In re Avianna M. CA2/2 ( 2023 )

Filed 4/6/23 In re Avianna M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re AVIANNA M., a Person B313927
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct.
No. 20CCJP04179)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
KENNETH M.,
Defendant and Appellant.
APPEAL from findings and an order of the Superior Court
of Los Angeles County. Lisa A. Brackelmanns, Judge
Pro Tempore. Affirmed in part, vacated in part, and remanded in
part with directions.
Richard L. Knight, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
Defendant and appellant Kenneth M. (father) appeals from
the juvenile court’s jurisdictional findings regarding his daughter
Avianna M. (Avianna, born Aug. 2019) and the subsequent
dispositional order removing her from his custody. He argues
that both the jurisdictional findings and the removal order are
insufficiently supported by the record. He also contends that the
juvenile court and the Los Angeles County Department of
Children and Family Services (DCFS) failed to comply with the
requirements of the Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.).
We vacate the juvenile court’s finding that ICWA did not
apply as to Avianna’s mother’s side of the family and remand the
matter for further proceedings. The jurisdictional findings and
dispositional order are otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
I. Inciting Incident and Family History
In July 2020, DCFS received a referral alleging that
Monique S. (mother) had been drinking heavily, getting into
physical fights with family members, and generally engaging in
2
conduct that risked the safety of Avianna and her older half-
brother (brother).1 At the time, mother lived with both children
in Long Beach, California; father lived in Arizona.
Mother explained that the family had been living in
Arizona until a few months earlier, when conflict between her
and father escalated to the point that he held a knife to her
throat. She then sought a restraining order in Maricopa County,
which issued in April 2020. Shortly thereafter, mother
permanently left the state, taking the children to live with her
family in Long Beach.
In August 2020, father asked DCFS to return Avianna to
him. He admitted to using crystal methamphetamine in the past,
but claimed that he had been sober since 2005 (although he later
admitted to using drugs in 2007). Father volunteered that he
had recently been incarcerated for three months following a
conviction for forgery, and said that the terms of his probation
prevented him from leaving Arizona to retrieve Avianna.
II. Detention and Jurisdiction Petition
Shortly after father contacted DCFS, Avianna and her
brother were both detained with their maternal aunt (aunt). At
the detention hearing, the juvenile court granted father regular
monitored visitation with Avianna consistent with the Arizona
restraining order.
DCFS then filed a petition pursuant to Welfare and
Institutions Code section 300, subdivisions (a), (b)(1), and (j),2
1 Neither mother, brother, nor brother’s father is a party to
this appeal.
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
3
seeking the exercise of juvenile dependency jurisdiction over the
children.3 As relevant here, the first amended petition includes
two allegations against father: (1) father had “a history of
engaging in violent altercations” with mother, including an
incident in which “father held a knife on . . . mother’s throat”
(§ 300, subds. (a), (b)(1)); and (2) father “has a history of
substance abuse including methamphetamine and is a current
user of illicit drugs” (§ 300, subd. (b)(1)). Given Avianna’s young
age, DCFS argued that these conditions created substantial risks
to her health and safety.
III. Further Jurisdiction and Status Reports
A. Mother’s Further Statements and Information
Regarding the Restraining Order
In subsequent interviews with DCFS, mother recanted her
allegations that father had put a knife to her throat, saying that
he had merely gestured at her with a butter knife while cooking.
She now attributed their altercations to miscommunication and
father’s failure to consistently “tak[e] his medication,” which she
claimed he needed to treat bipolar disorder. Mother said that her
new goal was to reunite with her children so that they could all
move back to Arizona and live with father. When social workers
asked mother why she had obtained a restraining order against
father in April 2020, she gave nonsensical answers.
Records from the Arizona court indicated that mother and
father had a reported history of domestic violence, with many
incidents instigated by mother. The Arizona Department of
Child Safety (ADCS) closed its investigation into the family after
father was incarcerated and mother moved to California.
3 In September 2020, this petition was amended to include
allegations against brother’s father.
4
On October 1, 2020, the Arizona court declined jurisdiction.
It informed the juvenile court that mother and father had
recently married in Arizona, but that mother had decided to
reside in California until she regained custody of the children.
