In re Audrey L. CA2/7

Filed 12/5/22 In re Audrey L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Audrey L., a Person Coming B318489
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 19CCJP05482A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Elizabeth M., et al.
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Ashley Price, Juvenile Court Referee. Conditionally
affirmed with directions.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant Elizabeth M.
Ernesto Paz Rey, under appointment by the Court of
Appeal, for Defendant and Appellant Marcos L.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel for Plaintiff and Respondent.
INTRODUCTION
Elizabeth M. and Marcos L. appeal from the juvenile court’s
orders under Welfare and Institutions Code section 366.261
terminating their parental rights to their daughter Audrey L.
They argue that the court erred in ruling the parental-benefit
exception to adoption under section 366.26,
subdivision (c)(1)(B)(i), did not apply and that the Los Angeles
County Department of Children and Family Services and the
court failed to fulfill their duty of inquiry under the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related
California law. We conclude that the juvenile court did not err in
ruling the parental-benefit exception did not apply, but that the
court failed to ensure the Department complied with the inquiry
provisions of ICWA and related California law. Therefore, we
conditionally affirm the juvenile court’s orders terminating
Elizabeth’s and Marcos’s parental rights and direct the court to
ensure the Department conducts a proper and thorough inquiry
into Audrey’s possible Indian ancestry.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Juvenile Court Detains Audrey, Asserts
Jurisdiction, and Removes Audrey from Elizabeth
and Marcos
One day in July 2019, when Audrey was eight months old,
Elizabeth sent a text message to her mother stating she “‘wanted
to crash along with the baby,’” meaning Audrey. Elizabeth’s
mother contacted the police and told Elizabeth to go home with
Audrey. After Elizabeth returned home, a police officer
interviewed her and provided her with mental health resources.
A few days later, a Department social worker interviewed
Elizabeth, who told the social worker that, for a few days, “she
felt like crying uncontrollably” and that she “called an agency to
get help.” Elizabeth said she “was feeling better now” and never
wanted to hurt Audrey. A few weeks later, Elizabeth tested
positive for marijuana; she also overdosed on alprazolam in an
attempt to kill herself. Elizabeth told the social worker that she
took the pills because Marcos recently tried to force her car door
open while she was parked in her driveway. Elizabeth also
recounted a recent incident where Marcos burned her finger with
nitrous oxide. Elizabeth stated that she and Marcos had a
history of domestic violence and that she had obtained a
protective order against him.
Marcos told the social worker that, the night before
Elizabeth overdosed on alprazolam, she went to his house, asked
to see his phone, and when he refused, called the police.
According to Marcos, Elizabeth sent text messages to Marcos that
said: “‘I just don’t care anymore,” “‘I’m just going to take some
pills,”’ “‘I [will] have my homies jump you,’” and “‘I just took all
the pills, whatever happens, I love you.’” Marcos denied using
any drugs or burning Elizabeth’s finger with nitrous oxide;
3
Marcos stated he saw a tank of nitrous oxide and bottles of beer
in Elizabeth’s car. Marcos admitted he had a criminal history,
including an arrest for violating the protective order that
prohibited him from having contact with Elizabeth.
The Department filed a petition under section 300,
subdivision (b)(1), alleging Elizabeth’s mental and emotional
illness, suicidal ideation, attempted suicide, and history of
substance abuse rendered her incapable of providing Audrey with
regular care and supervision and created a substantial risk
Audrey would suffer serious physical harm. The Department
also alleged that Marcos failed to protect Audrey from Elizabeth’s
substance abuse and that Marcos’s history of substance abuse
rendered him incapable of providing Audrey with regular care
and supervision and created a substantial risk Audrey would
suffer serious physical harm.2 The juvenile court detained
Audrey; ordered Elizabeth and Marcos to participate in parenting
classes, individual counseling, and drug testing; and ordered the
Department to provide Elizabeth and Marcos with separate,
monitored visits three times a week for three hours each visit.
