Opinion
B317269
10-18-2022
In re H.H. et al., Persons Coming Under the Juvenile Court Law. v. A.H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. Nos. 21CCJP04580D, 21CCJP04580E D. Brett Bianco, Judge.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
EGERTON, J.
The juvenile court took jurisdiction over H.H. and A.O.H. and removed them from their parents' custody after finding their father failed to protect them from their mother's methamphetamine use. On appeal, father argues there is insufficient evidence supporting the court's removal order. He also contends the Los Angeles County Department of Children and Family Services (Department) failed to comply with its duty of initial inquiry under state law (Welf. & Inst. Code, § 224 et seq.) implementing the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We affirm.
Undesignated statutory references are to the Welfare and Institutions Code. Because ICWA uses the term "Indian," we do the same for consistency. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
FACTUAL AND PROCEDURAL BACKGROUND
Father A.H. and mother K.A. have two children together, H.H. (born in 2020) and A.O.H. (born in 2021). Mother also has three children from other relationships: L.A. (born in 2010), H.P. (born in 2014), and A.P. (born in 2017).
1. Initial report and detention
In September 2021, the Department received a report that mother had tested positive for methamphetamine and marijuana after giving birth to A.O.H. According to the reporter, mother denied using drugs and blamed the positive result on Benadryl. Mother also said she had not received prenatal care because she had not realized she was pregnant until July 2021. Mother claimed she tried to get care from a doctor, but the doctor was busy.
A Department social worker interviewed mother the day after receiving the report. Mother admitted smoking marijuana before she knew she was pregnant with A.O.H., but she denied using any other drugs. Hospital records, however, show A.O.H. tested positive for amphetamines at birth.
The social worker subsequently met with mother and father at their home. Paternal grandmother was also at the house. Mother told the social worker she had not taken her children to the dentist or doctor because she did not have medical insurance. Mother then became irate when the social worker started discussing the referral allegations, and father had to calm and redirect her.
Father admitted to the social worker that he uses marijuana, but he denied using any other substances. Father said he did not believe mother was using drugs, and he claimed she was able to care for the children while he was at work.
Mother, father, and paternal grandmother signed a seven-day safety plan under which mother agreed not to be alone with the children or breastfeed A.O.H. Mother and father were drug tested the next day, and they both tested positive for marijuana.
The social worker also interviewed maternal grandmother, who reported that mother had been using methamphetamine for the past three years.
2. The petition
The Department filed a petition asserting H.H. and A.O.H. are persons described by section 300, subdivision (b). The petition alleged that A.O.H. was born suffering from a detrimental condition (a positive toxicology screen for methamphetamine and amphetamine), mother has a history of substance abuse and is a current abuser of amphetamine, methamphetamine, and marijuana, and father failed to protect the children by allowing mother to have unlimited access to them, despite knowing about her substance abuse. The petition further alleged that father has a history of substance abuse and is a current abuser of marijuana, which endangers the children's physical health and safety.
The Department attached to the petition ICWA Inquiry forms indicating a social worker questioned mother and father about the children's Indian status. The form does not state whether the inquiry gave the social worker reason to believe the children are Indian children. However, the social worker noted on the Detention Report-which he signed the same day- that ICWA does not apply.
The court conducted a detention hearing on October 5, 2021. Prior to the hearing, mother and father each filed a Judicial Council form ICWA-020, Parental Notification of Indian Status (ICWA-020 form) indicating they had no reason to know H.H. or A.O.H. are Indian children. Both forms are unsigned.
Mother and father appeared telephonically at the detention hearing. The court started the hearing by noting that it had received paperwork from the parents. The court then said, "Both mother and . . . father indicate that they have no Native American Indian ancestry. The court will find it has no reason to know that these are Indian children."
The court detained both children, and the Department placed them with maternal grandparents. At the time, maternal grandparents were living with two maternal aunts.
3. Jurisdiction and disposition
In connection with the Jurisdiction and Disposition Report, father told a Department investigator that mother is a "good mom" and the children were not in any danger. He said he did not believe mother uses drugs, and he speculated that her positive test result may have been caused by Benadryl or medication she received for a C-Section. Father said mother uses marijuana recreationally, and he uses marijuana on weekends to wind down. The investigator asked father "for his perception of what is needed to overcome the circumstances that brought his family to the attention of the Court." Father responded," 'That's hard to say. I don't know.' "
One of mother's other children, L.A., told the investigator that she had seen father "using 'weed'" at the dining table and on the porch. According to L.A., father used the drug around once or twice a week.
