In re Terry S. CA2/4 ( 2021 )

Filed 9/16/21 In re Terry S. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re TERRY S. III, a Person Coming B309871
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP05137)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALISHA W. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles
County, D. Brett Bianco, Judge. Conditionally reversed and remanded.
Carolyn S. Hurley, under appointment by the Court of Appeal, for
Defendant and Appellant Alisha W.
Patricia K. Saucier, under appointment by the Court of Appeal, for
Defendant and Appellant Terry S., Jr.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant
County Counsel, and David Michael Miller, Deputy County Counsel, for
Plaintiff and Respondent.
____________________
Appellants Alisha W. (mother) and Terry S., Jr. (father) appeal
from an order of the juvenile court terminating their parental rights
over their child, Terry S. III. The sole issue in this appeal is whether
the juvenile court and the Los Angeles County Department of Children
and Family Services (DCFS) complied with the duties of inquiry and
notice under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et
seq.) (ICWA) and related California law. Though we disagree with
parents’ first contention that the juvenile court failed to make a finding
whether the ICWA applied in this case, we agree with their second
contention that DCFS failed to further inquire into the child’s status as
an Indian child. We conditionally reverse the order terminating
parental rights and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND1
Mother and father are the parents of Terry S. III (born Feb. 2019).
From the time this case was initiated to the termination of parental
rights, the child was detained in the home of maternal aunt and uncle.
1 Because this appeal raises only the issue of compliance with the ICWA,
we provide a brief synopsis of the factual and procedural history in this case.
2
In August 2019, DCFS filed a petition under Welfare and
Institutions Code section 300,2 and alleged the child was at substantial
risk of harm due to parents’ history of engaging in violent altercations
in the presence of the child, their history of substance abuse, and
mother’s mental and emotional problems. In an Indian Child Inquiry
Attachment to the petition (ICWA-010), DCFS reported that father had
denied any knowledge of Indian ancestry, while mother “believes there
is Indian ancestry on her father’s side of the family.” In a detention
report, DCFS alleged that the ICWA “does or may apply.”
At the August 2019 detention hearing, mother and father
submitted Parental Notification of Indian Status (ICWA-020) forms.
Father stated he had no Indian ancestry. In her form, mother stated
she may have Indian ancestry through “Tribes unknown.” Mother also
informed the court that her paternal grandmother (then deceased) had
told her that she had Indian heritage through an unknown tribe. Based
on mother’s statements, the court ordered the “the Department [to] look
into that and do the necessary notices. Department to interview mother
and any other persons that she identifies that might have information.”
The court then detained the child and ordered monitored visitation for
both parents.
In a jurisdiction/disposition report filed with the court on
September 12, 2019, DCFS reported that it had interviewed maternal
aunt, mother, and maternal grandfather regarding the child’s Indian
2 Undesignated statutory references are to the Welfare and Institutions
Code.
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heritage. Maternal aunt reported having no knowledge of or affiliation
with any Indian tribe. Mother reported that while she was not
personally a member of an Indian tribe, her great-grandmother had
claimed membership or affiliation with an unknown tribe. Maternal
grandfather confirmed in his own interview that his maternal
grandmother “was Cherokee Indian.” Maternal grandfather provided
the name and state of birth for his maternal grandmother, as well as
the name of his mother, her date of birth and death, and the city and
state in which she was born and passed away. He also provided the
name of his father, his date of birth, and current location even though
maternal grandfather had no Indian ancestry through his paternal side.
Maternal grandfather could not provide additional family members who
might possess information concerning the family’s Indian heritage.
DCFS reported that it “will continue to investigate the said claim about
American Indian Ancestry. The information will be forwarded to [the]
Court separately once it is available.”
At the jurisdiction and disposition hearing on September 25, 2019,
the court admitted into evidence all reports submitted by DCFS, took
judicial notice of the dependency case file, and considered all of the
evidence in making its findings and orders. The court sustained the
petition as alleged, declared the child a dependent of the court, removed
him from parents, and granted both parents reunification services.
