In re A.H. CA2/3 ( 2021 )

Filed 12/23/21 In re A.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.H. et al., Persons Coming B308153, B309301,
Under the Juvenile Court Law. B311216
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. DK24185A,
DK24185B, DK24185C,
Plaintiff and Respondent, DK24185D, DK24185E)
v.
C.P. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Stephen C. Marpet, Judge Pro Tempore. Conditionally
reversed with directions.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant C.P.
Carol A. Koenig, under appointment by the Court of
Appeal, for Defendant and Appellant A.H.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
——————————
In this consolidated second proceeding in the dependency of
their five children, C.P. (mother) and A.H. (father) contend the
juvenile court erred in finding that the Department of Children
and Family Services (DCFS) complied with the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related
California law (Welf. & Inst. Code,1 § 224 et seq.) and that ICWA
does not apply. In the first appeal, we conditionally reversed the
order terminating parental rights to the two youngest children
because DCFS violated its continuing duty of inquiry. (In re A.H.
(Sept. 17, 2020, B302022) [nonpub. opn.] as modified Oct. 16,
2020 (the prior appeal).) Meanwhile, the juvenile court
terminated parental rights to the older three children and the
parents filed the instant appeal (B308153). After our remand of
the prior appeal, the court found it had no reason to know the
children were Indian children and terminated parental rights to
all five of the children. The parents appealed again (B308153 &
B309301). We conclude that DCFS failed to demonstrate it
complied with its duty of further inquiry. Accordingly, we
conditionally reverse the orders terminating parental rights to all
five children and remand to the juvenile court for the limited
1All further unspecified statutory references are to the
Welfare and Institutions Code.
2
purpose of directing DCFS to comply with its federal and state
duties under ICWA.
BACKGROUND
I. Procedural background and the prior appeal
We rely on the prior appeal, In re A.H., supra, B302022 for
part of the factual background.2 As the result of the family’s
extensive child welfare history, DCFS filed a petition under
section 300, subdivision (b)(1) on behalf of Am.H. (age 10), Al.H.
(age 8), Ad.H. (age 7), Ai.H. (age 5), and An.H. (age 4), alleging
that mother and father’s substance abuse rendered them unable
to care for or to protect the children.
For the detention hearing in 2017, father filed a parental
notification of Indian status form in which he checked the box
indicating that he may have Indian ancestry and wrote,
“Cherokee–MGM.” He added paternal grandmother’s name and
telephone number, and paternal great-grandmother’s name. At
the hearing, paternal grandmother told the juvenile court that
she had Cherokee ancestry but was not a registered member of
the tribe. She also mentioned the Navajo Nation. She stated
that paternal great-great-grandmother (the children’s second
great grandmother) and their third great grandmother, who are
deceased, were “full Indian” and registered with the tribe, but did
not live on the reservation. She stated that paternal great
grandmother was born on July 17, but she did not know the year
2 On our own motion, we take judicial notice of our prior
unpublished opinion in In re A.H., supra, B302022. (Evid. Code,
§ 452, subd. (d); Cal. Rules of Court, rule 8.1115(b)(1) [we may
cite from unpublished cases under the doctrine of law of the
case].)
3
or place of birth. She thought someone in the family was born in
Louisiana, but then admitted she did not know. She was certain
that she and father could register for tribal membership.
Paternal grandmother explained there was no other family
member alive who had more information, but offered to call
paternal great aunt. The court stated, at “this time, the court is
going to find that it’s not an ICWA case as I have no reason to
know. [DCFS] can follow up with additional information.”
The juvenile court sustained the petition, declared the
children dependents and removed them from the parents’
custody. The parents did not comply with their case plans and so
the court terminated reunification services.
On November 1, 2019, the juvenile court terminated
parental rights to the two youngest children, implicitly ruling
that ICWA did not apply. The court continued the section 366.26
hearing for the older three children’s adoption assessments. The
parents filed the prior appeal from the order terminating
parental rights to the youngest two children.
