Opinion
B326274
09-12-2023
In re E.O., a Person Coming Under the Juvenile Court Law. v. EFRAIN O., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn. R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP04817A, Stephen Marpet, Commissioner. Conditionally affirmed and remanded with directions.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn. R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Senior Deputy County Counsel, for Plaintiff and Respondent.
WILEY, J.
Father Efrain O. appeals the termination of his parental rights to daughter E.O., arguing the Los Angeles County Department of Children and Family Services failed to comply with the requirements of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (the Act). We agree. We conditionally affirm and remand for the Department and juvenile court to comply with the Act and related California law. Statutory citations are to the Welfare and Institutions Code.
The Department detained E.O. after she and mother Delena M. tested positive for amphetamines at E.O.'s birth. The court found the father to be E.O.'s presumed father. The October 15, 2021 detention report states that the Act "does or may apply." An ICWA-010 form attached to the dependency petition states both the mother and father said there was no reason to believe E.O. was an Indian child on October 11, 2021, but the report notes the mother told the San Bernardino Child Protective Services that she is Yaqui Indian in 2019.
At an arraignment hearing on October 28, 2021, the mother confirmed she had been told by her mother that the maternal great-great-great-grandfather was enrolled in the Yaqui tribe. The court told the Department "to interview mother, see if there are other relatives, aunts, uncles, and further relatives, that might have some information, and if they deem it appropriate, they should walk it on prior to noticing any tribes." The minute order likewise reflected that the mother "is claiming possible Native American Indian heritage" and that the Department was "to further investigate."
The Department interviewed maternal aunt Estelle M. on November 3, 2021.
Estelle M. confirmed the maternal grandmother told them they had Yaqui heritage but said they did not file any paperwork and were never registered with the tribe.
Mother identified four other siblings and her father. Her mother is deceased. The Department spoke with one maternal uncle, Gilbert G., but did not ask him about Native American ancestry. The mother and the father claimed not to know the phone number or address for maternal uncle Mark C., though they were with him at his home immediately before the mother went to the hospital to give birth to E.O. The father stated the mother contacted her relatives through messaging applications on her phone. The Department did not ask the mother to use this method to get contact information or use this method itself. Nor does it appear the Department asked maternal aunt Estelle M., with whom it was in contact, if she had contact information for other relatives.
The father identified three siblings and his parents. The Department spoke with the paternal grandmother, but did not ask her about possible Native American ancestry. The Department did not obtain or attempt to obtain contact information for the other identified paternal relatives, though the father said he was going to reach out to his siblings for help, suggesting he had their contact information.
The Department prepared formal notices and sent them to the Pascua Yaqui tribe, the Bureau of Indian Affairs, and the Secretary of the Interior. The form included the mother's information, though it did not include her middle name, and the father's information, though it excluded his second last name. The form included the names of the maternal grandparents. It did not include any other information other than that the maternal grandmother was believed to have Pasqua Yaqui heritage and that she was alive, which the Department knew was inaccurate. The form also identified the names of the paternal grandparents, the address of the paternal grandmother, and that the paternal grandfather lived in Mexico. The form listed the name, phone number, and birth place of Estelle M., but did not include her address or birth date. Under "Tribe, band, and location" it said, "Pasqua Yaqui but says no." None of the other identified maternal or paternal aunts and uncles were listed. The Pascua Yaqui tribe sent a letter stating, "[b]ased upon the family information provided and the current enrollment records, the child is not eligible for membership and the Tribe will not intervene in this matter."
At the January 11, 2022 adjudication and disposition hearing, the Department asked the juvenile court to find the Act did not apply based on the tribe's letter. The court found it had no reason to know E.O. was an Indian child.
The juvenile court terminated parental rights on November 16, 2022. The father appeals.
The father argues the Department failed in both its duty of initial inquiry and further inquiry. We agree.
The Department failed in its duty of initial inquiry. It asked only the parents about potential Native American ancestry, but no extended relatives, even those with whom it was already in contact, including the paternal grandmother and maternal uncle.
The Department argues the father's consistent responses that he had no Native American ancestry negated any need for a further initial inquiry. This is not true. The statute requires the Department to ask extended family members. (§ 224.2, subd. (b); In re S.S. (2023) 90 Cal.App.5th 694, 699 ["asking only the parents is not enough"] (S.S.).) The Department did not.
The mother provided enough information to trigger a duty of further inquiry when she reported that she believed her greatgreat-great-grandfather was an enrolled member of the Yaqui tribe. The Department's efforts were insufficient here as well.
The Department did interview maternal aunt Estelle M. about the claim, but does not seem to have asked for all of the information required by the Act. The record reflects the Department simply confirmed the maternal grandmother had said there was Yaqui heritage through the great-great-greatgrandfather. The record does not show the Department asked for Estelle M.'s own information, such as her birthdate and address, or whether she knew the information for other family members or had contact information for other relatives. Nor does the Department appear to have asked the mother to obtain contact information for other family members through the messaging applications on which she communicated with them.
The Department's further inquiry of the tribes was insufficient as a result of its insufficient inquiry of the family. The Department chose to use the formal notices to conduct the informal inquiry required at this stage. (See § 224.2, subd. (e) [listing telephone, fax, and email as potential contact methods].) This is not problematic in and of itself, but the Department omitted from the forms information it had or could have obtained. This rendered the inquiry insufficient.
The Department urges us to find the actions it took satisfied its duty of further inquiry because it reliably answered the question of whether E.O. was an Indian child. It argues there is no reason to believe asking additional relatives would have yielded different information and that notice was sent to the tribe. It asks us to affirm because the record offers no reason to believe E.O. may be an Indian child. The Department failed to follow up on available leads and to provide complete, accurate information to the tribe and other entities. It did not fulfill its duty of further inquiry. This failure was prejudicial. (S.S., supra, 90 Cal.App.5th at pp. 711-712.)
DISPOSITION
We conditionally affirm the order terminating parental rights to E.O. The matter is remanded to the juvenile court with directions to comply with the inquiry provisions of Welfare and Institutions Code section 224.2. The juvenile court shall order that, within 30 days of the remittitur, the Department perform its initial inquiry of E.O.'s potential Native American ancestry of her paternal relatives and further inquiry of her maternal relatives consistent with this opinion.
If the Department obtains new information from these inquiries, the juvenile court shall order it to provide the informal notice described in section 224.2, subdivision (e), to the relevant tribes and parties.
In the event the further inquiry leads to reason to know E.O. is an Indian child, the juvenile court and Department shall proceed accordingly under the Act and related California law. In the event the further inquiry does not lead to reason to know E.O. is an Indian child, the order terminating parental rights shall remain in effect.
We concur: STRATTON, P. J., VIRAMONTES, J.