California Court of Appeal May 30, 2024 No. E082252Unpublished
Filed 5/30/24 In re L.U. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.U., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E082252
Plaintiff and Respondent, (Super. Ct. No. INJ2100009)
v. OPINION
C.M.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Elizabeth Tucker,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Conditionally affirmed and
remanded with directions.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie Jarvi, Deputy
County Counsels, for Plaintiff and Respondent.
1
I.
INTRODUCTION
C.M. (Mother) appeals from the juvenile court’s order terminating parental rights 1 as to her three-year-old daughter L.U. Mother contends the beneficial parental
relationship exception to the termination of parental rights under Welfare and Institutions 2 Code section 366.26, subdivision (c)(1)(B)(i) applied to this case and thus juvenile court
erred in terminating her parental rights. She also argues that the juvenile court and the
Riverside County Department of Public Social Services (DPSS) failed to comply with the 3 Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related state
law.
We conditionally affirm the juvenile court’s order terminating parental rights.
Mother fails to establish the beneficial parental relationship exception under section
366.26, subdivision (c)(1)(B)(i) applied in the present matter. We agree, however, that
there was prejudicial error under ICWA and related California law and remand for
compliance with the inquiry provisions of those laws.
1 C.U. (Father) is not a party to this appeal. 2 All future statutory references are to the Welfare and Institutions Code. 3 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
2
II.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father have one child, L.U. Father is a registered sex offender, is on 4 parole, and cannot have any contact with his child. The family came to the attention of
DPSS on January 5, 2021, with allegations of general neglect and caretaker
absence/incapacity. On this date, Father had called his parole agent to help him check on
then one-month-old L.U. because Mother had been drinking alcohol and was a “‘raging
alcoholic,’” who drank during the pregnancy. When the parole agent accompanied
Father to Mother’s motel room, they discovered Mother to be severely intoxicated and
stumbling in the room. There were empty alcohol bottles in the refrigerator and a vodka
bottle in the freezer. L.U. was on the bed dressed only in a diaper. The paternal
grandmother came and took L.U. The paternal grandparents were unable to provide for
L.U. long term. The paternal grandmother stated that she had no Native American
ancestry.
Mother had pending charges for child endangerment in Santa Barbara and an open
dependency referral for general neglect after she was found in a motel room intoxicated
when L.U. was 12 days old. She had been in a recovery program, but left after 30 days,
and then arrived in Palm Desert on January 4, 2021. According to Father, Mother was a
belligerent alcoholic and would drink until she passed out. Mother had participated in six
4 “SCT” refers to the clerk’s transcript from a prior appeal, which was dismissed, in case No. E076656. “SRT” will denote the reporter’s transcript from case No. E076656.
3
to seven substance abuse programs and once spent nine months in an inpatient program.
Father was not interested in any services for himself.
When the social worker interviewed Mother, the worker observed Mother to have
a strong odor of alcohol. Initially, Mother denied drinking alcohol or having alcohol in
the room, but then acknowledged a relapse. Mother declined voluntary services,
claiming she did not have a drinking problem. Mother denied having any Native
American ancestry. She also denied ever living on an Indian reservation/
Rancheria/community, attending school, or receiving services from a tribe or services
available to Native Americans provided by the Federal government, such as Indian
Health Services.
On January 6, 2021, the social worker provided the paternal grandmother with a
copy of the protective custody warrant, and L.U. was taken into protective custody. L.U.
was placed into a foster home.
On January 8, 2021, DPSS filed a petition on behalf of L.U. pursuant to section
300, subdivision (b)(1) (failure to protect). The petition noted that ICWA may apply as
Father reported having Native American ancestry through the Iroquois tribe or
“‘Mohawk’ tribe.” Father claimed he was half Mohawk and that he was adopted by J.H.
(the paternal grandmother) and W.U. (the paternal grandfather). Father denied ever
living on an Indian reservation/Rancheria/community, attending school or receiving
services from a tribe or services available to Native Americans provided by the Federal
government, such as Indian Health Services.
4
On January 11, 2021, Mother filed an ICWA-020 Parental Notification of Indian
Status form (ICWA-020) indicating she had no Native American ancestry as far as she
knew. On this same date, Father also filed an ICWA-020 form, none of the options on
the form applied. Specifically, Father did not check the boxes stating the child is or may
be a member of, or eligible for membership in, a federally recognized Indian tribe; one or
more of his parents, grandparents, or other lineal ancestors is or was a member of a
federally recognized tribe; he or the child are a resident of or domiciled on a reservation,
rancheria, Alaska Native village, or other tribal trust land; and the child is or has been a
ward of a tribal court.
