In re C.B. CA2/3 ( 2023 )

Filed 8/15/23 In re C.B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
B328021
In re C.B., Jr., a Person Coming
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 21CCJP00599)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa A. Brackelmanns, Juvenile Court
Referee. Conditionally affirmed and remanded with directions.
Paul Couenhoven, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn Harrison, County Counsel, Kim Nemoy, Assistant
County Counsel, and Veronica Randazzo, Deputy County
Counsel, for Plaintiff and Respondent.
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C.B. (father) appeals from a juvenile dependency court
order terminating his parental rights. Father’s sole contention is
that the juvenile court erred in finding the Los Angeles County
Department of Children and Family Services (DCFS) conducted
an adequate inquiry to determine whether C.B., Jr. (C.B.) is or
may be an Indian child within the meaning of the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Father informed
DCFS and the court that he believes the paternal grandfather
has Indian ancestry. Although father was unable to provide
contact information for the paternal grandfather or any relatives
from his father’s side of the family, the record reflects that DCFS
had other viable leads it failed to pursue. We conditionally affirm
the trial court order and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Father’s appeal is limited to DCFS’s compliance with
ICWA, thus we provide only a brief summary of the general
background of the case. In February 2021, C.B.’s 14-year-old
older sister committed suicide. At the time, DCFS was already
investigating the family due to concerns that father was failing to
obtain appropriate mental health and medical care for the sister,
and that father was exhibiting signs of concerning mental health.
Multiple family members indicated that father talked to himself
2
and that he was having “episode[s]” similar to those of the
paternal grandmother who was reported to have been “bipolar
schizophrenic.” Father had been uncooperative and withheld
“pertinent information” from DCFS. The children’s mother died
by suicide several years earlier.
In April 2021, the juvenile court sustained a dependency
petition asserting father subjected 10-year-old C.B. to physical
abuse and deprived him of adequate food. The petition further
alleged father’s medical neglect of the sister and his own
unresolved mental and emotional problems placed C.B. at
substantial risk of serious physical harm. The court asserted
dependency jurisdiction over C.B. and removed him from father.
DCFS placed C.B. with his maternal grandmother. In May 2022,
the juvenile court terminated father’s reunification services. In
January 2023, the court terminated parental rights and freed
C.B. for adoption, naming the maternal grandmother as the
prospective adoptive parent.
ICWA Background
The detention report indicated father initially signed forms
stating his family has “Native American Indian Heritage.”
Father told DCFS he did not know the name of the tribe, but “he
has Native American Ancestry from paternal grandfather.” A
social worker “asked [father] if he could get further information
from paternal grandfather and he said ‘no.’ ”
In the initial investigation in early February 2021, DCFS
spoke with a paternal aunt, Nichole E., and two paternal great-
3
aunts, Renee R., and Ida R.1 Paternal aunt Nichole E. told DCFS
the paternal grandmother died 10 years earlier and a paternal
uncle was also deceased.2 Paternal great-aunt Renee R. told
DCFS the paternal family had a history of mental illness and the
paternal grandmother suffered from “bipolar schizophrenia”
before she died of a heart attack years before. According to Renee
R., the paternal grandmother “raised her children alone while
working and going to school.” Renee R. felt father needed
psychiatric help and explained that while the family had
attempted to help father, he refused and distanced himself from
the family. The detention report did not indicate that DCFS
asked any of the paternal family members about father’s claim of
Native American ancestry.
At the detention hearing on February 11, 2021, the juvenile
court indicated father had submitted an ICWA-020 form stating
he “does possibly have Native American ancestry on his paternal
grandfather’s side, Lyle [B.]” However the court continued, “I
believe, from reading the reports, that [father] doesn’t have
additional information.” The court deferred ICWA findings and
1 The paternal grandmother, Willa R., was Renee R.’s sister
and the two shared the same last name. Father told DCFS that
his last name was never the same as paternal grandmother’s.
2 Nichole E. and father do not share the same last name.
The report appears to indicate father and Nichole E. had the
same mother—the paternal grandmother—but is silent as to
whether they shared the same father. Nichole E. told DCFS she
“lost her mother and she was raised by her father.”
4
ordered DCFS to investigate further.3 At the same hearing,
father requested that an unnamed paternal cousin be assessed
for placement of C.B. Father’s counsel indicated she could
provide the cousin’s information to DCFS.
On February 23, 2021, DCFS spoke with father again
regarding any Indian heritage, and father again stated he had
Native American ancestry from the paternal side of his family,
his father’s name is Lyle B., and father did not know the name of
the tribe. The jurisdiction and disposition report informed the
court: “[The dependency investigator] asked the father if he could
acquire further information from paternal grandfather, father
stated that he has not spoken to [paternal grandfather] in a while
and father was not able to provide [paternal grandfather’s]
contact information. Father stated that he has a male cousin
that could probably provide more information to his native
American ancestry. Father agreed to contact his male cousin and
follow-up with [the dependency investigator]. As of the writing of
this report father has not provided additional information as to
his Native American Ancestry.”
