In re X.G. CA2/5

Filed 6/9/23 In re X.G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 X.G., a Person Coming B324341
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 17CCJP02477B)
Plaintiff and Respondent,
v.
C.R. et al.,
Defendants and Appellants.
APPEALS from an order of the Superior Court of Los
Angeles County, Kristen Byrdsong, Judge Pro Tempore.
Conditionally reversed with directions.
Robert McLaughlin, under appointment by the Court of
Appeal, for Defendant and Appellant C.R.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant A.G.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane E. Kwon, Deputy County
Counsel, for Plaintiff and Respondent.
——————————
Mother and father appeal from the August 4, 2022 order
terminating parental rights under Welfare and Institutions Code
section 366.261 as to their youngest daughter (minor). Father’s
sole contention on appeal is that the court erroneously failed to
ensure the Los Angeles County Department of Children and
Family Services (the Department) complied with the inquiry
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.). Mother joins in father’s argument. The
Department contends it complied with ICWA’s inquiry
requirements. Finding the court’s ICWA determination
erroneous, we conditionally reverse and remand solely for the
juvenile court to ensure compliance with ICWA and related
California statutes.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
BACKGROUND2
The current appeal concerns only minor, the youngest of
mother’s three children. Father is the middle child’s presumed
father and minor’s biological father. Mother’s oldest child was
the subject of two prior dependency cases, and was ultimately
adopted in 2017. The middle child was the subject of a
dependency case that started in 2014 and ended in 2016 with an
order giving father sole custody of that child.
In December 2017, when the middle child was four years
old and minor was a newborn, the Department filed a petition
under section 300, alleging both children were at risk of harm
based on mother’s substance abuse, father’s failure to protect,
and the prior dependency cases involving mother’s two older
children (the oldest child and the middle child). The Department
detained the middle child from father’s custody and placed her
with paternal grandparents, but were unable to locate mother or
minor. At a December 15, 2017 detention hearing, father filed an
ICWA-020 form indicating he might have Cherokee Indian
ancestry. The court ordered the Department make appropriate
ICWA inquiries. The court issued an arrest warrant for mother
and a protective custody order for minor.
In January 2018, paternal grandfather denied any Indian
ancestry. Paternal grandmother believed she might have some
Aztec ancestry, but was unable to provide additional information.
2 Because the sole issue on appeal concerns the juvenile
court’s and the Department’s compliance with ICWA and related
California law, we limit our recitation of facts to those relevant to
that compliance issue, except as is necessary for context.
3
Neither mother nor minor had been located by March 2018.
The Department conducted a due diligence search and noted that
while paternal grandmother believed mother might be with the
maternal grandmother, paternal grandmother did not have
maternal grandmother’s contact information. The court
sustained the amended petition allegations as to the middle child,
and ordered reunification services bypassed for mother.
In February 2020, the Department identified a possible
new address for mother in San Diego, California. A dependency
investigator contacted the San Diego Police Department, which
identified the occupants of the apartment as a middle aged man
and an older couple, all with the same last name as mother. The
investigator and police officers visited the address twice, once on
February 18, 2020 and a second time on February 26, 2020. On
the first visit, the police and the investigator were not allowed to
enter, but they communicated through the screen door and saw
toddler-sized pink shoes and cartoons playing on the television.
The older woman identified herself as maternal grandmother, but
denied seeing mother or minor, and denied having any
information about their whereabouts. Maternal grandfather
came out and said he saw minor about a week and a half earlier,
but denied that mother or minor had been staying at their home.
After maternal uncle told maternal grandfather to go back into
the home, the investigator arranged to speak through the screen
door without officers present, and explained to maternal uncle
that there was concern minor was living in the home, and a court
order to remove minor that would stay active until minor was
located. Maternal uncle asked for minor’s date of birth, in a
manner that the investigator took as testing the Department’s
information. He listened and asked questions, but did not
4
provide any additional information. The investigator left
business cards for nearby neighbors, but no one reported seeing
or hearing young children in the apartment. On the second visit,
the police officers searched the home, but found no evidence of a
child living in the home. Maternal uncle was upset about the
presence of police officers, and maternal grandmother denied
seeing mother in years. Maternal grandmother asked how long
the search for minor would continue and what had happened to
lead the Department to try to detain the child. Soon after an
officer responded to maternal grandmother’s question, a sergeant
ended the interaction and asked the social workers to leave the
home.
