In re V.M. CA2/3

Filed 6/30/22 In re V.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 V.M., a Person Coming B315126
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 21CCJP00020A)
Plaintiff and Respondent,
v.
A.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel Zeke Zeidler, Judge. Conditionally
affirmed with directions.
Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Deputy County
Counsel, for Plaintiff and Respondent.
——————————
Mother appeals from the juvenile court’s order terminating
her parental rights to her infant child, V.M. The only issue
mother raises on appeal is that the Department of Children and
Family Services (DCFS) failed to conduct an adequate initial
inquiry under the Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.) and related state laws implementing
ICWA (Welf. & Inst. Code,1 § 224 et seq.). We agree and
conditionally affirm the order terminating mother’s parental
rights and remand the matter for the limited purpose of requiring
DCFS to comply with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
I. Proceedings leading to the termination of parental
rights2
In January 2021, about a week after V.M. was born, DCFS
filed a dependency petition alleging mother had a history of
substance abuse, is a current abuser of substances, and tested
positive for amphetamine on the day she gave birth to V.M. Also
in January 2021, V.M. was detained from mother’s custody and
placed with maternal great-aunt.
1 All undesignated statutory references are to the Welfare
and Institutions Code.
2 Because mother challenges only the court’s ICWA finding,
we provide only a short summary of the facts underlying the
initiation of V.M.’s dependency proceedings and the termination
of mother’s parental rights.
2
In March 2021, the juvenile court sustained the
dependency petition. At the disposition hearing held in April
2021, the court removed V.M. from mother’s custody and denied
mother’s request for reunification services. Maternal great-aunt
attended the disposition hearing by phone. V.M. remained placed
with her maternal great-aunt.
In August 2021, the court held a permanency planning
hearing. By that time, maternal great-aunt was committed to
adopting V.M. The court found V.M. was adoptable and
terminated mother’s parental rights. The identity of V.M.’s
father was never confirmed before the court terminated mother’s
parental rights.
Mother appealed from the order terminating her parental
rights.
A. ICWA Investigation
Mother grew up in foster care. Aside from V.M.’s maternal
great-aunt, mother is estranged from her biological relatives.
When DCFS contacted mother in late December 2020, she denied
knowing of any Indian ancestry on her side of the family.
Mother didn’t attend the detention hearing held in early
January 2021. At that hearing, the juvenile court found ICWA
did not apply to V.M.’s case.
In March 2021, mother’s counsel filed an ICWA-020 form
on mother’s behalf, checking the box that states “[n]one of the
above apply” concerning whether V.M., mother, or any of
mother’s relatives are members of, or may be eligible for
membership in, a federally recognized tribe. Neither mother nor
her counsel signed the ICWA-020 form. Maternal great-aunt, but
not mother, appeared at the jurisdiction hearing in March 2021.
3
The court didn’t ask maternal great-aunt whether she knew, or
had reason to know, that V.M. is, or may be, an Indian child.
Mother first appeared in this case at the April 2021
disposition hearing. Maternal great-aunt also appeared at the
disposition hearing. The court didn’t ask mother or maternal
great-aunt whether they knew, or had reason to know, V.M. is, or
may be, an Indian child.
In its August 2021 permanency planning hearing report,
DCFS described some of the family history for maternal great-
aunt. Maternal great-aunt was born in Tijuana, Mexico, and
lived in Mexico until she was at least 17 years old. Maternal
great-aunt has 11 siblings, with whom she keeps in touch on a
weekly basis and all of whom still live in Mexico. According to
V.M.’s birth certificate, mother was also born in Mexico. Mother
attended the selection and implementation hearing but was not
asked whether she knew, or had reason to know, V.M. is, or may
be, an Indian child. And although maternal great-aunt did not
attend this hearing, there is no indication in the record that
DCFS or the juvenile court ever asked maternal great-aunt
whether she knew, or had reason to know, whether V.M. is, or
may be, an Indian child.
DISCUSSION
Pursuant to ICWA, “[i]n any involuntary proceeding in a
State court, where the court knows or has reason to know that an
Indian child is involved, the party seeking the foster care
placement of, or termination of parental rights to, an Indian child
shall notify the parent or Indian custodian and the Indian child’s
tribe . . . of the pending proceedings and their right of
4
intervention.”3 (25 U.S.C. § 1912(a).) This notice requirement,
which is also codified in California law (§ 224.2), enables a tribe
to determine whether a child is an Indian child and, if
appropriate, to exercise jurisdiction over a child custody
proceeding (In re Isaiah W. (2016) 1 Cal.5th 1, 8).
