In re M.D. CA2/5

California Court of Appeal Oct 2, 2023 No. B326787Unpublished

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Holding. The court conditionally affirmed the termination of parental rights and remanded the case because the Department failed to conduct an adequate initial inquiry into the child's Indian ancestry by neglecting to contact available paternal relatives as required by Welfare and Institutions Code section 224.2.

Issues

Did the Department of Children and Family Services comply with its initial inquiry duty under Welfare and Institutions Code section 224.2, subdivision (b)?
Is a showing of prejudice required when the Department fails to conduct an adequate initial ICWA inquiry?

Disposition. Conditionally affirmed and remanded

Quotations verified verbatim against the opinion

“the Department asked mother and the maternal grandmother about their Indian heritage but did not similarly inquire of father’s available relatives.”

“we adopt this court’s previous holding that no showing of prejudice is required under similar facts.”

“The order terminating parental rights is conditionally affirmed, and the matter is remanded to the juvenile court for the limited purpose of ensuring compliance with the inquiry provisions of Welfare and Institutions Code section 224.2.”

Filed 10/2/23 In re M.D. CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

In re M.D., a Person Coming Under B326787 the Juvenile Court Law. LOS ANGELES COUNTY (Los Angeles County Super. DEPARTMENT OF CHILDREN Ct. No. 20CCJP04409B) AND FAMILY SERVICES,

Plaintiff and Respondent,

Marc D.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Tamara E. Hall, Judge. Conditionally affirmed and remanded with directions. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent. ________________________

Marc. D. (father) appeals from the juvenile court’s order terminating his parental rights to M.D. (son). He contends the Department of Children and Family Services (Department) failed to comply with its initial inquiry duty under Welfare and Institutions Code section 224.2, subdivision (b)—the California statute implementing the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).1 In lieu of a respondent’s brief, the Department has filed a letter acknowledging father’s contentions have merit. Accordingly, we conditionally affirm the order terminating parental rights and remand for the Department to expand its initial ICWA inquiry and for the juvenile court to determine, in light of that inquiry, whether ICWA applies. PROCEDURAL BACKGROUND2 On August 21, 2020, the Department filed a dependency petition alleging jurisdiction over son, then a newborn, under section 300, subdivision (b)(1). The petition alleged that Yolanda U. (mother) had a history of substance abuse, that she and son had tested positive for methamphetamine at son’s birth (count b- 1), and that father knew about the substance abuse but failed to protect son from it (count b-2).3 As to the second count, the petition also alleged mother had mental and emotional problems that prevented her from being able to care for son and his half- brother. On September 28, 2020, the Department amended the

In re M.D. CA2/5

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