In re T.G. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TAMARA S., Defendant and Appellant. In re JAZMINE H., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JASON H., Defendant and Appellant.
B303987 (Los Angeles County Super. Ct. Nos. 17CCJP02322B-D); B304055 (Los Angeles County Super. Ct. No. 17CCJP02322A)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 12/8/20
CERTIFIED FOR PUBLICATION
APPEALS from orders of the Superior Court of Los Angeles County, Emma Castro, Juvenile Court Referee. The section 366.26 orders are conditionally reversed. The matters are remanded with directions.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant Jason H.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
Tamara S. is the mother of four children, 16-year-old Jazmine H., 14-year-old T.G., 12-year-old N.G. and eight-year-old P.G. Jason H. is the biological father of Jazmine. Shaka G. is the presumed father of T.G., N.G. and P.G. All four children were declared dependents of the juvenile court, removed from parental custody and placed with the same nonrelated extended family members who were subsequently appointed their legal guardians. In separate appeals Jason H. challenges the juvenile court‘s order pursuant to
The sole issue in both appeals is whether the juvenile court and the Los Angeles County Department of Children and Family Services (Department) complied with their duties of inquiry and notice under the Indian Child Welfare Act of 1978 (
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Proceedings
The children were initially removed from parental custody on December 1, 2017. Jazmine and P.G. were placed with nonrelated extended family members Bridget L. and her husband, Eric L.2 T.G. and N.G. were initially placed with their maternal grandmother, Loretta S., but in July 2018 joined Jazmine and P.G. at Bridget and Eric‘s home.
On December 7, 2017 the Department filed a petition on behalf of the children pursuant to section 300, subdivisions (a) and (b)(1), alleging Tamara and Shaka had a history of domestic violence in the presence of the children; Tamara had a history of mental and emotional problems; and Tamara allowed the children to reside with Jazmine‘s paternal grandmother, who Tamara knew was an abuser of marijuana. At the initial detention hearing on December 8, 2017 the court found a prima facie case for detaining the children.
In February 2018 the juvenile court ordered a paternity test be conducted for Jason and Jazmine. In March 2018 the court found Jason was Jazmine‘s biological father based on the DNA test results.
On March 28, 2018 the Department filed a first amended petition adding allegations concerning Tamara‘s history of abuse of prescription drugs and Jason‘s criminal history. In addition, the first amended petition alleged Tamara had neglected Jazmine‘s medical needs.
The court sustained in part the first amended petition, as further amended by interlineation, at a jurisdiction hearing on April 20, 2018.3 The children
At the six-month review hearing (
The Department initially recommended adoption as the permanent plan for the children. However, Bridget and Eric L. stated their preference for legal guardianships, and the Department modified its recommendation accordingly.
At a continued section 366.26 hearing on January 7, 2020, applying section 366.26, subdivision (c)(1)(A)‘s exception to the legislative preference for adoption as the permanent plan, the court found by clear and convincing evidence that the children were adoptable but were living with relatives who were unable or unwilling to adopt the children and were able to provide stability and permanency through legal guardianship. The court further found it would be detrimental to remove the children from their relatives’ home and would be detrimental to return them to their parents.5 Legal guardianship was ordered as the children‘s permanent plan, and Bridget and Eric L. were appointed the legal guardians of each child. Jurisdiction was terminated as to Jazmine. The matter was continued as to T.G., N.G. and P.G. to January 24, 2020 to resolve an issue of visitation. Jurisdiction was terminated as to those three children on that date.
