Filed 3/16/23 In re Emma C. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
In re EMMA C., a Person B318281
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 19LJJP00831B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
NATASHA H. et al.,
Defendants and
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Michael C. Kelley, Judge. Affirmed in part, vacated and
remanded in part for further proceedings.
Donna P. Chirco, under appointment by the Court of
Appeal, for Defendant and Appellant Natasha H.
Carolyn S. Hurley, under appointment by the Court of
Appeal, for Defendant and Appellant Daniel C.
Dawyn R. Harrison, Interim County Counsel, and Kim
Nemoy, Assistant County Counsel, for Plaintiff and Respondent.
******
Natasha H. (mother) and Daniel C. (father) appeal the
juvenile court’s order exerting jurisdiction over their daughter,
Emma C., and its related dispositional order on the ground that
the court’s finding, at the detention hearing, that Emma was not
an “Indian child” within the meaning of the Indian Child Welfare
Act (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.1)
(ICWA) was not supported by substantial evidence. For the
reasons discussed below, we affirm the court’s jurisdictional and
dispositional orders, but vacate its ICWA finding and remand.
FACTS AND PROCEDURAL BACKGROUND
Mother has two children—Larissa H. (born November
2019) and Emma C. (born September 2021). Father is the
presumed father of Larissa and Emma.
After mother tested positive for methamphetamines when
Larissa was born, the Los Angeles Department of Children and
Family Services (the Department) filed a petition asking the
juvenile court to exert dependency jurisdiction over Larissa
because mother’s substance abuse placed Larissa at substantial
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
risk of serious physical harm and father failed to protect Larissa
from that harm (rendering dependency jurisdiction appropriate
pursuant to subdivision (b)(1) of section 300). In March 2020, the
juvenile court declared Larissa a dependent child, removed her
from mother and father, and ordered the Department to provide
the parents with reunification services.
In the last few months of her pregnancy with Emma,
mother tested positive for methamphetamines three times.
When Emma was six days old, the Department filed a petition
asking the juvenile court to exert dependency jurisdiction over
Emma (1) due to mother’s substance abuse and father’s failure to
protect Emma from that abuse (rendering jurisdiction
appropriate pursuant to subdivision (b)(1) of section 300), and (2)
due to Emma’s sibling being the victim of abuse or neglect
(rendering jurisdiction appropriate pursuant to subdivision (j) of
section 300); both circumstances, the petition alleged, placed
Emma at substantial risk of serious physical harm.
At a detention hearing held in September 2021, the
juvenile court found that it had no “reason to know that [Emma]
is an Indian Child, as defined under ICWA.”2 When questioned
by the Department, both mother and father denied any Indian
ancestry, and they also denied any Indian ancestry on their
ICWA-020 forms. However, at that time and in the months that
followed, the Department had contact with or potential access to
several relatives—chiefly, the paternal grandparents, a maternal
cousin, two paternal aunts, and various maternal relatives living
2 The detention hearing was mother’s first appearance, but
the court did not ask mother whether she knew or had reason to
know that Emma is an Indian child.
3
in Michigan; the Department did not ask any of these relatives
about Emma’s possible Indian heritage.
After a contested hearing that spanned from October 2021
through January 2022,3 the juvenile court sustained both
allegations, removed Emma from her parents, and ordered
further reunification services. The court did not make any
further ICWA findings.
Father and mother filed timely appeals from the juvenile
court’s jurisdictional and dispositional orders.
DISCUSSION
Father and mother argue that the Department did not
comply with its initial duty of inquiry under ICWA, but they ask
for different remedies: Father asks us to “remand” the case to
the juvenile court so the Department can comply with that duty;
mother asks us to “reverse” the juvenile court’s “orders finding
that [the Department] satisfied its [initial] duty of inquiry” under
ICWA. The Department has moved this court to dismiss both
appeals as moot because, in the months that this case has been
on appeal, the juvenile court reminded the Department of its
continuing duty of inquiry under ICWA, and the Department has
spoken to some (but not all) of the relatives. Although the
parents’ notices of appeal challenge only the juvenile court’s
jurisdictional and dispositional orders in which the court did not
make any ICWA finding, we construe their appeal as challenging
both the court’s express finding in the detention order that ICWA
does not apply as well as the court’s implicit finding in the
3 The first session of the adjudication hearing convened on
October 4, 2021, was father’s first appearance, but the court did
not ask father whether he knew or had reason to know that
Emma is an Indian child.
