In re O.T. CA2/5 ( 2023 )

Filed 2/17/23 In re O.T. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re O.T. et al., Persons Coming B316764
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. 18CCJP00880A,
18CCJP00880B,
Plaintiff and Respondent, 18CCJP00880C,
18CCJP00880D)
v.
L.H.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Steff Padilla, Judge Pro Tempore. Conditionally
reversed with directions.
Carol A. Koenig, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, and David
Michael Miller, Deputy County Counsel, for Plaintiff and
Respondent.
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Mother appeals from the November 8, 2021 findings and
orders denying her petition to change court orders under Welfare
and Institutions Code1 section 388, placing her four children
(minors) under the legal guardianship of their paternal
grandmother, and terminating dependency jurisdiction. Mother’s
sole contention on appeal is that the juvenile court and the Los
Angeles County Department of Children and Family Services
(Department) failed to comply with the inquiry and notice
requirements of the Indian Child Welfare Act of 1978 (ICWA;
25 U.S.C. § 1901 et seq.) and related California statutes (Welf. &
Inst. Code, § 224 et seq.).
We conditionally reverse and remand solely for the court to
ensure compliance with ICWA and related California statutes.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father have four children, two of whom were
born after the Department filed a petition under section 300
alleging the two oldest children were at risk of harm based on
mother’s mental illness and father’s failure to protect.2 At a
detention hearing in February 2018, mother and father filed
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
2 Father is not a party to this appeal.
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ICWA-20 forms denying any Indian ancestry. The court found no
reason to know the two oldest children were Indian children, and
advised the parents to report any new information. Subsequent
petitions made allegations of risk as to all four children based on
mother’s mental illness, physical abuse, and father’s failure to
protect. The court also found no reason to know that the two
younger children were Indian children.
Although the children were initially placed with father, all
four were ultimately placed with paternal grandmother. In 2020,
the court denied without a hearing maternal grandmother’s
petition to change its prior orders and place the children with her
instead of paternal grandmother.
During the dependency proceedings, Department
employees were in contact with maternal grandmother, maternal
aunt, and paternal grandmother. However, there is no evidence
in the record that the relatives were ever asked about possible
Indian ancestry.
At a hearing on November 8, 2021, the court denied
mother’s petition under section 388 as to the oldest child.
Proceeding under section 366.26, the court ordered legal
guardianship as the permanent plan for all four children,
appointing paternal grandmother as the legal guardian and
terminating dependency jurisdiction.
Mother filed a notice of appeal on November 9, 2021,
appealing the denial of mother’s section 388 petition and the
appointment of a legal guardian.
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DISCUSSION
“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers
of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Both ICWA and California
law define an “ ‘Indian child’ ” as a child who is either a member
of an Indian tribe or 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, subds. (a) & (b); see In re
Elizabeth M. (2018) 19 Cal.App.5th 768, 783.)
California statutory law incorporates the requirements of
ICWA, and imposes some additional requirements as well. (In re
Abbigail A. (2016) 1 Cal.5th 83, 91; In re Benjamin M. (2021)
70 Cal.App.5th 735, 741–742.) State and federal law require the
court to ask parties and participants at the outset of an
involuntary child custody proceeding whether they have reason to
know a minor is an Indian child, and to “instruct the parties to
inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.” (25 C.F.R.
§ 23.107(a); § 224.2, subd. (c); see Benjamin M., at p. 741.) Initial
inquiry also includes requiring each party to complete the
parental notification of Indian status (ICWA-020) form. (Cal.
Rules of Court, rule 5.481(a)(2)(C).)
State law imposes on the Department a first-step inquiry
duty to “interview, among others, extended family members and
others who had an interest in the child.” (In re H.V. (2022)
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75 Cal.App.5th 433, 438; see § 224.2, subd. (b).) Federal
regulations explain that the term “extended family member is
defined by the law or custom of the Indian child’s Tribe or, in the
absence of such law or custom, is a person who has reached
age 18 and who is the Indian child’s grandparent, aunt or uncle,
brother or sister, brother-in-law or sister-in-law, niece or nephew,
first or second cousin, or stepparent.” (25 C.F.R. § 23.2 (2017).)
When there is “reason to believe that an Indian child is involved
in a proceeding,” further inquiry is also required. (§ 224.2,
subd. (e); In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.) “We
review claims of inadequate inquiry into a child’s Indian ancestry
for substantial evidence.” (In re H.V., at p. 438.)
The Department concedes on appeal that the initial inquiry
requirements of ICWA and related state law were not met in this
case, and asks us to either conditionally affirm or reverse the
juvenile court’s order terminating dependency jurisdiction, with
instructions limiting remand of the matter to ordering the
juvenile court to ensure compliance with ICWA’s requirements.
We agree that the court erred in finding ICWA
inapplicable, as there is no evidence in the record that the
Department asked available extended family members about the
possibility that minor has Indian ancestry. (See, e.g., In re H.V.,
supra, 75 Cal.App.5th at p. 438 [prejudicial error when
Department fails to discharge its first step duty of inquiry]; In re
Benjamin M., supra, 70 Cal.App.5th at p. 741 [court must ask
each participant in child custody proceeding].)
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DISPOSITION
The juvenile court’s November 8, 2021 orders terminating
dependency jurisdiction under Welfare and Institutions Code
section 366.26 are conditionally reversed and remanded for
proceedings required by this opinion. The court shall also order
the Department to make reasonable efforts to interview available
extended relatives, including maternal grandmother, maternal
aunt, and paternal grandmother about the possibility that minors
have Indian ancestry and to report on the results of the
Department’s investigation. Nothing in this disposition
precludes the court from ordering additional inquiry of others
having an interest in the children. Based on the information
reported, if the court determines that no additional inquiry or
notice to tribes is necessary, the orders terminating dependency
jurisdiction are to be reinstated. If additional inquiry or notice is
warranted, the court shall make all necessary orders to ensure
compliance with ICWA and related California law.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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