Minor "has no known Indian ancestry."
Undesignated statutory references that follow are to the Welfare and Institutions Code.
Filed concurrently with the petition was a detention report prepared by the Department. The Department reported Mother was previously a dependent of the juvenile court, and while a dependent had her parental rights to two half-siblings of Minor terminated. In those prior proceedings, the juvenile court found ICWA inapplicable. Records from Mother's dependency case reveal her parents (Minor's maternal grandparents) denied having any Indian heritage.
The Department did not present any documents from Mother's dependency case in the juvenile court. Pursuant to the Department's request, we take judicial notice of the following records from that earlier proceeding: four minute orders, one each from 2007, 2011, 2012, and 2013, and an ICWA-010(A) from 2012. (Evid. Code, §§ 452, subd. (d), 459; In re A.B. (2008) 164 Cal.App.4th 832, 839, 840-841 [taking judicial notice of an ICWA-020 form that the mother had filed in another dependency proceeding].)
On November 14, 2019, the juvenile court held a detention hearing. Mother was present and represented by counsel; Father 3 was not present. Also present at the hearing were a paternal cousin E.A. and his wife, a maternal aunt R.C., and a maternal sister-in-law. During the hearing, the court received and reviewed Mother's Parental Notification of Indian Status (Judicial Council Forms, form ICWA-020) (rev. Jan. 1, 2008) (ICWA-020)), on which she checked the box next to the following statement: "I have no Indian ancestry as far as I know." The court deferred making a finding as to ICWA's applicability until after Father made his initial appearance in the proceeding. Although the court asked Minor's relatives to identify themselves during the detention hearing, it did not ask them whether they had any reason to think Minor may be an Indian child.
The Department had interviewed E.A. several months earlier in connection with the August 2019 domestic violence incident.
Father was arraigned on January 10, 2020. At the hearing, the court received and reviewed Father's ICWA-020 form, which, like Mother's, denied any Indian ancestry as far as he was aware. Based on both parents' denials of any Indian ancestry, the court found it had "no reason to know" Minor was an Indian child under ICWA.
In advance of the adjudication hearing, Father told the Department in an interview that he was born and raised in Honduras, did not move to California until he was an adult, and both of his parents were deceased.
At the adjudication hearing, the juvenile court sustained the petition's allegations, ordered Minor removed from his parents' custody, and permitted monitored visitation. The juvenile court also took judicial notice of selected minute orders 4 from the dependency proceeding for Minor's half-siblings, one of which stated a half-sibling did "not fall under ICWA."
Over the course of the next fifteen months, the juvenile court held three status review hearings. In advance of each of those hearings, the Department submitted reports stating the court previously found ICWA inapplicable. At the 18-month hearing, after finding Mother's progress in reunification services was not substantial, the court terminated reunification services and set a permanency planning hearing.
In advance of the scheduled permanency planning hearing, the Department recommended termination of parental rights because it had not observed any changes in either parent's behavior. The Department also reminded the court it had previously found ICWA inapplicable, but the Department did not provide any additional information.
In November 2021, after denying Mother's petition for reinstatement of reunification services and finding by clear and convincing evidence that it would be detrimental for Minor to be returned to his parents, the juvenile court terminated Mother and Father's parental rights.
II. DISCUSSION
Although there are good indications ICWA does not apply in this case, the juvenile court's ICWA finding is infirm because the juvenile court did not comply with federal law that requires asking "each participant" at an initial dependency hearing if the participant knows or has reason to know the child involved may be an Indian child within the meaning of ICWA. After a brief explanation, we will therefore conditionally reverse the parental 5 rights termination order with directions to make the required inquiry of maternal aunt R.C. and paternal cousin E.A.
Federal regulations implementing ICWA require state courts "at the commencement of the proceeding" to ask "each participant" in child custody proceedings whether they know or have reason to know that the child is an Indian child and to instruct the participants to inform the court if they subsequently receive information that provides reason to know the child is an Indian child. (25 C.F.R. § 23.107(a).) A California statute similarly requires that "[a]t 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).)
"We review a juvenile court's finding that ICWA does not apply for substantial evidence." (In re S.R. (2021) 64 Cal.App.5th 303, 312; In re D.F. (2020) 55 Cal.App.5th 558, 568 ["We review the record for substantial evidence in support of the juvenile court's finding that ICWA did not apply"].)
On the record before us, there is no substantial evidence the Department and the juvenile court fully satisfied their obligation to ensure adequate ICWA inquiry. R.C. and E.A. were both present at the initial dependency hearing and, indeed, the juvenile court questioned both during the proceedings. But the court did not ask either relative if they had any reason to know (or believe) that Minor is an Indian child. That requires remediation. 6
DISPOSITION
The order terminating parental rights is conditionally reversed and remanded solely for further proceedings required by this opinion. The juvenile court is directed to reappoint counsel for Mother and either (a) hold a hearing to permit the court itself to question maternal aunt R.C. and paternal cousin E.A. about whether either has reason to know Minor is an Indian child, or (b) direct the Department to question maternal aunt R.C. and paternal cousin E.A. about whether either has reason to know Minor is an Indian child and to thereafter submit a report to the court documenting the relatives' responses. Nothing in our disposition precludes the juvenile court from ordering additional inquiry of others having an interest in Minor if the court deems it advisable. If the aforementioned inquiry results in information indicating there is reason to know Minor is an Indian child, the juvenile court shall proceed in accordance with ICWA and related California law. If the aforementioned inquiry does not result in information indicating there is reason to know Minor is an Indian child, the court's order terminating parental rights shall be reinstated.
WE CONCUR: MOOR, J., KIM, J. 7