In re J.J. CA2/4

Filed 5/10/16 In reJ.J. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
In re Jaymiere J. et al., Persons Coming B266659
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK10217)
LOS ANGELES COUNTY ORDER MODIFYING OPINION
DEPARTMENT OF CHILDREN AND AND DENYING REHEARING
FAMILY SERVICES,
[NO CHANGE IN JUDGMENT]
Plaintiff and Respondent,
v.
S.J. et al.,
Defendants and Appellants.
THE COURT:
It is ordered that the opinion filed herein on April 20, 2016, be modified as
follows:
On page 5, in the second full paragraph that begins “However, we” delete Tina L.
v. Superior Court (2008) 163 Cal.App.4th 262, 267 [same];
The petition for rehearing is denied.
_____________________________________________________________________
EPSTEIN, P.J. WILLHITE, J. COLLINS, J.
Filed 4/20/16 In re J.J. CA2/4 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
In re J.J. et al., Persons Coming Under the B266659
Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK10217)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.J. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles County, Steff R.
Padilla, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part.
Remanded in part.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and
Appellant S.J.
Linda J. Vogel, under appointment by the Court of Appeal for Defendant and
Appellant Lucas D.
Mary C. Wickham, County Counsel, James M. Owens, Assistant County Counsel,
and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
S.J. (mother) appeals from jurisdictional and dispositional orders made pursuant to
Welfare and Institutions Code1 section 300 removing her four children from her custody.
Lucas D. (father), the presumed father of two of the children, appeals from the same
orders. Both parents contend the Los Angeles County Department of Children and
Family Services (DCFS) failed to comply with the notice requirements of the federal
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) We agree and
therefore remand for the limited purpose of full compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
A. Dependency Proceedings2
On March 30, 2015, DCFS filed a petition under section 300, subdivisions (a), (b),
and (j), concerning mother’s four children: J.J. (born 2000), Jat. J. (born 2003), L.D.
(born 2008), and Lux. D. (born 2012). At the time, the children were living with mother
and father.3 The petition alleged mother and father had a history of violent altercations
with each other in the children’s presence, father physically abused J.J., and mother failed
to protect the children from such abuse, placing the children at risk of harm. DCFS
further reported that mother and father were the subjects of multiple prior dependency
referrals in other states where they previously resided.
At the adjudication hearing on May 28, 2015, the court sustained the petition
pursuant to section 300, subdivisions (b) and (j), and removed the children from father’s
custody, placing them with mother through a home-of-parent order. The court ordered
family maintenance services and monitored visitation for father with his two children.
1All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2We provide only a limited factual background, given the narrow issue presented
on appeal.
3The court found father to be the presumed father of L.D. and Lux. D. The alleged
fathers of J.J. and Jat. J. are not parties to this appeal.
2
DCFS filed a supplemental petition pursuant to section 387 on July 7, 2015,
alleging that an additional domestic violence incident between mother and father
occurred on June 12, 2015 in the children’s presence, including father repeatedly striking
mother’s face and head with his fists and mother repeatedly stabbing father. DCFS
further alleged that father had been seen at the children’s residence on several occasions
in violation of court orders, and that mother appeared “unable and unwilling to protect
the children” from father’s violent conduct. At the detention hearing on the supplemental
petition, the court detained the children from mother. The court further ordered DCFS to
initiate an Interstate Compact on the Placement of Children (ICPC), to investigate placing
the children out of state with their maternal grandmother or, as to L.D. and Lux. D., with
their paternal grandmother.
B. ICWA Compliance
On March 30, 2015, mother filed form ICWA-020, Parental Notification of Indian
Status, checking the box indicating “[o]ne or more of my parents, grandparents, or other
lineal ancestors is or was a member of a federally recognized tribe.” She listed the Hopi
tribe and also identified “Albert J[.], Sr. Camp Jerod Missouri Blackfeet” and “Ohio -
Naomi M[.] MGGM.” Father reported no known Indian ancestry.
At the initial detention hearing on March 30, 2015, the court noted “mother states
she may have Hopi [and] Blackfeet heritage.” The court ordered DCFS to investigate
mother’s claim of heritage and to file a supplemental report. In its
Jurisdiction/Disposition Report, DCFS stated it interviewed mother regarding her
ancestry. Mother “reported Hopi and Blackfeet Ancestry on the maternal side of her
family, but only provided partial identifying information.” Mother stated “she would
provide further information at a later date.” Subsequently, mother “provided additional,
but insufficient, information.” The dependency investigator reported that he also called
the maternal grandmother for further information, but was “awaiting a response.” There
is no indication in the record that any ICWA notices were sent.
At the adjudication hearing on May 28, 2015, the court found that “these children
are not Indian children under [ICWA]. The department has done investigation. There is
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only partial information. Mother was supposed to get back and hasn’t gotten back to the
department.” Over mother’s objection, the court declined to order notice to any tribe or
the Bureau of Indian Affairs pursuant to ICWA, but ordered mother and father to inform
DCFS, their counsel, and the court “of any new information relating to possible ICWA
status.” The record contains no further inquiry or information regarding ICWA.
