Opinion
B314799 B315001 B315951
10-31-2022
In re S.C., et al., Persons Coming Under the Juvenile Court Law. v. CRYSTAL M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 19CCJP01417 Craig S. Barnes and Jean M. Nelson, Judges. Affirmed.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Crystal M. (Mother) appeals from the juvenile court's orders (1) denying her Welfare &Institutions Code section 388 petitions seeking reunification services and (2) terminating her parental rights to her children, V.D., A.C., and S.C. Mother contends that the Los Angeles County Department of Children and Family Services (DCFS) and the juvenile court failed to comply with their duty of initial inquiry to determine whether there is a reason to believe or know that the children are Indian children within the meaning of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Because we conclude that the initial inquiry error here was harmless, we affirm the juvenile court's orders.
All statutory references are to the Welfare & Institutions Code, unless otherwise specified.
"[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.).)
FACTUAL AND PROCEDURAL SUMMARY
As Mother's sole argument on appeal concerns the duty of initial inquiry imposed by ICWA and related California law, we limit our factual and procedural summary accordingly.
A. Overview
At the outset of the dependency proceedings giving rise to this appeal, Mother had three children: V.D. (born November 2018), A.C. (born October 2017), and S.C. (born July 2016). V.D is the child of A.D. (Father D.) and Mother, and A.C. and S.C. are the children of L.C. (Father C.) and Mother. Mother lived with Father D. and all three children.
On February 26, 2019, Mother and Father D. took V.D. to the hospital for injuries, including a broken femur, that medical personnel determined were consistent with nonaccidental trauma. Mother offered no explanation for the infant's broken femur. On March 1, 2019, the juvenile court granted DCFS's expedited request to place a hospital hold on V.D. and to remove all three children from the parents' custody. The court placed V.D. with his paternal grandmother and placed A.C. and S.C. in a nonrelative foster home.
DCFS then filed a petition under section 300 on March 5, 2019, on behalf of the children. During the ensuing dependency proceedings, the juvenile court bypassed reunification services for Mother and Father D., over their objections, and the court eventually terminated the reunification services it initially ordered for Father C.
Mother appealed the juvenile court's determination to bypass reunification services, and, on August 25, 2020, this court affirmed the juvenile court's denial of services. (In re S.C. (Aug. 25, 2020, B300879) [nonpub. opn.].) In that same opinion, we also reversed certain jurisdictional findings concerning Father C. that are not pertinent to this appeal.
Mother again sought reunification services with all children via three section 388 petitions (one for each child) filed on December 21, 2020, based on her visitation history and her participation in parenting classes, anger management classes, and individual counseling. The juvenile court denied Mother's petitions during a July 8, 2021 hearing, explaining that, despite participating in some programs, Mother had "not made the changes that are needed to show-to prove that the court should grant her [section] 388" petitions.
The three petitions are virtually identical, and the juvenile court appears to have referred to the filings as though they were a single petition, for expediency. Mother and DCFS adopted this same approach in their briefing before this court.
During that same hearing, the juvenile court terminated Mother's and Father D.'s parental rights to V.D. Finally, at an October 7, 2021 hearing, the juvenile court terminated Mother's and Father C.'s parental rights to A.C. and S.C.
Mother filed timely notices of appeal from the orders denying her section 388 petitions and from the order terminating her parental rights. On March 23, 2022, this court granted Mother's motion to consolidate the three appeals.
B. ICWA Proceedings
Throughout the underlying dependency proceedings, Mother and Father D. represented repeatedly that they had no Native American Indian heritage. The ICWA child inquiry attachment (Judicial Council Forms, form ICWA-010(A)) appended to the section 300 petition reflects Mother's February 26, 2019 statement to the interviewing social worker that "the family has no Native American Indian heritage." (Underscoring omitted.) In addition, Mother and Father D. each submitted parental notification of Indian Status forms in which they checked the box indicating that they "have no Indian ancestry as far as [they] know" (Judicial Council Forms, form ICWA-020 (ICWA-020 form)). Finally, at the March 7, 2019 detention hearing before the juvenile court, Mother and Father D. each confirmed that they "had a chance to talk to [their] attorneys" about the ICWA-020 form, understood the form, and did not believe they had any Native American ancestry.