The investigator asked mother and father about their childhoods. Mother said her biological parents (maternal grandparents) raised her and her three siblings. Father said he was removed from paternal grandmother's custody when he was around five years old. He spent time in foster care and paternal great-grandmother's home before being reunited with paternal grandmother. Father had met paternal grandfather only a handful of times.
Mother and father enrolled in 10-week parenting programs, which started in October 2021. Father failed to appear at two scheduled drug tests in November 2021. Mother failed to appear for seven scheduled drug tests between October and November 2021.
The court held the jurisdiction hearing on November 16, 2021. It sustained the allegations related to mother's drug use- including the allegation that father failed to protect the children -and dismissed the allegation related to father's drug use.
The court held the disposition hearing three weeks later, on December 7, 2021. Mother, father, and maternal grandmother appeared at the hearing. At the start of the hearing, the court "reiterate[d] its prior finding [that it] has no reason to know these are Indian children."
The Department and the minors' counsel urged the court to remove the children from their parents' custody. Father requested the court not remove the children from either parent, or alternatively, to place the children with him. Father pointed out that he had enrolled in a 10-week parenting program, and the court had dismissed the count in the petition related to his marijuana use.
The court declared the children dependents and removed them from their parents' custody based on the "unaddressed substance abuse issues and the failure to protect in that regard." As to father, the court ordered family reunification services, drug testing, and monitored visitation.
Father timely appealed.
DISCUSSION
1. Substantial evidence supports the court's removal order
Father argues there is insufficient evidence supporting the court's order removing the children from his custody. He contends removal was improper in light of the evidence that he was employed and housed, cooperating with the Department, participating in services, and able to articulate a support system. He also points out that the children had no ongoing health issues, and the juvenile court dismissed the count related to his marijuana use.
To remove children from parental custody, the juvenile court must have clear and convincing evidence that there is or would be a substantial danger to the children's physical health, safety, protection, or physical or emotional well-being if returned home, and there are no reasonable means to protect the children's physical health without removing them from the home. (§ 361, subd. (c)(1).) Generally, a jurisdictional finding alone is not prima facie evidence the child cannot remain in the parent's physical custody. (In re E.E. (2020) 49 Cal.App.5th 195, 217-218.) In determining whether to remove the child, the court may consider the parent's past conduct and current circumstances, as well as the parent's response to the conditions that caused the juvenile court to intervene. (In re D.B. (2018) 26 Cal.App.5th 320, 332.) The parent need not be dangerous, and the child need not have suffered actual harm, before removal is appropriate. (Id. at p. 328.)
When reviewing findings that must be proved by clear and convincing evidence, "the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996; see also In re Jasmon O. (1994) 8 Cal.4th 398, 422-423.) The appellant has the burden of showing there is insufficient evidence to support the juvenile court's findings or orders. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Here, the evidence shows mother has a long history of substance abuse that remained unresolved as of the disposition hearing. According to maternal grandmother, mother had been using methamphetamine for the past three years. The fact that A.O.H. tested positive for the drug at birth shows mother continued to use the drug while pregnant with him. Further, it can be inferred from mother's repeated failure to appear for drug tests that she continued abusing methamphetamine throughout the dependency proceedings. Given the children's young ages (both children were under two years old as of the disposition hearing), the juvenile court reasonably could have concluded mother's unresolved substance abuse issues posed a substantial risk to their physical health, safety, and well-being. (See In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 [a finding of substance abuse is prima facie evidence of a parent's inability to provide regular care to children six years old and younger].)
There is also substantial evidence from which the juvenile court could have concluded returning the children to father's custody would have exposed them to the risks posed by mother's drug use. Despite the overwhelming evidence of mother's prolonged and unresolved methamphetamine abuse, father repeatedly denied she has a problem, refused to acknowledge the danger her substance abuse poses to the children, and insisted mother was able to care for the children while he was at work. Father also was unable to identify any steps he could take to overcome the circumstances that led to dependency. In light of father's failure to even acknowledge mother's substance abuse and the risks it poses to his children, the juvenile court reasonably could have inferred that, if it returned the children to his custody, father would allow mother to have unlimited access to them. From this, the court reasonably could have concluded there would be a substantial danger to the children's physical health, safety, protection, or physical or emotional well-being if returned to father's custody. That the record might also support a contrary finding does not require reversal. (See Conservatorship of O.B., supra, 9 Cal.5th at pp. 995-996.)
