In re Ka.C. CA2/3 ( 2022 )

Filed 2/10/22 In re Ka.C. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re Ka.C. et al., Persons B312403
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. 19CCJP08082A
19CCJP08082B
Plaintiff and Respondent, 19CCJP08082C)
v.
KRYSTAL B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Martha A. Matthews, Judge. Conditionally affirmed
with directions.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
——————————
Krystal B. (mother) appeals the findings and orders entered
at a six-month review hearing held under Welfare and
Institutions Code1 section 366.21. Because it is undisputed that
the Los Angeles Department of Children and Family Services
(DCFS) failed to comply with the inquiry and notice requirements
of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901et seq.), mother contends that the orders must be conditionally
reversed and remanded. We remand for compliance with ICWA
but conditionally affirm the findings and orders of the juvenile
court in all other respects.
BACKGROUND
Mother and father are the parents of three daughters:
Ka.C. (born 2009), Ki.C. (born 2010), and Kh.C. (born 2014).
Father is not a party to this appeal.
On December 13, 2019, the El Monte Police Department
received reports from two independent witnesses that mother
was yelling and cursing at the children and had pushed Kh.C. to
the ground in front of a bus stop. Mother tested positive for being
under the influence of an alcoholic beverage and displayed
objective symptoms of being under the influence of an alcoholic
beverage and marijuana. Mother was arrested for child
endangerment and the children were released to father.
The matter was referred to DCFS. On December 16, 2019,
the juvenile court granted an expedited removal order, and the
1 All
subsequent undesignated statutory references are to
the Welfare and Institutions Code.
2
children were detained from mother. The following day, mother
pleaded no contest to the criminal child endangerment charge.
The criminal court signed a protective order providing that
mother was not to have any contact with the children and could
not come within 100 yards of the children.
On December 18, 2019, DCFS filed a petition pursuant to
section 300, subdivisions (a), (b)(1), and (j), alleging that the
children needed the protection of the juvenile court. The juvenile
court held the initial petition hearing the following day. Mother
did not appear. The court ordered that the children remain
released to father and detained from mother. The court observed
that father had reported no American Indian ancestry and
inquired whether the children may have American Indian
ancestry on their mother’s side. Based on father’s representation
that the maternal grandmother is Cherokee, the juvenile court
instructed that DCFS “ is to interview the maternal grandmother
and any other knowledgeable relatives and after [DCFS] has
obtained all available information, [DCFS] is to fulfill its duty to
provide notice under the Indian Child Welfare Act.”
On May 28, 2020, a children’s social worker (CSW)
conducted an unannounced visit and saw mother at the family
apartment in violation of the protective order. DCFS obtained an
approved removal warrant for the detention of the children from
father on June 4, 2020. The children were ultimately placed with
paternal grandmother.
DCFS submitted a first amended petition on July 23, 2020,
which included an additional allegation that father created a
detrimental and endangering home environment by allowing
mother to reside in the same home as the children.
3
The jurisdiction and disposition hearing took place on
November 9 and 12, 2020. Mother did not appear, though DCFS
reported that it seemed that mother continued to live with father.
The juvenile court considered father’s testimony and the DCFS
reports, and heard argument from the children’s counsel, counsel
for DCFS, and counsel for father. The court sustained the counts
under section 300, subdivision (b) with some amendments. The
court ordered that the children be removed from the custody of
both parents and found that their placement with paternal
grandmother was suitable. The court also ordered family
reunification services for father and instructed that mother
receive services if she was located.
In February 2021, mother obtained a modified criminal
protective order that allowed her to have visits with the children
and filed a request to the juvenile court seeking reunification
services. The court granted mother’s request. On May 13, 2021,
mother filed a parental notification of Indian status form
indicating that her mother has Cherokee ancestry.
At the six-month review hearing on May 13, 2021, counsel
specially appeared for mother and asked the juvenile court for
permission to file a motion to vacate the court’s prior orders for
lack of due process notice, which the juvenile court denied.2 The
court found that continued jurisdiction existed under section 300
and that it would be detrimental to return the children to mother
2 Mother sought to make her motion under Ansley v.
Superior Court (1986) 185 Cal.App.3d 477. In that case, the court
held that a parent “claiming lack of due process notice of a
juvenile dependency petition can challenge the resulting
dependency judgment by filing a petition pursuant to section 388
in the same dependency proceedings.” (Id. at p. 481.)
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and father. The court ordered that reunification services be
continued for both parents.
