In re E.G. CA2/5

Filed 2/18/22 In re E.G. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re E.G., a Person Coming B313582
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18CCJP04740A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
ERICA G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Pete R. Navarro, Judge Pro Tempore.
Conditionally affirmed and remanded with directions.
Carol A. Koenig, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Veronica Randazzo, Deputy County
Counsel for Plaintiff and Respondent.
________________________________
Erica G. (mother) appeals from the order terminating
parental rights to her child, E.G. (minor), under Welfare and
Institutions Code section 366.26.1 Mother contends 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
(ICWA) (25 U.S.C. § 1901 et seq.). We conditionally affirm, and
remand for ICWA compliance.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue raised in mother’s appeal is ICWA
compliance, we focus primarily on the facts and procedural
background relevant to that issue.
Minor, who was born in 2013, was the subject of an earlier
dependency case based on substance abuse by both parents.2
The initial section 300 petition in that case was filed in 2014,
1 Further statutory references are to the Welfare and
Institutions Code unless stated otherwise.
2 Minor’s father, C.C., is not a party to this appeal.
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and the court found that ICWA did not apply. The case ended in
2017 with an award of physical and legal custody to mother.
The current dependency case began in the summer of 2018,
based on a deterioration in mother’s mental health and her
refusal to contact investigating social workers. During their
initial investigation, social workers spoke to maternal
grandmother and a 17-year-old maternal uncle, both of whom
had been living with mother until she had a psychiatric
hospitalization. Maternal grandmother would not give the social
worker mother’s telephone number, but said she would ask
mother to call the social worker. The Department detained
minor (then four years old), placing her with maternal
grandmother and instructing maternal grandmother that
mother could not see minor until after a detention hearing took
place. Mother spoke briefly with the social worker, who advised
mother about minor’s detention and the upcoming detention
hearing. After minor was detained, mother made some minimal
statements about the petition allegations to the social worker.
Addressing ICWA in its September 2018 jurisdiction and
disposition report, the Department stated that the court
previously found ICWA inapplicable in May 2014.
At an initial hearing on August 31, 2018, mother filed a
Parental Notification of Indian Status form (ICWA-020) stating
that she may have Indian ancestry. Mother gave the name of a
cousin (A.M.), but mother also noted that she was not in contact
with him and did not know his phone number, birthdate, or
address. Responding to questions from the court, mother denied
knowing the name of the tribe. She stated her parents were
born in Mexico, and her grandparents were born “Somewhere
distant. It wasn’t Mexico. I think it was maybe Spain or
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something.” Based on the information mother provided, the
court stated “there’s insufficient evidence to find that this falls
within ICWA.”
On October 2, 2018, father filed a Parental Notification of
Indian Status form (ICWA-020) denying any Indian ancestry, and
the court found that ICWA did not apply as to father.
The Department’s six-month and twelve-month review
reports state, “On 10/02/2018, the Court found that the [Indian]
Child Welfare Act (ICWA) does not apply to this case.” The court
terminated reunification services at the 12-month review
hearing. Subsequent reports refer to the court’s August 31, 2018
finding that ICWA did not apply.
At the section 366.26 hearing on May 12, 2021, the juvenile
court terminated parental rights as to minor; it made no express
ICWA findings on the record. Mother filed a timely notice of
appeal.
DISCUSSION
ICWA Requirements and Standard of Review
“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.’
[Citation.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).)
“In California, . . . persistent noncompliance with ICWA led the
Legislature in 2006 to ‘incorporate[ ] ICWA’s requirements into
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California statutory law.’ [Citations.]” (In re Abbigail A. (2016) 1
Cal.5th 83, 91; see also In re Breanna S. (2017) 8 Cal.App.5th
636, 650 [California law “incorporates and enhances ICWA’s
requirements”].) Both ICWA and California law define an
“Indian child” as a child who is either a member of an Indian
tribe or 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, subds. (a) & (b); see also In re Elizabeth M.