On October 13, 2020, while the prior appeal was pending,
the juvenile court terminated parental rights to the older three
children and relieved counsel for the parents. The court ordered
DCFS to file an ICWA-related progress report in November 2020,
and an adoption assessment for the older three children in April
2021. The parents filed their notices initiating this appeal in
case Nos. B308153 and B309301.
II. ICWA inquiry activity while the prior appeal was pending
DCFS filed a last minute information for the court listing
the social worker’s three inquiries on behalf of the younger two
4
children.3 In late September 2020, the social worker contacted
the paternal grandmother who stated that the only other relative
who might have had information died in April 2020 and there
was “no one else to contact for any information.” DCFS also sent
certified mail to “the ICWA tribes” in late September 2020. On
October 5, 2020, the social worker left telephone messages with
the Navajo Nation, the Navajo Region, the Bureau of Indian
Affairs (BIA), the Cherokee Nation, and the Secretary of the
Interior. DCFS did not submit copies of the certified mail, and
there is nothing in the record indicating what information DCFS
imparted in its telephone messages.
On October 8, 2020, DCFS received a letter from the
Navajo Nation stating that the juvenile court “must: treat the
child as an Indian child, unless and until it is determined on the
record that the child does not meet the definition of ‘Indian
Child.’ ”
DCFS mailed notices about the older three children to the
Navajo Nation and Cherokee Nation on November 2, 2020, and
subsequently received signed return receipts. DCFS did not file
copies of those notices.
3 We granted DCFS’s October 7, 2021 motion to augment
the record with the October 13, 2020 last minute information for
the court. We also granted DCFS’s March 12, 2021 request to
take judicial notice of postjudgment evidence showing DCFS’s
inquiry efforts and the juvenile court’s January 21, 2021 minute
order. We may take judicial notice of postjudgment records in
exceptional circumstances, such as these, to assess whether
ICWA noncompliance resulted in prejudice to any affected tribe.
(In re Z.N. (2009) 181 Cal.App.4th 282, 298–299.)
5
On November 9, 2020, the social worker called the Navajo
Nation and spoke to staff member Jackie who stated that for the
two younger children, there were no records for the family and
ICWA did not apply. The record does not indicate what
information DCFS imparted to the Navajo Nation.
The social worker also contacted the Cherokee Nation on
November 9, 2020. “Tracy” stated that because of Covid-19, the
Cherokee Nation needed more time to follow up on all inquiries.
On November 18, 2020, DCFS received a letter from the
Bureau of Indian Affairs indicating that the notices DCFS mailed
to it and to the tribes were proper and that each tribe would be
responsible for determining who they enroll.
Our remittitur for the prior appeal issued on December 18,
2020. We held that DCFS failed to follow up with the paternal
grandmother or great aunt. We conditionally reversed the order
terminating parental rights to the two younger children and
directed the juvenile court to order DCFS to comply with ICWA’s
requirements for further inquiry (§ 224.2) and subsequent formal
notice if Indian heritage were indicated (§ 224.3).
III. Further ICWA inquiry after remand
On December 29 and 30, 2020, DCFS called the Navajo
Nation and the Cherokee Nation and left messages “with the
name of each child for an update.” The record does not indicate
that the messages also included the names of any of the
children’s ancestors who were registered tribal members.
On January 4, 2021, Traci Willie from the Cherokee
“tribes” repeated by email her earlier oral statement that the
tribe was short staffed because of Covid-19 and was still
responding to notices from June 2020. Later that day, Ms. Willie
emailed DCFS that, among other things, “Neither parent nor
6
child[ren] are registered as Cherokee Nation tribal members. [¶]
The children are not ‘Indian children’ in relation to the Cherokee
Nation as defined in the Federal ICWA. Cherokee Nation will
not be involved based on the information exactly as provided.”
(Italics added.) The social worker replied hours later by listing
the names and birthdates of the children and parents.
