In re Baby Girl G. CA2/3 ( 2024 )

Filed 5/13/24 In re Baby Girl G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re BABY GIRL G., a Person B331750
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 22PSJP00047A
Plaintiff and Respondent,
v.
A.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stacy Wiese, Judge. Conditionally affirmed and
remanded with directions.
Robert McLaughlin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
A.C. (father) appeals from the juvenile court’s order
terminating his parental rights to his daughter, Baby Girl G. (the
minor). The only issue father raises on appeal is that the
Department of Children and Family Services (Department) failed
to conduct an adequate initial inquiry under state law (Welf. &
Inst. Code, § 224 et seq.)1 implementing the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.) because it did not, despite
being ordered to do so by the court, interview anyone on the
paternal grandfather’s side of the family about the minor’s
possible Indian ancestry. We conditionally affirm the order
terminating father’s parental rights but remand the matter for
the limited purpose of ensuring compliance with ICWA and
related California law.
1 All undesignated statutory references are to the Welfare and
Institutions Code.
2
FACTS AND PROCEDURAL BACKGROUND
1. Proceedings Leading to Termination of Parental
Rights2
In April 2022, the minor was detained from mother3 and
father4 on allegations of general neglect after mother, who was
homeless, gave birth to the minor under a bridge in Pomona.
Paramedics transported the minor, accompanied by father, to a
nearby hospital. Mother refused medical attention and did not go
to the hospital with the minor.
Mother and father have another child together, T.C., but
their parental rights had previously been terminated and T.C.
lived with the maternal aunt, Christina. Family members
reported that mother had a history of untreated mental illness
(bipolar disorder and schizophrenia), and that mother and father
had a history of drug use.
In August 2022, the court sustained an amended petition
finding true three allegations under section 300, subdivision (b),
relating to domestic violence with mother as the aggressor,
mother’s untreated serious mental health conditions, and
substance abuse by mother which rendered her unable to care for
the minor. The court sustained similar allegations under
section 300, subdivision (j), and an additional allegation that the
2 Because father’s sole argument on appeal relates to ICWA
compliance, we include only a brief outline of the proceedings below.
3 Mother is not a party to this appeal.
4 Although the identity of the minor’s biological father was initially
unknown, in July 2022 the court found that father is the minor’s
biological father based on the results of a DNA test.
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parents exposed the minor’s sibling, T.C., to marijuana smoke
and left drug paraphernalia within her reach when T.C. was an
infant. Based on those allegations, the court found the minor to
be a dependent of the juvenile court.
In October 2022, the court ordered the minor removed from
both parents and denied further reunification services. The court
set the matter for a permanency planning hearing under section
366.26.5
In August 2023, father filed a petition under section 388
seeking additional family reunification services. The court set the
matter for hearing.
In September 2023, the court heard and denied father’s
section 388 petition. On the same date, the court held the
permanency planning hearing. The court found the minor was
adoptable and that no exceptions to adoption applied. The court
therefore terminated the parental rights of both parents and
ordered adoption as the permanent plan.
Father timely appeals.
2. ICWA Investigation
At the outset of these proceedings, mother’s whereabouts
were unknown, and the identity of the biological father was not
yet known. (Father was an alleged father at that time.) The court
did not make any finding under ICWA at the detention hearing.
Early in its investigation, the Department was in contact
with maternal relatives—Christina and the maternal
grandmother—who indicated possible Indian ancestry on the
5 The permanency planning hearing was continued several times to
allow the Department to continue its inquiries under ICWA.
4
maternal family including that prior generations had lived on a
reservation in Colorado.6 Neither mother nor father was in
contact with the Department during the initial stages of these
proceedings and the Department had not yet contacted any
members of the paternal family, likely because father’s DNA test
to determine paternity had not yet been conducted.
