In re Mariah H. CA2/7 ( 2024 )

Filed 2/13/24 In re Mariah H. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re MARIAH H. et al., B329102
Persons Coming Under the (Los Angeles County Super.
Juvenile Court Law. Ct. No. 17LJJP00075B, D,
and E)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
MARY-MONICA V.,
Defendant and Appellant.
In re TINA H., a Person Coming B331185
Under the Juvenile Court Law. (Los Angeles County Super.
Ct. No. 17LJJP00075C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARY-MONICA V.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephanie M. Davis, Judge. Conditionally affirmed and
remanded with directions.
Jamie A. Moran, 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.
_____________________________
Mary-Monica V. (Mother) appeals from the juvenile court’s
orders terminating her parental rights under Welfare and
2
Institutions Code section 366.261 to the four children she has
with Cleve H. (Father): 14-year-old Mariah H., 13-year-old Tina
H., 12-year-old Prince H., and eight-year-old Maliyah H.2
Mother’s sole contention on appeal is that the Los Angeles
County Department of Children and Family Services (the
Department) and the juvenile court failed to comply with the
inquiry requirements of the Indian Child Welfare Act of 1978
(25 U.S.C. § 1901 et seq.; ICWA) and related California law.
Mother argues the Department failed to interview all maternal
and paternal extended family members, including eight paternal
uncles and four maternal aunts and uncles, as to the children’s
possible Indian ancestry, and the court prejudicially erred in
finding ICWA did not apply without a further inquiry.
We agree the failure of the juvenile court and the
Department to comply with the inquiry requirements of ICWA
and related California law constitutes prejudicial error. We
conditionally affirm and remand for the court and the
Department to comply with the inquiry and notice provisions of
ICWA and California law.
1 Further undesignated statutory references are to the
Welfare and Institutions Code.
2 Mother separately appealed from the February 28, 2023
order terminating her parental rights to Mariah, Prince, and
Maliyah (Case No. B329102) and the May 22, 2023 order
terminating her parental rights to Tina (Case No. B331185). We
consider the appeals together in this opinion. Mother’s fifth
child, Keijon, is not at issue in this appeal. For ease of reference
we will refer to Mother’s four children at issue in this appeal as
Mother’s “children.”
3
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Petition and Detention Hearing
On September 28, 2017 the Department filed a dependency
petition on behalf of Mother’s five children pursuant to
section 300, former subdivision (b)(1), alleging in count b-1 that
Mother left the children with numerous unrelated adults or alone
in the home without making arrangements for the children’s care
and supervision. Further, Mother’s whereabouts were unknown
for weeks at a time. The petition alleged in count b-2 that
Mother had a history of illegal substance abuse and currently
used marijuana. Mother’s conduct endangered the children’s
physical health and safety and placed them at risk of serious
physical harm. The children were detained from Mother and
released to Father.
On April 23, 2018 Mother executed a waiver of rights form
and entered a plea of no contest to amended count b-2 that
Mother had a history of illegal substance use and was a current
abuser of methamphetamine and marijuana. The juvenile court
struck count b-1. The children were declared dependents of the
court and were removed from Mother under section 361,
subdivision (c), and placed with Father. The court ordered
reunification services for Mother and ordered her to complete a
full drug and alcohol program with aftercare, to participate in
individual and mental health counseling, and to submit to weekly
drug testing. The court granted Mother monitored visitation.
Over the next six months, Mother did not make adequate
progress on her case plan (leaving a drug treatment program
after one month), and for most of the period Mother’s
whereabouts were unknown. The children continued to live with
Father. In January 2019 Father tested positive for
4
methamphetamine, amphetamine, and cannabinoids. On
February 15 Mariah, Tina, Prince, and Maliyah were removed
from Father.
On February 22, 2019 the Department filed a subsequent
petition under section 342 alleging under section 300, former
subdivision (b)(1), that Father had a history of substance abuse
and was a current abuser of methamphetamine, amphetamine,
and marijuana, which rendered him incapable of caring for the
children, and Father’s conduct placed the children at risk of
serious physical harm. On May 22 the juvenile court sustained
the subsequent petition and removed the children from Father.
On March 4, 2020 the juvenile court terminated
reunification services for Father, and on December 23, 2020 the
court terminated reunification services for Mother. The matter
was set for a selection and implementation hearing (§ 366.26) on
April 22, 2021 with respect to the four children, which hearing
was continued multiple times (including for ICWA compliance).
