In re D.M. CA2/3

Filed 6/13/22 In re D.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 D.M., a Person Coming B313281
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 21CCJP00812A
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Eric M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore
of the Juvenile Court. Conditionally affirmed and remanded
with directions.
Landon Villavaso, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Aileen Wong, Deputy County Counsel,
for Plaintiff and Respondent.
_________________________
Father Eric M. appeals from the juvenile court’s
dispositional order concerning his child D.M. (born February
2015). He contends the Los Angeles County Department of
Children and Family Services (Department) failed to comply
with its duty of initial inquiry under state law (Welf. & Inst.
Code, § 224 et seq.) implementing the Indian Child Welfare Act
of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) when it did not ask
extended family members if the child had Indian ancestry.1
We conditionally affirm the dispositional order but remand
the matter for the limited purpose of ensuring compliance
with ICWA and related California law.
BACKGROUND
This dependency proceeding concerns father, mother—
who is not a party to this appeal—and their child D.M.
1. Underlying dependency proceedings
The Department became involved when it received a
report alleging mother was smoking methamphetamine in
D.M.’s presence. At the time, mother and father were not in
a relationship; D.M. lived with mother. Father was living with
paternal grandmother, paternal aunt, and D.M.’s half-sibling
1 Undesignated statutory references are to the Welfare
and Institutions Code. Because ICWA uses the term “Indian,”
we do the same for consistency, although we recognize other
terms are preferred. (In re Benjamin M. (2021) 70 Cal.App.5th
735, 739, fn. 1 (Benjamin M.).)
2
S.W.—father’s daughter from another relationship. (The juvenile
court declared S.W. a dependent in February 2011. It ultimately
terminated its jurisdiction and awarded father and S.W.’s mother
joint custody.)
After investigating the initial allegation and additional
allegations about domestic violence between mother and her
boyfriend, the Department had D.M. removed from mother and
released to father. On February 22, 2021, the Department filed
a section 300 petition alleging mother and her male companion
had a history of engaging in violent physical altercations, mother
failed to protect D.M. by allowing her male companion to live in
the home with access to D.M., mother had a history of substance
abuse and currently used methamphetamine, and father, who
knew of the domestic violence and mother’s substance abuse,
failed to take action to protect D.M.
At the February 25, 2021 detention hearing, the court
found father to be D.M.’s presumed father, detained D.M.
from mother, and ordered the child released to father under
the Department’s supervision. According to the Department’s
jurisdiction/disposition report, paternal aunt (mainly) and
paternal grandmother had become D.M.’s primary caretakers,
as father did “not know how to parent.”
Two months later, after it learned father was smoking
marijuana and physically disciplining D.M., the Department
filed a section 385 application to detain D.M. from father and
place her with paternal grandmother. (Father moved out of
the home.) On May 5, 2021, the juvenile court detained D.M.
from father’s custody. The Department then filed a first-
amended section 300 petition, adding allegations that father
had a history of substance abuse and was a current user of
3
marijuana, medically neglected D.M., and physically abused D.M.
by striking her with a belt.
On June 3, 2021, the court convened a combined
jurisdiction/disposition hearing on the amended petition.
The court admitted the Department’s reports into evidence
and took judicial notice of the “judicial file” for S.W.’s dependency
case. After hearing argument, the court sustained the amended
petition—except for the medical neglect allegations against
father—declared D.M. a dependent of the juvenile court, removed
D.M. from parents,2 and ordered monitored visitation and family
reunification services for parents. The court ordered father
to participate in drug testing, parenting classes, and individual
counseling. Father appealed.
2. Facts relevant to ICWA inquiry
During the Department’s initial investigation, mother
told the social worker on January 21, 2021, that her family
had no Indian heritage. The Department’s detention report
prepared on February 18, 2021, states ICWA does not apply.
A Department social worker filled out an Indian Child
Inquiry Attachment, attached to the February 22, 2021 petition,
stating she asked mother and father about the child’s Indian
status, and they “gave [her] no reason to believe the child is
or may be an Indian child.” On February 24, 2021, father filed,
but did not sign, a January 1, 2008 version of the Parental
Notification of Indian Status form (ICWA-020), checking the
box, “I have no Indian ancestry as far as I know,” and the box
indicating no previous ICWA-020 form had been filed with
2 It appears D.M. remained placed with paternal
grandmother.
4
the court.3 On February 25, 2021, mother’s counsel filed,
on mother’s behalf, an unsigned March 25, 2020 version of the
ICWA-020 form and checked the box “None of the above apply.”4
Counsel also checked the box indicating a previous ICWA-020
form had not been filed with the court.
