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

• Decision Date: 18 July 2022
• Docket Number: B316877
• Parties: IN RE RYLEI S., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Natasha S., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

81 Cal.App.5th 309

296 Cal.Rptr.3d 873

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

v.Natasha S., Defendant and Appellant.

B316877

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

Filed July 18, 2022

Lelah S. Fisher, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.

PERLUSS, P. J.

Rylei S. was declared a dependent child of the juvenile court on June 14, 2021 and removed from her parents, Natasha S. and Philip A., after the court sustained an amended petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect) and (j) (abuse of sibling), due to Natasha's history of violent behavior and Natasha's and Philip's history of substance abuse. On appeal Natasha contends the Los Angeles County Department of Children and Family Services violated Welfare and Institutions Code section 224.2, subdivision (e), and California Rules of Court, rule 5.481(a)(4), adopted to implement the Indian Child Welfare Act of 1978 ( 25 U.S.C. § 1901 et seq. ) (ICWA), by failing to make an adequate "further inquiry" after she advised the Department and the court she and Rylei may have Cherokee ancestry though the maternal grandfather.

The Department does not dispute it violated the requirements of section 224.2¹ and rule 5.481(a)(4).² And it concedes the error requires reversal under the governing harmless error standard we articulated in In re Antonio R. (2022) 76 Cal.App.5th 421, 291 Cal.Rptr.3d 520 and In re Y.W. (2021) 70 Cal.App.5th 542, 285 Cal.Rptr.3d 498. Nonetheless, the Department has not stipulated to a remand to allow it to comply with ICWA and related California law, as it has done in numerous appeals pending in this division, thereby avoiding the "unnecessary delay" it asserts our decisions create. Instead, the Department contends this court's 14-year-old decision in In re H.B. (2008) 161 Cal.App.4th 115, 74 Cal.Rptr.3d 27, which involved harmless error analysis prior to the Legislature's 2018 amendments to California law expanding a child protective agency's investigative obligations, cannot be reconciled with our more recent decisions considering harmless error under current law. Then, misapplying the rationale of In re H.B. , the Department argues its multiple violations of express statutory requirements should be deemed harmless because, although she advised the juvenile court she may have Cherokee ancestry through her maternal grandfather, Natasha provided no additional evidence on appeal demonstrating Rylei is, in fact, an Indian child within the meaning of ICWA. We once again reject this cramped view of our obligations as an appellate court to ensure the Department complies with the robust duty of inquiry mandated by the Legislature.

FACTUAL AND PROCEDURAL BACKGROUND

The Department filed the section 300 petition on behalf of Rylei on February 25, 2021. The Indian Child Inquiry Attachment to the petition (Judicial Council form ICWA-010(A)) stated the social worker had questioned Natasha on February 2, 2021 and Natasha gave the social worker no reason to believe Rylei was or might be an Indian child. However, when Natasha, represented by counsel, made her first appearance in the proceedings on March 11, 2021, she filed the Parental Notification of Indian Status form (ICWA-020), checking the box stating, "I may have Indian ancestry," and adding (with a declaration under penalty of perjury), "Cherokee—on MGF's side—MGM has more information."

At the March 11, 2021 arraignment hearing the court, referring to Natasha's ICWA form, stated, "Based on the form, the mother's indicating she may have Cherokee heritage on the maternal grandfather's side and the maternal grandmother is the one who has the information. So the Department is asked to inquire of the maternal grandmother about possible Indian heritage. If the notice requirements are triggered, the Department's to provide notice, appropriate notice."³ Although not included in the reporter's transcript of the proceedings, the minute order for March 11, 2021 stated the order regarding notice was not conditioned on the results of the Department's inquiry: "DCFS is to notice the Indian tribes to determine if this case falls within [ICWA]." The minute order also stated the court ordered the Department to contact the Bureau of Indian Affairs and to include the notices and any responses in the report for the next court hearing.