(2018) 19 Cal.App.5th 768, 783 (Elizabeth M.).) The court and
the Department have an affirmative and continuing duty under
ICWA and related California law to inquire whether a child who
is the subject of a dependency proceeding is or may be an Indian
child. (Isaiah W., supra, 1 Cal.5th at pp. 7–8.) The scope of the
duty of inquiry is defined in regulations promulgated under
ICWA (see 25 C.F.R. § 23.107 et seq. (2020)), California statutes,
and rules of court. (In re T.G. (2020) 58 Cal.App.5th 275, 290–
291 (T.G.).) Here, we apply the federal and state statutes in
effect in May 2021, when the section 366.26 hearing took place.
(In re A.M. (2020) 47 Cal.App.5th 303, 321.)
The Department’s initial duty of inquiry at the beginning of
a child welfare proceeding includes “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).) The court must inquire at each
party’s first appearance, whether any participant in the
proceeding “knows or has reason to know that the child is an
Indian child.” (§ 224.2, subd. (c).) Part of the initial inquiry
includes requiring each party to complete the ICWA-020 form.
(Cal. Rules of Court, rule 5.481(a)(2)(C).)
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When there is “reason to believe that an Indian child is
involved in a proceeding,” further inquiry is required. (§ 224.2,
subd. (e); T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.) Effective
September 18, 2020, section 224.2, subdivision (e)(1), explains
that “reason to believe” exists “whenever the court, social worker,
or probation officer has information suggesting that either the
parent of the child or the child is a member or may be eligible for
membership in an Indian tribe.” Further inquiry may include
interviewing parents and extended family members to obtain
information such as the names of the child’s “biological parents,
grandparents, and great-grandparents, . . . as well as their
current and former addresses, birth dates, places of birth and
death, tribal enrollment information of other direct lineal
ancestors of the child, and any other identifying information, if
known.” (§ 224.2, subd. (e)(2)(A); 224.3, subd. (a)(5)(C); Cal.
Rules of Court, rule 5.481(a)(4)(A).) The agency engaging in
further inquiry may also need to contact the Bureau of Indian
Affairs, the State Department of Social Services, and any tribes
the child may be affiliated with, and anyone else, that might have
information regarding the child’s membership or eligibility in a
tribe. (§ 224.2, subds. (e)(2)(B) & (e)(2)(C); Cal. Rules of Court,
rule 5.481(a)(4)(B)&(C).)
If the Department’s further inquiry efforts result in
information that would give the court or the Department “reason
to know” that the child is an Indian child under ICWA, then the
relevant tribes must be given notice of the proceedings. (25
U.S.C. § 1912, subd. (a); § 224.3, subd. (a); § 224.2, subd. (d)
[describing circumstances where there is “reason to know” a child
is an Indian child].)
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We review the juvenile court’s ICWA findings for
substantial evidence, and the appellant bears the burden of
showing insufficient evidence to support the ICWA finding. (In re
Josiah T. (2021) 71 Cal.App.5th 388, 401.)
The Court’s ICWA Finding is not Supported by Substantial
Evidence
Mother contends the Department failed to satisfy its duties
of initial and further inquiry under section 224.2, subdivisions
(a), (b), and (e), because it did not ask maternal grandmother,
maternal uncle, or any extended family about minor’s possible
Indian ancestry. The Department counters that there was
substantial evidence to support the court’s determination that
ICWA was inapplicable. The Department argues that the
information mother provided to the court, including her inability
to provide any contact information for the cousin identified on her
ICWA-020 form and her statements denying that any maternal
grandparents or great-grandparents were born in the United
States, were substantial evidence to support the court’s finding
that ICWA was inapplicable. We agree with mother’s position
that the juvenile court’s May 12, 2021 implied ICWA finding was
not supported by substantial evidence of a meaningful inquiry
following mother’s claim of Indian ancestry. (Elizabeth M.,
supra, 19 Cal.App.5th at p. 786 [Department failed to interview
family members that might have information relevant to
mother’s claim of Indian ancestry].)
The Department’s detention report contains no indication
the social worker asked anyone, including maternal grandmother
or maternal uncle with whom the Department was in contact at
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the outset of the case, if they had any knowledge of minor’s
possible Indian ancestry. As a result, the Department failed to
satisfy its duty of initial inquiry, which includes “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).)
