Opinion
E081474
09-05-2023
In re L.M. et al., Persons Coming Under the Juvenile Court Law. v. N.B., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and Larisa R-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INJ2200151. Natalie M. Lough, Judge. Conditionally reversed and remanded with directions.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, and Larisa R-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
N.B. (Mother) is the mother of L.M., G.L., and Le.L. Mother appeals from the jurisdictional/dispositional findings over the children. (Welf. &Inst. Code, § 395, subd. (a)(1).) Mother filed an opening brief contending that the Riverside County Department of Public Social Services (the Department) and the juvenile court failed to adequately comply with the inquiry requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.; Cal. Rules of Court, rule 5.480 et seq.) On August 16, 2023, the parties filed a joint application and stipulation for a conditional reversal of judgment and remand. After our own careful review of the entire record, we conclude that the Department and the juvenile court did fail to adequately comply with the inquiry requirements of ICWA, and we reverse with directions.
Father of L.M. is J.M. (Father J.M.) Father of G.L. and Le.L. is E.L. (Father E.L.) Neither father is a party to this appeal.
All future statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
The child Le.L. was detained on May 22, 2022, and the children L.M. and G.L. were detained on May 23, 2022, after then one-year-old Le.L. had ingested methamphetamine while in the care of Mother and Father E.L. Prior to the children's detention, Mother had taken the children to the home of the maternal grandmother, who resided in Imperial County. The social worker spoke to the maternal grandmother who agreed to bring the children to the Department.
A dependency petition on behalf of the children was filed on May 24, 2022, pursuant to section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), and (j) (abuse of sibling). Mother and both fathers denied Native American ancestry orally and through signed ICWA-020 Parental Notification of Indian Status (ICWA-020) forms. The Department reported that ICWA did not apply.
The detention hearing was held on May 25, 2022. Mother, Father E.L., maternal grandmother, and maternal great-grandmother were present in court. The juvenile court formally detained the children from parental custody and found ICWA did not apply to the children and that the Department had conducted a sufficient ICWA inquiry. The court did not personally inquire of Mother, Father E.L., and the relatives present whether they had Native American ancestry. The court ordered the Department to evaluate the maternal great-grandparents, who lived in Los Angeles, for placement of the children. Father J.M.'s counsel requested J.M.'s parents also be accessed for placement of L.B.
The children were placed together with their maternal cousin I.L. Father E.L.'s older children were also placed in the home. Mother reported that she was close to the maternal grandmother, her sister, and one brother. Father E.L. reported that the paternal grandmother was deceased, and his siblings resided in Utah. Father J.M. reported that he had a good relationship with his parents and that he had an older sister who lived in East Los Angeles and a brother who was in New York at the time. Father J.M. provided the social worker with his parents' address for correspondence as Father J.M. lived a transient life.
On June 8, 2022, Mother and Father E.L. again reported that they had no Native American ancestry. On June 13, 2022, Father J.M. reported that he had no Native American ancestry. The Department indicated that ICWA did not apply. There is no indication the Department inquired of the parents' relatives as to their Native American ancestry.
On June 20, 2022, at the original jurisdiction hearing, Mother was present in court. Over the children's counsel's and the Department's objections, the juvenile court returned the children to the custody of Mother and Father E.L. under family maintenance services and set the matter for a contested hearing on the petition.
The contested jurisdictional hearing was held on August 1, 2022, at which Mother was present. The court found true the allegations in the petition as alleged and continued the matter for a contested dispositional hearing.
The contested dispositional hearing was held on September 19, 2022, at which Mother was present. The juvenile court declared the children dependents of the court, maintained them in Mother's custody, and removed them from their fathers. The court ordered family maintenance services for Mother, reunification services for Father E.L., and denied services to Father J.M. under section 361.2, as previously noncustodial father of L.M. not requesting custody or services. The court also ordered Father E.L. to move out of the home and to have supervised visits, and for Mother to comply with these orders or the children would be removed. Mother indicated she understood the court's order.
On January 13, 2023, the Department filed a section 387 petition, alleging the previous disposition was ineffective in protecting the children. Mother continued to abuse alcohol and allowed Father E.L. to reside in the home. Father E.L. relapsed to methamphetamine and alcohol use and was arrested outside of Mother's home on December 14, 2022. The children were placed back with maternal cousin I.L. Mother and both fathers again reported that they did not have Native American ancestry. The Department reported that an ICWA inquiry of the parents gave them no reason to believe the children were Indian children.