Mother and father timely appeal the juvenile court’s May 28, 2015 orders.
DISCUSSION
Mother and father contend, and DCFS agrees, that the juvenile court erred in
declining to order DCFS to give notice pursuant to ICWA and that the case must be
remanded for ICWA compliance. Mother and father further argue that we should reverse
the jurisdictional and dispositional orders due to the lack of ICWA compliance. DCFS,
on the other hand, urges us to remand for ICWA compliance but to leave the lower
court’s orders undisturbed. We agree with the parties that the case must be remanded for
appropriate ICWA notice and conclude that the juvenile court’s jurisdictional and
dispositional orders may remain in effect pending the results of that notice.
ICWA “protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for, and permitting tribal
participation in, dependency actions.” (In re L.S. (2014) 230 Cal.App.4th 1183, 1197.)
“When a court ‘knows or has reason to know that an Indian child is involved’ in a
juvenile dependency proceeding, a duty arises under ICWA to give the Indian child’s
tribe notice of the pending proceedings and its right to intervene.” (In re Shane G. (2008)
166 Cal.App.4th 1532, 1538, quoting 25 U.S.C. § 1912(a).) Once there is “reason to
know that an Indian child is involved,” the required notices “shall be sent ... unless it is
determined that [ICWA] does not apply . . . .” (§ 224.2, subd. (b).)4 In California, the
dependency court and DCFS have “an affirmative and continuing duty to inquire whether
a child for whom a petition under Section 300 . . . has been filed is or may be an Indian
child in all dependency proceedings. . . .” (§ 224.3, subd. (a); see also In re L.S., supra,
4“In
2007, the California Legislature enacted provisions consistent with the
ICWA. (See § 224 et seq.)” (In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.)
4
230 Cal.App.4th at p. 1197; Cal. Rules of Court, rule 5.481(a).) Ultimately,
“[d]etermination of [a child’s] tribal membership or eligibility for membership is made
exclusively by the tribe.” (Cal. Rules of Court, rule 1439(g).)
Here, as DCFS concedes, the juvenile court erred in concluding that ICWA notice
was not required because mother’s claim of Indian heritage was based on “incomplete”
information. “‘The determination of a child’s Indian status is up to the tribe; therefore,
the juvenile court needs only a suggestion of Indian ancestry to trigger the notice
requirement.’ [Citations.] ‘Given the interests protected by the [ICWA], the
recommendations of the [federal] guidelines, and the requirements of our court rules, the
bar is indeed very low to trigger ICWA notice.’ (In re Antoinette S. (2002) 104
Cal.App.4th 1401, 1408 [finding father’s suggestion that child ‘might’ be an Indian child
because paternal great-grandparents had unspecified Native American ancestry was
enough to trigger notice].)” (In re Gabriel G., supra, 206 Cal.App.4th at p. 1165.)
Accordingly, remand is required to allow compliance with the ICWA notice
requirements.
However, we reject mother and father’s assertion that we must reverse the juvenile
court’s jurisdictional and dispositional orders due to the ICWA noncompliance. “‘A
notice violation under ICWA is not jurisdictional in the fundamental sense.’” (In re
Christian P. (2012) 208 Cal.App.4th 437, 452.) Nevertheless, there has been some
disagreement among our sister courts regarding whether the appropriate remedy includes
reversal or merely a limited remand. (See, e.g., ibid. [limited remand]; In re Veronica G.
(2007) 157 Cal.App.4th 179, 188 [same]; Tina L. v. Superior Court (2008) 163
Cal.App.4th 262, 267 [same]; but see In re S.E. (2013) 217 Cal.App.4th 610, 616
[reversal and remand]; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779 [“[e]ven
assuming ICWA errors are not jurisdictional, we conclude the failure to give ICWA
notice means that the orders in this case cannot stand”].)
This court generally follows the rule that where, as here, there is a failure to
comply with ICWA procedures before disposition, all jurisdictional and dispositional
orders remain in effect while there is a limited remand to the juvenile court for DCFS to
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give ICWA notice. (See In re Damian C. (2009) 178 Cal.App.4th 192, 199–200; In re
Veronica G., supra, 157 Cal.App.4th at pp. 187–188; In re Brooke C. (2005) 127
Cal.App.4th 377, 385.) As such, mother and father’s reliance upon In re S.E., supra, 217
Cal.App.4th at p. 610, is misplaced, as that case involved the establishment of
guardianship as the minor’s permanent plan, a course of action that necessarily deprived
any concerned Indian tribe of its rights under ICWA. (Id. at p. 617.) By contrast, this
case is in an earlier stage and has not entered any permanent planning. Accordingly,
remand for ICWA compliance is the most appropriate remedy. (Id. at p. 617; see also
Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 785 [reversing order
terminating parent’s reunification services and setting hearing to consider termination of
parental rights].)
DISPOSITION
We affirm the jurisdictional and dispositional orders of the juvenile court. The
matter is remanded to the court with directions to order DCFS to comply with the inquiry
and notice provisions of ICWA. If, after proper notice, it is determined that any of the
children are Indian children and ICWA applies to these proceedings, a party or tribe may
petition the juvenile court to invalidate orders that violated ICWA.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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