In re N.V. CA2/1

Filed 6/30/22 In re N.V. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
In re N.V., et al., Persons Coming B316635
Under the Juvenile Court Law.
_________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP03970)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
W.H.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Steff R. Padilla, Judge Pro Tempore. Affirmed with
directions.
Terence M. Chucas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.
W.H. (Father) appeals from the juvenile court’s orders
terminating his parental rights to two of his children, N.V. and
K.V. (the children). Father contends that the Los Angeles County
Department of Children and Family Services (DCFS) failed to
comply with its duty of inquiry to determine whether there is a
reason to believe that the children are Indian children within the
meaning of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901et seq.). We agree with Father and remand the case to the juvenile
court with directions to ensure compliance with ICWA and
California’s ICWA related law.
FACTUAL AND PROCEDURAL SUMMARY1
In July 2020, the mother, Rebecca V. (Mother), tested positive
for amphetamines and marijuana when she gave birth to K.V. K.V.
also tested positive for these substances. At that time, Father was
incarcerated. N.V. was nine months old and in Mother’s care.
DCFS took the children into protective custody and placed
N.V. with a maternal aunt. K.V. remained in the hospital for
approximately seven weeks after her birth, and was then placed
with the maternal aunt. The children remained in that placement
throughout the dependency proceeding.
On July 28, 2020, DCFS filed a juvenile dependency
petition concerning the children. Under Welfare and Institutions
Code section 300, subdivisions (b) and (j),2 DCFS alleged that
Mother and Father have an extensive substance abuse history that
1 Because the only issue on appeal is whether DCFS’s failure,
if any, to comply with its duty of inquiry under section 224.2
requires reversal of the court’s orders, we focus on the facts and
procedural history relevant to that issue.
2Subsequent unspecified statutory references are to the
Welfare and Institutions Code.
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renders them incapable of providing for the children, and Father
has a criminal history that includes convictions for drug related
offenses.
In the petition, a social worker stated that on July 24, 2020,
she spoke with the maternal aunt, who stated that neither Mother
nor Father have Indian ancestry.
On July 31, 2020, Mother filed Parental Notification of
Indian Status forms (Judicial Council Forms, form ICWA-020
(rev. Mar. 25, 2020)) for the children. The form calls for the parent
to check a box if any of the following applies: (1) the parent is
or may be a member of, or eligible for membership in, a federally
recognized Indian tribe; (2) the child is or may be a member of, or
eligible for membership in, a federally recognized Indian tribe;
(3) one or more of the parent’s lineal ancestors is or was a member
of a federally recognized Indian tribe; (4) the parent or the child
is a resident of or domiciled on a reservation, rancheria, Alaska
Native village, or other tribal trust land; (5) the child is or has been
a ward of a tribal court; or (6) the parent or child possesses an
Indian identification card indicating membership or citizenship in
an Indian tribe. Mother checked a box stating that none of the
foregoing statements applied.
The detention hearing was held on July 31, 2020. The
juvenile court asked whether Mother had any native American
or Indian ancestry. Her counsel, who was communicating
simultaneously with Mother by telephone, responded that Mother
is not aware of any such ancestry and that “[n]either party has
any ICWA ancestry according to [counsel’s] knowledge.” The court
stated it had received Mother’s ICWA-020 forms and found it
had “no reason to know this is a case involving the [ICWA].” The
juvenile court ordered the parents to keep DCFS, their counsel, and
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the court aware of any new information relating to possible ICWA
status.
According to DCFS’s jurisdiction / disposition report, on
August 20, 2020, Father “denied any knowledge of any Native
American ancestry.” Father has three sisters and one brother,
all of whom live in or near Los Angeles County. In addition to
Father’s four siblings, Father identified his parents (the children’s
paternal grandmother and grandfather) as persons within his
“support system.”
On August 27, 2020, the maternal aunt and maternal
grandmother “denied any knowledge of any Native American
ancestry with regards to the maternal side of the family.”
On September 4, 2020, Father filed ICWA-020 forms
(Judicial Council Forms, form ICWA-020 (rev. Mar. 25, 2020)) for
the children indicating that none of the statements on the form
regarding Indian status applied.3
On October 15, 2020, a social worker spoke with the paternal
grandmother about visits with the children. It does not appear
from the record that the social worker asked the paternal
grandmother any ICWA related questions.
After a jurisdiction hearing held in April 2021, the court
sustained the dependency petition.
During the disposition hearing on May 5, 2021, the court
found that ICWA did not apply. The court declared the children
dependents of the court, denied the parents reunification services,
3It does not appear from our record that the court informed
Father of the court’s prior order that the “[p]arents are to keep
[DCFS], their [a]ttorney and the [c]ourt aware of any new
information relating to possible ICWA status.”
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and set the matter for a hearing to be held pursuant to
section 366.26.
The court held the section 366.26 hearing on September 14
and October 1, 2021. At the conclusion of the hearing, the court
found that the children are adoptable, designated the children’s
maternal aunt as their prospective adoptive parent, and terminated
the parents’ parental rights.
Father appealed.
DISCUSSION
When, as here, a child has been placed in temporary custody
of a county welfare department pursuant to section 306, DCFS
has “a duty to inquire whether that child is an Indian child” within
the meaning of ICWA. (§ 224.2, subd. (b).)4 The inquiry 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 and where the child, the parents,
or Indian custodian is domiciled.” (Ibid.; see Cal. Rules of Court,
rule 5.481(a)(1).) An extended family member is, generally, one
who is related to the child as a grandparent, aunt or uncle, sibling,
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); 224.2,
subd. (b).)
