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DCFS Ignored Statutory Duty to Determine If Dependent Child Had Indian Ancestry—C.A.
Justice Wiley Says Inquiry Was Not Made Despite Explicit Instruction to Do So by Commissioner
By a MetNews Staff Writer
The county’s Department of Children and Family Services botched its investigation in a dependency case by failing to quiz family members as to whether the child who was the subject of the proceedings has Indian ancestry, the Court of Appeal for this district has declared, conditionally reversing an order terminating the parental rights of a mother who is a user of narcotics and has mental problems.
“State law requires the Department initially to ask extended family members whether a child is or may be an Indian child,” Justice John Shepard Wiley Jr. of Div. Eight said in an unpublished opinion, filed Wednesday, citing Welfare & Institutions Code §224.2(b). “The Department spoke to several maternal relatives but failed to make this initial inquiry.”
The mother had checked a box on a Parental Notification of Indian Status form that says, “I may have Indian ancestry,” writing in: “I don’t know the tribe.” That day, taking note of the possible Native American ancestry, Los Angeles Superior Court Commissioner Kristen Byrdsong directed the DCFS to interview the mother and determine if the federal Indian Child Welfare Act applies, requiring tribal notification.
Mother Not Questioned
The mother had numerous conversations with DCFS social workers by phone and in person, and was in communication by email.
“Records of these communications show no sign the Department asked the mother about her potential Indian ancestry,” Wiley recited.
The department interviewed the maternal grandmother and others on the mother’s side of the family, but did not probe the matter of the ancestry of the child, denominated, “P.F.”—yet, an Aug. 12, 2020, status report proclaims:
“The Indian Child Welfare Act does not apply.”
The DCFS did attempt to inquire of the maternal grandmother about the matter of ancestry subsequently, but did not succeed in making contact.
Based on the department’s representations at a April 29, 2021 permanency planning hearing, Byrdsong found the act inapplicable and terminated the mother’s parental rights.
Lack of ‘Leads’
Wiley wrote:
“The Department complains it lacked leads, but it did not ask any maternal relatives whether P.F. was an Indian child. The Department’s appellate brief quotes the statute’s requirement to ask ‘extended family members’…, without explaining how this could exclude the maternal relatives here. The duty of initial inquiry is triggered regardless of leads.
“The Department contends the paucity of information meant there was no reason to believe P.F. was an Indian child, but this misses the crucial step of initial inquiry of extended family members.”
The opinion directs that such an inquiry be undertaken. The dispositional paragraph reads:
“The order terminating the mothers parental rights of P.F. is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry provisions of Welfare and Institutions Code section 224.2 consistent with this opinion. The juvenile court shall order that within 30 days of the remittitur, the Department perform its investigation of P.F.’s potential Indian ancestry. If, after completing the initial inquiry, neither the Department nor the court has reason to believe or to know P.F. is an Indian child, the order terminating parental rights shall be reinstated. If the court determines notice is required, it must proceed accordingly.”
The case is In re P.F., B312294.
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