The detention hearing was held on January 11, 2021. Mother and Father were
both present in court. Father’s counsel informed the juvenile court that Father’s birth
mother may have Native American ancestry, but that Father changed his name and has
had no contact with his birth mother. Father informed the court that he was adopted at
birth. The court ordered Father to be interviewed by the ICWA social worker to make
sure they received all of the information. The court made temporary detention findings,
ordered Father to cooperate with the ICWA social worker, recalled and quashed the
protective custody warrant, and continued the matter for a contested detention hearing.
The court did not inquire of Mother whether she had Native American ancestry.
5
The contested detention hearing was held on January 13, 2021. Both parents were
present in court. The court noted that it had “already recalled and quashed the protective
custody warrant,” found Father to be the presumed father of L.U., and that ICWA may
apply. CFS’s counsel noted that the social worker’s report indicated that Father may be
Iroquois. Father’s counsel clarified that it was actually “Mohawk,” and Father confirmed
this by stating, “Yeah, it’s Mohawk.” Father also stated, “I have no idea how much or
anything else. I don’t even know 100 percent it’s true. It’s -- it was a declaration by my
biological mother, who’s got some addictions to meth issues and I don’t -- I have an
estranged relationship with her.” The court explained the law required them to follow up
and investigate and ordered DPSS to provide “notice to the identified tribe, and/or Bureau
of Indian Affairs (BIA), as required by law” and file proof of such notice with the Court.
The court formally detained L.U. and provided Mother with visitation twice per week for
one hour.
On January 28, 2021, Mother denied having any Native American ancestry.
Father reported that he had been adopted. He had attempted to call his biological mother
to inquire about possible Native American ancestry, but he “kept getting the run-around
and she could not give him a straight answer.” Father stated that if he did have Native
American ancestry, it would be with the “‘Iroquois tribe and they don’t recognize anyone
who is less than 50 [percent].’” He noted that he had spoken to his attorney and realized
he did not have Native American ancestry, and that was why he completed the ICWA-
020 form stating that he had no such ancestry. When the social worker asked Father for
6
his biological mother’s telephone number to inquire about possible Native American
ancestry, Father declined to provide the social worker with her telephone number and
said he did not want her involved.
Mother denied the allegations in the petition and reported only drinking one time
during her pregnancy. However, Father’s parole officer informed the social worker that
Mother drank throughout her pregnancy. The maternal grandfather believed Mother was
addicted to alcohol and often required medical care. In addition, Mother had numerous
psychological holds since high school. He noted Mother began using alcohol at age 13,
had been heavily addicted to alcohol, had been to the emergency room over 15 times due
to her alcohol abuse, and often became abusive and illogical in her thinking due to her
alcohol addiction.
The maternal grandfather indicated that he and the maternal grandmother were
willing to provide care for L.U. and requested to be assessed for placement. Mother
stated that she was comfortable with L.U.’s foster home. She did not want any of her
family involved and did not want them to be assessed for placement.
On February 4, 2021, Mother requested a contested hearing and the juvenile court
continued the matter. At that time, the court found that ICWA did not apply based “upon
everything” the court had “read and considered.”
7
On February 17, 2021, Mother informed the social worker that she had entered an
inpatient drug treatment program at MFI Recovery Center and that she wanted L.U.
placed with her as the program allowed children. Mother also stated that she was
participating in parenting classes, an outpatient substance abuse program, and therapy.
Mother regularly visited L.U. and was appropriate, nurturing, attentive, and loving
towards the child. She fed L.U. and changed her diaper.
The contested jurisdictional/dispositional hearing was held on March 2, 2021.
Mother was present telephonically, and Father was present in court. The court found that
ICWA did not apply and that L.U. was not an Indian child. The court found true the
allegations in the petition, declared L.U. a dependent of the court, provided Mother with 5 reunification services and denied services to Father.
Due to Mother’s compliance with her case plan, which included a substance abuse
program, parenting classes, and individual counseling, on June 22, 2021, then eight-
month-old L.U. was returned to Mother’s care on family maintenance services. Mother’s
home was clean and free of safety threats and hazards. She had provisions for L.U., such
as organic food, age-appropriate toys, diapers, and clothes, and kept a daily schedule and
journal. Mother was not working and stated that she was providing for herself and L.U.
through her savings. She also asserted that she was a yoga instructor and owned a
catering business. She denied any medical or mental concerns and claimed that she was
“spiritually married” to Father. The social worker expressed some concern with L.U.’s
5 Mother subsequently appealed, but later withdrew the appeal.
8
development and wanted to rule out Fetal Alcohol Syndrome and recommended
additional family maintenance services.
