In re A.M. CA2/5 ( 2024 )

Filed 1/9/24 In re A.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.M., a Person Coming B329684
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 21CCJP04292A)
Plaintiff and Respondent,
v.
M.L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lucia J. Murillo, Temporary Judge.
Conditionally reversed with directions.
Carolyn S. Hurley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, and Jane
Kwon, Principal Deputy County Counsel, for Plaintiff and
Respondent.
Mother appeals from the May 23, 2023 order terminating
parental rights under Welfare and Institutions Code section
366.261 as to A.M. (minor). Mother contends the juvenile court
erroneously failed to ensure compliance with the inquiry
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
In November 2021, the juvenile court declared minor a
dependent under section 300, subdivisions (a) and (b), based on
risks posed by domestic violence between mother and F.M.
(father), and father’s substance abuse.2 The court removed minor
from parental custody and ordered reunification services.
During the dependency proceedings mother and father both
indicated they had no Indian ancestry. The court found ICWA
did not apply. The Los Angeles County Department of Children
and Family Services (Department) was in regular contact with
three maternal relatives—maternal grandmother, step-
grandfather, and aunt—who were caring for minor during the
course of the dependency proceedings, but never asked any of
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
2 Father is not a party to this appeal.
2
them if they had any information about possible Indian ancestry.
The Department also did not inquire about Indian ancestry
despite some contact with paternal grandmother and possibly a
different maternal aunt.
After reunification efforts failed, the juvenile court
terminated reunification services on May 31, 2022, and scheduled
a permanency planning hearing under section 366.26. At the
section 366.26 hearing on May 23, 2023, the court terminated
parental rights as to minor. 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.)
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 and federal law require the
court to ask parties and participants at the outset of an
involuntary child custody proceeding whether they have reason to
3
know a minor is an Indian child, and to “instruct the parties to
inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.” (25 C.F.R.
§ 23.107(a); § 224.2, subd. (c); see Benjamin M., at p. 741.) Initial
inquiry also includes requiring each party to complete the
parental notification of Indian status (ICWA-020) form. (Cal.
Rules of Court, rule 5.481(a)(2)(C).)
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 “[e]xtended 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).)
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, and it asks us to either conditionally affirm or reverse the
juvenile court’s order terminating parental rights, with
instructions 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
4
evidence that the Department asked available extended family
members—specifically maternal grandparents, paternal
grandmother, and maternal aunt—about the possibility that
minor has Indian ancestry. (See, e.g., 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]; In re Benjamin M., supra,
70 Cal.App.5th at p. 741 [court must ask each participant in child
custody proceeding].)
DISPOSITION
The juvenile court’s May 23, 2023 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 grandparents, paternal
grandmother, and maternal aunt, about the possibility of 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
minor. 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
5
shall make all necessary orders to ensure compliance with ICWA
and related California law.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
6