In re M.D. CA2/5 ( 2023 )

Filed 10/2/23 In re M.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re M.D., a Person Coming Under B326787
the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County Super.
DEPARTMENT OF CHILDREN Ct. No. 20CCJP04409B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Marc D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Tamara E. Hall, 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 David Michael Miller, Deputy
County Counsel, for Plaintiff and Respondent.
________________________
Marc. D. (father) appeals from the juvenile court’s order
terminating his parental rights to M.D. (son). He contends the
Department of Children and Family Services (Department) failed
to comply with its initial inquiry duty under Welfare and
Institutions Code section 224.2, subdivision (b)—the California
statute implementing the Indian Child Welfare Act of 1978
(ICWA) (25 U.S.C. § 1901 et seq.).1 In lieu of a respondent’s brief,
the Department has filed a letter acknowledging father’s
contentions have merit. Accordingly, we conditionally affirm the
order terminating parental rights and remand for the
Department to expand its initial ICWA inquiry and for the
juvenile court to determine, in light of that inquiry, whether
ICWA applies.
PROCEDURAL BACKGROUND2
On August 21, 2020, the Department filed a dependency
petition alleging jurisdiction over son, then a newborn, under
section 300, subdivision (b)(1). The petition alleged that Yolanda
U. (mother) had a history of substance abuse, that she and son
had tested positive for methamphetamine at son’s birth (count b-
1), and that father knew about the substance abuse but failed to
protect son from it (count b-2).3 As to the second count, the
petition also alleged mother had mental and emotional problems
that prevented her from being able to care for son and his half-
brother. On September 28, 2020, the Department amended the
1 Undesignated statutory references are to the Welfare &
Institutions Code.
2 Due to the limited nature of this appeal, we recite only the
background relevant to the ICWA inquiry.
3 Mother is not a party to this appeal.
2
petition to add two additional counts, alleging that the parents
had a history of engaging in domestic violence (count b-3) and
that father’s criminal history, which including human trafficking
and drug convictions, posed a risk of harm to son.
At the December 4, 2020 jurisdiction and disposition
hearing, the court amended the petition by interlineation to
remove father as an offending party in count b-1 and to dismiss
count b-2. Mother executed a waiver of rights and pled no contest
to the petition. The court sustained the petition as amended, as
to both parents, declared son a dependent of the court, removed
him from parental custody, placed him in foster care, and ordered
the Department to provide reunification services to both parents.
At various points during the proceedings, father, mother,
and the maternal grandmother all denied having Indian
ancestry. The Department’s reports do not disclose that any
other relative was asked whether son is, or might be, an Indian
child—but the reports do reveal the existence of a variety of
extended family members: (1) maternal grandmother;
(2) maternal cousin Sara; (3) a second maternal cousin; (4) a
paternal grandmother; (5) a paternal uncle; and (6) a paternal
great-aunt.4 Nevertheless, the court found ICWA did not apply.
Reunification efforts failed, the trial court denied a section
388 petition to reinstate reunifications services, and on
January 11, 2023, the juvenile court found son adoptable and
terminated both parents’ parental rights. Father filed a timely
notice of appeal.
4 The record does not reveal whether the Department was in
contact with any relatives other than the maternal grandmother.
3
DISCUSSION
Father contends the Department did not conduct an
adequate initial inquiry under ICWA because it did not contact
any of his relatives. The Department concedes “it should have, at
a minimum, attempted to contact paternal relatives regarding
Indian ancestry, and the ICWA’s inquiry provisions were not
followed with regard to these extended family members.”
Accordingly, the Department asks us to conditionally affirm the
order terminating parental rights and remand the matter for
additional ICWA inquiry.
We agree there was noncompliance with the inquiry
requirements of ICWA and related California provisions. Here,
the Department asked mother and the maternal grandmother
about their Indian heritage but did not similarly inquire of
father’s available relatives. (§ 224.2, subd. (b); In re H.V. (2022)
75 Cal.App.5th 433, 438; In re Benjamin M. (2021)
70 Cal.App.5th 735, 744.) Although the question of whether
father must establish that this error was prejudicial—and, if so,
what standard of prejudice applies—is pending before the
Supreme Court, we adopt this court’s previous holding that no
showing of prejudice is required under similar facts. (In re H.V.,
at p. 438 & fn. 4; see In re Dezi C. (2022) 79 Cal.App.5th 769,
777–779, review granted Sept. 21, 2022, S275578 [discussing
three competing approaches and adopting a fourth].)
DISPOSITION
The order terminating parental rights is conditionally
affirmed, and the matter is remanded to the juvenile court for the
limited purpose of ensuring compliance with the inquiry
provisions of Welfare and Institutions Code section 224.2. The
court shall order the Department to inquire into son’s Indian
4
ancestry by making reasonable efforts to interview available
extended family members. Nothing in this disposition precludes
the court from ordering additional inquiry of available extended
relatives or others having an interest in the child. If, after ICWA
compliance, the juvenile court issues an order determining that
ICWA does not apply, the order terminating parental rights shall
remain in effect. If the court determines ICWA applies, it shall
vacate the order and proceed in accordance with ICWA and
related state law.
RUBIN, P. J.
I CONCUR:
KIM, J.
5
In re M.D.
B326787
BAKER, J., Dissenting
I would affirm because substantial evidence supports the
juvenile court’s finding that the Indian Child Welfare Act 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.