Based on this information, the juvenile court determined on March 7, 2019, that it "d[id] not have a reason to know" the children were "Indian Child[ren], as defined under ICWA, and d[id] not order notice to any tribe or the B[ureau of] I[ndian] A[ffairs (BIA)]." The court, however, directed the parents "to keep [DCFS], their [a]ttorney[s,] and the [c]ourt aware of any new information relating to possible ICWA status."
Mother again disclaimed any Native American ancestry in a subsequent March 3, 2021 conversation with a social worker.
DCFS initially could not determine Father C.'s whereabouts, and he did not appear at the March 7, 2019 detention hearing. Social workers eventually located and interviewed Father C. on March 12, 2019. During that interview, he informed the social worker that he believed he may have some Yaqui tribe American Indian ancestry through his deceased mother. In an April 2, 2019 follow-up conversation, however, Father C. told the interviewing social worker that one of his five brothers (all of whom lived together at an address where the social worker interviewed Father C., and which Father C. designated as his mailing address) had informed him that his mother had only Mexican heritage. On April 24, 2019, Father C. submitted an ICWA-020 form indicating that he had no known Indian ancestry. That same day, the juvenile court again determined that there was no reason to order notice to any tribe or to the BIA, as to A.C. or S.C.
The record discloses that DCFS obtained contact information for, and interviewed, maternal grandmother, maternal stepgrandfather, maternal great-aunt Y.Z., maternal uncle G.M., and paternal grandmother to V.D. There is no indication, however, that social workers asked any of the relatives about whether the children may have American Indian heritage.
DISCUSSION
Mother's sole contention on appeal is that "the juvenile court and [DCFS] failed to comply with the duty of inquiry under ICWA because the record does not indicate the social worker interviewed extended family members for [M]other or the fathers prior to the juvenile court's ICWA inapplicability finding." She argues that "due to the error in inquiry, a conditional reversal of the order terminating parental rights and remand is appropriate."
A. DCFS Does Not Dispute Its Failure to Discharge the Initial Inquiry Duty Imposed by California's Laws Implementing ICWA
We generally review ICWA findings for substantial evidence, but where, as here, the material facts are undisputed,"' "we review independently whether ICWA requirements have been satisfied."' [Citation]." (In re J.K. (2022) 83 Cal.App.5th 498, 504.)
When DCFS files a petition under section 300 concerning a child, it has "an affirmative and continuing duty to inquire whether [the] child . . . is or may be an Indian child" within the meaning of ICWA. (§ 224.2, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 9 (Isaiah W.).) When DCFS seeks foster care placement for the child, pre-adoptive placement, or termination of parental rights, it "must ask the child, if the child is old enough, and the parents, . . . extended family members, [and] others who have an interest in the child . . . whether the child is or may be an Indian child." (Cal. Rules of Court, rule 5.481(a)(1); see also In re Darian R. (2022) 75 Cal.App.5th 502, 507 (Darian R.).)
Congress enacted ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement with non-Indian families. (Isaiah W., supra, 1 Cal.5th at p. 7.) California subsequently passed its own laws implementing ICWA (see, e.g., § 224.2). "Both ICWA and California law define an 'Indian child' as a child who is either a member of an Indian tribe or 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, subds. (a), (b).)" (In re Y.M. (2022) 82 Cal.App.5th 901, 908 (Y.M.).)
The language we quote from rule 5.481 of the California Rules of Court took effect on January 1, 2020. The dependency case at issue here proceeded for at least a year and a half after the amendment became effective.
ICWA and related California law define" 'extended family member'" by "the law or custom of the Indian child's tribe" or, absent such law or custom, as "a person who has reached the age of eighteen and who is the Indian 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); Welf. & Inst. Code, § 224.1, subd. (c) [extended family member "defined as provided in [section] 1903" of ICWA].)