On July 22, 2021, Mother and Father both denied Native American ancestry.
Mother was present at the August 19, 2021, six-month review hearing and requested the
case be set for a contested hearing.
On September 1, 2021, Mother informed the social worker that she thought the
case would be closed, so she canceled her breathalyzer testing and discontinued calling
the substance abuse hotline. As such, she failed to test in August 2021.
The contested six-month review hearing was held on September 13, 2021. At that
time, Mother withdrew her request for a contested hearing. The court found Mother’s
progress was substantial and ordered additional family maintenance services, including
80 hours of alcohol testing. The court also found that ICWA did not apply, a sufficient
inquiry had been made, and there was no new information to indicate that ICWA may
now apply.
On November 29, 2021, Mother and Father indicated that they had no Native
American ancestry.
DPSS recommended the dependency be terminated with juvenile court custody
orders. L.U., who was then one year old, was bonded with Mother. Mother supervised
and cared for L.U., and L.U. looks for her Mother. L.U. had been meeting developmental
milestones and was thriving in Mother’s care. Mother had completed her case plan
services. She completed an inpatient substance abuse program, aftercare, and mental
9
health services. However, Mother had “many ‘no shows’” for random substance abuse
testing.
By December 2021, it appeared that Mother had relapsed. On December 9, 2021,
Mother invited the former foster mother over to her residence for breakfast. The foster
mother believed Mother was intoxicated and exhibited slurred speech and had trouble
standing. An officer responded to Mother’s home and confirmed she was heavily
intoxicated, with slurred speech, slow movements, and she smelled like alcohol. The
officer was “‘1000 [percent] sure [Mother] was drunk.’” However, because Mother was
able to care for L.U., the officer did not arrest Mother.
Following an immediate response referral with allegations of general neglect, four
hours later the social worker arrived at the home and found Mother to be coherent and
able to engage in a conversation with the worker. The social worker did not observe any
alcohol in the home. Mother denied the allegation she consumed alcohol and reported
she was suffering from a medical condition related to menopause and that her medication
caused her to have slurred speech and stumble. The maternal grandfather reported that
Mother was falling asleep during a Facetime call on December 10, 2021. L.U. was
detained pursuant to a protective custody warrant.
10
On December 14, 2021, DPSS filed a section 387 petition alleging the previous
disposition of placement with Mother was not effective in protecting L.U. Specifically,
the petition alleged Mother failed to benefit from services because she continued to abuse
alcohol while caring for L.U. The social worker recommended L.U. be removed from
Mother’s care.
The following day, on December 15, 2021, the juvenile court formally detained
L.U. from Mother and recalled the protective custody warrant. L.U. was placed in a
foster home. Mother was present at the detention hearing on the supplemental petition
and the juvenile court did not inquire of Mother whether she had Native American
ancestry. Mother was provided with supervised visitation twice a week for a minimum of
one hour. The court found that a sufficient ICWA inquiry had been conducted and that
ICWA did not apply.
On December 23, 2021, Mother and Father indicated that they did not have any
Native American ancestry. As to the allegations in the section 387 petition relating to her
relapse, Mother reported experiencing excessive vaginal bleeding that began on
December 5, 2021, and lasted six days. On December 9, 2021, Mother informed the
social worker that she was weak and disoriented due to her medication. Mother denied
alcohol consumption. According to the reporting party, Mother was consuming whiskey
and claimed that her dependency case was closed. Mother did not test for substances on
December 10, 2021. In addition, Mother was not allowed at one of L.U.’s medical
appointments due to her threatening behavior. Mother had also threatened the resource
11
parents and the foster family agency and acted erratically during visits. Mother, however,
was appropriate during visitation once she modified her behavior and had started an
intensive outpatient substance abuse program.
At a hearing on January 5, 2022, the juvenile court ordered DPSS to conduct at
least three 80-hour random alcohol tests of Mother. Mother missed her random drug test
on December 27, 2021, and tested negative on January13, 2022, but her specimen was
diluted. She tested negative on January 18, 2022. Mother attempted to test on January
21, 2022, but the clinic was closed.
The jurisdictional hearing on the section 387 petition was held on February 3,
2022. The court found true the allegations in the section 387 petition. A contested
dispositional hearing was set.
Mother did not get along with the foster parents and sent text messages they did
not approve of. Mother accused the foster parents of causing injuries to L.U. and failing
to supervise her. Mother tested negative for substances at the end of January 2022 and
beginning of February 2022. She completed a psychological evaluation. The examiner
was “unconvinced” that Mother was drinking alcohol on December 9, 2021, and opined
Mother would most likely benefit from services.