IV. The order triggering the instant appeal
On January 6, 2021, the juvenile court reappointed counsel
for the parents as to the youngest two children to comply with
our remittitur and announced that the “[n]ext hearing date on
this matter will be the review on April 13th and it can include all
of the requests made by the appellate court to follow up on
ICWA.” (Italics added.)
The interim review report for the hearing on January 21,
2021, identified as a “Special/Interim” hearing for DCFS to
address ICWA status, reflected that DCFS received signed
receipts on November 6, 2021 for the notices it sent to the Navajo
Nation and Cherokee Nation concerning the older three children.
The email received from Traci Willie was included, but the
notices themselves were not attached and so this report for the
special hearing into ICWA does not indicate what information
DCFS shared with the Navajo Nation and the Cherokee Nation.
The January 21, 2021 hearing—originally scheduled as a
nonappearance progress report hearing—was held as a
permanency planning hearing for all five children (§ 366.26).
According to the minute orders, DCFS, deputy county counsel,
and the children’s attorney were present. Neither parent nor
mother’s attorney was present, but father’s counsel appeared by
WebEx. The juvenile court found that proper notice was given.
Stating that the case was back for ICWA compliance, and that it
7
had read DCFS’s various reports “reflecting that notice to these
tribes were given,” the juvenile court found this was not an ICWA
case and that it had no reason to know the children were Indian
children. The court terminated parental rights and relieved the
parents’ attorneys. The parents each appealed from that order.4
DISCUSSION
I. ICWA
A. Standard of review
“ ‘The juvenile court must determine whether proper notice
was given under ICWA and whether ICWA applies to the
proceedings.’ ” (In re A.M. (2020) 47 Cal.App.5th 303, 314.) We
review the court’s ICWA factual findings for substantial evidence.
When the facts are undisputed, we independently assess whether
the requirements of ICWA have been satisfied. (Ibid.) We apply
the law as it existed at the time of the order appealed from, i.e.,
January 21, 2021. (Id. at p. 321.)
B. Analysis
The parents contend that the juvenile court erred in
finding ICWA did not apply to the children because DCFS has
still failed to satisfy its duty of further inquiry.
ICWA defines 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
4We consolidated the parents’ appeals from the October 13,
2020 order terminating parental rights to the eldest three
children (B308153 & B309301) with the parents’ appeals from the
January 21, 2021 order finding ICWA does not apply to the
children (B308153 & B311216).
8
and is the biological child of a member of an Indian tribe.”
(25 U.S.C.A. § 1903(4), italics added; § 224.1, subd. (a).) The
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.) The tribe determines whether a child
is an Indian child under ICWA. (In re Isaiah W. (2016) 1 Cal.5th
1, 15.)
The juvenile court has a continuing duty under ICWA to
inquire whether a dependent child is or may be an Indian child
(§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a)5), even as
late as the section 366.26 hearing (In re Isaiah W., supra,
1 Cal.5th at p. 11). This continuing, affirmative duty to inquire
about Indian status consists of three distinct parts (In re D.S.
(2020) 46 Cal.App.5th 1041, 1052 (D.S.)), of which only the first
two are at issue in this appeal.6
The first is the duty of initial inquiry when a child is
removed from the parents and placed in the custody of DCFS.
(§ 224.2, subds. (b) & (c).) We noted in the prior appeal that the
court satisfied that duty in 2017 and our prior opinion is law of
5 All further rule references are to the California Rules of
Court.
6 The third duty, which we do not reach in this appeal, is to
provide formal notice to the tribe and is triggered once the court
or social worker “knows or has reason to know” an Indian child is
involved in the dependency proceeding. When the court has
reason to know, ICWA requires that DCFS give formal notice to
the parent, legal guardian, or Indian custodian and to the child’s
tribe. (§ 224.3, subds. (a) & (f); rule 5.481(c)(1).)
