In re P.F. CA2/8

Filed 2/9/22 In re P.F. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
In re P.F., a Person Coming B312294
Under the Juvenile Court Law.
______________________________ Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CCJP05716A
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kristen Byrdsong, Commissioner. Conditionally
reversed and remanded with directions.
Donna P. Chirco, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
____________________
The mother appeals an order terminating parental rights
over her daughter, P.F. The Los Angeles County Department of
Children and Family Services did not comply with its initial duty
of inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901et seq.) (the Act). State law requires the Department initially to
ask extended family members whether a child is or may be an
Indian child. (Welf. & Inst. Code, § 224.2, subd. (b).) The
Department spoke to several maternal relatives but failed to
make this initial inquiry. We conditionally reverse the
termination order and remand with directions to comply with the
Act.
Statutory citations are to the Welfare and Institutions
Code.
I
On September 4, 2019, the Department filed a petition
under section 300, subdivision (b)(1). Most of the allegations
involved substance abuse: when P.F. was born, she tested
positive for opiates; the mother abused opiates and
methamphetamine; and the father abused methamphetamine,
had a criminal history involving drug possession and driving
under the influence of alcohol, and had mental health issues.
On September 1, 2019, the mother said her family did not
have Indian ancestry.
The father filed a Parental Notification of Indian Status
form indicating he had no known Indian ancestry.
2
The Department interviewed the maternal grandmother on
September 26, 2019, and October 17, 2019, but did not ask about
the Act. The maternal grandmother lived with her adult
daughter, Brielle (P.F.’s maternal aunt), and her own mother
(P.F.’s maternal great-grandmother).
On October 30, 2019, the mother filed a Parental
Notification of Indian Status form and checked the box, “I may
have Indian ancestry.” She wrote, “I don’t know the tribe.” The
same day, the court said the mother “indicates she doesn’t know a
tribe or family member that would know” and ordered the
Department to interview the mother and determine whether the
Act applied.
On November 7, 2019, the maternal grandmother
accompanied the mother to a meeting with the Department. The
mother was verbally aggressive and would not engage, so the
Department investigator met with and discussed case issues with
the maternal grandmother. There is no evidence the investigator
asked the mother or the maternal grandmother about the Act.
On January 3, 2020, the court held an adjudication and
disposition hearing. It sustained allegations involving the
parents’ substance abuse and P.F. testing positive for opiates at
birth. The court removed P.F. from parental custody and ordered
the Department to provide reunification services. The record on
appeal does not include a transcript of this hearing. The court’s
orders are silent about the Act.
The mother and Department social workers spoke many
times. Their communications included phone calls in 2020 on
February 4, June 9, June 26, July 30, August 7, August 11,
August 21, September 15, and December 23, and meetings on
June 10, July 21, and August 6. The mother emailed the
3
Department on January 17, 2021. Records of these
communications show no sign the Department asked the mother
about her potential Indian ancestry.
On June 19, 2020, the Department spoke with maternal
aunt Brielle about placement of P.F. On August 27 and
September 1, 2020, it communicated with maternal relative
Brooke about placement of P.F. (Brooke’s and the mother’s
grandfathers are brothers. She is the mother’s second cousin.)
Brielle and Brooke cooperated with the Department. Brooke told
the Department she wanted to maintain contact with P.F. The
Department did not ask either maternal relative about the Act.
The Department’s status review report filed August 12,
2020, said, without explanation, “The Indian Child Welfare Act
does not apply.”
On October 29, 2020, the court found the mother failed to
comply with her case plan and the court terminated reunification
services.
Beginning on February 5, 2021, for the first time, the
Department sought information from the maternal grandmother
about Indian ancestry. Over a period of two months, it called her
seven times, left four voicemails, and texted her. The
grandmother did not respond.
The Department filed a report February 10, 2021, that said
the mother “has maintained limited contact with the Department
and has not been engaged further regarding” the Act.
On March 2, 2021, the Department mailed a notice to the
Bureau of Indian Affairs and the Secretary of the Interior. Much
of the notice was incomplete, including the maternal
grandmother’s birth date and place and all information about the
maternal grandfather and great-grandparents. The “Other
4
relative information” section excluded maternal aunt Brielle and
listed Brooke without a birth date or place.
The Bureau of Indian Affairs responded that the
Department’s notice contained insufficient information to
determine tribal affiliation.
On April 29, 2021, the court held a permanency planning
hearing. The Department asked the court to find the Act did not
apply. The Department asserted it had had “limited to no contact
with mother,” and it had unsuccessfully tried to contact the
maternal grandmother, “So as a result, there is no additional
information on the specific tribe.” The Department also cited the
Bureau of Indian Affairs’ response that there was insufficient
information.
The court found there was no reason to believe the Act
applied.
The court terminated parental rights.
II
Substantial evidence does not support the court’s finding of
no reason to believe the Act applied because the Department
failed to inquire about P.F.’s Indian status.
We review findings under the Act for substantial evidence.
(In re Josiah T. (2021) 71 Cal.App.5th 388, 401.) A finding that
the Act does not apply cannot be supported by the absence of
evidence if that absence results from inquiry that is not proper,
adequate, or demonstrative of due diligence. (Id. at p. 408.)
The Department and the court have an affirmative and
continuing duty to inquire whether children involved in
proceedings may be Indian children. (§ 224.2, subd. (a).) This
continuing duty has three phases: the initial duty to inquire, the
5
duty of further inquiry, and the duty to provide formal notice. (In
re Dominic F. (2020) 55 Cal.App.5th 558, 566 (Dominic).)
