Filed 2/10/23 In re J.B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.B., a Person Coming B321494
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. CK74503D)
Plaintiff and Respondent,
v.
R.J.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Rudolph A. Diaz, Judge. Conditionally reversed
with directions.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
——————————
Mother appeals from the June 10, 2022 order terminating
her parental rights under Welfare and Institutions Code
section 366.261 as to J.B. (minor). Mother’s sole contention on
appeal is that the court erroneously failed to ensure compliance
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.). Los Angeles County
Department of Children and Family Services (the Department)
contends the court’s ICWA determination is supported by
substantial evidence, and any inquiry error is harmless. We find
the court’s ICWA finding to be in error, and we conditionally
reverse the matter solely for the juvenile court to ensure
compliance with ICWA and related California statutes.
FACTUAL AND PROCEDURAL BACKGROUND
Prior dependency case
Minor’s mother and half-siblings were parties in a prior
dependency case in 2008.2 In that case, mother had claimed
possible Choctaw ancestry out of Louisiana through mother’s
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 The half-siblings are not parties to the current appeal.
2
maternal grandmother, and possible Cherokee ancestry through
mother’s paternal grandfather. The Department interviewed
mother’s maternal grandmother, who denied knowledge of any
Indian ancestry. In 2008, the Department sent ICWA notices
and received letters from the Cherokee Nation, the Jena Band of
Choctaw Indians, the Keetoowah Band of Cherokee Indians in
Oklahoma, and the Cherokee Boys Club indicating that identified
half-siblings were not members or eligible for membership in
their tribes. Mother continued to claim Indian ancestry, naming
the tribe as Cherokee. In 2012, the court found ICWA did not
apply to the half-siblings.
ICWA inquiry in the current case
The current case began in September 2012, when the
Department filed a petition under section 300, alleging minor
was at risk of harm based on domestic violence between mother
and minor’s father. The detention report noted the ICWA finding
from the prior dependency case, involving minor’s half-siblings
and a different father. On September 14, 2012, mother told a
social worker she had Cherokee ancestry. On November 27,
2012, however, mother filed an ICWA-20 form stating she had no
Indian ancestry. The form directed mother to advise all parties
and the court if she obtained new information regarding Indian
ancestry. Father’s first court appearance was on December 18,
2012, and the court declared him minor’s presumed father.3
Although the record does not contain an ICWA-20 form completed
3 Father is not a party to this appeal.
3
by father or a reporter’s transcript, the minute order stated that
the court found ICWA inapplicable.
At the February 5, 2013 adjudication and disposition
hearing, the court sustained the petition allegations, removed
minor from father’s custody, and placed minor with mother.
Father had monitored visits for which mother could not be the
monitor. Mother was subsequently arrested in July 2013. The
social worker went to mother’s home, where he found father with
minor. The social worker informed father that minor might be
placed in protective custody. Father arranged for minor’s
paternal grandfather to pick up father and minor, and all three
left together. Father and paternal grandfather were unwilling to
provide contact information. The social worker sought that
information from mother, who clearly had a way to contact them,
but she refused to provide father or paternal grandfather’s phone
number, at least for some period. The social worker obtained
contact information for paternal grandfather and grandmother in
August 2013 for them to act as minor’s caretakers.
Mother and father again denied any Indian ancestry in the
fall of 2013, and the court again found ICWA inapplicable.
Mother later informed the Department that both her parents had
passed—her mother when she (mother) was a toddler, and her
father seven years ago.
Between 2013 and 2022, the court upheld a subsequent
petition and removed minor from parental custody, ordered and
then terminated reunification services, and denied mother’s
request to reinstate reunification services or return minor to her
custody.
On June 10, 2022, the court terminated parental rights
under section 366.26.
4
DISCUSSION
Relevant Law 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.’ ”
(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.) “The Department’s first-step
inquiry duty under ICWA and state law was broader [than what
is required of a court making inquiry under 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. (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,
5
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 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., at p. 438.)
Analysis
Mother contends that reversal is required because the
inquiry requirements of ICWA and related California law were
not satisfied in this case. Specifically, mother contends the
Department did not ask paternal grandparents, maternal aunts
E.S. and M.P-H., or paternal aunt M.P.,4 all of whom were
involved in the case and in contact with the Department, about
the possibility that minor had Indian ancestry.
The Department argues that there is substantial evidence
to support the court’s implied finding that ICWA did not apply,
pointing to prior ICWA notices concerning minor’s half-siblings,
which resulted in a no-ICWA finding, multiple statements by
mother and father denying any Indian ancestry, and mother’s
failure to object to the court’s earlier determinations or to come
forth with any information during the length of this case. The
Department also argues that to the extent it was error to find
ICWA inapplicable without asking available extended family
members, such an error should be found harmless because
nothing in the record shows that questioning those family
4 The various reports inconsistently refer to M.P. as a
nonrelated extended family member and as a paternal aunt.
6
members would provide a reason to believe that minor was an
Indian child or had any Indian ancestry. Acknowledging the
current split among appellate courts on how or whether an ICWA
error may be prejudicial, the Department argues that mother
cannot establish prejudicial error, because the record does not
contain any information suggesting minor might have any Indian
ancestry, or that inquiry of available relatives might result in a
different ICWA finding.
Recognizing that the Department did inquire and provide
notice to tribes in the prior dependency proceeding involving
minor’s half siblings, we still conclude that in the absence of any
evidence that the Department asked available extended family
members about the possibility of Indian ancestry in the current
dependency proceeding, it is prejudicial error for the trial court to
find ICWA inapplicable. (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].) In addition to the fact that
paternal relatives were not involved in the prior dependency,
there is no evidence that maternal relatives other than maternal
great-grandmother were asked about the possibility of Indian
ancestry. “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.)
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DISPOSITION
The juvenile court’s June 10, 2022, order terminating
parental rights under Welfare and Institutions Code section
366.26 is conditionally reversed with directions to order the
Department to make reasonable efforts to interview available
relatives who have been in contact with the Department,
including the paternal grandparents, maternal aunts E.S. and
M.P-H., and possible paternal aunt M.P., about the possibility of
the mother’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 available
extended relatives or others having an interest in the child.
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.
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In re J.B.
B321494
BAKER, J., Dissenting
I would affirm because substantial evidence supports the
juvenile court’s finding that the Indian Child Welfare Act (ICWA)
does not apply. (In re A.C. (2022) 86 Cal.App.5th 130 (dis. opn. of
Baker, J.); In re Ezequiel G. (2022) 81 Cal.App.5th 984; In re H.V.
(2022) 75 Cal.App.5th 433 (dis. opn. of Baker, J.).)
BAKER, J.