In re T.G.

• Decision Date: 08 December 2020
• Docket Number: B303987,B304055
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE T.G. et al., Persons Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Tamara S., Defendant and Appellant. In re Jazmine H., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Jason H., Defendant and Appellant.

58 Cal.App.5th 275

272 Cal.Rptr.3d 381

IN RE T.G. et al., Persons Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Tamara S., Defendant and Appellant.

In re Jazmine H., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Jason H., Defendant and Appellant.

B303987

B304055

Court of Appeal, Second District, Division 7, California.

Filed December 8, 2020

Pamela Deavours, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Tamara S.

Marissa Coffey, Monterey Park, under appointment by the Court of Appeal, for Defendant and Appellant Jason H.

Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

PERLUSS, P. J.

Tamara S. is the mother of four children, 16-year-old Jazmine H., 14-year-old T.G., 12-year-old N.G. and eight-year-old P.G. Jason H. is the biological father of Jazmine. Shaka G. is the presumed father of T.G., N.G. and P.G. All four children were declared dependents of the juvenile court, removed from parental custody and placed with the same nonrelated extended family members who were subsequently appointed their legal guardians. In separate appeals Jason H. challenges the juvenile court's order pursuant to Welfare and Institutions Code section 366.26¹ granting a guardianship, appointing legal guardians and terminating its jurisdiction as to Jazmine (B304055), and Tamara challenges the section 366.26 orders granting guardianships, appointing legal guardians and terminating jurisdiction as to T.G., N.G. and P.G. (B303987).

The sole issue in both appeals 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 the Department failed to adequately investigate Tamara's claim of Indian ancestry and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding, if it ever actually did, ICWA did not apply to these proceedings. In reaching this result, we disagree with the holding in In re Austin J. (2020) 47 Cal.App.5th 870, 888-889, 261 Cal.Rptr.3d 297 ( Austin J. ) that amendments enacted by Assembly Bill No. 3176 (2017-2018 Reg. Sess.) (Assembly Bill 3176) were intended to limit the Department's robust duty of inquiry. Accordingly, we conditionally reverse the orders for legal guardianship and remand the matters to allow the Department and the juvenile court to rectify their errors and to take all other necessary corrective actions.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Proceedings

The children were initially removed from parental custody on December 1, 2017. Jazmine and P.G. were placed with nonrelated extended family members Bridget L. and her husband, Eric L.² T.G. and N.G. were initially placed with their maternal grandmother, Loretta S., but in July 2018 joined Jazmine and P.G. at Bridget and Eric's home.

On December 7, 2017 the Department filed a petition on behalf of the children pursuant to section 300, subdivisions (a) and (b)(1), alleging Tamara and Shaka had a history of domestic violence in the presence of the children; Tamara had a history of mental and emotional problems; and Tamara allowed the children to reside with Jazmine's paternal grandmother, who Tamara knew was an abuser of marijuana. At the initial detention hearing on December 8, 2017 the court found a prima facie case for detaining the children.

In February 2018 the juvenile court ordered a paternity test be conducted for Jason and Jazmine. In March 2018 the court found Jason was Jazmine's biological father based on the DNA test results.

On March 28, 2018 the Department filed a first amended petition adding allegations concerning Tamara's history of abuse of prescription drugs and Jason's criminal history. In addition, the first amended petition alleged Tamara had neglected Jazmine's medical needs.

The court sustained in part the first amended petition, as further amended by interlineation, at a jurisdiction hearing on April 20, 2018.³ The children were declared dependents of the juvenile court and suitably placed under the supervision of the Department. The court ordered family reunification services for Tamara and Shaka. No services were ordered for Jason, who was a biological father only and was incarcerated with an estimated release date at least one year away.⁴

At the six-month review hearing (§ 366.21, subd. (e)) in October 2018, the court found Tamara and Shaka had participated only minimally in their case plans. Further reunification services were ordered. At the 12-month review hearing (§ 366.21, subd. (f)) in February 2019, the court found Tamara's and Shaka's participation in services had been "nonexistent." The court terminated reunification services and set the matter for a selection and implementation hearing pursuant to section 366.26.