B. Maternal Family’s Statements
DCFS also interviewed Avianna’s maternal grandmother
(grandmother), who stated that shortly before mother moved to
California, mother had called grandmother from a friend’s phone
to tell her that father had just put a knife to her throat.
Grandmother also reported her suspicions that father sold drugs
while mother and the children lived with him. She said that,
while visiting the family’s home in Arizona, she noticed that
father had made several holes in the wall, in which he hid
baggies of “white powder.” She also witnessed people coming to
the home asking to buy “nickels.”
Aunt reported that mother told her that she had come to
California to get away from father because she was scared of him.
Mother also confirmed to aunt that father sold drugs while they
lived together.
C. Father’s Psychiatrist’s Statements
Father’s psychiatrist confirmed that he had been diagnosed
with a mood disorder, unspecified substance abuse, and bipolar
disorder. Father was prescribed medication for these issues, but
the psychiatrist described father’s compliance with mental health
treatment as “intermittent.” The psychiatrist affirmed that
father had completed a domestic violence intake and had “shared
about the domestic violence to some extent, but it was hard to get
details from him.” The psychiatrist also mentioned that father
had talked about his substance abuse and had completed a
5
substance abuse evaluation, but could not provide DCFS with
any specific details.
D. Father’s Statements
Father continued to deny any instances of domestic
violence between him and mother. He refused to participate in a
domestic violence program unless the department could produce
a “police report charging him with domestic violence.”
Father was amenable to drug and alcohol testing, but
consistently refused to participate in domestic violence,
psychological or psychiatric evaluations, or mental health
services. He also refused to release any additional personal
information to DCFS investigators.
IV. Jurisdictional and Dispositional Hearing
In March 2021, the juvenile court held a contested hearing
on the petition for jurisdiction. At the hearing, father called
several witnesses, including aunt and father himself.
Aunt repeated her earlier statements, testifying that
mother had told her that she left Arizona because she feared for
her safety and the safety of the children if they continued living
with father. Aunt also claimed that she had seen multiple
messages on mother’s cell phone stating that father was not
stable and that he could not be trusted around the children; aunt
made a report to child protective services and later turned
mother’s cell phone over to the police. Aunt admitted that
mother had a history of lying, but said that she believed mother’s
accounts of domestic violence.
When father took the stand, he insisted that he had been
sober since 2005. He also said that he had been in a 12-step
program for 10 years. He denied any domestic violence between
him and mother, and backed mother’s “butter knife” version of
6
the incident prompting the Arizona restraining order. He
claimed that mother had only filed the restraining order so that
she could get back into the family’s home after he was
incarcerated in April 2020. Since then, father asserted that the
restraining order had been vacated and that he and mother had
married.
In response, DCFS called two witnesses. Its first witness, a
social worker who had conducted many interviews since the
initial referral, corroborated aunt’s accounts of the messages on
mother’s phone. The social worker remembered one message
expressing fear that father “was going to ‘beat [mother’s] ass and
take Avianna.’”
DCFS’s second witness was Chelsea Pogue, an ADCS case
manager. She confirmed that in March 2020, ADCS became
aware of incidents of domestic violence between mother and
father. Mother told Arizona social workers that father had
stopped taking his prescribed medication, tried to hit her, and
threatened to kill her. Mother later brought her concerns to
father’s probation officer, who told her to get the restraining
order.
After hearing arguments on jurisdiction and disposition,
the juvenile court found that there had been a serious domestic
violence incident in Arizona, which had prompted mother to flee
the state with the children. It then sustained both the domestic
violence and substance abuse allegations against father. After
finding that reasonable efforts had been made to prevent
removal, the juvenile court removed Avianna from both parents.
V. Appeal
Father timely appealed.
7
DISCUSSION
I. Jurisdictional Findings
Father contends that the evidence was insufficient to
support the juvenile court’s jurisdictional findings under section
300, subdivisions (a) and (b)(1).
A. Applicable Law
Under section 300, subdivision (a), the juvenile court has
jurisdiction over and may adjudge to be a dependent of the court
a child who “has suffered, or there is a substantial risk that the
child will suffer, serious physical harm inflicted nonaccidentally
upon the child by the child’s parent or guardian.”
Jurisdiction also extends, under section 300, subdivision
(b)(1), to a “child [who] has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness, as a
result of . . . . [¶] . . . [t]he failure or inability of [his or her]
parent . . . to adequately supervise or protect the child . . . .”
