In re Gavin S. CA2/8 ( 2024 )

Filed 2/7/24 In re Gavin S. CA2/8
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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 EIGHT
In re Gavin S., a Person Coming B327795
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 19CCJP01710A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Eric S.,
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.
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 Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Eric S. (Father) appeals from the order terminating
parental rights over his child, Gavin S., under Welfare and
Institutions Code1 section 366.26. Father’s sole contention is
that the juvenile court and the Los Angeles County Department
of Children and Family Services (DCFS) failed to comply with the
inquiry requirements of the Indian Child Welfare Act of 1978
(ICWA; 25 U.S.C. § 1901 et seq.) and related California law.
DCFS concedes there was ICWA inquiry error, and requests the
case be remanded for the limited purpose of ensuring proper
compliance with ICWA. Thus, we conditionally affirm the order
terminating parental rights and remand for ICWA compliance.
FACTUAL AND PROCEDURAL BACKGROUND
Father and K.S. (Mother) are the parents of Gavin.
On March 15, 2019, DCFS filed a section 300 petition based on
Mother’s substance abuse and Father’s history of child sexual
abuse and mental health issues. The petition included an Indian
Child Inquiry Attachment (ICWA-010) form indicating that
Gavin had no known Indian ancestry.
At the March 18, 2019 detention hearing, Mother appeared
and submitted a Parental Notification of Indian Status (ICWA-
020) form in which she indicated she did not have any Indian
ancestry as far as she knew. Based on Mother’s form, the
juvenile court found that ICWA did not apply. The court made
detention findings for Gavin, and set the matter for an
adjudication hearing.
1 Unless otherwise stated, all further undesignated statutory
references are to the Welfare and Institutions Code.
2
DCFS initially placed Gavin with his maternal aunt, K.B.,
and later with his maternal grandmother, P.H. In April 2019,
DCFS interviewed the parents for its jurisdictional and
dispositional report. During their interviews, both Mother and
Father denied any Indian ancestry.
On April 30, 2019, Father made his first appearance in the
case. At that time, he submitted an ICWA-020 form in which he
indicated he did not have any Indian ancestry as far as he knew.
Based on Father’s form, the court again found that ICWA did not
apply.
On June 11, 2019, the juvenile court held a combined
jurisdictional and dispositional hearing. The court sustained an
amended section 300 petition, removed Gavin from the custody of
his parents, and granted reunification services to both parents.
At the 12-month review hearing held on October 15, 2020,
the court released Gavin to Mother based on her progress with
her reunification services. However, a few months later, DCFS
filed a section 387 petition as a result of Mother’s recurrent
substance abuse. Gavin was placed back in the home of his
maternal grandmother.
On June 22, 2021, the juvenile court ordered Gavin
removed from parental custody. The court bypassed reunification
services for both parents and set the matter for a section 366.26
hearing. Following several continuances, the court ordered
DCFS to provide an update on placement and ICWA.
In a status review report, DCFS stated that on November
14, 2022, it spoke with Father and the maternal grandmother,
P.H., regarding ICWA. At that time, both Father and P.H.
denied “any form of ICWA.”
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Over the course of the proceedings, DCFS also had contact
with other extended family members. DCFS met with Gavin’s
maternal aunt, K.B., while the child was in her care, and later
considered her for a possible legal guardianship. At one point,
DCFS held a child and family team meeting with Gavin’s
paternal aunt, Amy W., and approved his paternal cousin, Jenny
C., to monitor Father’s visits. There is no indication in the record
that DCFS asked any of these relatives if Gavin had any Indian
ancestry.
On February 27, 2023, the juvenile court held the section
366.26 hearing. The court again found that ICWA did not apply,
and that there was no reason to know that Gavin was an Indian
child. The court terminated parental rights over Gavin and
ordered adoption as the child’s permanent plan. The court
designated Gavin’s maternal grandmother as the prospective
adoptive parent.
Father filed a timely appeal.
DISCUSSION
On appeal, Father contends, and DCFS concedes, that the
juvenile court failed to ensure compliance with ICWA’s inquiry
provisions because no inquiry was made of available extended
family members about Gavin’s possible Indian ancestry.
I. Governing law
ICWA mandates that “[i]n any involuntary proceeding in a
[s]tate court, where the court knows or has reason to know that
an Indian child is involved, the party seeking the foster care
placement of, or termination of parental rights to, an Indian child
shall notify the parent or Indian custodian and the Indian child’s
tribe” of the pending proceedings and the right to intervene.