The juvenile court also inquired into mother’s American
Indian ancestry and counsel for mother informed the court that
the maternal grandmother has Cherokee ancestry. The juvenile
court instructed that DCFS “is to interview any and all
knowledgeable maternal relatives, obtain all available
information and then fulfill its responsibility to provide notice as
required by the Indian Child Welfare Act.”
Though DCFS assessed the maternal grandmother for
placement, the record does not indicate that DCFS inquired into
the maternal grandmother’s Cherokee ancestry. DCFS’s
detention report, jurisdiction/disposition reports, progress report,
and status review report each inaccurately stated that “[o]n
12/19/2019, the Court found that the Indian Child Welfare Act
does not apply as to the mother.”
Mother filed a timely notice of appeal.3
After the parties filed their appellate briefs, this court
issued an order stating that it intended to take judicial notice of
DCFS’s status reports filed August 10 and December 2, 2021 and
the juvenile court’s minute orders from the review hearings dated
August 17 and December 14, 2021. We now take judicial notice of
these documents. These documents appear to indicate that
DCFS had not made any additional inquiry as to mother’s
3 The notice of appeal stated that mother appealed “[a]ny
and all appealable issues, including the court denying the Mother
the opportunity to appear specially and file an Ansley motion.”
Mother does not address the special appearance or Ansley issues
in her appellate briefs, and thus her appeal as to those issues is
deemed to be waived.
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Cherokee ancestry.4 The December 14 minute order terminated
reunification services for mother and father and set a
permanency planning hearing for April 12, 2022.
We asked that DCFS file a supplemental letter brief
addressing its position on appeal in light of this additional
information. In its supplemental brief, DCFS conceded that the
documents of which we have taken judicial notice indicated that
DCFS had not yet complied with the juvenile court’s orders with
respect to ICWA, but maintained that reversal was not
warranted. DCFS stated that a CSW had questioned the
maternal grandmother regarding her Cherokee ancestry, and she
informed DCFS that her father’s mother was Cherokee, but did
not identify a particular tribe, nor did she have any information
concerning an ancestor being a registered member of a tribe.
DCFS stated that it would therefore provide notice to the three
Cherokee tribes.
DISCUSSION
Mother argues, and DCFS does not dispute, that DCFS
failed to comply with ICWA’s notice and inquiry provisions.
Mother contends that we must therefore conditionally reverse the
orders issued at the six-month review hearing and remand the
matter for compliance with ICWA. DCFS argues that the orders
at the six-month review hearing should be affirmed and that no
remand is necessary because the juvenile court already ordered
4 The Court of Appeal may consider juvenile court orders
and DCFS reports issued or filed after an appeal is pending when
relevant to show whether an appeal is moot. (See In re B.D.
(2008) 159 Cal.App.4th 1218, 1240; In re Salvador M. (2005)
133 Cal.App.4th 1415, 1422.)
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that DCFS comply with ICWA. In the alternative, DCFS asks
that we affirm the orders and remand for compliance with ICWA.
“The United States Congress enacted ICWA to respond to a
crisis in which large numbers of Indian children were being
removed from their families for placement in non-Indian homes.
[Citation.] ICWA was designed to protect the best interests of
Indian children and promote the stability and security of Indian
tribes and families by establishing minimum federal standards
for the removal of Indian children from their families by state
courts and the placement of such children in foster or adoptive
homes. [Citation.] [¶] At the heart of ICWA are its jurisdictional
provisions over child custody proceedings involving Indian
children domiciled both on and off the reservation.” (In re
Christian P. (2012) 208 Cal.App.4th 437, 450–451, fn. omitted.)
As our Supreme Court has recognized, ICWA and
corresponding provisions of California law impose on the courts
and county welfare departments “an affirmative and continuing
duty to inquire whether a child for whom a petition under Section
300 . . . is to be, or has been, filed is or may be an Indian child in
all dependency proceedings and in any juvenile wardship
proceedings if the child is at risk of entering foster care or is in
foster care.” (In re Isaiah W. (2016) 1 Cal.5th 1, 9; § 224.3,
subd. (a).) An “ ‘Indian child’ ” for purposes of the ICWA is
defined in the same manner as under federal law as, “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); § 224.1, subd. (a).)