DCFS contacted paternal relatives again for interviews in
advance of the jurisdiction hearing. At the time of the writing of
the report, paternal aunt Nichole E. had not responded to a
3 The court also asked father if he was aware of mother
having any Indian ancestry. Father said he believed mother had
“Chinese background.” The court ordered DCFS to follow up with
the maternal grandmother about any Indian heritage.
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detailed voicemail message.4 Paternal great-aunt Renee R. again
told DCFS that father stopped communicating with the paternal
family for long periods. Renee R. said the paternal grandmother
had been very private and would not allow anyone to help her
and father was the same way. Renee R. also informed DCFS that
the paternal family was concerned about father’s mental health
and she believed father needed help. The dependency
investigator left messages with paternal great-aunt Ida R. and a
paternal “relative,” George R., but had not received a response by
the time of the writing of the report.
Although paternal great-aunt Renee R. told DCFS in an
earlier interview that the paternal grandmother raised her
children on her own, father told DCFS that “his parents were
very responsible and responsive to their [children’s] needs.”
The jurisdiction hearing was set for early March 2021. In
advance of the hearing, DCFS filed a last minute report
explaining that DCFS called father on March 2, to inquire further
about Native American ancestry. Father said he had not been
able to get in contact with relatives to obtain any more
information. At the March 4 hearing, the court asked if counsel
for DCFS was requesting orders or findings regarding ICWA.
Counsel asked the court to order DCFS to notify the Bureau of
Indian Affairs (BIA). The court agreed, noting there was no
information other than that father may have American Indian
heritage. The court additionally asked father if he could provide
any additional information about paternal grandfather or the
4 The dependency investigator called relatives and left
messages on February 23 and 24, 2021. The report was signed on
February 24 and filed on February 25, 2021.
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claim of ICWA applicability. Father responded: “I reached out to
my father. I went to the police department to locate him, and at
this time I don’t have any information on how to gain more access
on my heritage.” Father said he did not have a contact number
for the paternal grandfather. The court asked that if father
obtained a number that he provide it to his attorney.
DCFS sent ICWA notices to the BIA and the Secretary of
the Interior. A social worker subsequently submitted a last
minute report to the court indicating father had not provided any
additional information or updates about his Native American
ancestry. Paternal great-aunt Renee R., however, told DCFS she
had no knowledge of any Native American ancestry on the
maternal side of father’s family. Renee R. had no contact with
the paternal grandfather, “as he was not involved in father’s life.”
However, DCFS noted Renee R. “believes she will be in contact
with some of father’s paternal relatives on 3/31/2021 due to
[C.B.’s sister’s] services and would try to provide [the dependency
investigator] with contact information regarding paternal family
members if available.”
At the next hearing in April 2021, the juvenile court
indicated the disposition hearing would be postponed “for the
ICWA investigation to be completed.” The court asked counsel
for father and counsel for C.B. if there was anything further
“with regard to ICWA.” Neither counsel had additional
information or requests.
In advance of the continued disposition hearing, DCFS
reported the BIA had responded to the ICWA notice by indicating
insufficient tribal information was provided to assist in locating
C.B.’s tribe. DCFS did not state whether paternal great-aunt
Renee R. was able to provide any additional information about
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father’s paternal relatives. However, at the beginning of the
hearing, counsel for DCFS argued: “It looks like on 2/11/21 [the
court] found that ICWA did not apply. Furthermore, based [on]
all of [the] information, or the limited information, I think it is
safe to say that there is no reason to know this is an ICWA case.
The Department has really tried to go above and beyond to locate
all of the potential relatives, interviewed the maternal
grandmother, a paternal aunt, and father didn’t have any further
information for the paternal grandfather.” Counsel asked the
court to continue to find that ICWA did not apply. When asked
by the court, father’s counsel offered no argument.
The court found no reason to know ICWA applied,
explaining: “I think the Department did their due diligence in
interviewing the relatives. At this point in time, there is no
reason to know that there’s any American Indian heritage of the
father or mother.” Although paternal great-aunt Renee R. was
present and testified at the hearing, no information was elicited
from her about any contacts with father’s paternal relatives.
DISCUSSION
Father contends substantial evidence did not support the
juvenile court’s finding that ICWA did not apply because DCFS
failed to interview paternal relatives other than paternal great-
aunt Renee R. to determine whether C.B. is or may be an Indian
child. We conclude DCFS’s inquiry was inadequate and remand
is necessary for further proceedings.
