Opinion
B314238 B316573 B318770
12-14-2022
In re DAPHNE G., a Person Coming Under the Juvenile Court Law. v. D.P., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, In re DAISY G. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.P., Defendant and Appellant.
William Hook, 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NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, No. 18LJJP00767 Pete R. Navarro, Judge Pro Tempore. Affirmed.
William Hook, 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.
CHANEY, J.
In these three consolidated appeals in this dependency case (Welf. & Inst. Code, § 300 et seq.), D.P. (Mother) challenges various juvenile court orders, contending the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the duty to inquire of extended family members whether her daughters, Daisy G., Dakota G., and Daphne G., are or may be Indian children within the meaning of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; (ICWA)). She also contends the juvenile court erred in not ensuring DCFS conducted an appropriate inquiry. For the reasons explained below, we conclude any error resulting from DCFS's failure to inquire of extended family members about possible Indian status was harmless. Accordingly, we affirm the orders.
Further statutory references are to the Welfare and Institutions Code.
Mother appeals from (1) the juvenile court's July 20, 2021 orders at the six-month review hearing (§ 366.21, subd. (e)) involving Daphne; (2) the juvenile court's October 27, 2021 order denying Mother's section 388 petition, as to Daisy, Dakota, and Daphne; and (3) the juvenile court's February 24, 2022 order denying Mother's subsequent section 388 petition, as to Daisy and Dakota. Mother raises no challenge to these orders other than ICWA compliance. D.G., the father of these three children (Father), is not a party to this appeal.
We include here only the facts germane to the issue on appeal: DCFS's and the juvenile court's compliance with California law implementing ICWA.
In this appeal, Mother contends DCFS failed to interview Daisy, Dakota, and Daphne's paternal grandparents regarding the girls' possible Indian status. Prior dependency proceedings involving Mother's two older children are not pertinent to the specific ICWA question here, as the older children do not have the same father as Daisy, Dakota, and Daphne. Hereafter, we refer to Daisy, Dakota, and Daphne, collectively, as "the children."
I. Commencement of Dependency Proceedings and ICWA Inquiry as to Daisy
In November 2018, DCFS sought and obtained an order removing two-and-a-half-month-old Daisy from Mother and Father due to domestic violence between Mother and Father. Prior to the removal, a social worker interviewed Mother and reported in the November 16, 2018 Detention Report: "[ICWA] does not apply. CSW inquired from [M]other about Indian Child Welfare heritage. Mother reported she and [F]ather are not members of an American Indian tribe." The social worker asked Mother if there was a family member who could care for Daisy in the event Daisy was detained, and Mother identified Daisy's paternal grandmother. Upon removal, DCFS placed Daisy in a foster home.
On November 16, 2018, DCFS filed a dependency petition alleging, among other things, that Mother and Father's history of violent altercations placed Daisy at risk of serious physical harm, within the meaning of section 300, subdivisions (a). On form ICWA-010(A), attached to the dependency petition, DCFS checked the box stating, "The child has no known Indian ancestry." DCFS did not list any person who was questioned about Daisy's possible Indian status in the spaces provided for this information on the form. Neither Mother nor Father appeared at the detention hearing, and counsel was not appointed to represent them. The juvenile court made detention findings, and Daisy remained placed in foster care.
In the January 16, 2019 Jurisdiction/Disposition Report, DCFS reported that a dependency investigator asked both Mother and Father if they "had American Indian Ancestry," and each stated she/he "is not a member of an American Indian tribe and denied Native American Indian Ancestry." Mother told the investigator she was raised by both her parents. Father similarly told the investigator he was raised by both his parents.
On February 7, 2019, Mother and Father appeared in court with counsel at the adjudication and disposition hearing. The minute order from this hearing reflects that the paternal grandmother was also present in court. Mother signed and submitted to the juvenile court form ICWA-020, "Parental Notification of Indian Status." Thereon, she checked the box stating, "I have no Indian ancestry as far as I know." Father also signed and submitted to the juvenile court form ICWA-020. He checked the same box. The court found there was no reason to know Daisy was an Indian child as defined by ICWA.
