In re H.R. CA2/5

Filed 6/22/23 In re H.R. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re H.R., a Person Coming B325373
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 21CCJP01513A)
Plaintiff and Respondent,
v.
I.A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hernan D. Vera, Judge. Conditionally reversed
with directions.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, and Avedis
Koutoujian, Deputy County Counsel, for Plaintiff and
Respondent.
——————————
Mother1 appeals from the September 16, 2022 order
terminating parental rights to her son (minor) under Welfare and
Institutions Code section 366.26.2 Mother’s sole contention on
appeal is that the juvenile court erroneously failed to ensure
compliance with the inquiry and notice requirements of the
Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et
seq.) and related California statutes (Welf. & Inst. Code, § 224 et
seq.). We conditionally reverse and remand the matter solely for
the court to ensure compliance with ICWA and related California
statutes.
FACTUAL AND PROCEDURAL BACKGROUND
The Los Angeles County Department of Children and
Family Services (Department) began investigating the family on
March 30, 2021 after law enforcement found minor (then only 10
months old) with two unrelated individuals in a hotel room with
narcotics in it. Mother and a paternal aunt spoke to a social
worker, and both denied any Indian ancestry. The Department
filed a petition alleging the child was at risk of harm based on
1 Father is not a party to the current appeal. Mother also
has another child, who is under a 2018 guardianship order. That
child is not a party to this appeal.
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
2
mother and father’s substance abuse and their inability to make
a plan for the child’s care and supervision. The child was placed
with maternal grandmother after a short stay in foster care.
Counsel for mother and counsel for father each filed an ICWA-20
form indicating the form was “on behalf of” the client and denying
any Indian ancestry; although neither mother’s form nor father’s
form is signed by the parent, mother concedes on appeal that she
and father filed the forms denying Indian ancestry. The juvenile
court found that ICWA did not apply.
Despite evidence that minor was placed with maternal
grandmother, and Department employees were in contact with
maternal grandmother, paternal grandmother, a paternal aunt,
and a maternal aunt, and had information about a paternal
uncle, there is no indication that any of minor’s extended
relatives (with the exception of paternal aunt) were ever asked
about the possibility that minor had any Indian ancestry.
The court terminated the parents’ reunification services at
the six-month review hearing and scheduled a permanency
planning hearing. At the permanency planning hearing under
section 366.26, the court ordered parental rights terminated.
Mother appealed.
DISCUSSION
“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers
of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.’ ”
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(In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Both ICWA and California
law define an “ ‘Indian child’ ” as a child who is either a member
of an Indian tribe or 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, subds. (a) & (b); see In re
Elizabeth M. (2018) 19 Cal.App.5th 768, 783.)
California statutory law incorporates the requirements of
ICWA, and imposes some additional requirements as well. (In re
Abbigail A. (2016) 1 Cal.5th 83, 91; In re Benjamin M. (2021)
70 Cal.App.5th 735, 741–742.) State and federal law require the
court to ask parties and participants at the outset of an
involuntary child custody proceeding whether they have reason to
know a minor 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.” (25 C.F.R.
§ 23.107(a); § 224.2, subd. (c); see Benjamin M., at p. 741.) Initial
inquiry also includes requiring each party to complete the
parental notification of Indian status (ICWA-020) form. (Cal.
Rules of Court, rule 5.481(a)(2)(C).)
State law imposes on the Department a first-step inquiry
duty to “interview, among others, extended family members and
others who had an interest in the child.” (In re H.V. (2022)
75 Cal.App.5th 433, 438; see § 224.2, subd. (b).) Federal
regulations explain that the term “extended family member is
defined by the law or custom of the Indian child’s Tribe or, in the
absence of such law or custom, is a person who has reached
age 18 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 C.F.R. § 23.2 (2017).)
When there is “reason to believe that an Indian child is involved
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in a proceeding,” further inquiry is also required. (§ 224.2,
subd. (e); In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.) “We
review claims of inadequate inquiry into a child’s Indian ancestry
for substantial evidence.” (In re H.V., at p. 438.)
The Department concedes on appeal that the initial inquiry
requirements of ICWA and related state law were not met in this
case. The Department asks us to either conditionally affirm or
reverse the juvenile court’s order terminating parental rights,
with instructions limiting remand of the matter to ordering the
juvenile court to ensure compliance with ICWA’s requirements.
We agree that the court erred in finding ICWA
inapplicable, as the court did not ask either parent whether they
had any Indian ancestry, and proceeded in the absence of any
evidence that the Department asked available extended family
members about the possibility that minor has Indian ancestry.
(See, e.g., In re H.V., supra, 75 Cal.App.5th at p. 438 [prejudicial
error when Department fails to discharge its first step duty of
inquiry]; In re Benjamin M., supra, 70 Cal.App.5th at p. 741
[court must ask each participant in child custody proceeding].)
5
DISPOSITION
The juvenile court’s September 16, 2022 order terminating
parental rights under Welfare and Institutions Code section
366.26 is conditionally reversed and remanded for proceedings
required by this opinion. To the extent mother or father is
available, the court shall ask about possible Indian ancestry, and
ensure mother and father sign and file the ICWA-020 form. The
court shall also order the Department to make reasonable efforts
to interview available extended relatives, including maternal
grandmother, paternal grandmother, maternal aunt, paternal
aunt, and paternal uncle about the possibility of the minor’s
Indian ancestry and to report on the results of the Department’s
investigation. Nothing in this disposition precludes the court
from ordering additional inquiry of others having an interest in
the children. Based on the information reported, if the court
determines that no additional inquiry or notice to tribes is
necessary, the order terminating parental rights is to be
reinstated. If additional inquiry or notice is warranted, the court
shall make all necessary orders to ensure compliance with ICWA
and related California law.
NOT TO BE PUBLISHED.
MOOR, J.
I concur:
RUBIN, P. J.
6
In re H.R.
B325373
BAKER, J., Concurring
I agree that a conditional reversal of the parental rights
termination order is required because the juvenile court did not
comply with federal and state law that, together, require a
juvenile court to ask participants in a child custody proceeding,
at the commencement of the proceeding and on the record,
whether the participant knows or has reason to know the minor
in question is an Indian child. (25 C.F.R. § 23.107(a); Welf. &
Inst. Code, § 224.2, subd. (c).) I do not agree, however, with the
majority’s broadly worded remand instructions to interview
available extended relatives. I would instead remand with
directions that require the court to make an on the record inquiry
of only the parents (assuming they appear in response to a
hearing notice). The juvenile court would, however, still be free
to make or order any additional inquiry it deems appropriate.
BAKER, J.