In a report prepared for the combined jurisdiction and
disposition hearing, the Department stated Audrey was growing
and developing appropriately in the home of Josefina C., her
paternal great aunt. Josefina reported that Elizabeth visited or
called approximately once a week and that, before Marcos was
incarcerated, he visited three times a week.
Elizabeth and Marcos pleaded no contest to the allegations
in the petition. The court sustained the petition as amended,
declared Audrey a dependent child of the court, and removed her
2 The Department subsequently amended the petition to add
a count under section 300, subdivision (b)(1), based on the history
of domestic violence between Elizabeth and Marcos.
4
from Elizabeth and Marcos. The court ordered Elizabeth and
Marcos to complete a domestic violence program, parenting
classes, individual counseling, and random, on-demand drug
testing. The court ordered monitored visits for a minimum of two
times a week for two hours each visit.
B. Elizabeth and Marcos Fail To Reunify with Audrey,
and the Court Terminates Their Parental Rights
In a report prepared for the six-month review hearing
under section 366.21, subdivision (e), the Department stated
Audrey appeared happy and was developing appropriately in
Josefina’s home. Elizabeth visited Audrey weekly, and Marcos
visited “sporadically.” Josefina reported that Elizabeth “was very
hands on with Audrey” and that “Audrey was always very happy
to see [Elizabeth].” After Marcos was released from jail, he
visited Audrey weekly, and Audrey “appeared to be more bonded”
with Marcos and often cried when he left.
For the 12-month review hearing under section 366.21,
subdivision (f), the Department observed in its report that
Audrey remained bonded with Josefina and Josefina’s other
children. Josefina reported that, during some of Elizabeth’s
virtual visits with Audrey, if a male voice came on the call,
Elizabeth abruptly disconnected the call and stated her “‘phone
died.’” When Marcos had virtual visits with Audrey, Audrey
sometimes pointed to the screen and said, “‘Liz! Liz!’” (Marcos’s
relatives called Elizabeth “Liz.”)
The Department’s report for the 18-month review hearing
under section 366.22 reflected that, during this review period,
Elizabeth visited “consistently” twice a week. Josefina told the
social worker that, during a virtual visit, Elizabeth was taking a
bubble bath and “‘it seemed like someone was in the bathroom
5
with her” because Elizabeth “‘kept looking to the side as though
someone else was in there.’”
A status report six months later stated that Elizabeth had
been in a car accident and that, for approximately one month
after the accident, she visited “semi-regularly.” Josefina reported
Elizabeth often did not call Audrey for a virtual visit at the
agreed-upon time and instead called late in the evening, after
Audrey had fallen asleep. The social worker reported an incident
in September 2021 where Elizabeth and Marcos forced their way
into the home of Audrey’s paternal grandmother; Elizabeth was
under the influence and acted “erratically” before the police were
called to escort her away.
At each of the review hearings, the court found returning
Audrey to Elizabeth or Marcos would create a substantial risk of
detriment and maintained Audrey’s placement with Josefina.
After the last review hearing, the court terminated reunification
services for Elizabeth and Marcos and set the matter for a
selection and implementation hearing under section 366.26.
The Department’s report for the hearing under section
366.26 summarized Elizabeth’s “sporadic and inconsistent”
visitation with Audrey. The Department reported that, after one
visit in October 2021, when Elizabeth dropped off Audrey at
Josefina’s house, Elizabeth “was confrontational” and that, when
Josefina tried to close the door, Elizabeth put her foot in the door
to prevent the door from closing and accused Josefina “of being
the reason [Audrey] was taken from her.” The social worker
stated this confrontation occurred in front of Audrey. The report
indicated Elizabeth at times followed the schedule for her
monitored visits with Audrey, but at times she did not. Shortly
before the selection and implementation hearing, Elizabeth
cancelled two visits in one week. The social worker concluded
that, although Audrey was “usually happy” to see Elizabeth,
6
there did not appear to be a “significant bond” between them and
that Audrey had a “healthy, positive attachment” to Josefina,
looked to her for attention, and called her “‘mom.’”