9
the case as to all five children (A.H. v. Superior Court (2013)
219 Cal.App.4th 1379, 1386).
The second is the duty of “further inquiry regarding the
possible Indian status of the child,” which arises when “the court,
social worker, or probation officer has reason to believe that an
Indian child is involved in a proceeding.” (§ 224.2, subd. (e),
italics added.) We held in the prior appeal that the juvenile court
and DCFS had “reason to believe that Indian children were
involved,” and this holding is likewise law of the case.
We remanded the case however, because DCFS failed to
comply with ICWA’s section 224.2 duty of further inquiry.
Section 224.2, subdivision (e)(2) delineates steps the court and
DCFS must take in their “further inquiry” when, as here, the
juvenile court and DCFS have a reason to believe the children are
Indian children. The steps include, but are not limited to,
interviewing parents and extended family members to gather
information about, inter alia, ancestors’ names and aliases, dates
and places of birth and death (§§ 224.2, subd. (e)(2)(A), 224.3,
subd. (a)(5)); and contacting the Bureau of Indian Affairs and the
tribe or tribes and any other person that may reasonably be
expected to have information regarding the child’s membership,
citizenship status, or eligibility (§ 224.2, subd. (e)(2)(B)–(C); see
rule 5.481(a)(4)). The statute specifies that contact with a tribe
must include, at minimum, “telephone, facsimile, or electronic
mail contact to each tribe’s designated agent” and involves
“sharing information identified by the tribe as necessary for the
tribe to make a membership or eligibility determination.”
(§ 224.2, subd. (e)(2)(C).)
We are satisfied that DCFS fulfilled its obligation to gather
information from parents and extended family members as
10
discussed in our remand. (§ 224.2, subd. (e)(2)(A).) In the prior
opinion, we said that DCFS was “obligated at a minimum to
inquire about the information paternal grandmother obtained
from great aunt, or to contact great aunt directly, and to inquire
of any other extended members of father’s family.” The social
worker did follow up with paternal grandmother who stated that
the only other relative who might have had information died in
April 2020 and there was “no one else to contact for any
information.” Although DCFS did not clarify that the person who
died in April 2020 was the great aunt, it is clear no other family
member can provide additional information about the family’s
background.
Nonetheless, DCFS failed to show it satisfied its further-
inquiry duty with respect to contacting the tribes. As part of this
duty, DCFS is obligated at a minimum to contact the tribe or
tribes and anyone else who might know about eligibility.
(§ 224.2, subd. (e)(2)(C); In re T.G. (2020) 58 Cal.App.5th 275,
297.) Father and paternal grandmother indicated Cherokee
ancestry. There are three federally recognized Cherokee tribes
with three different agents for service of notice, namely the
Cherokee Nation, the Eastern Band of Cherokee Indians, and the
United Keetoowah Band of Cherokee Indians in Oklahoma. (See
85 Fed.Reg. 5462, 5462–5467 (Jan. 30, 2020)7.) DCFS contacted
only one, the Cherokee Nation.8 Yet, nothing in the record
7The BIA’s published list of designated tribal agents and
addresses for DCFS’s 2019 and 2020 mailings is contained in
85 Fed.Reg. 24004-2 (April 30, 2020).
8We note that the Cherokee Nation’s informal email
response was not definitive. The interpretation of a letter is a
11
establishes that the Cherokee Nation was the paternal family’s
tribe. If the tribe’s identity cannot be determined, DCFS was
required to contact the BIA and the State Department of Social
Services for assistance in identifying names and contact
information of the tribes (rule 5.481(a)(4)(B); § 224.2,
subd. (e)(2)(B)). But the BIA’s response to DCFS’s notice is not in
the record, and DCFS did not indicate that the BIA specified
which of the three was the paternal family’s tribe. DCFS’s
“ ‘inquiry obligation is “not an absolute duty to ascertain or refute
Native American ancestry.” ’ ” (In re Josiah T. (2021)
71 Cal.App.5th 388, 405.) Here, however, DCFS never contacted
two of the federally recognized Cherokee tribes.
