Opinion
B329626 B329145
01-29-2024
In re K.J., a Person Coming Under the Juvenile Court Law. v. T.H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, and Sarah Vesecky, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 19CCJP02179A, Tiana J. Murillo, Judge. Affirmed in part, conditionally reversed in part, and remanded with directions.
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, and Sarah Vesecky, Senior Deputy County Counsel, for Plaintiff and Respondent.
BAKER, Acting P. J.
In this consolidated appeal, T.H. (Mother) appeals from juvenile court orders denying her changed circumstances petitions and terminating her parental rights over her son, K.J. (Minor). Mother's sole contention is that the juvenile court and the Los Angeles County Department of Children and Family Services (the Department) did not comply with their inquiry obligations under the Indian Child Welfare Act (ICWA) and related California law. The Department concedes noncompliance, and the concession is appropriate. We shall therefore conditionally reverse the order terminating Mother's parental rights and remand for compliance with ICWA and related California law.
I. BACKGROUND
Minor was born in September 2018. In April 2019, the Department filed a juvenile dependency petition alleging Mother's substance abuse placed Minor at substantial risk of serious physical harm. The Department later filed a first amended petition adding an allegation that Mother's mental and emotional problems placed Minor at similar risk.
The first amended petition also alleged Minor's alleged father, J.J., was a current abuser of methamphetamine and marijuana and failed to provide the necessities of life for Minor.
At the April 2019 initial detention hearing, Mother filed an ICWA-020 Parental Notification of Indian Status form advising she has no Indian ancestry. The juvenile court found it had no reason to know Minor is an Indian child.
Mother subsequently told a Department social worker that she did not know her biological father and her biological mother was deceased. Mother and her sister, M.H., were removed from their mother's care when Mother was four or five years old. Mother was placed with H.W., who served as her legal guardian until she was 14 or 15 years old. Mother explained H.W. "had to let [her] go because of [her] behavior" and she eventually aged out of the foster care system. Mother and H.W. nonetheless maintained a "very good relationship," and Mother wanted Minor placed with H.W.
Minor was placed with H.W. in May 2019 and remained in H.W.'s care for the remainder of the proceedings. So far as the record reveals, the Department did not make ICWA-related inquiry of anyone other than Mother throughout the dependency proceedings (including M.H., with whom the Department was in contact).
The juvenile court assumed dependency jurisdiction over Minor in September 2019, sustaining the first amended petition as pled. At a June 2020 disposition hearing, the juvenile court ordered monitored visitation, substance abuse testing, and various programs and services for Mother. Roughly a year later, the juvenile court terminated Mother's reunification services. Then, in March 2023, the juvenile court heard and denied Mother's changed circumstances petitions to reinstate reunification services and, in April 2023, terminated the parental rights of Mother, Minor's alleged father, and any unknown father.
Mother's separate appeals of the juvenile court's orders denying her changed circumstances petitions and terminating her parental rights were consolidated for briefing, argument, and decision.
II. DISCUSSION
Under California statutes and rules concerning ICWA, the Department and the juvenile court have "an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child." (Welf. &Inst. Code, § 224.2, subd. (a); see also Cal. Rules of Court, rule 5.481(a).) We review a juvenile court's finding concerning the adequacy of an inquiry undertaken to discharge that duty for substantial evidence. (In re H.V. (2022) 75 Cal.App.5th 433, 438; id. at 441 (dis. opn. of Baker, J.).)
Although Mother informed the Department at the outset of the dependency proceedings that she has no Indian ancestry, she contends she has "limited insight into her own family's ancestry" because she was in foster care from an early age. She emphasizes there is no record of the Department asking her sister M.H. (or even her former legal guardian H.W.) about any possible Indian ancestry. Mother contends that her denial of any Indian ancestry when asked by the Department accordingly lacks the force it might otherwise carry and cannot be substantial evidence supporting the juvenile court's finding that ICWA does not apply. She argues the order terminating her parental rights should be reversed and the matter remanded with instructions to conduct a proper ICWA inquiry.
Mother does not contend that non-compliance with ICWA warrants reversing the juvenile court's orders denying her changed circumstances petitions.
The Department did not file a respondent's brief. Instead, it filed a concession letter acknowledging it did not satisfy its obligations under ICWA and related California law. The Department's concession is well taken on these facts. Because there is good reason to doubt Mother would have reliable insight into whether there is reason to know that Minor is an Indian child, her denial of Indian ancestry does not constitute substantial evidence for the juvenile court's ICWA finding. More inquiry was required here.
DISPOSITION
The juvenile court's orders denying Mother's changed circumstances petitions are affirmed. The juvenile court's April 7, 2023, parental rights termination order is conditionally reversed and the matter is remanded to the juvenile court solely for the limited purpose of documenting compliance with ICWA and related California law.
On remand, the juvenile court shall re-appoint counsel for Mother and direct the Department to make reasonable efforts to investigate the possibility of Minor's Indian ancestry and to report on the results of those efforts. 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.