The record on appeal does not include a reporter's transcript of this hearing.
Mother and Father pleaded no contest to the dependency petition, and the court sustained the petition under section 300, subdivision (a), based on the domestic violence allegations. The court declared Daisy a dependent of the court, removed her from Mother and Father, and ordered her suitably placed under DCFS's supervision. The court granted Mother and Father reunification services and monitored visitation, to occur separately. Daisy remained in foster care, and the court ordered DCFS to assess the paternal grandmother as a potential placement for Daisy. During the course of DCFS's assessment, both Mother and Father informed DCFS they wanted Daisy placed with the paternal grandmother.
II. Commencement of Dependency Proceedings and ICWA Inquiry as to Dakota
Mother gave birth to Dakota, her second child with Father. In July 2019, DCFS sought and obtained an order removing newborn Dakota from Mother and Father based on the history of domestic violence between Mother and Father and information DCFS received indicating Mother and Father were still interacting with one another in violation of a restraining order. DCFS placed Dakota with the paternal grandparents. Daisy remained placed in foster care.
On July 30, 2019, DCFS filed a dependency petition under section 300, subdivisions (a), (b), and (j), alleging Mother and Father's history of violent altercations placed Dakota at risk of serious physical harm. On form ICWA-010(A), attached to the dependency petition, DCFS checked the box stating, "The child has no known Indian ancestry." DCFS did not list any person who was questioned about Dakota's possible Indian status in the spaces provided for this information on the form.
Mother and Father appeared at the July 31, 2019 detention hearing for Dakota. The paternal grandparents were not present. Both Mother and Father signed and submitted form ICWA-020, each checking the box stating, "I have no Indian ancestry as far as I know." The juvenile court's minute order from this detention hearing states, in pertinent part: "The Court does not have a reason to know that this is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the BIA [Bureau of Indian Affairs]. Parents are to keep [DCFS], their Attorney [sic] and the Court aware of any new information relating to possible ICWA status." The court made detention findings as to Dakota, and the child remained placed with the paternal grandparents. The court ordered monitored visitation for Mother and Father, to occur separately.
According to the September 17, 2019 Jurisdiction/ Disposition report for Dakota, on August 26, 2019, Mother again "denied any Indian American ancestry."
In August 2019, DCFS placed Daisy with the paternal grandparents (where younger sister Dakota already had been placed). Mother was having monitored visits at the paternal grandparents' home (as was Father). In September 2019, DCFS required Mother to have her visits at a DCFS office due to Mother's conflict with the paternal grandmother.
At the December 10, 2019 adjudication and disposition hearing for Dakota, the juvenile court sustained allegations in a first amended petition under section 300, subdivisions (b) and (j), regarding Mother and Father's history of domestic violence. The court declared Dakota a dependent of the court, removed her from Mother and Father, and ordered reunification services and monitored visitation for Mother and Father, to occur separately. Dakota remained placed with the paternal grandparents, along with Daisy.
In April 2020, DCFS filed an ex parte application for an order removing Daisy and Dakota from the paternal grandparents' home on grounds Mother and Father had visited the home at the same time and had engaged in violent altercations there in violation of the restraining order, and Father had engaged in a violent altercation with the paternal uncle. Later the same month, DCFS filed section 342 and section 387 petitions, alleging Daisy and Dakota were at risk of harm based on such conduct by Mother, Father, and the paternal grandparents (as to the latter, for establishing an endangering home environment for Daisy and Dakota). The paternal grandparents objected to the removal of Daisy and Dakota from their home by filing a grievance with DCFS. At an April 24, 2020 detention hearing on the petitions, the juvenile court ordered that Daisy and Dakota remain placed in the paternal grandparents' home, with protective measures in place, including that the paternal grandparents receive family preservation services, not allow Mother or Father to visit in their home, and not monitor Mother's or Father's visits.
