Opinion
B314383
04-18-2022
In re RAYMOND G., a Person Coming Under the Juvenile Court Law. v. J.G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. DK17062A, Craig Barnes, Judge. Conditionally reversed with directions.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
J.G., mother of now 11-year-old Raymond G., appeals from the juvenile court's order terminating her parental rights to the child pursuant to Welfare and Institutions Code section 366.26 . She contends, with respect to alleged father D.R.'s possible Indian ancestry, that the juvenile court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with their duties under the federal Indian Child Welfare Act (ICWA) and related state statutes and court rules. We conditionally reverse and remand for the limited purpose of ensuring compliance with ICWA's requirements.
The child's siblings, J.S. and N.G., are not subjects of this appeal.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Because the sole issue mother raises on appeal concerns the juvenile court's and the Department's compliance with ICWA and related state statutes and court rules as they concern alleged father's Indian ancestry, we limit our recitation of facts to those relevant to that compliance issue except as is necessary for context.
A. Petitions
On April 11, 2016, mother pleaded no contest to a section 300 petition filed by the Imperial County Department of Social Services/Children and Family Services (Imperial County Department) that alleged, as relevant to the child, that on March 16, 2016, the child, then five years old, submitted to a urinalysis toxicology screen that was positive for cannabinoids; S.W., maternal grandmother and legal guardian, told a social worker that she had smoked marijuana for the previous 10 years and the child had eaten a cookie containing marijuana that she had stored in the house; the child told a social worker that mother and maternal grandmother smoked "'blunts'" (a cigar filled with marijuana), maternal grandmother smoked cigarettes, and mother and maternal grandmother smoked in the living room and in the bedroom in which he slept.
At the May 4, 2016, detention hearing, the Imperial County juvenile court found D.R. to be the child's alleged father.
On May 30, 2017, the case was transferred to Los Angeles County juvenile court after maternal grandmother moved to Los Angeles.
On September 27, 2018, mother filed a parentage questionnaire identifying alleged father as the person she believed to be the child's father. The Los Angeles County juvenile court found D.R. to be the child's alleged father.
On February 8, 2019, the juvenile court sustained a section 387 supplemental petition that alleged maternal grandmother failed to participate regularly in consecutive on-demand drug and alcohol tests, had seven positive toxicology screens for marijuana, and permitted her male companion to have unlimited access to the child in the child's home despite the court's no contact order.
On April 18, 2019, the Department filed a section 342 subsequent petition alleging, in part, that mother was unable to provide the child with appropriate parental care and supervision. On April 22, 2019, the juvenile court deemed the section 342 petition to be a section 300 petition and granted the Department's motion to dissolve maternal grandmother's legal guardianship over the child.
Pursuant to mother's no contest plea to the allegation that she was unable to provide the child with appropriate parental care and supervision, the juvenile court sustained the section 342 petition as amended on June 21, 2019.
At the October 8, 2019, disposition hearing, mother filed a waiver of reunification services. The juvenile court found by clear and convincing evidence that mother knowingly and intelligently waived her right to reunification services and set the matter for a section 366.26 hearing.
Alleged father requested DNA tests for himself and the child. The Department argued that alleged father should remain alleged because his request was untimely as he had known about the child since 2011 and had made no attempt to determine his parentage and testing was not in the child's best interest. The child's counsel agreed. The juvenile court ruled that "at this late date, there's no justification or basis for the court to exercise discretion to grant the request."
On July 12, 2021, mother filed a section 388 petition requesting that the child be returned to her care because, among other things, she had been having unmonitored visits with the child, had been participating in and making substantial progress in her mental health counseling, was taking her medications, and had completed parenting classes.
At the August 12, 2021, joint sections 388 and 366.26 hearing, the juvenile court denied mother's section 388 petition and terminated the parental rights of mother, alleged father, and anyone else claiming to be the child's parent.
B. ICWA Facts
On March 17, 2016, mother and maternal grandmother told a social worker they did not have any Indian ancestry. The Imperial County Department reported that "[i]nquiry from . . . father . . . is pending as he is incarcerated at Larry D. Smith Correctional Facility in Banning, California."
Among the relatives the Department considered for placement was Ellen R., the child's paternal great-grandmother.
At the March 22, 2016, detention hearing, mother and maternal grandmother filed Parental Notification of Indian Status forms stating they had no Indian ancestry as far as they knew. Mother informed the Imperial County juvenile court that she was not aware if alleged father had any Indian ancestry. The court found that the child might come within ICWA's provisions.
On April 25, 2016, a social worker contacted paternal grandmother, L.B., and inquired if alleged father had Indian ancestry. Paternal grandmother denied Indian ancestry.
The Imperial County Department's Disposition Report refers to L.B. both as the child's "maternal grandmother" and "paternal grandmother." The maternal grandmother reference appears to be a mistake as the report states that the social worker asked L.B. about her son, alleged father. Also, the record is clear that S.W. is the child's maternal grandmother.
In connection with the May 30, 2017, case transfer to the Los Angeles County juvenile court, the Imperial County juvenile court found that ICWA did not apply.
