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L. A. Cnty. Dep't of Children & Family Servs. v. Robert B. (In re A.M.)

California Court of Appeals, Second District, Fifth Division
Aug 4, 2023
No. B325840 (Cal. Ct. App. Aug. 4, 2023)

Opinion

B325840

08-04-2023

In re A.M., a Person Coming Under the Juvenile Court Law. v. ROBERT B. et al., Defendants and Appellants LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

Anuradha Khemka, under appointment by the Court of Appeal, for Defendant and Appellant Robert B. Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Amanda M. Dawyn R. Harrison, County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. 17CCJP01782C, Annabelle G. Cortez, Judge. Conditionally reversed and remanded with directions.

Anuradha Khemka, under appointment by the Court of Appeal, for Defendant and Appellant Robert B. Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Amanda M.

Dawyn R. Harrison, County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

KIM, J.

I. INTRODUCTION

Robert B. (father) and Amanda M. (mother) appeal from the juvenile court's order terminating their parental rights to four-year-old A.M. (the child) pursuant to Welfare and Institutions Code section 366.26 contending 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

A. Mother's Prior Appeal

Father was not a party to the appeal.

On June 10, 2019, the Los Angeles County Department of Children and Family Services (Department) filed a section 300 petition alleging the child was at risk of harm because mother had physically abused the child's half siblings. The half siblings were receiving permanent placement services. The petition further alleged that mother had a history of mental and emotional problems, had been hospitalized on five occasions for the evaluation and treatment of her psychiatric condition, and had failed to take her psychotropic medication as prescribed or to participate regularly in mental health counseling. The juvenile court removed the child from the parents' physical custody. (In re A.M. (B309090, Sept. 27, 2021) [nonpub. opn.] (In re A.M. I).)

On July 24, 2019, the Department filed a first amended section 300 petition that included a new count alleging the child was at risk due to father's history of mental and emotional health problems and a new count alleging mother's and father's history of domestic violence placed the child at risk. The juvenile court subsequently sustained the first amended section 300 petition. (In re A.M. I, supra, B309090.)

At the September 25, 2020, disposition hearing, the juvenile court declared the child to be a dependent of the court and ordered that mother would not receive reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11). Mother appealed from the court's order and we affirmed. (In re A.M. I, supra, B309090.)

B. Instant Appeal

1. ICWA Evidence

On June 11, 2019, father filed a Parental Notification of Indian Status form (ICWA-020) stating he might be a member of or might be eligible for membership in the Cherokee tribe. He stated one or more of his parents, grandparents, or other lineal ancestors is or was a member of the Cherokee tribe. He identified paternal great-grandmother E.C. as one of those relatives, and provided her name and telephone number. The same day, mother filed an ICWA-020 form stating she had no Indian ancestry as far as she knew.

The juvenile court ordered the Department to investigate father's claimed Indian ancestry. The court found it did not have a reason to know ICWA applied to mother.

The Department interviewed paternal uncle A.B., paternal cousin I.G., and paternal great-grandmother E.C. about Indian ancestry. A.B. and I.G. denied knowledge of Indian ancestry. E.C. stated she had spoken with her sister about the issue and "they heard" their grandfather (paternal great-, great-, greatgrandfather) was part Indian. She did not know the tribe to which he belonged. The Department also tried to interview father about his claimed Indian ancestry, but he was "so uncooperative, hostile, and belligerent" the Department ended the interview.

On July 24, 2019, the Department sent ICWA notices to the parents, the Secretary of the Interior, the Bureau of Indian Affairs (BIA), the United Keetoowah Band of Cherokee Indians in Oklahoma (United Keetoowah Band), the Cherokee Nation, and the Eastern Band of Cherokee Indians.

By letter dated August 1, 2019, the Eastern Band of Cherokee Indians responded to the Department's ICWA notice that, based on the information the Department provided, the child was not registered or eligible to register as a member of the tribe and was not considered an "'Indian child'" in relation to the tribe as defined by ICWA. By letter dated November 20, 2019, the Cherokee Nation responded that the child was not an "'Indian child'" in relation to the tribe as defined by ICWA.

On June 2, 2020, the Department sent nearly identical ICWA notices to the parents, the Secretary of the Interior, the BIA, the United Keetoowah Band, the Cherokee Nation, and the Eastern Band of Cherokee Indians-the only apparent difference in the second notices was the provision of mother's middle name. By letter dated July 9, 2020, the Eastern Band of Cherokee Indians again responded that, based on the information the Department provided, the child was not registered or eligible to register as a member of the tribe and was not considered an "'Indian child'" in relation to the tribe as defined by ICWA.

At a March 26, 2021, review hearing, the juvenile court ordered the Department to prepare and file a Last Minute Information report by April 5, 2021, that addressed its investigation of father's "Cherokee background." The Department's Last Minute Information report referred the court to the Department's ICWA notices and did not provide any substantive ICWA information.

At a May 27, 2021, hearing solely addressing ICWA based on father's claimed Indian ancestry, the juvenile court stated it had read and considered prior reports and ICWA notices and responses. It found that ICWA did not apply to father.

At a permanency planning review hearing on April 1, 2022, the juvenile court ordered the Department to interview maternal grandmother and the parents about possible Indian ancestry. In a Last Minute Information report, the Department was to provide the court with any additional responses from the noticed tribes and state whether it had received all information from the tribes. The court continued the matter to April 13, 2022.