As reflected in the juvenile court's minute orders for a September 21, 2020 review hearing regarding Daisy and Dakota, the juvenile court made a finding that ICWA does not apply. The court terminated Mother's and Father's reunification services and set a section 366.26 permanency planning hearing. The court ordered the children to remain placed with the paternal grandparents and noted DCFS's objection to the placement. The same day, the court dismissed the section 387 petition with prejudice (the petition which included allegations about the paternal grandparents establishing an endangering home environment for Daisy and Dakota), and sustained allegations in the section 342 petition regarding Mother's and Father's violent altercations with each other and other individuals in the paternal grandparents' home. As set forth in the minute orders from the September 21, 2020 hearings, Father and the paternal grandparents were present via videoconference or telephone.
The record on appeal does not include a reporter's transcript of the September 21, 2020 hearings.
III. Commencement of Dependency Proceedings and ICWA Inquiry as to Daphne
Mother gave birth to Daphne, her third child with Father. In September 2020, DCFS sought and obtained an order removing newborn Daphne from Mother and Father based on, among other things, the history of domestic violence between Mother and Father and their continued interaction with one another. DCFS placed Daphne in foster care.
On October 19, 2020, DCFS filed a dependency petition alleging, among other things, that Mother's and Father's neglect of Daphne's siblings within the meaning of section 300, subdivision (j), placed Daphne at risk of harm. On form ICWA-010(A), attached to the dependency petition, DCFS checked the box stating, "The child has no known Indian ancestry." In the spaces provided on the form to list persons questioned about the child's possible Indian status, DCFS listed Mother and indicated it had interviewed her in person on October 7, 2020, and "Mother stated that the child has no Native American ancestry." In the Detention Report for Daphne, filed October 19, 2020, DCFS indicated that during the same October 7, 2020 interview, Mother "stated that [ICWA] does not apply."
Mother was present via videoconference or telephone at the October 23, 2020 detention hearing for Daphne. Father's counsel waived Father's appearance, explaining Father could not leave work for the hearing. The paternal grandparents were not present. Father's counsel submitted form ICWA-020 on Father's behalf, with the box checked stating, "I have no Indian ancestry as far as I know." Mother's counsel submitted a newer version of form ICWA-020 on Mother's behalf, with a box checked stating none of the circumstances listed in the form indicating the child may be an Indian child apply (e.g., tribal membership or eligibility for trial membership of the child or a lineal ancestor). Neither Father nor Mother signed his/her form ICWA-020.
At the detention hearing, the juvenile court asked Mother if she had "any Indian ancestry in [her] background," and Mother said no. The court made a finding that ICWA did not apply as to Mother. The court asked Father's counsel if ICWA applied as to Father, and Father's counsel responded, "No ICWA." The court made a finding that ICWA did not apply as to Father either. The court's minute order from this hearing states, in pertinent part: "The Court does not have a reason to know that this is an Indian child, as defined under ICWA, and does not order notice to any tribe or the BIA. Parents are to keep [DCFS], their Attorney [sic] and the Court aware of any new information relating to possible ICWA status."
The juvenile court made detention findings as to Daphne and ordered DCFS to assess the paternal grandparents as a potential placement for Daphne. The child remained in foster care.
At the December 16, 2020, adjudication hearing for Daphne, the juvenile court sustained the allegations in the petition against Mother and Father under section 300, subdivision (j) (sibling abuse or neglect). Father and the paternal grandmother were present at the hearing via videoconference or telephone. The court set the matter for a contested disposition hearing regarding Daphne's placement, as DCFS opposed placement with the paternal grandparents based on the past events discussed above (i.e., Mother and Father's violent altercations at the paternal grandparents' home in violation of the restraining order). There was no discussion regarding ICWA at this hearing.
