In re J.D. CA2/3 ( 2022 )

Filed 5/6/22 In re J.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re J.D. et al., Persons Coming B314343
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. Nos. DK19673A,
DEPARTMENT OF CHILDREN DK19673B
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Veronica D.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Diane C. Reyes, Judge Pro Tempore of the Juvenile
Court. Conditionally affirmed and remanded with directions.
Jesse F. Rodriguez, under appointment by the Court
of Appeal, for Defendant and Appellant.
Tarkian & Associates and Arezoo Pichvai for Plaintiff
and Respondent.
_________________________
Mother Veronica D. appeals from the juvenile court’s orders
terminating her parental rights to her children J.D. (born July
2014) and R.D. (born July 2016). Mother contends the orders
must be reversed because the Los Angeles County Department
of Children and Family Services (Department) failed to comply
with its duty of initial inquiry under state law (Welf. & Inst.
Code, § 224 et seq.) implementing the Indian Child Welfare Act
of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) when it did not ask
extended family members if the children had Indian ancestry.1
We agree with mother that section 224.2, subdivision (b)
(section 224.2(b)) required the Department to interview identified
and available maternal extended family members. It did not.
Accordingly, we conditionally affirm the orders terminating
mother’s and father’s parental rights and remand the matter
for the limited purpose of requiring the Department to comply
with section 224.2 and, if necessary, the notice provisions of
ICWA and related California law.
BACKGROUND
1. Proceedings leading to termination of parental rights
The Department became involved with the family in
September 2016 when it responded to an allegation that J.D.’s
and R.D.’s father had sexually abused then-two-year-old J.D.,
and that then-two-month-old R.D. was at risk of abuse. At
the time, another dependency case was pending against father
concerning his alleged sexual abuse of his daughter—J.D.
1 Undesignated statutory references are to the Welfare
and Institutions Code. Because ICWA uses the term “Indian,”
we do the same for consistency. (In re Benjamin M. (2021)
70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
2
and R.D.’s half-sister.2 Parents also reportedly had a domestic
violence encounter in July 2016. The Department obtained
a removal order and detained the children from father.
The Department filed a section 300 petition, and in
February 2017 the juvenile court sustained allegations that
J.D. and R.D. were at substantial risk of serious physical harm
due to parents’ history of domestic violence; father’s history of
and current illicit drug use and mother’s failure to protect the
children; father’s mental and emotional problems; and father’s
criminal history and registration as a sex offender.3 The court
declared the children dependents of the juvenile court, removed
them from father, awarded father monitored visits (but not
by mother), and released the children to mother’s custody under
Department supervision with family maintenance services.
Mother was to participate in individual counseling, parenting
classes, and a sexual abuse awareness program.
In January 2018, mother and father had a third child,
A.D. The Department received reports alleging general neglect
by parents after A.D.’s birth and again in March 2018. A.D.
also was detained from father.
2 Another child of father’s, by a different mother, was
declared a juvenile dependent in 2013 and released to the child’s
maternal grandparents under a legal guardianship in 2015.
3 Father is not a party to this appeal. At the detention
hearing, the court found he was J.D.’s and R.D.’s presumed
father. Mother met father, who was then 33 years old, after she
moved in with a friend and the friend’s family at the age of 16.
She gave birth to their first son J.D. at age 17; she and father
married about a year and a half later in 2016.
3
In May 2018, the Department detained J.D. and R.D.,
as well as A.D., from mother,4 and filed a supplemental section
387 dependency petition on J.D.’s and R.D.’s behalf, 5 alleging
mother had violated the juvenile court’s earlier orders by
allowing father unmonitored contact with the children. In July
2018, the court sustained the petition and ordered J.D. and R.D.
removed from mother with family reunification services to be
provided to her, but not to father. Mother was to have monitored
visits and to participate in programs for parenting and domestic
violence for victims, sexual abuse awareness counseling, and
individual counseling.
At the six-month review hearing in January 2019, the court
awarded mother another six months of reunification services
to give her time to enroll in and complete her court-ordered
programs, as the Department had recommended.