The Department’s report also summarized Marcos’s
sporadic and inconsistent visitation with Audrey. During his
visits he mostly took pictures of Audrey and left the feeding and
changing to Josefina. The social worker concluded that Marcos
did not have significant contact or visitation with Audrey and
that, as a result, Audrey did not have a significant bond with
him.
On February 8, 2022, after denying a petition Elizabeth
had filed under section 388, the juvenile court proceeded to the
hearing under section 366.26 to select and implement a
permanent plan for Audrey. Elizabeth testified that she visited
Audrey “as much as” she could, but that the schedule “always
change[d],” which made it difficult for her to visit consistently.
Elizabeth stated that, for the past six months, she visited every
weekend for approximately nine hours over two days and that
she called for a virtual visit three times a week. Elizabeth
accused Josefina and the social worker of creating “barriers” to
visitation by “removing” her hours. Elizabeth described the “fun”
activities she and Audrey did together, such as doing arts and
crafts and going on outings to the park or beach. When asked by
her attorney if she ever acted in a “parental role,” Elizabeth said
that Audrey “always” felt safe with her and that she “constantly”
talked to Audrey about her feelings. Elizabeth stated that, at the
beginning of every visit, Audrey runs to her and says, “Mommy,
mommy, mommy.” According to Elizabeth, Audrey was “very
attached” to her. Elizabeth described one visit where Audrey was
“very happy” to see her because she had not seen her for two or
three weeks; at the end of the visit, Elizabeth said, Audrey cried
“really bad” and “threw up all over herself.”
7
Marcos described the activities he did with Audrey,
including teaching her how to dance, color, and drink out of “big
girl” cups. Marcos said he went to all of Audrey’s medical
appointments before he went to jail “over false accusations.”
Josefina testified she monitored the virtual visits between
Elizabeth and Audrey. Josefina said that Elizabeth appeared
intoxicated during her calls with Audrey “on more than one
occasion” and that Elizabeth missed some of her scheduled
in-person visits. Josefina explained Audrey cried after some of
the visits because she was tired from “a lot of activities” she did
with Elizabeth. Josefina stated Audrey calls her “mom” and calls
Elizabeth “Elizabeth.” According to Josefina, when Elizabeth
fails to call at the designated time, “every so often” Audrey asks
Josefina, “Mom, where is Elizabeth? Can I talk to Elizabeth?”
Josefina testified she stopped monitoring Elizabeth’s visits after
Elizabeth dropped Audrey off one day and “was being extremely
aggressive” with Josefina. Josefina said Marcos did not attend
all of his scheduled in-person visits with Audrey and did not
always stay for the entire length of the visit. Josefina stated
neither parent attended any of Audrey’s medical appointments in
the two and a half years Audrey lived with her or inquired about
Audrey’s eye or skin condition.
The court stated it would consider the elements a parent
must prove to establish the parental-benefit exception applies
under In re Caden C. (2021) 11 Cal.5th 614 (Caden C.):
(1) whether Elizabeth and Marcos regularly visited Audrey,
(2) whether Audrey had a substantial, positive, emotional
attachment to her parents such that she would benefit from an
ongoing relationship with them, and (3) whether terminating
that relationship would be detrimental to Audrey when weighed
against what the court called “the sense of belonging that a new
family would confer” on her. The court found Elizabeth and
8
Marcos did not have regular or consistent contact with Audrey
and did not engage in “meaningful parental activities.” The court
cited the statements in the Department’s reports that Elizabeth’s
in-person visits were “sporadic and inconsistent” and that she
often missed “the [virtual] calls as well.” The court observed
Elizabeth had very recently cancelled two visits in one week.
Turning to the second element of the parental-benefit
exception, the court cited a “pattern” of “inappropriate conduct”
that was “detrimental” and “very concerning to the court.” The
court referred to an incident where Elizabeth and Marcos were
both under the influence and forced their way into the paternal
grandmother’s home and another incident where, after a visit
with Audrey, Elizabeth placed her foot in Josefina’s doorway,
which made Josefina feel “threatened.” The court pointed to
evidence Elizabeth and her boyfriend threatened Marcos, which
suggested they knew where Josefina and her relatives lived.3
The court found that Marcos’s visits “primarily” consisted of him
taking photographs of Audrey, that he did not feed or change her
but instead asked Josefina to watch her while he went outside to
smoke a cigarette, and that he sometimes ended the visits early
when his friends arrived. The court found that, for both parents,
“There hasn’t been regular and consistent quality visitation.”