In March 2020, close to two years after the dependency
court had issued warrants for mother and minor, both were
identified during a traffic stop in Los Angeles. Mother was
arrested for possession of drug paraphernalia, and minor was
detained and placed in a foster home. Mother initially refused to
provide any information to the social worker without a lawyer
present, but she did ask for minor to be placed with the paternal
grandparents or her oldest child’s adoptive parents. Minor
remained in the same foster home throughout the remainder of
the dependency case.
In the fall of 2020, the Department obtained information
relevant to claims of Indian ancestry by father and paternal
grandmother, and sent two sets of ICWA notices to the relevant
federal entities and tribes. In addition to information about
minor’s paternal relatives, the second set of notices also included
information about mother (including her name, date and place of
birth, and current and former addresses) and maternal
grandparents (names, month and year of birth, and current
5
address). None of the responses to the ICWA notices indicated
that minor was tribal member or eligible for membership.
In April 2021, the court declared minor a dependent under
section 300, subdivision (b), based on allegations of substance
abuse by mother and father, father’s failure to protect, and the
parents’ medical neglect of minor.
At the May 27, 2021 disposition hearing, the court ordered
minor removed from parental custody, bypassed family
reunification services for both parents, and ordered no visitation
for the parents.
In June 2022, the Department sent an ICWA-20 form to
maternal grandparents, along with a letter explaining the
purpose of the form and asking them to complete and sign the
form and return it in an enclosed self-addressed stamped
envelope. The social worker gave a phone number maternal
grandparents could call if they had any questions. There is no
evidence in the appellate record that maternal grandparents
received or responded to the letter or completed the form, or that
the Department made any additional efforts to ask maternal
grandparents or maternal uncle about Indian ancestry.
At a hearing under section 366.26 in August 2022, the court
terminated parental rights, finding no reason to believe ICWA
applied to minor, no statutory exception to adoption applied, and
minor was adoptable. Mother and father both filed timely notices
of appeal.
DISCUSSION
Father’s sole argument on appeal is that the Department
did not comply with its initial inquiry duty under section 224.2,
6
subdivision (b), because it did not interview maternal
grandparents and maternal uncle about possible Indian
ancestry.3 Mother joins in father’s argument. The Department
contends it fully complied with its statutory duties, pointing to its
inquiry and notice efforts, mother’s denial of any Indian ancestry,
and maternal grandparents’ evasiveness when the Department
was searching for mother and minor. We agree with father that
the Department did not comply with its initial inquiry duties.
The Department’s inquiry duties under ICWA and related
state law are well established. Section 224.2 “ ‘ “creates three
distinct duties regarding ICWA in dependency proceedings.
First, from the [Department]’s initial contact with a minor and
his family, the statute imposes a duty of inquiry to ask all
involved persons whether the child may be an Indian child.
(§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a
‘reason to believe’ the child is an Indian child, then the
[Department] ‘shall make further inquiry regarding the possible
Indian status of the child, and shall make that inquiry as soon as
practicable.’ (Id., subd. (e), italics added.) Third, if that further
inquiry results in a reason to know the child is an Indian child,
3 Father’s opening brief includes a section anticipating an
argument that the Department does not make: the duty of initial
inquiry set forth in section 224.2, subdivision (b) does not apply
when a child is detained pursuant to a protective custody
warrant. (See In re Adrian L. (2022) 86 Cal.App.5th 342, 355–
373 (conc. opn. of Kelley, J..) The Department waived any such
argument, so we express no opinion on the matter. “Issues do not
have a life of their own: if they are not raised or supported by
argument or citation to authority, we consider the issues waived.”
(Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)
7
then the formal notice requirements of section 224.3 apply.” ’ ”
(In re H.V. (2022) 75 Cal.App.5th 433, 437.)
Of particular relevance here is section 224.2, subdivision
(b), which imposes on the Department “a duty to inquire whether
that child is an Indian child. Inquiry includes, but is not limited
to, asking the child, parents, . . . 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.”4 “Under ICWA, 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, shall be 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.’ ” (In re
A.C. (2022) 75 Cal.App.5th 1009, 1015.) Although the duty to
inquire of extended relatives under section 224.2, subdivision (b),
is “commonly referred to as the ‘initial duty of inquiry,’ it ‘begins
with the initial contact’ (§ 224.2, subd. (a)) and continues
throughout the dependency proceedings.” (In re J.C. (2022) 77
Cal.App.5th 70, 77.)
4 Although the current language of section 224.2,
subdivision (b) was not in effect when this case began in
December 2017, it took effect well before the juvenile court
terminated parental rights in 2022, and also before the
Department had contact with maternal relatives in February
2020. (See Stats. 2018, ch. 833, § 5, eff. Jan. 1, 2019; In re A.M.
(2020) 47 Cal.App.5th 303, 316 [noting that Assembly Bill
No. 3176 became effective on January 1, 2019].)
8
“We review claims of inadequate inquiry into a child’s
Indian ancestry for substantial evidence.” (In re H.V., supra, 75
Cal.App.5th at p. 438.)
The Department contends it fully complied with its inquiry
duties, making a few different arguments about why its efforts
were sufficient. The Department took steps to obtain information
and notify tribes in response to father’s and paternal
grandmother’s claim of possible Cherokee or Aztec ancestry. At
the same time, mother denied Indian ancestry and made no
objection when the court found no reason to believe minor was an
Indian child. The Department also mailed maternal
grandparents a copy of the ICWA-20 form with instructions to
complete and return.5 The Department contends that failing to
5 The Department does not argue that any ICWA inquiry
error was harmless, instead arguing that written inquiry was
reasonable because maternal relatives had been evasive and
uncooperative, refusing to provide information to the
Department. We recognize that the maternal relatives denied
that mother or minor were staying at the address, but the social
worker’s summary of the two occasions she arrived at maternal
relatives’ home with police officers does not support an inference
that the relatives would have refused to answer any questions
about possible Indian ancestry. On the first visit, maternal
grandfather spoke to the social worker, saying he had seen “the
baby” a week and a half earlier, and she appeared healthy.
Although maternal uncle refused to allow the police or social
worker to enter the home, he listened as the social worker
explained the concerns about minor’s safety, and asked whether
the social worker knew minor’s date of birth. Maternal
grandmother denied having any information about the
whereabouts of either mother or minor, but during the second
visit, she was asking what happened that led to the Department
9
raise any objection to the adequacy of the ICWA notices, both
parents tacitly approved of the sufficiency of the inquiry needed
to complete and send those notices.
We reject the Department’s argument that notices sent
after father and paternal relatives claimed Indian ancestry
satisfies its duty to ask maternal relatives if they have any
information about possible Indian ancestry. (See, e.g., In re Y.W.
(2021) 70 Cal.App.5th 542, 548, 552–553 [where ICWA notices
were sent to tribes based on father’s claim of Indian ancestry,
absence of attempt to contact maternal grandparents was initial
inquiry error].) Taken alone, mother’s denial of Indian ancestry
is an insufficient basis to find the Department’s inquiry
obligations were satisfied. “By requiring the Department to
inquire of a child’s extended family members as to the child’s
possible Indian ancestry, the Legislature determined that inquiry
of the parents alone is not sufficient.” (In re Antonio R. (2022)
76 Cal.App.5th 421, 431.)
While the Department takes the position that the act of
sending a written form to maternal grandparents itself satisfied
its duty of initial inquiry, we disagree based upon the particular
facts before us. The Department’s dependency investigator met
maternal grandparents and uncle when looking for mother and
minor in February 2020; but there is no record of additional
contact for more than two years, and the Department did not
verify the continuing validity of maternal relatives’ address when
trying to detain minor. These interactions do not lead us to
conclude that it would have been either unwarranted or futile for
the social worker to ask about possible Indian ancestry.
