Persons Coming Under the Juvenile Court Law. L. A. Cnty. Dep't of Children v. Deshawn W. (In re Y.W.)

• Decision Date: 19 October 2021
• Docket Number: B310566
• Citation: 285 Cal.Rptr.3d 498,70 Cal.App.5th 542
• Parties: IN RE Y.W. et al., Persons Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Deshawn W. et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

70 Cal.App.5th 542

285 Cal.Rptr.3d 498

IN RE Y.W. et al., Persons Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Deshawn W. et al., Defendants and Appellants.

B310566

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

Filed October 19, 2021

Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant Deshawn W.

Christopher Blake, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Clairessa M.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel and Aileen Wong, Senior Deputy County Counsel for Plaintiff and Respondent.

SEGAL, J.

INTRODUCTION

Deshawn W. and Clairessa M. appeal from the juvenile court's orders terminating their parental rights under Welfare and Institutions Code section 366.26.¹ They argue the juvenile court and the Los Angeles County Department of Children and Family Services failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act ( 25 U.S.C. § 1901 et seq. ) (ICWA).

Disagreeing with the court's narrow view of the duty of inquiry under ICWA in In re Austin J . (2020) 47 Cal.App.5th 870, 261 Cal.Rptr.3d 297 and the court's broad view of harmless error in In re A.C . (2021) 65 Cal.App.5th 1060, 280 Cal.Rptr.3d 526, we conclude that Deshawn's and Clairessa's contentions have merit and that the juvenile court erred in ruling ICWA did not apply. Therefore, we conditionally affirm the juvenile court's orders terminating Deshawn's and Clairessa's parental rights, with directions to ensure the Department complies with the inquiry and notice provisions of ICWA and related California law.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Dependency Proceedings

On June 24, 2019 the Department filed a petition under section 300, subdivisions (b)(1) and (j), alleging Deshawn's and Clairessa's history of substance abuse and current use of marijuana placed their one-year-old son, Y.W., and one-month-old daughter, Y.G.,² at risk of serious physical harm. The Department learned about the family when Clairessa and Y.G. both tested positive for marijuana when Y.G. was born. The Department subsequently learned that Deshawn and Clairessa smoked marijuana regularly and that Y.W. had also tested positive for marijuana when he was born in 2018. The juvenile court detained the children from Deshawn and Clairessa, and placed them in foster care.

At the August 8, 2019 jurisdiction and disposition hearing the juvenile court sustained the petition and declared Y.W. and Y.G. dependents of the court under section 300, subdivisions (b)(1) and (j).³ The court found that there was a substantial danger and risk of detriment to the health, safety, protection, or physical or emotional well-being of the children if they were to remain in the home of their parents, that the Department made reasonable efforts to prevent removal, and that there were no services available to prevent further detention. The court removed the children from the custody of Deshawn and Clairessa and ordered suitable placement for them. The court also ordered Deshawn and Clairessa to complete substance abuse and domestic violence programs and to have monitored visitation with the children.

At the February 26, 2020 six-month review hearing the juvenile court found Deshawn and Clairessa had "minimally complied" with their case plans. The court terminated reunification services and set the case for a selection and implementation hearing under section 366.26. On January 12, 2021 the juvenile court held the hearing under section 366.26 to select a permanent plan for the children.⁴ The court found that returning the children to Deshawn and Clairessa would be detrimental, that Deshawn and Clairessa had not maintained regular and consistent visitation and contact, and that the children were adoptable. The court terminated Deshawn's and Clairessa's parental rights and ordered the Department to continue to provide the children with permanency placement services.

B. ICWA Inquiry and Notice

Deshawn and Clairessa each completed Judicial Council form ICWA-020, Parental Notification of Indian Status. Clairessa checked the box next to the statement "I have no Indian ancestry as far as I know." Deshawn checked the box next to the statement "I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe." In the space for Deshawn to state "Name of tribe(s)," Deshawn wrote "Cherokee ? from Texas." Clairessa told a social worker she was "of Puerto Rican descent."