L.U. was assessed at 14 months and was found to be behind in fine motor skills
and developmentally delayed. On April 25, 2022, L.U. was examined by a genetics
specialist. The doctor indicated L.U. had facial features of Fetal Alcohol Syndrome.
Mother and both grandmothers blamed the foster parents for L.U.’s delays.
12
On May 12, 2022, the juvenile court found that reasonable efforts were made to
prevent the need for removal of L.U. from the home and adjudged her a dependent of the
court. L.U. was formally removed from Mother’s care, and Mother was provided with
reunification services.
Mother participated in general counseling. She also submitted three negative tests
in May 2022, and one in June 2022. Mother regularly visited L.U. twice per week, in her
home, for two hours, supervised by DPSS. L.U. was excited to visit with Mother, and
Mother was attentive, affectionate, and comforting to L.U. Mother provided healthy
snacks, changed L.U.’s diaper, followed L.U. around, and kept her safe. Mother also
played learning toys with L.U. and L.U. laughed and enjoyed interacting with Mother. In
addition, Mother read L.U. books and promoted her speech and well-being. L.U. was
observed to be bonded with Mother and did not want to leave at the end of visits. By
June 2022, Mother’s visits with L.U. progressed to unsupervised. Mother had
demonstrated sobriety during the reporting period, and DPSS believed L.U. would be
safe in Mother’s care.
L.U. was on an extended visit with Mother while in the presence of the maternal
grandmother in June 2022. Mother agreed to attend an appointment for L.U. via Zoom
on June 22, 2022. However, Mother did not attend the appointment with L.U., had
trouble signing on to the Zoom meeting, and appeared to be possibly intoxicated in
L.U.’s presence. Due to this concern, law enforcement was called that evening. DPSS
13
learned that Mother was arrested for public intoxication on June 22, 2022. Mother was
uncooperative with law enforcement, and a bottle of wine was found in the home.
The maternal grandmother informed the social worker that she had checked into a
separate hotel room with L.U. to keep her safe, and that Mother was currently at home
“‘sleeping it off.’” When Mother learned that L.U. had been returned to her foster
parents and the extended visit had ended, Mother was distraught and stated that she was
going to kill herself. The social worker contacted law enforcement to conduct a wellness
check on Mother. Law enforcement found Mother asleep on the bed with a “‘gash’” on
her head where it looked like she had fallen. Mother denied wanting to kill herself.
Mother was arrested again on June 30, 2022, for public intoxication in Indio. DPSS also
learned that Mother had been arrested for public intoxication on April 13, 2022, at a
restaurant in Rancho Mirage.
On July 5, 2022, the juvenile court ordered Mother’s visits to be supervised and
instructed DPSS to file a section 388 petition. On July 8, 2022, DPSS filed a section 388
petition to terminate reunification services to Mother and a hearing was set.
Mother was referred to a higher level of care and prescribed medication to block
her ability to drink alcohol. Mother submitted two negative tests in July 2022.
The 18-month review hearing was held on August 15, 2022. The juvenile court
found ICWA did not apply, a sufficient inquiry had been made, and that there was no
new information to indicate ICWA may now apply. The court terminated Mother’s
reunification services and reduced Mother’s visits to once a month. As such, the court
14
granted DPSS’s section 388 petition and set the matter for a section 366.26 hearing to
determine a more permanent plan for L.U.
On September 27, 2022, Mother and Father denied having any Native American
ancestry. On November 10, 2022, the juvenile court found ICWA did not apply, a
sufficient inquiry had been made, and there was no new information to indicate ICWA
may now apply.
On November 8, 2022, Mother filed a section 388 petition seeking reunification
services or family maintenance services. Mother claimed that she had completed a 30-
day program, which included parenting, self-esteem groups, women’s issue groups, and
addressed healthy relationships. She asserted that she had completed a 30-day program at
Hacienda Valdez, was in sober living, seeing a psychiatrist, and taking medication to
keep her from drinking. She noted that she had seven negative tests and was attending
Unless and until our Supreme Court instructs otherwise, we will continue to follow our
opinion in Benjamin M., supra, 70 Cal.App.5th 735. There we adopted the view that a
reviewing court must conditionally reverse a no-ICWA finding if the record demonstrates
that the agency did not fulfill its initial duty of inquiry by asking readily available persons
who might have helpful information likely to bear meaningfully upon whether a child is
an Indian child. (Benjamin M., supra, at p. 744; see Josiah T., supra, 71 Cal.App.5th at
p. 408 [“the court may not find that ICWA does not apply when the absence of evidence
that a child is an Indian child results from a [department’s] inquiry that is not proper,
adequate, or demonstrative of due diligence”].)
