In re K.C. CA2/7 ( 2024 )

Filed 10/17/24 In re K.C. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re K.C., Jr., a Person B331849
Coming Under the Juvenile
Court Law. (Los Angeles County Super.
Ct. No. 20CCJP03803B)
LOS ANGELES COUNTY ORDER MODIFYING
DEPARTMENT OF CHILDREN OPINION AND DENYING
AND FAMILY SERVICES, PETITION FOR
REHEARING/
Plaintiff and Respondent, MODIFICATION
(CHANGE IN
v. APPELLATE JUDGMENT)
VILMA J.,
Defendant and Appellant.
THE COURT:
The above-entitled opinion filed on September 20, 2024 is
modified as follows:
On the cover page replace “Conditionally reversed” with
“Conditionally affirmed” so it reads: “Conditionally affirmed and
remanded with directions.”
In the second sentence of the last paragraph on page 2
replace “reverse” with “affirm” so the sentence reads: “We
conditionally affirm and remand for the court and the
Department to comply with the inquiry and notice provisions of
ICWA and Cal-ICWA.”
In the first sentence of the Disposition on page 13, replace
the word “reversed” with “affirmed,” so it reads: “The August 8,
2023 orders granting legal guardianship and terminating
jurisdiction over K.C. are conditionally affirmed.”
Delete the last sentence of the Disposition on page 13 and
replace it with: “If not, the original section 366.26 orders will
remain in effect.”
Respondent’s petition for rehearing; or in the alternative
request for modification is denied.
There is a change in the appellate judgment.
MARTINEZ, P. J. FEUER, J. STONE, J.
2
Filed 9/20/24 In re K.C. CA2/7 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re K.C., Jr., a Person B331849
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 20CCJP03803B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
VILMA J.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Tamara Hall, Judge. Conditionally reversed and
remanded with directions.
Sarah Vaona, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_____________________________
Vilma J. (Mother) appeals from the juvenile court’s orders
granting legal guardianship of 13-year-old K.C., Jr., (K.C.) to
maternal relatives and terminating jurisdiction over K.C. at the
selection and implementation hearing (Welf. & Inst. Code,
§ 366.26).1 Mother’s sole contention on appeal is that the Los
Angeles County Department of Children and Family Services
(the Department) and the juvenile court failed to comply with the
inquiry requirements of the Indian Child Welfare Act of 1978
(25 U.S.C. § 1901 et seq.; ICWA) and the California Indian Child
Welfare Act (Cal-ICWA; § 224 et seq.). Mother argues the
Department failed to interview any extended family members,
including a paternal aunt and maternal relatives, about the
children’s possible Indian ancestry, and the court prejudicially
erred in finding ICWA did not apply.
We agree the juvenile court and the Department failed to
comply with ICWA and Cal-ICWA. We conditionally reverse and
remand for the court and the Department to comply with the
inquiry and notice provisions of ICWA and Cal-ICWA.
1 Further undesignated statutory references are to the
Welfare and Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
Mother has four children with K.C., Sr. (Father): D.J., K.C.,
M.C., and Ki. C.2 Mother also has one child, Ke. C., with
Kevin H. On May 25, 2020 the Department received a referral
alleging that earlier that day Mother was detained by border
patrol agents for drug smuggling while then-12-year-old D.J. and
then-10-year-old K.C. were in her care.3
On July 16, 2020 the Department filed a dependency
petition on behalf of the children under section 300, former
subdivision (b)(1) and subdivision (j). The petition alleged
Mother placed D.J. and K.C. in a detrimental and endangering
situation because the border patrol agents arrested Mother for
smuggling methamphetamine while the children were passengers
in her car. The petition also alleged Mother had a history of
substance abuse, including using illicit drugs during her
pregnancy with M.C. and being under the influence of marijuana
while caring for the children. Further, Father had a criminal
conviction for possession of marijuana for sale, and he had a 15-
year history of illicit drug use and was a current abuser of
marijuana. In addition, the children were former dependents of
the court because of Father’s substance abuse.
On August 7, 2020 the juvenile court sustained the
allegations against Mother and dismissed the allegations against
Father. The court declared the five children dependents of the
2 Mother appeals only as to K.C.
3 The caller reported that Mother left seven-year-old M.C.
and four-year-old Ki.C. with maternal aunt Maria before driving
to the United States/Mexico border with D.J. and K.C. At the
time, three-year-old Ke. C. was with her paternal relatives.