Father's reliance on In re Jasmine G. (2000) 82 Cal.App.4th 282 is misplaced. In that case, the juvenile court removed a child from her parents' custody after finding the parents had used corporal punishment on her. The Court of Appeal reversed, explaining removal was unnecessary because the parents had foresworn corporal punishment, expressed remorse, attended parenting classes, and undergone therapy to improve their parenting skills. (Id. at pp. 288-289, 293.) Here, in contrast, neither mother nor father acknowledged the problems that led to dependency or expressed any remorse for endangering the children. Accordingly, the risk of harm to the children if returned to their custody is far greater than the risk to the child in Jasmine G. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge."]; In re D.B. (2020) 48 Cal.App.5th 613, 622 ["Realizing conduct needs improvement is a first step to improvement."].)
2. The Department's failure to comply with its ICWA inquiry duty was harmless
Father urges us to remand the case because the Department failed to comply with its duty of initial inquiry under state law implementing ICWA. He contends the Department erred by failing to ask extended family members- specifically paternal grandmother, maternal grandparents, and two maternal aunts-whether the children are, or may be, Indian children.
Congress enacted ICWA" 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.'" (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8; see 25 U.S.C. § 1902.) Both ICWA and state law define an" 'Indian child'" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4); § 224.1, subd. (a) [adopting federal definition].)
"Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case. These requirements are sometimes collectively referred to as the duty of initial inquiry." (Benjamin M., supra, 70 Cal.App.5th at p. 741.)
As of January 1, 2019, whenever the Department takes a child into its temporary custody, California law requires it to ask "the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child." (§ 224.2, subd. (b).) Extended family members include adults who are the child's "grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2); § 224.1, subd. (c) [adopting federal definition].)
Here, the Department did not question the children's extended family members about the minors' Indian status, despite many opportunities to do so. The children's maternal grandparents, maternal aunts, and paternal grandmother were known and available to the Department throughout the dependency case. The Department met with paternal grandmother at least once, and it placed the children with maternal grandparents, who lived with maternal aunts. The record does not show that the Department ever asked these relatives about the children's Indian status, as required under section 224.2. (§ 224.2, subd. (b).) Accordingly, the Department did not fulfill its initial and continuing duty of inquiry under section 224.2, subdivision (b). (See In re A.C. (2022) 75 Cal.App.5th 1009, 1015 [the Department did not comply with its" 'obligation to make a meaningful effort'" to ask extended family members-who "were readily available to consult"-about child's possible Indian ancestry]; In re Darian R. (2022) 75 Cal.App.5th 502, 505, 508-509 [the Department erred in failing to ask aunt and grandfather, with whom it had contact, about children's potential Indian ancestry]; In re H.V. (2022) 75 Cal.App.5th 433, 436, 438 [the Department failed to discharge its "first-step inquiry duty" when it did not ask extended family members-whom it had interviewed-about child's possible Indian ancestry]; see also In re M.M. (2022) 81 Cal.App.5th 61, 71 (M.M.) ["In the absence of any evidence the Department complied with its section 224.2, subdivision (b) duty to inquire of extended family members, the juvenile court's finding that ICWA does not apply is error."].)
Nevertheless, we agree with the Department that remand is not required because any error was harmless. (See Cal. Const., art. VI, § 13 [error must result in "miscarriage of justice" to be set aside].)
Father does not meaningfully address the prejudice issue.
The court in In re Dezi C. (2022) 79 Cal.App.5th 769 (Dezi C.) recently summarized the" 'continuum'" of rules developed by California courts for "assessing whether a defective initial inquiry is harmless." (Id. at p. 777.) At one end of the continuum, the Department's defective initial inquiry requires reversal in essentially every case, even if it is unlikely further inquiry might lead to a different ICWA finding on remand. (Ibid.) At the other end, the defect is treated as harmless unless the parent makes a proffer on appeal as to why further inquiry would lead to a different ICWA finding. (Ibid.) Somewhere in between the two extremes is the rule stated in Benjamin M., supra, 70 Cal.App.5th at p. 744, that a defective initial inquiry requires reversal if" 'readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child'" existed. (See Dezi C., at p. 778.)
Unsatisfied with all of these rules, the court in Dezi C. announced a fourth standard: the failure to conduct a proper initial ICWA inquiry is harmless "unless the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding." (Dezi C., supra, 79 Cal.App.5th at pp. 778-779.) The Dezi C. court explained that "a reviewing court would have 'reason to believe' further inquiry might lead to a different result if the record indicates that someone reported possible American Indian heritage and the agency never followed up on that information; if the record indicates that the agency never inquired into one of the two parents' heritage at all [citation]; or if the record indicates that one or both of the parents is adopted and hence their self-reporting of 'no heritage' may not be fully informed [citation]." (Id. at p. 779.)