For the third element of the parental-benefit exception, the
court concluded the physical and emotional benefit Audrey would
3 Marcos testified that, the day before the hearing, Elizabeth
and her boyfriend called and threatened him. Marcos stated
Elizabeth had threatened him in the past, including one incident
where she said: “Just you watch. You’re a little bitch. I know
where your mom lives. I know where your grandma lives. I
know where your aunt lives.”
9
receive through permanency and adoption outweighed any
benefit from her relationship with Elizabeth or Marcos. The
court observed that Audrey, now three and a half years old, had
been living with Josefina “for an extended period of time.” The
court ruled no exception to adoption applied, terminated
Elizabeth’s and Marcos’s parental rights, and designated Josefina
as the prospective adoptive parent. Elizabeth and Marcos timely
appealed.
DISCUSSION
A. The Juvenile Court Did Not Err in Ruling the
Parental-benefit Exception Did Not Apply
1. Applicable Law and Standard of Review
The parental-benefit exception applies in “‘exceptional
circumstances’” where the evidence shows the child has such a
strong emotional attachment to the parent that terminating
parental rights “would be detrimental to the child.” (Caden C.,
supra, 11 Cal.5th at pp. 630-631; see § 366.26, subd. (c)(1)(B)(i);
In re D.P. (2022) 76 Cal.App.5th 153, 163.) This exception
permits the court to choose an option at the selection and
implementation hearing “‘other than the norm, which remains
adoption.’” (Caden C., at p. 631; see In re Eli B. (2022) 73
Cal.App.5th 1061, 1068; In re J.D. (2021) 70 Cal.App.5th 833,
852.) To prove the exception applies, the parent must show, by a
preponderance of the evidence, “regular visitation and contact
with the child, taking into account the extent of visitation
permitted”; “that the child has a substantial, positive, emotional
attachment to the parent—the kind of attachment implying that
the child would benefit from continuing the relationship”; and
“that terminating that attachment would be detrimental to the
10
child even when balanced against the countervailing benefit of a
new adoptive home.” (Caden C., at p. 636; see In re Eli B., at
pp. 1067-1068; In re J.D., at p. 854.) The parent has the burden
to establish this exception. (Caden C., at p. 635; In re A.G. (2020)
58 Cal.App.5th 973, 996.)
“A substantial evidence standard of review applies to the
first two elements.” (Caden C., supra, 11 Cal.5th at p. 639; see
In re D.P., supra, 76 Cal.App.5th at p. 165; In re Eli B., supra,
73 Cal.App.5th at p. 1068.) “The third element—whether
termination of parental rights would be detrimental to the
child—is somewhat different. As in assessing visitation and the
relationship between parent and child, the court must make a
series of factual determinations,” which “are properly reviewed
for substantial evidence.” (Caden C., at p. 640; see In re D.P., at
p. 165; In re Eli B., at p. 1068.) The “ultimate decision—whether
termination of parental rights would be detrimental to the child
due to the child’s relationship with his parent—is discretionary
and properly reviewed for abuse of discretion.” (Caden C., at
p. 640; see In re D.P., at p. 165; In re Eli B., at p. 1068.)
2. Substantial Evidence Supported the Juvenile
Court’s Finding Elizabeth Did Not Visit Audrey
Consistently
The first element a parent must prove to establish the
parental-benefit exception, regular visitation and contact, “is
straightforward. The question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court
orders.’” (Caden C., supra, 11 Cal.5th at p. 632; see In re A.L.
(2022) 73 Cal.App.5th 1131, 1151 [“‘“[s]poradic visitation is
insufficient”’”].) Substantial evidence supported the juvenile
court’s finding Elizabeth did not visit consistently with Audrey
twice a week, the level of visitation and contact permitted by the
11
court.4 While Elizabeth visited “consistently” twice a week for a
few months before the 18-month review hearing, the
Department’s reports for all the other review periods stated
Elizabeth did not visit consistently or did not do so twice a week.
When Elizabeth could not visit in person because of her car
accident, she often missed appointments for virtual calls. As the
court pointed out, Elizabeth cancelled two in-person visits with
Audrey as recently as a week and a half before the selection and
implementation hearing. The evidence amply supported the
court’s finding that, over the course of the dependency case,
Elizabeth did not maintain consistent and regular contact with
Audrey. (See In re Eli B., supra, 73 Cal.App.5th at p. 1070
[substantial evidence supported the juvenile court’s finding the
father “did not meet his burden to prove that he ‘maintained
regular visitation and contact’” where the father’s visitation with
his children “was sporadic and also entailed significant gaps”];
In re I.R. (2014) 226 Cal.App.4th 201, 212 [substantial evidence
supported the juvenile court’s finding the parents failed to
establish they regularly visited their children where there were
“significant lapses in visits”].)
Elizabeth and Marcos argue that, while Elizabeth’s record
of visitation “may not have been perfect,” her visitation and
contact with Audrey “was substantial” and “sufficient to continue
or develop an emotional, positive attachment.” But that is not
the standard; rather, as discussed, the standard is whether
Elizabeth visited consistently to the extent permitted by the court
orders. She did not. True, Elizabeth testified otherwise, but the
4 Neither Marcos nor Elizabeth challenges the juvenile
court’s ruling the parental-benefit exception did not apply to
Marcos.
12
juvenile court did not credit her testimony, and we do not revisit
that credibility finding. (See Caden C., supra, 11 Cal.5th at p.
640 [“a reviewing court should ‘not reweigh the evidence,
evaluate the credibility of witnesses, or resolve evidentiary
conflicts’”]; In re Katherine J. (2022) 75 Cal.App.5th 303, 317-318
[juvenile court’s factual determinations “should ‘be upheld if . . .
supported by substantial evidence, even though substantial
evidence to the contrary also exists and the trial court might have
reached a different result had it believed other evidence’”].)
Citing Caden C., supra, 11 Cal.5th at page 632, Elizabeth
and Marcos argue that the purpose of regular visitation and
contact “is ‘not to punish parents or reward them for good
behavior in visiting or maintaining contact’” and that “‘the focus
is on the best interests of the child.’” They ignore, however, the
evidence the lapses in visits did not benefit Audrey, and in fact
may have had adversely affected her. (See In re Eli B., supra, 73
Cal.Ap.5th at p. 1070 [“the visitation element is to be understood
in light of the overall purpose of the beneficial relationship
exception”].) When Elizabeth failed to call Audrey at the
designated time Audrey had come to expect as part of her
routine, Audrey asked Josefina where Elizabeth was and when
she could talk to Elizabeth, which indicated Audrey was
concerned and disappointed. (See In re Eli B., at p. 1071 [father’s
“failure to take regular advantage of his visitation rights
adversely impacted his son,” where the child expressed increased
anger, worry, and disappointment about the father’s inconsistent
visitation].)
13
3. Substantial Evidence Supported the Juvenile
Court’s Finding Audrey Did Not Have a
Substantial, Positive, Emotional Attachment to
Elizabeth
In determining whether a parent has proved the second
element of the parental-benefit exception, “courts assess whether
‘the child would benefit from continuing the relationship’” by
considering “how children feel about, interact with, look to, or
talk about their parents.” (Caden C., supra, 11 Cal.5th at p. 632;
see In re Katherine J., supra, 75 Cal.App.5th at p. 317; In re A.L.,
supra, 73 Cal.App.5th at p. 1151.) The “focus is the child,” and
“the relationship may be shaped by a slew of factors, such as
‘[t]he age of the child, the portion of the child’s life spent in the
parent’s custody, the “positive” or “negative” effect of interaction
between parent and child, and the child’s particular needs.’”