36
Here, the maternal grandparents and the paternal grandmother were involved in
the proceedings, known to DPSS and readily available. In addition, a maternal aunt was
present in court on July 5, 2022, with the maternal grandparents. It is unclear whether the
paternal grandfather and the biological paternal grandmother were readily available to
DPSS. However, DPSS could have inquired of the paternal grandmother as to their
information. DPSS concedes that the maternal grandparents and the paternal
grandmother were readily available, but contends Mother has not shown the information
these relatives could have provided would bear meaningfully on the issue of whether
L.U. is an Indian child. That does not mean, however, that it may choose not to interview
readily available extended family members and others who have an interest in the child
who may have potentially meaningful information on the theory there is no reason to
believe that those persons would not yield any new information. (Benjamin M., supra, 70
Cal.App.5th at p. 744.)
In Benjamin M., we noted there that the Legislature placed the burden of making
inquiry provisions and searching for evidence of Indian ancestry on the child services
agencies, not the parent. (Benjamin M., supra, 70 Cal.App.5th at pp. 743-745.)
Moreover, ICWA’s purpose is not limited to protecting the interests of Indian children
and their families but encompasses as well the separate and distinct rights of the tribes to
intervene in (or exercise jurisdiction over) a custody proceeding involving an Indian
child. (25 U.S.C. §§ 1901, 1902, 1911; In re Isaiah W., supra, 1 Cal.5th at pp. 7, 9;
Benjamin M., supra, at pp. 743-745.)
37
Naturally, a tribe cannot exercise its rights to intervene in a child custody
proceeding if it does not have notice of it. And, for proper notice to be given, there must
be an adequate investigation to determine whether the children who are the subject of the
proceeding have or may have Indian ancestry. Compliance with the ongoing and
affirmative duty of initial inquiry set forth in section 224.2, subdivisions (a) and (b), and
California Rules of Court, rule 5.481 is crucial to that investigation. As we explained in
Benjamin M., though we cannot know what extended family members will say when
interviewed by the department about a child’s ancestry, their answers are likely to bear
meaningfully on the question whether the child comes within ICWA. (Benjamin M.,
supra, 70 Cal.App.5th at pp. 744-745.) We cannot simply assume from the statements
made by the parents that they are not aware of (or are simply denying) Native American
ancestry that other extended family members or others who have an interest in the child
will not have any useful information bearing on the subject. (Id. at pp. 742-743 [until the
child services agency complies with its duty to gather information by conducting an
initial inquiry, we cannot know what information an initial inquiry, properly conducted,
might reveal].)
As stated in In re Rylei, supra, 81 Cal.App.5th 309, when, as here, “the errors
were the Department’s nearly complete failure to make the additional inquiries of
extended family members . . . required by section 224.2, subdivision (b) (and, in this
case, the inquiries under section 224.2, subdivision (e), as well),” the “missing
information was, at the very least, likely to be meaningful in determining whether the
38
children involved were Indian children—whether the information ultimately showed they
were or established they were not.” (In re Rylei, supra, at p. 324.) “Because we do not
know what we do not know, nothing more in the way of prejudice need be shown.”
(Ibid.) Proper and adequate inquiry—including under section 224.2, subdivision (c), and
further inquiry under section 224.2, subdivision (e)—is required on remand.
IV.
DISPOSITION
The orders terminating parental rights are conditionally affirmed. The matter is
remanded to the juvenile court for full compliance with the inquiry and, if applicable, the
notice provisions of ICWA and related California law and for further proceedings not
inconsistent with this opinion. If the juvenile court determines that ICWA does not
apply, then the court shall reinstate the orders. If the court determines that ICWA does
apply, then it shall proceed in conformity with ICWA and related California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.
39
AI Brief
AI-generated · verify before citing
Holding. The court held that the mother failed to establish the beneficial parental relationship exception to the termination of parental rights and that the juvenile court committed prejudicial error by failing to comply with the inquiry provisions of the Indian Child Welfare Act (ICWA).
Issues
Did the juvenile court err in terminating parental rights without applying the beneficial parental relationship exception?
Did the juvenile court and the Department of Public Social Services fail to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA)?
Disposition. Conditionally affirmed and remanded with directions.
Quotations verified verbatim against the opinion
“Mother fails to establish the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i) applied in the present matter.”
“We agree, however, that there was prejudicial error under ICWA and related California law and remand for compliance with the inquiry provisions of those laws.”