Opinion
B304381
08-19-2020
In re AMARI B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.J., Defendant and Appellant.
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. 19CCJP05823A APPEAL from orders of the Superior Court of Los Angeles County, Brett Bianco, Judge. Conditionally affirmed and remanded with directions. Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
J.J. (mother) appeals from the juvenile court's jurisdictional findings and dispositional orders declaring her son Amari B. a dependent of the court and removing him from her custody. Mother contends the Department of Children and Family Services (Department) did not comply with the inquiry requirements in the state statutes implementing the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We agree. We therefore conditionally affirm and remand with directions.
BACKGROUND
On September 9, 2019, the Department filed a dependency petition alleging jurisdiction over Amari (age 9 months) under Welfare and Institutions Code section 300, subdivisions (a), (b)(1), and (j). The petition alleged that mother and Michael B. (father) have a history of engaging in domestic violence in front of Amari (counts a-1 and b-2), that mother suffers from mental and emotional problems (count b-1), that mother and father are current marijuana abusers (counts b-3 and b-4), and that mother's mental health problems and substance abuse led to dependency jurisdiction over Amari's half-siblings (counts j-1 and j-2). In an Indian Child Inquiry Attachment, the Department reported that when she was questioned about it on June 21, 2019, "Mother denied Native American [a]ncestry for herself and for minor." Father neither confirmed nor denied Indian ancestry.
All undesignated statutory references are to the Welfare and Institutions Code.
Father is not a party to this appeal.
On September 10, 2019, the juvenile court held a detention hearing at which mother was present. In a Parental Notification of Indian Status (ICWA-020) form filed that day, mother checked two boxes: "3b. I may have Indian ancestry"—namely, "Cherokee, S[iou]x, Crow on mgm's side"—and "3d. I have no Indian ancestry as far as I know." The box next to option 3d, denying Indian ancestry, appears to have been crossed out. After reviewing the form, the court said: "Mother indicates she may have Native American Indian ancestry. She indicates Cherokee, Sioux, and Crow on her maternal grandmother's side. So I'll ask the Department to discuss that with her and do appropriate notices." The court detained Amari from both parents, granted monitored visitation, and deferred paternity findings.
According to the jurisdiction/disposition report, on October 2, 2019, a dependency investigator (DI) interviewed mother "in person regarding her Native American heritage and obtained family tree information. [Mother] indicated she has limited information regarding her family's Native American heritage. She stated she would like to 'take it back' and that she has Native American heritage but doesn't know the details. DI collected the available information and on 10/03/19, DI mailed out ICWA notices."
The next day, the Department mailed out ICWA-030 notice forms to various tribes. The form contained relatively complete information for mother, and noted, "[a]t the time of information collecting, mother indicated she was informed by her mother that she is 'mixed from the tribes Cherokee, Sioux, and Crow.' " The form also listed the maternal grandmother's first and last name—though it did not indicate whether she had any former names—and her telephone number and month and day of birth. Her current and former addresses were listed as "unknown," her birth year was listed as "??" and her birthplace was blank. The maternal grandfather's information was limited to his first name and current city and state of residence. All other information was listed as "unknown." In fact, the notice indicated that all other requested information—including all information about J.J.'s grandparents and the names of any other relatives—was unknown or not applicable.
On October 3, 2019, the investigator spoke to J.J.'s mother, J.R., on the telephone. The report's summary of that conversation does not mention ICWA or J.R.'s possible Indian ancestry. It does not reveal whether the investigator asked J.R. for her address, birthdate, or place of birth. It does not reveal whether the investigator asked about other relatives, such as the names and birthdates of J.R.'s parents. Nor does the report reveal whether the investigator spoke to J.R. before or after mailing the ICWA notices that day.
The Department received responses from nine of the 19 tribes that had been provided notice. Each of the responding tribes stated that Amari was not an enrolled member of the tribe and/or was not eligible for membership in the tribe.
At the subsequent jurisdiction hearing on December 5, 2019, the court found ICWA did not apply, then sustained the allegations of the amended petition, and assumed jurisdiction over Amari. At the disposition hearing on January 16, 2020, the court declared Amari to be a dependent of the court, removed him from parental custody, and granted reunification services to both parents.
