In re J.S. CA2/5 ( 2023 )

Filed 6/27/23 In re J.S. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re J.S., a Person Coming B324825
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 20CCJP01104A)
Plaintiff and Respondent,
v.
S.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore.
Conditionally reversed with directions.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, and Jacklyn K. Louie,
Deputy County Counsel, for Plaintiff and Respondent.
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Mother1 appeals from the October 27, 2022 order
terminating parental rights to her son (minor) under Welfare and
Institutions Code section 366.26.2 Mother’s sole contention on
appeal is that the juvenile court erroneously failed to ensure
compliance with the inquiry and notice requirements of the
Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et
seq.) and related California statutes (Welf. & Inst. Code, § 224 et
seq.). We conditionally reverse and remand the matter solely for
the court to ensure compliance with ICWA and related California
statutes.
FACTUAL AND PROCEDURAL BACKGROUND
The Los Angeles County Department of Children and
Family Services (Department) detained minor from mother’s
custody shortly after birth, and filed a petition under section 300,
subdivision (b), alleging that mother’s serious mental and
emotional problems placed minor at substantial risk of physical
harm. The juvenile court declared minor a dependent.
Mother denied any Indian ancestry, including on an ICWA-
020 parental notification of Indian status form, and declined to
disclose additional information about her family. Mother has
1 The record identifies two alleged fathers, but neither is a
party to the current appeal.
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
2
between four and seven siblings, including a twin sister. When
mother was a minor, she and her siblings had an extensive child
welfare history involving multiple referrals and investigations, a
legal guardianship with mother’s maternal grandfather (minor’s
maternal great grandfather) and later a maternal great aunt.
Although social workers spoke to maternal aunt, mother’s twin
sister and later interviewed a maternal great uncle who sought
placement of minor, neither relative was asked about possible
Indian ancestry.
C.B., an alleged father of minor, claimed possible Cherokee
or Blackfoot ancestry, and the court ordered the Department to
investigate his claim and report back. The court found ICWA did
not apply.
At a permanency planning hearing under section 366.26,
the court ordered parental rights terminated. Mother appealed.
DISCUSSION
“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers
of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Both ICWA and California
law define an “ ‘Indian child’ ” as a child who is either a member
of an Indian tribe or 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); § 224.1, subds. (a) & (b); see In re
Elizabeth M. (2018) 19 Cal.App.5th 768, 783.)
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California statutory law incorporates the requirements of
ICWA, and imposes some additional requirements as well. (In re
Abbigail A. (2016) 1 Cal.5th 83, 91; In re Benjamin M. (2021)
70 Cal.App.5th 735, 741–742.) State law imposes on the
Department a first-step inquiry duty to “interview, among others,
extended family members and others who had an interest in the
child.” (In re H.V. (2022) 75 Cal.App.5th 433, 438; see § 224.2,
subd. (b).) Federal regulations explain that the term “extended
family member is defined by the law or custom of the Indian
child’s Tribe or, in the absence of such law or custom, is a person
who has reached age 18 and who is the Indian child’s
grandparent, aunt or uncle, brother or sister, brother-in-law or
sister-in-law, niece or nephew, first or second cousin, or
stepparent.” (25 C.F.R. § 23.2 (2017).) The duty of initial inquiry
includes making a meaningful effort to interview available
relatives. (In re Y.W. (2021) 70 Cal.App.5th 542; 552–553.)
When there is “reason to believe that an Indian child is involved
in a proceeding,” further inquiry is also required. (§ 224.2,
subd. (e); In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.) “We
review claims of inadequate inquiry into a child’s Indian ancestry
for substantial evidence.” (In re H.V., at p. 438.)
The Department concedes on appeal that the initial inquiry
requirements of ICWA and related state law were not met in this
case. Despite contact with mother’s twin sister and maternal
great uncle, there is no indication in the record that the
Department asked either relative about possible Indian ancestry,
or sought contact information for any of mother’s other siblings or
other relatives to inquire into the possibility of Indian ancestry.
The Department asks us to conditionally affirm the juvenile
court’s order terminating parental rights, with instructions
4
limiting remand of the matter to ordering the juvenile court to
ensure compliance with ICWA’s requirements.
We agree that the court erred in finding ICWA
inapplicable, as the court proceeded in the absence of any
evidence that the Department asked available extended family
members about the possibility that minor has Indian ancestry, or
made a meaningful attempt to locate and interview extended
family members. (See, e.g., In re Y.W., supra, 70 Cal.App.5th at
pp. 552–556; In re H.V., supra, 75 Cal.App.5th at p. 438
[prejudicial error when Department fails to discharge its first
step duty of inquiry].)
5
DISPOSITION
The juvenile court’s October 27, 2022 order terminating
parental rights under Welfare and Institutions Code section
366.26 is conditionally reversed and remanded for proceedings
required by this opinion. The court shall order the Department
to make reasonable efforts to interview available extended
relatives, including maternal aunt (mother’s twin sister), about
the possibility of the minor’s Indian ancestry and to report on the
results of the Department’s investigation. Nothing in this
disposition precludes the court from ordering additional inquiry
of others having an interest in the children. Based on the
information reported, if the court determines that no additional
inquiry or notice to tribes is necessary, the order terminating
parental rights is to be reinstated. If additional inquiry or notice
is warranted, the court shall make all necessary orders to ensure
compliance with ICWA and related California law.
NOT TO BE PUBLISHED.
MOOR, J.
I concur:
RUBIN, P. J.
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In re J.S.
B324825
BAKER, J., Dissenting
I would affirm because substantial evidence supports the
juvenile court’s finding that the Indian Child Welfare Act (ICWA)
does not apply. (In re A.C. (2022) 86 Cal.App.5th 130, 132 (dis.
opn. of Baker, J.); In re Ezequiel G. (2022) 81 Cal.App.5th 984; In
re H.V. (2022) 75 Cal.App.5th 433, 439 (dis. opn. of Baker, J.).)
BAKER, J.