I. Duty of Inquiry
Section 224.2 sets forth the duties of a county welfare
department and the juvenile court in determining whether a
child is or may be an Indian child. An “ ‘Indian child’ ” is “any
unmarried person who is under age eighteen and is either (a) a
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member of an Indian tribe or (b) 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, subd. (a).)
Section 224.2, subdivision (a), provides that both the court
and the Department have an “affirmative and continuing duty” to
inquire whether a child is or may be an Indian child, beginning
with the “initial contact,” which includes asking the party
reporting abuse or neglect if they have any information that the
child may be an Indian child. Under section 224.2,
subdivision (b), if a child is placed in the Department’s temporary
custody, the agency must inquire whether the child is or may be
an Indian child, by asking a nonexclusive group that includes the
child, the parents, and extended family members.
Under section 224.2, subdivision (e), if the court or social
worker has reason to believe an Indian child is involved in the
proceeding, but does not have enough information to determine
there is a reason to know the child is an Indian child, the court or
the social worker must make further inquiry, as soon as
practicable. “[R]eason to believe” means the court or social
worker 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).) “Further inquiry”
includes actions such as “[i]nterviewing the parents, Indian
custodian, and extended family members” to gather information
that would be necessary to provide notice to any relevant tribes.
(§§ 224.2, subd. (e)(2)(A), 224.3, subd. (a)(5).) An “ ‘extended
family member’ ” is an adult 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
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stepparent,” or an individual as otherwise defined by an Indian
child’s tribe. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
Section 224.2, subdivision (i)(2), provides that if “the court
makes a finding that proper and adequate further inquiry and
due diligence as required in this section 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.” “On appeal, we review the juvenile court’s ICWA
findings for substantial evidence.” (In re D.S. (2020)
46 Cal.App.5th 1041, 1051; In re Josiah T. (2021) 71 Cal.App.5th
388, 401.)
II. Substantial Evidence Did Not Support the Juvenile
Court’s ICWA Finding
Father informed DCFS and the juvenile court he believes
he has Indian ancestry. DCFS interviewed father several times,
then conducted further investigation. DCFS interviewed
paternal great-aunt Renee R., whose statements regarding the
substantive issues in the case indicated she was paternal
grandmother’s sister, and she was connected to that side of
father’s family. Renee R., paternal great-aunt Ida R., and
paternal relative George R., all appeared to be related to the
paternal grandmother. Renee R. denied her family had any
Indian ancestry. Ida R. and George R. did not return DCFS’s
calls in advance of the jurisdiction hearing. Further, father’s
claim of Indian ancestry was unrelated to the paternal
grandmother’s family. The juvenile court could reasonably
conclude that DCFS’s interviews with Renee R. were sufficient to
establish no reason to believe or know C.B. was an Indian child
based on heritage related to father’s mother’s side of the family.
10
(In re E.W. (2023) 91 Cal.App.5th 314, 323–324 [substantial
evidence where mother repeatedly denied Indian ancestry and
agency interviewed maternal aunt and paternal grandmother,
but did not interview other available relatives]; In re J.S. (2021)
62 Cal.App.5th 678, 690 [father indicated he may have Indian
ancestry and source of information was his mother; agency’s
interview with paternal grandmother was adequate inquiry].)
However, to the extent there was reason to believe C.B. is
or may be an Indian child, the reason arose from father’s
statement that he believed paternal grandfather has Native
American ancestry. Father indicated he had no contact
information for paternal grandfather, although he would try to
obtain it. Subsequently father told the court he had attempted to
determine paternal grandfather’s whereabouts but was
unsuccessful. Although father had previously suggested an
unnamed paternal cousin might have information, he later told
the court: “I don’t have any information on how to gain more
access on my heritage.”
In In re Q.M. (2022) 79 Cal.App.5th 1068, a panel of this
court explained that when a parent fails “to provide names and
contact information for extended family members, DCFS’s ability
to conduct an exhaustive ICWA inquiry necessarily is
constrained. Although it is well established that the duty to
develop information bearing on whether a child is an Indian child
‘rests with the court and the Department, not the parents or
members of the parents’ families’ [citation], in most cases the
court and DCFS cannot satisfy this duty without the
participation of the parents. While we believe it reasonable in
many cases to require DCFS to follow up on leads provided by the
parents, we cannot ask the agency to intuit the names of
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unidentified family members or to interview individuals for
whom no contact information has been provided.” (Id. at
p. 1082.)
We additionally acknowledge that DCFS is not required to
“ ‘cast about’ for investigative leads” (In re A.M. (2020) 47
Cal.App.5th 303, 323) or to “conduct an extensive independent
investigation for information” (In re C.Y. (2012) 208 Cal.App.4th
34, 41). Had father simply been unable to provide contact
information for any of his paternal relatives, the juvenile court
reasonably could have concluded DCFS’s inquiry was adequate
and the agency exercised due diligence.