(25 U.S.C. § 1912(a).) Similarly, California law requires notice to
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the child’s parent, Indian custodian, if any, and the child’s tribe if
there is “reason to know . . . that an Indian child is involved” in
the proceeding. (§ 224.3, subd. (a).) Both juvenile courts and
child protective agencies “have an affirmative and continuing
duty to inquire whether a child for 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. (2016) 1 Cal.5th 1, 14.)
At the first appearance of each party, the juvenile court
must inquire whether that party “knows or has reason to know
that the child is an Indian child,” and must “instruct the parties
to inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.” (§ 224.2,
subd. (c).) Additionally, when a child protective agency takes a
child into temporary custody, it must inquire of a nonexclusive
group that includes the child, the parents, and extended family
members “whether the child is, or may be, an Indian child.” (Id.,
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).)
“If the [juvenile] court makes a finding that proper and
adequate further inquiry and due diligence . . . 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.” (§ 224.2, subd. (i)(2).) We generally review the
juvenile court’s ICWA findings under the substantial evidence
test, “ ‘ “which requires us to determine if reasonable, credible
evidence of solid value supports the court’s order.” ’ ” (In re
Josiah T. (2021) 71 Cal.App.5th 388, 401.)
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II. Remand is required for ICWA compliance
In this case, DCFS acknowledges that it had contact with
several of Gavin’s maternal and paternal extended family
members over the course of the proceedings. These relatives
included the child’s maternal grandmother, P.H., his maternal
aunt, K.B., his paternal aunt, Amy W., and his paternal cousin,
Jenny C. The record reflects, however, that apart from the
maternal grandmother, DCFS did not ask any of these extended
family members whether Gavin is or might be an Indian child.
In the absence of any evidence that DCFS complied with its
duty to inquire of known and available extended family members,
as required by section 224.2, subdivision (b), the juvenile court’s
finding that there was no reason to know Gavin was an Indian
child was not supported by substantial evidence. (See, e.g., In re
Jayden G. (2023) 88 Cal.App.5th 301, 311 [ICWA error where
DCFS failed to inquire of available extended family members for
whom it had contact information]; In re J.W. (2022) 81
Cal.App.5th 384, 389 [ICWA error where DCFS did not ask
mother’s extended family members about their Indian ancestry,
despite having contact with maternal grandmother, uncle, and
aunt]; In re M.M. (2022) 81 Cal.App.5th 61, 70, review granted
Oct. 12, 2022, S276099 [ICWA error where no inquiry was made
of extended family members with whom DCFS was in contact].)
Appellate courts have adopted several divergent standards
for deciding whether an ICWA inquiry error is prejudicial. (See
In re K.H. (2022) 84 Cal.App.5th 566, 611–618 [describing four
approaches for assessing prejudice at the inquiry stage and
adopting a fifth, injury-focused standard].) In this case, however,
we need not decide which standard applies. DCFS concedes the
matter should be remanded for the agency to conduct an ICWA
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inquiry of known and available extended family members, and if
required, to proceed in accordance with ICWA’s notice provisions.
Additionally, as a majority panel of this division has
reasoned, placing the child with extended family members does
not obviate the need for remand because “[e]ven in such cases,
tribes may assert tribal jurisdiction or may formally intervene in
state court.” (In re S.S. (2023) 90 Cal.App.5th 694, 711.)
“A ‘tribe’s rights are independent of the rights of other parties.’ ”
(Ibid.) Under these circumstances and in light of DCFS’s
concession, we agree that remand for compliance with ICWA and
related California law is the proper remedy.
DISPOSITION
The juvenile court’s section 366.26 order terminating
parental rights over Gavin is conditionally affirmed, and the
matter is remanded for compliance with ICWA and related
California law. On remand, the court must promptly direct
DCFS to comply with its duty of inquiry in accordance with
section 224.2 by interviewing known and available extended
family members about the child’s possible Indian status. If that
information establishes a reason to know that an Indian child is
involved, notice must be provided in accordance with ICWA and
section 224.3. DCFS shall thereafter notify the court of its
actions and file certified mail return receipts for any ICWA
notices that were sent, together with any responses received.
The court must determine, on the record, whether the ICWA
inquiry and notice requirements have been satisfied and whether
Gavin is an Indian child. If the court determines that Gavin is
an Indian child, it must vacate its order and conduct a new
section 366.26 hearing, as well as all further proceedings, in
7
accordance with ICWA and related California law. If not, the
court’s original section 366.26 order shall remain in effect.
VIRAMONTES, J.
I CONCUR:
WILEY, J.
