Opinion
B323201
04-26-2023
In re WILLIAM W., a Person Coming Under the Juvenile Court Law. v. DEBRA H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the juvenile court's order granting legal guardianship and terminating jurisdiction of the Superior Court of Los Angeles County No. J982674, Charles Q. Clay III, Judge.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
BENDIX, J.
Debra H. (mother) appeals the juvenile court's order changing her 14-year-old son William's legal guardian from maternal grandmother to maternal aunt. The juvenile court also terminated its jurisdiction. Mother's sole contention on appeal is that the Los Angeles County Department of Children and Family Services (DCFS) and the juvenile court failed to comply with their respective duties of inquiry under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and related California law. We agree that there was error, but conclude that there was no prejudice, meaning the record does not show additional inquiry would bear meaningfully on William's status as an Indian child. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744-745 (Benjamin M.). As a separate and independent ground, we conclude the error was harmless because William was placed with his extended family member, a preferred placement under ICWA. We affirm the juvenile court's order.
We summarize only those facts relevant to the limited scope of this appeal.
Mother reported that she had five children all of whom were removed from her care because of her use of crack cocaine. Mother did not reunify with any of her children. Father is not a party to this appeal.
1. In 2009, DCFS files a petition and removes William from mother's custody; based on a 2021 social worker's report, there were also later dependency proceedings in San Bernardino County
William was born in November 2008. On January 5, 2009, DCFS filed a Welfare and Institutions Code section 300 petition in Los Angeles County. On approximately January 6, 2009, William was removed from mother's custody.
The petition alleged mother had a 13-year history of drug abuse and her use of cocaine rendered her incapable of caring for William. Mother also suffered from depression rendering her incapable of caring for William. Father failed to provide William with the necessities of life.
The detention report dated January 6, 2009 indicated that one of William's half siblings lived with maternal aunt and three others lived with maternal grandmother. The detention report stated mother had an extensive criminal history and was on parole for possession of cocaine. Our record has very limited documentation from these 2009 proceedings.
Mother also refers to San Bernardino County dependency proceedings in her appellate briefing. Our record contains no documents from the San Bernardino proceedings. DCFS's report dated March 4, 2021 refers to a January 11, 2013 report by a San Bernardino social worker. Although our record has scant documentation from the prior dependency proceedings, the record reflects that there were proceedings in both Los Angeles and San Bernardino counties and, in either 2012 or 2013, the juvenile court appointed maternal grandmother as William's legal guardian. It appears that maternal grandmother remained William's legal guardian until she died in November 2020.
2. Maternal aunt's section 388 petition
On December 21, 2020, maternal aunt R.F. filed a section 388 petition. R.F. requested to become William's guardian because maternal grandmother had died. The court set the matter for a hearing. In a report dated March 4, 2021, DCFS indicated that William, then 12 years old, wanted to live with R.F. and the court to appoint her as his legal guardian. Throughout the proceedings, William maintained his desire to live with R.F.
In October 2021, the juvenile court appointed R.F. William's legal guardian. Because mother was not properly served with notice of the proceedings, the juvenile court set aside its legal guardianship order.
Following a hearing at which mother did not appear but was represented by counsel, the juvenile court again appointed R.F. as William's legal guardian.
At the hearing, mother's counsel objected to the legal guardianship indicating mother "does plan on filing a 388 in the future. She has been working on herself and has been taking classes ...."
3. ICWA proceedings
A social worker attached to the 2009 petition a form indicating that William had no known Indian ancestry. The form does not identify whom the social worker questioned. The 2009 detention report stated father denied any American Indian heritage and mother earlier had denied American Indian heritage "as reflected in previous Court findings." The report provides no further information about whether the court or DCFS made any additional inquiries into American Indian ancestry. On January 5, 2009, father filed a form indicating he had no Indian ancestry as far as he knew. Also on January 5, 2009, the Juvenile Court of Los Angeles County found that ICWA does not apply to William.
In the current proceeding, DCFS reported," 'On January 13, 2011, [the San Bernardino] Court found that there was no Indian Heritage." DCFS also indicated social workers had asked R.F. about her Indian ancestry and R.F. denied having Indian ancestry. DCFS concluded, "The Indian Child Welfare Act does not apply."
DCFS did not locate father in connection with the current proceedings. Social workers spoke to father's adult daughter, but there is no indication whether they asked her about Indian ancestry.
DISCUSSION
On appeal, mother argues the juvenile court and DCFS did not comply with ICWA because in the current proceedings; they did not question participants or the parents' extended family members about William's potential Indian ancestry. Mother also states the juvenile court never determined whether ICWA applied, but mother does not dispute that in 2009 and in 2011, the juvenile court found that William did not have Indian ancestry.