2. ICWA Information and Inquiry
a. The initial ICWA forms and the detention hearing
Judicial Council form ICWA-010(A), prepared by the Department and attached to the original dependency petition filed on December 7, 2017,
On Tamara‘s ICWA-020 form with Jazmine‘s name and case designation, 17CCJP02322A, filed at the time of the detention hearing on December 8, 2017, the preparer checked the box for “I may have Indian ancestry,” inserted Cherokee as the name of the band or tribe on Tamara‘s maternal side, and additionally indicated possible Indian ancestry on Tamara‘s paternal side through her great-grandfather, Theodore S. The date “7-4-30” was written below the paternal great-grandfather‘s name. On the ICWA-020 forms filed at the same time for the other three children, with case designations 17CCJP02322B-D, the preparer simply checked the box for “I may have Indian ancestry,” omitting the additional details provided to the court on Jazmine‘s form.6
At the December 8, 2017 detention hearing for all four children, the court stated Tamara‘s ICWA-020 indicated she may have American Indian ancestry. The court asked Loretta S., who had been identified on the record as the maternal grandmother, if she had American Indian ancestry on her side of the family. Loretta S. answered, “Yes.” The court inquired, “And what tribe?” Loretta S. answered, “Cherokee.” The following colloquy then occurred:
“The Maternal Grandmother: Well, that‘s what—from my understanding from what my mother told me.
“The Court: From family history, you‘ve been told that you have Cherokee Nation Heritage?
“The Maternal Grandmother: Yes.
“The Court: Ms. S[.], Mother, is that where you‘re claiming heritage is through your mother?
“The Mother: On my father‘s side.
“The Court: Your mother and your father‘s side. All right. So do you know—would it be fair to say you don‘t know the ancestor through which you claim Cherokee heritage?
“The Court: And on your father‘s side Ms. S[.], Mother, who do you claim heritage through?
“The Mother: I don‘t know
“The Court: So, what do you know about American Indian heritage through your father‘s side, if you can tell me?
“The Mother: Through my grandfather. He‘s deceased now. He told us about my background.
“The Court: So that‘s your father‘s father?
“The Mother: Yes.
“The Court: And what was his name?
“The Mother: Theodore S[.]. [¶] . . . [¶]
“The Court: Okay. And is there anyone still living that knows the birth date for Theodore S[.]?
“The Mother: My aunt.
“The Court: So you‘d be able to contact your aunt and find out more information about what relative claimed heritage and/or your grandfather‘s birth date?
“The Mother: Yes.
“The Court: And if you‘ll be kind enough to do that and report to the social worker by the end of next week.
“The Mother: Yes. [¶] ... [¶]
“The Maternal Grandmother: I know the birth day.
“The Court: Okay. For Theodore S[.]?
“The Maternal Grandmother: Yes. 7-4-30.
“The Mother: No.”
The court then made the following order, the meaning and significance of which is disputed by the parties: “So, Cherokee on the maternal grandmother‘s side. And unknown—The Department is to send notice to the Department of the Interior, the Bureau of Indian Affairs, and the Cherokee Nation. As to the Cherokee Nation, first, the Department—strike that. As to a specific tribe, on Mother‘s statement that her paternal grandfather had American Indian heritage, once the mother contacts her aunt, if there is a specific tribe that is identified, the Department is to provide notice to that tribe as well. Right now all we know from the maternal grandmother, Loretta S[.], who‘s present in court, is that she believes it was the Cherokee Nation tribe on her side of the family. Correct?” Loretta S. responded, “Correct.”
The reporter‘s transcript from the detention hearing does not include any other ICWA discussion or ICWA finding by the court. Despite that, and notwithstanding the exchange among the court, Tamara and Loretta S. just quoted, the minute order for the December 8, 2017 detention hearing recited, “The Court does not have a reason to know that this is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the BIA. Parents are to keep the Department, their Attorney and the Court aware of any new information relating to possible ICWA status.” The minute order additionally stated, “The determination of ICWA status is deferred for father‘s appearance.”
b. Further ICWA inquiry, the jurisdiction/disposition report and the jurisdiction hearing
According to the Department‘s February 6, 2018 jurisdiction/disposition report, Tamara had advised the Department on January 18, 2018 that the paternal side of her family had “Khalifian Native American Ancestry.”7 She was unable to provide additional information, Tamara explained, because her paternal relatives did not talk about their background.
The jurisdiction/disposition report and subsequent court filings by the Department reflect ongoing contact between the Department and Loretta S., as well as with other maternal relatives, but no indication of any efforts to develop additional information concerning Indian ancestry through that side of Tamara‘s family. The February 6, 2018 report stated ICWA “does or may apply.”
