Opinion
B330628
01-11-2024
In re DAVID J., a Person Coming Under the Juvenile Court Law. v. S.J., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP01546A, Gabriela H. Shapiro, Juvenile Court Referee. Conditionally affirmed and remanded with directions.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
LAVIN, J.
INTRODUCTION
S.J. (mother) appeals from the juvenile court's order terminating her parental rights to her son, David. The only issue mother raises on appeal is that the Department of Children and Family Services (Department) failed to conduct an adequate initial inquiry under state law (Welf. &Inst. Code, § 224 et seq.) implementing the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) because it did not interview several extended family members about David's possible Indian ancestry. The Department does not oppose remanding the matter for ICWA compliance. We accept the Department's concession and conditionally affirm the order terminating mother's parental rights but remand the matter for the limited purpose of ensuring compliance with ICWA and related California law.
All undesignated statutory references are to the Welfare and Institutions Code. Because ICWA uses the term "Indian," we do the same for consistency. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
FACTUAL AND PROCEDURAL BACKGROUND
1. Proceedings Leading to the Termination of Parental Rights
Because mother challenges only the Department's ICWA inquiry, we provide only a short summary of the facts underlying the initiation of David's dependency proceedings and the termination of mother's parental rights.
In March 2020, the juvenile court detained David based on allegations that mother and David O. (father) failed to make an appropriate plan for the child's care when they left him with his maternal grandfather.
In July 2020, the court sustained an amended petition, finding true allegations that: (1) mother and father have a history of engaging in domestic violence in front of David; (2) mother has a history of mental and emotional problems; and (3) mother failed to protect David from his maternal grandfather, who sexually abused the child's maternal aunt. The court declared David a dependent of the court, removed him from his parents' custody, and ordered the Department to provide the parents reunification services.
In March 2022, the court ordered the Department to release David to mother's custody and to provide mother family maintenance services.
In June 2022, the Department filed a supplemental petition alleging mother failed to comply with her court-ordered services and failed to make David available to the Department's staff. The court subsequently removed David from mother's custody.
In August 2022, the court sustained the supplemental petition. At the disposition hearing, the court ordered David to remain removed from his parents' custody, denied mother and father reunification services, and set a hearing under section 366.26 to select and implement a permanent plan for David.
The court held the selection and implementation hearing in July 2023. After finding the beneficial parent-child relationship exception did not apply, the court terminated mother's and father's parental rights and selected adoption as David's permanent plan.
2. ICWA Investigation
In March 2020, shortly after the family came to the Department's attention, mother and father denied knowledge of any Indian ancestry in their respective families. At the detention hearing, the court found it had no reason to know David was an Indian child.
Throughout its investigation, the Department contacted several of David's extended family members, including his maternal grandfather, paternal grandmother, paternal aunt, and an unidentified maternal relative. The Department did not question any of David's extended family members about possible Indian ancestry.
Based on the Department's original jurisdiction report and the allegations in the amended petition, it appears the unidentified relative is David's maternal aunt.
In May 2021, the court found ICWA does not apply.
At the June 2022 hearing on the Department's supplemental petition, the court noted that mother believed she has Creole heritage. The court found it had no reason to know ICWA applies to David's case because Creole "is not Native American."
In July 2022, mother and father reported they have no Indian ancestry in their respective families.
In January 2023, the court ordered the Department to interview Alberta W., mother's godmother and David's caretaker at the time, about possible Indian ancestry. The court also ordered the Department to interview David's paternal grandmother and "all known relatives and participants regarding ICWA."
In March 2023, the court ordered the Department to "review their case file and provide a list of all extended family members and relatives that the agency has had contact with over the course of the case and evidence that ICWA inquiry was made of all of those individuals."
In a last minute information report filed in April 2023, the Department reported that father again denied Indian ancestry and that Alberta was unaware of Indian ancestry in mother's and father's families. The Department twice tried to contact the paternal grandmother to ask about possible Indian ancestry, but she was unavailable.
At the July 2023 selection and implementation hearing, the court found David was not an Indian child and that ICWA did not apply to his proceedings.
Mother appeals.
DISCUSSION
When the Department takes a child into temporary custody, its duty of initial inquiry "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." (§ 224.2, subd. (b); In re Benjamin M., supra, 70 Cal.App.5th at p. 742.) Extended family members include adults who are the child's "grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2); § 224.1, subd. (c) [adopting federal definition].)
Throughout the Department's investigation in this case, mother and father denied knowledge of Indian ancestry in either of their families. Although the Department was in contact with several of David's extended family members, it only asked the parents and mother's godmother about the child's possible Indian ancestry. The record does not indicate the Department interviewed any of David's extended family members about this issue, aside from attempting to contact the child's paternal grandmother.
Mother argues the Department failed to comply with its duty to conduct an initial inquiry under ICWA by not interviewing David's extended family members about the child's possible Indian ancestry. She asks us to remand the matter to require the Department to make a meaningful effort to inquire of David's maternal grandmother, maternal aunt, paternal grandmother, and other known extended family members whether David is, or may be, an Indian child. The Department does not oppose remand "for additional initial ICWA inquiry of the persons mother identifies on appeal." We accept the Department's concession, conditionally affirm the order terminating mother's and father's parental rights, and remand the matter for the Department to comply with its inquiry duties under ICWA.
DISPOSITION
The juvenile court's order terminating mother's parental rights is conditionally affirmed. The matter is remanded to the juvenile court to direct the Department to comply with the inquiry provisions of section 224.2 and update the court on its investigation within 30 days of when the remittitur is issued. After ensuring the Department has complied with the inquiry- and, if necessary, the notice-provisions of ICWA and related California law, the juvenile court shall determine whether ICWA applies. If the court determines ICWA does not apply, the orders terminating parental rights shall remain in effect. If the court determines ICWA does apply, it shall vacate its orders terminating parental rights and proceed in conformity with ICWA and related state law.
WE CONCUR: EDMON, P. J. EGERTON, J.