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court, removed them from Mother under section 361,
subdivision (c), and placed them with Father. The court ordered
reunification services for Mother and ordered her to complete a
full drug and alcohol program with aftercare; submit to weekly
random and on demand drug testing; and participate in
parenting classes and individual counseling to address domestic
violence, substance abuse, and child safety. The court granted
Mother monitored visitation for a minimum of nine hours per
week with unmonitored daytime visits in a neutral setting upon
Mother’s submission of six consecutive clean drug and alcohol
tests.
On October 8, 2020 the Department received a referral
alleging Father smoked marijuana and sold marijuana from the
home in the presence of the children. On February 21, 2021 the
Department received another referral alleging three-year-old
Ke. C. was taken to the hospital by ambulance and tested positive
for cannabis. On March 16, 2021 the Department removed D.J.,
K.C., M.C., and Ki. C. from Father’s physical custody and placed
the four children with maternal second cousin Kevin M.4 The
Department also removed Ke. C. from Father’s custody and
placed her with her paternal aunt, Shanee T. (Kevin H.’s sister).
On March 18, 2021 the Department filed a subsequent
petition under section 342 alleging that on February 21, 2021
Ke. C. ingested marijuana while in Father’s care and supervision;
Father failed to keep a March 1, 2021 medical appointment to
monitor Ke. C.’s brain tumor; and Father failed to obtain medical
treatment for the five children’s chronic head lice infestation. On
4 Kevin M. resides with his mother, Mirna E., who is the
children’s maternal great-aunt.
4
April 14 the court sustained the subsequent petition and removed
the children from Father under section 361, subdivision (c).
On August 2, 2022 the juvenile court terminated family
reunification services for Mother and Father and set the matter
for a selection and implementation hearing (§ 366.26). The
hearing was continued multiple times, and on April 25, 2023
Mother filed a section 388 petition seeking six months of
reunification services with respect to D.J, K.C., M.C., and Ki. C.
Mother stated she was released from prison on August 2, 2022,
and while she was incarcerated, she had completed an anger
management program, parenting classes, and a drug treatment
program. Mother added that she had maintained contact with
the four children during and after her release. Mother argued
additional months of reunification services would benefit the
children because they had a close relationship with her.
At the August 8, 2023 hearing on Mother’s section 388
petition, Mother requested the court grant her petition with
respect to all four children. The Department recommended the
juvenile court grant Mother’s section 388 petition as to D.J., M.C.
and Ki. C. because they wanted to reunify with Mother, but deny
the petition as to K.C. because he wanted no further contact with
Mother. K.C.’s counsel confirmed this was what K.C. wanted.
The juvenile court granted Mother’s section 388 petition as to
D.J., M.C., and Ki. C., but denied it as to K.C. The court
explained K.C. did not want to reunify with Mother or to have
any contact with her.
The juvenile court then proceeded to hold the selection and
implementation hearing for K.C. Over Mother’s objection, the
court appointed Kevin M. and Mirna as legal guardians for K.C.
The court ordered visitation for Mother and Father and
5
terminated jurisdiction over K.C. with Kin-GAP funding in
place.5
Mother timely appealed.6
DISCUSSION
A. ICWA and Cal-ICWA Inquiry and Notice Requirements
ICWA and Cal-ICWA require in dependency proceedings
that where the court knows or has reason to know an Indian
child is involved, notice must be given to the relevant tribes.
(25 U.S.C. § 1912(a); § 224.3, subd. (a); In re Isaiah W. (2016)
1 Cal.5th 1, 5; In re Rylei S. (2022) 81 Cal.App.5th 309, 317
(Rylei S.); Cal. Rules of Court, rule 5.481(c)(1).) The notice
requirement is at the heart of ICWA because it “enables a tribe to
5 “The Kin-GAP program is a state program that provides
ongoing funding for children who exit the dependency system to
live with relative legal guardians. In order to receive funding
under the program the county welfare agency must enter into a
written binding agreement with the relative guardian and
dependency jurisdiction must be terminated. (§§ 11386, 11387.)”
(In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1211, fn. 2.)
6 In her notice of appeal Mother stated she was appealing
from the juvenile court’s order denying her section 388 petition
and the order granting legal guardianship of K.C. However,
Mother only challenges the order granting legal guardianship in
her opening brief. She therefore has forfeited or abandoned her
appeal from the section 388 order. (See Tiernan v. Trustees of
Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4
[issue not raised on appeal “deemed waived”]; Swain v.
LaserAway Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72
[“‘“Issues not raised in an appellant’s brief are [forfeited] or
abandoned.”’”].)
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determine whether the child is an Indian child and, if so, whether
to intervene in or exercise jurisdiction over the proceeding.”