The disposition hearing for Daphne was held on January 19 and 21, 2021. Mother and Father were present both days via telephone, and the paternal grandmother was present on the second day via telephone. The juvenile court declared Daphne a dependent of the court, removed her from Mother and Father, and granted Mother and Father reunification services (notwithstanding the prior termination of reunification services as to Daisy and Dakota) and monitored visitation. The court ordered DCFS to assess the paternal grandparents as a potential placement for Daphne and gave DCFS discretion to place Daphne there. Daphne remained in foster care. There was no discussion regarding ICWA at this disposition hearing for Daphne.
Father and the paternal grandmother were present at the July 20, 2021 six-month review hearing (§ 366.21, subd. (e)) for Daphne via videoconference or telephone. The juvenile court continued Father's reunification services and terminated Mother's reunification services. DCFS's counsel expressed no opposition to Daphne being placed with the paternal grandparents, but he explained that she could not be placed there yet due to an issue between the paternal grandparents and a state licensing agency (although Daisy and Dakota remained placed with the paternal grandparents). Daphne remained placed in foster care. There was no discussion regarding ICWA at this hearing.
The following month, the issue with the state licensing agency was cleared up, with DCFS's assistance, and DCFS placed Daphne with the paternal grandparents on August 13, 2021.
Mother appealed from the juvenile court's orders at the July 20, 2021 six-month review hearing. As set forth above, she challenges this order only with respect to DCFS's and the juvenile court's compliance with state law implementing ICWA.
Mother also appealed from an October 27, 2021 order and a February 24, 2022 order denying section 388 petitions she filed on August 18, 2021 and December 13, 2021, respectively. We need not set forth the substance of these petitions or the juvenile court's rulings on them because Mother raises no challenge to these orders other than ICWA compliance.
In February 2022, when Mother filed her third appeal in this case, Daisy, Dakota, and Daphne remained placed with the paternal grandparents, and the juvenile court had identified adoption as the permanent plan for Daisy and Dakota. DCFS recommended adoption by the paternal grandparents as the appropriate permanent plan for Daisy and Dakota.
DISCUSSION
I. Applicable Law
Under ICWA, an "Indian child" is an unmarried person under 18 years of age who is (1) a member of a federally recognized Indian tribe or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)
DCFS and the juvenile court "have an affirmative and continuing duty to inquire whether a child" involved in dependency proceedings "is or may be an Indian child." (§ 224.2, subd. (a).) DCFS'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." '" (In re Darian R. (2022) 75 Cal.App.5th 502, 507 (Darian R.), 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).)
"At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child" (§ 224.2, subd. (c)) and order the parents to complete form ICWA-020 (Parental Notification of Indian Status). (Cal. Rules of Court, rule 5.481(a)(2)(C).)
If the juvenile court or social worker "has reason to believe that an Indian child is involved in a proceeding," based on the initial inquiry described above, the court or social worker "shall make further inquiry regarding the possible Indian status of the child," including, but not limited to: (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying and contacting tribes; and (3) contacting tribes and others "that may reasonably be expected to have information regarding the child's membership status, or eligibility." (§ 224.2, subd. (e).) There is reason to believe a child is an Indian child if there is information suggesting that either the child or the parent is a member or may be eligible for membership in an Indian tribe. (§ 224.2, subd. (e)(1).) ICWA notice is required if DCFS or the juvenile court knows or has reason to know a child is an Indian child under any of the circumstances described in section 224.2, subdivision (d). (25 U.S.C. § 1912(a); § 224.3, subd. (a); Cal. Rules of Court, rule 5.481(b)(1).)
II. Analysis
Mother contends DCFS failed to comply with the duty under state law implementing ICWA to inquire of extended family members whether Daisy, Dakota, and Daphne are or may be Indian children within the meaning of ICWA. The only such extended family members Mother identifies in her appellate briefing are the paternal grandparents. In the case of Daphne, Mother further contends DCFS failed to interview Father regarding Daphne's possible Indian status. Mother also contends the juvenile court erred in not ensuring DCFS conducted an appropriate inquiry.
As set forth above, the record shows that DCFS asked Father about possible Indian status after Daisy and Dakota were each detained. The record does not show DCFS made such an inquiry of Father after Daphne was detained.
