Opinion
B314349
03-28-2022
In re S.P., a Person Coming Under the Juvenile Court Law. v. E.P., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly Emling, Social Justice Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 19CCJP03378, Stephen C. Marpet, Judge Pro Tempore. Affirmed.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly Emling, Social Justice Counsel, for Plaintiff and Respondent.
ROTHSCHILD, P.J.
E.P. (Mother) appeals from the juvenile court's order terminating her parental rights under Welfare and Institutions Code section 366.26. She contends the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with its duty of inquiry under section 224.2 and related rules of court. We hold that any such failure was harmless, and therefore affirm.
Subsequent statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
Because the sole issue on appeal is whether DCFS has complied with its duty of inquiry under California law, we focus our summary of facts and procedural history on the facts relevant to that issue.
On May 29, 2019, DCFS filed a petition under section 300 for dependency court jurisdiction over S.P. S.P. was less than one month old at the time. DCFS alleged, under section 300, subdivision (b), that there was a substantial risk of serious physical harm to S.P. as a result of her parents' failure or inability to supervise or protect her and their inability to provide regular care for her. DCFS further alleged, under subdivision (j) of section 300, that S.P.'s two siblings (the siblings) have been abused or neglected and there is a substantial risk that S.P. will be abused or neglected.
S.P.'s two siblings were the subjects of a prior dependency proceeding (the siblings' case). In the siblings' case, the court appointed the paternal grandmother the legal guardian of the siblings. The juvenile court terminated its jurisdiction in the siblings' case on May 23, 2019.
Attached to the petition concerning S.P. is Judicial Council form ICWA-010(A), stating a social worker "made" an "Indian child inquiry" and "questioned" Mother and S.P.'s father (Father). As a result of this inquiry, the social worker stated under oath that S.P. "has no known Indian ancestry."
On the same day DCFS filed its petition, it filed a detention report stating: "The Indian Child Welfare Act does not apply[;] the family denies having any known Indian Ancestry."
Although the court's minute order regarding the detention hearing states that Father, as well as Mother, filed Judicial Council form ICWA-020, our record does not include a copy of Father's form. In her opening brief on appeal, Mother states she and Father "completed [a] Parental Notification of Indian Status form [sic], stating they had no known Indian ancestry."
On May 30, 2019, Mother signed a parental notification of Indian status form (Judicial Council Form ICWA-020, rev. Jan. 1, 2008), on which she marked the box next to the statement: "I have no Indian ancestry as far as I know."
According to DCFS's detention report, Mother, Father, and S.P. had been living with maternal relatives in an apartment in Los Angeles until May 23, 2019. On that date, Mother, Father, and S.P. moved to a residence in Palmdale. At some point, they began staying with the maternal relatives in the Los Angeles apartment Thursdays through Sundays each week and in Palmdale on the other days. By September 2020, they had moved back into the maternal relatives' Los Angeles apartment.
Mother and Father appeared at the detention hearing held on May 30, 2019. The court asked Mother about her ICWA-020 form, and Mother confirmed she has no Indian ancestry as far as she knew. The court then asked Father: "[W]e, previously, found that you do not have American Indian in your family's background as far as you know; is that correct?" Father answered, "That's correct." The court then stated, "[A]s to both Mother and Father, I'm finding this child is not an Indian child, pursuant to ICWA, as I have no reason to know."
After the hearing, the court detained S.P. from her parents, and DCFS placed her with her siblings in the home of the paternal grandparents. The court's minute order states the "[p]arents are to keep [DCFS], their [a]ttorney and the [c]ourt aware of any new information relating to possible ICWA status."
In its jurisdiction/disposition report, filed on June 18, 2019, DCFS reported the "Indian Child Welfare Act does not apply." DCFS attached a report filed in the siblings' case on April 16, 2018. In the April 16, 2018 report, DCFS stated the court had previously "found no reason to know that [the siblings] are Indian [c]hildren, as defined under ICWA, and did not order [n]otice to any tribe or the [Bureau of Indian Affairs]. Therefore, the Indian Child Welfare Act does not apply."
On June 20, 2019, the court in S.P.'s case sustained the section 300, subdivision (j) allegation, dismissed the subdivision (b) allegation, and ordered monitored visitation and counseling for the parents.
After a disposition hearing held on August 1, 2019, the court declared S.P. to be a dependent of the court, removed S.P. from the parents' custody, and ordered DCFS to provide reunification services to the parents.
In reports to the court filed in December 2019, September 2020, and May 2021, DCFS reported the "Indian Child Welfare Act does not apply."
In September 2020, DCFS reported the permanent plan for S.P. was legal guardianship by the paternal grandparents. DCFS later identified the permanent plan as adoption by the paternal grandparents.
According to a social worker's delivered service log, a social worker met with paternal grandparents on October 2, 2020. The log states the social worker "asked about any Indian Ancestry and they reported that they Do/Do Not [sic] have Indian Ancestry."
On February 5, 2021, the court terminated reunification services and set a hearing pursuant to section 366.26.