On October 8, 2019, the section 300 petition had been amended to correct a clerical error.
DISCUSSION
Mother contends the Department failed to inquire adequately into Amari's possible Indian heritage. We agree.
1. ICWA
ICWA was enacted " 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture ... .' [Citation.]" (In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C. § 1902.) Under ICWA, an "Indian child" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4); see also § 224.1, subd. (a) [adopting federal definition of "Indian child"].) It is up to the tribe to decide whether a child is an Indian child under ICWA. (Isaiah W., at p. 15.)
"[T]he burden of coming forward with information to determine whether an Indian child may be involved ... in a dependency proceeding does not rest entirely—or even primarily—on the child and his or her family." (In re Michael V. (2016) 3 Cal.App.5th 225, 233.) Rather, "[j]uvenile courts and child protective agencies have 'an affirmative and continuing duty to inquire' whether a dependent child is or may be an Indian child." (Ibid.; see also Isaiah W., supra, 1 Cal.5th at pp. 9-11; § 224.2, subd. (a).)
This affirmative duty to inquire comprises a two-step process. First, if a child is removed from his or her parents and placed in the custody of a county welfare department, the department has a duty to "ask[ ] 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 ... ." (§ 224.2, subd. (b), italics added.) The court must make a similar inquiry when the parents first appear in court: "[T]he court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c), italics added.) The court's duty of initial inquiry includes requiring each party to complete California Judicial Council Form ICWA-020, Parental Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Second, if the court or social worker has "reason to believe that an Indian child is involved in a proceeding," the court or social worker must "make further inquiry regarding the possible Indian status of the child," by, among other things, interviewing the parents and extended family members, and contacting the tribe that may reasonably be expected to have information about the child's membership, citizenship status, or eligibility. (§ 224.2, subd. (e), italics added; see 224.3, subd. (a)(5)(C).)
If, after the initial and further inquiries, there is reason to know that an Indian child is involved, notice must be provided to the parent, legal guardian, or Indian custodian and the child's tribe. (§ 224.2, subd. (f).) There is reason to know a child is an Indian child if any one of the six statutory criteria is met. (Id., subd. (d).)
2. The Department was required to inquire into Amari's possible Indian heritage.
"Judicial Council form ICWA-020, Parental Notification of Indian Status, which the juvenile court must order a parent to complete at his or her first appearance in the dependency proceeding [citation], often provides the court and the child protective agency with the first information 'suggesting' or 'indicating' the child involved in the proceeding is or may be an Indian child." (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 785.) Here, mother filed an ICWA-020 form indicating she may have Cherokee, Sioux, and/or Crow heritage on her mother's side. After reviewing the form, the court said: "Mother indicates she may have Native American Indian ancestry. She indicates Cherokee, Sioux, and Crow on her maternal grandmother's side. So I'll ask the Department to discuss that with her and do appropriate notices." The Department subsequently spoke to mother about her Indian heritage, but did not raise the subject with the maternal grandmother.
The Department claims it spoke to the maternal grandmother about her Native American heritage. As we explain below, however, the record does not support this assertion.
The Department insists that this was enough—that it "had no duty to locate and interview other maternal relatives about Amari's possible Indian status based on the limited information that Mother provided, which included her attempting to recant her assertion of possible Indian ancestry." That is, the Department claims there was insufficient "reason to believe" Amari was an Indian child, and, therefore, it was not statutorily required to conduct a further inquiry.
There appears to be split of authority about when, under California's revised ICWA statutes, further inquiry is required. (Compare In re A.M. (2020) 47 Cal.App.5th 303 with In re Austin J. (2020) 47 Cal.App.5th 870.) We need not resolve that issue, however, because in this case, the Department did not conduct an adequate initial inquiry.
As discussed, when a child is removed from his or her parents and placed in the custody of the county welfare department, the "department has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the ... extended family members ... whether the child is, or may be, an Indian child ... ." (§ 224.2, subd. (b), italics added.) Here, on both the ICWA-020 form and in a later interview with the Department, mother explained that her mother—the maternal grandmother—told her about her Indian heritage. And, the Department was in touch with the maternal grandmother, who was cooperative. Under these circumstances, the Department was required, as part of its initial inquiry, to ask the maternal grandmother whether Amari "is, or may be, an Indian child ... ." (Ibid.) It failed to do so.
