In re Dylan M.

Filed 6/30/08 In re Dylan M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Emily Stevens, Judge. Reversed and remanded with directions.

Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.

____________________________

Daniel M. appeals from an order terminating his parental rights as to his son Dylan M. He argues, and we agree, that the juvenile court failed to adequately inquire into whether Dylan is or may be an Indian child for purposes of the Indian Child Welfare Act (ICWA).[1] We shall reverse and remand for appropriate inquiry.

FACTUAL AND PROCEDURAL SUMMARY

Father raises only issues related to the ICWA on appeal, and we confine our factual and procedural summary accordingly.

Six-year-old Dylan came to the attention of the Los Angeles County Department of Children and Family Services (the Department) in February 2005 by way of a referral alleging general neglect by his mother. A childrens social worker subsequently visited the motel room where Dylan and his family resided. Mother admitted recent drug use and claimed that father used drugs and sexually abused Dylans half-sister, Taylor S.[2] Taylor stated that she had observed her father shooting up and had discovered syringes in the room; Dylan said that on one occasion, he found a syringe in a cereal box. Father claimed sobriety for the past five weeks but admitted that he was a registered sex offender. Dylan and Taylor were taken into protective custody.

Shortly thereafter, the Department filed a petition alleging Dylan was a child described by Welfare and Institutions Code section 300, subdivisions (b), (c) and (d).[3] Two boxes appeared on the petition next to the statements, Child may be a member of, or eligible for, membership in a federally recognized Indian tribe and Child may be of Indian ancestry; these boxes were not checked. The Departments detention report, and all subsequent reports it submitted to court, stated that the ICWA did not apply.

Father appeared at the hearing on the petition and mother did not appear. When the court asked, Is there I.C.W.A.? father replied, no, Your Honor. Based on this statement, the court found the ICWA did not apply. The court found a prima facie case to detain Dylan, gave temporary custody to the Department and ordered reunification services for father and mother.

The Department attached reports from earlier Michigan dependency proceedings to the jurisdiction/disposition report it filed in March 2005. Checked boxes in four of the Michigan reports state that inquiry into American Indian heritage [was] made, but, as the Department acknowledges, the reports do not specifically state that mother was included in the inquiry.

Mother did not appear at Dylans March 2005 jurisdictional hearing, and father appeared through counsel. The court sustained the first amended petition, ordered the Department to find suitable placement for Dylan, ordered that no reunification services be provided for mother and continued the disposition hearing.

Mother first appeared at Dylans six-month review hearing in September 2005, and she also appeared at four subsequent hearings from October 2005 to May 2006. The court did not inquire into mothers or Dylans possible American Indian heritage at any of these hearings, and it did not order mother to complete mandatory judicial counsel form JV-130 (Parental Notification of Indian Status).

Mother filed a section 388 petition in October 2005 for restoration of reunification services, which the court granted as to Dylan. The petition form, which was filled in by hand and signed by mother, contained boxes next to the statements, Child may be a member of, or eligible for, membership in a federally recognized Indian tribe and Child may be of Indian ancestry. Those boxes were left blank.

At Dylans twelve-month hearing in March 2006, father and mother agreed to Dylans placement with his maternal aunt in Michigan. The court terminated reunification services and granted the aunts section 388 petition to have Dylan placed in her home. At Dylans section 366.26 hearing in September 2007, the court terminated fathers parental rights. This appeal followed.

DISCUSSION

Preliminarily, father argues (and the Department does not contest) that he has standing to appeal the order terminating his parental rights. We agree. [T]he parent must . . . establish he or she is a party aggrieved to obtain a review of a ruling on its merits. [Citations.] To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the courts decision. (In re Silvia R. (2008) 159 Cal.App.4th 337, 344, quoting In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) Fathers substantial interest in raising his son was injured by the courts order terminating his parental rights.

Turning to the merits, father argues the juvenile court erred in terminating his parental rights as to Dylan because the court failed to ask Dylans mother about Dylans possible American Indian heritage. When a dependency court has reason to know the proceeding involves an Indian child, the Department must notify the Indian childs tribe, or, if the tribes identity or location cannot be determined, the Bureau of Indian Affairs, of the pending proceedings and of the right to intervene . . . . When proper notice is not given, the dependency courts order is voidable. (In re Brooke C. (2005) 127 Cal.App.4th 377, 383-384.) California Rules of Court, former rule 1439(d) imposes a continuing duty on both the court and the county welfare department to affirmatively inquire whether a dependent child is or may be an Indian child.[4] (In re J.N. (2006) 138 Cal.App.4th 450, 461.) As part of that duty, the juvenile court must order a parent to complete form JV-130 at the parents first appearance in a dependency case. (Ibid; Cal. Rules of Court, former rule 1439(d)(3).) The court erred by not asking mother about Dylans possible American Indian heritage and by not ordering mother to complete form JV-130.

