L. A. Cnty. Dep't of Children & Family Servs. v. Cameron C. (In re J.C.)

• Decision Date: 04 April 2022
• Docket Number: B312685
• Citation: 77 Cal.App.5th 70,292 Cal.Rptr.3d 222
• Parties: IN RE J.C., A Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Cameron C., et al. Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

77 Cal.App.5th 70

292 Cal.Rptr.3d 222

IN RE J.C., A Person Coming Under the Juvenile Court Law.

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

v.Cameron C., et al. Defendants and Appellants.

B312685

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

Filed April 4, 2022

William Hook, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Cameron C.

Karen J. Dodd, Tustin, under appointment by the Court of Appeal, for Defendant and Appellant Angelica S.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.

SEGAL, J.

INTRODUCTION

Angelica S. and Cameron C. challenge the juvenile court's order under Welfare and Institutions Code section 366.26 terminating their parental rights to J.C.¹ They argue that the Los Angeles County Department of Children and Family Services did not comply with the requirements of the Indian Child Welfare Act ( 25 U.S.C. § 1901 et seq. ) (ICWA) and related California law and that the juvenile court erred in ruling ICWA did not apply.

We conclude that, because the juvenile court failed to ensure the Department fulfilled its duty of inquiry under section 224.2, subdivision (b), substantial evidence did not support the court's finding ICWA did not apply. Therefore, we conditionally affirm the court's orders terminating Angelica's and Cameron's parental rights and direct the juvenile court to ensure the Department complies with section 224.2 and, if necessary, the notice provisions under ICWA and related California law.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Dependency Proceedings

On August 14, 2018 the Department filed a petition under section 300, subdivisions (b) and (j), alleging Angelica's and Cameron's histories of substance abuse and current use of marijuana and other drugs placed their newborn son, J.C., at substantial risk of serious physical harm. J.C. tested positive for methadone

and marijuana when he was born, and Angelica admitted that she used marijuana a few days before giving birth to J.C. and that she had used heroin and methadone in the past. The juvenile court detained J.C. and placed him with Cameron's mother, Cheryl B.

The Department's investigation revealed that Angelica and Cameron were "habitual drug users of heroin and methamphetamine" and had "extensive criminal histories related to drug abuse," including arrests in July 2018 (three weeks before Angelica gave birth to J.C.) for unlawful possession of a controlled substance under Health and Safety Code section 11350, subdivision (a). The Department recommended against providing reunification services for Angelica because, in dependency proceedings related to her other children, family reunification services "were terminated" due to Angelica's "refusal to maintain sobriety." In addition, Angelica was arrested on three other occasions from 2015 to 2017 and tested positive for methamphetamine and opiates two times after the court detained J.C. And shortly before the jurisdiction hearing in this case, Cameron was arrested and sentenced to 90 days in county jail for possession of a controlled substance for sale.

The juvenile court sustained the petition as amended and declared J.C. a dependent child of the court. The court found that there was substantial danger and risk of detriment to J.C. if he remained in the home of Angelica and Cameron, that the Department provided reasonable services to prevent removal, and that there were no available services to prevent further detention. The court removed J.C. from Angelica and Cameron and ordered family reunification services for Cameron, monitored visitation for Angelica and Cameron, and suitable placement for J.C.

For the six-month review hearing, the Department reported that J.C. was "fully bonded with his caregivers" and "doing well in their care" and that the caregivers were interested in adopting him. The juvenile court found that Cameron's progress toward alleviating or mitigating the causes necessitating J.C.’s placement had "not been substantial," but the court continued reunification services for him. The court subsequently granted Angelica's petition under section 388 for reunification services.

