In re J.F. CA2/2 ( 2022 )

Filed 12/28/22 In re J.F. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re J.F. et al., Persons Coming B315332
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. Nos.
21CCJP01991A-D,
LOS ANGELES COUNTY 21CCJP01994A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARCOS F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Jean M. Nelson, Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Deputy
County Counsel, for Plaintiff and Respondent.
In this consolidated appeal, Marcos F. (father) challenges
the juvenile court’s September 22, 2021 orders assuming
dependency jurisdiction over his children, 14-year-old J., 12-year-
old Marcos, eight-year-old Nathan, seven-year-old N., and two-
year-old M., and removing them from his custody. Father’s sole
contentions are that the juvenile court and the Los Angeles
County Department of Children and Family Services (the
Department) failed to comply with the statutory duty of inquiry
as to whether the children were Indian children within the
meaning of the Indian Child Welfare Act of 1978 (ICWA) (25
U.S.C. § 1901 et seq.) and applicable California law, and the
juvenile court failed to make any ICWA findings at the
September 22, 2021 adjudication hearing.
We affirm the juvenile court’s orders.
RELEVANT BACKGROUND
Detention and Welfare & Institutions Code section 300
petition
The Department filed Welfare and Institutions Code
section 3001 petitions on behalf of the children on April 29, 2021,
alleging that father had sexually abused J. and that the other
children were at risk of harm.
Father was present at the May 4, 2021 detention hearing
and filed an ICWA-020 form stating he may be a member or
eligible for membership in the Yaqui Tribe. Father provided the
name and telephone number of the paternal grandmother and
indicated she may have further information concerning tribal
1 All further statutory references are to the Welfare and
Institutions Code, unless stated otherwise.
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membership. Eugenia A., the mother of J., Marcos, Nathan, and
N., submitted an ICWA-020 form stating that neither she nor the
children were members of, or eligible for membership in any
federally recognized Indian tribe; and none of Eugenia A.’s
parents, grandparents, or lineal ancestors were members of a
federally recognized tribe. M.’s mother, Y.C., submitted an
ICWA-020 form indicating that she had no knowledge of any
Indian ancestry.
The juvenile court found father to be the presumed father
of all the subject children. The court acknowledged that father
was claiming Yaqui Native American Indian heritage and
ordered the Department to investigate the claim. The juvenile
court found a prima facie case for detaining J., Marcos, Nathan,
and N. from father and ordered them detained from father and
released to their mother, Eugenia A. The court also found a
prima facie case for detaining M. from father and ordered her
released to her mother, Y.C.
Jurisdiction, disposition, and attempted ICWA inquiry
In its July 2021 jurisdiction/disposition reports, the
Department recommended that J., Marcos, Nathan, N., and M. be
declared dependent children and remain released to their
respective mothers with family maintenance services. The
Department reported that its investigation of father’s claimed
Indian heritage was ongoing and that an update would be
provided in a last minute information for the court.
In a last minute information for the court documents filed
on July 7, 2021, the Department reported that the social worker
had contacted father by e-mail on June 23, 2021, and requested
information regarding his claim of Indian ancestry. The social
worker again attempted to contact father by telephone on July 1,
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2021, but father had not responded. The social worker also
contacted the paternal grandmother by telephone and left a voice
mail message requesting further information, but there had been
no response.
The Department filed another last minute information for
the court in both M.’s and her older half-siblings’ cases on
September 22, 2021, stating that ICWA notices had not been sent
because neither father nor the paternal grandmother had
responded to the Department’s requests for further information.
At the September 22, 2021 adjudication hearing, the
juvenile court sustained amended section 300 petitions on behalf
of M. and her older half-siblings, declared all the children
dependents of the court, and ordered them removed from father’s
custody and placed with their respective mothers. ICWA was not
mentioned during the adjudication hearing.
Father appeals from the juvenile court’s September 22,
2021 orders.
Subsequent proceedings2
On March 18, 2022, the Department obtained an order
authorizing the removal of M. from both Y.C. and father. On that
same day, the Department filed a section 387 petition alleging
that Y.C. had failed to comply with court orders by allowing
father to reside in the home and to have unlimited access to M.,
placing the child at risk of harm. On March 23, 2022, the
Department filed a section 342 petition alleging that father and
2 We grant the Department’s request that we take judicial
notice of, and receive as additional evidence, court documents
from subsequent proceedings in both M.’s and her older half-
siblings’ dependency cases. (Code Civ. Proc., § 909; In re Zeth S.