At the continued selection and implementation hearing
held on February 28, 2023 with respect to Mariah, Prince, and
Maliyah, the juvenile court found by clear and convincing
evidence the three children were adoptable and it would be
detrimental to return the children to the parents’ custody. The
court also found there were no exceptions to termination of
parental rights. The court terminated Mother’s and Father’s
parental rights and found adoption was the appropriate
permanent plan.
The selection and implementation hearing with respect to
Tina was continued at the Department’s request because Tina
and her prospective adoptive parents had moved to a new home
that needed to be approved. The juvenile court held the selection
5
and implementation hearing on May 22, 2023. At the hearing,
the juvenile court found by clear and convincing evidence Tina
was adoptable and it would be detrimental to return her to the
parents’ custody. The court also found there were no exceptions
to termination of parental rights. The court terminated Mother’s
and Father’s parental rights to Tina and found adoption was the
appropriate permanent plan.
B. The Department’s ICWA Inquiry
On September 29, 2017 Father filed a parental notification
of Indian status form (Judicial Council form ICWA-020) stating
he had no Indian ancestry “as far as I know.” At the detention
hearing held that date, the juvenile court stated the court did not
have any reason to know the children were Indian children. On
January 4, 2018 Mother filed a parental notification of Indian
status form similarly stating she had no Indian ancestry as far as
she knew. At the initial jurisdiction hearing held on that date,
the Department’s attorney noted the juvenile court had
determined at the detention hearing that it had no reason to
know ICWA applied. The court responded, “So ICWA findings
have already been made.”
It does not appear any extended family members were
interviewed until 2022. The Department’s August 8, 2022 last
minute information for the court stated with respect to ICWA
that contact information for the grandparents for further ICWA
inquiry “appears to be either missing or out of date,” and the
Department requested additional time to complete its ICWA
inquiry. At a hearing on August 22 set for the selection and
implementation hearing, the juvenile court ordered “once again”
that the Department prepare an ICWA report for the court.
6
On September 27, 2022 the social worker interviewed
Father, paternal grandmother Phyllis P., paternal aunt Lisa H.,
and paternal aunt Keisha H. The three reported they “do not
know of” any Indian ancestry. Further, the paternal grandfather
died in 2015, and there were no other living family members to
interview.
Mother consistently told the social worker that she did not
have any Indian ancestry. The social worker attempted to reach
the maternal grandmother, Sylvia V., and left messages for her
on September 19, 27, and 28, 2022. On September 27, the social
worker spoke with Mother, who confirmed the contact
information for Sylvia. The Mother added that she would ask
Sylvia to call the social worker, and Mother suggested the social
worker call in the early morning because Sylvia was a teacher
who had “an early morning routine.” On September 28 the social
worker called Sylvia “in the morning,” but she did not answer.
Mother stated the maternal grandfather was deceased and there
were no other living family members for the Department to
contact.
At the October 19, 2022 continued selection and
implementation hearing, the juvenile court found the
Department had complied with its inquiry obligations under
ICWA as to Father. The Department’s attorney stated the ICWA
inquiry was pending because the Department was still trying to
reach Sylvia. The court asked Mother to assist the Department
in contacting Sylvia. Mother stated she had talked to Sylvia a
week earlier, and Sylvia said, “We don’t really have any ancestry,
Indian ancestry.” The court inquired about other living relatives,
to which Mother responded there were none. Based on this
colloquy, the court found a sufficient ICWA inquiry had been
7
made as to Mother. The court requested that Mother tell the
social worker if Mother learned of anyone else having information
about the children’s Indian ancestry and to provide the contact
information to the social worker.
At the February 28, 2023 selection and implementation
hearing for Mariah, Prince, and Maliyah, the juvenile court found
again that the Department had complied with its inquiry
obligations and, based on the inquiry, ICWA “does not apply as to
the Mother, the Father, or minors.” The court made the same
ICWA findings at the May 22, 2023 selection and implementation
hearing at which the court terminated Mother’s and Father’s
parental rights to Tina.
Mother timely appealed from the orders terminating her
parental rights as to the four children.
DISCUSSION
A. ICWA Inquiry and Notice Requirements
ICWA and California law require in dependency
proceedings that where the court knows or has reason to know an
Indian child is involved, notice must be given to the relevant
tribes. (25 U.S.C. § 1912(a); § 224.3, subd. (a); In re Isaiah W.
