Filed 3/16/23 In re A.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re A.B., a Person Coming B322514
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 20CCJP04094A)
Plaintiff and Respondent,
v.
K.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore.
Conditionally reversed with directions.
Elizabeth A. Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, and Melania
Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
——————————
Mother appeals from the order terminating parental rights
under Welfare and Institutions Code section 366.261 as to A.B.
(minor). Mother’s sole contention on appeal is that the juvenile
court and the Los Angeles County Department of Children and
Family Services (Department) failed to comply 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
Our summary is limited to the facts and procedure relevant
to mother’s claim that the Department’s ICWA inquiry efforts
were inadequate. Shortly after minor’s birth, the Department
filed and the court sustained a petition alleging minor was a child
described by section 300, subdivision (b)(1) based on mother’s
substance abuse and father’s failure to protect.2 Both parents
filed ICWA-20 forms denying any Indian ancestry, and the court
found ICWA inapplicable.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
2 Father is not a party to this appeal.
2
During the dependency proceedings, the Department had
either contact with or information about a number of extended
relatives, including maternal grandmother and maternal uncle.
However, there is no evidence in the record that the relatives
were ever asked about possible Indian ancestry.
At a combined section 388 and section 366.26 hearing in
August 2022, the court denied mother’s petition under section
388, and terminated parental rights as to minor under section
366.26.
Mother filed a notice of appeal challenging the court’s order
entered at the August 2022 combined section 388 and section
366.26 hearing.
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.’ ”
(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)
3
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
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 dependency jurisdiction with
4
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 there is no evidence in the record 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].)
5
DISPOSITION
The juvenile court’s August 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. The court shall also order the
Department to make reasonable efforts to interview available
extended relatives, including maternal grandmother and
maternal uncle about the possibility that minor has 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 child. Based on the information reported, if the court
determines that no additional inquiry or notice to tribes is
necessary, the order terminating dependency jurisdiction 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:
KIM, J.
6
In re A.B.
B322514
BAKER, Acting P. 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, 132 (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, 439 (dis. opn. of Baker, J.).)
BAKER, Acting P. J.