We reject the extreme ends of the continuum. As the M.M. court recently explained while rejecting the automatic reversal rule, there are "serious costs if courts delay finalizing permanency for a child in every case where extended family was not questioned, on the remote chance those relatives might have information which is inconsistent with the parents' disclaimer of Indian ancestry." (M.M., supra, 81 Cal.App.5th at p. 71.) We also agree with the Dezi C. court that a rule requiring the parent to make a proffer on appeal "embraces finality at the expense of the tribe's interest in ascertaining accurate determinations of the Indian status of dependent children," and "does too little to incentivize agencies to conduct proper inquiries . . . ." (Dezi C., supra, 79 Cal.App.5th at p. 785; see Benjamin M., supra, 70 Cal.App.5th at pp. 743-744 [requiring a parent to make a proffer on appeal is inconsistent with the ICWA statutory scheme].) We need not decide between the remaining standards because, under either one, the Department's failures in this case were harmless.
On the record before us, we are confident that inquiry of the extended family members would have been futile. In their ICWA-020 forms, mother and father unequivocally denied having any reason to know H.H. and A.O.H. are Indian children. The court then addressed the issue at the detention hearing, noting that both parents "indicate[d] that they have no Native American Indian ancestry." Neither mother, father, nor their respective attorneys corrected the court or in any way suggested the information they provided was incomplete or inaccurate. They also failed to correct the court at the disposition hearing when it "reiterate[d]" its finding that it had "no reason to know these are Indian children."
Although neither parent signed the forms, father does not raise that as an issue on appeal. Nor does he claim any information in the forms is inaccurate.
Nothing in the record casts doubt on the veracity of the parents' representations or suggests extended family members could have provided the Department with additional meaningful information about the children's Indian status. Mother and father were raised by, and remained in contact with, their biological parents, from whom they presumably learned about their ancestry and any tribal membership; father offers no reason why maternal or paternal grandparents would have withheld that information from them. Nor does he suggest any reason why mother's siblings (maternal aunts) might possess information relevant to their niece's and nephew's Indian status that the children's own parents do not.
We acknowledge that father may lack information related to paternal grandfather given their limited contact. Father, however, does not argue that the Department was required to contact paternal grandfather. Nor does he argue that paternal grandmother, or any of the other extended family members, may have possessed information related to paternal grandfather that would be relevant to the ICWA inquiry.
It bears repeating that ICWA's definition of" 'Indian child'" is extremely narrow: an unmarried person under age eighteen who either (a) is "a member of an Indian tribe" or (b) "is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4); see also § 224.1, subds. (a), (b).) Tribal membership, moreover, typically requires an affirmative act by the enrollee or the enrollee's parents. (See U.S. Dept. of the Interior, Bureau of Indian Affairs, Indian Child Welfare Act Proceedings, 81 Fed.Reg. 38778-01, 38783; U.S. Dept. of the Interior, Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016) p. 10.) Given these requirements, the parents will generally be in the best position to know whether a minor is an Indian child. We have no reason to doubt that is true in this case.
On the record before us, it is neither "reasonably probable" that the Department's inquiry error "affected the correctness (that is, the outcome) of the juvenile court's ICWA finding" (Dezi C., supra, 79 Cal.App.5th at p. 781), nor is it likely further inquiry of the extended family members would have produced information that "would . . . have shed meaningful light" on the children's Indian status (Benjamin M., supra, 70 Cal.App.5th at p. 744). Accordingly, the Department's failure to inquire of extended family members was harmless under both the Dezi C. and Benjamin M. standards. (See M.M., supra, 81 Cal.App.5th at pp. 71-72 [holding the Department's failure to question extended family members about the child's Indian status was harmless under both standards where the parents unequivocally denied knowledge of any Indian ancestry].)
Although we are affirming the juvenile court's orders, we do not mean to suggest we are excusing the Department or the court from their affirmative and continuing duties of inquiry. (See § 224.2, subd. (a).) If the court receives new information providing reason to believe the children are Indian children, it must reverse its initial ICWA determination and order the Department to conduct further inquiry. (§ 224.2, subd. (i)(2).)
DISPOSITION
We affirm the juvenile court's orders.
I concur: ADAMS, J. [*]
LAVIN, Acting P. J., Concurring and Dissenting:
I agree that substantial evidence supports the juvenile court's removal orders. For the reasons set forth in my dissent in In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1015- 1025, I would, however, conditionally affirm the orders and remand for further proceedings.
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.