3. The Department did not substantially comply with its initial inquiry duty.
The Department contends it "substantially complied with its further inquiry duties based on evidence that (1) Mother sought to retract her initial assertion that she possibly had Indian ancestry through the maternal grandmother when again interviewed, (2) the maternal grandmother did not provide any ICWA-related information when she was interviewed, and (3) Father refused to speak with [the Department] following the detention hearing." We disagree.
First, while the jurisdiction/disposition report indicates mother said she "would like to 'take it back,' " that statement was made while reaffirming that she did indeed have Native American heritage. "Indian tribes have interests protected by ICWA that are separate and distinct from the interests of parents of Indian children. [Citation.] ICWA's notice requirements are 'intended to protect the interests of Indian children and tribes despite the parents' inaction.' [Citations.]" (Isaiah W., supra, 1 Cal.5th at p. 13.)
Second, while the Department is correct that the maternal grandmother was interviewed and that she "did not provide any ICWA-related information," the Department fails to mention that there is no evidence she was asked about her Native American ancestry. (See In re N.G. (2018) 27 Cal.App.5th 474, 483-485 (N.G.) [Department's duty to document inquiry efforts].) To the contrary, the available evidence indicates she was not.
The Department devoted a section of the jurisdiction/disposition report to Amari's "Indian Child Welfare Act Status," in which it states that ICWA "does or may apply." That section contains mother's interview comments about her possible Indian heritage—but the rest of the information mother provided during the same interview appears several pages later, under "Witness Statements" in the "Jurisdiction" section of the report. Had the maternal grandmother been asked about her Native American heritage, any information she provided would undoubtedly have appeared in the ICWA section of the report. But instead, the maternal grandmother's statement appears only in that later section of the report.
This section of the report states: "On 10/02/19, DI interviewed mother, [J.J.], in person regarding her Native American heritage and obtained family tree information. [J.J.] indicated she has limited information regarding her family's Native American heritage. She stated she would like to 'take it back' and that she has Native American heritage but doesn't know the details. DI collected the available information and on 10/03/19, DI mailed out ICWA notices."
The inference that the Department did not ask the maternal grandmother about her Native American heritage is supported by the ICWA-030 notice forms the Department sent to the tribes, which contain scant information about Amari's relatives. The section of the ICWA-030 form devoted to the maternal grandmother lists her current address as unknown, lists her former address as unknown, lists her birth year as "??" and does not mention her birthplace at all. Similarly, in the section of the form devoted to the maternal grandmother's parents, every single section says "unknown"—including their names, birthdates and places, and whether they are alive or dead. Presumably, had the Department asked the maternal grandmother about the family's Indian heritage, she would have provided at least some of this information.
Third, given that father denied Indian ancestry, we do not see what bearing his refusal to speak to the Department could possibly have on whether the Department substantially complied with its duty to inquire into mother's Indian heritage. As the Department fails to explain its relevance, we do not address it.
4. The matter is remanded to allow the Department to conduct an adequate initial inquiry.
"In the absence of an appellate record affirmatively showing the court's and the agency's efforts to comply with ICWA's inquiry and notice requirements, we will not, as a general rule, conclude that substantial evidence supports the court's finding that ... ICWA did not apply. Instead, as a general rule, we will find the appellant's claims of ICWA error prejudicial and reversible." (N.G., supra, 27 Cal.App.5th at p. 484.)
Because the Department did not conduct an adequate initial inquiry into whether Amari "is, or may be, an Indian child" (§ 224.2, subd. (b)), the case must be remanded. Upon remand, the court shall direct the Department to conduct such inquiry, including interviewing the maternal grandmother about the child's Indian ancestry, and file documentation of its efforts. Based on the information obtained by such inquiry, the court shall determine whether further inquiry and/or notice is required. If notice is required and a tribe responds that Amari is an Indian child, then the jurisdictional and dispositional orders shall be vacated, and further proceedings conducted under ICWA.
DISPOSITION
The jurisdictional and dispositional orders are conditionally affirmed. The matter is remanded to the juvenile court with directions to order the Department to comply with ICWA in accordance with the views expressed in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
EGERTON, J.