Filed 10/26/22 In re J.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.S., a Person Coming B319510
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 19CCJP05727D)
Plaintiff and Respondent,
v.
O.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Nancy A. Ramirez, Judge. Conditionally
reversed with directions.
Christopher Blake, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, and Kim
Nemoy, Assistant County Counsel, for Plaintiff and Respondent.
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Father appeals from the March 2, 2022 order terminating
parental rights under Welfare and Institutions Code section
366.261 as to J.S. (minor). Father contends 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) filed a petition under section 300,
alleging minor and his older half-siblings were at risk of harm
based on domestic violence between father and mother.2 As part
of the Department’s initial investigation, mother and father
denied any Indian ancestry. Mother and father were not present
at the July 1, 2020 detention hearing, but the court appointed
counsel for each parent, and found that ICWA did not apply. The
appellate record includes an ICWA-20 form signed by mother’s
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
2 Mother and the other children are not parties to the
current appeal.
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appointed counsel, stating that mother did not have any Indian
ancestry. A similar form for father was unsigned.
Despite evidence that minor was placed with maternal
grandmother, and Department employees had contact
information for or were in contact with a number of maternal and
paternal relatives, there is no indication that any relatives were
ever asked about possible Indian ancestry.
Father’s first court appearance was at the adjudication
hearing on March 11, 2021. At that hearing, the court did not
ask father about Indian ancestry, nor did the court make any
ICWA findings. Father appeared again at the disposition hearing
on March 23, 2021 and testified briefly. The court denied
reunification services for father under section 361.5, subdivision
(e). Again, the court did not ask father about possible Indian
ancestry, and it made no ICWA determination.
As far as we can tell from the record, mother never
appeared. The section 366.26 hearing was continued several
times due to difficulty serving notice on mother, but eventually
took place on March 2, 2022. The court terminated parental
rights as to minor, and no mention of ICWA was made. Father
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, and 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 father about possible Indian
ancestry at his first appearance (or thereafter) in the dependency
case, did not subsequently attempt to ensure that each parent
completed and filed an ICWA-020 form, 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].)
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DISPOSITION
The juvenile court’s March 2, 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. The
court shall also order the Department to make reasonable efforts
to interview available extended paternal relatives about the
possibility of 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.
We concur:
RUBIN, P. J.
KIM, J.
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