When discussing parents’ reunification services, counsel for DCFS
stated that she had “provided case plans to the court.” The court signed
and dated both case plans. In each case plan, the box “No” was checked
under the section whether the “I.C.W.A. Applies.” A minute order from
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the jurisdiction and disposition hearing states in part: “Family
reunification, maintenance, or enhancement, or reunification services
and visitation rights are granted or denied as set forth in the court
ordered case plan(s) which are incorporated herein by this reference.”
All subsequent reports submitted by DCFS reference the court’s
September 25, 2019 finding that the ICWA did not apply. The reports
do not furnish additional information on DCFS’s additional efforts at
investigating the child’s Indian heritage or determining whether the
ICWA applied in this case. There is no dispute that no ICWA notice of
any sort was ever sent.
At a continued review hearing on September 1, 2020, the court
terminated reunification services after finding parents had failed to
make substantial progress in their case plan. The court set a section
366.26 hearing for January 6, 2021.
At the section 366.26 hearing in January 2021, the court found
that it would be detrimental to return the child to the parents’ custody,
and that the parents had not maintained regular visitation or
established a parental bond with the child. After finding Terry S. III
adoptable, the court terminated the parental rights of mother and
father. Parents filed timely notices of appeal.
DISCUSSION
I. Governing Law
The “ICWA reflects a congressional determination to protect
Indian children and to promote the stability and security of Indian
tribes and families by establishing minimum federal standards a state
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court must follow before removing an Indian child from his or her
family. [Citations.]” (In re T.G. (2020) 58 Cal.App.5th 275, 287 (T.G.);
see also In re Abbigail A. (2016) 1 Cal.5th 83, 91 [the state Legislature
incorporated the ICWA’s requirements into statutory law in 2006].)
Both the ICWA and the Welfare and Institutions Code define an
“Indian child” 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); accord, § 224.1, subds. (a)-(b).)
The Welfare and Institutions Code imposes on “courts and county
welfare departments ‘. . . an affirmative and continuing duty to inquire
whether a child . . . is or may be an Indian child.’” (T.G., supra, 58
Cal.App.5th at p. 290, quoting § 224.3, subd. (a).) “This continuing duty
can be divided into three phases: the initial duty to inquire, the duty of
further inquiry, and the duty to provide formal ICWA notice.” (In re
D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.).)
The initial duty to inquire begins with the child’s initial contact
(i.e. when the referring party reports abuse or neglect necessitating an
investigation), and extends to the child’s placement into temporary
custody and the first appearance in court of each party. (§ 224.2, subds.
(a)-(c).) The initial duty to inquire includes asking the child, parents,
legal guardian, extended family members, or others who have an
interest in the child whether he or she is or may be an Indian child.
(Id., subds. (b)-(c).) The parties must complete a Parental Notification
of Indian Status form (ICWA-020). (Cal. Rules of Court, rule
5.481(a)(2)(C).)
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A duty of further inquiry arises when the court or county welfare
department “has reason to believe that an Indian child is involved” in
the proceedings. (§ 224.2, subd. (e); D.F., supra, 55 Cal.App.5th at
p. 566.) As of the time of the relevant proceedings in this case, the
Legislature had recently amended subdivision (e) of section 224.2 to
define what constitutes “reason to believe.” (See Assem. Bill No. 2944
(2019-2020 Reg. Sess.) § 9.)3 As amended and applicable here,
subdivision (e)(1) provides: “There is reason to believe a child involved
in a proceeding is an Indian child whenever” the court or social worker
“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.”
Whenever there is reason to believe the child is an Indian child,
the county welfare department must conduct “further inquiry,”
including but not limited to interviewing the parents and extended
family members to gather relevant information (§ 224.2, subd.
(e)(2)(A));4 contacting the Bureau of Indian Affairs and the State
3 Former section 224.2 did not define what constitutes a “reason to
believe.” (See D.F., supra, 55 Cal.App.5th at p. 566; former § 224.2, subd.
(e).) The recent amendment to section 224.2, subdivision (e), became effective
September 18, 2020, before the January 2021 order terminating parental
rights in this case. (See Assem. Bill No. 2944 (2019-2020 Reg. Sess.); Stats.
2020, ch. 104, § 15; T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.)
4 Relevant information to be obtained includes: all known names of the
Indian child, biological parents, grandparents, and great-grandparents,
including maiden, married, and former names or aliases, as well as their
current and former addresses, birth dates, places of birth and death, tribal
enrollment information of other direct lineal ancestors of the child, and any
other identifying information. (§ 224.3, subd. (a)(5).)
