In re T.R. CA2/7 ( 2022 )

Filed 4/25/22 In re T.R. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re T.R. et al., Persons B314665
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
19CCJP03106A-C)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
CASEY T. et al.,
Defendants and
Appellants.
APPEALS from an order of the Superior Court of
Los Angeles County, Robin R. Kesler, Juvenile Court Referee.
Conditionally affirmed, remanded with directions.
Elizabeth C. Alexander, under appointment by the Court of
Appeal, for Defendant and Appellant Casey T.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant John R.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_______________________
Casey T. and John R., parents of seven-year-old T.R., five-
year-old L.R. and two-year-old John R. III, appeal the juvenile
court’s order terminating their parental rights under Welfare and
Institutions Code section 366.26.1 The sole issue on appeal is
whether the juvenile court and the Los Angeles County
Department of Children and Family Services (Department)
complied with their duties of inquiry and notice under the Indian
Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and
related California law. We agree with Casey and John that the
Department failed to comply with its affirmative and continuing
duty to inquire whether the children were Indian children and
the juvenile court erred by failing to ensure an appropriate
inquiry had been conducted. We further conclude the error was
prejudicial. We conditionally affirm the court’s order terminating
Casey’s and John’s parental rights and remand the matter to
allow the Department and the juvenile court to comply with the
inquiry and notice provisions of ICWA and California law.
1 Statutory references are to this code unless otherwise
stated.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Proceedings
On May 16, 2019 the Department filed a petition pursuant
to Welfare and Institutions Code section 300, subdivisions (a)
and (b), on behalf of T.R. and L.R. The petition alleged Casey,
who was pregnant at the time, and John had a history of
engaging in domestic violence in the children’s presence, Casey
had a history of “erratic and bizarre” behaviors and John had
criminal convictions, all of which placed the children at
substantial risk of serious physical harm. At the detention
hearing on May 17, 2019 the court found a prima facie case for
detaining T.R. and L.R. Paternal grandmother, Olga L., was
present at the hearing, and the court ordered the Department to
assess her as a potential monitor for the parents’ visits. At the
request of T.R and L.R.’s counsel the court also ordered the
Department to assess the paternal aunt for visitation.
At the July 25, 2019 jurisdiction/disposition hearing the
juvenile court amended by interlineation the allegation regarding
Casey’s behavior to remove reference to “erratic and bizarre”
behavior, instead replacing it with an allegation of behavior
“consistent with mental and emotional instability.” The court
dismissed the allegation concerning John’s criminal convictions
and sustained the remaining allegations as amended. T.R. and
L.R. were declared dependent children of the juvenile court and
suitably placed under the supervision of the Department. Casey
and John were provided family reunification services.
On October 17, 2019, shortly after John III was born, the
Department filed a petition on his behalf pursuant to section 300,
subdivisions (a), (b) and (j). The allegations were identical to
those that had been sustained in the petition regarding the older
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children and also included two allegations pursuant to
subdivision (j) that the substantial risk of serious harm to the
older siblings endangered the baby’s safety as well. John III was
detained from his parents on October 18, 2019.
The jurisdiction/disposition hearing regarding John III was
held on January 6, 2020. The juvenile court dismissed the
allegations brought under section 300, subdivisions (a) and (b),
and sustained the allegations brought under subdivision (j), as
amended by interlineation to exclude certain details. John III
was declared a dependent child of the court and placed in the
same foster home as T.R. and L.R. Casey was provided family
reunification services. No services were ordered for John, who
had failed to appear at the hearing and could not be located by
the Department.2
At the September 18, 2020 12-month review hearing
(§ 366.21, subd. (f)) for T.R. and L.R. and six-month review
hearing (§ 366.21, subd. (e)) for John III, the juvenile court found
Casey’s and John’s compliance with their case plans had not been
substantial. The court terminated reunification services for both
parents and set the case for a selection and implementation
hearing under section 366.26. The Department was instructed to
assess the children’s maternal aunt, Margaret S., for placement.