Compounding the problem is DCFS’s failure to disclose to
the juvenile court what information it gave the tribes it did
contact. Before the juvenile court can make a finding that ICWA
does not apply, DCFS must make a “proper and adequate”
question of law in the absence of conflicting evidence. (In re Z.N.,
supra, 181 Cal.App.4th at p. 299.) The determination by an
Indian tribe that a child is not a member of, or eligible for
membership in, that tribe is conclusive (§ 224.2, subd. (h)), but
the Cherokee Nation’s January 4, 2021 email response was
provisional. Ms. Willie’s email stated the Cherokee nation would
not be involved in the case “based on the information exactly as
provided. . . . An official response letter has not been generated yet
but will be once the received notice has been fully researched and
processed.” (Italics added.) The email also stated that the
children were not registered members of the Cherokee Nation but
did not indicate whether they were eligible for membership. In
response to Ms. Willie’s email, DCFS provided the names and
birthdates of the children and parents, indicating that
communication with this tribe was still ongoing on January 4,
2021. By its terms, the email was preliminary.
12
further inquiry under section 224.2. (§ 224.2, subd. (i)(2); D.S.,
supra, 46 Cal.App.5th at p. 1050.) Toward that end, rule
5.481(a)(5) mandates that the agency “must on an ongoing basis
include in its filings a detailed description of all inquiries, and
further inquiries it has undertaken.” (Italics added.) To
ascertain whether the requirements of ICWA have been satisfied
and to make an informed ruling, the court must have sufficient
facts, as established by DCFS, about not simply the results of its
inquiry, but also the information it gave to the tribes to obtain
those results; and not just the responses to notices, but also the
content of the notices sent to any tribe. “ ‘Without these facts,
the juvenile court is unable to find, explicitly or implicitly,
whether the ICWA applies.’ ” (In re Josiah T., supra,
71 Cal.App.5th at p. 408.)
The record here does not contain copies of any mailings
DCFS sent, even the ones for which it filed return receipts, and
DCFS did not describe for the juvenile court the content of its
conversations, mailings, or notices given to the two tribes it did
contact. As best we can discern, the only information DCFS gave
the two tribes was the names and birthdates of the children and
parents. There is no evidence that DCFS mentioned the paternal
grandmother, or the paternal great-grandmother who was a
registered member of her tribe. (§§ 224.2, subd. (e)(2)(A), 224.3,
subd. (a)(5).) The BIA found that the notices were proper, but the
tribe decides what it needs to make its ICWA determination, and
we have no indication that the information DCFS imparted was
sufficient. (§ 224.2, subd. (e)(2)(C).) In any event, DCFS’s failure
to make a record of the substance of its inquiries deprived the
juvenile court of the information it needed to determine whether
13
DCFS’s further inquiry and due diligence was proper and
adequate, and whether ICWA applied.
Normally, the appellant has the burden to show prejudicial
ICWA error on appeal based on an adequate record. (In re
Austin J., supra, 47 Cal.App.5th at p. 885.) In a case such as this
however, where the record does not show that all relevant tribes
were contacted or that the contact DCFS made included all
known identifying information, the burden of making an
adequate record demonstrating DCFS’s efforts to comply with
ICWA’s further inquiry and requirements falls on the agency. (In
re N.G. (2018) 27 Cal.App.5th 474, 484.) Absent an appellate
record affirmatively showing such efforts, we will not infer that
substantial evidence supports the court’s finding that proper and
adequate ICWA notices were given or that ICWA did not apply;
rather we will conclude that there is prejudicial and reversible
ICWA error. (Ibid.) DCFS presumably included everything that
was in the record related to ICWA in its request for judicial
notice. That evidence is insufficient to support the juvenile
court’s ICWA findings.