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Department of Social Services for assistance in identifying contact
information of the tribes in which the child may be a member or eligible
for membership (id., subd. (e)(2)(B)); and contacting the tribes and any
other person who reasonably may be expected to have relevant
information on the child’s membership or eligibility status (id., subd.
(e)(2)(C)). Contact with a tribe must include, at a minimum, “telephone,
facsimile, or electronic mail contact to each tribe’s designated agent for
receipt of notices” and include “information identified by the tribe as
necessary for the tribe to make a membership or eligibility
determination.” (Ibid.)
Finally, whenever the court or county welfare department has
reason to know an Indian child is involved (see § 224.2, subd. (d)), the
tribes must be sent notice with sufficient information to enable the tribe
to conduct a meaningful review to determine the child’s eligibility for
membership. (§ 224.3, subd. (a)(1); see § 224.2, subd. (d) [setting forth
six circumstances mirroring 25 C.F.R. § 23.107(c) in which “reason to
know” arises]; In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)
II. Standard of Review
The juvenile court must determine whether the ICWA applies to
the proceedings. (In re E.W. (2009) 170 Cal.App.4th 396, 403 (E.W.).)
“[W]e review the juvenile court’s ICWA findings under the substantial
evidence test, which requires us to determine if reasonable, credible
evidence of solid value supports the court’s order. [Citations.]” (In re
A.M. (2020) 47 Cal.App.5th 303, 314 (A.M.); accord, D.F., supra, 55
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Cal.App.5th at p. 565.) However, “where the facts are undisputed, we
independently determine whether [the] ICWA’s requirements have been
satisfied.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1051.)
III. Analysis
Mother and father contend that (1) the juvenile court failed to
make a finding whether the ICWA applies in this case; and (2) DCFS
failed to comply with its duty to make further inquiry into whether the
child is an Indian child.
As to the parents’ first contention, we disagree. “While the record
must reflect that the court considered the issue and decided whether
[the] ICWA applies, its finding may be either express or implied.” (In re
Asia L. (2003) 107 Cal.App.4th 498, 506; see In re Michael V. (2016) 3
Cal.App.5th 225, 233–234.) Here, the court ordered DCFS to
investigate mother’s claim of possible Indian heritage. The efforts
DCFS took to initially investigate the claim appear in the jurisdiction
and disposition report, which the court considered before it adjudicated
the petition. The court signed and dated case plans for each parent in
which it was specified that the ICWA does not apply. Those case plans
were incorporated by reference into the court’s order adjudicating the
petition. Thus, the record demonstrates that the court considered the
issue and at the very least made an implicit finding that the ICWA does
not apply. (See E.W., supra, 170 Cal.App.4th at p. 405 [“an implicit
ruling suffices, at least as long as the reviewing court can be confident
that the juvenile court considered the issue and there is no question but
that an explicit ruling would conform to the implicit one”].)
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However, we agree with mother and father’s second contention
that DCFS was duty-bound to make a further inquiry into the child’s
Indian heritage, and failed to so inquire. Mother’s belief she may have
Indian heritage was confirmed by maternal grandfather, who stated
that his maternal grandmother “was Cherokee Indian.” The
identification of an ancestor through which mother and the child could
be eligible for tribal membership clearly “suggest[s that] either the
parent of the child or the child is a member or may be eligible for
membership.” (§ 224.2, subd. (e)(1).) This information imposed on
DCFS a duty to make further inquiry regarding the possible Indian
status of the child. (See ibid.; accord, T.G., supra, 58 Cal.App.5th at
p. 292 [DCFS duty-bound to conduct further inquiry after mother stated
she believed she had Indian heritage on both sides of her family
through unknown ancestors]; A.M., supra, 47 Cal.App.5th at p. 322
[possible Indian ancestry with tribes and identification of mother’s
grandfather as having possible Indian ancestry sufficient to require
further inquiry].)
Relying on In re Austin J. (2020) 47 Cal.App.5th 870 (Austin J.),
DCFS contends that the information it received from mother and
maternal grandfather was insufficient to trigger the duty of further
inquiry, as it only suggested a “mere possibility of Indian ancestry.”
