L. A. Cnty. Dep't of Children & Family Servs. v. Liah B. (In re M.B.)

80 Cal.App.5th 617

295 Cal.Rptr.3d 523

IN RE M.B., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Liah B., Defendant and Appellant.

B312789

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

Filed June 13, 2022

As Modified June 29, 2022

Elizabeth C. Alexander, Jamul, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Jane E. Kwon, Principal Deputy County Counsel, for Plaintiff and Respondent.

PERLUSS, P. J.

Liah B., the mother of six-year-old M.B., appeals the August 31, 2021 order terminating her parental rights, contending the Los Angeles County Department of Children and Family Services failed to adequately investigate her claim of Indian ancestry through interviews with maternal relatives and the notices sent to the Blackfeet Tribe failed to include the birthdates of M.B.’s maternal grandfather and great-grandfather as required by federal regulations implementing the Indian Child Welfare Act of 1978 (ICWA) ( 25 U.S.C. § 1901 et seq. ) and related California law.¹

Without challenging Liah's claims of error, the Department argues that Liah's appeal of the adequacy of its investigation has been mooted by further interviews with maternal relatives and that any omission of required information from the ICWA-030 notices sent to the Blackfeet Tribe was harmless because its post-appeal investigation established ICWA notices were not required. In support of its mootness/harmless error arguments the Department has moved for "judicial notice of post-judgment evidence"—a last minute information report filed in the juvenile court on April 4, 2022.

As did our colleagues in Division Three of the Fourth Appellate District in In re K.M. (2015) 242 Cal.App.4th 450, 195 Cal.Rptr.3d 126 ( K.M. ), which involved a similar effort by the child protective services agency to remedy its deficient ICWA investigation while an order terminating parental rights was on appeal, we reject the argument that evidence of postjudgment ICWA inquiries moots the issue. We conditionally affirm the order terminating Liah's parental rights and remand the matter for full compliance with the inquiry and notice provisions of ICWA and related California law.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Proceedings

The events leading to the Department's filing of a dependency petition, M.B.’s removal from Liah after the juvenile court sustained a single count pursuant to Welfare and Institutions Code section 300, subdivision (b)(1),² concerning Liah's substance abuse, and the dependency proceedings through the juvenile court's November 7, 2019 order summarily denying Liah's petition for modification of its March 6, 2019 order terminating reunification services are detailed in our opinion affirming the November 7, 2019 order. ( In re M.B. (Mar. 15, 2021, B302837), 2021 WL 960365 [nonpub. opn.].)

The section 366.26 selection and implementation hearing, originally scheduled for July 3, 2019, was ultimately held on August 31, 2021. At the hearing the juvenile court found by clear and convincing evidence M.B. was adoptable and found no exception to termination of parental rights applied, specifically rejecting Liah's argument based on the parent-child-relationship exception. (§ 366.26, subd. (c)(1)(B)(i).)³ The court terminated Liah's parental rights and transferred care, custody and control of M.B. to the Department for adoptive planning and placement. Shenika B., a maternal great-aunt living in New Jersey, was identified by the Department as M.B.’s prospective adoptive parent.⁴

2. The ICWA Investigation and Notice

In the Indian Child Inquiry Attachment (ICWA-010(A)) filed June 5, 2018 with the original dependency petition, the Department's social worker checked the box stating, "The child may have Indian ancestry," and explained, "Mother stated child has Indian ancestry." The detention report filed on the same date similarly stated, "The Indian Child Welfare Act does or may apply," and elaborated, "On 6/1/2018, mother, Liah B[.] stated that American Indian heritage does apply as to the paternal side of father, Terrell W[.]," identified by Liah as M.B.’s biological father.⁵

On June 6, 2018, in connection with the detention hearing, in her Parental Notification of Indian Status (ICWA-020) Liah checked the box indicating she may have Indian ancestry, writing "Blackfoot (MGGF Lonnie B[.])." Asked by the court at the hearing about M.B.’s Indian ancestry, Liah responded, "[Terrell] did tell me he was Indian. I'm not exactly sure what tribe, but I know on my dad's side, my grandfather is definitely Indian." Liah explained she was estranged from her father's side of the family and did not have contact information for Lonnie B., Sr., M.B.’s great-grandfather, and, while she knew he was born in Camden, New Jersey, she did not know his date of birth. She told the court she would try to obtain that information. The court found there was no reason to know ICWA applied to Terrell but ordered the Department to investigate Liah's Indian ancestry and provide a supplemental report regarding the investigation to the court that included "the details of who was interviewed, dates and places of birth of the relatives as far back as can be ascertained." In addition, the court ordered the Department to provide notice to the appropriate tribes and to the Bureau of Indian Affairs.

