Filed 6/17/22 In re D.V. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re D.V., a Person Coming B315746
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18CCPJP03881B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.C. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen C. Marpet, Judge. Conditionally
reversed and remanded with instructions.
California Appellate Project and Andre F.F. Toscano, under
appointment by the Court of Appeal, for Defendant and Appellant
L.C.
Patricia K. Saucier, under appointment by the Court of
Appeal, for Defendant and Appellant M.V.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and
Respondent.
________________________________
L.C. (mother) and M.V. (father) appeal from the order
terminating parental rights to their child, D.V. (minor), under
Welfare and Institutions Code section 366.26.1 Both parents
contend the Los Angeles County Department of Children and
Family Services (the Department) and the juvenile court failed
to comply with the inquiry requirements of the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and
related California law. We conditionally reverse, and remand for
ICWA compliance.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue raised in mother’s and father’s
respective appeals is ICWA compliance, we focus primarily on
the facts and procedural background relevant to that issue. In
June 2018, the Department filed a petition under section 300,
alleging minor and her older half-sister were dependents, based
on mother’s and father’s domestic violence, substance use and
1 Further statutory references are to the Welfare and
Institutions Code unless stated otherwise.
2
abuse, and mental and emotional problems.2 Mother told a
social worker she had no knowledge of any Indian ancestry, and
both parents filed ICWA-020 forms stating that they had no
Indian ancestry as far as they knew. Also in response to
questioning from the court at each of their first appearances,
both parents verbally denied any knowledge of Indian ancestry.
On July 20, 2018, the court found no reason to know ICWA
applied.
During its investigation, the Department interviewed a
maternal aunt and a paternal aunt, but did not ask either
whether they had any information about possible Indian
ancestry of the minor. The paternal aunt stated that minor had
36 cousins. Father identified a different paternal aunt on a form
asking for contact information of relatives, but there is no
evidence anyone from the Department attempted to contact that
paternal aunt. Another maternal aunt was previously married
to father, and the Department had an address for a third
maternal aunt, although the record does not show that the
Department was ever in direct contact with either of these two
aunts. A cousin, who father claims on appeal was a paternal
cousin, but who is identified in the record as a maternal cousin,
went through the resource family assessment process, and minor
was placed with the cousin and her family for six months, but
there is no evidence the cousin was ever asked about possible
Indian ancestry.
The Department’s subsequent reports noted the court’s
July 20, 2018 finding that ICWA did not apply.
2 Minor’s half-sibling is not a party to either parent’s
appeal.
3
The juvenile court terminated father’s reunification
services in April 2019, terminated mother’s reunification
services in January 2020, and terminated parental rights as to
minor at a hearing under section 366.26 in October 2021. The
order terminating parental rights did not mention ICWA, but
the order was “necessarily premised on a current finding by the
juvenile court that it had no reason to know [minor] was an
Indian child.” (In re Isaiah W. (2016) 1 Cal.5th 1, 10, italics
omitted (Isaiah W.).
DISCUSSION
ICWA Requirements and Standard of Review
“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.’
[Citation.]” (Isaiah W., supra, 1 Cal.5th at p. 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 also 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 (Benjamin M.).) State and federal law
4
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 also
Benjamin M., supra, 70 Cal.App.5th at p. 741.)
When a social services agency takes a minor into temporary
custody, state law imposes on the agency a duty of initial inquiry,
which “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, an Indian
child.” (§ 224.2, subd. (b); In re H.V. (2022) 75 Cal.App.5th 433,
437.) 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.) Part of the initial inquiry includes requiring each party
to complete the ICWA-020 form. (Cal. Rules of Court, rule
5.481(a)(2)(C).) When there is “reason to believe that an Indian
child is involved in a proceeding,” further inquiry is 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., supra, 75
Cal.App.5th at p. 438.)
5
Analysis
The record reflects that even though the Department was
aware of several extended family members, and in contact with at
least one maternal aunt and one paternal aunt, as well as minor’s
adult cousin, it made no effort to interview maternal or paternal
extended family members about minor’s possible Indian ancestry.