The deficiency in this case is in phase one. The initial duty
to inquire begins when a referring party reports abuse or neglect
and the Department starts an investigation. (§ 224.2, subd. (a);
Dominic, supra, 55 Cal.App.5th at p. 566.) This duty includes
asking the child, parents, legal guardian, extended family
members, and others who have an interest in the child whether
the child is, or may be, an Indian child. (§ 224.2, subd. (b);
Dominic, at p. 566.) At their first appearance, the court must ask
parents whether they know or have reason to know a child is an
Indian child and must require parents to complete Parental
Notification of Indian Status forms. (§ 224.2, subd. (c); Dominic,
at p. 566.)
Phase two, the duty of further inquiry, is triggered when
the Department or the juvenile court has reason to believe an
Indian child is involved in the proceedings. (§ 224.2, subd. (e).)
Further inquiry involves interviewing parents and extended
family members to gather required information, contacting the
Bureau of Indian Affairs for assistance in identifying tribes in
which the child may be a member, and contacting tribes and any
other person that reasonably might be expected to have
information about the child’s membership or eligibility. (§ 224.2,
subd. (e)(1)–(2); Dominic, supra, 55 Cal.App.5th at pp. 566–567.)
Because we find problems with the initial inquiry, we do
not outline the phase three duty of formal notice.
The Department failed its duty of initial inquiry by not
asking maternal relatives about the Act. The Department first
spoke to the maternal grandmother on September 26, 2019, but
waited 16 months to attempt to ask her. It never asked maternal
6
relatives Brielle and Brooke, despite speaking with them for
other reasons. Not only was inquiry of Brielle part of the initial
duty, but when the Department belatedly sought out the
maternal grandmother, common sense would have dictated
calling Brielle, who lived with the maternal grandmother as of
late 2019. The maternal great-grandmother lived in the same
home and the Department did not attempt to inquire of her,
either.
While the mother was sometimes uncooperative, the
Department spoke with her at least a dozen times after the court
ordered it to interview her about the Act, but the Department
failed to comply with this order. The question why the mother
believed she had Indian ancestry remains unanswered.
The Department complains it lacked leads, but it did not
ask any maternal relatives whether P.F. was an Indian child.
The Department’s appellate brief quotes the statute’s
requirement to ask “extended family members” (§ 224.2, subd.
(b)), without explaining how this could exclude the maternal
relatives here. The duty of initial inquiry is triggered regardless
of leads.
The Department contends the paucity of information meant
there was no reason to believe P.F. was an Indian child, but this
misses the crucial step of initial inquiry of extended family
members. The Department may be correct that a parent’s
statement that she may have Indian ancestry, absent a possible
region, tribe, or relative, is insufficient to trigger the second
phase of further inquiry. (Cf. Dominic, supra, 55 Cal.App.5th at
pp. 563, 569 [parent’s statement she may have ancestry in
“unknown tribe name from New Mexico” sufficient to trigger
7
further inquiry].) We need not decide this issue because the
initial inquiry was incomplete.
The deficient inquiry in this case warrants reversal. We
reverse where the record demonstrates the Department has not
only failed to discharge its duty of initial inquiry, but where there
is evidence of readily obtainable information that would likely
bear meaningfully on whether the child is an Indian child. (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 744; contra In re
Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [requiring offer of
proof to demonstrate prejudice].) The mother has made no
showing that the maternal relatives possess knowledge about
P.F.’s possible Indian ancestry. Nevertheless, their answers are
likely to bear meaningfully on the issue of P.F.’s Indian ancestry.
(See Benjamin, at p. 745.) Additionally, to the extent the mother
acts as a surrogate for a tribe, further inquiry is necessary to
provide notice sufficient to allow the tribe to determine whether
P.F. is an Indian child. (See In re N.G. (2018) 27 Cal.App.5th
474, 484.)
We conditionally reverse the termination order and remand
the case for further inquiry under the Act. We instruct the
Department to comply with its duty to inquire of Brooke and
Brielle and, due to its initial delay in attempting to contact the
maternal grandmother, to make a good faith attempt to contact
the maternal grandmother and the maternal great-grandmother.
If the Department communicates with Brielle, it shall seek
contact information for the maternal grandmother and maternal
great-grandmother, if necessary and appropriate. The
Department must then comply with any resulting duty of further
inquiry and duty to provide notice that this information may
trigger.
8
Because we reverse on the ground of the initial inquiry, we
need not and do not pursue the mother’s contentions about
deficient notice. If the Department’s initial inquiry develops a
need for formal notice, the notice must include all previously
known and newly discovered identifying information about P.F.’s
maternal lineal ancestry.
DISPOSITION
The order terminating the mother’s parental rights of P.F.
is conditionally reversed. The matter is remanded to the juvenile
court with directions to comply with the inquiry provisions of
Welfare and Institutions Code section 224.2 consistent with this
opinion. The juvenile court shall order that within 30 days of the
remittitur, the Department perform its investigation of P.F.’s
potential Indian ancestry. If, after completing the initial inquiry,
neither the Department nor the court has reason to believe or to
know P.F. is an Indian child, the order terminating parental
rights shall be reinstated. If the court determines notice is
required, it must proceed accordingly.
WILEY, J.
We concur:
GRIMES, Acting P. J. HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
9