In late May 2022, father filed an ICWA-020 form denying
Indian ancestry. In addition, father advised the Department that
he grew up with foster parents, a younger sister (P.S.), and an
older brother (F.C.) after his biological father (the paternal
grandfather) severely abused him when he was three to four
years old. Despite the abuse, father said he had been in contact
with the paternal grandfather who lived in La Puente and that
he was “trying to make things work.” Father reported several
mental health conditions (“PTSD, OCD, Anxiety, nervous
condition, Bipolar, and mild Schizophrenia”) and stated that his
mother (the paternal grandmother) is his caretaker. The
Department was also in touch with the maternal grandmother
who advised that the paternal grandmother was in frequent
contact with her and with both father and mother.
In July 2022, the Department advised the court that in the
prior dependency proceeding as to the minor’s sibling T.C., the
court found there was no reason to know T.C. was an Indian
child. Father again reported that he had no Indian ancestry.
In late July 2022, the court asked the paternal
grandmother whether her family had any Indian ancestry, which
6 Father does not claim any error relating to the Department’s
investigation of the maternal side of the family.
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she denied. The court concluded it had no reason to know the
minor was an Indian child and found ICWA did not apply.
In early September 2022, the court directed the
Department to further investigate both parents’ possible Indian
ancestry due to recent legal developments. The court noted, “it
looks like[ ] both mother and father have possible ICWA
ancestry.” The court acknowledged father had denied Indian
ancestry but specifically instructed the Department to contact the
paternal grandfather regarding his heritage. But the Department
only contacted the paternal grandmother, who again reported no
Indian heritage in her family.
At the disposition hearing in October 2022, father and the
paternal grandmother again denied any Indian heritage. The
court again found it had no reason to know the minor was an
Indian child and found ICWA inapplicable.
In February 2023, father and the paternal grandmother
attended a court hearing. Father denied Indian ancestry and the
paternal grandmother again stated that her family had no Indian
heritage. The Department subsequently reported that the
paternal grandmother “denied any ICWA on the paternal side of
the family.”
In August and September 2023, the court again found
ICWA inapplicable.
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DISCUSSION
1. Duty of Inquiry
State law imposes on social services agencies and juvenile
courts (but not parents) an “affirmative and continuing duty to
inquire” whether a child in a dependency proceeding “is or may
be an Indian child.” (§ 224.2, subd. (a).) When the Department
takes a child into temporary custody, its duty of initial inquiry
“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.” (§ 224.2, subd. (b).) Extended family members include
adults who are the 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); § 224.1,
subd. (c) [adopting federal definition].)
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.”
2. The initial inquiry was inadequate and prejudicial.
Father and the paternal grandmother denied Indian
heritage when the Department interviewed them and when the
court inquired of them. Father also denied Indian heritage on his
ICWA-020 form. Based on these denials, the court found it had no
reason to know that the minor is an Indian child. Father did not
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challenge that finding below but now contends the court and the
Department failed to comply with their initial duty of inquiry by
failing to ask available paternal relatives about possible Indian
ancestry. Specifically, father notes the court ordered the
Department to contact the paternal grandfather as part of its
ICWA investigation. The record indicates the paternal
grandfather was alive and father had recently been in contact
with him. But the record does not reflect that the Department
ever asked for the paternal grandfather’s contact information or
made any attempt to locate or contact him. Nor is there any
indication that the Department attempted to contact the paternal
aunt and uncle, who were identified by father, to determine if
they were aware of any Indian heritage on the paternal
grandfather’s side of the family. The Department does not argue
otherwise.
Our appellate courts are divided on the appropriate
analytical model to determine the adequacy of an ICWA
investigation and potential prejudice from alleged deficiencies.
The issue is pending before our Supreme Court.
In Ezequiel G., a majority of this panel concluded that
under some circumstances, a juvenile court may properly find the
agency has conducted an adequate inquiry to determine whether
a child is or may be an Indian child, even if it does not interview
any extended family members. (In re Ezequiel G. (2022) 81
Cal.App.5th 984.) The Ezequiel G. majority explained that the
focus of the juvenile court’s analysis is not on the number of
individuals interviewed, but on whether the agency’s ICWA
inquiry has yielded reliable information about a child’s possible
tribal affiliation. (Id. at p. 1009.) The Ezequiel G. court also
concluded the juvenile court’s determination of whether there is
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reason to know a child is an Indian child is reviewed for
substantial evidence, but the juvenile court’s finding under
section 224.2, subdivision (i)(2) as to whether a “ ‘proper and
adequate further inquiry and due diligence as required in this
section have been conducted,’ ” is reviewed for an abuse of
discretion. (Ezequiel G., at p. 1004.)
