Filed 5/26/22 In re J.D. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.D., et al., Persons B315373
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
DK19783A–C)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
J.F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County
of Los Angeles, Stacy Wiese, Judge. Conditionally reversed and
remanded with instructions.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Jane E. Kwon, Principal Deputy
County Counsel, for Plaintiff and Respondent.
___________________________________
I. INTRODUCTION
J.F. (mother) appeals from the juvenile court’s order
terminating her parental rights to her children—J.D., A.D., and
Jo.D.—contending that the court and the Los Angeles County
Department of Children and Family Services (Department) failed
to comply with their duties under the Indian Child Welfare Act of
1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related state statutes
(Welf. & Inst. Code, § 224 et seq.)1 and court rules (Cal. Rules of
Court, rule 5.480 et seq.). We conditionally reverse the court’s
order and remand for the limited purpose of ensuring compliance
with ICWA’s requirements.
1 All further statutory references are to the Welfare and
Institutions Code.
2
II. FACTUAL AND PROCEDURAL BACKGROUND 2
A. Jurisdiction, Disposition, and Termination of Parental
Rights
On October 6, 2016, the Department filed a section 300
petition alleging that mother and father engaged in domestic
violence in the presence of the children and were drug and
alcohol abusers. At the October 6, 2016, detention hearing,
mother, the maternal grandmother, and a maternal aunt
appeared.3 The juvenile court found that the children were
persons as described in section 300, temporarily removed them
from their parents’ custody, placed them in shelter care, and
granted the parents weekly visitation.
At the November 30, 2016, jurisdiction/disposition hearing,
the juvenile court sustained the allegations of domestic violence
between the parents and substance abuse by father. The court
declared the children dependents of the court, removed them
from their parents’ custody, and ordered the Department to
identify suitable placement. The parents were granted monitored
visitation and reunification services.
Despite an extended reunification period, neither parent
reunified with the children. As of May 2017, the children were
2 Because the sole issue on appeal concerns compliance with
ICWA and related state statutes and court rules, we limit our
recitation of the facts and procedural background to those
matters relevant to compliance, except as necessary for context.
3 The record does not indicate the name of the maternal aunt
who appeared.
3
living in foster care and mother was living with the maternal
grandmother and a maternal aunt.4 At the six-month review
hearing that month, the juvenile court extended reunification
services for six months and, at the 12-month review hearing in
November 2017, extended services another 12 months.
In a May 2018 status review report, the Department
advised that father had been arrested and imprisoned for
attempted murder, that mother had terminated her relationship
with him, and that she was living with the maternal
grandmother and a maternal aunt named “Nina.” At the review
hearing later that month, the juvenile court returned the children
to mother based on the Department’s recommendation. But in
September 2018, the Department sought and obtained from the
court a removal order that temporarily placed the children with
the maternal aunt. Later that month, the Department filed a
section 342 petition alleging that mother’s continued substance
abuse endangered the children. At the October 1, 2018, detention
hearing, the court once again detained the children from mother,
placed them with maternal aunt “Cenorina,” and granted mother
monitored visitation. At the November 6, 2018,
jurisdiction/disposition hearing, the court sustained the section
342 petition, removed the children from mother, continued their
current placement, and granted mother reunification services.
On February 1, 2019, the Department removed the children
from maternal aunt “Cenorina’s” home and placed them in foster
care because, despite the Department’s instructions to the
4 The record does not reflect the name of this aunt, but in
October 2016, mother reported that she was living with maternal
aunt “Paulina”.
4
contrary, the aunt continued to allow the maternal grandmother
to live with her and another relative in the home had refused to
live scan. On April 10, 2019, the Department reported that
mother was not participating in her substance abuse programs
and her testing for alcohol and other substances had been
inconsistent. The Department therefore recommended
termination of reunification services; and, on June 7, 2019, the
court terminated mother’s services and set the matter for a
permanency planning review hearing.