“The Department’s first-step inquiry duty under ICWA and state
law was broader [than what is required of a court making inquiry
federal law], requiring it also to interview, among others,
extended family members and others who had an interest in the
child.” (In re H.V., supra, 75 Cal.App.5th at p. 438; see also
§ 224.2, subd. (b).)
The Department argues that its ICWA inquiry duties were
satisfied when it interviewed mother, provided mother and father
with the ICWA-020 forms to complete, and both denied any
knowledge of Indian ancestry. We are unpersuaded by the
Department’s attempt to distinguish the growing number of cases
that find error even when one or both parents have denied Indian
ancestry. (Benjamin M., supra, 70 Cal.App.5th 735; In re Y.W.
(2021) 70 Cal.App.5th 542; In re Josiah T. (2021) 71 Cal.App.5th
388.) As explained in In re Y.W., supra, 70 Cal.App.5th at page
554, “Nothing in section 224.2, subdivision (b), relieves the
Department of its broad duty to seek that information from ‘all
relevant’ individuals [citation] simply because a parent states on
the ICWA-020 form, . . . ‘I have no Indian ancestry as far as I
know.’ Such a rule ignores the reality that parents may not know
their possible relationship with or connection to an Indian tribe.”
We are also unconvinced by the Department’s strained
argument that we should ignore the plain language of section
6
224.2, subdivision (b), because the Legislature could not have
intended for the Department to interview everyone listed in the
statute. The facts before us involve specific extended family
members with whom the Department was already in contact.
The Department does not deny that the record contains no
evidence of any effort to interview those family members about
Indian ancestry. Given the Department’s failure to interview
extended family members despite already being in contact with
those family members, the juvenile court’s ICWA finding was in
error.
Finally, we are unpersuaded by the Department’s
argument that any ICWA error is harmless. In re H.V. involved
an appeal from a dispositional order, and this court found
prejudicial error without requiring the appealing parent to make
any assertion regarding potential Indian ancestry. (In re H.V.,
supra, 75 Cal.App.5th at p. 438.) Regardless of what order is
being appealed, neither parent has an affirmative duty to make a
factual assertion on appeal regarding Indian heritage that he or
she cannot support with citations to the record. (Ibid.; In re
Antonio R. (2022) 76 Cal.App.5th at pp. 435–436; see also In re
N.G. (2018) 27 Cal.App.5th 474, 484; but see In re Darian R.
(2022) 75 Cal.App.5th 502, 509–510 [no prejudice where mother
under court order to continue providing ICWA information to
juvenile court]; In re A.C. (2021) 65 Cal.App.5th 1060, 1068–
1073.) The Department does not offer any persuasive reason why
the fact that a parent is appealing from a later order should lead
us to depart from our conclusion in In re H.V. that “on this
record, which demonstrates that the Department failed to
discharge its first-step inquiry duty, we conclude that [parents’]
claim of ICWA error was prejudicial and reversible.” (Ibid.)
7
DISPOSITION
The juvenile court’s order terminating parental rights
under section 366.26 is conditionally reversed. The case is
remanded to the juvenile court to order the Department to
interview available extended family members—including at least
those relatives the Department has already interviewed, such as
minor’s cousin and aunts, to the extent they are still available—
about the possibility of Indian ancestry, and to report on the
results of the Department’s investigation. Based on the
information presented, if the juvenile court determines that no
additional inquiry or notice to tribes is necessary, the termination
of parental rights is affirmed. If additional inquiry or notice is
warranted, the court shall make orders consistent with ensuring
compliance with ICWA and related California law.
MOOR, J.
I concur:
KIM, J.
8
In re D.V.
B315746
BAKER, J., Dissenting
I would affirm because substantial evidence supports the
juvenile court’s finding that the Indian Child Welfare Act (ICWA)
did not apply. (In re H.V. (2022) 75 Cal.App.5th 433, 441 (dis.
opn. of Baker, J.); see also In re J.S. (2021) 62 Cal.App.5th 678,
688 [applying substantial evidence standard of review].)
BAKER, Acting P. J.