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

• Decision Date: 12 December 2022
• Docket Number: B319752
• Citation: 86 Cal.App.5th 130,302 Cal.Rptr.3d 231
• Parties: IN RE A.C., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. W.E., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

86 Cal.App.5th 130

302 Cal.Rptr.3d 231

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

v.W.E., Defendant and Appellant.

B319752

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

Filed December 12, 2022

Janelle B. Price, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Jane Kwon, Principal Deputy County Counsel, for Plaintiff and Respondent.

Children's Law Center 5 and Kristin Hallak Minor.

RUBIN, P. J.

Mother appeals from an order terminating her parental rights to daughter under Welfare and Institutions Code section 366.26. Mother contends the juvenile court erred when it determined the Los Angeles County Department of Children and Family Services (DCFS) satisfied its inquiry obligations under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq. ) and related California law as to daughter's possible Indian heritage. No interested party filed a respondent's brief; instead, mother, DCFS, and daughter filed a joint application and stipulation for conditional affirmance and remand to the juvenile court to order DCFS to inquire of a non-relative extended family member (NREFM) caring for the child, and available maternal and paternal extended family members in compliance with ICWA and related California law. We accept the parties’ stipulation, but our disposition is a conditional reversal.

This case involves reversible error because the parties agree, and we concur, there was noncompliance with the inquiry requirements of ICWA and related California provisions. ( In re H.V. (2022) 75 Cal.App.5th 433, 438, 290 Cal.Rptr.3d 464 ; In re Benjamin M. (2021) 70 Cal.App.5th 735, 744, 285 Cal.Rptr.3d 682.) Here, DCFS only inquired of the parents regarding Native American ancestry. DCFS did not ask the NREFM I.C. (daughter's caregiver and prospective adoptive parent), or the extended known maternal and paternal family members about Indian heritage. Pursuant to Welfare and Institutions Code section 224.2, subdivision (b), DCFS had a duty to ask daughter's "extended family members" and "others who have an interest in the child" whether daughter is an Indian child.

After reviewing the entire record, we find that the statutory requirements set forth at Code of Civil Procedure section 128, subdivision (a)(8) for a stipulated reversal have been satisfied here. ( In re Rashad H. (2000) 78 Cal.App.4th 376, 379–382, 92 Cal.Rptr.2d 723.)

DISPOSITION

The juvenile court's April 7, 2022 order terminating parental rights to daughter is conditionally reversed, and the matter is remanded to the juvenile court for proceedings consistent with this opinion. The juvenile court shall order DCFS to make reasonable efforts to interview the NREFM (I.C.) and available maternal and paternal family members about the daughter's Indian ancestry and to report to the court the results of DCFS's investigation. Based on the information reported, if the court determines that no additional inquiry or notice to tribes is necessary, the order terminating parental rights is to be reinstated. If additional inquiry or notice is warranted, the court shall make all necessary orders to ensure compliance with ICWA and related California law. The remittitur shall issue forthwith.

I CONCUR:

MOOR, J.

BAKER, J., Dissenting

Today's opinion of the court moves the Courts of Appeal further down the wrong path of adjudicating appeals that raise issues under the Indian Child Welfare Act (ICWA) and related California law. The upshot of the majority's holding is that—on pain of appellate reversal—juvenile courts and social services agencies must now make ICWA inquiry of not just all of a minor's extended family members but also untold others who are not even related to the minor. Fortunately, our Supreme Court has agreed to hear a case that will hopefully bring some much-needed predictability and stability to this area of the law. ( In re Dezi C. (2022) 79 Cal.App.5th 769, 295 Cal.Rptr.3d 205, review granted Sept. 21, 2022, S275578 ( Dezi C. ).) While we await guidance from the Supreme Court, I write separately to highlight the facts of this case as an example of just how awry things have gone (and could yet further go), and to add some observations about how courts can make sense of an unartfully drafted statute.

I

The pertinent facts can be summarized quickly. The minor in question, 3-year-old A.C., has two half-siblings, 15-year-old J.C. and 12-year-old A.G.¹ Each child has a different father; I.C. is J.C.’s father.

Dependency proceedings were initiated by the Los Angeles County Department of Children and Family Services (the Department) for all three children. (This appeal concerns only A.C.) A.C.’s mother and presumed father were asked if they had any Indian ancestry and both said they did not. There was no evidence before the juvenile court that A.C. lived on a tribal reservation, had been a ward of a tribal court, or that either of her parents had an identification card indicating membership or citizenship in an Indian tribe.

The juvenile court removed A.C. from her parents’ custody and ordered her placed with I.C., her half-sister's father who is not biologically related to A.C. and is not married to or in a relationship with A.C.’s mother. I.C. is referred to in the appellate record as A.C.’s non-related extended family member.²

II

A

"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.’ [Citation.] ICWA declared that ‘it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture ....’ ( 25 U.S.C. § 1902.)" ( In re Isaiah W. (2016) 1 Cal.5th 1, 7-8, 203 Cal.Rptr.3d 633, 373 P.3d 444.)

ICWA defines an "Indian child" as any unmarried person under the age of 18 who "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), emphasis added; see also 25 C.F.R. § 23.108 ["The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) determines whether the child is a member of the Tribe, or whether the child is eligible for membership in the Tribe and a biological parent of the child is a member of the Tribe, except as otherwise provided by Federal or Tribal law"].) ICWA also defines who counts as an "extended family member": a person over the age of 18 who is an "Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent."³ ( 25 U.S.C. § 1903(2).)

ICWA gives Indian tribes a right to intervene in any state court proceeding contemplating foster care placement of, or termination of parental rights to, an Indian child; the statute also imposes substantive requirements with respect to such placement and termination decisions. ( 25 U.S.C. §§ 1911(c), 1912, 1915.) To effectuate that right to intervene, ICWA requires that for any state court involuntary proceeding "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" must notify the child's parents or Indian custodian and the Indian child's tribe of the pending state court proceeding and the right to intervene. ( 25 U.S.C. § 1912(a).)

In 2015 and 2016, the Bureau of Indian Affairs (BIA) undertook a notice and comment process to update regulations promulgated to implement the ICWA statutory scheme. ( 80 Fed. Reg. 14880 (Mar. 20, 2015) [proposed rule]; 81 Fed. Reg. 38778 (June 14, 2016) [final rule].) Among the principal purposes of the rulemaking was a desire to establish procedures for determining whether ICWA applies in state court child custody proceedings. ( 80 Fed. Reg. 14881.)

The BIA's proposed rule contemplated adding a new section 23.107 to the Code of Federal Regulations that would identify actions child services agencies and state courts must undertake to determine whether a child is an Indian child. (80 Fed. Reg. 14887.) State courts, under the rule as proposed, would be required to "ask, as a threshold question at the start of any State court child custody proceeding, whether there is reason to believe the child ... is an Indian child by asking each party to the case, including the guardian ad litem and the agency representative, to certify on the record whether they have discovered or know of any information that suggests or indicates the child is an Indian child." (80 Fed. Reg. 14887.) The proposed rule stated there would be "reason to believe" a child was an Indian child if any of five criteria were present (for example, a party to the proceeding or Indian tribe or organization informed the court that the child was an Indian child). ( 80 Fed. Reg. 14887-14888.) The proposed rule further provided that notice of state court proceedings must be provided to each tribe where the child may be a member or eligible for membership (and to the child's parents or custodian) when a court or child services agency "knows or has reason to believe" that the child in question is an Indian child. (80 Fed. Reg. 14888.)

The final rule the BIA prepared after receiving comments—which is intended to establish "minimum...