To avoid any further delay, on remand, DCFS shall, with
all due haste, contact the Navajo Nation and all of the federally
recognized Cherokee tribes, unless it demonstrates that the
Cherokee Nation is the family’s tribe. Additionally on remand,
DCFS shall file with the juvenile court copies of all mailings,
faxes, and notices it sends, and document the full substance of
the information it conveys, along with the tribes’ responses and
return receipts so that the court can evaluate whether DCFS’s
further inquiry was proper and adequate (§ 224.2, subd. (i)(2);
D.S., supra, 46 Cal.App.5th at p. 1050) and determine whether
ICWA applies (In re A.M., supra, 47 Cal.App.5th at p. 314).
14
II. Notice and jurisdiction
The parents contend that there is no evidence to support
the trial court’s finding that mother and her trial attorney were
notified of the January 21, 2021 hearing. They add that although
on January 6, 2021 counsel were reappointed for the younger two
children because of our remand, there is no evidence that counsel
was reappointed for the parents in the older three children’s case
after the court relieved trial counsel at the October 13, 2020
hearing. Parents are entitled to notice of and representation by
counsel in a post-remand ICWA compliance hearing, irrespective
of whether our dispositional language specifically directed the
juvenile court to include the parents in the hearing. (In re
Justin S. (2007) 150 Cal.App.4th 1426, 1432, 1435–1436; accord
In re Z.W. (2011) 194 Cal.App.4th 54, 63–64.) On remand, the
juvenile court must appoint counsel for the parents with respect
to all five children and provide notice to the parents and their
attorneys of any new ICWA hearing.
The parents also contend that the juvenile court lacked
jurisdiction to rule on the ICWA issue in January 2021. The
juvenile court lacks jurisdiction to rule on, modify, or revoke an
order terminating parental rights once it has become final. (In re
K.M. (2015) 242 Cal.App.4th 450, 457.) Section 366.26,
subdivision (i)(1) mandates that “[a]ny order of the court
permanently terminating parental rights under this section shall
be conclusive and binding . . . . After making the order, the
juvenile court shall have no power to set aside, change, or modify
it, . . . but nothing in this section shall be construed to limit the
right to appeal the order.” Although DCFS may continue to
pursue its further inquiry and notice duties, where the juvenile
court lacks jurisdiction to rule on any dispute collateral to a final
15
termination order, it acts in excess of its jurisdiction in ruling
that ICWA does not apply while the termination order is being
reviewed on appeal. (In re K.M., at pp. 457, 459.)
Here, the juvenile court had jurisdiction to consider the
ICWA issue with respect to the younger two children because our
remittitur in the prior appeal issued in December 2020 restored
jurisdiction to the juvenile court to consider this exact issue in
January 2021. However, the court lacked jurisdiction in January
to rule on the collateral matter of ICWA application to the older
three children because the October 2020 termination order as to
them was already on appeal. Nonetheless, we are reversing the
ICWA finding as to all five children because of DCFS’s failure to
comply with its further-inquiry duties, and so the result is the
same here, irrespective of whether the juvenile court acted in
excess of jurisdiction in ruling on ICWA as to the older three
children.
DISPOSITION
The orders of October 13, 2020 and January 21, 2021
terminating parental rights are reversed and the matter is
remanded to the juvenile court with directions to appoint counsel
for the parents and to order DCFS to demonstrate within
20 court days of the appointment of counsel that it has contacted
all of the federally recognized Cherokee tribes and the Navajo
Nation and provided them with all of the information it has
obtained about the children’s potential Indian ancestry consistent
with the law and with this decision for further inquiry. The
juvenile court shall then determine whether this new inquiry is
proper and adequate. If as a result of a proper and adequate
further inquiry, new information is obtained that may assist the
tribe or tribes in determining whether the children are Indian
16
children, the juvenile court shall order DCFS to provide any
appropriate tribe or tribes with proper formal notice. If, after
proper inquiry and notice, the tribe or tribes do not respond or
respond that the children are not Indian children within the
meaning of ICWA, then the juvenile court shall reinstate the
orders terminating parental rights to all five children. In all
other respects, the orders terminating parental rights are
affirmed.
NOT TO BE PUBLISHED.
VIRAMONTES, J.*
We concur:
EDMON, P. J.
LAVIN, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
17