In June 2019, mother gave birth to a fourth child with
father (while she was in custody). The baby (E.D.) was detained
and placed in foster care.6 J.D., R.D., and their brother A.D.,
remained together in the foster home where they had been placed
in February 2019.
In August 2019, the court found mother, who had received
12 months of reunification services, had not made substantial
4 The children were placed in foster care.
5 In March 2018, the Department filed a separate
dependency petition on behalf of A.D., followed by an amended
petition in June 2018. The court appears to have partially
sustained the amended petition on July 20, 2018.
6 The Department filed a dependency petition on E.D.’s
behalf that the court sustained on August 7, 2019.
4
progress toward alleviating or mitigating the causes that led
to the children’s placement. It terminated her reunification
services and set the case for a section 366.26 permanency
planning hearing. In February 2020, the court ordered adoption
as the children’s permanent plan.
On August 5, 2021, the court convened a combined section
388 and section 366.26 hearing.7 The court denied mother’s
earlier-filed section 388 petition asking for further reunification
services and unmonitored visits. The court then found J.D. and
R.D. were adoptable by clear and convincing evidence and no
exception to adoption applied, terminated mother’s and father’s
parental rights, and designated the children’s current caretakers
as their prospective adoptive parents. Mother appealed from
the orders terminating her parental rights as to J.D. and R.D. 8
2. Facts relevant to ICWA inquiry
When the Department initiated its investigation in
September 2016, mother—who recently had left father—was
temporarily living with the children at maternal grandmother’s
home. (Mother’s father, maternal grandfather, died when mother
was two years old.) A Department social worker interviewed
maternal grandmother, but the record does not indicate the
social worker asked maternal grandmother about the children’s
7 The court had to continue the permanency planning review
hearings several times due to the COVID-19 pandemic and for
the Department to give proper notice.
8 At that same August 5, 2021 hearing, the juvenile court
also terminated mother’s and father’s parental rights as to A.D.
and E.D. Mother’s appeal from those orders currently is pending
under appellate case number B314404.
5
possible Indian ancestry. Two days later, the social worker
interviewed mother, who denied having American Indian
ancestry. The detention report states both parents denied
any American Indian ancestry, and ICWA does not apply.
On September 28, 2016, mother and father each filled
out a Parental Notification of Indian Status form (ICWA-020),
and each checked the box, “I have no Indian ancestry as far as
I know.” At the detention hearing that same day, the juvenile
court noted parents had filled out the ICWA-020 forms indicating
“no known Indian ancestry,” and declared it had “no reason
to know” the children were Indian children under ICWA.
The Department’s jurisdiction/disposition report prepared
October 26, 2016, states, “There is no known American Indian
ancestry based upon inquiries” by the dependency investigator.
According to the report, on October 19, 2016, mother again said
she did not have any Indian ancestry. Father apparently denied
any American Indian ancestry on September 9, 2016, to the
social worker in the children’s half-sibling’s case. The report
notes the investigator also interviewed maternal grandmother
on October 19, 2016, at “mother’s residence,”9 but does not state
the investigator asked her about Indian ancestry. (Maternal
grandmother was monitoring father’s visits with the children.)
According to subsequent reports filed with the court, the
Department spoke with maternal grandmother on several more
9 Based on the address provided in the report, mother still
was living with maternal grandmother at this point. At some
point, mother moved out of maternal grandmother’s home. The
Department’s August 15, 2017 status review report states mother
and the children were residing at a motel, and notes maternal
grandmother said she never told mother to move out.
6
occasions—both before and after the children were removed
from mother—including in July 2017, March 2018,10 June 2018,
December 2018, and August 2019. She visited the children
with mother and, at one point, was seeking to have the children
placed in her care. Maternal grandmother also received notice
of the scheduled section 366.26 hearings. There is no indication
that the Department asked maternal grandmother about the
children’s possible Indian ancestry during any of its encounters
with her.
The Department had contact with maternal great aunt
in April, May, and June 2018 about an April 2018 visit parents
and the children made to her house, and whether she would
be willing to have the children placed with her. In June 2018,
maternal great aunt told the Department social worker she
was willing to provide a home for the children.11 There is no
indication that the Department asked the maternal great aunt
about the children’s possible Indian ancestry during any of
its contacts with her.
