In re L.T. CA2/5 ( 2022 )

Filed 6/24/22 In re L.T. CA2/5
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re L.T., et al., Persons Coming B315938
Under the Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 18LJJP00394A–C)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.T.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael C. Kelley, Judge. Conditionally
reversed and remanded with directions.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Jacklyn K. Louie, Principal
Deputy County Counsel, for Plaintiff and Respondent.
Ann-Marissa Cook, Children’s Law Center, for Minors.
Father appeals from an order terminating parental rights
to his three children under Welfare and Institutions Code section
366.26.1 He contends the juvenile court erred when it determined
the Los Angeles County Department of Children and Family
Services (DCFS) satisfied its inquiry obligations under the Indian
Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) and related
California law as to the children’s possible Indian heritage. No
interested party filed a respondent’s brief; instead, father, DCFS,
and the children filed a joint application and stipulation for
conditional reversal and remand to the juvenile court to permit
proper compliance with ICWA and related California law. We
accept the parties’ stipulation.
This case involves reversible error because the parties
agree, and we concur, there was noncompliance with the inquiry
requirements of ICWA and related California provisions. (In re
H.V. (2022) 75 Cal.App.5th 433, 438; In re Benjamin M. (2021)
70 Cal.App.5th 735, 744.) And, after reviewing the entire record,
we find that the statutory requirements set forth at Code of Civil
Procedure section 128, subdivision (a)(8) for a stipulated reversal
have been satisfied here. (In re Rashad H. (2000) 78 Cal.App.4th
376, 379–382.)
DISPOSITION
The juvenile court’s July 27, 2021, order terminating
parental rights over son is conditionally reversed and the matter
is remanded to the juvenile court with the following directions.
1 All further undesignated statutory references are to the
Welfare and Institutions Code.
2
1. DCFS shall make reasonable efforts to interview the
paternal grandmother and any available paternal family
member regarding whether the children are or may be
Indian children.
2. DCFS shall document its efforts to interview the
paternal grandmother and all available paternal family
members regarding whether the children are or may be
Indian children, and provide a report with said
documentation and the results of its interviews to the
juvenile court.
3. At a noticed hearing, with counsel for the parents
reappointed, the juvenile court shall make a finding
regarding ICWA’s applicability, determine whether DCFS
has interviewed all available extended paternal family
members, and proceed according to sections 224.2 and
224.3, including ordering DCFS to send new notices with
additional and/or corrected information to the appropriate
tribes in accordance with ICWA, if appropriate.
4. If new notices are sent and after the juvenile court
receives responses from the noticed tribes, it shall proceed
in accordance with ICWA if any tribe determines the
children are Indian children. If no tribe or agency
determines the children are Indian children after notice
has been provided pursuant to ICWA, the order
terminating parental rights shall be reinstated as the
order of the court.
3
Pursuant to the parties’ stipulation, the remittitur shall
issue forthwith.
RUBIN, P. J.
I CONCUR:
KIM, J.
4
In re L.T. et al.
B315938
BAKER, J., Concurring.
I agree conditional reversal and a remand to the juvenile
court is required because the court did not comply with federal
regulations that require the court to ask “each participant” in a
child custody proceeding—at the commencement of the
proceeding—whether the participant knows or has reason to
know the minor in question is an Indian child. (25
C.F.R. § 23.107(a).) The minors’ paternal grandmother was
present in court at the initial detention hearing for L.T. and M.T.,
but the court did not make the required inquiry. If, on remand,
the paternal grandmother has no information suggesting the
minors are Indian children, I believe the juvenile court would be
entitled to find the Indian Child Welfare Act does not apply
(though the court would also be free to order any additional
inquiry it deems appropriate). (In re H.V. (2022) 75 Cal.App.5th
433, 439-442 (dis. opn. of Baker, J.).)
BAKER, J.