In re Andrew G. CA2/2 ( 2021 )

Filed 11/18/21 In re Andrew G. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re ANDREW G. et al., Persons B312292
Coming Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No. 20CCJP06693A-B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARIBEL G.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Martha A. Matthews, Judge. Affirmed, but
conditionally remanded.
Annie Greenleaf, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
******
Maribel G. (mother) appeals from an order of the juvenile
court exerting dependency jurisdiction over her two sons, Andrew
G. and Marvin C. Her sole contention on appeal is that the
juvenile court erred in concluding that the Indian Child Welfare
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Act (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code § 224.1 et seq.)
(ICWA) did not apply. Mother is correct, and we conditionally
reverse and remand.
FACTS AND PROCEDURAL BACKGROUND2
I. Facts Warranting Petition, Jurisdiction and
Disposition
Mother has two children, ostensibly with two different men:
Erik A. is the biological father of Andrew G. (born July 2015), and
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 Because compliance with ICWA is the only issue raised in
this appeal, our discussion of the facts and procedural
background focuses on the facts relevant to compliance with
ICWA. (In re I.B. (2015) 239 Cal.App.4th 367, 370.)
2
Edgar C. is alleged to be the father of Marvin C. (born August
2020). Edgar C. has not taken a paternity test, and denies that
he is Marvin’s father. In late 2020, mother had custody of both
children.
In late December 2020, the Los Angeles Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to exert dependency jurisdiction over
Andrew and Marvin on the grounds that the children were at
substantial risk of serious physical harm because (1) mother had
engaged in a violent altercation with Edgar C. and his female
companion; (2) mother is a current substance abuser, and drove
with the children while under the influence of alcohol; (3) mother
has mental health issues; (4) both Erik A. and Edgar C. knew of
mother’s issues and failed to protect their respective child; and
(5) Erik A. was unwilling and unable to provide care and
supervision for his son. The Department urged that jurisdiction
was appropriate under subdivisions (a), (b) or (j) of section 300.
In late April 2020, the juvenile court exerted jurisdiction
over both boys after sustaining all of the allegations except the
ones alleging jurisdiction under subdivision (a) of section 300.
The court also found that ICWA did not apply. The court went on
to remove the boys from mother’s custody, and ordered the
Department to provide reunification services.
II. ICWA-Related Facts
A. As to mother
In early December 2020, the Department asked mother if
either child had any Native American heritage. She denied any
such heritage.
B. As to Erik A.
The Department spoke with Erik A. in mid-December, but
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did not ask if he had any Indian ancestry.
C. As to Edgar C.
The Department spoke with Edgar C. in early December
2020, and again in mid-January 2021. Initially, Edgar denied
being Marvin’s biological father, but stated he would take a
paternity test and would seek custody of the minor if the results
indicated he was the biological father. During a mid-January
2021 interview, however, Edgar C. refused to take a paternity
test or to provide any information whatsoever.
D. Juvenile Court Proceedings
The social worker who wrote the petition checked the box
that she had “no reason to believe [either] child is or may be an
Indian child.” The detention report stated, “The Indian Child
Welfare Act does not apply,” but provided no explanation for its
conclusion.
The juvenile court found ICWA did not apply.
III. Appeal
Mother filed a timely notice of appeal.
DISCUSSION
Mother argues the Department and the court did not
comply with its duty under ICWA and related California law to
inquire into the minors’ possible American Indian heritage.
“[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.” (In re A.M. (2020) 47 Cal.App.5th 303, 314.) With ICWA,
however, a reviewing court will not imply findings to support a
juvenile court’s ICWA findings where the agency has not
documented its efforts to investigate whether a child is subject to
ICWA. (In re N.G. (2018) 27 Cal.App.5th 474, 483-485.)
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ICWA was enacted to curtail “the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement.” (Miss. Band of
Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) Under
the ICWA and California statutes our Legislature enacted to
implement it (§§ 224-224.6), as recently amended, a juvenile
court—and, as its delegate, the Department—have duties all
aimed at assessing whether a child in a pending dependency case
is an “Indian child” entitled to the special protections of ICWA.
(§§ 224.2, 224.3; Stats. 2018, ch. 833 (Assem. Bill No. 3176); In re
A.M. (2020) 47 Cal.App.5th 303, 320-321 [applying ICWA law in
effect at time of order appealed from].) For these purposes, an
“‘Indian child’” is a child who (1) is “a member of an Indian tribe,”
or (2) “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), italics added; § 224.1, subd. (a) [adopting federal law
definition].) By its terms, this definition turns “‘on the child's
political affiliation with a federally recognized Indian Tribe,’” not
“necessarily” “the child’s race, ancestry, or ‘blood quantum.’” (In
re Austin J. (2020) 47 Cal.App.5th 870, 882 (Austin J.),
quoting 81 Fed.Reg. 38801-38802 (June 14, 2016).)
