L. A. Cnty. Dep't of Children & Family Servs. v. S.B. (In re H.B.)
| Citation | 92 Cal.App.5th 711,309 Cal.Rptr.3d 673 |
| Docket Number | B322472 |
| Decision Date | 20 June 2023 |
| Parties | IN RE H.B., A Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. S.B., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Richard L. Knight, Alpine, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Senior Deputy County Counsel, for Plaintiff and Respondent.
S.B. (father) appeals from the juvenile court's order terminating his parental rights over his daughter H.B. pursuant to Welfare and Institutions Code 1 section 366.26. Father contends only that the juvenile court erred in finding the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq. ) inapplicable based on the record of inquiry made by the Los Angeles County Department of Children and Family Services (Department) with H.B.’s extended family members. Finding no error, we affirm.
H.B. was born November 2016 to father and R.V. (mother). Just days after her birth, the Department received a report that mother had used methamphetamine during her pregnancy with H.B. and that father was also a methamphetamine user. The Department's investigation into general neglect of H.B. was closed as inconclusive.
This case began about three years later. At the time, father was on probation for methamphetamine charges. Law enforcement conducting a probation check on him at the family home turned up "large amounts of methamphetamines ... in plain sight and completely accessible to [H.B.]." Law enforcement contacted the Department. A Department social worker joined law enforcement at the home. The social worker noted the home was dirty and in disarray, with trash piled around and large rat traps, in addition to methamphetamine, in areas accessible to H.B. The social worker removed H.B. Mother and father were both arrested and detained. The Department filed a dependency petition and these proceedings ensued.
As the issue on appeal is limited to the adequacy of the Department's inquiry supporting the juvenile court's ICWA findings, we limit our recitation of the facts accordingly.
The Department filed its petition on November 1, 2019. Attached to the petition was a form ICWA-010(A) reflecting that the Department had questioned mother about Indian2 ancestry, and she denied having any.
At the November 2019 detention hearing, paternal grandmother, paternal aunt, and maternal great-grandmother were present in court. The parents were not present. The juvenile court found ICWA did not apply based on the information before it but ordered the parents to keep the Department, their counsel, and the court aware of any new information relating to possible ICWA status. Paternal grandmother, paternal aunt, and maternal great-grandmother made no statements in response to the court's ICWA finding.
Later in November 2019, on the day of the arraignment hearing, father and mother filed their respective form ICWA-020's, stating they had no Indian ancestry as far as they knew. At the hearing, in addition to the parents, paternal grandmother, paternal grandfather, paternal stepgrandmother, and paternal aunt were present in court. The juvenile court noted the parents’ ICWA-020 forms were filed and found no reason to know H.B. was an Indian child. The juvenile court ordered H.B. detained and set the case for an adjudication hearing.
In its January 2020 jurisdictional and dispositional report, the Department reported mother was raised by maternal grandmother and maternal grandfather until she was 10 years old, when maternal grandmother left the family home. After her parents’ separation, mother stayed in the home with maternal grandfather and maternal great-grandmother for a time. But when she was 14, mother moved in with maternal great-grandfather to be closer to maternal grandmother (who had been incarcerated) when she was released from jail. Mother has since lost contact with maternal grandfather.
Father's parents are similarly separated. He was raised by paternal grandmother and paternal stepgrandfather until he was in ninth or 10th grade. Then he moved in with paternal grandfather. He has a half brother and half sister on paternal grandmother's side, two half sisters on paternal grandfather's side, a full sister, and a stepbrother through paternal stepgrandmother. Father is in contact with his parents and all of his siblings.
At the January 2020, adjudication hearing, paternal grandmother, paternal stepgrandfather, and maternal aunt were present in court. The juvenile court sustained amended counts in the section 300 petition and set the case for a dispositional hearing.
At the dispositional hearing the following month, the presence of a "maternal step-sister" was noted on the record. The juvenile court ordered the Department to place H.B. with paternal grandfather if there were no safety concerns and, alternatively, with paternal grandmother. The juvenile court declared H.B. a dependent of the court and ordered family reunification services for the parents.