(Caden C., at p. 632; see Katherine J., at p. 317; In re A.L., at
p. 1151.)
In finding Audrey did not have a “substantial, positive,
emotional attachment” to Elizabeth, the juvenile court considered
Elizabeth’s “detrimental conduct,” including Elizabeth’s
aggressive behavior toward Josefina, which occurred in front of
Audrey. Such behavior, along with evidence Elizabeth appeared
intoxicated during some of the virtual visits, intermittently
looked aside while taking a bath during one of the virtual visits,
and abruptly ended some of the virtual visits when a male voice
was heard in the background, supported the court’s finding
Elizabeth failed to demonstrate she had consistent, quality visits.
(See Caden C., supra, 11 Cal.5th at p. 637 [“A parent’s struggles
may mean that interaction between parent and child at least
sometimes has a ‘“negative” effect’ on the child.”]; In re
Katherine J., supra, 75 Cal.App.5th at pp. 321-322 [although the
father and his daughter had “maintained a warm and loving
14
relationship,” his violent conduct during one visit “diminished
any benefits she derived from a continuing relationship with
him”].) The court also properly considered that Audrey had spent
almost all of her life in the care of Josefina, to whom she had a
strong, healthy attachment, and that Elizabeth did not appear
concerned with eye and skin conditions Audrey had that required
special attention. (See Caden C., at p. 632.)
Elizabeth and Marcos point to Elizabeth’s testimony that,
at the end of visits, Audrey sometimes cried, resisted leaving, and
made statements like “I don’t want to go” and “I want to be with
you, mom.” Josefina, however, testified Audrey called her “mom,”
which the social worker corroborated in the report for the section
366.26 hearing, and the evidence suggested Audrey called
Elizabeth “Elizabeth” or “Liz.” As discussed, we do not revisit
conflicts in the evidence the juvenile court resolved. (See Caden
C., supra, 11 Cal.5th at p. 640.) At most, the record showed
Audrey delighted in going out and playing with Elizabeth, which
is not enough to meet the standard for establishing the second
element of the parental-benefit exception. (See In re G.H. (2022)
84 Cal.App.5th 15, 25 [“Friendly or affectionate visits are not
enough.”]; In re Katherine J., supra, 75 Cal.App.5th at p. 318
[“the beneficial relationship exception demands something more
than the incidental benefit a child gains from any amount of
positive contact with her natural parent”]; In re Autumn H.
(1994) 27 Cal.App.4th 567, 575 [parental-benefit exception
“applies only where the court finds regular visits and contact
have continued or developed a significant, positive, emotional
attachment from child to parent”].)
15
B. The Juvenile Court Erred in Failing To Ensure the
Department Complied with ICWA and
California Law
1. Applicable Law
“ICWA and governing federal regulations (25 C.F.R.
§ 23.101 et seq. (2022)) set minimal procedural protections for
state courts to follow before removing Indian children and placing
them in foster care or adoptive homes.”5 (In re Rylei S. (2022)
81 Cal.App.5th 309, 316; see In re J.C. (2022) 77 Cal.App.5th 70,
77; In re Y.W. (2021) 70 Cal.App.5th 542, 551.) “The minimum
standards established by ICWA include the requirement of notice
to Indian tribes in any involuntary proceeding in state court to
place a child in foster care or to terminate parental rights ‘where
the court knows or has reason to know that an Indian child is
involved.’” (In re Isaiah W. (2016) 1 Cal.5th 1, 8; see 25 U.S.C.
§ 1912(a); In re H.V. (2022) 75 Cal.App.5th 433, 436; In re T.G.