In the jurisdiction/disposition report filed April 14, 2021 the Department stated ICWA "does or may apply." According to the report, on March 17, 2021 a dependency investigator interviewed the maternal grandmother, with whom Rylei had been placed. The maternal grandmother said she had no knowledge of Indian ancestry "on her side of the family"; if there was, "it would be so far back it would be untraceable"; and she had no knowledge of what tribe the possible ancestry would be. The report also stated the maternal grandmother provided the investigator information for ICWA notices, which "were initiated" on April 9, 2021. However, the report did not detail the information provided (not even the maternal grandfather's name) and did not attach copies of the ICWA notices sent by the Department.

The jurisdiction/disposition report stated efforts to interview Natasha about possible Indian ancestry were unsuccessful. However, elsewhere the report summarizes the dependency investigator's interview with Natasha regarding the allegations in the section 300 petition. The report does not indicate the Department made any attempt to interview the maternal grandfather⁴ or any other of Rylei's maternal relatives, nor does it say whether the maternal grandfather had any siblings.

At the jurisdiction hearing on April 29, 2021, after the Department's counsel directed the court to the brief summary of the interview with Rylei's maternal grandmother in the jurisdiction/disposition report, the court stated, "The Department is not required to interview the maternal grandmother any further. I just need the results of the notices that were sent." The court did not address the adequacy of the Department's efforts to interview any of Rylei's other maternal relatives.

On May 25, 2021 the Department filed a last minute information report for the court, attaching an April 27, 2021 letter from the United States Department of the Interior stating the notice provided by the Department contained insufficient information to determine any tribal affiliation for Rylei. The letter also stated, "[W]hen additional information becomes available, please forward the Notice to the appropriate Tribe(s)." No copies of any notice to, or response from, the Cherokee Tribe were submitted.

At the June 14, 2021 disposition hearing, after stating "notices were sent out over 60 days ago,"—without seeing those notices or reviewing their adequacy—the court found it had no reason to believe ICWA applied to Natasha, Philip or Rylei. The court declared Rylei a dependent child of the court, removed her from parental custody and ordered her suitably placed under the supervision of the Department with that placement to remain with the maternal grandmother. The court ordered reunification services for Natasha, but denied services to Philip based on his failure to make reasonable efforts to treat the problems that led to the removal and termination of Philip's parental rights as to a half sibling of Rylei. ( § 361.5, subd. (b)(11), (13).)

Natasha filed a timely notice of appeal.

DISCUSSION

1. ICWA and the Duties of Inquiry and Notice

ICWA and governing federal regulations ( 25 C.F.R. § 23.101 et seq. (2022) ) set minimal procedural protections for state courts to follow before removing Indian children and placing them in foster care or adoptive homes. ( In re Y.W., supra , 70 Cal.App.5th at p. 551, 285 Cal.Rptr.3d 498.) The statute authorizes states to provide " ‘a higher standard of protection’ " to Indian children, their families and their tribes than the rights provided under ICWA. ( In re T.G. (2020) 58 Cal.App.5th 275, 287-288, 272 Cal.Rptr.3d 381 ; 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, 272 Cal.Rptr.3d 381 ), ICWA permits an Indian child's tribe to intervene 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, 203 Cal.Rptr.3d 633, 373 P.3d 444 ).

To ensure Indian tribes may exercise their rights in dependency proceedings as guaranteed by ICWA and related state law, investigation of a family member's belief a child may have Indian ancestry must be undertaken and notice provided to the appropriate tribes. ( § 224.2, subd. (a) [imposing 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"]; see In re Charles W. (2021) 66 Cal.App.5th 483, 489, 280 Cal.Rptr.3d 852.) 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, 272 Cal.Rptr.3d 381 ; accord, In re Antonio R., supra , 76 Cal.App.5th at p. 429, 291 Cal.Rptr.3d 520 ; see § 224.2, subds. (a) - (c).)

In addition, section 224.2, subdivision (e), imposes a duty of further inquiry regarding the possible Indian status of the child "[i]f the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient...