In re T.S. CA2/3

Filed 6/2/22 In re T.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
In re T.S. et al., Persons Coming Under B315552
the Juvenile Court Law.
_____________________________________
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No. DK00847A&B
Plaintiff and Respondent, ORDER
MODIFYING
v. OPINION AND
DENYING
T.S., PETITION FOR
REHEARING [NO
Defendant and Appellant. CHANGE IN
JUDGMENT]
It is ordered that the opinion in this matter, filed May 18,
2022, is modified as follows:
1. Page 10, Disposition is modified to read as follows:
The October 1, 2021 orders terminating parental rights are
conditionally affirmed. The matter is remanded with the
direction to the juvenile court to comply with the inquiry and
notice provisions of ICWA and California law as to mother and
father. Specifically, the juvenile court should direct DCFS to,
within 30 days of the remittitur, (1) make an ICWA inquiry of the
maternal great-grandmother, paternal grandmother, and
paternal grandfather, as well as anyone else these individuals
identify as knowledgeable about whether the children are Indian
children, and (2) report its investigation to the juvenile court. If
the juvenile court determines after reviewing DCFS’s report that
the agency has satisfied its duty of inquiry and there is no reason
to know the children are Indian children, the order terminating
parental rights shall remain the order of the court.
In the alternative, if the juvenile court determines after
further inquiry that there is reason to know the children are
Indian children, the court shall order DCFS to provide notice in
accordance with ICWA. If, after providing proper notice, no tribe
determines the children are Indian children, then the order
terminating parental rights shall remain in effect. If a tribe
determines the children are Indian children, then the juvenile
court shall vacate the order terminating parental rights and
conduct further proceedings, in compliance with ICWA and
related California law.
The petition for rehearing is denied. There is no change in
judgment.
____________________________________________________________
EDMON, P. J. LAVIN, J. EGERTON, J.
2
Filed 5/18/22 In re T.S. CA2/3 (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 THREE
In re T.S. et al., Persons Coming Under B315552
the Juvenile Court Law.
_____________________________________
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No. DK00847A&B
Plaintiff and Respondent,
v.
T.S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Annabelle G. Cortez, Judge. Conditionally affirmed and
remanded with directions.
Vincent Uberti, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter A. Ferrera, Deputy County
Counsel for Plaintiff and Respondent.
_________________________
T.S. (mother) appeals from juvenile court orders
terminating parental rights to her children under Welfare and
Institutions Code1 section 366.26. On appeal, mother’s sole
contention is that the juvenile court erred by finding that the
Los Angeles County Department of Children and Family Services
(DCFS) adequately investigated the children’s possible Indian
ancestry, as required by the Indian Child Welfare Act (ICWA)
(25 U.S.C. § 1901 et seq.) and related state statutes. DCFS
concedes its inquiry was inadequate as to father but maintains it
was adequate as to mother. We conditionally affirm the orders
and remand for compliance with ICWA as to mother and father.
BACKGROUND
The family consists of mother, father (N.S.), and their two
children, T.S. (born January 2010) and N.S. (born June 2011).
The family came to DCFS’s attention in 2013 when it received
reports of domestic abuse and parents’ drug use, which included
methamphetamine and crystal methamphetamine. In August
2013, the children were removed from parents and placed with
maternal grandmother, and the following month, DCFS filed a
petition under section 300 alleging various counts based on
parents’ history of domestic violence and illicit drug abuse.
Mother and father told a social worker that the children
may have Navajo or Blackfeet ancestry. In keeping with that,
mother reported on her ICWA-020 form that she might have
Blackfeet ancestry and that maternal great-grandmother, whose
name mother provided, might have information. Father reported
1All further statutory references are to the Welfare and
Institutions Code.
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on his form that he may have Navajo ancestry.2 At the
September 2013 detention hearing, the juvenile court ordered
DCFS to investigate father’s claim of Navajo heritage (the minute
order did not mention mother’s claim).
The social worker thereafter spoke to maternal
grandmother about possible Blackfeet heritage, but she had no
information about Indian heritage in her family, saying that were
there such heritage, it would be “ ‘way down the line 4–5
generations.’ ” Maternal grandmother further reported that she
was not and has never been registered with a tribe, lived on a
reservation or received tribal services.
At the October 2013 adjudication hearing, the juvenile
court sustained counts relating to parents’ failure to protect the
children from domestic violence and drug abuse. The juvenile
court declared the children dependents of the court, removed
them from parents, and ordered family reunification services.