On September 27, 2018, mother again filed a Parental Notification of Indian Status form stating she had no Indian ancestry as far as she knew. The Los Angeles County juvenile court found it had no reason to know the child might be an Indian child.
The court's finding is reflected in the reporter's transcript, but not the minute order.
In a Last Minute Information for the Court filed in connection with the August 12, 2021, section 366.26 hearing, the Department informed the juvenile court that there was an impediment to adoption-the social worker was unable to find a minute order reflecting the court's September 27, 2018, ICWA finding. Once the court made an ICWA finding as to both parents, the case would be adoption ready. At the section 366.26 hearing, the court found that it did not have a reason to know the child was an Indian child under ICWA.
III. DISCUSSION
Mother contends the juvenile court and the Department failed to comply with their initial ICWA inquiry duties because they did not inquire of alleged father or his relatives whether the child had Indian ancestry. We agree.
A. Initial Inquiry Duty Under ICWA
A juvenile court and the Department have a duty in every dependency proceeding to determine whether ICWA applies. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); In re Isaiah W. (2016) 1 Cal.5th 1, 10-11; In re H.V. (2022) 75 Cal.App.5th 433, 437 (H.V.).) Effective in 2019, California amended its statutory scheme regarding ICWA to conform to changes to the federal regulations concerning ICWA compliance. (H.V., supra, at p. 437.) The resulting clarification created three distinct ICWA duties. (Ibid.) This case concerns the initial inquiry duty. "'At [this] first step, "[s]ection 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department, such as the [Department], the duty to inquire '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.'" [Citation.]' (In re Charles W. (2021) 66 Cal.App.5th 483, 489 . . . [Charles W.].)" (Ibid.)
We review a parent's claim of inadequate inquiry into a child's Indian ancestry for substantial evidence. (H.V., supra, at p. 438.)
B. Analysis
The record reflects that the only parental relative the Department interviewed about the child's possible Indian ancestry was paternal grandmother. Its first-step inquiry duty under ICWA and state law was broader, requiring it also to interview, among others, extended family members and others who had an interest in the child. (§ 224.2, subd. (b); Charles W., supra, 66 Cal.App.5th at p. 489; In re D.S. (2020) 46 Cal.App.5th 1041, 1048-1049.) The Department's failure to discharge its first-step inquiry duty was prejudicial. (H.V., supra, 75 Cal.App.5th at p. 438.)
Citing In re E.G. (2009) 170 Cal.App.4th 1530, 1533 (E.G.), the Department argues that ICWA inquiry into alleged father's and his relatives' potential Indian ancestry was not triggered because alleged father never established a biological connection with the child and he did not acknowledge or establish his paternity under the Family Code. E.G. is distinguishable.
E.G. concerned the failure of the Department of Health and Human Services (DHHS) to give notice to identified Indian tribes. (E.G., supra, 170 Cal.App.4th at p. 1532.) There, the alleged father appeared in the juvenile court, claimed he had Indian ancestry, and identified specific Indian tribes. (Ibid.) The court ordered DHHS to give notice to the Indian tribes the alleged father had identified. (Ibid.) DHHS failed to give notice. (Ibid.)
On appeal, the court of appeal held, "[U]ntil biological paternity is established for an alleged father who claims Indian heritage, neither the court nor the social worker knows or has reason to know that an Indian child is involved and notice requirements are not activated." (E.G., supra, 170 Cal.App.4th at p. 1533.) In contrast, our case does not concern a "reason to know" that triggered the obligation to notify tribes, but the juvenile court's and Department's failure to comply with their initial inquiry duty.
IV. DISPOSITION
The order terminating mother's parental rights is conditionally reversed and the matter is remanded with directions to the juvenile court to order the Department to comply with ICWA as follows:
1. The Department shall conduct an inquiry investigation into the child's Indian ancestry, including making diligent efforts to interview the child's extended family members as defined by section 224.1, subdivision (c) and 25 U.S.C. section 1903(2) including at least alleged father and paternal great-grandmother for the purpose of obtaining information required for ICWA notice compliance.
2. If from that initial inquiry the Department has a reason to believe the child is an Indian child, then, as soon as practicable, it shall make further inquiry regarding the child's possible Indian status.
3. If from that further inquiry the Department has a reason to know the child is an Indian child, then it shall comply with the formal notice requirements in section 224.3.
4. The Department shall document its investigation, including its interviews with family members and attempts to conduct such interviews, its contact with tribes, if any, and any information obtained from the tribes, and provide that documentation to the juvenile court.
5. The juvenile court shall conduct a noticed hearing to review the adequacy of the Department's investigation. If the court determines the Department's investigation was adequate and there is no reason to know the child is an Indian child as that term is defined under ICWA, then the order terminating mother's parental rights shall be reinstated.
6. If the court determines the Department's investigation was adequate and there is a reason to know the child is an Indian child as that term is defined under ICWA, then the Department shall provide adequate ICWA notice to the tribe or tribes, mother, alleged father, and the regional Bureau of Indian Affairs and shall proceed thereafter in compliance with ICWA and related California statutes and court rules.
We concur: RUBIN, P. J., MOOR, J.