In re K.A. CA2/7 ( 2021 )

Filed 12/13/21 In re K.A. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re K.A. et al., Persons Coming B313446
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. Nos. 18CCJP04391A-B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DORA A. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Marguerite Downing, Judge. Conditionally affirmed
with directions.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant Dora A.
Lori Siegel, under appointment by the Court of Appeal, for
Defendant and Appellant Derraille C.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Senior Deputy
County Counsel, for Plaintiff and Respondent.
____________________________________
INTRODUCTION
Dora A., mother of seven-year-old K.A. and four-year-old
D.C., and Derraille C., father of D.C., appeal from the juvenile
court’s orders terminating their parental rights under Welfare
and Institutions Code section 366.26.1 Dora and Derraille
contend the juvenile court and the Los Angeles County
Department of Children and Family Services failed to comply
with the inquiry requirements of the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.) and related California law. We
agree and therefore conditionally affirm the juvenile court’s
orders terminating Dora’s and Derraille’s parental rights, with
directions to ensure the juvenile court and the Department
comply with the inquiry and notice provisions of ICWA and
related California law.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Proceedings
In July 2018 the Department removed K.A. and D.C. from
the home of Dora and Derraille and filed a section 300 petition
alleging the children came within the jurisdiction of the juvenile
court because of, among other things, Dora and Derraille’s
history of violent altercations with one another. In September
2018 the court sustained the petition, declared the children
dependents of the court, and removed them from Dora and
Derraille.
After holding six- and 12-month review hearings, the
juvenile court held an 18-month review hearing in September
2020. At that hearing the court terminated reunification services
for Dora and Derraille and set a selection and implementation
hearing under section 366.26. The court held the section 366.26
hearing on June 18, 2021. Having previously ordered adoption as
the permanent plan, the court found the children adoptable,
terminated Dora’s and Derraille’s parental rights, and
transferred custody of the children to the Department for
adoptive planning and placement. Dora and Derraille timely
appealed.2
B. Proceedings Relating to ICWA
For the detention hearing in July 2018, Dora filed a
Parental Notification of Indian Status form (ICWA-020) on which
2 Derraille does not purport to have Indian ancestry, but
adopts Dora’s contentions on appeal. “Non-Indian parents have
standing to raise issues of ICWA compliance on appeal.”
(In re T.G. (2020) 58 Cal.App.5th 275, 291.)
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she checked the box beside “I am or may be a member of, or
eligible for membership in, a federally recognized Indian tribe.”
Where the form asked for the name of the tribe or band, Dora
wrote, “Not sure.” At the detention hearing she told the juvenile
court she had Indian ancestry through her deceased maternal
grandmother, Maybelline Johnson, who was “actually Native
American.” Dora said that her grandmother had been born in
Texas, but that any record of her birth was lost in a house fire.
The court ordered the Department to “follow up” on whether
ICWA applied to the children through Dora.
In August 2018 the Department followed up with Dora
about her Indian ancestry, and she again said she believed she
had Indian ancestry “on her mother’s side of the family,” but did
not know what tribe. The Department sent notices to the
Secretary of the Interior and the Bureau of Indian Affairs (BIA).
The notices included Dora’s mother’s name and address, but no
name or other information for Dora’s maternal grandmother, the
individual through whom Dora claimed Indian ancestry, or any of
Dora’s other biological relatives.
In a last minute information filed for the jurisdiction
hearing in September 2018, the Department reported it had
received a response from the BIA stating that “tribal affiliation
cannot be determined at this time due to insufficient information
or an identified tribe.” At the jurisdiction hearing the juvenile
court found it had “no reason to know that the Indian Child
Welfare Act applies or that these are Indian children.”
In a report filed for the section 366.26 hearing, the
Department stated that in early June 2021 it had again
interviewed Dora “regarding her ICWA status” and that Dora
said, “I don’t know the tribe, I don’t know anything. I grew up in
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the [dependency] system, so I don’t know.” When in that
interview the social worker asked Dora if there were any
relatives who might know something more, Dora answered (as
recorded in the Department’s report): “No, no one else would
know. All I know is that my grandfather[’s] (biological) name is
Edwardo Romero. I know my mother is 26% Native, Indigenous
American, Mexico. You know how there are different regions?
I’m Indigenous America and Northern American.” 3
In its report, the Department also stated it had sent
“updated ICWA notices” to the Secretary of the Interior and the
BIA. Copies of the notices were attached to the report. The
notice for D.C., dated June 4, 2021, contained (and omitted) the
same information concerning Dora’s relatives as the
Department’s earlier notice. The notice for K.A., dated June 11,
2021, contained even less: It did not provide any information for
Dora’s mother. At the section 366.26 hearing, the juvenile court
stated, regarding both K.A. and D.C., the court “does not have a
reason to know that this is an Indian Child, as defined under
ICWA, and does not order notice to any tribe or the BIA.”
