Filed 8/16/22 In re D.S. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
In re D.S., a Person Coming B315828
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF Super. Ct.
CHILDREN AND FAMILY No. 20CCJP01988A)
SERVICES,
Plaintiff and Respondent,
v.
JASMINE F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Gabriela H. Shapiro, Judge Pro Tempore.
Conditionally affirmed and remanded with directions.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
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Mother appeals from orders denying her petition to change
a court order and terminating her parental rights. On appeal,
she contends the trial court erred in finding the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) did not
apply. Mother argues the Los Angeles County Department of
Children and Family Services (Department) failed to conduct a
proper inquiry of her and maternal relatives to determine
whether D.S. is or may be an Indian child. The Department
concedes that it did not conduct a proper ICWA inquiry and does
not oppose a conditional affirmance and remand for compliance
with ICWA. We accept the Department’s concession and remand
this matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the limited issue raised on appeal, we provide
only a brief summary of the background of this case. Mother
tested positive for marijuana and methamphetamine when D.S.
was born in April 2020. The Department detained D.S. two days
later. On July 6, 2020, the juvenile court sustained a petition
pursuant to Welfare and Institutions Code section 300,
subdivision (b),1 based on the parents’ substance abuse, mother’s
mental and emotional problems, and father’s mental health
diagnosis. The court asserted dependency jurisdiction over then
three-month-old D.S., removed her from both parents, ordered
1 Allundesignated statutory references are to the Welfare
and Institutions Code.
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her suitably placed, and ordered the Department to provide
reunification services to both parents.
Father’s reunification services were terminated at the six-
month review hearing.2 A report for the twelve-month review
hearing indicated mother had enrolled in four different substance
abuse programs since the case was opened. Although she had
recently completed a two-month inpatient program, she failed to
attend an appointment to begin outpatient services. Mother had
not submitted drug tests during the relevant review period and
did not provide the social worker with information to confirm her
participation in mental health services. After completing the
inpatient drug program in late April 2021, mother had not made
herself available to the Department to schedule in-person visits
with D.S., and she missed all scheduled virtual visits. At the
June 8, 2021 hearing, the juvenile court terminated mother’s
reunification services. The court set a hearing to select a
permanent plan, pursuant to section 366.26 (.26 hearing), for
October 20, 2021.
The report for the .26 hearing indicated mother had
consistent, monitored visits with D.S. Mother’s interactions with
D.S. were appropriate when both she and D.S. were awake.
However, mother had fallen asleep several times during the visits
when D.S. was napping. The visitation monitor noted mother
had almost rolled on top of D.S. while napping with her.
Mother’s virtual visits were inconsistent, and she had at times
appeared to be under the influence.
On October 6, 2021, mother submitted a request to change
a court order pursuant to section 388, seeking six additional
2 Father is not a party to this appeal.
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months of reunification services. Mother declared she had
enrolled in another substance abuse program as of mid-July
2021; she had changed her way of thinking about substance
abuse and how she coped with her addiction; and she was visiting
D.S. regularly. The juvenile court denied the petition without a
hearing. On October 20, 2021, the juvenile court terminated
parental rights, rejecting mother’s argument that the beneficial
parent-child relationship exception to adoption applied.3 Mother
timely appealed.
ICWA background
The initial dependency petition indicated the social worker
questioned both parents about Indian ancestry. Based on that
questioning, the Indian Child Inquiry Attachment to the petition
reported D.S. had no known Indian ancestry. However, the
April 13, 2020 detention report indicated mother told the social
worker she has Cherokee Indian ancestry. Mother did not know
if her family is registered with the tribe. The social worker
interviewed a maternal “great great aunt,” Josephine F., but the
report did not indicate that the interview included questions
regarding any ICWA-related issues. According to the report,
Josephine F. adopted mother and the maternal uncle because of
the maternal grandmother’s substance abuse problems.
Josephine F. informed the Department that the maternal
grandmother is deceased. Father “reported the [ICWA] does not
apply.”
At the April 13, 2020 detention hearing, both parents
submitted parental notification of Indian status (ICWA-020)
forms, each declaring under penalty of perjury that they had no
3 Mother offered no evidence at the .26 hearing.
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Indian ancestry as far as they knew. The court found it had no
reason to know that ICWA applied to the case. The minute order
stated the parents were to keep “the Department, their Attorney
and the Court aware of any new information relating to possible
ICWA status.” The record does not reflect that the Department
or the court conducted any further ICWA-related inquiry or
investigation.
DISCUSSION
On appeal, mother raises only a single issue: she contends
the Department and the court failed to make a proper inquiry as
to whether D.S. is or may be an Indian child.4 The Department
concedes that it failed to conduct a proper inquiry.
Section 224.2 sets forth the duties of a county welfare
department and the juvenile court in determining whether a
child is or may be an Indian child. An “ ‘Indian child’ ” is “any
unmarried person who is under age eighteen and is either (a) a
member of an Indian tribe or (b) is eligible for membership in an
4 Mother’s appointed appellate counsel filed an opening
brief raising ICWA error and asking this court to reverse the
order terminating parental rights. However, the opening brief
also sought leave to allow mother to personally file a brief, citing
In re Phoenix H. (2009) 47 Cal.4th 835. We note the
discretionary procedure described in In re Phoenix H. typically
applies only when appellate counsel is unable to identify any
arguable issues to present on appeal, which is not the case here.