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STRATTON, P. J., Dissenting
These proceedings commenced on March 2019. No doubt
DCFS erred in failing to question extended family members
despite having contact information for them. However, I
conclude the error was harmless because Gavin’s designated
proposed adoptive parent is his maternal grandmother, with
whom he has been placed for most of the last five years.
In enacting ICWA, Congress found “that an alarmingly
high percentage of Indian families are broken up by the removal,
often unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high
percentage of such children are placed in non-Indian foster and
adoptive homes and institutions.” (25 U.S.C. § 1901(4).) ICWA
reflects the intent of Congress “to protect the best interests of
Indian children and to promote the stability and security of
Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their
families and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture, and
by providing for assistance to Indian tribes in the operation of
child and family service programs.” (25 U.S.C. § 1902.) The
court is obligated to ask each “participant” in the proceedings
whether they have reason to believe the child is an Indian child
and to instruct the parties to inform the court if they
subsequently receive information that provides a reason to know
the child is an Indian child. (In re Austin J. (2020)
47 Cal.App.5th 870, 882–883, superseded by statute on other
grounds as stated in In re E.C. (2022) 85 Cal.App.5th 123, 147;
see 25 C.F.R. § 23.107(a) (2022).)
As our Supreme Court has recognized, “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.) In enacting these provisions, “ ‘Congress was concerned not
solely about the interests of Indian children and families, but also
about the impact on the tribes themselves of the large numbers of
Indian children adopted by non-Indians.’ ” (Id. at p. 9.)
The concern about separating Indian children from their
Indian families, heritage and culture was the topic of extensive
Congressional hearings when ICWA was enacted. As one
commentator wrote, the “ ‘wholesale separation of Indian
children from their families is perhaps the most tragic and
destructive aspect of American Indian life today.’ ” (Atwood,
Flashpoints Under the Indian Child Welfare Act: Toward a New
Understanding of State Court Resistance (2002) 51 Emory L.J.
587, 601, cited in In re A.C. (2022) 75 Cal.App.5th 1009, 1014.)
ICWA authorizes states to provide even more protection
than the federal statute provides. In 2006, the California
legislature enacted parallel statutes to affirm ICWA’s purposes
and mandate compliance with ICWA in all Indian child custody
proceedings. (In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.)
In California, the child protection agency is obligated to ask “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,
2
an Indian child.” (Welf. & Inst. Code, § 224.2, subd. (b); In re
Dominick D. (2022) 82 Cal.App.5th 560, 566.)
Here, DCFS did not fulfill its duties under Welfare and
Institutions Code section 224.2. This was error. But the next
question is whether the error was prejudicial. A prerequisite to
reversal of a trial court’s decision under California law is a
showing of miscarriage of justice. (Cal. Const., art. VI, § 13.)
I find no miscarriage of justice, that is, no prejudice. ICWA
itself sets out placement priorities. Section 1915 of title 25 of the
United States Code provides that in any adoptive placement of an
Indian child under state law, “a preference shall be given, in the
absence of good cause to the contrary, to a placement with [¶]
(1) a member of the child’s extended family; [¶] (2) other members
of the Indian child’s tribe; or [¶] (3) other Indian families.”
(25 U.S.C. § 1915(a).) Extended family under ICWA includes
grandparents. (25 U.S.C. § 1903(2).)
In this case, adoption by maternal grandmother
implements ICWA’s first preference. Gavin is in no danger of
being separated from his biological family, the evil ICWA was
enacted to prevent. (In re J.W. (2022) 81 Cal.App.5th 384, 391.)
Moreover, even if a tribe had intervened, it would be bound by
the placement priorities of the statute if, as the court found here,
the first placement priority was in the minor’s best interest.
Given that Gavin’s placement with maternal grandmother has
extended over several years without incident and the proposed
adoption does not eviscerate his connection to his biological
family, I am hard pressed to conclude that a tribe’s inability to
participate trumps the stability and benefits afford by adoption
by a longtime caregiver who is his blood relative.
3
I cannot find that ICWA and its California counterpart
were intended to elevate a tribe’s right to participate over this
child’s interest in a secure and safe placement within the bosom
of his own biological family. Tribes are included in the
proceedings to ensure that no unreasonable and unjustified
separation from biological family members occurs. Nothing like
that happened here. That the tribe may be the unofficial real
party in interest does not supersede the child’s best interests. I
oppose delaying this biological-family adoption so that a tribe can
come in and suggest someone else within the first preference
category. Neither the interests of the tribe nor of Gavin have
been prejudicially trampled.
STRATTON, P. J.
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