At the 12-month review hearing, the court found Angelica and Cameron had not made substantial progress toward alleviating or mitigating the causes that led to J.C.’s placement, terminated reunification services, and set the case for a selection and implementation hearing under section 366.26. At the hearing to select a permanent plan for J.C, the court found that it would be detrimental to return J.C. to his parents, that Angelica and Cameron had not maintained regular and consistent visitation and had not established a bond with J.C., that J.C. was adoptable, and that any benefit to J.C. from his relationship with his parents was outweighed by the physical and emotional benefit he would receive through the permanency and stability of adoption. The court terminated Angelica's and Cameron's parental rights and designated Cheryl and her husband as the prospective adoptive parents. Angelica and Cameron timely appealed from the orders terminating their parental rights.

B. Inquiry Under ICWA and Related California Law

Angelica and Cameron each completed Judicial Council form ICWA-020, Parental Notification of Indian Status. Angelica and Cameron both checked the box next to the statement, "I have no Indian ancestry as far as I know." In her initial interview with the social worker, Angelica denied any Indian ancestry. At the detention hearing the court confirmed Angelica and Cameron had indicated they had no known Indian ancestry. The court found: "There is no reason to know the Indian Child Welfare Act applies to the case." The record does not show the Department or the court made any further inquiry about J.C.’s possible Indian ancestry.

For the Department's investigation into the allegations in the petition, the social worker interviewed Cheryl (Cameron's mother and J.C.’s paternal grandmother) several times but did not ask her about J.C.’s possible Indian ancestry. The social worker also interviewed Cheryl's mother (Cameron's maternal grandmother and J.C.’s paternal great-grandmother) and Angelica's stepfather, but did not ask either of them about J.C.’s possible Indian ancestry.

DISCUSSION

Angelica and Cameron contend that the Department did not conduct an adequate inquiry into the family's possible Indian ancestry and that the juvenile court failed to ensure the Department fulfilled its duty under ICWA and related California law. We agree with both contentions.

A. Applicable Law

"Congress enacted ICWA in 1978 in response to ‘rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’ " ( In re Isaiah W. (2016) 1 Cal.5th 1, 7, 203 Cal.Rptr.3d 633, 373 P.3d 444 ; see In re T.G . (2020) 58 Cal.App.5th 275, 287, 272 Cal.Rptr.3d 381 ; In re E.H . (2018) 26 Cal.App.5th 1058, 1067, 238 Cal.Rptr.3d 1.) ICWA provides: " ‘In 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 the foster care placement of, or 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.’ [Citation.] This notice requirement, which is also codified in California law [citation], 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, 203 Cal.Rptr.3d 633, 373 P.3d 444 ; see 25 U.S.C. § 1912(a) ; § 224.3, subd. (a) ; In re H.V. (2022) 75 Cal.App.5th 433, 436, 290 Cal.Rptr.3d 464 ; In re T.G. , at pp. 287-288, 272 Cal.Rptr.3d 381.)² "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." ( In re T.G. , at p. 287, 272 Cal.Rptr.3d 381 ; see 25 U.S.C. § 1902 ; In re Benjamin M . (2021) 70 Cal.App.5th 735, 740, 285 Cal.Rptr.3d 682 [" ‘Congress enacted ICWA to further the federal policy " ‘that, where possible, an Indian child should remain in the Indian community.’ " ’ "].)

" ‘ "ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal regulations implementing ICWA, however, require that state courts ‘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.’ [Citation.] The court must also ‘instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.’ " ’ " ( In re Y.W . (2021) 70 Cal.App.5th 542, 551, 285 Cal.Rptr.3d 498 ; see 25 C.F.R. § 23.107(a) (2021).) "State law, however, more broadly imposes on social services agencies and juvenile courts (but not parents) an ‘affirmative and continuing duty to inquire’ whether a child in the dependency proceeding ‘is or may be an Indian child.’ " ( In re Benjamin M. , supra , 70 Cal.App.5th at pp. 741-742, 285 Cal.Rptr.3d 682 ; see § 224.2, subd. (a) ; In re Y.W. , at p. 551, 285 Cal.Rptr.3d 498.)

Section 224.2 " ‘ "creates three distinct duties regarding ICWA in dependency proceedings." ’ " ( In re H.V. , supra , 75 Cal.App.5th at p. 437, 290 Cal.Rptr.3d...