"At the outset of a dependency case, the child welfare agency and the juvenile court have a statutory initial duty to inquire into whether a child is, or may be, an Indian child. 'The child welfare department's initial duty of inquiry includes "asking 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 and where the child, the parents, or Indian custodian is domiciled." [Citation.]' [Citation.]" (In re Darian R. (2022) 75 Cal.App.5th 502, 507 (Darian R.), fn. &italics omitted.) Under ICWA, the term" 'extended family member'" is "defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be 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).)
We assume for purposes of this appeal only that recent amendments to California statutes governing inquiry into the potential Indian ancestry of a dependent child apply when the juvenile court terminates one legal guardianship with a family member and imposes another guardianship with a member within the same family. As mother argues, the record does not reflect that during the most recent proceedings involving the change of William's guardianship, the juvenile court or DCFS asked about William's potential Indian ancestry. Respondent does not argue otherwise. DCFS and the juvenile court thus failed to discharge the initial duty imposed by California laws implementing ICWA.
A. The Record Does Not Show That Inquiry of Extended Family Members Would Have Borne Meaningfully on William's Status as an Indian Child
An error is one of state law, and requires reversal only upon a showing of prejudice. (In re S.S. (2022) 75 Cal.App.5th 575, 582 (S.S.).) In assessing prejudice, this court has looked to whether" 'the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.'" (Ibid., quoting Benjamin M., supra, 70 Cal.App.5th at p. 744; see also Darian R., supra, 75 Cal.App.5th at p. 509 [applying test for prejudice from Benjamin M.]; In re A.C. (2022) 75 Cal.App.5th 1009, 1017 (A.C.) [assessing whether there was "readily obtainable information that was likely to bear meaningfully on whether A.C. was an Indian child"].)
Mother argues she does not have to show prejudice at all. Courts of appeal have reached different conclusions on that issue. (In re Y.M. (2002) 82 Cal.App.5th 901, 911-918; In re S.H. (2022) 82 Cal.App.5th 166, 175.) We have held that state law error in failing to inquire about a child's Indian ancestry does not mandate automatic reversal. (See In re Adrian L. (2002) 86 Cal.App.5th 342 (Adrian L.); S.S., supra, 75 Cal.App.5th 575, 581; Darian R., supra, 75 Cal.App.5th at p. 504; A.C., supra, 75 Cal.App.5th at p. 1017.) "A prerequisite to reversal of a trial court's decision in California is showing a miscarriage of justice." (In re J.W. (2022) 81 Cal.App.5th 384, 389-390 (J.W.) [finding no miscarriage of justice where DCFS failed to fulfill its duties of inquiry of extended family members about Indian ancestry].) The issue is before our high court in In re Dezi C. (2022) 79 Cal.App.5th 769, review granted September 21, 2022, S275578.
In S.S., we held DCFS's failure to interview the maternal grandmother about Indian ancestry was not prejudicial. (Supra, 75 Cal.App.5th at p. 581.) The maternal grandmother, with the assistance and encouragement of both the child's counsel and the mother's counsel, sought to have the child placed with her rather than with DCFS's preferred placement, a nonfamily member who had fostered the child throughout the proceedings. (Id. at pp. 578, 580, 582.) We noted that under ICWA, there is a preference to place Indian children with extended family members. (Id. at p. 582, citing 25 U.S.C. § 1915(a) &(b).) Thus, "[t]he maternal grandmother, Mother's counsel, and [the child's] counsel, each of whom requested that the court consider placing [the child] with the maternal grandmother, would . . . have a strong incentive to bring to the court's attention any facts that suggest that [the child] is an Indian child. Their failure to do so implies that the maternal grandmother is unaware of such facts." (S.S., at p. 582.)
In Darian R., we rejected the mother's claim that failure to interview her sister and father, with whom she had lived during part of the dependency proceedings, was prejudicial where both parents denied Indian ancestry, mother was under a court order to provide information relevant to ICWA, there was no evidence mother was estranged from her family, and a prior court order in an earlier dependency case involving the same biologic parents found ICWA inapplicable. (Darian R., supra, 75 Cal.App.5th at p. 510.) Under these circumstances, we concluded, "The record simply does not support mother's unvarnished contention that additional interviews of mother's father and sister would have meaningfully elucidated the children's Indian ancestry." (Ibid.)
In Adrian L., we similarly found additional inquiry would not have yielded information that was likely to bear meaningfully on whether the child was an Indian child. (Supra, 86 Cal.App.5th at p. 345.) In Adrian L., both mother and father denied Indian ancestry, and both completed forms so indicating. (Id. at p. 349.) We rejected the argument that inquiring of maternal grandmother, paternal grandmother, or paternal aunt would have yielded information likely to bear meaningfully on the court's ICWA determination. (Id. at p. 345.) We relied on evidence that mother and father had contact with their families and mother unsuccessfully urged the juvenile court to place the child with maternal grandmother and paternal aunt, who also sought placement. (Id. at p. 352.) Yet, despite an "incentive to bring to the juvenile court's attention facts suggesting that a child is an Indian child," neither the maternal nor the paternal relatives did so. (Ibid.)
