L. A. Cnty. Dep't of Children & Family Servs. v. S.V. (In re H.V.)

• Decision Date: 18 February 2022
• Docket Number: B312153
• Citation: 75 Cal.App.5th 433,290 Cal.Rptr.3d 464
• Parties: IN RE H.V., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. S.V., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

75 Cal.App.5th 433

290 Cal.Rptr.3d 464

IN RE H.V., a Person Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.S.V., Defendant and Appellant.

B312153

Court of Appeal, Second District, Division 5, California.

Filed February 18, 2022

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

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.

KIM, J.

I. INTRODUCTION

S.V., mother of now three-year-old H.V., appeals from the juvenile court's jurisdiction and disposition orders contending that the juvenile court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with their duties under the federal Indian Child Welfare Act (ICWA) and related state statutes and court rules. We conditionally affirm the court's orders but remand for the limited purpose of ensuring compliance with ICWA's requirements.

II. BACKGROUND¹

A. Welfare and Institutions Code Section 300² Petition

The juvenile court sustained the Department's December 7, 2020, section 300 petition that alleged mother had engaged in a violent altercation with a female companion in the child's presence. Mother had brandished a knife and pushed the female companion. Mother's violent conduct endangered the child's safety and placed the child at risk of harm.

B. ICWA Facts

On December 4, 2020, a social worker inquired of mother about the child's Indian ancestry. Mother did not give the social worker any reason to believe the child was or might be an Indian child. As part of the Department's preparation of the detention report, a social worker interviewed the child's maternal great-grandmother, C.W. (who is alternatively referred to as a "cousin" and "maternal aunt"), and maternal great-grandfather. But the record does not indicate whether the social worker asked any of these relatives about the child's Indian ancestry. On December 11, 2020, mother filed a Parental Notification of Indian Status form stating that she did not have any Indian ancestry as far as she knew.

At the December 11, 2020, Detention Hearing, the juvenile court found that mother did not have Indian ancestry as far as mother knew. If that changed, mother was to inform the court and the social worker.

The juvenile court then inquired whether mother knew if alleged father, I.G.,³ had Indian ancestry. Through counsel, mother indicated that alleged father did not have Indian ancestry. The court found it had no reason to know that alleged father had Indian ancestry. If alleged father made a court appearance, the court would revisit the issue. If mother acquired information that alleged father had Indian ancestry, she was to inform the court and the social worker.

On February 1, 2021, mother denied to the Department that she had any Indian ancestry.

III. DISCUSSION

A. Inquiry Duties Under ICWA

Pursuant to ICWA, "[i]n any involuntary proceeding in a State court, where 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" of the pending proceedings and its right to intervene. ( 25 U.S.C. § 1912(a) ; In re Isaiah W. (2016) 1 Cal.5th 1, 8, 203 Cal.Rptr.3d 633, 373 P.3d 444 ( Isaiah W . ).) "As the Supreme Court recently explained, notice to Indian tribes is central to effectuating ICWA's purpose, enabling a tribe to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the matter. ([ ] Isaiah W., supra , 1 Cal.5th at pp. 8[–]9, 203 Cal.Rptr.3d 633, 373 P.3d 444.)" ( In re Michael V. (2016) 3 Cal.App.5th 225, 232, 206 Cal.Rptr.3d 910.)

"ICWA defines an ‘Indian child’ as ‘any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 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) ; see § 224.1, subd. (a).) The trial court and [Department] have an affirmative and continuing duty in every dependency proceeding to determine whether ICWA applies. ( § 224.2, subd. (a) ; Cal. Rules of Court, rule 5.481(a) ;[fn. omitted.] Isaiah W., supra , 1 Cal.5th at pp. 10–11, 203 Cal.Rptr.3d 633, 373 P.3d 444.) In cases ‘where the court knows or has reason to know that an Indian child is involved,’ ICWA requires the [Department], or other party seeking adoption or foster care placement, to notify ‘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 Isaiah W., supra , [1 Cal.5th] at p. 5, 203 Cal.Rptr.3d 633, 373 P.3d 444.)