10
it sent a written request in June 2022.6 In addition, the
maternal grandparents were instructed to respond to either
confirm or deny the possibility of Indian ancestry.7 The lack of a
response therefore did not assist the Department in making any
inference as to whether grandparents either did or did not have
information about minor’s Indian ancestry. The Department
received no response yet did nothing to determine why or to
follow-up. The duty to inquire “includes, but is not limited to,
asking.” (§ 224.2, subd. (b).) While a written inquiry could be
sufficient on different facts, the circumstances here do not
support the conclusion that the Department made a “meaningful
effort to locate and interview extended family members to obtain
whatever information they may have as to the child’s possible
Indian status.” (In re K.R. (2018) 20 Cal.App.5th 701, 709.)
Given the passage of two years and the absence of any response
to the written inquiry, the lack of any attempt to either confirm
the address or follow up to obtain a response leads us to conclude
the Department fell short of its inquiry duty. (See In re A.C.,
supra, 75 Cal.App.5th at p. 1015 [agency failed to make a
6
We note that the Department sent its written request to
maternal grandparents, but did not send any similar inquiry to
maternal uncle.
7 The letter instructed the grandparents to complete and
return the ICWA-20 form, advising them to “mark item (d.) and
date and sign” the form if they did not have Indian ancestry, and
to mark other check boxes if the family had Indian ancestry. The
letter included a phone number for the maternal grandparents to
call if they had any questions as well.
11
meaningful effort to ask readily available extended relatives
about Indian ancestry].)
We conclude that the Department’s failure to inquire of any
known maternal relatives, including maternal grandparents and
maternal uncle, about Indian heritage constitutes reversible
error. We will therefore conditionally reverse and remand for the
juvenile court to ensure the Department complies with its duties
under ICWA and related state law. (In re H.V., supra,
75 Cal.App.5th at p. 438.)
12
DISPOSITION
The juvenile court’s August 4, 2022, order terminating
parental rights under Welfare and Institutions Code section
366.26 is conditionally reversed and remanded for proceedings
required by this opinion. The court shall order the Department
to make reasonable efforts to locate and interview available
maternal relatives, including maternal grandparents and
maternal 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 minor. 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.
13
In re X.G.
B324341
BAKER, J., Dissenting
The majority believes no substantial evidence shows the
juvenile court supervised an adequate inquiry into whether there
is some chance of Indian ancestry on the maternal side of the
family. That conclusion is flawed because the Los Angeles
County Department of Children and Family Services (DCFS) did
inquire of the maternal grandparents via forms sent by mail.
The majority just dismisses the inquiry DCFS undertook—for
two reasons that do not hold up to scrutiny.
First, the majority apparently believes the maternal
grandparents did not receive the mailed forms. This is
inconsistent with rudimentary law. (Evid. Code, § 641 [“A letter
correctly addressed and properly mailed is presumed to have
been received in the ordinary course of mail”].) The majority’s
response is to suggest—without actually coming out and saying
it—that the grandparents were not still living at the same
address. This sub rosa speculation (nothing in the record
provides reason to believe the maternal grandparents moved
from that address) is inconsistent with the governing standard of
review. (See, e.g., Kevin R. v. Superior Court (2010) 191
Cal.App.4th 676, 688-689 [in making a substantial evidence
determination, a court reviews the record in the light most
favorable to the court’s determinations and draws all reasonable
inferences from the evidence to support the findings and orders].)
Second, the majority concedes a “written inquiry” into
Indian ancestry can be sufficient but asserts the inquiry here was
not because the grandparents were instructed to respond and
DCFS did not “determine why” they didn’t. This just
misunderstands what DCFS’s obligation was—and is. DCFS’s
duty is to inquire, not to discover the reasons why family
members may not respond to inquiry efforts (thankfully so: the
statutory inquiry provisions are unwieldy enough as they are (In
re A.C. (2022) 86 Cal.App.5th 130, 143 (dis. opn. of Baker, J.))
and there are countless circumstances where family members do
not respond to social worker voicemails, text messages, emails, or
letters). DCFS inquired of the grandparents here, and the
absence of a response in no way undermines the inquiry that was
made.
Substantial evidence supports the juvenile court’s Indian
Child Welfare Act-related determination. I would affirm.
BAKER, J.
2