“[S]ection 300 does not require that a child actually be
abused or neglected before the juvenile court can assume
jurisdiction. The subdivisions at issue here require only a
‘substantial risk’ that the child will be abused or neglected. . . .
[Citation.] ‘The court need not wait until a child is seriously
abused or injured to assume jurisdiction and take the steps
necessary to protect the child.’” (In re I.J. (2013) 56 Cal.4th 766,
773.)
B. Standard of Review
We review the juvenile court’s jurisdictional findings for
substantial evidence—“evidence that is reasonable, credible and
of solid value. [Citations.] We do not evaluate the credibility of
witnesses, attempt to resolve conflicts in the evidence or
determine the weight of the evidence. Instead, we draw all
8
reasonable inferences in support of the findings, view the record
favorably to the juvenile court’s order and affirm the order even if
there is other evidence supporting a contrary finding.” (In re R.V.
(2012) 208 Cal.App.4th 837, 843.)
“‘When a dependency petition alleges multiple grounds for
its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory
bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In such a case, the reviewing
court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.’”
(In re I.J., supra, 56 Cal.4th at p. 773.)
C. Analysis
Substantial evidence supports the juvenile court’s
jurisdictional findings based on sustained allegations of father’s
domestic abuse.4 The record contains sufficient evidence to
conclude that father threatened mother’s life, threatened to
separate her from Avianna, and caused her to feel such fear for
her and the children’s safety that she fled the state of Arizona.
Arizona court records corroborate that mother and father had
engaged in domestic violence on multiple occasions. Mother
reached out to social workers and father’s probation officer,
ultimately succeeding in securing a restraining order against
4 Because we affirm the juvenile court’s exercise of
jurisdiction on this basis, we need not reach the merits of father’s
challenge to the juvenile court’s exercise of jurisdiction based on
father’s history of and current substance abuse. (In re I.J., supra,56 Cal.4th at p. 773.) Father asks that we exercise our discretion
to review the substance abuse allegation. We decline to do so.
(In re D.P. (2023) 14 Cal.5th 266, 283.)
9
father. And she made contemporaneous statements, in text
messages and in a phone call to her mother, that father had
threatened her life.
On appeal, father continues to strenuously deny that he
and mother ever engaged in domestic violence. He contends that
all the evidence of his alleged violence against mother relies on
the credibility of mother’s statements, and that the evidence is
thus fatally undermined by mother’s patent incredibility as a
witness.
We do not deny that the juvenile court could have reached a
different result based on the evidence presented. Members of
mother’s family testified that she had a history of lying, and
mother completely changed her story about domestic violence
once she decided to reunite with father. However, mother also
demonstrated a capacity to tell the truth, as in her repeated
statements that father failed to consistently treat his mental
illness—statements which were later corroborated by father’s
psychiatrist. And her original account of father’s holding a knife
to her neck were substantiated by her contemporaneous
expressions of fear as well as her actions in promptly obtaining a
restraining order and leaving the state with her children.
Ultimately, after hearing days of testimony from in-court
witnesses, the court decided to credit mother’s initial statements
regarding the domestic violence between her and father. The
evidence, while contradictory, supports its decision. (In re R.V.,
supra, 208 Cal.App.4th at p. 843 [“We do not evaluate the
credibility of witnesses, attempt to resolve conflicts in the
evidence or determine the weight of the evidence”].)
Father also argues that there is no evidence that his prior
domestic violence posed a risk to Avianna at the time of the
10
hearing, especially since he and mother were living apart and in
different states. However, the record shows that mother and
father got married during the pendency of these proceedings.
Mother has expressly stated that she intends to live with father
and Avianna in the near future. And father has given no
indication of awareness or insight into the domestic violence that
occurred between him and mother the last time the family lived
together. Under these circumstances, the juvenile court could
reasonably conclude that father’s prior domestic violence history
was likely to recur and to pose a substantial risk to Avianna.
(See In re Giovanni F. (2010) 184 Cal.App.4th 594, 598–599 [“the
application of section 300, subdivision (a) is appropriate when,
through exposure to a parent’s domestic violence, a child suffers,
or is at substantial risk of suffering, serious physical harm
inflicted nonaccidentally by the parent”].)