According to Department reports, on March 21, 2018
and June 5, 2018, the juvenile court found that it did “not have
a reason to know that ICWA applies” to mother and father,
respectively.
10 During that interview, maternal grandmother informed
the social worker she temporarily was living with mother and
the children.
11 The Department’s June 14, 2018 jurisdiction/disposition
report notes the dependency investigator also interviewed
maternal second cousin—presumably, maternal great aunt’s
daughter, with whom she lived.
7
At the January 22, 2021 section 366.26 hearing, the court
asked mother if she had any American Indian ancestry as far
as she knew. Mother responded, “No.” The court ordered, “[T]he
prior no-ICWA finding as to mother remains.” In response to
questioning, mother also said she was not aware of father having
any American Indian ancestry. The court then found its prior
finding “of no reason to know ICWA applies” remained.
DISCUSSION
1. Applicable law and standard of review
Congress enacted ICWA “ ‘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.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7–8 (Isaiah W.); see 25 U.S.C.
§ 1902.) Both ICWA and state law define an “ ‘Indian child’ ”
as “any unmarried person who is under age eighteen and is either
(a) a member of an Indian tribe or (b) 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, subd. (a)
[adopting federal definition].)
“Because it typically is not self-evident whether a child
is an Indian child, both federal and state law mandate certain
inquiries to be made in each case. These requirements are
sometimes collectively referred to as the duty of initial inquiry.”
(Benjamin M., supra, 70 Cal.App.5th at p. 741.) Federal
regulations implementing ICWA require courts to ask
participants in a dependency case whether they know or have
reason to know the child is an Indian child and to instruct
8
the parties to inform the court “ ‘if they subsequently receive
information that provides reason to know the child is an Indian
child.’ ” (Ibid.)
California law, however, “more broadly imposes” on
the Department and the juvenile court, “(but not parents)[,]
an ‘affirmative and continuing duty to inquire’ whether a child
in the dependency proceeding ‘is[,] or may be[,] an Indian child.’ ”
(Benjamin M., supra, 70 Cal.App.5th at pp. 741–742, quoting
§ 224.2, subd. (a).) That duty to inquire “begins with [the] initial
contact . . . and obligates the juvenile court and child protective
agencies to ask all relevant involved individuals whether the
child may be an Indian child.” (In re T.G. (2020) 58 Cal.App.5th
275, 290, citing § 224.2, subd. (a).)
Under the statute, when the Department takes a child
into its 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(b); Benjamin M., supra, 70 Cal.App.5th at p. 742;
see also In re Darian R. (2022) 75 Cal.App.5th 502, 507
(Darian R.).)12 The juvenile court, in turn, at a party’s first
appearance, must ask “each participant present in the hearing
whether the participant knows or has reason to know that the
child is an Indian child” (§ 224.2, subd. (c)) and require each
12 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].)
9
party to complete an ICWA-020 form (Cal. Rules of Court,
rule 5.481(a)(2)(C)). “The parties are instructed 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) (2020); § 224.2, subd. (c).)” (In re Dominic F.
(2020) 55 Cal.App.5th 558, 566 (Dominic F.).)
If that initial inquiry gives the juvenile court or
Department a “reason to believe that an Indian child is involved,”
then their duty to “make further inquiry regarding the possible
Indian status of the child” is triggered. (§ 224.2, subd. (e);
Benjamin M., supra, 70 Cal.App.5th at p. 742.) And, once
there is a “reason to know” an Indian child is involved, formal
notice under ICWA must be given to the children’s “parents or
legal guardian, Indian custodian, if any, and the child’s tribe.”
(§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(c)(1); 25 U.S.C.
§ 1912(a).)13
We review the juvenile court’s ICWA findings for
substantial evidence, but independently determine whether
the requirements of ICWA have been satisfied when the facts
are undisputed. (Dominic F., supra, 55 Cal.App.5th at p. 565;
In re D.S. (2020) 46 Cal.App.5th 1041, 1051.)
2. The Department failed to conduct an adequate
inquiry under section 224.2(b)
It is undisputed the Department did not ask maternal
grandmother or maternal great aunt about the children’s possible
Indian ancestry despite having repeated opportunities to do so.