DISCUSSION
A. Applicable Law
“ICWA provides: ‘“In any involuntary proceeding in a State
court, where the court knows or has reason to know that an
Indian child is involved, the party seeking the foster care
placement of, or termination of parental rights to, an Indian child
3 The record suggests Dora may have been referring to
information in “screenshots from Ancestry.com” she provided to
the Department.
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shall notify the parent or Indian custodian and the Indian child’s
tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of intervention.”
[Citation.] This notice requirement, which is also codified in
California law [citation], enables a tribe to determine whether
the child is an Indian child and, if so, whether to intervene in or
exercise jurisdiction over the proceeding.’ [Citations.] ‘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 court
must follow before removing an Indian child from his or her
family.’” (In re Y.W. (2021) 70 Cal.App.5th 542, 551; see
25 U.S.C. §§ 1902, 1912(a); § 224.3, subd. (a); In re Isaiah W.
(2016) 1 Cal.5th 1, 5; In re T.G. (2020) 58 Cal.App.5th 275,
287-288; In re K.R. (2018) 20 Cal.App.5th 701, 706.)
“‘“ICWA itself does not impose a duty on courts or child
welfare agencies to inquire as to whether a child in a dependency
proceeding is an Indian child. [Citation.] Federal regulations
implementing ICWA, however, require that state courts ‘ask each
participant in an emergency or voluntary or involuntary child-
custody proceeding whether the participant knows or has reason
to know that the child is an Indian child.’ [Citation.] The court
must also ‘instruct the parties to inform the court if they
subsequently receive information that provides reason to know
the child is an Indian child.’”’ [Citations.] In addition, ICWA
allows states to provide ‘“‘a higher standard of protection to the
rights of the parent or Indian custodian of an Indian child than
the rights provided under’ ICWA,”’ and the California Legislature
has imposed on the court and child protective agencies ‘“‘an
affirmative and continuing duty to inquire whether a child,’ who
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is the subject of a juvenile dependency petition, ‘is or may be an
Indian child.’”’” (In re Y.W., supra, 70 Cal.App.5th at p. 551; see
25 C.F.R. § 23.107(a); § 224.2, subd. (a); In re J.S. (2021)
62 Cal.App.5th 678, 685-686; In re D.S. (2020) 46 Cal.App.5th
1041, 1048.)
“Section 224.2, subdivision (b), requires the child protective
agency to ask ‘“‘the child, parents, legal guardian, Indian
custodian, extended family members, others who have an interest
in the child, and the party reporting child abuse or neglect,
whether the child is, or may be, an Indian child and where the
child, the parents, or Indian custodian is domiciled.’”’ [Citations.]
If the court or child protective agency ‘has reason to believe that
an Indian child is involved in a proceeding, [4] but does not have
sufficient information to determine that there is reason to know
that the child is an Indian child,’ the court and the Department
‘shall make further inquiry regarding the possible Indian status
of the child, and shall make that inquiry as soon as practicable.’
[Citations.] If the further inquiry ‘results in a reason to know the
child is an Indian child, then the formal notice requirements of
section 224.3 apply.’ [Citations.] The continuing duty to inquire
whether a child is or may be an Indian child ‘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 Y.W., supra, 70 Cal.App.5th at pp. 551-552; see 25 U.S.C.
§ 1912(a); §§ 224.2, subd. (e), 224.3; In re Charles W. (2021)
4 “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.” (§ 224.2, subd. (e)(1).)
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66 Cal.App.5th 483, 489; In re J.S., supra, 62 Cal.App.5th at
p. 686; In re T.G., supra, 58 Cal.App.5th at p. 290; In re D.F.
(2020) 55 Cal.App.5th 558, 566; In re D.S., supra, 46 Cal.App.5th
at p. 1052; Cal. Rules of Court, rule 5.481(a)(1), (4).)
“‘“The juvenile court must determine whether proper notice
was given under ICWA and whether ICWA applies to the
proceedings.”’ [Citation.] ‘If the court makes a finding that
proper and adequate further inquiry and due diligence as
required in [section 224.2] have been conducted and there is no
reason to know whether the child is an Indian child, the court
may make a finding that [ICWA] does not apply to the
proceedings, subject to reversal based on sufficiency of the
evidence.’” (In re Y.W., supra, 70 Cal.App.5th at p. 552; see
§ 224.2, subd. (i)(2); In re A.M. (2020) 47 Cal.App.5th 303, 314;
In re D.S., supra, 46 Cal.App.5th at p. 1050; Cal. Rules of Court,
rule 5.481(b)(3)(A).)