At the detention hearing the court confirmed Clairessa said she did not have Indian ancestry, and Deshawn confirmed he believed his grandmother was a member of the Cherokee Tribe. Based on Deshawn's responses, the court found that it had reason to know the children may be Indian children as defined by ICWA and that the notice requirements under section 224.3, subdivision (b), "have been triggered." The court told Deshawn to provide as much information as possible about his grandmother and ordered the social worker to provide notice to the Bureau of Indian Affairs.

Deshawn told the social worker his maternal grandmother was "95% Cherokee" and provided, among other information, his mother's name, date of birth, date of death, and place of death, and his grandmother's name, "possible" place of birth, month and year of death, and place of death. Clairessa told the social worker she was adopted when she was two years old, did not have any information about her biological relatives, and was "estranged" from her adoptive parents, who lived in North Carolina. Clairessa declined to provide the contact information for her adoptive parents.

On July 12, 2019 the Department mailed Judicial Council form ICWA-030 to the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians, and the Bureau of Indian Affairs. In the spaces on the form for the Department to fill in the name of "Mother's Biological Mother" and "Mother's Biological Father," the Department wrote "UNKNOWN." In the section on the form for the Department to provide information on "Father's Biological Grandmother," the Department listed the name of Deshawn's grandmother, the Indian tribes she may have been affiliated with, and the date and place of her death. In the space provided for the Department to list her date and place of birth, the Department wrote "UNKNOWN."

After the Department mailed the ICWA-030 notices, the social worker conducted an online search and found the names of and contact information for Clairessa's adoptive parents, Leonard and Maxcine M. The social worker interviewed Maxcine, who stated she and Leonard adopted Clairessa when Clairessa was two years old. Maxcine said the child protective agency in North Carolina removed Clairessa from her biological mother because she neglected Clairessa and abused drugs. Maxcine stated she maintains phone contact with Clairessa, who typically called asking for money.

At a hearing on July 24, 2019 the juvenile court observed that the July 12, 2019 ICWA notices "might be incomplete" because Clairessa's adoptive parents should know the name of Clairessa's biological mother. The court ordered the Department to interview Clairessa's adoptive parents again to obtain the name of Clairessa's biological mother and biological father.

In a last minute information report filed for the jurisdiction and disposition hearing, the Department stated that on August 7, 2019 the social worker interviewed Maxcine about any Indian ancestry that Clairessa might have. Maxcine said she did not know of any Indian ancestry in her family or in her husband's. Maxcine stated, however, that, although she did not know whether Clairessa's biological family had any Indian ancestry, she knew the name of Clairessa's biological father (but had "no additional information about him or his relatives") and was "able to obtain contact information" for Clairessa's maternal aunt. There is no record the Department followed up with Maxcine to obtain the contact information for Clairessa's biological parents.⁵

At the August 8, 2019 jurisdiction and disposition hearing the juvenile court observed that the last minute information report did not contain contact information for Clairessa's biological family. Counsel for the Department stated the report indicated the adoptive parents "knew how to contact an aunt, and they noted they would try to do that for the Department, but they didn't have any current contact information for them." The court asked counsel for Clairessa whether Clairessa had been able to obtain any further information about her biological relatives, and counsel replied, "No."

At an October 23, 2019 progress hearing the court summarized the status of the Department's efforts to locate Clairessa's biological parents: "We previously had had notices sent July 12, 2019, but the ICWA notices that were sent on that date indicated that the maternal grandparents were unknown. The adoptive parents were the godparents, so I said they probably needed to re-interview them for the ICWA notices. But the godparents didn't have any contact information, so the ICWA notices have been sent on July 12." The court also stated the Department received a response from the Eastern Band of Cherokee Indians, ⁶ made efforts to follow up with the Cherokee Nation of Oklahoma and the United Keetoowah Band of Cherokee Indians, but had not received a response from either of the latter two tribes. The court found that "ICWA notice is proper and complete," but stated that, "for any [ section 366.26 ] hearing, we will need responses from the Cherokee Nation of Oklahoma and United Keetoowah [Band of Cherokee Indians] for new notices."

On November 13, 2020, in preparation for the hearing under section 366.26, the court observed that the Department had not received a response from the Cherokee Nation of Oklahoma or the United...