II. Removal Order
Father also challenges the evidentiary basis for the
dispositional order removing Avianna from his custody.
A. Relevant Law
Before removing a child from parental custody, the juvenile
court is required to “make one of five specified findings by clear
and convincing evidence. (§ 361, subd. (c).) One ground for
removal is that there is a substantial risk of injury to the child’s
physical health, safety, protection or emotional well-being if he or
she were returned home, and there are no reasonable means to
protect the child. (§ 361, subd. (c)(1).) ‘“Clear and convincing”
evidence requires a finding of high probability. The evidence
must be so clear as to leave no substantial doubt. It must be
sufficiently strong to command the unhesitating assent of every
reasonable mind. [Citations.]’ [Citation.] Actual harm to a child
11
is not necessary before a child can be removed. ‘Reasonable
apprehension stands as an accepted basis for the exercise of state
power.’” (In re V.L. (2020) 54 Cal.App.5th 147, 154.)
Section 361 also provides that “[a] dependent child shall
not be taken from the physical custody of his or her parents,
. . . unless the juvenile court finds clear and convincing
evidence” that “[t]here is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-
being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health
can be protected without removing the minor from the minor’s
parent’s . . . physical custody.” (§ 361, subd. (c)(1).)
B. Standard of Review
We review a dispositional order removing a minor from
parental custody for substantial evidence. (In re V.L., supra,
54 Cal.App.5th at p. 154.) Because the juvenile court must make
its finding that a ground for removal exists under the clear and
convincing evidence standard of proof (§ 361, subd. (c)), “the
question before the appellate court is whether the record as a
whole contains substantial evidence from which a reasonable fact
finder could have found it highly probable that the fact was true.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
C. Analysis
The same evidence that supports the juvenile court’s
exercise of dependency jurisdiction also constitutes substantial
evidence from which the juvenile court could find it highly
probable that Avianna would be at risk of substantial danger if
she was returned to father. (§ 361, subd. (c)(1).)
Father’s contrary arguments rely heavily on In re Basilio T.
(1992) 4 Cal.App.4th 155 (Basilio T.) (superseded by statute on
12
another point, as noted in In re Lucero L. (2000) 22 Cal.4th 1227,
1239–1242). In that case, the reviewing court reversed a removal
order for insufficient evidence of the substantial risks posed by
the parents’ domestic violence. The evidence of domestic violence
in Basilio T. comprised police reports describing two separate
domestic violence incidents, neither of which resulted in direct
injury to the children; a social study report including statements
made by the parents’ six-year-old and four-year-old sons, who
later recanted their claims and/or were found unqualified to offer
testimony, respectively; and reports of further domestic violence
made by complaining neighbors, which were directly contradicted
by an eyewitness whom the trial court found credible. (Basilio T.,
supra, at pp. 170–171.)
Father argues that this case presents an even stronger
record for reversing removal than Basilio T., contending that the
only evidence of domestic violence between him and mother is
mother’s report of one physical altercation, which did not cause
any injury to Avianna. His argument ignores the many other
pieces of credible evidence demonstrating a pattern of domestic
violence between mother and father, including the Arizona
investigation into multiple incidents of domestic violence
instigated by mother; father’s psychiatrist’s report that father
had completed a domestic violence intake and had reluctantly
talked about domestic violence issues during mental health
treatment; testimony from an Arizona social worker that mother
expressed fear for her life; and mother’s ultimate decisions to
obtain a restraining order and flee the state with her young
children.5
5 Father again argues that any evidence connected to mother
is incredible and thus cannot constitute substantial evidence. We
13
Basilio T. is distinguishable in other ways; notably, by the
time of the dispositional hearing, the parents in Basilio T. were
commended for cooperating with the social services agency,
actively seeking out couples counseling, and stating that they
were willing to do “‘whatever the court [felt was] appropriate in
terms of family counseling.’” (In re Basilio T., supra, 4
Cal.App.4th at p. 172.) The reviewing court held that this
evidence undermined the juvenile court’s conclusion that the
parents were not adequately participating in services.
Conversely, father was largely uncooperative with DCFS
throughout the proceedings, and refused to consider participating
in domestic violence services or counseling.
