Filed 3/13/23 In re J.T. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.T., a Person Coming B322456
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 19LJJP00602)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.T.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa A. Brackelmanns, Juvenile Court Referee.
Conditionally affirmed and remanded with directions.
Anuradha Khemka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, and Jessica
Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Mother appeals from termination of parental rights to son.
She argues that the juvenile court and the Los Angeles County
Department of Children and Family Services (DCFS) failed to
comply with their inquiry duties under Welfare and Institutions
Code section 224.2, subdivision (b)—the California statute
implementing the Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.).1 DCFS concedes it and the juvenile
court failed to comply with ICWA and related California statutes
implementing ICWA’s initial inquiry rules. Accordingly, we
conditionally affirm the termination of parental rights and
remand to allow DCFS and the juvenile court to remedy the
ICWA inquiry errors and determine anew whether ICWA applies.
FACTUAL AND PROCEDURAL BACKGROUND
After the family came to DCFS’s attention due to the
parents’ drug use, DCFS inquired with mother about Indian
heritage. In July 2019, mother stated that she may have Indian
ancestry but did not provide the name of a particular tribe. On
August 23, 2019, mother filed a Parental Notification of Indian
Status (ICWA-020 form), indicating she may have Indian
ancestry with the Cherokee Tribe through her maternal family.
On this same date, the juvenile court held the detention hearing.
Although mother appeared, the court never inquired with mother
about her Indian heritage. The juvenile court ordered DCFS to
investigate mother’s Indian ancestry and deferred its ICWA
findings.
1 All further undesignated statutory references are to the
Welfare and Institutions Code.
2
DCFS’s October 8, 2019 jurisdiction and disposition report
indicated that its dependency investigator spoke with mother,
who confirmed she was told by family members there is possible
Cherokee ancestry via her maternal grandfather. The
investigator spoke with a maternal aunt and her wife, who were
son’s caregivers. The maternal aunt verified there might be
Cherokee ancestry through the maternal grandfather and
provided DCFS with all available information for son’s maternal
grandparents. DCFS reported that ICWA notices would be
completed and provided to the court with certified receipts prior
to the jurisdiction/disposition hearing set for October 8, 2019.
On October 8, 2019, father made his first appearance in
court and filed an ICWA-020 form, indicating he may have
Blackfoot and Cherokee ancestry. The court did not inquire with
father about his heritage. The court deferred its ICWA findings
as to father, and ordered DCFS to investigate father’s claim of
Indian ancestry and to notice tribes where appropriate.
On December 5, 2019, the juvenile court assumed
jurisdiction over then-infant son, sustaining section 300
allegations based on parental drug abuse. At this juncture,
DCFS requested the court make ICWA findings because 60 days
had passed since noticing the Cherokee tribe. In response, the
court indicated it had reviewed the ICWA notice sent to the
Cherokee tribe and “based on the evidence presented to the court
as of today’s date, court finds that the Indian Child Welfare Act
does not apply.”
On February 25, 2021, the court terminated reunification
services, and set a section 366.26 permanency planning hearing.
On August 5, 2022, the juvenile court reiterated that ICWA
did not apply and then denied mother’s section 388 petition,
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finding no changed circumstances. The court found son
adoptable and terminated parental rights.
DISCUSSION
Mother asserts that although she reported Cherokee
heritage and father reported Cherokee and Blackfoot heritage,
the record reflects deficient inquiry by both the juvenile court and
DCFS. The juvenile court did not ask the parents if they had any
reason to know if the child was an Indian child, and failed to
instruct mother to provide any subsequently gained information
regarding the child’s Indian status to the court. DCFS did not
inquire of father about his Native American Indian ancestry, and
did not inquire with known and available extended maternal and
paternal family members about whether the child was an Indian
child. The ICWA-030 notice to the Cherokee tribe is also missing
from the record. Mother requests conditional reversal of the
order terminating parental rights and remand to ensure proper
inquiry and notice.
DCFS concedes it did not inquire with father about his
Indian ancestry, and did not inquire with known and available
extended maternal and paternal family members about Indian
ancestry—specifically, maternal aunts, a maternal uncle,
maternal great-aunt, maternal grandmother, maternal
grandfather, paternal grandmother, paternal great-aunt, and
paternal great-grandmother. DCFS acknowledges it reported to
the juvenile court that it would notice the Cherokee tribe in
relation to mother’s claim of Cherokee ancestry, but that the
ICWA-030 notice purportedly sent to the Cherokee tribe is
missing from the record. DCFS also states the juvenile court did
not inquire with the parents about their Indian heritage or
admonish them to provide subsequently gained information
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about Indian heritage to the court. DCFS asks us to
conditionally affirm the trial court’s order terminating parental
rights, or in the alternative, reverse and remand for ICWA
compliance.
We have reviewed the record, and agree DCFS and the
juvenile court failed to satisfy ICWA’s inquiry provisions as
described above. We conditionally affirm the order.
DISPOSITION
The termination of parental rights order is conditionally
affirmed and remanded to the juvenile court for the limited
purpose of ensuring compliance with the inquiry provisions of
section 224.2 and, if required, the notice provisions of section
224.3. The juvenile court shall order DCFS to furnish the court
with the ICWA-030 notice sent to the Cherokee tribe in relation
to the maternal grandfather’s heritage, or alternatively reissue
the notice to the tribe. The court shall inquire with the parents
regarding their heritage and shall order DCFS to complete an
inquiry into son’s Indian ancestry by making reasonable efforts to
interview available extended maternal and paternal family
members. If, after ICWA compliance, the juvenile court issues an
order determining that ICWA does not apply, the order
terminating parental rights shall remain in effect. If the court
determines ICWA applies, it shall vacate the order and proceed
in accordance with ICWA and related state law.
RUBIN, P. J.
WE CONCUR:
BAKER, J. MOOR, J.
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