B. The Juvenile Court and the Department Did Not
Comply with ICWA’s Inquiry Requirements
Dora contends the Department did not conduct an adequate
initial ICWA inquiry because it did not ask extended family
members, including Dora’s mother, whether the children may be
Indian children. She also contends her assertion of Indian
ancestry through her maternal grandmother triggered the duty of
further inquiry, which the Department failed to comply with by
not, at a minimum, interviewing Dora’s mother and including in
the notices sent to the Secretary of the Interior and the BIA all
known information concerning Dora’s maternal relatives,
particularly concerning her maternal grandmother. As a result,
Dora contends, the juvenile court erred in finding at the section
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366.26 hearing that ICWA did not apply. Dora is right about all
this.
The Department does not dispute that its duty of initial
inquiry required it to attempt to speak with Dora’s mother (see
25 U.S.C. § 1903(2) [“‘extended family member’” includes the
child’s “grandparent”]; § 224.1, subd. (c)), that it never did so, or
that its notices to the Secretary and the BIA were defective as
described. The Department does argue its duty of further inquiry
was “never triggered” because Dora “never provided any tribal
affiliation,” but it cites no authority suggesting a parent’s
inability to provide such information relieves the Department of
the duty of further inquiry where it has reason to believe an
Indian child is or may be involved. Dora’s assertion of Indian
ancestry through her maternal grandmother satisfied the “reason
to believe” standard. (See In re T.G., supra, 58 Cal.App.5th at
pp. 295-296 [“it is difficult to understand how, as a matter of
plain meaning, a parent’s statement that she has been told she
has Indian ancestry through a particular tribe or a specific
relative . . . does not . . . provide ‘a reason to believe’ the child may
be eligible” for tribal membership, italics added].)
The Department also argues its inquiry was adequate
because it “was not obligated ‘“to cast about” for investigative
leads’” after Dora “stated no relative had any information
regarding her heritage.” But whatever Dora may have purported
to know about what others would know, she had previously
asserted, unequivocally, she believed she had Indian ancestry
through her mother’s side, and the Department had her mother’s
name and contact information. The Department also had the
name of the specific relative, her maternal grandmother, through
whom Dora believed she had Indian ancestry. Under those
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circumstances, speaking with Dora’s mother and putting her
grandmother’s name on the notices it sent the Secretary and the
BIA would hardly have been casting about for investigative leads.
Like the parties, we construe the juvenile court’s finding at
the section 366.26 hearing it had no reason to know K.A. and
D.C. were Indian children as a finding ICWA did not apply. (See
In re D.S., supra, 46 Cal.App.5th at p. 1050.) And “[w]here, as
here, the juvenile court finds ICWA does not apply to a child,
‘[t]he finding implies that . . . social workers and the court did not
know or have a reason to know the children were Indian children
and that social workers had fulfilled their duty of inquiry.’”
(In re J.S., supra, 62 Cal.App.5th at p. 688.) Because the
Department did not fulfill its duty of inquiry, substantial
evidence did not support the court’s finding ICWA did not apply.
Finally, the Department argues any error was harmless
because on appeal Dora has not represented that any of her
relatives would provide “information indicating the children were
Indian children.” We recently rejected this overly broad view of
harmless error where the Department fails to comply with its
ICWA duty of inquiry. (See In re Y.W., supra, 70 Cal.App.5th at
p. 558.) As we explained, “the point of the statutory requirement
that the social worker ask all relevant individuals whether a
child is or may be an Indian child” is “to obtain information the
parent may not have. It is unreasonable to require a parent to
make an affirmative representation of Indian ancestry where the
Department’s failure to conduct an adequate inquiry deprived the
parent of the very knowledge needed to make such a claim.” (Id.
at p. 556.) For this reason, a parent “does not need to assert he
or she has Indian ancestry to show a child protective agency’s
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failure to make an appropriate inquiry under ICWA and related
law is prejudicial.” (Ibid.)
DISPOSITION
The juvenile court’s orders terminating the parental rights
of Dora and Derraille are conditionally affirmed. The juvenile
court is to ensure the Department complies fully with the inquiry
and notice provisions of ICWA and related California law. The
juvenile court is also to determine whether the requirements
have been satisfied and whether K.A. and D.C. are Indian
children. If the court finds they are, it is to conduct new hearings
in compliance with ICWA and related California law.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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