Further, the juvenile court ordered DCFS to reinterview parents
regarding Indian heritage, to notice the Blackfeet tribe as to
mother and the Navajo tribe as to father, and to give notice to the
Bureau of Indian Affairs.
DCFS then sent two sets of notices to the Bureau of Indian
Affairs, the Secretary of the Interior, Navajo Nation (contact 1),
Ramah Navajo School Board, Navajo Region (contact 2),
Chippewa Cree Tribe of Rocky Boys Reservation of Montana, and
the Blackfeet Tribe. One set of notices was for a December 10,
2013 hearing, but when verification of the notices was not
received by that date, the trial court ordered DCFS to send a
second set of notices and continued the hearing to January 6,
2014. Both sets of notices identified mother and father by name
2 The form also refers to another tribe, but the writing is illegible.
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and date of birth; maternal grandmother by name and date of
birth; maternal grandfather and paternal grandmother by name
only; and maternal great-grandmother by name and date of birth.
Certified mail receipts were returned for both sets of notices. No
responses to the notices were received.
On January 6, 2014, the juvenile court found that ICWA
did not apply and that there was no reason to know the children
were Indian children.
Ultimately, family reunification services were terminated,
and, in October 2014, maternal grandmother and maternal step-
grandfather became the children’s guardians. Jurisdiction was
terminated.
Thereafter, mother and father filed section 388 requests in
2017 and 2018, which were denied.
Then, six years after jurisdiction had been terminated, the
juvenile court reinstated jurisdiction in December 2020 based on
the guardians’/maternal grandmother and maternal step-
grandfather’s request to reopen the matter so that they could
adopt the children, who were thriving in their care, wanted to be
adopted, and did not want to live with parents. On October 1,
2021, the juvenile court terminated parental rights and identified
adoption as the permanent plan. The juvenile court also
considered and denied section 388 petitions mother and father
had filed. At the hearing, the juvenile court noted that it had
previously made a “no ICWA finding” and that “finding remains.”
Mother appealed.
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DISCUSSION
I. ICWA background
ICWA was enacted “ ‘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, 8 (Isaiah W.); see 25 U.S.C. § 1902.) An
“Indian child” is “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); see
also § 224.1, subd. (a) [adopting federal definition of “Indian
child”].)
“[T]he burden of coming forward with information to
determine whether an Indian child may be involved . . . in a
dependency proceeding does not rest entirely—or even
primarily—on the child and his or her family.” (In re Michael V.
(2016) 3 Cal.App.5th 225, 233.) Rather, “[j]uvenile courts and
child protective agencies have ‘an affirmative and continuing
duty to inquire’ whether a dependent child is or may be an Indian
child.” (Ibid.; see also Isaiah W., supra, 1 Cal.5th at pp. 9–11;
§ 224.2, subd. (a).)
This affirmative duty to inquire has several elements. The
statute provides that if a child is removed from his or her parents
and placed in the custody of a county welfare department, DCFS
has a duty to inquire whether a child is an Indian child. Such
inquiry “includes, but is not limited to, asking the child, parents,
legal guardian, Indian custodian, extended family members,
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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 also must make an ICWA
inquiry when the parents first appear in court: The court “shall
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 must require each party to
complete California Judicial Council Form ICWA-020, Parental
Notification of Indian Status (Cal. Rules of Court, rule
5.481(a)(2)(C)).
If the court or social worker has “reason to believe that an
Indian child is involved in a proceeding,” the court or social
worker must “make further inquiry regarding the possible Indian
status of the child” by, among other things, interviewing the
parents and extended family members, and contacting any tribe
that may reasonably be expected to have information about the
child’s membership, citizenship status, or eligibility. (§ 224.2,
subd. (e)(2), italics added.) There is “reason to believe” a child
involved in a proceeding is an Indian child whenever the court or
social worker “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.” (§ 224.2, subd. (e)(1).)
If the agency’s inquiry creates a “reason to know” that an
Indian child is involved, notice of the proceedings must be
provided to the parent, legal guardian, or Indian custodian and
the child’s tribe. (§ 224.2, subd. (f).) There is “reason to know” a
child is an Indian child if any one of six statutory criteria is
met—e.g., if the court is advised that the child “is an Indian
child,” the child’s or parent’s residence is on a reservation, the
child is or has been a ward of a tribal court, or either parent or
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the child possess an identification card indicating membership or
citizenship in an Indian tribe. (§ 224.2, subd. (d).) A
determination by an Indian tribe that a child is or is not a
member of, or eligible for membership in, that tribe “shall be
conclusive.” (§ 224.2, subd. (h).)