13 As mother contends only that the Department failed to
discharge its duty of initial inquiry, neither the duty of further
inquiry nor notice requirements are at issue.
10
The Department argues “there was no need to question [parents’]
extended family members about the children’s Indian status”
because mother and father were available to answer questions
about their Indian ancestry. It thus asserts it fulfilled its duty
of initial inquiry.14
We disagree. Maternal grandmother was known and
available to the Department. Indeed, it spoke with her at least
six times. It also had several contacts with maternal great aunt.
All it had to do was ask these two women about any Indian
ancestry. But it didn’t. (See In re A.C. (2022) 75 Cal.App.5th
1009, 1013, 1015–1016 [Department did not comply with its
“ ‘obligation to make a meaningful effort’ ” to ask extended family
members—who “were readily available to consult”—about child’s
possible Indian ancestry, despite parents’ denial of any, noting
mother was “the product of foster care”]; Darian R., supra, 75
Cal.App.5th at pp. 505, 509–510 [mother, who denied Indian
ancestry, demonstrated Department erred in failing to ask aunt
and grandfather, with whom the Department had contact, about
children’s potential Indian ancestry, but error was harmless];
In re H.V. (2022) 75 Cal.App.5th 433, 436, 438 [Department
failed to discharge its “first-step inquiry duty,” even though
mother denied Indian ancestry, when it did not ask extended
family members—whom it had interviewed—about child’s
possible Indian ancestry].) We thus agree with mother that
the Department did not fulfill its initial duty of inquiry.
14 Although mother argues the Department’s error was
prejudicial, the Department does not contend that any inquiry
error on its part was harmless. Rather, it contends only that
it satisfied its duty of inquiry, and that substantial evidence
supports the court’s finding that ICWA does not apply.
11
In light of that conclusion, we also must reject the
Department’s contention that parents’ denials of Indian ancestry
provide substantial evidence supporting the juvenile court’s
finding that ICWA did not apply. (See In re Josiah T. (2021) 71
Cal.App.5th 388, 397–401, 408 [some indication of Cherokee and
Choctaw heritage; juvenile court “may not find that ICWA does
not apply when the absence of evidence that a child is an Indian
child results from a [Department] inquiry that is not proper,
adequate, or demonstrative of due diligence”]; see also In re N.G.
(2018) 27 Cal.App.5th 474, 484 [in absence of appellate record
“affirmatively showing the court’s and the agency’s efforts
to comply with ICWA’s inquiry and notice requirements, we
will not, as a general rule, conclude that substantial evidence
supports the court’s finding that . . . ICWA did not apply”].)
We acknowledge that remanding the matter to comply
with ICWA will delay the children’s permanent plan of adoption.
We are mindful that this case has been pending for more than
five years. Nevertheless, our high court has explained that
the federal and state statutes implementing ICWA “were clearly
written to protect the integrity and stability of Indian tribes
despite the potential for delay in placing a child.” (Isaiah W.,
supra, 1 Cal.5th at p. 12.) And, as the Department easily can
contact maternal relatives, any delay here should be minimal. 15
15 Mother identifies no relatives—maternal or paternal—
other than maternal grandmother and maternal great aunt
as extended family members the Department must question
under section 224.2(b). On remand, the Department thus may
limit its initial inquiry of extended family members to maternal
grandmother and maternal great aunt.
12
DISPOSITION
We conditionally affirm the court’s orders terminating
mother’s and father’s parental rights to J.D. and R.D. The case
is remanded to the juvenile court to order the Department
immediately to comply with the inquiry provisions of Welfare
and Institutions Code section 224.2, consistent with this
opinion, and update the court on its investigation within 30 days
of the remittitur. After ensuring the Department has complied
with the inquiry—and, if applicable, notice—provisions of ICWA
and related California law, the juvenile court shall determine
whether ICWA applies. If the court determines ICWA does not
apply, the orders terminating mother’s and father’s parental
rights shall remain in effect. If the court determines ICWA
does apply, it shall vacate its orders terminating parental rights
and proceed in conformity with ICWA and related state law.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J. KALRA, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
13