The permanency planning hearing pursuant to
section 366.26 was held on August 27, 2021. The juvenile court
found returning the children to Casey and John would be
detrimental and the children were adoptable. The court
terminated Casey’s and John’s parental rights and identified
2 Olga had attended a prior hearing in December 2019,
during which she told the juvenile court she had no contact
information for John.
4
Margaret and her husband, with whom the children had been
living since October 2020, as the prospective adoptive parents.
2. The ICWA Issues
At the time it filed the petition on behalf of T.R. and L.R.
the Department also filed the required Indian Child Inquiry
Attachment (form ICWA-010(A)), on which the Department
checked the box acknowledging no inquiry had been made into
whether the children were Indian children. The May 16, 2019
detention report indicated John and Casey stated they had no
Indian ancestry. Based on that information, the report
concluded, “The Indian Child Welfare Act (ICWA) does not
apply.” Olga was also interviewed in advance of the detention
hearing, but there is no indication in the report she was asked
about Indian ancestry.
On the day of the detention hearing Casey and John each
filed a Judicial Council form ICWA-020 on which they both
checked the box for the option, “I have no Indian ancestry as far
as I know.” During the detention hearing the trial court asked
Casey whether John, who was not in the courtroom at the time,
had any Indian ancestry. Casey replied John had none that she
was aware of. The court did not ask Casey about her own
possible Indian ancestry, nor did it ask John or the paternal
grandmother, who was in attendance, about Indian ancestry.
The court found it had no reason to know ICWA applied but
would revisit the finding if new information were brought
forward.
The jurisdiction/disposition report for the older children
stated the court had found no reason to know ICWA applied and
had not ordered ICWA notices be sent. Casey, John and Olga
5
were interviewed for the report but were not asked about possible
Indian ancestry.
The October 17, 2019 detention report filed in advance of
the detention hearing for John III stated, “on 10/9/2019, mother
denied the family having any known Indian Ancestry; therefore,
the Indian Child Welfare Act does not apply.” The form
ICWA-010(A) filed with the petition regarding John III stated an
inquiry had been made into whether John III was an Indian child
and he had no known Indian ancestry. The form did not list the
names of any individuals who had been questioned. Casey filed a
second Judicial Council form ICWA-020 on October 18, 2019
again stating she had no known Indian ancestry. At the
detention hearing the juvenile court again found there was no
reason to know ICWA applied.
In a status report filed May 12, 2020 the Department
notified the juvenile court it had been contacted by Margaret,
who said she would like to have the children placed with her.
There is no indication the Department inquired about possible
Indian ancestry during that conversation or any subsequent
conversation while assessing Margaret as a prospective adoptive
parent.
In September 2020 the Department reported, as part of its
attempt to locate family members who might be willing to accept
placement of the children, the Department had located a paternal
great aunt and paternal great uncle. A Department social worker
spoke with both of them. The paternal great aunt told the social
worker she had spoken to eight of her 11 siblings about possible
placement for the children. There is no indication the
Department asked the paternal great aunt and paternal great
6
uncle about possible Indian ancestry or attempted to contact the
other relatives directly.
John eventually filed a form ICWA-020 in John III’s case in
July 2021, again stating he was not aware of any Indian
ancestry.
DISCUSSION
1. ICWA and the Duties of Inquiry and Notice
“ICWA reflects a congressional determination to protect
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal
standards a state court must follow before removing an Indian
child from his or her family.”3 (In re T.G. (2020) 58 Cal.App.5th
275, 287; see 25 U.S.C. § 1902.) “ICWA and the controlling
federal regulations (see 25 C.F.R. § 23 (2020)) simply set a floor
for minimal procedural protections for Indian children, their
families and their tribes; the statute authorizes states to provide
‘a higher standard of protection to the rights of the parent or
Indian custodian of an Indian child than the rights provided
under’ ICWA.” (In re T.G., at pp. 287-288; see 25 U.S.C. § 1921.)
In addition to significantly limiting state court actions concerning
out-of-family placements for Indian children (see In re T.G., at
pp. 287-288), ICWA permits an Indian child’s tribe to intervene
3 “For purposes of ICWA, an ‘Indian child’ is an unmarried
individual under age 18 who is either a member of a federally
recognized Indian tribe or is eligible for membership in a
federally recognized tribe and is the biological child of a member
of a federally recognized tribe.” (In re T.G. (2020) 58 Cal.App.5th
275, 287, fn. 10; see 25 U.S.C. § 1903(4) [definition of “‘Indian
child’”] & (8) [definition of “‘Indian tribe’”]; see also Welf. & Inst.
Code, § 224.1, subd. (a) [adopting federal definitions].)
7
in or, where appropriate, exercise jurisdiction over a child
custody proceeding (see 25 U.S.C. § 1911(c); In re Isaiah W.
(2016) 1 Cal.5th 1, 8).
To ensure Indian tribes have the opportunity to intervene
in or exercise jurisdiction over a dependency proceeding,
investigation of a family member’s belief a child may have Indian
ancestry must be undertaken and notice must be provided to the
appropriate tribes. The investigation requirement is found in
section 224.2, subdivision (a), which imposes 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 continuing duty to inquire whether a child is or may be an
Indian child ‘can be divided into three phases: the initial duty to
inquire, the duty of further inquiry, and the duty to provide
formal ICWA notice.’” (In re Y.W. (2021) 70 Cal.App.5th 542, 552;
accord, In re Antonio R. 76 Cal.App.5th 421, 429.)
The duty to inquire “begins with initial contact (§ 224.2,
subd. (a)) and obligates the juvenile court and child protective
agencies to ask all relevant involved individuals whether the
child may be an Indian child.” (In re T.G., supra, 58 Cal.App.5th
at p. 290; see § 224.2, subds. (a)-(c).) Specifically, the Department
has a duty to inquire whether a child in the Department’s
temporary custody is an Indian child, which “[i]nquiry includes,
but is not limited to, asking the child, parents, legal guardian,
Indian custodian, extended family members, others who have an
interest in the child, and the party reporting child abuse or
neglect, whether the child is, or may be, an Indian child . . . .”4
4 Pursuant to ICWA, “‘extended family member’ shall be as
defined by the law or custom of the Indian child’s tribe or, in the
absence of such law or custom, shall be a person who has reached
8
(§ 224.2, subd. (b); see Cal. Rules of Court, rule 5.481(a)(1) [the
Department “must ask the child, if the child is old enough, and
the parents, Indian custodian, or legal guardians, extended
family members, others who have an interest in the child, and
where applicable the party reporting child abuse or neglect,
whether the child is or may be an Indian child”]; In re Y.W.,
supra, 70 Cal.App.5th at pp. 551-552.)
The duty of inquiry also extends to the juvenile court,
which is required to “ask each participant present in the hearing
whether the participant knows or has reason to know that the
child is an Indian child.” (§ 224.2, subd. (c); see also 25 C.F.R.
§ 23.107(a) [“[s]tate courts must ask each participant in an
emergency or voluntary or involuntary child-custody proceeding
whether the participant knows or has reason to know that the
child is an Indian child”]; In re Benjamin M. (2021)
70 Cal.App.5th 735, 742.)
The duty of further inquiry is triggered if the juvenile court
or the Department “has reason to believe that an Indian child is
involved in the proceeding, but does not have sufficient
information to determine that there is reason to know that the
child is an Indian child . . . .” (§ 224.2, subd. (e); Cal. Rules of
Court, rule 5.481(a)(4); In re Y.W., supra, 70 Cal.App.5th at
p. 552.) That further inquiry requires interviewing, “as soon as
the age of eighteen 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 U.S.C. § 1903(2); see also Welf. & Inst. Code, § 224.1, subd. (c)
[“[a]s used in connection with an Indian child custody proceeding,
the terms ‘extended family member’ and ‘parent’ shall be defined
as provided in Section 1903 of the federal Indian Child Welfare
Act”].)