The minute order for the February 6, 2018 hearing indicates the Department was ordered to investigate Shaka‘s claim of possible American Indian ancestry and to include details regarding that investigation in its next report to the court. It also states, “DCFS is to send notice to appropriate tribe(s), the bureau of Indian affairs and the secretary of the interior,” but does not include the court‘s express direction to provide notice to the Cherokee Nation. There is no dispute that no ICWA notice of any sort was ever sent in these proceedings.
c. Subsequent reports concerning ICWA status
As had the February 2018 jurisdiction/disposition report, an interim review report dated April 12, 2018 and prepared for the continued jurisdiction hearing stated ICWA does or may apply.9 However, the interim review report filed the following month on May 11, 2018 simply stated ICWA does not apply; no explanation was provided. A status review report dated February 7, 2019, prepared for the 12-month review hearing, again stated ICWA does not apply and asserted the court had found ICWA did not apply at the detention hearing on December 8, 2017. That same statement was thereafter repeated in all subsequent reports, including the report for the section 366.26 selection
DISCUSSION
1. ICWA and the Duties of Inquiry and Notice
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. (
ICWA significantly limits state court actions concerning out-of-family placements for Indian children. “When ICWA applies, a state court may not, for example, make a foster care placement of an Indian child or terminate parental rights to an Indian child unless the court is satisfied ‘that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.’ [Citations.] Prior to placing an Indian child in foster care, the court must also make ‘a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses,
a. Notice when there is “reason to know”
Notice to Indian tribes is central to effectuating ICWA‘s purpose, enabling a tribe to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in, or exercise jurisdiction over, the matter. (Isaiah W., supra, 1 Cal.5th at p. 8.) Notice to the parent or Indian custodian and the Indian child‘s tribe is required by ICWA in state court proceedings seeking foster care placement or termination of parental rights “where the court knows or has reason to know that an Indian child is involved.” (
With respect to the notice requirement, in language substantially the same as that of the controlling federal regulation (
b. The initial inquiry and the duty of further inquiry
Oral transmission of relevant information from generation to generation and the vagaries of translating from Indian languages to English combine to create the very real possibility that a parent‘s or other relative‘s identification of the family‘s tribal affiliation is not accurate. Accordingly, just as proper notice to Indian tribes is central to effectuating ICWA‘s purpose, an adequate investigation of a family member‘s belief a child may have Indian ancestry is essential to ensuring a tribe entitled to ICWA notice will receive it. (See In re Elizabeth M. (2018) 19 Cal.App.5th 768, 787.) Yet neither ICWA itself nor the implementing federal regulations in effect prior to 2016 imposed a duty on courts or child protective agencies to inquire whether a child involved in a dependency proceeding was an Indian child. (See In re A.B. (2008) 164 Cal.App.4th 832, 838; In re H.B. (2008) 161 Cal.App.4th 115, 120.)
Notwithstanding this gap in federal law, long-standing, albeit nonbinding, federal guidelines urged states to “make inquiries to determine if the child involved is a member of an
Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe.” (Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584, 67588, § B.5(a) (Nov. 26, 1979); see In re H.B., supra, 161 Cal.App.4th at p. 121.) Exercising its authority to provide a higher
Now found in section 224.2, subdivision (a), following enactment of Assembly Bill 3176, the court and child protective agencies remain under “an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child.” That duty to inquire begins with initial contact (
In addition to the court‘s and agency‘s responsibilities at the outset of the proceedings, section 224.2, subdivision (e), in effect in January 2020 when the section 366.26 hearings took place in these proceedings, imposed 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.”14 That duty of further inquiry requires interviewing, “as soon as practicable,” extended family members, contacting the Bureau of Indian Affairs and “[c]ontacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child‘s membership, citizenship status, or eligibility.” (
2. Jason Has Standing To Appeal as a “Parent” Under ICWA
Describing Jason as “a mere biological father” and citing In re Joseph G. (2000) 83 Cal.App.4th 712, 716, which held an alleged biological father who is not a party of record in the juvenile court has no standing to appeal an order terminating parental rights, the Department urges us to dismiss Jason‘s appeal for lack of standing. It argues, because Jason never appeared and asserted a position in Jazmine‘s dependency case, he was not a party of record and is not “aggrieved” by the order for legal guardianship, a requirement for standing to appeal. (See