But Austin J. is distinguishable in several respects.
Our colleagues in Division One decided Austin J. before section
224.2 was amended to include a definition of “‘reason to believe.’”
(Austin J., supra, 47 Cal.App.5th at p. 883; see In re S.R. (2021) 64
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Cal.App.5th 303, 317 (S.R.) [the new provision to section 224.2
“forecloses the narrow interpretation of what constitutes reason to
believe advanced by the court in Austin J.”].) Austin J. is also factually
distinguishable. In that case, the mother suggested she “‘may have
Indian ancestry’ and had been ‘told that [her] mother had Cherokee
[ancestry],’ and [had been told] that she ‘may have had Cherokee
heritage.’” (47 Cal.App.5th at p. 888.) The court found these
statements “[a]t most . . . suggest a mere possibility of Indian ancestry,”
which the court reasoned was insufficient to establish a reason to
believe a child is an Indian child. (Id. at p. 888.) In this case, the
information DCFS received went beyond the suggestion of possible
Indian ancestry—maternal grandfather confirmed that the child’s
ancestor “was Cherokee Indian.” (Compare Austin J., supra, 47
Cal.App.5th at p. 890 [“by contrast, there is no indication that Mother
or any of her ancestors was a member of, or eligible for membership in,
an Indian tribe”]; with In re N.G. (2018) 27 Cal.App.5th 474, 482 (N.G.)
[information that relatives of child were members of tribe deemed
sufficient to trigger duty of further inquiry].)
In light of the foregoing, it is clear that DCFS was duty-bound to
make further inquiry into the child’s Indian heritage. That duty
included making contact with the Bureau of Indian Affairs, the State
Department of Social Services, the relevant tribes, and any other person
that may reasonably be expected to have information regarding the
child’s membership or eligibility status in a recognized tribe. (§ 224.2,
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subds. (e)(2)(A)-(C).) DCFS has not identified, and we cannot locate,
anything in the record demonstrating further efforts in this regard.
Anticipating our conclusion, DCFS contends that its failure to
further inquire into the child’s Indian heritage constitutes harmless
error. While it is true that noncompliance with the ICWA may be found
harmless in cases in which the efforts to comply with the duty of inquiry
are borne out by the appellate record, the record here is silent as to
DCFS’s efforts. It thus presents no basis for a finding of harmless error.
(See N.G., supra, 27 Cal.App.5th at p. 485 [court will find prejudicial
error when the record is silent on efforts to comply with the ICWA, as
the court “simply cannot know whether [the department] would have
discovered information sufficient” to determine whether the child is an
Indian child]; accord, In re A.C. (2021) 65 Cal.App.5th 1060, 1070 [“we
cannot know for certain whether the error did or did not prevent it from
discovering Indian ancestry”].)
IV. Remand
“The bottom line in this case is that further inquiry is required.”
(S.R., supra, 64 Cal.App.5th at p. 317.) Thus, as mandated by
subdivision (e) of section 224.2, on remand the juvenile court must
direct DCFS to make a meaningful inquiry regarding the child’s
possible Indian ancestry, including interviews with any person who may
reasonably be expected to have information regarding the child’s tribal
membership or eligibility for membership, and contact with relevant
Cherokee tribes that may have such information. If that information
establishes a reason to know an Indian child is involved, notice in
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accordance with section 224.3 must be provided to any tribe that has
been identified or, if the tribe could not be determined, to the Bureau of
Indian Affairs.5 DCFS shall thereafter notify the court of its actions
and file certified mail return receipts for any ICWA notices that were
sent, together with any responses received. The court must determine,
on the record, whether the ICWA inquiry and notice requirements have
been satisfied and whether Terry S. III is an Indian child. If the court
finds Terry S. III is Indian child, it is to conduct a new section 366.26
hearing, as well as any further proceeding in compliance with the ICWA
and related California law. If not, the court may reinstate its original
section 366.26 order.
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5 In light of this conclusion, we do not consider mother’s alternative
contention that DCFS failed to send notices to tribes under section 224.3,
subdivision (a).
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DISPOSITION
The section 366.26 order is conditionally reversed. The matter is
remanded to the juvenile court for full compliance with the inquiry
provisions of the ICWA and for further proceedings consistent with this
opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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