In re J.N., supra, 138 Cal.App.4th 450, is closely analogous. In that case, the dependency petition contained boxes which, if checked, would indicate the ICWA potentially applied, and those boxes were not checked. (Id. at p. 460.) The fathers JV-130 form indicated he was unaware of any Indian ancestry on his part, but there was no JV-130 form in the record for the mother. (Ibid.) None of the reports filed with the court stated that the mother was asked whether she had any Indian ancestry. (Id. at p. 461.) The court concluded, [i]t is apparent from the record that mother was never asked whether she had any Indian ancestry, and remanded with directions to inquire of the mother whether the child may have been an Indian child. (Id. at p. 462.) There appear to be no significant differences between J.N. and the instant case.[5]

The Department argues the appropriate inquiry was made because the Departments reports, which repeatedly state that the ICWA does not apply, along with reports from earlier Michigan proceedings, raise the inference that the Department inquired into mothers heritage. But [b]oth the juvenile court and DCFS have an affirmative duty to inquire whether a child declared a dependent minor of the juvenile court qualifies as an Indian child for ICWA purposes. [Citation.] (In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1449.) Assuming for the sake of argument that the Department performed its duty to inquire, the court nonetheless erred by not performing its own inquiry and particularly by not ordering mother to complete the mandatory JV-130 form.[6]

The Department argues the courts failure to inquire is harmless because there is no evidence that mother has American Indian ancestry. The duty to inquire in this case stems from state law rather than the ICWA, and any failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. [Citations.] (In re S.B., supra, 130 Cal.App.4th at p. 1162.) Father has shown such a probability because the ICWA applies heightened procedural requirements before parental rights may be terminated in the case of an Indian child. (25 U.S.C. 1912(f).) There is simply no indication in the record, affirmative or negative, as to whether mother has any American Indian ancestry. In order to hold the courts error harmless, we would have to speculate that mother would deny such ancestry if asked, which we decline to do. (In re J.N., supra, 138 Cal.App.4th at p. 461.) The matter must be remanded to the trial court for appropriate inquiry. (Id. at pp. 461-462.)

In keeping with common practice, we shall enter a limited reversal for the sole purpose of ensuring compliance with applicable inquiry and notice requirements. (See In re Rayna N. (May 23, 2008, B206049) ___ Cal.App.4th ___, ___ [p. 5].)

DISPOSITION

The order terminating parental rights is reversed and the case is remanded to the juvenile court with directions to inquire of mother whether Dylan is or may be an Indian child. (See Cal. Rules of Court, rule 5.481(a).) If the inquiry produces evidence that Dylan is or may be an Indian child, then the juvenile court shall direct the Department to give notice of the underlying proceedings and any upcoming hearings in compliance with the ICWA to the Bureau of Indian Affairs and any identified tribes. If, after proper notice, a tribe asserts its right under the ICWA to intervene in the state court, or to obtain jurisdiction over the proceedings by transfer to the tribal court, the cause shall proceed in accordance with the tribes election. If the inquiry produces no evidence that Dylan is or may be an Indian child, or if there is no intervention or assertion of jurisdiction by any tribe after proper notice, then the juvenile courts orders shall be reinstated. (See In re Francisco W. (2006) 139 Cal.App.4th 695.)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] Title 25 United States Code section 1901 et seq.

[2]Taylor is not involved in this appeal, and we limit the remainder of our factual and procedural summary to matters concerning Dylan.

[3] All further statutory references are to the Welfare and Institutions Code.

[4]Former rule 1439 of the California Rules of Court was renumbered as former rule 5.664 in January 2007 and repealed in January 2008. The current rules of court addressing ICWA may be found at California Rules of Court, rule 5.480 et seq. Former rule 1439, as amended January 2005, was applicable at all relevant times in these proceedings.

[5] The Department does not argue there is adequate support for the juvenile courts conclusion that ICWA does not apply, which was made after inquiring of the father only. Nor does the Department raise any argument as to the section 388 petition submitted by mother.

[6] In support of its argument, the Department cites In re E.H. (2006) 141 Cal.App.4th 1330, In re Rebecca R. (2006) 143 Cal.App.4th 1426, In re S.B. (2005) 130 Cal.App.4th 1148 and In re Aaliyah G. (2003) 109 Cal.App.4th 939. In all of these cases, the relevant proceedings took place before January 2005, when California Rules of Court, former rule 1439(d) was amended to impose a continuing duty to inquire and to require the juvenile court to order parents to complete form JV-130.