Father contends that the juvenile court’s orders terminating
parental rights must be reversed because DCFS failed to comply
4 The ICWA defines an “Indian child” as “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).)
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with this duty of inquiry. In particular, Father argues that,
although DCFS was aware of, or had contact with, the maternal
grandmother, a maternal aunt, and several paternal relatives, the
record does not reveal that these persons were asked whether the
children are or may be Indian children.
Initially, we note that Father is incorrect as to whether ICWA
inquiries were made to the children’s maternal relatives. Not only
did Mother submit the ICWA-020 form indicating there was no
reason to believe the children are Indian children, our record
indicates that DCFS social workers asked the maternal aunt
whether the children have any Indian ancestry on two occasions—
July 24, 2020, and August 27, 2020—and she denied any such
knowledge of such ancestry. A social worker also asked the
maternal grandmother about possible Indian ancestry, which
she denied on August 27, 2020. Father does not identify any other
maternal relatives who could be asked about the children’s Indian
ancestry and our record does not indicate the existence of any other
maternal relatives. DCFS therefore complied with its duty of
inquiry as to the maternal side of the children’s family.
The record, however, does indicate that Father has four
siblings living in or near Los Angeles and that he identified them
and his parents as his support system. Such persons are among the
“extended family members” of whom an ICWA related inquiry must
be made. (25 U.S.C. § 1903(2); § 224.1, subd. (c); 224.2, subd. (b).)
It does not appear from our record that DCFS contacted or
attempted to contact any of these paternal relatives other than the
paternal grandmother, and spoke with the paternal grandmother
about visitation only. DCFS, therefore, failed to comply with its
duty of initial inquiry.
The remedy on appeal for a social welfare agency’s failure
to comply with the duty of initial inquiry is unsettled. (See, e.g., In
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re Dezi C. (June 14, 2022, B317935) __ Cal.App.5th__ [2022 WL
2128670] [failure to comply with duty of initial inquiry is harmless
unless the record, together with any proffer by the appellant,
suggests a reason to believe that the child may be Indian children];
In re A.R. (2022) 77 Cal.App.5th 197, 207 [reversal is required “in
all cases where ICWA requirements have been ignored”]; In re J.C.
(2022) 77 Cal.App.5th 70, 80 [court “must remand for a proper
inquiry” where “[DCFS’s] failure to conduct an adequate inquiry
makes it impossible for the parent to show prejudice”]; In re
Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.)
[reversal required when “the record indicates that there was readily
obtainable information that was likely to bear meaningfully upon
whether the child is an Indian child”]; In re Rebecca R. (2006) 143
Cal.App.4th 1426, 1431 [in the absence of a representation by the
appellant of Indian heritage, “there can be no prejudice and no
miscarriage of justice requiring reversal”].)
This division of this court has generally evaluated this issue
to determine whether an available extended family member who
was omitted from the social workers’ ICWA inquiry would likely
have information that would “bear meaningfully” on the question
whether the child is an Indian child. (See, e.g.; In re A.C. (2022) 75
Cal.App.5th 1009, 1017; In re S.S. (2022) 75 Cal.App.5th 575, 582,
In re Darian R. (2022) 75 Cal.App.5th 502, 509−510.) In making
this determination, we have rejected “a wooden approach to
prejudice” (In re A.C., supra, at p. 1017) and refused to require
further inquiry when, based upon the entire record, it is apparent
“that additional information would not have been meaningful
to the inquiry” (Benjamin M., supra, 70 Cal.App.5th at p. 743).
(See, e.g., In re S.S., supra, at p. 582 [failure to inquire of maternal
grandmother was harmless where maternal grandmother was in
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contact with social worker and had a strong incentive to bring to
the court’s attention facts suggesting the child is an Indian child].)
Here, our record does not disclose any facts suggesting that
the information obtainable from the paternal aunts, uncle, and
grandparents would not be meaningful to the ICWA inquiry.5
Although Father indicated in his ICWA-020 form that he had no
information suggesting the children are or may be Indian children,
the filing of that form, without more, is insufficient to render the
failure to ask extended family members harmless. (See In re Y.W.
(2021) 70 Cal.App.5th 542, 554.) We cannot, therefore, conclude
that DCFS’s failure to inquire of the paternal aunts, uncle, and
grandparents is harmless.
When, as here, the failure to conduct an adequate inquiry is
not harmless, we will ordinarily conditionally affirm the challenged
order with directions to ensure the agency’s compliance with ICWA
and related law. (See, e.g., In re J.C., supra, 77 Cal.App.5th at
p. 84; In re Antonio R. (2022) 76 Cal.App.5th 421, 436−437 & fn. 11;
In re A.C., supra, 75 Cal.App.5th at p. 1018.) We do so here.
5 DCFS filed a motion to have this court take judicial notice
of certain minute orders issued in dependency cases concerning
the children’s siblings and ICWA-020 forms filed by the parents
in the other cases. Father opposes the motion on the grounds that
(1) DCFS did not produce the items in the juvenile court in this
case and fails to explain the failure to do so; (2) the law governing
DCFS’s duty of initial inquiry has changed since the court made the
orders in the prior dependency cases, and such orders are therefore
irrelevant to the instant appeal; and (3) this court should review
the challenged orders based on the record before the juvenile
court at the time the orders were made. We deny the motion.
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DISPOSITION
The orders made at the section 366.26 hearing are
conditionally affirmed. Upon remand, with respect to Father, the
juvenile court shall direct DCFS to comply with its duties of inquiry
under section 224.2 and to make the report to the court required
by rule 5.481(a)(5) of the California Rules of Court as soon as
practicable. If the juvenile court finds the children are Indian
children, it shall vacate its section 366.26 orders and proceed in
accordance with ICWA and related California law. If the court
determines that the children are not Indian children, the order
terminating parental rights shall remain in effect.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
MORI, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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