Here, DCFS does not dispute that it failed to ask any extended family members about possible Indian heritage, nor does it dispute that the juvenile court made its determinations that ICWA did not apply to the children without the benefit of such inquiries. Accordingly, we conclude that DCFS failed to discharge the initial inquiry duty imposed by California laws implementing ICWA.
B. The Initial Inquiry Error Was Harmless
Next, we consider the appropriate remedy. Although California law on this issue presently is unsettled, this division of this court repeatedly has rejected the argument that DCFS's failure to inquire of extended family members mandates automatic reversal. (See In re S.S. (2022) 75 Cal.App.5th 575, 581 (S.S.); Darian R., supra, 75 Cal.App.5th at p. 504; In re A.C. (2022) 75 Cal.App.5th 1009, 1017 (A.C.).) Instead, we must examine the record and reverse or remand only if the review shows prejudice because there was" 'information that was likely to bear meaningfully upon whether the child is an Indian child.'" (Darian R., supra, at p. 509, quoting In re Benjamin M., supra, 70 Cal.App.5th at p. 744.)
"[T]here is currently a wide and varied split of authority among the Courts of Appeal regarding the proper standard to apply in determining the prejudicial effect" of a failure to comply with the initial inquiry duty under ICWA and related California law. (Y.M., supra, 82 Cal.App.5th at p. 911.) The question of the applicable standard presently is pending before the California Supreme Court. (In re Dezi C. (2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022, S275578.)
Here, Mother points to no evidence in the record indicating that questioning extended family members would have produced "information that was likely to bear meaningfully upon" whether the children had Indian heritage. Our own review of the record reveals no such evidence.
With respect to the maternal side of the family, the record reflects that Mother repeatedly represented, over the course of more than two years, that her family had no Indian heritage. She did so in interviews with social workers, as well as during the March 7, 2019 detention hearing before the juvenile court. She also submitted an ICWA-020 form in which she disclaimed any Indian heritage.
These facts refute Mother's conclusory argument-raised for the first time on the final page of her reply brief-that her mental health conditions and possible substance use "make it unlikely that [she] would have asked maternal relatives about ICWA or been aware that such an inquiry was relevant."
In addition, the record discloses that Mother was in close contact with the extended maternal family members she claims DCFS failed to interview concerning possible Indian ancestry. Indeed, at the outset of the dependency proceedings, maternal grandmother and maternal uncle G.M. lived on the same property as Mother. Moreover, maternal grandmother and stepgrandfather expressed interest in having the children placed with them. ICWA directs that "preference shall be given . . . to a placement with . . . [¶] . . . a member of the [Indian] child's extended family." (25 U.S.C. § 1915(a)(1).) The maternal grandparents thus "presumably would have had a strong incentive to raise any Indian ancestry in support of that goal," yet they did not do so. (Y.M., supra, 82 Cal.App.5th at pp. 917-918; accord, S.S., supra, 75 Cal.App.5th at p. 582.)
Finally, the court placed Mother under a continuing order to provide information relevant to ICWA.
These facts undermine any inference that interviewing Mother's extended family members might produce new information "likely to bear meaningfully upon" whether the children have Indian heritage. (Y.M., supra, 82 Cal.App.5th at p. 917 ["[i]mportantly, [the] Father lived with the paternal grandmother during the dependency proceedings and therefore presumably could have asked her at any time whether she knew of any possible Indian ancestry"]; Darian R., supra, 75 Cal.App.5th at p. 510 [initial inquiry error harmless where "[the] mother at various times lived with the relatives she claims DCFS failed to interview" and was subject to a court order to continue to provide updated information relevant to ICWA].)
The analysis as to Father D. is similar. The record reflects that he was in close contact with his biological mother (paternal grandmother P.V.), that paternal grandmother P.V. sought (and obtained) placement of V.D., and that, like Mother, Father D. was subject to a court order obligating him to disclose any newly discovered information relevant to the ICWA inquiry. These facts all counsel against a finding of prejudice. (See Y.M., supra, 82 Cal.App.5th at p. 917; Darian. R., supra, 75 Cal.App.5th at p. 510.)