In its jurisdiction/disposition report filed July 5, 2018, the Department summarized its social worker's interview with Liah concerning her possible Indian ancestry. Liah provided the names and dates and places of birth, if known, of various maternal relatives. As to Lonnie B., Sr., Liah again said he was born in Camden, and Liah did not know his date of birth; she did not know if he was still living. Liah provided the same information as to Lonnie B., Jr., M.B.’s maternal grandfather—he was born in Camden on an unknown date, and she did not know if he was still alive. The Department reported it had recently sent ICWA notices to Blackfeet tribal bands, the Bureau of Indian Affairs and the Secretary of the Interior. The report does not indicate any further investigation had been conducted by the Department.

At the jurisdiction hearing on July 19, 2018 the Department reported it had sent ICWA notices and suggested the court set a progress hearing to evaluate any responses that might be received. The court scheduled a nonappearance progress hearing for September 7, 2018.

A last minute information for the court, filed September 5, 2018, the Department reported it had no confirmation its notices to the Bureau of Indian Affairs and the Secretary of the Interior had been received and no response to the notices. A representative of the Blackfeet Tribe of Montana confirmed the Department had used the correct mailing address, but the Department had been unable to reach the Tribe's ICWA division. The court granted the Department's request to continue the progress hearing to December 6, 2018.

A December 4, 2018 last minute information explained the Department had resubmitted a notice to the Blackfeet Tribe of Montana but its efforts, via voicemail, to obtain a letter of ICWA eligibility/noneligibility had been unsuccessful. On December 6, 2018 the juvenile court, after noting 60 days had elapsed since notices had been sent and no responses had been received, found it had no reason to know ICWA applied to the case.

In her appeal from the juvenile court's November 7, 2019 order denying her section 388 petition, Liah argued the Department and the juvenile court had not complied with their duties of inquiry and notice under ICWA before the court made its no-ICWA finding in December 2018. On October 29, 2020, while that appeal was pending, the juvenile court directed the Department to conduct further inquiry regarding Liah's possible Blackfeet ancestry and to send all appropriate ICWA notices prior to the next hearing, which was then scheduled for January 4, 2021. Liah conceded, and we agreed, the order for additional investigation mooted the ICWA issue at that time. (See In re M.B., supra , B302837, fn. 1.)

In a supplemental report filed December 29, 2020 the Department advised the court it had interviewed Lonnie B., Sr., who denied any Indian ancestry, including with the Blackfeet Tribe, and said Lonnie B., Jr. was not a registered member of the Blackfeet Tribe. He declined to provide the name of Lonnie B., Jr.’s mother (M.B.’s maternal great-grandmother).⁶ Lonnie B., Sr. said he had no contact with Lorrie H., M.B.’s maternal grandmother. A maternal aunt, Tiarra H., who had received a Department contact letter, responded by email that she had no knowledge of any Indian ancestry in the family. The Department's efforts to interview Lonnie B., Jr., whose whereabouts were unknown, and Lorrie H. were unsuccessful.

The Department sent new notices to the Blackfeet Tribe of Montana, the Bureau of Indian Affairs and the Secretary of the Interior. The notices did not include birthdates for Lonnie B., Sr. or Lonnie B., Jr., which Lonnie B., Sr. had declined to provide. In a letter dated January 28, 2021 the Blackfeet Tribe of Montana responded to the notice, stating M.B. was not listed on the tribal rolls and was not eligible for enrollment in the tribe. After receiving that letter, the court at a May 4, 2021 hearing found it had no reason to know M.B. was an Indian child as defined under ICWA, a finding repeated in the Department's report for the selection and implementation hearing that was finally conducted on August 31, 2021.

3. The Department's Post-appeal Remedial Efforts and Motion for Judicial Notice

In Liah's opening brief on appeal, filed February 16, 2022, she explained the Department had failed to seek critical information (including Lonnie B., Sr.’s and Lonnie B., Jr.’s dates of birth) from accessible maternal relatives,...