(2020) 58 Cal.App.5th 275, 287-288.) ICWA’s notice
requirements “facilitate a determination of whether the child is
an Indian child under ICWA” and ensure an Indian tribe “is
aware of its right to intervene in or, where appropriate, exercise
jurisdiction over a child custody proceeding involving an Indian
child.” (Isaiah W., at p. 8; see In re Antonio R. (2022)
76 Cal.App.5th 421, 429.)
5 “‘For purposes of ICWA, an “Indian child” is an unmarried
individual under age 18 who is either a member of a federally
recognized Indian tribe or is eligible for membership in a
federally recognized tribe and is the biological child of a member
of a federally recognized tribe.’” (In re Rylei S. (2022)
81 Cal.App.5th 309, 317, fn. 5; see 25 U.S.C. § 1903(4); § 224.1,
subd. (a).)
16
“To ensure Indian tribes may exercise their rights in
dependency proceedings as guaranteed by ICWA and related
state law, investigation of a family member’s belief a child may
have Indian ancestry must be undertaken and notice provided to
the appropriate tribes.” (In re Rylei S., supra, 81 Cal.App.5th at
p. 316; see In re J.S. (2021) 62 Cal.App.5th 678, 688.) Federal
regulations implementing ICWA require that state courts “ask
each participant in an emergency or voluntary or involuntary
child-custody proceeding whether the participant knows or has
reason to know that the child is an Indian child. [Citation.] The
court must also instruct the parties to inform the court if they
subsequently receive information that provides reason to know
the child is an Indian child.” (In re J.C., supra, 77 Cal.App.5th at
p. 77, internal quotation marks omitted; see In re Josiah T.
(2021) 71 Cal.App.5th 388, 402-403.)
In addition, section 224.2, subdivision (a), imposes on
courts and child protective agencies “‘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.’” (See In re Rylei S., supra, 81 Cal.App.5th at
p. 316; In re Y.W., supra, 70 Cal.App.5th at p. 551.) Section
224.2, subdivision (b), requires the child protective agency 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, an Indian child and where the child, the parents, or
Indian custodian is domiciled.”6 (See Rylei S., at p. 316; Y.W., at
6 “‘[E]xtended family member’ shall be 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
17
pp. 551-552; Cal. Rules of Court, rule 5.481(a)(1).) And section
224.2, subdivision (e), “imposes a duty of further inquiry
regarding the possible Indian status of the child ‘[i]f the court,
social worker, or probation officer has reason to believe that an
Indian child is involved in a proceeding, but does not have
sufficient information to determine there is reason to know that
the child is an Indian child.’” (Rylei S., at pp. 316-317; see
§ 224.2, subd. (e); Y.W., at p. 552; Cal. Rules of Court, rule
5.481(a)(4).)
“‘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.’” (In re
Rylei S., supra, 81 Cal.App.5th at p. 317; see In re Antonio R.,
supra, 76 Cal.App.5th at p. 430.) If the inquiry required under
section 224.2, subdivisions (b) and (e), “‘“‘results in a reason to
know the child is an Indian child, then the formal notice
requirements of section 224.3 apply.’”’” (In re J.C., supra,
77 Cal.App.5th at p. 78; see In re Josiah T., supra,
71 Cal.App.5th at pp. 404-405.) “‘“‘The juvenile court must
determine whether proper notice was given under ICWA and
whether ICWA applies to the proceedings.’” [Citation.] “If the
court makes a finding that proper and adequate further inquiry
and due diligence as required in [section 224.2] 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
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 § 224.1,
subd. (c) [the term “‘extended family member’” shall be defined
“as provided in Section 1903 of the federal Indian Child Welfare
Act”].)
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apply to the proceedings, subject to reversal based on sufficiency
of the evidence.”’” (J.C., at p. 78; see § 224.2, subd. (i)(2); see
Josiah T., at p. 408 [“the court may not find that ICWA does not
apply when the absence of evidence that a child is an Indian child
results from a [child protective agency] inquiry that is not proper,
adequate, or demonstrative of due diligence”]; Cal. Rules of
Court, rule 5.481(b)(3).)