In contrast, in A.C., a majority of this court held a failure to interview extended family members was prejudicial because, although both parents had signed ICWA forms indicating neither had Indian ancestry, "mother was the product of foster care and thus may not have known her cultural heritage." (Supra, 75 Cal.App.5th at pp. 1015-1016.) Also, the detention report indicated the child might be an Indian child. (Id. at p. 1016.) The majority "[could not] conclude from this equivocal record that DCFS's failure to conduct any inquiry as to mother and father's extended family members was not prejudicial." (Ibid.)
Like in Adrian L., S.S., and Darian R., the record in this case lacks affirmative indications that remand for further inquiry would yield meaningful additional information about William's ancestry. Referencing Darian R., mother recognizes that two different juvenile courts had previously found William was not an Indian child, but argues that "the current state and federal statutory and regulatory schemes were not in place regarding ICWA inquiry." With respect to prejudice, mother argues, "[I]t is clear that there was 'readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child' and 'on the inquiry that the agency had the duty to make. [Citations.]' [Citation.] At the very least, DCFS and the juvenile court should have inquired of Mother, William, and [R.F.] regarding William's possible Indian ancestry. [Citations.] In addition, William's adult siblings[ ], particularly his paternal adult sister's [citation], knowledge as to their ancestry would have borne meaningfully on the Indian child question and on the inquiry DCFS had the duty to make."
Mother is correct insofar as she points out the inquiry requirements have changed since William was first detained and the juvenile court found ICWA did not apply. Although the requirements for inquiry have changed since the 2009 proceedings in which the juvenile court found William was not an Indian child, the definition of an Indian child has not changed. Since its inception section 224.1 looks to the federal law, specifically 25 United States Code section 1901 et seq., for the definition of Indian child. (Welf. &Inst. Code, § 224.1, subd. (a) as enacted in 2006.) 25 United States Code section 1903's definition of "Indian child" is the same as it was in 2009, when these proceedings began: "[A]ny 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, subd. (4).) Therefore, the prior determination that William is not an Indian child is probative even though under current law, DCFS and the juvenile court have additional inquiry duty.
Welfare and Institutions Code section 224.1, subdivision (b) expands the definition of Indian child to include persons over 18 years of age but under 21 years.
Mother's statement that the court and DCFS should have inquired of mother, William, and R.F. does not support the conclusion that it was prejudicial not to inquire. R.F. indicated she had no Indian ancestry and mother does not identify any potential Indian ancestry with respect to herself. Nor does mother explain how William, who was removed from mother's care at the age of two months, would have had meaningful information that would be unknown to mother. Mother's statement that William's adult siblings would have knowledge that would have borne meaningfully on William's ancestry is supported only by citation to the mere fact that social workers spoke to father's adult daughter. Without more, the fact that social workers located father's adult daughter does not support the inference she would have shed meaningful light on William's status as an Indian child given father's (undisputed) denial of Indian ancestry. Father's denial of Indian ancestry distinguishes this case from Benjamin M., where the court found that interviewing father's brother would have borne meaningfully on assessing the child's potential Indian ancestry. (Benjamin M., supra, 70 Cal.App.5th at pp. 745-746.) In Benjamin M., the father never appeared in the juvenile court (id. at p. 744), and the appellate court thus concluded "[f]ather's brother's knowledge of his own Indian status would be suggestive of Father's status" (id. at p. 745). Here, in contrast, father appeared and denied having Indian ancestry.
B. Reversal Is Not Required for the Independent Reason that William's Placement With R.F. Is Preferred Under ICWA
The challenged order places William with his maternal aunt-a member of his extended family-which is the preferred placement of an Indian child. (J.W., supra, 81 Cal.App.5th at pp. 390-391.) As J.W. explained: ICWA reflects the intent of Congress "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, and by providing for assistance to Indian tribes in the operation of child and family service programs.' [Citation.]" (Id. at p. 389.) In J.W., the child's permanent plan was adoption by her maternal grandmother and the court found the failure to inquiry of Indian ancestry was not reversable error because even if "an inquiry would have discovered that [the child's] maternal family held Indian roots, the purpose of ICWA-to prevent the removal of Indian children from their Indian families-is not implicated by the juvenile court's final disposition.... [The child] was not facing alienation or separation from any assumed Indian ancestry." (Id. at p. 390.) Similarly here, William was placed with his maternal aunt, an extended family member. Just as the child in J.W., William was not removed from his extended family.
DISPOSITION
The order awarding R.F. legal guardianship of William and terminating jurisdiction is affirmed.
We concur: ROTHSCHILD, P. J., CHANEY, J.