At the detention hearing, mother’s ICWA-020 form asserted
that mother may have Indian ancestry, giving the court and the
Department “reason to believe” an Indian child may be involved,
and triggering a duty of further inquiry. (T.G., supra, 58
Cal.App.5th at p. 292.) Reviewing courts have found the duty of
further inquiry is satisfied when the record contains evidence of a
meaningful inquiry into the possibility that a minor is an Indian
child. (See, e.g., In re D.F. (2020) 55 Cal.App.5th 558, 569–570
[agency’s “repeated efforts to gather information concerning the
children’s maternal ancestry,” including interviewing
grandparents and other family members, provided substantial
evidence of further inquiry]; In re D.S. (2020) 46 Cal.App.5th
1041, 1046–1047, 1052–1054 [agency detailed the efforts by
minor’s aunt (who was also minor’s caregiver) to determine
whether there was any chance of tribal membership, and
contacted multiple tribes with no success in determining minor’s
eligibility for tribal membership].) Acknowledging that the
Department “is not required to ‘cast about’ for information or
pursue unproductive investigative leads” (In re D.S., supra, 46
Cal.App.5th at p. 1053), we still conclude that without any
evidence that the Department made any effort to locate the
relative mother identified in her ICWA-020 form or ask maternal
grandmother or any other available relatives about mother’s
8
claim of Indian ancestry, the court erred in finding ICWA
inapplicable. Further, we find the juvenile court’s questions
asking mother where her parents and grandparents were from
was not, by itself, a meaningful inquiry into the possibility that
minor was an Indian child. (§ 224.2, subd. (e)(2).) The juvenile
court’s effort to extrapolate ICWA’s applicability from mother’s
vague in-court statements does not substitute for the Department
meeting the statutory obligations under the duty of further
inquiry to contact “any other person that may reasonably be
expected to have information regarding the child’s membership
status or eligibility.” (§ 224.2, subd. (e)(2)(B); see In re K.R. (2018)
20 Cal.App.5th 701, 709 [“a social services agency has the
obligation to make a meaningful effort to locate and interview
extended family members to obtain whatever information they
may have as to the child’s possible Indian status”].) The court’s
conclusion that ICWA did not apply was not supported by
substantial evidence. (See, e.g., T.G., supra, 58 Cal.App.5th at
pp. 294–295; accord, In re S.R. (2021) 64 Cal.App.5th 303, 317
[broadly interpreting section 224.2, subdivision (e)’s “reason to
believe” standard requiring further inquiry].)
Prejudicial Error
Although it is typically the appellant’s burden to
demonstrate that an error is prejudicial, when the silent record is
caused by the Department’s and the court’s failure to make
appropriate inquiries, we cannot find the error to be harmless.
(In re N.G. (2018) 27 Cal.App.5th 474, 484 [when the record is
silent as to whether the Department asked the mother or other
maternal relatives whether minor may have maternal Indian
9
ancestry, ICWA error was necessarily prejudicial]; In re K.R.,
supra, 20 Cal.App.5th at p. 708 [appellate review of ICWA
compliance “should not be derailed simply because the parent is
unable to produce an adequate record”]; but see In re A.C. (2021)
65 Cal.App.5th 1060, 1071–1073 [finding ICWA error harmless
because father never claimed Indian ancestry].) On a record that
contains no evidence of any initial inquiries or any further
investigation by the Department after mother claimed Indian
ancestry at the August 31, 2018 detention hearing, we cannot
know within any degree of reasonable probability whether, had
the Department made the requisite effort to interview maternal
grandmother and maternal uncle, it would have discovered
information necessitating further interviews or notice to one or
more Indian tribes. Accordingly, remand is required for the
Department and the court to document additional investigative
efforts, and make findings based upon those additional efforts.
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DISPOSITION
The juvenile court’s order terminating parental rights
under section 366.26 is conditionally affirmed. The case is
remanded to the juvenile court to order the Department to ask
maternal grandmother and any available extended family
members about mother’s claim of Indian ancestry, and report on
the results of the Department’s investigation. Based on the
information presented, if the juvenile court determines that no
additional inquiry or notice to tribes is necessary, the termination
of parental rights is affirmed. If additional inquiry or notice is
warranted, the court shall make orders consistent with ensuring
compliance with ICWA and related California law.
MOOR, J.
I concur:
RUBIN, P.J.
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In re E.G.
B313582
BAKER, J., Concurring
I agree the opinion for the court reaches the correct result
and I join in the disposition. I do not join in all the particulars of
the majority opinion’s analysis.
BAKER, J.