At the February 25, 2021 detention hearing, the court
acknowledged mother had provided it with an ICWA-020 form
“indicating that she does not have any American Indian ancestry
as far as she knows” and found ICWA did not apply to her. The
court noted father similarly had indicated he had no American
Indian ancestry “as far as he knows” in his ICWA-020 form. The
court continued, “So the court is going to find that ICWA does not
apply to him or this case, and the child is residing with the father
so ICWA would not apply anyway.” The court’s corresponding
minute order states: “The Court does not have a reason to know
that this is an Indian Child, as defined under ICWA, and does
not order notice to any tribe or the BIA. Parents are to keep
the Department, their Attorney and the Court aware of any new
information relating to possible ICWA status.” The minute order
also states parents had signed and filed the ICWA-020 forms
but—as we have said—neither form was signed.
3 Father’s counsel may have filled out the ICWA-020 form on
his behalf. The form is typed and includes counsel’s information.
4 The boxes “above” state the parent, child, or one or more of
parent’s lineal relatives “is or may be a member of, or eligible for
membership in, a federally recognized Indian tribe”; the parent or
child “is a resident of or is domiciled on a reservation, rancheria,
Alaska Native village, or other tribal trust land”; the child is or
has been a ward of a tribal court; and either parent or the child
possesses an Indian identification card.
5
The Department’s March 30, 2021 jurisdiction/disposition
report notes that, on March 18, 2021, father stated he did not
have any American Indian ancestry, and, on March 19, 2021,
mother stated she did not have any.
The investigator interviewed paternal grandmother and
paternal aunt about the original petition’s allegations. There
is no indication from the jurisdiction/disposition report that
the investigator asked either about D.M.’s ancestry.
At the June 3, 2021 hearing, the court noted it previously
found ICWA did not apply to father and mother. The court
mistakenly believed “the child is with father[,] [s]o ICWA does
not apply.” Minor’s counsel clarified D.M. was with paternal
grandmother, as the court had detained the child from father
based on a section 385 petition. The court acknowledged
it had done so. The minute order issued after that hearing
does not mention ICWA.
DISCUSSION
Father contends the Department failed in its duty of
inquiry because it did not ask father’s extended family members,
“who had available information that would shed meaningful light
on whether the minor was an Indian child or not,” about D.M.’s
possible Indian ancestry. The Department contends “any
such error is harmless” because father provided “sufficient
and reliable” information “to make a meaningful determination
that [D.M.] was not an Indian child,” based on his repeated
denials of Indian ancestry and considering his “close contact”
with paternal grandmother and paternal aunt. The Department
also argues “the juvenile court’s finding there is no reason to
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know that [D.M.] is an Indian child,” therefore, “is supported
by substantial evidence.”
1. Applicable law and standard of review
Congress enacted ICWA “ ‘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, 7–8; see 25 U.S.C. § 1902.)
Both ICWA and state law define an “ ‘Indian child’ ” as “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); § 224.1, subd. (a)
[adopting federal definition].)
“Because it typically is not self-evident whether a child
is an Indian child, both federal and state law mandate certain
inquiries to be made in each case. These requirements are
sometimes collectively referred to as the duty of initial inquiry.”
(Benjamin M., supra, 70 Cal.App.5th at p. 741.) Federal
regulations implementing ICWA require courts to ask
participants in a dependency case whether they know or have
reason to know the child is an Indian child and to instruct
the parties to inform the court “ ‘if they subsequently receive
information that provides reason to know the child is an
Indian child.’ ” (Ibid.)
California law, however, “more broadly imposes” on
the Department and the juvenile court “(but not parents)
an ‘affirmative and continuing duty to inquire’ whether a child
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in the dependency proceeding ‘is or may be an Indian child.’ ”
(Benjamin M., supra, 70 Cal.App.5th at pp. 741–742, quoting
§ 224.2, subd. (a).) That duty to inquire “begins with [the] initial
contact . . . 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 T.G. (2020) 58 Cal.App.5th
275, 290, citing § 224.2, subds. (a)–(c).)
Under the statute, when the Department takes a child into
its temporary custody, its duty of initial inquiry “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.” (§ 224.2,
subd. (b); Benjamin M., supra, 70 Cal.App.5th at p. 742; see also
In re Darian R. (2022) 75 Cal.App.5th 502, 507.)5 The juvenile
court, in turn, at a party’s first appearance, must 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 require each party to complete an ICWA-020 form
(Cal. Rules of Court, rule 5.481(a)(2)(C)). “The parties are
instructed to inform the court ‘if they subsequently receive
information that provides reason to know the child is an
Indian child.’ (25 C.F.R. § 23.107(a) (2020); § 224.2, subd. (c).)”
(In re D.F. (2020) 55 Cal.App.5th 558, 566.)
5 Extended family members include adults who are the
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); § 224.1, subd. (c) [adopting
federal definition].)