H.B. was initially placed in the home of paternal grandmother and paternal stepgrandfather. Shortly thereafter she was moved to the home of paternal grandfather and paternal stepgrandmother.
In January 2021, the Department reported visiting maternal great-uncle's home, where mother was living, to assess its suitability for visits between mother and H.B. The Department made an unannounced visit to the same home in March 2021 and met maternal great-aunt, maternal great-uncle, and a maternal cousin.
In January 2022, the juvenile court terminated family reunification services for the parents and set the case for a section 366.26 hearing.
In its May 2022 section 366.26 report, the Department recommended termination of parental rights, and that H.B. be adopted by paternal grandfather and paternal stepgrandmother. On the date initially set for the section 366.26 hearing, the juvenile court ordered the Department to interview all known living relatives regarding possible Indian heritage. It continued the hearing for approximately two months to permit the Department to comply with its order.
At an intervening hearing in July 2022, the juvenile court asked father if he was aware of any Native American heritage or any type of relationship with anyone in his familial lineage that might have lived on a reservation, have received benefits from a tribe, or be enrolled in a tribe. Father replied in the negative. The court reminded the Department of its continuing duty to inquire with extended family members and report its findings in advance of the scheduled section 366.26 hearing.
The Department provided a summary of its efforts to determine whether H.B. has Indian ancestry in a last minute information filed with the juvenile court on July 28, 2022. According to that report, a social worker spoke with paternal grandfather, who stated, " ‘No, I do not have any Native American Heritage.’ " The social worker asked him if there was anyone else that might have information, and he said "no," but promised to inform the social worker if he had additional information. He also provided contact information for paternal grandmother.
The social worker asked father if he had any Indian heritage, and he again said "no." The social worker asked father if there was anyone else the social worker could speak to about Indian heritage, and he suggested only his parents, but, from his understanding, he did not have any such heritage.
By text message, paternal grandmother informed the social worker that she was not aware of any Indian heritage.
Maternal grandmother also confirmed by text message she was not aware of any Indian heritage but promised to follow up with the social worker if she learned of any.
The social worker asked mother if she had any Indian heritage and mother reconfirmed that she did not. Mother could not think of anyone else for the social worker to ask about Indian heritage. The social worker asked mother to provide contact information for maternal grandfather and maternal great-uncle. Mother responded that she did not have contact information for maternal grandfather but would follow up with the information for maternal great-uncle. She apparently provided the information for maternal great-uncle, who told the social worker he did not think his family had any Indian heritage.3 He explained his father was adopted so he did not know if his father's biological parents were Indian. He denied knowing anyone that would know about possible Indian heritage. He promised to let the social worker know if he learned anything further.
On July 29, 2022, the juvenile court found that H.B. was not an Indian child and terminated parental rights.
On August 1, 2022, father's counsel filed a notice of appeal on father's behalf.
In involuntary state court proceedings concerning child custody, such as these dependency proceedings, ICWA requires notice to the relevant Indian tribe "where the court knows or has reason to know that an Indian child is involved." ( 25 U.S.C. § 1912(a).) It is incumbent upon the court administering such a proceeding to inquire whether the subject child is an Indian child. The scope of the duty on the court, as well as certain participants in the proceeding, is defined by federal regulations and related state law. (See, e.g., 25 C.F.R. § 23.107 (2023) ; Welf. & Inst. Code, § 224.2 ; Cal. Rules of Court, rule 5.481.)
The duty of inquiry has three "phases." Father claims error with respect to the first. This phase—the "initial inquiry"—applies in every case. In broad terms, the initial inquiry requires the court and the Department to ask certain persons related to the proceedings about the child's possible Indian ancestry. (See § 224.2, subds. (a), (b), (c) ; In re S.S. (2022) 75 Cal.App.5th 575, 581, 290 Cal.Rptr.3d 564 ; In re D.F....
To continue reading
Request your trial