9
practicable,” extended family members, contacting the Bureau of
Indian Affairs and contacting “the tribe or tribes and any other
person that may reasonably be expected to have information
regarding the child’s membership, citizenship status, or
eligibility.” (§ 224.2, subd. (e) & (e)(2)); see also Cal. Rules of
Court, rule 5.481(a)(4).)
If the further inquiry “results in a reason to know the child
is an Indian child, then the formal notice requirements of
section 224.3 apply.” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052; see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3,
subd. (a) [notice under ICWA “shall be provided” if the court,
social worker, or probation officer “knows or has reason to
know . . . that an Indian child is involved”].)
“The duty to develop information concerning whether a
child is an Indian child rests with the court and the Department,
not the parents or members of the parents’ families.” (In re
Antonio R., supra, 76 Cal.App.5th 430; accord, In re Benjamin M.,
supra, 70 Cal.App.5th at p. 743 [“the agency has a duty to gather
information by conducting an initial inquiry, where the other
party—here the parent . . . has no similar obligation”]; see also
In re K.R. (2018) 20 Cal.App.5th 701, 706 [“[t]he court and the
agency must act upon information received from any source, not
just the parent [citations], and the parent’s failure to object in the
juvenile court to deficiencies in the investigation or noticing does
not preclude the parent from raising the issue for the first time
on appeal”].)
2. The Juvenile Court Failed To Ensure the Department
Complied with ICWA and Related California Law
As discussed, the Department had a duty pursuant to
section 224.2, subdivision (b), to ask not only the parents, but
10
also extended family members whether the children had possible
Indian ancestry.5 Despite the fact that the Department had
repeated contact with the paternal grandmother and a maternal
aunt during the three years this case has been pending, the
Department failed to ask either of them about Indian ancestry.
Likewise, the Department did not ask the paternal great aunt or
paternal great uncle about Indian ancestry, nor did it request
contact information for the additional paternal extended family
members with whom those individuals had contact. Failure to
inquire of these relatives whether the children had Indian
ancestry was error under the plain language of section 224.2,
subdivision (b). (See In re J.C. (2022) 77 Cal.App.5th 70, 78
[“[t]he Department did not fulfill its duty to conduct an adequate
inquiry into whether J.C. may be an Indian child because it did
not ask any extended family members—some of whom were
readily available—whether J.C. had any possible Indian
ancestry”]; In re Antonio R., supra, 76 Cal.App.5th at pp. 430-431
[Department failed to fulfill initial duty of inquiry by failing to
5 The Department’s duty of inquiry, beginning at initial
contact, as now defined in section 224.2, subdivision (b), was
added to the Welfare and Institutions Code by Assembly Bill
No. 3176 (Stats. 2018, ch. 833, § 5), effective January 1, 2019—
that is, several months before the Department filed the initial
dependency petition in this case. Assembly Bill 3176
substantially revised the provisions of California’s ICWA-related
statutes to conform their language to language in recently
adopted federal regulations and, recognizing California’s higher
standard for investigating whether a child may be an Indian
child, to specify more clearly the steps a social worker, probation
officer and court are required to take in making an inquiry into a
child’s possible status as an Indian child. (In re T.G., supra,
58 Cal.App.5th at p. 296.)
11
ask family members about Indian ancestry despite multiple
contacts with relatives]; In re H.V. (2022) 75 Cal.App.5th 433,
438 [failure to speak to anyone other than mother about possible
Indian ancestry was error]; In re Y.W., supra, 70 Cal.App.5th at
p. 553 [Department failed to satisfy duty to inquire by failing to
contact relatives; “once the social worker learned of a potentially
viable lead to locate [relatives], she made no effort to pursue it”].)
In addition, the juvenile court erred in failing to ensure the
Department satisfied its duty of inquiry and in finding ICWA did
not apply absent an adequate inquiry. (See In re J.C., at p. 79
[“[t]he juvenile court, too, did not satisfy its duty to ensure the
Department adequately investigated whether J.C. may be an
Indian child. There is no indication in the record that, after the
detention hearing, the juvenile court gave ICWA another thought
in the almost three years of this dependency case”]; In re
Antonio R., at p. 431 [“[a]lthough section 224.2, subdivision (b),
places on the Department the duty to inquire, including of
extended family members, section 224.2, subdivision (a), makes
clear that the ‘affirmative and continuing duty to inquire’
whether a child is or may be an Indian child rests with both the
Department and the court”].)
