Opinion
B298059
02-25-2020
In re EMILIO A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. EMANUEL A., Defendant and Appellant.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, John Savittieri, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP00548A) APPEAL from orders of the Superior Court of Los Angeles County. Martha Matthews, Judge. Affirmed and remanded with directions. Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, John Savittieri, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court asserted jurisdiction over Emilio A. and removed him from his parents' custody after finding his mother, Brittany A. (Mother), has unresolved substance abuse and mental health issues. Emilio's father, Emanuel A. (Father), contends the juvenile court erred in finding the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) does not apply to this case and by failing to ensure the Los Angeles County Department of Children and Family Services (DCFS) complied with ICWA's inquiry and notice requirements. We affirm and remand the matter for the juvenile court and DCFS to comply with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
Emilio A. came to DCFS's attention after he tested positive for amphetamines at birth. Emilio's parents claimed Mother was taking medication that caused the positive test result, but they refused to provide DCFS the name of the prescribing doctor. In response, DCFS filed a petition asserting Emilio is a person described by Welfare and Institutions Code, section 300, subdivision (b).
All further undesignated statutory references are to the Welfare and Institutions Code.
The substance of the allegations is not relevant to the issues Father raises on appeal, so we do not discuss them.
At the detention hearing, Mother filed a Parental Notification of Indian Status form (ICWA-020) indicating she may have Apache ancestry. Father did not appear, but his mother (Paternal Grandmother) told the court he does not have Indian ancestry. The court ordered DCFS to investigate Mother's possible Apache ancestry and fulfill its ICWA notice requirements. It found no reason to believe Father has Indian ancestry.
Father appeared by telephone for a brief portion of a subsequent arraignment hearing. The court took a recess while Father spoke to his counsel. Counsel then filed an unsigned ICWA-020 form indicating Father has no Indian ancestry. The form erroneously states Father's name is "Emilo." The words "by phone" are written near the signature line.
Father was not present when the hearing resumed. The court reviewed his ICWA-020 form and erroneously noted Mother previously filed a form indicating she also had no Indian ancestry, which Mother's counsel confirmed. The court then found there was no reason to believe Emilio is an Indian child as defined under ICWA.
At the subsequent joint adjudication/disposition hearing, the court sustained the petition, declared Emilio a dependent of the court, and removed him from his parents' custody. Father timely appealed.
DISCUSSION
On appeal, the sole issue raised by Father is ICWA compliance. DCFS concedes remand is necessary in order to comply with ICWA's inquiry and notice requirements. We agree.
Federal law requires that "[w]hen a court 'knows or has reason to know that an Indian child is involved' in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child's tribe notice of the pending proceedings and its right to intervene." (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538, quoting 25 U.S.C. § 1912(a).) To effectuate this requirement, California law places on the juvenile court and DCFS an affirmative and continuing duty to inquire whether a child is or may be an Indian child. (§ 224.2, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 10; In re Michael V. (2016) 3 Cal.App.5th 225, 233.) As part of that duty, rule 5.481(a) of the California Rules of Court (Rule 5.481(a)) requires the court order the parent provide information about the child's Indian status by completing an ICWA-020 form. (Cal. Rules of Court, rule 5.481(a)(2)(C).) If the parent is unavailable, the court must order DCFS to use reasonable diligence to find and inform the parent the court has ordered he or she complete the form. (Cal. Rules of Court, rule 5.481(a)(3).)
If there is reason to believe an Indian child is involved in the proceeding, DCFS must make further inquiry regarding the possible Indian status of the child. (§ 224.2, subd. (e).) This includes, among other things, gathering information from relevant family members and contacting tribes that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility. (§ 224, subd. (e)(1)-(2).) If the court concludes adequate inquiry and due diligence were made and there is no reason to know the child is an Indian child, it may make a finding that ICWA does not apply. (§ 224.2, subd. (i)(2).)
We agree with the parties that DCFS and the juvenile court failed to comply with these inquiry and notice requirements in this case. At the detention hearing, the court found reason to believe Emilio is an Indian child based on Mother's representation that she may have Apache ancestry. The court then ordered DCFS to gather additional information regarding Mother's ancestry and comply with ICWA's notice requirements. There is nothing in the record showing DCFS followed these orders. Nonetheless, the court subsequently found ICWA does not apply, apparently based on an erroneous representation from Mother's counsel. That finding was premature. (See § 224.2, subd. (i)(2).)
The appropriate remedy in this situation is to affirm and remand the matter to the juvenile court with the direction to ensure the ICWA requirements are satisfied as they pertain to Emilio's possible Indian ancestry through Mother. (See In re Damian C. (2009) 178 Cal.App.4th 192, 199-200; In re Veronica G. (2007) 157 Cal.App.4th 179, 186-188.) If the court subsequently determines Emilio is an Indian child, any interested party may petition the dependency court to vacate its prior orders, as warranted. (Ibid.)
Father suggests we should also direct the juvenile court and DCFS to inquire further into his possible Indian ancestry. He contends further inquiry is necessary because the court and DCFS failed to ensure he filed a complete ICWA-020 form, as required under Rule 5.481(a). According to Father, the ICWA-020 form filed by his counsel was insufficient because it contained a typographical error and was unsigned.
Father also suggests the juvenile court erred at the detention hearing in finding no reason to believe he has Indian ancestry based solely on Paternal Grandmother's representation. Any challenge to that finding is moot given the court's subsequent ICWA finding at the arraignment hearing, which was based on additional evidence.
We refuse to give such a direction because any purported failure to comply with Rule 5.481(a) was clearly harmless. (See In re H.B. (2008) 161 Cal.App.4th 115, 121 [state laws implementing ICWA are subject to a harmless error analysis]; In re Breanna S. (2017) 8 Cal.App.5th 636, 653 [same].) The failure to follow a rule of court implementing ICWA is harmless error if the parent fails to dispute evidence showing he or she does not have Indian ancestry. (In re H.B., supra, 161 Cal.App.4th at p. 122; see In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [failure to comply with ICWA's inquiry requirements is harmless error unless the parent makes an affirmative representation regarding an Indian connection sufficient to invoke ICWA].) Here, Paternal Grandmother told the juvenile court Father has no Indian ancestry. Father's counsel—who had a duty not to present false information to the court (see In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1167)—subsequently filed on his behalf an ICWA-020 form indicating the same. Father has never disputed, in the juvenile court or on appeal, those representations. As a result, he has not shown the failure to have him file a complete ICWA-020 form resulted in a miscarriage of justice. (See In re H.B., supra, 161 Cal.App.4th at p. 122; In re Rebecca R., supra, 143 Cal.App.4th at p. 1431.) If Father believes he may have Indian ancestry, there is nothing to stop him from notifying DCFS or the court on remand.
Although the form erroneously refers to Father as "Emilo," it is clear from context the information contained within it concerns Father.
DISPOSITION
The juvenile court's jurisdictional findings and dispositional orders are affirmed. The matter is remanded to the juvenile court with the direction to order DCFS to fully comply with ICWA's inquiry and notice requirements, consistent with this opinion.
BIGELOW, P.J. WE CONCUR:
GRIMES, J.
WILEY, J.