With respect to Father C., the analysis is complicated to some extent by his March 12, 2019 statement to a DCFS social worker that he believed his deceased mother may have had Yaqui tribe heritage. This statement might support a finding of prejudice here as to children A.C. and S.C. were it not for Father C.'s subsequent report to the social worker that he had discussed the issue with one of his brothers and had confirmed that his mother had only Mexican, and not Yaqui, heritage. Along with the court's imposition of an order obligating Father C. to continue to provide updated ICWA information, these facts undermine Mother's contention that interviews of Father C.'s extended family would have yielded information "likely to bear meaningfully upon" whether A.C. and S.C. are Indian children.
Mother does not dispute any of the facts set forth in the above analysis. Instead, the thrust of her argument is that we should conditionally reverse the juvenile court's orders because (1) "it would have taken 'very little additional effort'" for DCFS to obtain information from extended family members concerning possible Indian heritage, and (2) our opinion in Darian R. "is arguably limited to the relatively unusual circumstance of a prior finding [of ICWA's inapplicability] in a previous dependency proceeding involving the same family."
At times, Mother also appears to argue that we should apply a different standard of review here, including a reversible per se standard. As previously noted, this division of this court has rejected such an approach, and we decline to follow the cases Mother cites in support of alternative standards of review.
Mother's first argument fails because it ignores that she must establish that the information available from extended family was not only "readily obtainable," but also "likely to bear meaningfully upon whether the child is an Indian child." (Benjamin M., supra, 70 Cal.App.5th at p. 744; accord, Y.M., supra, 82 Cal.App.5th at p. 917 ["assuming that information was 'readily obtainable,' we nevertheless conclude the record in this case does not show that readily obtainable information was 'likely to bear meaningfully upon whether [child] is an Indian child' "]; Y.M., supra, 82 Cal.App.5th at p. 918 [mere "speculat[ion]" that extended family members "would have provided [DCFS] with information that was likely to bear meaningfully" on the ICWA inquiry is insufficient "to show prejudicial error"].)
Indeed, the facts to which Mother points to argue that the information was "readily obtainable"-namely, the parents' close, continued contact with various extended family members-are the very facts that undermine the contention that interviews of family members would yield new information likely to bear on the ICWA inquiry. (Y.M., supra, 82 Cal.App.5th at p. 917; Darian R., supra, 75 Cal.App.5th at p. 510.)
Mother's second argument similarly is unavailing, as she reads Darian R. too narrowly. The prior dependency determination in that case was merely one of several factors animating our conclusion that the record "show[ed] no prejudice flowing from DCFS's failure to interview" certain extended family members. (Darian R., supra, 75 Cal.App.5th at p. 510.) Other relevant factors in Darian R. included the mother's cohabitation with the relatives DCFS failed to interview and the juvenile court's imposition of an order obligating the mother to continue providing updated information concerning the ICWA inquiry. (Ibid.) As detailed above, these additional factors are present here.
Mother's reliance on In re J.C. (2022) 77 Cal.App.5th 70, and In re Antonio R. (2022) 76 Cal.App.5th 421, in support of her contention that Darian R. and S.S. have been called into question is misplaced. We are not bound by J.C. or Antonio R., and we respectfully disagree with our colleagues' critique in those cases of aspects of our analyses in Darian R. and S.S. We note further that, in an opinion post-dating J.C. and Antonio R., Division One of the Fourth Appellate District adopted our reasoning in Darian R. and S.S. (See Y.M., supra, 82 Cal.App.5th 901.)
Accordingly, Mother has failed to meet her burden of establishing prejudice in this case. Given the parents' repeated denials of any Indian ancestry, and the absence of any evidence in the record suggesting that interviews of extended family members would yield information likely to bear on the children's possible Indian heritage, we conclude that the initial inquiry error here was harmless.
DISPOSITION
The juvenile court's orders denying Mother's section 388 petitions and terminating Mother's parental rights as to all children are affirmed.
We concur: BENDIX, J. BENKE, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.