(2003) 31 Cal.4th 396, 405-406.)
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Y.C. had a history of engaging in violent altercations in M.’s
presence.
At the March 28, 2022 detention hearing on the section 387
petition, the juvenile court found that it had no reason to know
M. was an Indian child and ordered her detained in shelter care.
The court ordered father and Y.C. to keep their respective
attorneys, the Department, and the juvenile court advised of any
information relating to possible ICWA status.
On May 23, 2022, the juvenile court sustained the section
342 and section 387 petitions filed on M.’s behalf, declared M. a
dependent child, and removed her from the custody of both
parents.
On August 15, 2022, the juvenile court found that ICWA
did not apply to J., Marcos, Nathan, and N. because “neither the
court, the Department, nor any other party sought to have [the
children] placed in foster care or pursued any placement other
than with their mother.”
DISCUSSION
Father contends the September 22, 2021 orders must be
reversed because (1) the juvenile court and the Department failed
to discharge their statutory duty to conduct a more
comprehensive inquiry as to whether the children are Indian
children within the meaning of ICWA and applicable California
law, and (2) the juvenile court failed to make any ICWA findings
at the adjudication hearing. Where the facts are undisputed, we
review these claims de novo (Guardianship of D.W. (2013) 221
Cal.App.4th 242, 250); where they are disputed, we review the
juvenile court’s ICWA findings for substantial evidence (In re
Rebecca R. (2006) 143 Cal.App.4th 1426, 1430).
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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.” (Mississippi Choctaw
Indian Band v. Holyfield (1989) 490 U.S. 30, 32.) Given this
focus, ICWA only applies “‘when child welfare authorities seek
permanent foster care or termination of parental rights [leading
to adoption].’” (In re M.R. (2017) 7 Cal.App.5th 886, 904-905; see
In re A.T. (2021) 63 Cal.App.5th 267, 274; In re Alexis H. (2005)
132 Cal.App.4th 11, 14; see also 25 U.S.C. § 1912(a) [ICWA
applies to an “involuntary proceeding” where the state is “seeking
the foster care placement of, or termination of parental rights to,
an Indian child”].) ICWA does not apply where those authorities
seek to place the child with either of the child’s parents, whether
they be the custodial or noncustodial parent. (In re A.T., at
p. 274; In re M.R., at p. 904; In re J.B. (2009) 178 Cal.App.4th
751, 758 [“Placement with a parent is not foster care” triggering
ICWA].) ICWA does not apply in this case because at the time of
the September 22, 2021 adjudication hearing, the Department
did not seek to remove the children from their respective mother’s
custody but instead sought to place J., Marcos, Nathan, and N.
with Eugenia A. and M. with Y.C.3
The juvenile court’s failure to make any ICWA findings at
the September 22, 2021 adjudication hearing, even if error, was
harmless in any event, as the court subsequently made the
3 ICWA subsequently became applicable to M.’s case when
the Department filed section 342 and 387 petitions seeking to
remove M. from both father’s and Y.C.’s custody. The juvenile
court’s May 23, 2022 orders sustaining those petitions, ordering
M. removed from parental custody, and placing her in foster care
are not at issue in this appeal.
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requisite findings. The juvenile court subsequently found on
August 15, 2022, that ICWA did not apply to J., Marcos, Nathan,
and N., because no party sought to have those children removed
from their mother’s custody. As to M., at the March 28, 2022
hearing at which M. was subsequently detained from both her
parents, the juvenile court found that it had no reason to know
M. was an Indian child. The court also advised both parents to
keep their attorneys, the Department, and the court aware of any
new information relating to possible ICWA status. Father makes
no proffer on appeal that would contradict or undermine the
juvenile court’s findings. (In re Dezi C. (2022) 79 Cal.App.5th
769, 786, review granted Sept. 8, 2022, S275578.) The record
discloses no prejudicial error and no basis for remand.
DISPOSITION
The September 22, 2021 jurisdictional and dispositional
orders are affirmed.
__________________________
CHAVEZ, Acting P. J.
We concur:
____________________________ ___________________________
HOFFSTADT, J. BENKE, J.*
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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