The Department initially recommended adoption as the permanent plan for the children. However, Bridget and Eric L. stated their preference for legal guardianships, and the Department modified its recommendation accordingly.

At a continued section 366.26 hearing on January 7, 2020, applying section 366.26, subdivision (c)(1)(A) ’s exception to the legislative preference for adoption as the permanent plan, the court found by clear and convincing evidence that the children were adoptable but were living with relatives who were unable or unwilling to adopt the children and were able to provide stability and permanency through legal guardianship. The court further found it would be detrimental to remove the children from their relatives’ home and would be detrimental to return them to their parents.⁵ Legal guardianship was ordered as the children's permanent plan, and Bridget and Eric L. were appointed the legal guardians of each child. Jurisdiction was terminated as to Jazmine. The matter was continued as to T.G., N.G. and P.G. to January 24, 2020 to resolve an issue of visitation. Jurisdiction was terminated as to those three children on that date.

2. ICWA Information and Inquiry

a. The initial ICWA forms and the detention hearing

Judicial Council form ICWA-010(A), prepared by the Department and attached to the original dependency petition filed on December 7, 2017, stated the children may have Indian ancestry. The form indicated Tamara had been questioned in person on November 22, 2017 and reported her father (that is, the children's maternal grandfather) had Indian ancestry, "but no connection to a tribe. No additional information was given." The detention report filed December 7, 2017 contained the same information.

On Tamara's ICWA-020 form with Jazmine's name and case designation, 17CCJP02322A, filed at the time of the detention hearing on December 8, 2017, the preparer checked the box for "I may have Indian ancestry," inserted Cherokee as the name of the band or tribe on Tamara's maternal side, and additionally indicated possible Indian ancestry on Tamara's paternal side through her great-grandfather, Theodore S. The date "7-4-30" was written below the paternal great-grandfather's name. On the ICWA-020 forms filed at the same time for the other three children, with case designations 17CCJP02322B-D, the preparer simply checked the box for "I may have Indian ancestry," omitting the additional details provided to the court on Jazmine's form.⁶

At the December 8, 2017 detention hearing for all four children, the court stated Tamara's ICWA-020 indicated she may have American Indian ancestry. The court asked Loretta S., who had been identified on the record as the maternal grandmother, if she had American Indian ancestry on her side of the family. Loretta S. answered, "Yes." The court inquired, "And what tribe?" Loretta S. answered, "Cherokee." The following colloquy then occurred:

"The Maternal Grandmother: Well, that's what—from my understanding from what my mother told me.

"The Court: From family history, you've been told that you have Cherokee Nation Heritage?

"The Maternal Grandmother: Yes.

"The Court: Ms. S[.], Mother, is that where you're claiming heritage is through your mother?

"The Mother: On my father's side.

"The Court: Your mother and your father's side. All right. So do you know—would it be fair to say you don't know the ancestor through which you claim Cherokee heritage?

"The Maternal Grandmother: No, I don't.

"The Court: And on your father's side Ms. S[.], Mother, who do you claim heritage through?

"The Mother: I don't know

"The Court: So, what do you know about American Indian heritage through your father's side, if you can tell me?

"The Mother: Through my grandfather. He's deceased now. He told us about my background.

"The Court: So that's your father's father?

"The Mother: Yes.

"The Court: And what was his name?

"The Mother: Theodore S[.]. [¶] ... [¶]

"The Court: Okay. And is there anyone still living that knows the birth date for Theodore S[.]?

"The Mother: My aunt.

"The Court: So you'd be able to contact your aunt and find out more information about what relative claimed heritage and/or your grandfather's birth date?

"The Mother: Yes.

"The Court: And if you'll be kind enough to do that and report to the social worker by the end of next week.

"The Mother: Yes. [¶] ... [¶]

"The Maternal Grandmother: I know the birth day.

"The Court: Okay. For Theodore S[.]?

"The Maternal Grandmother: Yes. 7-4-30.

"The Court: Did they advise you what tribe was the Native American heritage?

"The Mother: No."

The court then made the following order, the meaning and significance of which is disputed by the parties: "So, Cherokee on the maternal grandmother's side. And unknown—The Department is to send notice to the Department of the Interior, the Bureau of Indian Affairs, and...