“If the court, social worker, or probation officer has reason
to believe that an Indian child is involved in a proceeding, but
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does not have sufficient information to determine that there is
reason to know that the child is an Indian child, the court, social
worker, or probation officer shall make further inquiry regarding
the possible Indian status of the child, and shall make that
inquiry as soon as practicable.” (§ 224.2, subd. (e).) “There is
reason to believe a child involved in a proceeding is an Indian
child whenever the court, social worker, or probation officer has
information suggesting that either the parent of the child or the
child is a member or may be eligible for membership in an Indian
tribe. Information suggesting membership or eligibility for
membership includes, but is not limited to, information that
indicates, but does not establish, the existence of one or more of
the grounds for reason to know” as set forth in section 224.2,
subdivision (d) (§ 224.2, subd. (e)(1)), including that “[a] person
having an interest in the child, including the child . . . or a
member of the child’s extended family informs the court that the
child is an Indian child.” (§ 224.2, subd. (d)(1).)
DCFS does not dispute that it had reason to believe that
the children may be Indian children based on mother’s and
father’s representations to the court, and that it failed to make
any inquiries regarding mother’s Cherokee ancestry until
recently. Nor does DCFS argue that mother waived her right to
raise ICWA compliance on appeal because she did not appeal the
earlier findings and orders of the juvenile court. (See In re
Isaiah W., supra, 1 Cal.5th at pp. 14–15.) The only dispute on
appeal is the appropriate redress for DCFS’s failure to inquire.
There is a split of authority as to whether failure to meet
the inquiry and notice requirements of ICWA constitutes
jurisdictional error that requires reversal. We agree with
decisions of the Court of Appeal holding that failure to comply
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with the notice and inquiry provisions of ICWA is not
jurisdictional error but subject to a harmless error analysis.
(In re Brooke C. (2005) 127 Cal.App.4th 377, 384–385; In re
Antoinette S. (2002) 104 Cal.App.4th 1401, 1409–1411.)
Accordingly, “the only order which would be subject to reversal
for failure to give notice would be an order terminating parental
rights.” (Brooke C., at p. 385.) Where no such order has issued,
all other court orders remain in effect. (Ibid.) “The lack of
statutory notice nonetheless requires a limited remand to the
juvenile court for [DCFS] to comply with the notice requirements
of the ICWA, with directions to the juvenile court depending on
the outcome of such notice.” (Ibid.) If the children are
determined not to be Indian children, then all orders will stand.
(See ibid.) If ICWA is found to apply to the children, then mother
may petition the juvenile court to invalidate any orders that were
contrary to ICWA. (See ibid.)
Here, “[m]other neither argued nor pointed to any facts
that support the conclusion that she would have obtained a more
favorable result in the absence of the error.” (In re Christian P.,
supra, 208 Cal.App.4th at p. 452.) Thus, as this court held in
Christian P., “rather than reversal, the proper remedy here is a
limited remand to allow DCFS to comply with ICWA.” (Ibid.)
Mother cites Nicole K. v. Superior Court (2007)
146 Cal.App.4th 779, 785 and In re S.E. (2013) 217 Cal.App.4th
610, 613, in which courts disagreed with the holding in In re
Brooke C. and ordered the conditional reversal of the juvenile
court’s orders pending full compliance with ICWA. However,
consistent with our prior ruling in In re Christian P., we are
persuaded that reversal of the existing orders of the juvenile
court is not necessary to preserve the remedy provided under
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ICWA. Moreover, a majority of our sister courts have taken the
approach endorsed in In re Brooke C. rather than that adopted in
Nicole K. (See, e.g., In re Kadence P. (2015) 241 Cal.App.4th
1376, 1388–1389; In re Hunter W. (2011) 200 Cal.App.4th 1454,
1467; In re Damian C. (2009) 178 Cal.App.4th 192, 199–200; In re
Veronica G. (2007) 157 Cal.App.4th 179, 187–188; In re
Jonathon S. (2005) 129 Cal.App.4th 334, 340–341.) We see no
reason to depart from that approach in this case.
We emphasize that upon remand the juvenile court must
ensure DCFS’s prompt compliance with ICWA. Fulfilling ICWA
requirements in a swift and diligent manner is particularly
important in light of the forthcoming permanency planning
hearing, at which it is possible that parental rights may be
terminated. No further delay is appropriate.
DISPOSITION
The juvenile court’s findings and orders at the six-month
review hearing are conditionally affirmed, and the matter is
remanded to the juvenile court for compliance with ICWA and
related California law.
NOT TO BE PUBLISHED.
LIPNER, J.*
We concur:
EDMON, P. J. EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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