Whatever merit the Department‘s standing argument regarding a “mere biological parent” may have in other contexts, it fails here. Non-Indian parents have standing to raise issues of ICWA compliance on appeal. (In re A.W. (2019) 38 Cal.App.5th 655, 663; In re B.R. (2009) 176 Cal.App.4th 773, 779-780.) ICWA defines a “parent” to include “any biological parent,” while excluding “the unwed father where paternity has not been acknowledged or established.” (
3. The Department Did Not Adequately Investigate Tamara‘s Claim of Indian Ancestry
Tamara filed an
These preliminary responses from the mother and maternal grandmother of Jazmine, T.G., N.G. and P.G. unquestionably provided reason to believe Indian children might be involved in these dependency proceedings and triggered the Department‘s duty to make further inquiry, as mandated by
The Department‘s arguments that no duty of further inquiry existed in this case fail. First, it notes Tamara‘s
Moreover, even if the additional information had not been provided in the
Second, relying on Austin J., supra, 47 Cal.App.5th 870, the Department argues the information provided suggested a “mere possibility of Indian ancestry” that was insufficient to trigger the need for further inquiry. Austin J. concerned ICWA compliance in connection with jurisdiction/disposition hearings held in July 2019 at which the juvenile court held ICWA did not apply. The children‘s mother and a maternal great aunt had stated their family may have Cherokee ancestry. After observing “[t]ribal ancestry is not among the criteria for having a reason to know the child is an Indian child” under ICWA or California law after the
Explaining that “[i]nformation about a tribal connection that is too vague, attenuated and speculative’ will not support a ‘reason to believe the children might be Indian children,” the Austin J. court held the mother‘s statement
We do not agree with Austin J.‘s narrow reading of the nature and quality of information sufficient to trigger the duty of further inquiry.17 In particular, that court‘s insistence a parent‘s express statement of Indian ancestry does not constitute a reason to believe an Indian child may be involved is fundamentally at odds with well-established ICWA law. To be sure, an “Indian child” is defined in terms of tribal membership, not ancestry. But the question of membership is determined by the tribes, not the courts or child protective agencies. (See Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 65, fn. 21 [98 S.Ct. 1670, 56 L.Ed.2d 106] [Indian tribe is final arbiter of its membership rights];
We also reject Austin J.‘s related assumption that
The legislative history of
Finally, the recent amendment to
In sum, further inquiry is required in these cases. As mandated by
4. The Department‘s Failure To Comply with the Order To Provide Notice to the Cherokee Nation and the Court‘s Failure To Make Required ICWA Findings Must Be Addressed on Remand
In their appeals Tamara and Jason point to two additional errors that occurred in these proceedings. First, although the court at the December 8, 2017 detention hearing ordered the Department to provide ICWA notice to the Cherokee Nation, no notice was ever given. Second, notwithstanding the statement in the minute order from the December 8, 2017 hearing, the reporter‘s transcript from that hearing reveals the court did not make a finding that there was no reason to know Jazmine, T.G., N.G. and P.G. were Indian children and that ICWA did not apply to their case; and the court failed thereafter to make the required ICWA findings. (See
As to the order for notice, as discussed, the court, after repeating that Tamara had identified Cherokee ancestry on the maternal grandmother‘s side, ordered, “The Department is to send notice to the Department of the Interior, the Bureau of Indian Affairs, and the Cherokee Nation.” The court then
Looking only to the court‘s December 8, 2017 comments, the Department‘s explanation might be described as unlikely but plausible.20 But two months later, advised by the Department‘s counsel there did not appear to be evidence that notice had been given to the Cherokee Nation, the court again ordered notice to the tribe, the Bureau of Indian Affairs and the Department of the Interior. That order was explicit and unambiguous. The Department‘s failure to comply was error. Nonetheless, at this point the error is harmless. Either further inquiry will establish there is, in fact, reason to know the children are Indian children and notice as required by
We likewise find the juvenile court erred in failing to make findings regarding the applicability of ICWA to these proceedings, but leave it to the court to correct that omission on remand. We recognize the minute orders for the December 8, 2017 detention hearing recite the court found it had no reason to know that any of the children were Indian children as defined by
DISPOSITION
The
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.