Father also argues that the juvenile court failed to consider
other options that could have obviated the need for removal,
including conditioning custody on “a relative remain[ing] in the
home with” father and Avianna; “compl[iance] with a substance
abuse program”; compliance with other rehabilitative services; or
“frequent . . . unannounced home visits.”
Despite father’s assertions to the contrary, none of these
alternatives offer a reasonable alternative to removal. Father
resides in Arizona and has no plans to move to California; this
geographic distance alone imposes logistical challenges on the
juvenile court’s ability to ensure strict supervision of father’s
progress. Additional difficulties plague father’s suggestions. He
suggests having a family member move in with him and Avianna,
but does not identify any family member in Arizona who could
serve as a willing, able, and appropriate monitor. He suggests
rejected these arguments when he levied them against the
juvenile court’s jurisdictional findings; they are equally
unpersuasive regarding removal.
14
mandating various rehabilitative services, ignoring that he has
historically refused to participate in any counseling or domestic
violence services and denies any need for such services. (In re
T.W. (2013) 214 Cal.App.4th 1154, 1163 [finding that reasonable
efforts were made to avoid removal where a parent did not
participate in services and declined offered services to prevent
removal].)
Under these circumstances, the juvenile court justifiably
concluded that removal was necessary to protect Avianna.
III. ICWA
A. Additional Procedural Background
When DCFS first asked Avianna’s parents about their
ancestry, mother indicated that she might have Indian ancestry
through her father. Mother later signed an ICWA-020 form
indicating that she did not have any known Indian ancestry,
repeating this denial in subsequent interviews.
Father asserted that his paternal grandmother was
100 percent Cherokee, although he was not enrolled in any tribe.
He repeated this information on a subsequent ICWA-020 form.
On the basis of father’s ICWA-020 form, the juvenile court
ordered DCFS to conduct further inquiry about father’s Native
American ancestry. Father’s attorney gave DCFS the names of
father’s parents and grandparents,6 alleging that father’s
parental grandfather was also “full-blood Cherokee.” When
asked, father gave DCFS the names of his paternal great-
grandparents, alleging that his paternal great-grandmother had
been “100 [percent] Cherokee from [the] Carolina[s].” He refused
6 Father’s counsel also gave birth and death dates for
Avianna’s paternal grandfather, confirming that he had died in
2002.
15
to provide additional information about his family tree because
he was frustrated by how DCFS was handling the case. DCFS
asked mother if she had any additional information on father’s
extended family, but she denied knowing anything about them.
Based on the information father had given them, DCFS
sent ICWA notices to the Eastern Band of Cherokee Indians.
When father later amended his claim to add that his paternal
great-grandmother had been both Cherokee and Mohawk, DCFS
sent additional notices to the Saint Regis Mohawk Tribe and the
Saint Regis Band of Mohawk Indians.
In September 2020, the Eastern Band of Cherokee Indians
notified DCFS that it did not consider Avianna to be an Indian
child. One month later, the Saint Regis Mohawk Tribe reported
that Avianna was neither enrolled as a member of the tribe nor
eligible for membership. The Saint Regis Band of Mohawk
Indians never responded.
At the jurisdictional and dispositional hearing, the juvenile
court found that ICWA did not apply.
B. Applicable Law
“ICWA was enacted to curtail ‘the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement’ [citation], and ‘to
promote the stability and security of Indian tribes and families by
establishing . . . standards that a state court . . . must follow
before removing an Indian child from his or her family’
[citations].”7 (In re Dezi C. (2022) 79 Cal.App.5th 769, 780,
review granted Sept. 21, 2022, S275578.)
7 An “‘Indian child’ means 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 and is the
16
Under California law enacted to implement ICWA, DCFS
and the juvenile court have “three distinct duties . . . in
dependency proceedings.” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.) The first is the initial duty of inquiry, which DCFS
“discharges . . . chiefly by ‘asking’ family members ‘whether the
child is, or may be, an Indian child.’ ([§ 224.2], subd. (b).) This
includes inquiring of not only the child’s parents, but also others,
including but not limited to, ‘extended family members.’ (Ibid.)
