In re D.P. CA2/7 ( 2022 )

Filed 12/5/22 In re D.P. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re D.P. et al, Persons Coming B315051
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 19LJJP00581A-B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JOHNEISHA C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Susan Ser, Judge. Conditionally affirmed and
remanded.
Darlene Azevedo Kelly, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel and David Michael Miller, Senior
Deputy County Counsel, for Plaintiff and Respondent.
___________________________________
Johneisha C., the mother of eight-year-old D.P. and five-
year-old S.P., appeals the orders made at the July 23, 2021
selection and implementation hearing (Welf. & Inst. Code,
§ 366.26)1 appointing a legal guardian for the children, granting
Johneisha monitored visitation at the discretion of the guardian
and terminating dependency jurisdiction. Johneisha contends
the juvenile court erred in delegating complete discretion to the
guardian to determine whether any visitation would occur. She
also contends the Los Angeles County Department of Children
and Family Services failed to fulfill its statutory duties of inquiry
and notice under the Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.) and related California law and the
juvenile court failed to ensure the Department had complied with
those duties before concluding ICWA did not apply to these
proceedings.
In its respondent’s brief the Department agrees a remand
is appropriate for the juvenile court to specify the frequency and
duration of visits between Johneisha and the children and to
ensure compliance with the inquiry and notice provisions of
ICWA. However, the Department suggests we conditionally
affirm the findings and orders granting legal guardianship and
terminating jurisdiction, rather than remanding for a new
permanency hearing as initially requested by Johneisha.
1 Statutory references are to this code unless otherwise
stated.
2
In a letter in lieu of a reply brief Johneisha agrees with the
Department’s recommendation, as do we. Accordingly, we
conditionally affirm the court’s July 23, 2021 findings and orders
except as to visitation and the applicability of ICWA and remand
with directions to enter a new order specifying the frequency and
duration of visitation and to ensure full compliance with the
inquiry and notice provisions of ICWA and California law.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Proceedings
The juvenile court on October 15, 2019 sustained the
Department’s amended petition pursuant to section 300,
subdivision (b)(1), based on the ongoing substance abuse of
Johneisha and Thomas P., S.P.’s father. The children were
declared dependents of the court in December 2019 and removed
from the custody of their parents. The court ordered family
reunification services for Johneisha and Thomas, but denied
them to Samuel P., D.P.’s father, who was incarcerated for a
lengthy prison term. Johneisha’s case plan included a full
drug/alcohol program with testing and aftercare and parenting
education. She was granted monitored visitation. The court did
not specify the frequency or duration of the visits.
The children were placed in the home of Jacqueline P., a
nonrelated extended family member, in November 2019, where
they remained placed following the December 2019 disposition
hearing.
At the continued six-month review hearing (§ 366.21,
subd. (e)), finally held in March 2021, the court found Johneisha
was in partial compliance with her case plan: She had completed
a 12-week parenting course, but dropped out of her drug
treatment program and failed to submit to drug testing. Thomas
3
was not in compliance. The court terminated reunification
services for both parents and scheduled a selection and
implementation hearing (§ 366.26) for July 6, 2021.
Johneisha filed a section 388 petition on July 6, 2021,
asking the court to return D.P. and S.P. to her custody or, in the
alternative, to reinstate reunification services and to liberalize
her visits to unmonitored and overnight. The court ordered a
hearing on the section 388 petition for July 23, 2021 and
continued the section 366.26 hearing to that date.
At the combined hearing on July 23, 2021 the court denied
the section 388 petition, finding Johneisha had not shown
changed circumstances and the requested modifications would
not be in the children’s best interests. As the children’s
permanent plan, the court appointed Jacqueline P. their legal
guardian. (Jacqueline P. had indicated she was interested in
adoption, but opted for legal guardianship to allow the parents to
regain custody in the future.) The court ordered monitored
visitation for Johneisha “at the discretion of the legal guardian.”
Over the objection of Johneisha, who contended Jacqueline P.
was thwarting her visitation, the court terminated its
jurisdiction.
Johneisha filed a timely notice of appeal.
2. The Department’s ICWA Inquiry
At the detention hearing on August 16, 2019 Johneisha
submitted an ICWA-020 form stating she may have Indian
ancestry (tribe unknown) through the maternal grandmother,
Luella B., and provided a telephone number. Although ordering
the Department to investigate Johneisha’s possible Indian
ancestry, the court did not question Johneisha regarding her
ancestry at the hearing.
4
On his ICWA-020 form, also submitted on August 16, 2019,
Thomas P. stated, to his knowledge, he had no Indian ancestry.
The court did not question Thomas P. regarding his possible
Indian ancestry at the detention hearing.
Samuel P.’s first appearance was in October 2019. His
ICWA-020 form stated he may have Indian ancestry through the
Blackfoot tribe and indicated his mother may have additional
information. The court ordered the Department to investigate,
but, as with the other two parents, made no inquiry of Samuel P.,
who was present in the courtroom.
A social worker contacted Luella B., who confirmed
Cherokee and Blackfeet ancestry and provided names and other
information about family members. Luella B. said she was not
registered with a tribe. The social worker also spoke to
Johneisha, who said she was not registered with a tribe and, to
her knowledge, neither Thomas P. nor Samuel P. had Indian
ancestry.
There is no indication in the record that any further
inquiry was made of additional maternal relatives or any of
Thomas P.’s or Samuel P.’s family members, including
Samuel P.’s mother, with whom the children had initially been
placed.
In a last minute information report for the court, filed
October 15, 2019, the Department stated it had mailed notices to
the Blackfeet tribe, three Cherokee tribes, the Secretary of the
Interior and the Bureau of Indian Affairs. Unsigned copies of the
certified mail receipts addressed to the parents were attached to
the report, but not copies of the ICWA forms or the mail receipts
addressed to the tribes. In a report dated December 19, 2019 the
Department described and attached letters from the Eastern
5
Band of Cherokee Indians and the Blackfeet Nation stating
Johneisha and the children were not registered or eligible to
register with the tribe. Again, no copies of the letters sent to the
tribes were submitted with the report. At the disposition hearing
on December 19, 2019 the court found ICWA did not apply to the
case.
DISCUSSION
1. The Juvenile Court Erred in Failing To Make a Specific
Visitation Order
When the juvenile court at the selection and
implementation hearing orders a legal guardianship for a child, it
must “‘make an order for visitation with the parents . . . unless
the court finds by a preponderance of the evidence that the
visitation would be detrimental to the physical or emotional well-
being of the child.’” (§ 366.26, subd. (c)(4)(C); accord, In re
Ethan J. (2015) 236 Cal.App.4th 654, 661.) And if the court
orders visitation, “‘it must also ensure that at least some
visitation, at a minimum level determined by the court itself, will
in fact occur.’” (In re Ethan J., at p. 661; accord, In re Korbin Z.
(2016) 3 Cal.App.5th 511, 516 [“the juvenile court cannot delegate
the decision whether visitation will occur to any third party,
including the child, the social services agency, or the guardian”];
see In re S.H. (2003) 111 Cal.App.4th 310, 313.)
As Johneisha argues (and the Department concedes), under
this well-established statutory and case authority, the juvenile
court erred in delegating to Jacqueline P., the children’s legal
guardian, the power to determine whether any visitation would
occur. Although we conditionally affirm the order granting the
legal guardianship, we reverse the visitation order and remand
for the juvenile court to issue a new order specifying the
6
frequency and duration of visits between Johneisha and the
children. (See In re M.R. (2005) 132 Cal.App.4th 269, 271
[visitation order reversed and remanded where juvenile court
improperly delegated to legal guardian the power to decide
whether visits would occur]; In re Randalynne G. (2002)
97 Cal.App.4th 1156, 1164, 1167, 1170-1171 [order of
guardianship affirmed but visitation order reversed and
remanded where juvenile court delegated its discretion to
determine whether any visitation would occur to the guardian];
see also In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1312
[visitation order reversed and remanded for juvenile court to
specify the frequency and duration of visits].)
2. Remand Is Necessary for Compliance with ICWA Inquiry
and Notice Requirements
To ensure Indian tribes may exercise their rights in
dependency proceedings as guaranteed by ICWA and related
state law (see In re Isaiah W. (2016) 1 Cal.5th 1, 5), an
investigation of a child’s possible Indian ancestry must be
undertaken and, where appropriate, notice provided to interested
tribes. (See § 224.2, subd. (a) [imposing on the court and child
protective services agencies “an affirmative and continuing duty
to inquire whether a child . . . is or may be an Indian child”].)
The duty to inquire “begins with the initial contact” (§ 224.2,
subd. (a)) and obligates the juvenile court and child protective
services agencies to ask all relevant involved individuals whether
the child may be an Indian child. (In re Rylei S. (2022)
81 Cal.App.5th 309, 316; § 224.2, subds. (a)-(c).)
In addition, section 224.2, subdivision (e), imposes a duty of
further inquiry regarding a child’s possible Indian status “[i]f the
court, social worker, or probation officer has reason to believe
7
that an Indian child is involved in a proceeding, but does not
have sufficient information to determine that there is reason to
know that the child is an Indian child.” (See also Cal. Rules of
Court, rule 5.481(a)(4) [further inquiry must be conducted if the
social worker “knows or has reason to know or believe that an
Indian child is or may be involved”].)
If those inquiries result in reason to know the child is an
Indian child, notice to the relevant tribes is required. (25 U.S.C.
§ 1912(a); Welf. & Inst. Code, § 224.3.) The governing federal
regulations require ICWA notices to include, if known, the
names, birthdates, birthplaces and tribal enrollment information
of all direct lineal ancestors of the child. (25 C.F.R. § 23.111(d)(3)
(2022).) State law mandates inclusion of “[a]ll names known of
the Indian child’s biological parents, grandparents, and great-
grandparents, or Indian custodians, including maiden, married,
and former names or aliases, as well as their current and former
addresses, birth dates, places of birth and death, tribal
enrollment information of other direct lineal ancestors of the
child, and any other identifying information, if known.” (§ 224.3,
subd. (a)(5)(C).)
As reflected in the record and acknowledged by the
Department on appeal, after Thomas P. stated he had no Indian
ancestry as far as he knew, the Department did not interview any
of his known extended family members about ICWA’s possible
application to the case, a violation of section 224.2,
subdivision (b), which expressly states the duty to inquire
includes, but is not limited to, asking extended family members
whether the child may be an Indian child. Similarly, although a
social worker spoke to Luella B., Johneisha’s mother, the
Department did not conduct further interviews concerning the
8
children’s possible Indian ancestry with other maternal family
members or with members of Samuel P.’s family. This, too, was
error. Finally, again as conceded by the Department, the record
does not include the ICWA-030 forms sent to the Indian tribes or
indicate what information was included on those forms. Yet
another error.
Based on the record, the Department has asked this court
to remand the matter for compliance with the ICWA inquiry and
notice requirements as set forth in both federal and state law.
Johneisha agrees with this request, as do we.
DISPOSITION
The juvenile court’s findings and orders granting a legal
guardianship for D.P. and S.P. and terminating dependency
jurisdiction are conditionally affirmed. The visitation order is
vacated and the cause remanded for the juvenile court to issue a
new order specifying the frequency and duration of visits between
Johneisha and the children, for full compliance with the inquiry
and notice provisions of ICWA and related California law and for
further proceedings not inconsistent with this opinion.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
9