"Following changes to the federal regulations concerning ICWA compliance, California made conforming amendments to its statutory scheme regarding ICWA, effective in 2019. ( In re D.S. (2020) 46 Cal.App.5th 1041, 1048, 259 Cal.Rptr.3d 903 ... ( D.S. ).) In D.S. , the court explained that the resulting clarification of law, found in part in section 224.2, ‘creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department]’s initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. ( § 224.2, subds. (a), (b).) Second, if that initial inquiry creates a "reason to believe " the child is an Indian child, then the [Department] "shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. [Citations.]’ ( D.S., supra , 46 Cal.App.5th at p. 1052, 259 Cal.Rptr.3d 903.)

"At the first step, ‘[s]ection 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department, such as the [Department], the duty to inquire "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." ’ ( D.S., supra , 46 Cal.App.5th at pp. 1048–1049, 259 Cal.Rptr.3d 903.)" ( In re Charles W. (2021) 66 Cal.App.5th 483, 489, 280 Cal.Rptr.3d 852 ( Charles W. ).)

We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence. ( In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430, 49 Cal.Rptr.3d 951 ( Rebecca R. ).)

B. Analysis

The record reflects that the only person with whom the Department spoke about the child's possible Indian ancestry was mother. The Department's first-step inquiry duty under ICWA and state law was broader, requiring it also to interview, among others, extended family members and others who had an interest in the child. ( § 224.2, subd. (b) ; Charles W., supra , 66 Cal.App.5th at p. 489, 280 Cal.Rptr.3d 852 ; D.S., supra , 46 Cal.App.5th at pp. 1048–1049, 259 Cal.Rptr.3d 903.)

The Department does not contend that it discharged its first-step inquiry duty, thus effectively conceding that it did not. Instead, the Department argues that because mother has not made an "affirmative representation of Indian [ancestry] on appeal," she has failed to show prejudice and that remand is necessary for the Department to discharge its inquiry duty. That is, the Department argues, "Any failure to comply with ... ICWA must be held harmless unless [mother] can show a reasonable probability that ... she would have enjoyed a more favorable result in the absence of the error." (Citing In re A.C. (2021) 65 Cal.App.5th 1060, 1069, 280 Cal.Rptr.3d 526 and Rebecca R., supra , 143 Cal.App.4th at pp. 1430–1431, 49 Cal.Rptr.3d 951.)

Mother does not have an affirmative duty to make a factual assertion on appeal that she cannot support with citations to the record.⁴ (See Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 846, 123 Cal.Rptr.3d 498.) Instead, on this record, which demonstrates that the Department failed to discharge its first-step inquiry duty, we conclude that mother's claim of ICWA error was prejudicial and reversible. (See In re N.G. (2018) 27 Cal.App.5th 474, 484, 238 Cal.Rptr.3d 304.)

IV. DISPOSITION

The jurisdiction and disposition orders are conditionally affirmed and the matter is remanded with directions to the juvenile court to order the Department to comply with ICWA as follows:

1. The Department shall conduct an inquiry investigation into the child's Indian ancestry, including making diligent efforts to interview the child's extended family members as defined by section 224.1, subdivision (c) and 25 U.S.C. section 1903(2) including at least mother, maternal great-grandmother, C.W., and maternal great-grandfather for the purpose of obtaining information required for ICWA notice compliance.

2. If from that initial inquiry the Department has a reason to believe the child is an Indian child, then, as soon as practicable, it shall make further inquiry regarding the child's possible Indian status.

3. If from that further inquiry the Department has a reason know the child is an Indian child, then it shall comply with the formal notice requirements in section 224.3.

4. The Department shall document its investigation, including its interviews with family members and attempts to conduct such interviews, its contact with tribes, if any, and any information obtained from the tribes, and provide that documentation to the juvenile court.

5. The juvenile court shall conduct a noticed hearing to review the adequacy of the Department's...