8
Additional steps are required if there is a “reason to
believe” or a “reason to know” an Indian child is involved,
including providing form notice under ICWA to the child’s tribe.
(§§ 224.2, subd. (e), 224.3, subd. (a); Cal. Rules of Court, rule
5.481(c)(1); 25 U.S.C. § 1912(a).)6
We review the juvenile court’s ICWA findings for
substantial evidence. (In re Josiah T. (2021) 71 Cal.App.5th
388, 401.)
2. Substantial evidence does not support the juvenile
court’s finding
In response to father’s contention that it did not
make a sufficient initial ICWA inquiry under section 224.2,
subdivision (b) (224.2(b)), the Department argues any inquiry
error on its part was harmless, and substantial evidence supports
the court’s finding that ICWA does not apply. Assuming, without
deciding, the Department’s initial inquiry under section 224.2(b)
was sufficient, on this record we cannot conclude substantial
evidence supports the court’s finding it did not have reason
to know D.M. is an Indian child, as defined under ICWA.
The Department’s reports reflect that—before D.M. was
removed from father—he twice denied having Indian ancestry,
and he filed an ICWA-020 form denying he had Indian ancestry,
as far as he knew. Father never signed his ICWA-020 form,
however. He thus did not “declare under penalty of perjury”
that his statement was true. And, inexplicably, the form is dated
February 26, 2021—two days after it already had been filed on
February 24, 2021. Moreover, even though father participated
in the February 25, 2021 detention hearing through his counsel’s
6 Those steps aren’t at issue here.
9
speaker phone,7 the court never questioned father directly
about his ICWA-020 form response. (See Cal. Rules of Court,
rule 5.481(a)(2)(A) [“[a]t the first appearance by a parent . . . in
any dependency case . . . the court must [¶] [a]sk each participant
present whether the participant knows or has reason to know
the child is an Indian child”].)
Given the irregularities with father’s ICWA-020 form,
we cannot conclude the court’s acknowledgment on the record
that father “filled out an ICWA-020 form indicating that he
does not have any American Indian ancestry as far as he knows,”
was sufficient to satisfy its obligations under section 224.2,
subdivision (c) and California Rules of Court, rule 5.481(a)(2)(A)
and (C). And, at that point in the proceedings, as the juvenile
court noted, ICWA would not have applied in any event because
D.M. had been removed from mother and placed with father.
(See, e.g., In re M.R. (2017) 7 Cal.App.5th 886, 904 [“ICWA and
its attendant notice requirements do not apply to a proceeding in
which a dependent child is removed from one parent and placed
with another.”].) By the June 3, 2021 jurisdiction and disposition
hearing, that no longer was the case. Yet, at that hearing, the
juvenile court erroneously believed D.M. remained placed with
father—rendering ICWA inapplicable—when it acknowledged
its earlier finding (when D.M. was in father’s care) that ICWA
did not apply to father. After recognizing it had in fact detained
D.M. from father, the court nevertheless made no further finding
concerning ICWA on the record, nor questioned father’s counsel
7 Due to the ongoing COVID-19 pandemic, participants
in the hearings convened during this case appeared through
WEBEX or telephonically.
10
about his Indian status.8 The court’s June 3, 2021 minute order
does not mention ICWA at all.
Accordingly, we cannot conclude there is sufficient evidence
in the record to support the juvenile court’s finding that it had
no reason to know D.M. is an Indian child. As father does not
challenge the merits of the court’s dispositional order—and
does not challenge the court’s jurisdictional findings at all—
we conditionally affirm the court’s dispositional order, but
remand for the court to conduct a new hearing to determine
whether ICWA applies.
Given the current uncertainty in the law concerning
the Department’s obligation to inquire of extended relatives
under section 224.2(b) (compare, e.g., In re Austin J. (2020) 47
Cal.App.5th 870, 887 with In re H.V. (2022) 75 Cal.App.5th 433,
436, 438), we strongly encourage the Department to question
paternal grandmother and paternal aunt—with whom the
Department already is in contact—about D.M.’s Indian status
and to report its findings to the juvenile court for the court
to consider in determining whether it has a reason to know
ICWA applies.9
8 Father’s counsel waived father’s appearance at the June 3,
2021 combined adjudication and disposition hearing, as well as
the earlier May 5, 2021 detention hearing.
9 Although mother was not a party to this appeal, we also
encourage the Department to make a reasonable effort to identify
and question maternal extended family members. According
to the appellate record, mother has two siblings and her father
(who lives in Arizona) is still alive.
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DISPOSITION
We conditionally affirm the court’s June 3, 2021
dispositional order. The case is remanded to the juvenile court to
conduct a new hearing, consistent with this opinion, to determine
if it has reason to know D.M. is an Indian child, as defined under
ICWA.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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