(Id. at p. 844 [when appointed counsel files brief concluding no
arguable issues, court may allow parent to personally file brief].)
Nonetheless, this court granted mother leave to file a
supplemental letter brief. We have reviewed mother’s letter and
conclude it does not raise any arguable issues. The Department’s
motion to dismiss as to that portion of the appeal is granted.
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Indian tribe and is the biological child of a member of an Indian
tribe.” (25 U.S.C. § 1903(4); § 224.1, subd. (a).)
Section 224.2, subdivision (a), provides that both the court
and the Department have an “affirmative and continuing duty” to
inquire whether a child is or may be an Indian child, beginning
with the “initial contact,” which includes asking the party
reporting abuse or neglect if they have any information that the
child may be an Indian child. Under section 224.2,
subdivision (b), if a child is placed in the Department’s temporary
custody, the agency must inquire whether the child is or may be
an Indian child, by asking a nonexclusive group that includes the
child, the parents, and extended family members. Under
section 224.2, subdivision (c), at the first court appearance of
each party, the juvenile court must ask whether the appearing
party knows or has reason to know that the child is an Indian
child. In addition, the court must instruct the parties to inform
the court if they subsequently receive information that provides
reason to know the child is an Indian child.
There is “reason to know” a child is an Indian child when: a
person having an interest in the child informs the court the child
is an Indian child; the residence of the child, the child’s parents,
or the child’s Indian custodian, is on a reservation or in an
Alaskan Native village; a participant in the proceeding, officer of
the court, Indian tribe or organization, or agency informs the
court it has discovered information indicating the child is an
Indian child; the child gives the court reason to know that the
child is an Indian child; the court is informed that the child is or
has been a ward of tribal court; or the court is informed either the
parent or the child possesses an identification card indicating
membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).)
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Under section 224.2, subdivision (e), if the court or social
worker has reason to believe an Indian child is involved in the
proceeding, but does not have enough information to determine
there is a reason to know the child is an Indian child, the court or
the social worker must make further inquiry, as soon as
practicable. “[R]eason to believe” means the court or social
worker has information “suggesting that either the parent of the
child or the child is a member or may be eligible for membership
in an Indian tribe.” (§ 224.2, subd. (e)(1).) “Further inquiry”
includes actions such as “[i]nterviewing the parents, Indian
custodian, and extended family members” to gather information
that would be necessary to provide notice to any relevant tribes.
(§§ 224.2, subd. (e)(2)(A), 224.3, subd. (a)(5).) It also includes
contacting the Bureau of Indian Affairs and State Department of
Social Services for assistance in identifying contact information of
relevant tribes, and contacting the “tribe or tribes and any other
person that may reasonably be expected to have information
regarding the child’s membership, citizenship status, or
eligibility.” (§ 224.2, subd. (e)(2)(B)-(C).)
Section 224.2, subdivision (i)(2), provides that if “the court
makes a finding that proper and adequate further inquiry and
due diligence as required in this section have been conducted and
there is no reason to know whether the child is an Indian child,
the court may make a finding that [ICWA] does not apply to the
proceedings, subject to reversal based on sufficiency of the
evidence.”
In this case, mother contends the Department failed in its
duty of inquiry by not asking mother’s relatives whether D.S. is
or may be an Indian child as required under section 224.2,
subdivision (b). Mother additionally argues that her statement
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that she had Cherokee Indian ancestry provided “reason to
believe” D.S. is an Indian child, and the Department thus failed
to conduct the mandatory further inquiry; it did not interview
any relatives, attempt contact with any Cherokee tribe, or contact
the Bureau of Indian Affairs, as required under section 224.2,
subdivision (e)(2). The Department concedes it did not conduct a
proper inquiry, and further concedes that it is appropriate for
this court to remand this matter for compliance with ICWA.
It is undisputed that the Department did not interview
available maternal relatives about ICWA despite interviewing
them about other case-related issues. It is also undisputed that
mother told the Department her family had Cherokee Indian
ancestry, but no additional inquiries were made to investigate
that statement. Further, there was evidence that mother was
raised by her extended relative due to the maternal
grandmother’s substance abuse. On this record we find it
appropriate to accept the Department’s concession. (In re Dezi C.
(2022) 79 Cal.App.5th 769, 779 [failure to conduct proper initial
inquiry may be prejudicial if agency did not follow up on report of
possible Indian heritage or where parent’s self-reporting may not
be fully informed]; In re A.C. (2022) 75 Cal.App.5th 1009, 1015–
1016 [conditional affirmance where mother denied Indian
ancestry, but report suggested without explanation that ICWA
may apply, and mother had been raised in foster care].)
We therefore conditionally affirm the juvenile court order,
remanding the matter for further inquiry and compliance with
ICWA.
DISPOSITION
The juvenile court’s order terminating parental rights is
conditionally affirmed. The case is remanded to the juvenile
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court to order the Department to immediately comply with the
inquiry provisions of Welfare and Institutions Code section 224.2
as to available maternal relatives. After ensuring the
Department has complied with the inquiry, and, if applicable,
notice provisions of ICWA and related California law, the juvenile
court shall determine whether ICWA applies. If the court
determines ICWA does not apply, the order terminating parental
rights shall remain in effect. If the court determines ICWA does
apply, it shall vacate its order terminating parental rights and
proceed consistent with ICWA and related state law.
NOT TO BE PUBLISHED.
ADAMS, J.*
We concur:
EDMON, P. J.
LAVIN, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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