(In re Isaiah W., at p. 5; accord, In re Antonio R. (2022)
76 Cal.App.5th 421, 428 (Antonio R.).)
The juvenile court and the Department “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., supra, 1 Cal.5th at p. 9; In re J.C. (2022)
77 Cal.App.5th 70, 77 (J.C.).) The duty to inquire begins with
initial contact (§ 224.2, subd. (a)) 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
Dezi C. (2024) 16 Cal.5th 1112, 1132 (Dezi C.); Rylei S., supra,81 Cal.App.5th at p. 316; J.C., at p. 77.)
Section 224.2, subdivision (b), imposes on the Department a
duty to inquire whether a child in the Department’s temporary
custody is an Indian child, which “[i]nquiry 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 . . . .” (See Cal.
Rules of Court, rule 5.481(a)(1) [the Department “must ask . . .
extended family members . . . whether the child is or may be an
Indian child”].) “The duty to develop information concerning
whether a child is an Indian child rests with the court and the
Department, not the parents or members of the parents’
families.” (Antonio R., supra, 76 Cal.App.5th at p. 430; accord,
In re J.K. (2022) 83 Cal.App.5th 498, 506; see In re K.R. (2018)
20 Cal.App.5th 701, 706 [“The juvenile court’s duty to inquire . . .
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is independent of any obligation on the part of the parents of the
dependent child.”].)
B. The Department’s ICWA and Cal-ICWA Inquiry
On July 20, 2020 Mother filed a parental notification of
Indian status form on which she checked a box indicating she had
no Indian ancestry. On the same date, Father filed a parental
notification of Indian status on which he checked a box stating
that he “may have Indian ancestry,” but he did not identify the
Indian tribe or band. At the detention hearing held that day,
Father’s counsel reported that Father “believes he may have
Indian ancestry on his mother’s side.” The juvenile court ordered
the Department “to interview the father and paternal relatives
regarding father’s claim of American Indian ancestry and attach
copies of notices to tribes that are revealed through inquiry of
parties.” The court added, “If no specific tribe names are
revealed, the Department is ordered to notice the Bureau of
Indian Affairs and Secretary of the Interior at a minimum
assuming that the relatives confirm Indian ancestry.” The court
also found it had no reason to know that ICWA applied as to
Mother.
Pursuant to the court’s order, the dependency investigator
interviewed Father about his Indian ancestry. Father stated he
did not know which tribe his ancestors were from, but his aunt
Patricia “may be the only relative who has information on this.”
Father did not have Patricia’s contact information. On August 4,
2020 the dependency investigator mailed notice of the jurisdiction
hearing to the Bureau of Indian Affairs. The dependency
investigator did not attempt to locate Patricia or ask any
maternal or paternal relatives about the children’s possible
Indian ancestry.
8
At the August 7, 2020 jurisdiction and disposition hearing,
the juvenile court found it had no reason to know that ICWA
applied. The court explained, “The respective fathers and
paternal relatives were unable to offer any information regarding
any particular tribes or any other details regarding any potential
Indian ancestry.” The court did not make a further ICWA finding
at the selection and implementation hearing held on August 8,
2023.
C. The Juvenile Court Failed To Ensure the Department
Complied with ICWA and Cal-ICWA
Mother contends the Department and the juvenile court did
not satisfy their obligations under ICWA and Cal-ICWA because
the Department failed to interview the paternal and maternal
relatives, including paternal aunt Teriauna R., maternal aunt
Maria, and maternal second cousin Kevin M.7 We agree the
Department’s inquiry was inadequate, and the violation of Cal-
ICWA requires conditional reversal of the section 366.26 orders
with directions to comply with ICWA and Cal-ICWA.
As discussed, the dependency investigator interviewed
Father about his family’s possible Indian ancestry. Father stated
that paternal great-aunt Patricia had relevant information, but
he did not have her contact information. Father also identified
paternal grandmother Raynise C., paternal grandfather Kent C.,
and an unnamed great-grandmother, but the dependency
investigator did not obtain their contact information from Father
7 The Department is correct that Mother incorrectly
identified paternal aunt Shanee H. and paternal grandmother
Cheryl T. as K.C.’s paternal relatives. Shanee and Cheryl are the
paternal relatives of Ke. C., who is K.C.’s half-sister.
9
or attempt to locate these relatives or Patricia. Similarly, Mother
identified two maternal aunts, Brianna R. and Monica R., but
neither was asked about K.C.’s possible Indian ancestry.