(2016) 1 Cal.5th 1, 5; In re Rylei S. (2022) 81 Cal.App.5th 309,
317 (Rylei S.); Cal. Rules of Court, rule 5.481(c)(1).) The notice
requirement is at the heart of ICWA because it “enables a tribe to
determine whether the child is an Indian child and, if so, whether
to intervene in or exercise jurisdiction over the proceeding.” (In
re Isaiah W., at p. 5; accord, In re Antonio R. (2022)
76 Cal.App.5th 421, 428 (Antonio R.).)
The juvenile court and the Department “have an
affirmative and continuing duty to inquire whether a child for
8
whom a petition under Section 300 . . . may be or has been filed,
is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah
W., supra, 1 Cal.5th at p. 9; In re J.C. (2022) 77 Cal.App.5th 70,
77 (J.C.).) The duty to inquire begins with initial contact
(§ 224.2, subd. (a)) and obligates the juvenile court and child
protective agencies to ask all relevant involved individuals
whether the child may be an Indian child. (Rylei S., supra,
81 Cal.App.5th at p. 316; J.C., at p. 77; In re H.V. (2022)
75 Cal.App.5th 433, 437.)
Section 224.2, subdivision (b), imposes on the Department a
duty to inquire whether a child in the Department’s temporary
custody is an Indian child, which “[i]nquiry includes, but is not
limited to, asking the child, parents, legal guardian, Indian
custodian, extended family members, others who have an interest
in the child, and the party reporting child abuse or neglect,
whether the child is, or may be, an Indian child . . . .” (See Cal.
Rules of Court, rule 5.481(a)(1) [the Department “must ask . . .
extended family members . . . whether the child is or may be an
Indian child”].) “The duty to develop information concerning
whether a child is an Indian child rests with the court and the
Department, not the parents or members of the parents’
families.” (Antonio R., supra, 76 Cal.App.5th at p. 430; see In re
K.R. (2018) 20 Cal.App.5th 701, 706 [“The juvenile court’s duty to
inquire . . . is independent of any obligation on the part of the
parents of the dependent child.”].)
“Where the Department fails to discharge its initial duty of
inquiry under ICWA and related California law, and the juvenile
court finds ICWA does not apply notwithstanding the lack of an
adequate inquiry, the error is in most circumstances . . .
prejudicial and reversible.” (Antonio R., supra, 76 Cal.App.5th at
9
p. 435; accord, In re D.B. (2022) 87 Cal.App.5th 239, 245 [“The
Department’s failure to comply with ICWA is prejudicial if ‘the
record indicates that there was readily obtainable information
that was likely to bear meaningfully upon whether the child is an
Indian child.’”]; J.C., supra, 77 Cal.App.5th at pp. 80-81.)
B. The Juvenile Court Failed To Ensure the Department
Complied with ICWA and Related California Law
Mother contends the Department and the juvenile court did
not satisfy their obligations under ICWA and related California
law because the Department failed to interview the eight
paternal uncles, the maternal grandmother (Sylvia), and the
maternal aunts and uncles. We agree the inquiry under ICWA
was inadequate and prejudicial.
As discussed, the social worker interviewed the paternal
grandmother and two paternal aunts about the children’s
ancestry. Mother argues there were eight paternal uncles, and
the Department made no effort to interview them. The record
supports Mother’s contention. Further, the social worker in
February 2019 interviewed paternal uncle Mark H. about
Father’s possible drug use, but the social worker did not inquire
about his Indian ancestry.
As to the maternal relatives, Mother argues the
Department did not make a sufficient effort to interview Sylvia
by, for example, sending her a letter, visiting her residence, or
leaving a note at her residence. Mother points to her own
statement from the October 19, 2022 hearing that Sylvia said the
family did not “really” have any Indian ancestry, suggesting the
use of the word “really” meant there may be some Indian
10
ancestry.3 Mother also asserts the Department made no effort to
locate and interview her four siblings. Although Mother reported
she had “minimal communication” with her siblings, the record
does not show, and the Department does not argue, that any
effort was made to locate and interview the siblings (or confirm
whether they were deceased, as suggested by Mother three years
later).
The Department argues in its respondent’s brief that there
is no reason to believe the eight paternal uncles would have any
information the paternal grandmother and two paternal aunts
did not. And as to Mother’s relatives, the Department argues
simply that a sufficient inquiry was made of Sylvia who, by not
returning the Department’s calls, demonstrated she “had no
interest in speaking to the social worker.”
