L. A. Cnty. Dep't of Children & Family Servs. v. Ashley R. (In re Antonio R.)
| Decision Date | 16 March 2022 |
| Docket Number | B314389 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re ANTONIO R., a Person Coming Under the Juvenile Court Law. v. ASHLEY R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, |
Order Filed Date: 3/17/22
APPEAL from an order of the Superior Court of Los Angeles County No. 18CCJP06892 Pete R. Navarro, Juvenile Court Referee. Conditionally affirmed and remanded with directions.
Andre F.F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
The above-entitled opinion filed on March 16, 2022 is modified as follows:
On page 14, the second sentence in the first full paragraph starting with "Because" and ending immediately before footnote 7 is replaced with the following sentence:
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."
There is no change in the appellate judgment.
Ashley R. (Mother) appeals from the order terminating her parental rights to four-year-old Antonio R. under Welfare and Institutions Code section 366.26.[1] Mother's sole contention on appeal is that the Los Angeles County Department of Children and Family Services (the Department) and the juvenile court failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C § 1901 et seq.; ICWA) and related California law.
The juvenile court found ICWA did not apply as to either Mother or Father (Antonio V.) based on Mother's, Father's, and paternal great-grandmother's denials of Indian ancestry. However, the Department failed to inquire of maternal grandmother and maternal grandfather, whom the court designated as Antonio's prospective adoptive parents, or of other extended maternal relatives who were present in the courtroom during the disposition hearing, whether Antonio is or may be an Indian child. We agree with Mother that section 224.2, subdivision (b), required the Department to inquire of the maternal extended family members, [2] and the juvenile court erred in finding ICWA did not apply despite the Department's insufficient inquiry. Further, in determining whether the failure to make an adequate initial inquiry was prejudicial, we ask whether the information in the hands of the extended family members was likely to be meaningful in determining whether the child is an Indian child. It was. In most circumstances, the information in the possession of extended relatives is likely to be meaningful in determining whether the child is an Indian child, regardless of whether the information ultimately shows the child is or is not an Indian child. We conclude the error was prejudicial because we do not know what information the maternal relatives would have provided had the Department or court inquired. We conditionally affirm and remand for the juvenile court and the Department to comply with the inquiry provisions of ICWA and California law.
On August 7, 2018 the Department received a referral alleging caretaker absence, incapacity, and general neglect as to then-one-year-old Antonio. On August 20 the social worker interviewed Mother. Mother stated she and her family do not have any Indian ancestry. On the same day the social worker interviewed the maternal grandmother about the allegations, but the social worker did not inquire whether maternal grandmother knew if Antonio had Indian ancestry or whether other family members may have information on Antonio's possible Indian ancestry.
On October 25, 2018 the Department filed a petition on behalf of Antonio pursuant to section 300, subdivision (b)(1), alleging Mother had a history of substance abuse and was a current abuser of methamphetamine, had a history of leaving Antonio in the care of unrelated caregivers without making an ongoing plan for his care and supervision, and left Antonio with Wendy S., who had physically abused Mother and the maternal aunt when they were children. The petition further alleged pursuant to section 300, subdivision (j), that Antonio's older brother, Andrew R., was a former dependent of the juvenile court due to Mother's drug abuse. The petition alleged Father's whereabouts were unknown.[3]
On October 26, 2018 Mother filed a parental notification of Indian status form (ICWA-020), on which she checked the box stating, "I have no Indian ancestry as far as I know."
At the October 26, 2018 detention hearing, the juvenile court found ICWA did not apply as to Mother. Father was not present. The court asked paternal great-grandmother whether Father had any Indian ancestry "that [she is] aware of?" Paternal great-grandmother answered, "No." The court then stated, "The court does not believe [the Department] has the responsibility to make further inquiries, but the court can make preliminary findings, has little information to believe that this case falls under ICWA as far as Father is concerned." The court stated in its minute order, The juvenile court removed Antonio from Mother's custody and ordered the Department to provide family reunification services.
In its jurisdiction and disposition report, the Department noted Mother had a good relationship with maternal grandfather, with whom she continued to have contact by phone, and Mother provided the Department the telephone number for maternal grandfather. The Department reported that on December 4, 2018 paternal great-grandmother denied having Indian ancestry on her side of the family and on December 5 Mother stated to her knowledge Father had no Indian ancestry.
Father first appeared by telephone at the jurisdiction hearing held on February 15, 2019. Father denied having Indian ancestry. The juvenile court found ICWA did not apply as to either parent. The juvenile court sustained the allegations in the petition and found Antonio was a person described under section 300, subdivisions (b)(1) and (j).
At the June 19, 2019 disposition hearing, the maternal grandmother, maternal aunts, and a maternal uncle were present in the courtroom. No one inquired whether Antonio may have Indian ancestry. Mother submitted a relative information sheet and requested assessment of the listed maternal relatives for Antonio's placement. At the continued June 20 disposition hearing, the juvenile court declared Antonio a dependent of the court. The court released Antonio to Father.
On September 24, 2019 the Department filed a subsequent petition under section 342, alleging Father engaged in domestic violence against his companion and abused methamphetamine. The juvenile court removed Antonio from Father's custody. In its October 25, 2019 jurisdiction and disposition report, the Department noted that on October 23, 2019 Father again denied having Indian ancestry. On November 9, 2019 the juvenile court sustained the section 342 petition as amended under section 300, subdivision (b)(1), and again declared Antonio a dependent of the court.
At the August 16, 2021 selection and implementation hearing (§ 366.26), the juvenile court terminated Mother's and Father's parental rights to Antonio and designated the maternal grandmother and maternal grandfather as Antonio's prospective adoptive parents. During the hearing, maternal grandmother was questioned under oath, but she was not asked whether Antonio may have Indian ancestry.
Mother timely appealed from the order terminating her parental rights.[4]
ICWA provides as to dependency proceedings, "[W]here the court knows or has reason to know that an Indian child is involved, the party seeking . . . termination of parental rights to . . . an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 1Cal.5th 1, 5; In re T.G. (2020) 58 Cal.App.5th 275, 288; In re Elizabeth M. (2018) 19 Cal.App.5th 768, 784.) California law similarly requires notice to the Indian tribe and the parent, legal guardian, or Indian custodian if the court or the Department "knows or has reason to know" the proceeding concerns an Indian child. (§ 224.3, subd. (a); see In re T.G., at p. 288; In re Elizabeth M., at p. 784; In re Breanna S. (2017) 8 Cal.App.5th 636, 649, disapproved on another ground in In re Caden C. (2021) 11 Cal.5th 614, 637, fn. 6; Cal. Rules of Court, rule 5.481(c)(1) [].) The notice requirement is at the heart of ICWA because it "enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding." (In re Isaiah W., at p. 5; accord, In re T.G., at p. 288; see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3, subd. (d).)
The juvenile court and the Department "have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W., supra, 1 Cal.5th at p. 9; In re H.V. (Feb. 18, 2022, B312153)___...
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