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
that the child is an Indian child.’ (Id., subd. (c).)” (In re Dezi C.,
supra, 79 Cal.App.5th at p. 780; see also Cal. Rules of Court,
rule 5.481(a)(1)-(2).) The second duty—the duty of further
inquiry—is triggered if there is “reason to believe that an Indian
child is involved” (§ 224.2, subd. (e)), while the third duty—to
notify the relevant tribes—is triggered if there is “reason to
know . . . that an Indian child is involved” (§ 224.3, subd. (a)).
Numerous appellate courts have weighed in recently on the
consequence, on appeal from an order prior to termination of
parental rights, of a social services agency’s failure to conduct the
required initial ICWA inquiry.8 At least five different types of
dispositions have emerged. (See In re Dominick D. (2022)
biological child of a member of an Indian tribe[.]” (25 U.S.C.
§ 1903(4); see also § 224.1, subd. (a) [adopting federal definition].)
8 Appellate courts have also issued a spate of opinions on the
proper remedy in an appeal from an order terminating parental
rights when the ICWA duty of initial inquiry has not been
satisfied. (See Dezi C., supra, 79 Cal.App.5th at pp. 777–778.)
We need not address that issue here.
17
82 Cal.App.5th 560, 563–564, 567–568 (Dominick D.) [affirming
the juvenile court’s jurisdictional and dispositional findings and
orders, vacating the finding that ICWA did not apply, and
remanding for ICWA compliance]; In re S.H. (2022)
82 Cal.App.5th 166, 171 [“hold[ing] that when a social services
agency accepts its obligation to satisfy its inquiry obligations
under ICWA, a reversal of an early dependency order is not
warranted simply because a parent has shown that these ongoing
obligations had not yet been satisfied as of the time the parent
appealed” and affirming findings and orders in their entirety]; In
re Baby Girl M. (2022) 83 Cal.App.5th 635, 638–639 [dismissing
appeal as moot on the theory that no effective relief could be
provided]; J.J. v. Superior Court (2022) 81 Cal.App.5th 447, 461
[finding that ICWA issue was unripe for review as “any perceived
deficiencies with ICWA inquiry and noticing may still be resolved
during the normal course of the ongoing dependency
proceedings”]; D.S. v. Superior Court (2023) 88 Cal.App.5th 383,
387–389, 391–392 [construing appeal as a writ petition seeking
order directing compliance with ICWA duties and, upon
consideration of the merits, granting the requested relief].)
C. Standard of Review
“On appeal, we review the juvenile court’s ICWA findings
for substantial evidence. [Citations.] But where the facts are
undisputed, we independently determine whether ICWA’s
requirements have been satisfied. [Citation.]” (In re D.S., supra,
46 Cal.App.5th at p. 1051.)
D. Analysis
1. Errors regarding Avianna’s maternal family
Father argues that DCFS and the juvenile court failed to
satisfy their initial inquiry duties as to Avianna’s maternal
18
family, identifying eight maternal relatives that DCFS failed to
interview on the question of Indian ancestry. DCFS concedes
that this was error, and we agree that DCFS failed to discharge
its initial duty of inquiry as to mother’s family. (See § 224.2,
subd. (b) [requiring DCFS to question “‘extended family
members’” about possible Indian ancestry]; Dezi C., supra,
79 Cal.App.5th at pp. 776–777.)
Having found ICWA error, we must determine the remedy.
We elect to follow Dominick D., supra, 82 Cal.App.5th 560 and
vacate the juvenile court’s finding that ICWA does not apply as to
mother’s family, remand for compliance with ICWA and related
California law, and otherwise affirm the jurisdictional findings
and dispositional order.
In so doing, we recognize that the juvenile court and DCFS
“have an affirmative and continuing duty to inquire” into the
minor’s Indian status as these dependency proceedings continue.
(§ 224.2, subd. (a); see also In re Isaiah W. (2016) 1 Cal.5th 1, 14;
In re S.H., supra, 82 Cal.App.5th at pp. 176–177.) DCFS “has a
duty ‘on an ongoing basis’ to report ‘a detailed description of all
inquiries, and further inquiries it has undertaken, and all
information received pertaining to the child’s Indian status.’