The detention hearing on the section 387 petition was held on January 17, 2023, at which Mother, maternal cousin I.L., and Father J.M. were present. The juvenile court formally detained the children from Mother, recalled the removal warrants issued for the children, and terminated family maintenance services for Mother. The court noted it had previously made a finding that ICWA did not apply. The court found there was no reason to believe the children were Indian children and that ICWA did not apply.
In March 2023, Mother and both fathers again reported to the social worker that they did not have Native American ancestry.
A combined section 387 and six-month review hearing on the original petition was held on May 2, 2023. Mother, Father E.L., and the maternal cousin were present in court. The juvenile court found true the allegations in the section 387 petition, removed the children from Mother's custody, ordered reunification services for Mother, and denied Father E.L. reunification services. As to the original petition, the court terminated Father E.L.'s reunification services. The court's minute order indicates the court found ICWA does not apply and that the Department had conducted a sufficient ICWA inquiry. Mother timely appealed.
STIPULATION
A stipulated reversal under Code of Civil Procedure section 128, subdivision (a)(8), is permissible in a dependency case when the parties agree that reversible error occurred, and the stipulated reversal will expedite the final resolution of the case on the merits. (In re Rashad H. (2000) 78 Cal.App.4th 376, 380-382.) In the stipulation, the parties agree that the juvenile court erred under section 224.2, subdivision (c), when it failed to inquire of Mother, Father E.L., maternal grandmother, and maternal great-grandmother when they were present at the detention hearing held May 25, 2022, that substantial evidence did not support the juvenile court's findings ICWA did not apply, and that a conditional reversal of the judgment is appropriate with directions to the juvenile court to make a proper ICWA inquiry.
The juvenile court and the department have an "affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child." (§ 224.2, subd. (a).) "The duty to inquire consists of two phases-the duty of initial inquiry and the duty of further inquiry." (In re Ricky R. (2022) 82 Cal.App.5th 671, 678.) The duty of initial inquiry applies in every dependency proceeding. (In re Austin J. (2020) 47 Cal.App.5th 870, 883-884.) Federal regulations require state courts to ask each participant "at the commencement" of a child custody proceeding "whether the participant knows or has reason to know that the child is an Indian child." (25 C.F.R. § 23.107(a).) State law requires the court to pursue an inquiry "[a]t the first appearance in court of each party" by asking "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).) In addition, when the Department takes a child into temporary custody, the agency must ask "the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child," and the reporting party whether the child is or may be an Indian child. (§ 224.2, subd. (b).) Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) ICWA also imposes a duty to provide notice of the proceedings to the pertinent Indian tribes. (25 U.S.C. § 1912(a); § 224.3, subd. (a).) Notice under ICWA must contain sufficient information to determine the child's direct ancestors. (§ 224.3, subd. (a)(5); In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
Here, the parties agree that the juvenile court failed to inquire of the parents, maternal grandmother, and maternal great grandmother at the May 25, 2022, hearing, and did not inquire of maternal cousin I.L. at the January 17, 2023, detention hearing. The record also shows that the juvenile court failed to inquire of Father J.M. when he appeared in court and that the Department failed to inquire of the known and available maternal and paternal relatives. A conditional reversal is therefore appropriate given the Department's and juvenile court's failure to inquire of the maternal and paternal relatives concerning their Native American ancestry. (See, e.g., In re Benjamin M. (2021) 70 Cal.App.5th 735, 744; In re A.B. (2008) 164 Cal.App.4th 832, 839.) Although only Mother appealed, the dispositional order must be conditionally reversed as to Mother, Father E.L., and Father J.M. (In re Mary G. (2007) 151 Cal.App.4th 184, 208.)
DISPOSITION
The dispositional order is conditionally reversed as to all three parents. On remand, the juvenile court shall inquire of the parents, the maternal grandmother, the maternal great grandmother, and the maternal cousin (§ 224.2, subd. (c)) and order the Department to comply with the duty of initial inquiry (§ 224.2, subd. (b)) of the known maternal and paternal relatives and, if applicable, the duty of further inquiry (§ 224.2, subd. (e)) and the duty to provide notice to the pertinent tribes (25 U.S.C. § 1912(a); § 224.3). If the court determines that ICWA does not apply-either (1) because the Department has conducted a sufficient inquiry of the maternal and paternal relatives, and there is no reason to believe the children are Indian children, or (2) because the Department's inquiry reveals reason to know they are Indian children, notice was sent to the pertinent tribes, and the tribes' responses show that they are not Indian children or there is no response-then the juvenile court is directed to reinstate all previous findings and the orders. Pursuant to the parties' stipulation, the clerk of this court is directed to issue the remittitur immediately. (Cal. Rules of Court, rule 8.272(c)(1).)
We concur: McKINSTER J., MILLER J.