Contrary to the Department’s position, section 224.2,
subdivision (b), obligated the Department to inquire of all
“extended family members” as to the children’s possible Indian
ancestry. (See J.C., supra, 77 Cal.App.5th at p. 77; Antonio R.,
supra, 76 Cal.App.5th at p. 431.) Under ICWA, the term
“extended family member” is “defined by the law or custom of the
3 Mother also argues that when the juvenile court inquired of
her at the October 19, 2022 hearing, the court should have asked
whether she was aware of any family members who could be
interviewed instead of the court’s more narrow question of
whether there were other maternal relatives who could have
information about the children’s Indian ancestry. Although the
court’s phrasing was not ideal, the social worker in the
September 27, 2022 interview more generally requested Mother
provide contact information for other family members to contact.
11
Indian child’s tribe or, in the absence of such law or custom, shall
be a person who has reached the age of eighteen 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 U.S.C. § 1903(2); see Welf. & Inst.
Code, § 224.1, subd. (c) [“As used in connection with an Indian
child custody proceeding, the terms ‘extended family member’
and ‘parent’ shall be defined as provided in Section 1903 of the
federal Indian Child Welfare Act.”].) Thus, the Department had
a duty to inquire of the paternal uncles, maternal grandmother,
and maternal aunts and uncles as to the children’s possible
Indian ancestry. The Department misconstrues its obligation
under ICWA and California law, arguing as to the paternal
uncles that “there is no reason to believe that they would have
information that their mother and sisters did not.” And the
Department fails to address at all why the maternal siblings
were not interviewed. The duty to inquire of extended family
members under section 224.2, subdivision (b), is not limited to
those the Department decides are likely to have information
other family members do not.
The Department appears to conflate its statutory inquiry
obligations with our harmless error analysis on appeal.4 As we
explained in Antonio R., supra, 76 Cal.App.5th at page 435, “[I]n
determining whether the failure to make an adequate initial
inquiry is prejudicial, we ask whether the information in the
hands of the extended family members is likely to be meaningful
in determining whether the child is an Indian child, not whether
4 The Department does not argue harmless error, asserting
only that there was no error.
12
the information is likely to show the child is in fact an Indian
child. In most circumstances, the information in the possession
of extended relatives is likely to be meaningful in determining
whether the child is an Indian child—regardless of whether the
information ultimately shows the child is or is not an Indian
child.” (Accord, In re D.B., supra, 87 Cal.App.5th at p. 245
[failure to inquire of paternal grandmother and great-
grandmother was prejudicial error because their responses to an
ICWA inquiry would shed meaningful light on whether there was
reason to believe D.B. is an Indian child]; In re Ricky R. (2022) 82
Cal.App.5th 671, 680 [failure to inquire of maternal
grandmother, maternal aunt, and paternal grandmother was
prejudicial error where extended family members were “readily
available, and their responses would ‘shed meaningful light on
whether there is reason to believe’” the children were Indian
children].)
It may well be that further inquiry of the eight paternal
uncles would not have resulted in any additional information
regarding the children’s possible Indian ancestry given the
statements from Father, the paternal grandmother, and two
paternal aunts that the children did not have any Indian
ancestry. But this is not the case with respect to the maternal
relatives. The social worker never attempted to identify or
interview the maternal aunts and uncles. Even if Sylvia’s
statement through Mother that Sylvia was not aware of any
Indian ancestry may have satisfied the Department’s duty to
inquire of Sylvia, the Department should have made a greater
effort to obtain information from Sylvia (for example, going to her
home or place of work) regarding potential Indian ancestry. And
the Department should have obtained contact information for the
13
four maternal aunts and uncles or other family members who
may have information regarding the children’s possible Indian
ancestry.
The juvenile court therefore erred in finding ICWA did not
apply to the proceedings and in failing to ensure the Department
complied with its duty of inquiry. (J.C., supra, 77 Cal.App.5th at
p. 74; Antonio R., supra, 76 Cal.App.5th at p. 432.)
DISPOSITION
The February 28 and May 22, 2023 orders terminating
Mother’s and Father’s parental rights are conditionally affirmed.
We remand for the Department and the juvenile court to comply
with the inquiry and notice provisions of ICWA and California
law consistent with this opinion, including further inquiry of
Sylvia and an attempt to locate and interview the maternal and
paternal aunts and uncles. If the court finds Mariah, Prince,
Maliyah, and Tina are Indian children, it shall conduct a new
section 366.26 hearing, as well as all further proceedings, in
compliance with ICWA and related California law. If not, the
court’s original section 366.26 orders will remain in effect.
FEUER, J.
We concur:
SEGAL, Acting P. J. MARTINEZ, J.
14