([Cal. Rules of Court, r]ule 5.481(a)(5).) And the juvenile court,
even after it concludes that ICWA does not apply, retains the
power (and duty) to reverse that determination ‘if it subsequently
receives information providing reason to believe that the child is
an Indian child.’ (§ 224.2, subd. (i)(2); see also [Cal. Rules of
Court,] rule 5.482(c)(2).)” (In re S.H., supra, at p. 176.) Thus,
while in some respects, there may be no reason to remand this
case at all, we also recognize that we should not allow an
erroneous finding to stand when it can be corrected.
19
2. Errors regarding Avianna’s paternal family
Father also argues that insufficient inquiries were
conducted as to father’s extended family, identifying multiple
family members who DCFS failed to locate and interview. Again,
DCFS concedes error.9
We do not agree with the parties that there was ICWA
error concerning Avianna’s paternal family. On appeal, father
chastises DCFS for not attempting to find out if father’s
grandmother and great-grandmother were still alive, and, if so,
whether their contact information was readily obtainable. But
the record shows that father rebuffed DCFS’s efforts to obtain
more information about these relatives, effectively stymieing
further investigation.
Specifically, father was unable or unwilling to provide
contact information for any of the relatives he named. And
notably, he provided only one birthdate: that of his father, who
he admitted had passed away in 2002 at the age of 73. Had
Avianna’s paternal grandfather been available for comment when
this case commenced, he would have been 92 years old; it is
highly unlikely that her more distant paternal relatives,
including her grandfather’s mother and grandmother, would have
been alive and available for comment in the year 2021. (See In re
Antoinette S. (2002) 104 Cal.App.4th 1401, 1413 [remand for
further investigation of potential Indian heritage is futile when
all extended relatives identified as potential sources of
9 While DCFS concedes error, it argues that the error was
harmless. We need not address this issue “because ICWA inquiry
and notice errors do not warrant reversal of the juvenile court’s
jurisdictional or dispositional findings and orders other than the
ICWA finding itself. [Citations.]” (In re Dominick D., supra,
82 Cal.App.5th at p. 567.)
20
information are dead and when living relatives cannot produce
additional information].)
Father admits that he often refused to cooperate with
DCFS’s investigation, including refusing to give additional
information about his extended family members for the purposes
of conducting an ICWA investigation, but argues that DCFS
“should have worked harder to develop a greater rapport with
[father] so [that] he better understood what was going on and
why the social worker did things the way that they [sic] did.” The
sole legal authority father cites for this proposition is inapposite.
(See In re Elizabeth M. (2018) 19 Cal.App.5th 768, 787 [merely
holding that social service agencies “must pursue all reasonable
investigative leads” even when no specific tribal connection has
been suggested]; In re Marriage of Falcone & Fyke (2008) 164
Cal.App.4th 814, 830 [“The absence of cogent legal argument
. . . allows this court to treat [an appellant’s] contentions as
waived”].)
We are compelled to note that despite father’s failure to
provide DCFS with complete information, it still attempted to
discover more information about his extended family—including
by asking mother, who had no further leads—and ultimately sent
notices to all three tribal entities identified by father as potential
sources of Indian ancestry. Two of those tribes responded that
Avianna was not an Indian child, and the final tribe gave no
response. Under these circumstances, we conclude that the
juvenile court’s ICWA finding concerning father’s family was not
erroneous.
That said, as set forth above, this matter is an ongoing
proceeding. The juvenile court and DCFS “have an affirmative
and continuing duty to inquire” into Avianna’s Indian status as
21
these dependency proceedings continue. (§ 224.2, subd. (a); see
also In re Isaiah W., supra, 1 Cal.5th at p. 14; In re S.H., supra,
82 Cal.App.5th at pp. 176–177.) Should father provide any
additional information, including contact information for
identified relatives, then DCFS and the juvenile court should act
accordingly.
DISPOSITION
The juvenile court’s finding at the jurisdiction and
disposition hearing that ICWA did not apply as to mother’s side
of the family is vacated. The matter is remanded for further
proceedings in which (1) DCFS shall make reasonable efforts to
ask all known and available maternal family members whether
Avianna is or may be an Indian child; (2) DCFS shall document
these efforts to the juvenile court; (3) the juvenile court shall
make a finding regarding ICWA’s applicability as to mother’s
family; and (4) depending upon that finding, the juvenile court
and DCFS shall proceed in accordance with sections 224.2 and
224.4. The jurisdictional findings and removal order are
otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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