The Department's Last Minute Information report for the April 13, 2022, hearing reported that mother previously stated she did not have any known Indian ancestry and the court had found ICWA did not apply to father.

At a continued section 366.26 hearing on May 6, 2022, the juvenile court found the Department's Last Minute Information report for the April 13, 2022, hearing failed to satisfy the Department's obligation to conduct further IWCA inquiry. The court ordered the Department to conduct a full ICWA inquiry that included extended family members. The court explained, "[T]his is a new ICWA inquiry. It can't be just reporting the information that was previously received ...." The court continued the matter.

At a continued section 366.26 hearing on June 23, 2022, the juvenile court granted the Department's request to continue the matter to allow it to provide proper ICWA notices.

On June 28, 2022, the Department sent a third set of ICWA notices to the parents, the Secretary of the Interior, the BIA, the United Keetoowah Band, the Cherokee Nation, and the Eastern Band of Cherokee Indians.

At a progress report hearing on July 21, 2022, the juvenile court ordered the Department to interview "any and all known relatives and extended family members including paternal grandfather regarding ICWA" and to update the court in the Department's next report.

On August 2, 2022, the Department sent a fourth set of ICWA notices to the parents, the Secretary of the Interior, the BIA, the United Keetoowah Band, the Cherokee Nation, and the Eastern Band of Cherokee Indians.

By letters dated August 11, 2022, the United Keetoowah Band responded to the Department's ICWA notice that, based on the information the Department provided, it was unable to establish "Keetoowah heritage" for either the child or father. Therefore, the child and father were not eligible and/or were not recognized as members of the United Keetoowah Band and neither met the definition of an "'Indian child'" in relation to the tribe as defined by ICWA. By letter dated August 12, 2022, the Eastern Band of Cherokee Indians responded that, based on the information the Department provided, the child was not registered or eligible to register as a member of the tribe and was not considered an "'Indian child'" in relation to the tribe as defined by ICWA.

In a Last Minute Information report filed on August 16, 2022, the Department reported that it tried, unsuccessfully, to contact father and his brothers A.B. and M.B. concerning ICWA.

At a continued section 366.26 hearing on August 25, 2022, the juvenile court found that the Eastern Band of Cherokee Indians and the United Keetoowah Band had responded to the Department's ICWA notices that the child was "not an Indian child or eligible." A response was pending as to the Cherokee Nation. The court ordered the Department to make continued efforts with the tribes to ascertain the child's Indian ancestry status.

By letter dated August 31, 2022, the Cherokee Nation responded to the Department's ICWA notice that, with the "limited information" the Department provided, the "Cherokee Nation [could] only verify that the names listed above [(the child and father)] are not registered citizens of the tribe."

At a continued section 366.26 hearing on October 19, 2022, the juvenile court found, without objection, that there was no reason to know that the child was an Indian child as defined by ICWA.

2. Termination of Parental Rights

At the continued section 366.26 hearing on October 19, 2022, the juvenile court terminated father's and mother's parental rights to the child.

III. DISCUSSION

Father and mother contend we must conditionally reverse the order terminating their parental rights to allow the Department and the juvenile court to comply with ICWA. They contend the notices the Department sent to the Secretary of the Interior, the BIA, and the relevant Cherokee tribes were inadequate because they identified maternal grandmother, who was in contact with the Department, but did not give her former address and place of birth; maternal grandfather was listed as "unknown" even though the Department was in contact with maternal grandmother; "all identifying information about paternal grandfather was missing"; and the third and fourth notices omitted relative identifying information contained in the first and second notices. The parents further contend the Department's ICWA inquiry was inadequate because the record does not reflect that the Department asked maternal second cousin T.N., with whom the child was placed, about mother's relative information; the Department interviewed paternal second cousin C.B. as a potential placement for the child but did not ask her about paternal relative information or ICWA; and the Department did not interview paternal uncle A.B. about paternal relative information.

Mother joins the arguments father raises in his opening brief.

The Department's first and second ICWA notices did not include any information about paternal grandfather, but its third and fourth ICWA notices included paternal grandfather's name.

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- that is, there was reason to believe the child was an Indian child and the Department failed to make appropriate further inquiry of the child's extended family members. (§ 224.2, subd. (e).) We agree with the parties that the Department and 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 known and available extended family members about matters relevant to ICWA and the child's potential Indian ancestry. This conceded error regarding ICWA compliance thus warrants a conditional reversal. Because the Department and juvenile court failed to comply with their ICWA inquiry duties and we reverse on that basis, we need not reach the parents' additional claim that the Department's ICWA notices were deficient.

IV. DISPOSITION

The juvenile court's order terminating father's and mother's parental rights to the child 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 child'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 the tribes is necessary, the order terminating father's and mother'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.

We concur: RUBIN, P. J., MOOR, J.


Summaries of

L. A. Cnty. Dep't of Children & Family Servs. v. Robert B. (In re A.M.)

California Court of Appeals, Second District, Fifth Division
Aug 4, 2023
No. B325840 (Cal. Ct. App. Aug. 4, 2023)
Case details for

L. A. Cnty. Dep't of Children & Family Servs. v. Robert B. (In re A.M.)

Case Details

Full title:In re A.M., a Person Coming Under the Juvenile Court Law. v. ROBERT B. et…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Aug 4, 2023

Citations

No. B325840 (Cal. Ct. App. Aug. 4, 2023)