2. The Department Did Not Comply with Its Duty
of Inquiry Under ICWA and California Law
Elizabeth and Marcos contend, the Department does not
contest, and we agree the Department failed to comply with
ICWA and section 224.2, subdivision (b). On each of their ICWA-
020 forms, Elizabeth and Marcos checked the box next to the
statement, “I have no Indian ancestry as far as I know.” The
detention report stated: “The Indian Child Welfare Act does not
apply. On 7/23/2019, mother Elizabeth . . . denied the child has
any Indian Ancestry, and completed [a Department
questionnaire] reflecting such.” The report for the combined
jurisdiction and disposition hearing stated ICWA “does not apply”
and cited Elizabeth’s and Marcos’s statements denying Audrey
had any known Indian ancestry. It appears the Department
relied exclusively on Elizabeth’s and Marcos’s representations (as
far as they knew) to conclude ICWA did not apply. The
Department did not interview any extended family members,
including Audrey’s maternal grandmother, paternal
grandmother, and paternal aunt, even though the social worker
spoke to each of these family members in the course of her
investigation into the allegations in the petition.
Nor does the record reflect the juvenile court ensured the
Department complied with its statutory duty to conduct a full
inquiry of Audrey’s possible Indian ancestry (or made any
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inquiries of its own). At the detention hearing, the court stated:
“Both parents indicate no American Indian ancestry. Therefore,
the court has no reason to know that this child is an Indian child
under the Indian Child Welfare Act.” At the combined
jurisdiction and disposition hearing, the court acknowledged the
paternal grandmother’s and the paternal aunt’s presence, but did
not ask them about Audrey’s possible Indian ancestry. Like the
Department, the court erroneously relied solely on Elizabeth’s
and Marcos’s denials of known Indian ancestry to conclude ICWA
did not apply. (See In re Rylei S., supra, 81 Cal.App.5th at p. 318
[“Regardless of a parent’s response concerning his or her possible
Indian ancestry on the ICWA-020 Parental Notification of Indian
Status form or when questioned by the court at the initial
appearance, if . . . a child has been detained and placed in
temporary custody of a child protective agency, section 224.2,
subdivision (b), requires the agency to ask the child, the parents,
extended family members and others who have an interest in the
child whether the child is, or may be, an Indian child.”]; In re
Antonio R., supra, 76 Cal.App.5th at p. 431 [“section 224.2
required the Department to inquire of [the child’s] extended
family members regarding his possible Indian ancestry, and it
was error for the Department to fail to do so”].)
The Department, recognizing we have held such errors are
not harmless, asks us to “conditionally affirm the order
terminating parental rights and remand the matter for
compliance under the ICWA and related California law.” Agreed.
The extended relatives the Department skipped over in its initial
inquiry likely had information that would bear meaningfully on
the court’s determination whether Audrey is an Indian child.
(See In re Antonio R., supra, 76 Cal.App.5th at p. 435 [“In most
circumstances, the information in the possession of extended
relatives is likely to be meaningful in determining whether the
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child is an Indian child—regardless of whether the information
ultimately shows the child is or is not an Indian child.”].)
Without a proper inquiry by the court or the Department to
address the lack of information about Audrey’s possible Indian
ancestry, Elizabeth and Marcos do not have to make a showing of
prejudice. (See In re H.V., supra, 75 Cal.App.5th at p. 438 & fn. 4
[where the record “demonstrates that the Department failed to
discharge its first-step inquiry duty, we conclude that [the]
mother’s claim of ICWA error was prejudicial and reversible”
because the Department’s failure “is responsible for the absence
of information in the record about the child’s possible Indian
ancestry”]; but see In re Dezi C. (2022) 79 Cal.App.5th 769, 774
[“An agency’s failure to discharge its statutory duty of initial
inquiry is harmless unless the record contains information
suggesting a reason to believe that the children at issue may be
‘Indian child[ren],’ in which case further inquiry may lead to a
different ICWA finding by the juvenile court.”], review granted
Sept. 21, 2022, S275578.)
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DISPOSITION
The juvenile court’s orders terminating Elizabeth’s and
Marcos’s parental rights to Audrey are conditionally affirmed.
The juvenile court is directed to ensure the Department complies
fully with the inquiry and, if necessary, notice provisions under
ICWA and related California law.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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