Opinion
B316484
07-22-2022
In re M.C., a Person Coming Under the Juvenile Court Law. v. M.J., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County of Los Angeles, No. 17CCJP01652B, Lisa A. Brackelmanns, Judge Pro Tempore. Conditionally reversed and remanded with instructions.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
M.J. (mother) appeals from the juvenile court's order terminating her parental rights to M.C. (the child), contending that the court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with their duties under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related state statutes (Welf. & Inst. Code, § 224 et seq.) and court rules (Cal. Rules of Court, rule 5.480 et seq.). We conditionally reverse the court's order and remand for the limited purpose of ensuring compliance with ICWA's requirements.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Because the sole issue on appeal concerns the juvenile court's and the Department's compliance with ICWA and related state statutes and court rules, we limit our recitation of facts to those relevant to that compliance issue, except as is necessary for context.
In a prior dependency proceeding involving the family, both mother and the child's father C.C. (father) filed ICWA-020 forms stating that they had no Indian ancestry. The juvenile court in that case found that ICWA did not apply.
The Department's April 27, 2022, request for judicial notice of certain records from two prior dependency proceedings involving the child is granted.
On March 20, 2020, the Department filed the section 300 petition in this case, alleging that father endangered the child by driving without securing him in a car seat and while mother was in possession of methamphetamine. The petition also alleged that mother had a history of substance abuse.
The Department attached an ICWA-010A form to the petition averring that it had made an initial inquiry as to the child's Indian ancestry and that the child had "no known Indian ancestry." In connection with the March 23, 2020, detention hearing, father submitted an ICWA-020 form stating that he had no Indian ancestry. At the hearing, the juvenile court noted that father had completed an ICWA-020 form and asked if mother, whose whereabouts were unknown, had any Indian ancestry. Father replied, "No. She's Black." Father then stated that he had Indian "ancestry from way back," advising that his "great[-]great grandfather was married to a Sioux." The court instructed him to provide "whatever information" he had to his attorney. The minute order for the detention hearing stated that the court had no reason to know that the child was an Indian child and no reason to know that ICWA applied to father.
Mother was taken from the hospital at birth and raised in foster care; she did not know her biological parents, L.F. and J.J., and was unaware if they were ever married; her biological mother died in 2004 without mother having had an opportunity to meet her; and she had a biological sister, La.F., in North Carolina (whom she recently met and communicated with) and two half sisters that she did not know.
The May 19, 2020, jurisdiction/disposition report indicated that: father was born in Australia in 1949 to W.C. and Z.C.; his parents moved from Texas to Australia prior to his birth; he had either three older sisters or five older siblings (the report is inconsistent on this point); he moved to the United States when he was 21; he had two sons N.C. (age 36) and D.C. (age 33); and his parents died eight years prior the filing of the petition in this case.
At the October 5, 2020, adjudication hearing, the juvenile court sustained the petition. It reiterated that ICWA did not apply to father and again asked father if mother had Indian ancestry. Father responded that he did not believe that she did. The Department's counsel added that in a prior dependency case, mother indicated that she did not have any Indian ancestry. The court found that it had no reason to believe ICWA applied.
On April 7, 2021, while these proceedings were pending, father died. Father's death certificate stated, among other things, that his parents were born in Australia, he resided in Burbank, and his remains were released to his son, D.C., who lived in Glendale.
At the April 26, 2021, status review hearing, mother appeared for the first time in the proceeding and submitted an ICWA-020 form stating that she had no Indian ancestry.
Mother failed to reunify with the child and on November 17, 2021, the juvenile court conducted a hearing under section 366.26, found that the child was adoptable, and terminated mother's parental rights. Mother timely appealed.
III. DISCUSSION
A. Inquiry Duties Under ICWA
A juvenile court and the Department have a duty in every dependency proceeding to determine whether ICWA applies. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); In re H.V. (2022) 75 Cal.App.5th 433, 437 (H.V.); In re Isaiah W. (2016) 1 Cal.5th 1, 10-11.) Effective in 2019, California amended its statutory scheme regarding ICWA to conform to changes to the federal regulations concerning ICWA compliance. (H.V., supra, 75 Cal.App.5th at p. 437.) The resulting clarification created three distinct ICWA duties. (Ibid.) This case concerns the initial inquiry duty. "'At [this] 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.]' (In re Charles W. (2021) 66 Cal.App.5th 483, 489 . . . .)" (H.V., supra, 75 Cal.App.5th at p. 437.)
We review a parent's claim of inadequate inquiry into a child's Indian ancestry for substantial evidence. (H.V., supra, 75 Cal.App.5th at p. 438.)
B. Analysis
Mother contends that the order terminating her parental rights should be conditionally reversed because the Department failed to make initial inquiry of extended family members who were known to the Department. We agree.
In its investigation of the child's possible Indian ancestry, the Department spoke only with mother and father. It made no effort to speak with maternal aunt La.F. or father's two sons, N.C. and D.C. (the latter of whom, according to father's death certificate, lived in Glendale). The Department therefore failed to comply with its duty of initial inquiry (§ 224.2, subd. (b); In re Charles W., supra, 66 Cal.App.5th at p. 489) and the claimed ICWA error was prejudicial (H.V., supra, 75 Cal.App.5th at p. 438).
IV. DISPOSITION
The order terminating mother's parental rights to the child is conditionally reversed. The cause is remanded to the juvenile court with instructions to order the Department to make reasonable efforts to interview available maternal and paternal family members about the possibility of the parents' Indian ancestry and to report on the results of the Department's investigation. Based on the information reported, if the court determines that no additional inquiry or notice to tribes is necessary, the order terminating mother'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: MOOR, J.
BAKER, Acting P.J., Concurring
I agree a conditional reversal of the parental rights termination order is required because the Los Angeles County Department of Children and Family Services (Department) did not adequately investigate C.C.'s statements about possible Indian ancestry. I would not, however, remand with specific directions requiring the juvenile court to order the Department to interview any number of unspecified maternal relatives. Whether such interviews are necessary is something the juvenile court should decide in the first instance. (See generally In re H.V. (2022) 75 Cal.App.5th 433, 441 (dis. opn. of Baker, J.).)