In December 2019, because the children were thriving in
their foster care placement, the juvenile court identified
guardianship as a permanent plan. In May 2020, however, the
foster mother agreed to adopt the children. At a
January 12, 2021, hearing the court therefore identified adoption
as the permanent plan. In May 2021, after the Department
recommended termination of parental rights, mother filed a
section 388 petition to reinstate reunification services that the
court denied. In September 2021, mother renewed her section
388 petition, but the court denied it and instead terminated
parental rights.
B. ICWA Proceedings
In connection with the filing of the section 300 petition, a
social worker submitted a form ICWA-010(A) averring that she
had asked mother about Indian heritage and confirmed that
“[t]he child[ren] ha[d] no known Indian ancestry.” Prior to the
October 6, 2016, detention hearing, both mother and father
submitted ICWA-020 forms stating that they had “no Indian
ancestry as far as [they] knew.” At the hearing, the juvenile
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court found that “[t]here is no reason to know that the [ICWA]
applies to this case.”
In the November 30, 2016, jurisdiction/disposition report,
the Department noted that “[o]n 10/6/16, the [juvenile c]ourt
found that [ICWA did] not apply.” The minute order for that
hearing did not mention ICWA, and there is no further indication
in the record that the Department provided any new or different
information concerning ICWA or that the juvenile court
conducted any further proceedings concerning its application.
III. DISCUSSION
A. Inquiry Duties Under ICWA
A juvenile court and the Department have a duty in every
dependency proceeding to determine whether ICWA applies.
(§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); In re H.V.
(2022) 75 Cal.App.5th 433, 437 (H.V.); In re Isaiah W. (2016) 1
Cal.5th 1, 10–11.) Effective in 2019, California amended its
statutory scheme regarding ICWA to conform to changes to the
federal regulations concerning ICWA compliance. (H.V., supra,
75 Cal.App.5th at p. 437.) The resulting clarification created
three distinct ICWA duties. (Ibid.) This case concerns the initial
inquiry duty. “‘At [this] first step, “[s]ection 224.2, subdivision (b)
specifies that once a child is placed into the temporary custody of
a county welfare department, such as the [Department], the duty
to inquire ‘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,
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an Indian child.’” [Citation.]’ (In re Charles W. (2021) 66
Cal.App.5th 483, 489 . . . [(Charles W.)].)” ( Ibid.)
We review a parent’s claim of inadequate inquiry into a
child’s Indian ancestry for substantial evidence. (H.V., supra, 75
Cal.App.5th at p. 438.)
B. Analysis
Mother contends that the order terminating her parental
rights should be reversed because the Department failed to make
initial inquiry of extended family members who were readily
available for that purpose, including the maternal grandmother
and two maternal aunts.5 We agree.
Here, the Department confined its initial inquiry into the
children’s Indian ancestry to mother and father, even though
there were additional maternal family members who were readily
available to the Department who could have been interviewed,
namely, maternal grandmother and maternal aunts. On this
record, we conclude there was no substantial evidence to support
the juvenile court’s finding that the Department had satisfied its
duty of initial inquiry. Further, we reject the Department’s
contention that any error in failing to interview available
extended family members was harmless. (See H.V., supra, 75
Cal.App.5th at p. 438; In re J.C. (2022) 77 Cal.App.5th 70, 80.)
5 It is unclear whether the Department’s references to
“Paulina,” “Nina,” and “Cenorina” was a reference to two or more
maternal aunts.
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IV. DISPOSITION
The order terminating mother’s parental rights to the
children is conditionally reversed and the matter is remanded
with directions to the juvenile court to order the Department to
comply with ICWA by making diligent efforts to interview the
children’s extended family members, as defined by section 224.1,
subdivision (c) and 25 U.S.C. section 1903(2), including at least
maternal grandmother and the maternal aunt or aunts referred
to as “Paulina,” “Nina,” and “Cenorina.” Based on those efforts, if
no further inquiry is required, the court’s original order shall be
reinstated. If further inquiry is required, the court shall ensure
that the Department complies with all applicable ICWA statutes
and regulations, as well as related state statutes and rules.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P.J.
MOOR, J.
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