Further, in the course of the Department’s investigation, the
dependency investigator interviewed maternal relatives Maria,
Kevin M., and Mirna, as well as maternal cousin Emily M. and
maternal aunt Estela C. The investigator also attempted to
interview maternal great-uncle Charles P.
The dependency investigator never asked any of these
known paternal or maternal relatives about K.C.’s possible
Indian ancestry. The Department argues that its failure to
inquire of paternal family members, including Teriauna, was not
prejudicial because Father identified only paternal great-aunt
Patricia as the family member with knowledge of his family’s
Indian ancestry. But the Department made no effort to obtain
Patricia’s contact information from the paternal aunt and
paternal grandparents or other sources. Moreover, the fact
Patricia had information on K.C.’s Indian ancestry does not mean
other paternal family members did not.
The Department acknowledges that the social workers also
failed to inquire of maternal aunts Maria, Emily, and Monica
about K.C.’s possible Indian ancestry (and they did not inquire of
Kevin M. or Mirna). However, the Department contends “any
error in this regard was harmless” because Mother denied any
Indian ancestry on her parental notification form. The
Department’s contention is meritless.8
8 We are troubled by the Department’s position in this case
that the failure to interview even a single maternal or paternal
relative where multiple relatives have been identified is harmless
10
As the Supreme Court recently explained in Dezi C., “ICWA
and Cal-ICWA . . . make clear that the inquiry is not concerned
with the outcome, but rather with the protection of tribal rights,
including the tribes’ right to determine whether a child is an
Indian child. ‘[A]bsent a reasonable inquiry at the outset, the
opportunity to gather information relevant to the inquiry is often
missed entirely.’” (Dezi C., supra, 16 Cal.5th at p. 1144, fn.
omitted.) “As required by statute, an adequate initial inquiry
that reaches beyond parents to extended family members and
others facilitates the discovery of Indian identity, and maximizes
the chances that potential Indian children are discovered and
tribes are notified.” (Id. at p. 1140; accord, Antonio R., supra,76 Cal.App.5th at p. 431 [section 224.2, subdivision (b), requires
“the Department to inquire of a child’s extended family
members—regardless of whether the parents deny Indian
ancestry”].) Under ICWA, the term “extended family member” is
“defined by the law or custom of the Indian child’s tribe or, in the
absence of such law or custom, shall be a person who has reached
the age of eighteen 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 U.S.C.
§ 1903(2); see Welf. & Inst. Code, § 224.1, subd. (c) [“As used in
connection with an Indian child custody proceeding, the terms
‘extended family member’ and ‘parent’ shall be defined as
provided in Section 1903 of the federal Indian Child Welfare
Act.”].) Thus, the Department had a duty to inquire of the
error. In other similar cases the Department has stipulated to a
conditional affirmance to ensure expedited compliance with
ICWA so that placement of a dependent child is not unnecessarily
delayed.
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maternal and paternal relatives of K.C.’s possible Indian
ancestry.
Here, the Department failed to interview any maternal or
paternal relatives regarding K.C.’s possible Indian ancestry.
“When a Cal-ICWA inquiry is inadequate, it is impossible to
ascertain whether the agency’s error is prejudicial.” (Dezi C.,
supra, 16 Cal.5th at p. 1136.) Moreover, “[w]hen an inquiry is
inadequate, the entities charged with the duty to conduct the
inquiry must attempt to cure that error and may not avoid their
duty by placing the burden on the parents to demonstrate that
the error is prejudicial on an inadequate record.” (Id. at
pp. 1138-1139.) “[E]rror resulting in an inadequate initial Cal-
ICWA inquiry requires conditional reversal with directions for
the child welfare agency to comply with the inquiry requirement
of section 224.2, document its inquiry in compliance with
rule 5.481(a)(5), and when necessary, comply with the notice
provision of section 224.3.” (Id. at p. 1136.) Because the
Department failed to comply with the inquiry requirements of
section 224.2, we conditionally reverse the section 366.26 orders
with directions for the Department and the juvenile court to
comply with ICWA and Cal-IWCA.
DISPOSITION
The August 8, 2023 orders granting legal guardianship and
terminating jurisdiction over K.C. are conditionally reversed. We
remand for the Department and the juvenile court to comply with
the inquiry and notice provisions of ICWA and Cal-ICWA
consistent with this opinion, including inquiring of the maternal
and paternal family members. If the court finds K.C. is an
12
Indian child, it shall conduct a new section 366.26 hearing, as
well as all further proceedings, in compliance with ICWA and
Cal-ICWA. If not, the court shall reinstate its original section
366.26 orders.
FEUER, J.
We concur:
MARTINEZ, P.J.
STONE, J.
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