Under ICWA as amended, the Department and juvenile
court have “three distinct duties.” (In re D.S. (2020) 46
Cal.App.5th 1041, 1052 (D.S.) [noting amendment’s creation of
three duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-
884 [same].) The first duty, and the focus of our analysis here, is
the initial “duty” of the Department and the juvenile court “to
inquire whether [a] child is an Indian child.” (§ 224.2, subds. (a)
& (b).) The Department discharges this duty chiefly by “asking”
family members “whether the child is, or may be, an Indian
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child.” (Id., subd. (b).) For its part, the juvenile court is required,
“[a]t the first appearance” in a dependency case, to “ask each
participant” “present” “whether the participant knows or has
reason to know the child is an Indian child.” (Id., subd. (c).) The
second duty is the duty of the Department or the juvenile court to
“make further inquiry regarding the possible Indian status of the
child” (id., subd. (e)), and the third duty is the duty to notify the
relevant Indian tribe(s). (§ 224.3, subd. (a); 25 U.S.C. § 1912(a).)
“The juvenile court must determine whether proper notice was
given under ICWA and whether ICWA applies to the
proceedings.” (In re E.W. (2009) 170 Cal.App.4th 396, 403.) “The
juvenile court is not authorized to determine [that] ICWA does
not apply until (1) ‘proper and adequate’ ICWA notice has been
given, and (2) neither a tribe nor the [Bureau of Indian Affairs]
has provided a determinative response to the notice within 60
days of receiving the notice.” (In re N.G. (2018) 27 Cal.App.5th
474, 480.)
The juvenile court erred in finding that Andrew was not
subject to ICWA. Although the Department asked mother
whether she had Indian ancestry, it never asked Andrew’s father,
Erik A. As the Department concedes, this was error because the
Department did not discharge its duty to ask family members
about Andrew’s possible heritage.
The juvenile court also erred in finding that Marvin was
not subject to ICWA. Again, the Department asked mother
whether she had Indian ancestry. But the Department’s inquiry
into Indian ancestry on Marvin’s father’s side was deficient. The
Department did not ask Edgar C. about any Indian heritage
during its first interview with him, and did not ask him to fill out
the ICWA-020 heritage form. The failure to do is, by itself, error.
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(Cal. Rules of Court, rule 5.481(a)(2), (a)(3); see In re J.N. (2006)
138 Cal.App.4th 450, 461 [record did not support compliance with
ICWA where no Parental Notification of Indian Status form had
been completed].) Although Edgar C. refused to talk to the
Department at the second interview, and although the
Department may be excused from conducting further inquiry if
the persons with potential information refuse to talk with the
Department (e.g., In re K.M. (2009) 172 Cal.App.4th 115, 119),
here the Department’s report does not indicate whether it tried to
ask Edgar C. about Indian heritage during the second meeting.
Critically, the record does not indicate that the Department ever
asked mother about Edgar C.’s heritage or about any of Edgar
C.’s other family members who might have such knowledge. The
paucity of information in the record is insufficient to discharge
the Department’s initial duty to inquire, and thus leaves the
juvenile court without substantial evidence to support its ICWA
finding.
The Department resists this conclusion with one further
argument—namely, that Edgar C. denied being Marvin’s father
and has yet to be tested for paternity. Although ICWA applies
only to biological parents (In re C.A. (2018) 24 Cal.App.5h 511,
520), the status of Edgar C. as Marvin’s father is, at best,
uncertain; indeed, Edgar C. himself seemed to acknowledge his
own uncertainty about paternity when he initially told the
Department, “I’m not the father, but if a paternity test confirms
that I am, I will get involved.” Although a man who has not
established his biological paternity and has not acknowledged a
child as his own lacks standing to object to an ICWA violation (In
re Daniel M. (2003) 110 Cal.App.4th 703, 709), and although
ICWA notice must be given to tribes only if biological parentage
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has been established (In re E.G. (2009) 170 Cal.App.4th 1530,
1533), here it is mother who is making the objection and the issue
here is the initial duty to inquire (not the final duty to give
notice). The Department cites no authority for the proposition
that the Department’s duty of inquiry into ICWA regarding a
possible parent’s Indian heritage does not spring into existence
until the biological connection with that parent has been
conclusively established or admitted. Indeed, were such
conclusiveness required at this early stage, the Department
would be excused from initially inquiring into the possible Indian
heritage of men who are only suspected of biological fatherhood;
the net result would be less information with which to decide
whether ICWA notice is required, less reliable ICWA
determinations, and an increased danger that Indian children
will be separated from their families and tribes—a result inimical
to the stated goal of ICWA.
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DISPOSITION
The juvenile court’s jurisdictional and dispositional orders
are conditionally remanded, and the court is directed to properly
comply with the requirements of the ICWA. If, after proper
inquiry and notice, the court finds that either of the children have
Native American ancestry, the court shall proceed in conformity
with ICWA. Otherwise, the court’s orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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