4
jurisdictional and dispositional orders that ICWA still does not
apply. (See In re Isaiah W. (2016) 1 Cal.5th 1, 15 [ICWA issue
cognizable on appeal from termination of parental rights even
though no express ICWA finding was made at that hearing
because termination “necessarily subsumed a present
determination of ICWA’s inapplicability”]; In re Ricky R. (2022)
82 Cal.App.5th 671, 683 [erroneous ICWA finding implicitly
incorporated into later orders]; In re Asia L. (2003) 107
Cal.App.4th 498, 506 [ICWA finding may be either express or
implicit]; see also In re B.P. (2020) 49 Cal.App.5th 886, 889-890
[section 395 permits challenges to pre-disposition detention order
when appeal is filed from jurisdictional/dispositional order].)
All of the parties seem to be in agreement that the
Department did not discharge its initial duty of inquiry under
ICWA, and we concur in this assessment. ICWA and
corresponding statutes that our Legislature enacted to
implement ICWA assign the juvenile court and the Department
“three distinct duties” aimed at assessing whether a child in a
dependency action is an “Indian child,” and hence a child who
should not be separated from their tribal family through adoption
or foster care placement. (§§ 224.2, 224.3; Mississippi Band of
Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32; In re D.S.
(2020) 46 Cal.App.5th 1041, 1052.) Only the first duty is at issue
here—namely, the initial “duty” of the Department and the
juvenile court “to inquire whether [a] child is an Indian child.” (§
224.2, subds. (a) & (b).) The Department discharges this duty by
“asking” family members “whether the child is, or may be, an
Indian child.” (Id., subd. (b).) For these purposes, an “Indian
child” is a child who (1) is “a member of an Indian tribe,” or (2) “is
eligible for membership in an Indian tribe and is the biological
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child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); §
224.1, subd. (a).) The duty to inquire extends not only to the
child’s parents, but also to others, including but not limited to,
“extended family members.” (§ 224.2, subd. (b).) For its part, the
juvenile court is required, “[a]t the first appearance” in a
dependency case, to “ask each participant present” “whether the
participant knows or has reason to know that the child is an
Indian child.” (Id., subd. (c).) Although mother and father denied
any Indian heritage, it is undisputed that the Department did not
ask many of the “extended family members” it contacted or knew
of about Emma’s potential status as an “Indian child.”4
As a consequence, substantial evidence does not support
the juvenile court’s finding—explicit in the detention order and
implicit in the dispositional order—that Emma is not an Indian
child. That is because the court’s finding necessarily contains an
“implied finding” that the Department also “complied with its
4 Mother also challenges the juvenile court’s failure to fulfill
its initial duty of inquiry under ICWA to “ask” mother and father
at their “first appearance” in Emma’s case whether they “know[]
or ha[ve] reason to know that [Emma] is an Indian child.” (§
224.2, subd. (c).) To be sure, “the absence of information” on an
ICWA-020 form “regarding possible Indian ancestry does not
relieve the court of its affirmative responsibility to inquire at the
first appearance of each party” of the child’s status as an Indian
child. (In re T.G. (2020) 58 Cal.App.5th 275, 293.) However,
short of procuring a time machine, mother does not identify what
remedy an appellate court can grant to address a juvenile court’s
failure to question the parents at their first appearances (because
any post-appeal appearance would no longer be their “first
appearance”). In any event, we need not resolve the issue because
we are vacating the court’s finding that ICWA does not apply.
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duty of initial inquiry” under ICWA (In re Y.M. (2022) 82
Cal.App.5th 901, 909), and because, as we just noted, the
Department did not so comply.