The Department argues any error in failing to inquire of
extended family members was harmless here because “both
parents were available and denied Indian ancestry twice, . . . and
the parents were in close contact with the reasonably available
relatives and knowledgeable about their families and cultural
12
identification.”6 Not only is the assertion the parents were well
versed in their family history not supported by the record, but
also the argument “ignores the express obligation that
section 224.2, subdivision (b), imposes on the Department to
inquire of a child’s extended family members—regardless of
whether the parents deny 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., supra, 76 Cal.App.5th at p. 431; accord, In re J.C.,
supra, 77 Cal.App.5th at p. 81 [“the extensive inquiry
requirements under section 224.2 presume that a parent’s
declaration on the ICWA-020 form, reliable or not, is not enough
and that the child protective agency must do more than look at
the form”]; In re Y.W., supra, 70 Cal.App.5th at p. 556 [“the point
of the statutory requirement that the social worker ask all
relevant individuals whether a child is or may be an Indian child”
is “to obtain information the parent may not have”].)
6 “Because the Department’s duty to inquire of a child’s
extended family members is imposed by California law, ‘we may
not reverse unless we find that the error was prejudicial.’” (In re
Antonio R., supra, 76 Cal.App.5th at p. 433; accord, In re
Benjamin M., supra, 70 Cal.App.5th at p. 742 [“[b]ecause the
failure here concerned the agency’s duty of initial inquiry, only
state law is involved”]; see Cal. Const., art. VI, § 13 [“[n]o
judgment shall be set aside . . . unless, after an examination of
the entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a
miscarriage of justice”].)
13
As we recently explained in In re Antonio R., there are
myriad reasons parents may not be aware of, or may not want to
divulge, their Indian ancestry to the Department, such as fear of
being identified as Indian, failure to understand the purpose of
self-identifying in dependency cases or the imprecision of orally
transmitted family histories. (In re Antonio R., supra,
76 Cal.App.5th at p. 432.) Accordingly, a parent’s denial of
Indian ancestry, even where that parent is in contact with his or
her biological family, does not eliminate the Department’s
statutory duty to question extended family members regarding
possible Indian ancestry. Nor can such an error be deemed
harmless based on the presumption that extended family
members would not have any additional information. (See id. at
p. 435 [“[w]here the Department fails to discharge its initial duty
of inquiry under ICWA and related California law, and the
juvenile court finds ICWA does not apply notwithstanding the
lack of an adequate inquiry, the error is in most circumstances,
as here, prejudicial and reversible. Speculation as to whether
extended family members might have information likely to bear
meaningfully on whether the child is an Indian child has no place
in the analysis of prejudicial error where there is an inadequate
initial inquiry”]; cf. In re Benjamin M., supra, 70 Cal.App.5th at
pp. 744, 745 [“a court must reverse where the record
demonstrates, that the agency has not only failed in its duty of
initial inquiry, but where the record indicates that there was
readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child”; “[w]hile
we cannot know how Father’s brother would answer the inquiry,
his answer is likely to bear meaningfully on the determination at
issue about his brother”].)
14
DISPOSITION
The order terminating Casey’s and John’s parental rights is
conditionally affirmed. On remand the juvenile court must
promptly direct the Department to make a meaningful and
thorough inquiry regarding the children’s possible Indian
ancestry, including interviews with the paternal grandmother,
maternal aunt, extended family members and any other persons
who may reasonably be expected to have information regarding
the children’s possible Indian ancestry.
If the juvenile court determines after a hearing that the
Department has satisfied its inquiry and notice obligations under
ICWA and California law and the children are not Indian
children, then the order terminating parental rights shall remain
the order of the court. If the court finds that the children are
Indian children, the court shall vacate the order terminating
parental rights and conduct further proceedings in compliance
with ICWA and related California law.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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