But here there was reason to believe C.B. may be an Indian
child and there were additional leads DCFS did not pursue.
While DCFS’s counsel argued to the juvenile court that the
agency “really tried to go above and beyond to locate all of the
potential relatives,” any such efforts were not reflected in the
record with respect to father’s paternal relatives. There is no
evidence that DCFS attempted to interview paternal aunt
Nichole E. about Indian ancestry. And after Renee R.
volunteered to try to obtain contact information for father’s
paternal relatives, there was no indication that any social worker
ever followed up with her to determine if she had been successful.
Pursuing those two avenues was imminently achievable. DCFS
had contact information for Nichole E. and managed to speak
with her once before;5 Renee R. testified in court the same day
5 We note that although DCFS was unable to reach Nichole
E. during the agency’s investigation for the jurisdiction and
disposition report, a social worker called her and left a message
at most two days before the report was submitted to the court.
12
DCFS’s counsel argued nothing more could be done to investigate
father’s claim of Indian ancestry.
On this record, we cannot find substantial evidence
supported the juvenile court’s finding that DCFS exercised due
diligence and conducted an adequate inquiry to determine
whether C.B. is or may be an Indian child. (In re Y.W. (2021) 70
Cal.App.5th 542, 553–554, 555 (Y.W.) [DCFS failed to conduct
adequate inquiry where agency had potentially viable lead to
contact mother’s biological parents but failed to follow up].)
III. We Cannot Find the Error Harmless
The Courts of Appeal have adopted several divergent
standards for determining whether a child welfare agency’s
failure to comply with the duty of inquiry is prejudicial error
requiring reversal. These standards range from an automatic
reversal approach (In re H.V. (2022) 75 Cal.App.5th 433, 438;
Y.W., supra, 70 Cal.App.5th 542, 556), to presumptive affirmance
(In re A.C. (2021) 65 Cal.App.5th 1060, 1065), with variations in
between, including the test set forth in In re Dezi C. (2022) 79
Cal.App.5th 769, 779, review granted Sept. 21, 2022, S275578
(Dezi C.). The Dezi C. court concluded the proper application of
our state’s test for harmless error in the ICWA inquiry context is
that “an agency’s failure to conduct a proper initial inquiry into a
dependent child’s American Indian heritage is harmless unless
the record contains information suggesting a reason to believe
that the child may be an ‘Indian child’ within the meaning of
ICWA, such that the absence of further inquiry was prejudicial to
No subsequent report indicated whether Nichole E. ever returned
the social worker’s call.
13
the juvenile court’s ICWA finding.” (Ibid.; In re Ezequiel G.
(2022) 81 Cal.App.5th 984, 1014.)
We need not discuss the various standards in detail here.
Excepting the presumptive affirmance approach, we conclude
that application of any of the other various tests employed by our
fellow appellate courts mandates a remand for further
proceedings in this case.
Father expressed a belief that paternal grandfather has
Native American ancestry but he could not identify a specific
tribe. Other information in the record indicated inquiry of other
family members would be necessary to diligently investigate this
claim. Paternal great-aunt Renee R., paternal grandmother’s
sister, told DCFS that paternal grandfather was not involved in
father’s life and the paternal grandmother had raised father
alone. Renee R. also indicated father had isolated himself from
family for long periods of time. Father was at times
uncooperative with DCFS, and was also reported to be
experiencing significant mental health issues.
Under these circumstances, father had only limited
information, while other members of his father’s family may have
had additional information beyond father’s general belief of
Indian ancestry. (Dezi C., supra, 79 Cal.App.5th at p. 779
[reviewing court has reason to believe further inquiry might lead
to different results if parents’ reporting may not be fully
informed].) Interviews of extended family members from father’s
paternal family, if available, would “bear meaningfully” on the
court’s ICWA determination. (In re Benjamin M. (2021) 70
Cal.App.5th 735, 744.)
14
We therefore conditionally affirm the juvenile court order,
remanding the matter for further inquiry and compliance with
ICWA.
15
DISPOSITION
The juvenile court’s order terminating parental rights is
conditionally affirmed. The case is remanded to the juvenile
court to order DCFS to immediately comply with the inquiry
provisions of Welfare and Institutions Code section 224.2 as to
available extended family members who are related to the
paternal grandfather. After ensuring DCFS has complied with
the inquiry, and, if applicable, notice provisions of ICWA and
related California law, the juvenile court shall determine
whether ICWA applies. If the court determines ICWA does not
apply, the order terminating parental rights shall remain in
effect. If the court determines ICWA does apply, it shall vacate
its order terminating parental rights and proceed consistent with
ICWA and related state law.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
LAVIN, Acting P. J.
EGERTON, J.
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