DCFS argues substantial evidence supports the juvenile court's findings that ICWA does not apply in this case, and the failures to interview the paternal grandparents and reinterview Father upon Daphne's detention were not prejudicial.
In assessing whether remand is required for a failure to comply with the duty of inquiry under state law implementing ICWA, this division has applied the definition of prejudice set forth in In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.). (Darian R., supra, 75 Cal.App.5th at p. 509; In re S.S. (2022) 75 Cal.App.5th 575, 582 (S.S.).) Under the Benjamin M. standard, we will remand the matter only "where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Benjamin M., at p. 744.)
In S.S., we concluded the failure to interview an extended family member (the maternal grandmother) regarding possible Indian status was not prejudicial and declined to remand the matter for such an inquiry. (S.S., supra, 75 Cal.App.5th at p. 581.) There, 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 fostered the child throughout the proceedings and was designated by the juvenile court as the prospective adoptive parent. (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 also declined to remand the matter for inquiry of extended family members (a maternal aunt and the maternal grandfather), concluding the failure to make such an inquiry was not prejudicial. (Darian R., supra, 75 Cal.App.5th at p. 510.) There, both parents denied Indian ancestry, the 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. (Ibid.) 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.)
Here, as in S.S. and Darian R., the record shows DCFS's failure to interview the paternal grandparents regarding the children's possible Indian status (and reinterview Father about same upon Daphne's detention) was not prejudicial under the Benjamin M. standard. As set forth above, Father was raised by the paternal grandparents, and Father and Mother were in contact with the paternal grandparents during these proceedings. Father and Mother denied Indian ancestry, and were under court order to provide information regarding the children's possible Indian status. The record reflects that the paternal grandmother was present at the February 7, 2019 adjudication and disposition hearing for Daisy where the following occurred: (1) Father and Mother each submitted a form ICWA-020, denying Indian ancestry; (2) the juvenile court found there was no reason to know Daisy was an Indian child as defined by ICWA; and (3) the paternal grandmother sought, with the support of Father and Mother, custody of Daisy, but the court did not place Daisy with the paternal grandmother at time. Moreover, the paternal grandparents were present at a hearing on September 21, 2020, where the court allowed Daisy and Dakota to remain in the paternal grandparents' home, over DCFS's strenuous objection and notwithstanding allegations DCFS made against them in a section 387 petition (which were not sustained). The record reflects that at that hearing, the court made a finding that ICWA does not apply. Finally, DCFS initially objected to Daphne's placement with the paternal grandparents.
Although the record on appeal includes reporter's transcripts, these transcripts do not include the February 7, 2019 or September 21, 2020 hearings addressed here. The minute orders reflect the facts we set forth herein about these hearings.
Nothing in the record before us indicates an inquiry of the paternal grandparents by DCFS (or an additional interview of Father) would have meaningfully elucidated the children's possible Indian status. Rather, the record indicates the paternal grandparents (and Father and Mother) were not aware of facts suggesting the children are or may be Indian children. To summarize, the paternal grandmother was present at the February 7, 2019 adjudication and disposition hearing for Daisy, where Father and Mother submitted their ICWA forms denying Indian ancestry and the court made an ICWA finding, and the record does not reflect the paternal grandparents ever brought forth facts indicating ICWA may apply, even when DCFS opposed the children's placement with them. The paternal grandparents participated from the commencement of these dependency proceedings in 2018, and DCFS was in favor of them adopting Daisy and Dakota, who were at the permanent plan stage of the proceedings. The paternal grandparents, along with Mother's and Father's counsel, had a strong incentive at various points throughout these proceedings, to bring forth facts indicating the children are or may be Indian children. They did not. Based on this record, there is no prejudice under the Benjamin M. standard. We affirm the orders and decline to remand the matter for an ICWA inquiry of the paternal grandparents and an additional inquiry of Father.
DISPOSITION
The orders are affirmed.
WE CONCUR: ROTHSCHILD, P. J., BENDIX, J.