Other courts have concluded a juvenile court’s “no ICWA”
finding is necessarily unsupported by substantial evidence if the
agency failed to interview available extended family members,
but they disagree about when such failure is prejudicial error
requiring reversal. “[T]he varying standards for prejudice
include[e] these four: (1) deficient inquiry necessarily infects the
juvenile court’s ruling and reversal is automatic and required …
(see, e.g., In re G.H. (2022) 84 Cal.App.5th 15, 32; In re A.R.
(2022) 77 Cal.App.5th 197, 207; In re J.C. (2022) 77 Cal.App.5th
70, 80; In re Antonio R. (2022) 76 Cal.App.5th 421, 432–437; In re
Y.W. (2021) 70 Cal.App.5th 542, 556); (2) deficient inquiry is
harmless unless the record below demonstrates, or the parent on
appeal makes an offer of proof or other affirmative assertion of,
Indian heritage … (In re A.C. (2021) 65 Cal.App.5th 1060, 1069);
(3) a deficient inquiry requires reversal where the record
indicates that there was readily obtainable information that was
likely to bear meaningfully upon whether the child is an Indian
child (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744); and
(4) deficient inquiry is harmless unless the record contains
information suggesting a ‘reason to believe’ the child is an Indian
child (In re Dezi C. (2022) 79 Cal.App.5th 769, 779, review
granted Sept. 21, 2022, S275578).” (In re V.C. (2023) 95
Cal.App.5th 251, 260–261.)
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We need not discuss the divergent standards in detail here.
Excepting the presumptive affirmance approach, we conclude
that the application of the tests previously employed by a
majority of this panel as well as our fellow appellate courts
mandates a remand for further proceedings in this case.
The Department failed to investigate whether the paternal
grandfather has Indian heritage. Although father denied that he
had Indian heritage, it is uncertain whether he would have
known about any such heritage on his father’s side. As noted,
father was raised by foster parents from a very young age and
had minimal contact with the paternal grandfather due to abuse
suffered at his hands. Thus, there is reason to believe that his
account might not be fully informed. (Cf. In re Dezi C., supra, 79
Cal.App.5th at p. 779, review granted [noting a court may have
reason to believe a child is an Indian child “if the record indicates
that one or both of the parents is adopted and hence their self-
reporting of ‘no heritage’ may not be fully informed”].) Perhaps it
was for this reason that the court directed the Department to
contact the paternal grandfather. But, for reasons not revealed by
the record, it appears the Department made no attempt to do so.
Further, the maternal grandmother indicated several times
in court that her family did not have Indian heritage. The court
did not ask her about the paternal grandfather’s family, however,
and although the Department reported on one occasion that she
said there was no Indian heritage on the paternal side, no detail
was provided and nothing in the record suggests that the
paternal grandmother had any relevant information about the
paternal grandfather’s family.
In sum, substantial evidence does not support the court’s
finding that the Department conducted an adequate initial
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inquiry and exercised due diligence. Specifically, the Department
failed to make a reasonable inquiry about the paternal
grandfather’s family despite the court’s proper directive that it do
so. Because we are unable to find this error harmless, we remand
the matter for further inquiry as to the paternal grandfather’s
family and compliance with ICWA.
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DISPOSITION
The order terminating parental rights is conditionally
affirmed. The case is remanded to the court to order the
Department to comply immediately with the inquiry provisions of
Welfare and Institutions Code section 224.2 as to the paternal
grandfather’s family. After ensuring the Department has
complied with the inquiry, and, if applicable, notice provisions of
ICWA and related California law, the 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 conduct further
proceedings as required under ICWA and related state law.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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