During the pendency of a dependency proceeding, the
juvenile court and DCFS have an affirmative and continuing duty
to inquire whether a child is or may be an Indian child. (§ 224.2,
subd. (a); Cal. Rules of Court, rule 5.481(a).) The duty to inquire
begins with the initial contact, including, but not limited to,
asking the party reporting child abuse or neglect whether the
party has any information that the child may be an Indian child.
(§ 224.2, subd. (a).) If DCFS takes a child into temporary
custody, its 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).)4 The court also must make
3 ICWA defines 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); see § 224.1, subd. (a).)
4 ICWA defines “ ‘extended family member’ ” as any person
so defined by the law or custom of the Indian child’s tribe, or in
the absence of such law or custom, “a person who has reached the
age of eighteen 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).)
5
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 a parental notification of Indian status form ICWA-020
(Cal. Rules of Court, rule 5.481(a)(2)(C)).
The juvenile court may find ICWA does not apply to a
child’s proceeding if it finds DCFS’s duty of inquiry has been
satisfied and there is no reason to know that child is an Indian
child. (§ 224.2, subd. (i)(2); Cal. Rules of Court,
rule 5.481(b)(3)(A).)
We generally review the juvenile court’s ICWA findings for
substantial evidence. (In re A.M. (2020) 47 Cal.App.5th 303,
314.) However, “[w]here . . . there is no doubt that [DCFS]’s
inquiry was erroneous, our examination as to whether
substantial evidence supports the juvenile court’s ICWA finding
ends up turning on whether that error by [DCFS] was harmless.”
(In re Dezi C. (June 14, 2022, B317935) ___ Cal.App.5th ___ [2022
Cal.App. Lexis 514, 6–7].)
Mother contends DCFS’s initial inquiry was inadequate
because the agency didn’t interview V.M.’s maternal great-aunt
about the child’s Indian ancestry. We agree. Although mother
denied knowing of any Indian ancestry on her side of the family,
that didn’t relieve DCFS of its duty to ask V.M.’s known extended
family members such as maternal great-aunt about the child’s
Indian ancestry. (§ 224.2, subd. (b).)
DCFS doesn’t dispute that its initial inquiry was
inadequate, but it contends any error in failing to ask maternal
great-aunt about V.M.’s Indian ancestry was harmless because
nothing in the record suggests V.M. or mother are members of, or
6
are eligible for membership in, any federally recognized tribes.
Specifically, DCFS points to the fact that mother and maternal
great-aunt were born in Mexico and that all maternal great-
aunt’s siblings still live there to assert that any additional
inquiry is unlikely to reveal information suggesting V.M. has
American Indian ancestry. We are not persuaded.
We refrain from making any inferences about the
probability of having American Indian ancestry based on
birthplace or country of residence. Here, the record reflects that
DCFS made an ICWA inquiry with one person, mother. The
record also tells us that mother grew up in foster care, estranged
from all her biological relatives except for maternal great-aunt.
Because mother may not be fully informed of her heritage,
maternal great-aunt is likely the best source of information about
the family’s ancestry. Further, because V.M.’s father could not be
determined, there was no inquiry at all as to father. Thus, we
cannot conclude on this set of facts that DCFS’s failure to ask
maternal great-aunt whether V.M. is or may be an Indian child
was harmless. (See In re Dezi C., supra, ___ Cal.App.5th ___
[2022 Cal.App. Lexis 514, 10] [where there is no inquiry into one
of the two parents’ heritage at all, or where parent is not fully
informed of heritage, there is reason to believe child may be
Indian child, and failure to conduct proper initial inquiry not
harmless].)
7
DISPOSITION
The juvenile court’s order terminating mother’s parental
rights is conditionally affirmed. On remand, the court shall
ensure that DCFS complies with the duty of initial inquiry (Welf.
& Inst. Code, § 224.2, subd. (b)) and, if applicable, the duty of
further inquiry (§ 224.2, subd. (e)) and the duty to provide notice
to the pertinent tribes (§§ 224.2, subd. (f) & 224.3, subd. (a)). If
the court determines ICWA does not apply, the order terminating
mother’s parental rights shall remain in effect. If the court
determines ICWA does apply, it shall proceed in conformity with
ICWA and related state law.
NOT TO BE PUBLISHED.
KIM, J.*
I concur:
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
8
LAVIN, Acting P. J., Concurring:
I concur in the judgment. I write separately to clarify that I
disagree with In re Dezi C.’s “fourth rule: 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 children. (In re Dezi
C. (June 14, 2022, B317935) ___Cal.App.5th___ [2022
Cal.App.Lexis 514, at p. *2].)
LAVIN, Acting P. J.