If the juvenile court finds that “proper and adequate
further inquiry and due diligence as required in this section 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 apply to the proceedings, “subject to reversal based on
sufficiency of the evidence.” (§ 224.2, subd. (i)(2); see generally In
re Josiah T. (2021) 71 Cal.App.5th 388, 401 [ICWA finding is
reviewed for substantial evidence].)
II. The ICWA findings as to father and mother
Mother contends that the ICWA findings as to herself and
father were not supported by substantial evidence. We agree.
Beginning with father, he reported possible Navajo
heritage, but DCFS did not ask, for example, paternal
grandmother about any possible Indian heritage, even though
DCFS spoke with her multiple times. DCFS therefore concedes
that the order terminating parental rights must be conditionally
affirmed and the matter remanded so that DCFS can comply with
ICWA as to father.
We come to a similar conclusion as to mother. Mother
reported possible Indian ancestry and identified the specific
person who might have knowledge about that ancestry: maternal
great-grandmother. Although DCFS spoke to maternal
grandmother, who said any such heritage was generations-old
and had no further information, DCFS did not speak to maternal
great-grandmother. Under such circumstances, where a person
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with knowledge of possible Indian ancestry has been identified
and the record does not show that DCFS spoke with that person,
attempted to speak to that person, or that the person was
unavailable, we cannot find there is substantial evidence the
children are not Indian children and that the duty of inquiry was
met. (See, e.g., In re K.T. (2022) 76 Cal.App.5th 732 [duty of
further inquiry not satisfied where parents suggested they had
Indian ancestry but agency never followed up with extended
family and sent inadequate ICWA notices]; In re T.G. (2020) 58
Cal.App.5th 275 [duty of initial or further inquiry not met where
mother and maternal grandmother said they might have
Cherokee ancestry but DCFS never further inquired or sent
ICWA notice]; compare In re D.S. (2020) 46 Cal.App.5th 1041,
1046, 1052 [child welfare agency satisfied its duty of further
inquiry]; In re J.S. (2021) 62 Cal.App.5th 678, 690 [inquiry into
father’s possible Indian ancestry adequate where his
grandmother had no information about tribal association and did
not identify other relatives].)
As to the claim that DCFS never spoke to maternal
grandfather, the record suggests otherwise. A social worker’s
declaration, which was attached to the ICWA notices, states that
based on “my investigation [ ], MGF does not claim Indian
heritage.” While mother correctly points out that the social
worker’s reports do not detail any conversation with maternal
grandfather about possible Indian heritage, the record
nonetheless shows that a social worker spoke to him about, for
example, parents’ drug use and that one child had told maternal
grandfather that father hit mother. Given this, mother provides
no reason to discount the social worker’s declaration that
maternal grandfather denied Indian heritage, even if the social
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worker did not elucidate on the specifics of that conversation in
her report. Even so, on remand, we encourage DCFS to include
in any report the results of any inquiry of maternal grandfather
about possible Indian heritage.
Given our conclusion, we need not reach mother’s
additional contention regarding the ICWA notices.
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DISPOSITION
The October 1, 2021 orders terminating parental rights are
conditionally affirmed. The matter is remanded with the
direction to the juvenile court to comply with the inquiry and
notice provisions of ICWA and California law as to mother and
father. Specifically, the juvenile court should direct DCFS to,
within 30 days of the remittitur, (1) make an ICWA inquiry of the
maternal great-grandmother, paternal grandmother, and
paternal grandfather, as well as anyone else these individuals
identify as knowledgeable about whether the children are Indian
children, and (2) report its investigation to the juvenile court. If
the juvenile court determines after reviewing DCFS’s report that
the agency has satisfied its duty of inquiry and there is no reason
to know the children are Indian children, the order terminating
parental rights shall remain the order of the court. In the
alternative, if the juvenile court determines after further inquiry
that there is reason to know the children are Indian children, the
court shall vacate the order terminating parental rights and
conduct further proceedings, in compliance with ICWA and
related California law.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P.J.
We concur:
LAVIN, J. EGERTON, J.
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