So this raises the question: What is the appropriate
remedy when an appellate court determines, on appeal from an
order prior to termination of parental rights, that the ICWA duty
of initial inquiry has not been satisfied?5
By our count, the California appellate courts have thus far
provided five different rules in answering this question. The first
rule is to affirm the juvenile court’s jurisdictional and
dispositional findings, to vacate the court’s finding that ICWA
does not apply, and to remand for the Department to comply with
its ICWA duties. (In re Dominick D. (2022) 82 Cal.App.5th 560,
563-564, 567-568.) The second rule is to affirm the juvenile
court’s findings in their entirety, on the rationale that the issue of
ICWA compliance remains before the juvenile court at all times
and the Department will have time to correct any deficiencies.
(In re T.R. (2023) 87 Cal.App.5th 1140, 1154; In re S.H. (2022) 82
Cal.App.5th 166, 171, 173, 175-179.) The third rule is to dismiss
the appeal as moot, on the theory that “no effective relief” may be
granted because any ICWA deficiencies can be cured in future
proceedings. (In re Baby Girl M. (2022) 83 Cal.App.5th 635, 638-
639 & fn. 2.) The fourth rule is to treat an appeal from a finding
that ICWA does not apply as premature (and hence not yet
5 This is a different question than what the remedy is when
the appellate court determines, on appeal from an order
terminating parental rights, that the ICWA duty of initial inquiry
has not been satisfied. The California appellate courts are
similarly fractured about how to answer this question as well, but
we need not delve into that morass here.
7
“ripe”) because such a finding can necessarily be altered prior to
the termination of parental rights. (J.J. v. Superior Court (2022)
81 Cal.App.5th 447, 461.) And the fifth and (thus far) final rule
is to construe the appeal as a writ petition, and to evaluate the
merits of the Department’s compliance with ICWA. (D.S. v.
Superior Court (2023) 88 Cal.App.5th 383, 387-389, 391-392.)
The fact that the appellate courts have so badly splintered
cries out for guidance from our Supreme Court or from our
Legislature.
In the meantime, however, we have to decide appeals and
hence have to pick one of the five rules (or come up with a sixth).
We elect to go with the first rule—that is, to affirm the juvenile
court’s jurisdictional and dispositional findings (because neither
parent attacks those findings), to vacate the juvenile court’s
finding that ICWA does not apply (because all of the parties
agree that this includes an “implied finding” that the Department
has complied with its initial duty of inquiry that is not supported
by substantial evidence), and to remand for the Department to
continue to comply with that duty. In our view, to unequivocally
affirm leaves intact a judicial finding of ICWA compliance that is
not—as the parties concede here—supported by substantial
evidence; that the juvenile court may make a different finding
regarding the Department’s compliance with ICWA at some
different and later point in time does not, in our view, render the
finding before us now sufficiently valid to affirm (under the
second rule), or moot (under the third rule), or unripe (under the
fourth rule). And where a dispositional order is separately
appealable, we see no point in severing the court’s ICWA finding
and construing just part of the appeal as a petition for writ
review.
8
In adopting the first rule, we accordingly deny the
Department’s motion to dismiss this appeal as moot. The
Department does not argue that it has completely complied with
its initial duty of inquiry, only that it has taken some additional
steps; indeed, the Department has not spoken with all of the
relatives identified by the parents in their briefs on appeal, so
there is still effective relief to be granted on appeal. (In re D.P.
(2023) 14 Cal.5th 266, 277-278.) Thus, we have no reason to
examine the minute orders and Department reports submitted in
support of its mootness argument, and accordingly deny the
Department’s request for judicial notice.
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DISPOSITION
The detention, jurisdictional, and dispositional orders are
affirmed in part; the juvenile court’s finding (express in the
detention order and implicit in the jurisdictional and
dispositional orders) that Emma is not an “Indian child” is
vacated, and the matter is remanded for further proceedings in
which (1) the Department shall make reasonable efforts to ask all
known and available family members whether Emma is or may
be an Indian child; (2) the Department shall document these
efforts to the juvenile court; (3) the juvenile court shall make a
finding regarding ICWA’s applicability; and (4) depending on the
court’s finding, the court and the Department shall proceed in
accordance with sections 224.2 and 224.4.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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