On June 4, 2021, the court ordered adoption as the permanent plan for S.P.
On July 30, 2021, the court held the section 366.26 hearing, found that S.P. was adoptable, and terminated the parents' parental rights.
Mother filed a timely notice of appeal.
DISCUSSION
Mother contends DCFS failed to satisfy its duty under California law to inquire whether S.P. is or may be an Indian child within the meaning of ICWA. Although there is no dispute that social workers made the requisite inquiry of Mother, Father, and the paternal grandparents, Mother argues the social workers failed to conduct an inquiry of "numerous extended family members" of whom DCFS had contact information. In particular, she points to the paternal grandmother, the maternal grandmother, a maternal uncle, and at least two maternal aunts. The contact information for the maternal relatives is the apartment where Mother and Father lived with maternal relatives in Los Angeles.
DCFS argues any failure to inquire of extended family members in this case was not prejudicial and the court's order terminating parental rights should therefore be affirmed. We agree with DCFS.
"Under California law, the court and county child welfare department 'have an affirmative and continuing duty to inquire whether a child,' who is the subject of a juvenile dependency petition, 'is or may be an Indian child.' [Citations.] 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.' (§ 224.2, subd. (b).)" (In re Austin J. (2020) 47 Cal.App.5th 870, 883 (Austin J.).) Extended family members ordinarily include the child's grandparents, aunts, and uncles, among others. (Cal. Rules of Court, rule 5.481(a)(4)(A); 25 U.S.C. § 1903(2).)
The standard for determining whether a social service agency's failure to its duty of inquiry requires reversal of a juvenile court's order is unsettled. As we recently explained in In re S.S. (2022) 75 Cal.App.5th 575, "[s]ome courts have addressed this problem by requiring an appellant who asserts a breach of the duty of inquiry to, at a minimum, make an offer of proof or other affirmative assertion of Indian heritage on appeal. [Citations.]" (Id. at pp. 581-582; see, e.g., In re Noreen G. (2010) 181 Cal.App.4th 1359, 1388; In re H.B. (2008) 161 Cal.App.4th 115, 122; In re N.E. (2008) 160 Cal.App.4th 766, 769; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431.) Division Seven of this court has rejected such a requirement, stating that a parent "does not need to assert he or she has Indian ancestry to show a child protective agency's failure to make an appropriate inquiry under ICWA and related law is prejudicial." (In re Y.W. (2021) 70 Cal.App.5th 542, 556.)
In In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.), the court considered alternative formulations for a harmless error standard and announced the following test: "[I]n ICWA cases, a court must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Id. at p. 744.)
In Benjamin M, the father of one of the mother's children did not appear in the dependency proceeding or disclose whether he had any Indian ancestry, and social workers did not interview the brother of that child's father about potential Indian ancestry. (Benjamin M., supra, 70 Cal.App.5th at p. 740.) The Court of Appeal held the failure was prejudicial because "[the] [f]ather's brother's knowledge of his own Indian status would be suggestive of [the] [f]ather's status. While we cannot know how [the] [f]ather's brother would answer the inquiry, his answer is likely to bear meaningfully on the determination at issue about his brother." (Id. at p. 745.)
We recently discussed the Benjamin M. test in In re Darian R. (2022) 75 Cal.App.5th 502 (Darian R.). In Darian R., the mother and father had two children who were the subject of a juvenile dependency proceeding in 2015 and 2016. In that proceeding, the juvenile court had found ICWA did not apply. After the parents had a third child, DCFS commenced a new dependency proceeding. The mother and father denied any Indian ancestry. Although a social worker had been in contact with a maternal aunt and a maternal grandmother, there was no evidence the social worker asked them about Indian ancestry. On appeal from an order terminating parental rights, the mother argued that DCFS had failed to comply with its duty of inquiry because social workers had not interviewed her extended family members about the children's possible Indian ancestry. (Id. at p. 504.)
We agreed with the mother in Darian R. that the failure to inquire of extended family members violated DCFS's duty of inquiry, but concluded the failure was harmless. (Darian R., supra, 75 Cal.App.5th at pp. 509-510.) We explained: The "[m]other does not contest that in 2015, the juvenile court found ICWA did not apply to [two of the three children]. It is undisputed that [all three children] have the same parents and thus, the same ancestry." (Id. at p. 509.) We distinguished Benjamin M. on this basis, stating, in contrast to Benjamin M., "[I]t is undisputed that the juvenile court had already found in 2015 that ICWA did not apply to two of the children when all three children have the same parents." (Id. at p. 510) We further reasoned that, in Benjamin M., "the mother was challenging the social services agency's failure to interview a paternal relative whom the mother may not have known. [In Darian R., however, the] mother at various times lived with the relatives she claims DCFS failed to interview" and had "been under court order to continue providing information relevant to ICWA." (Id. at pp. 509-510)
We recognize there is a split of authority. (See In re Antonio R. (Mar. 16, 2022, B314389) Cal.App.5th [2022 WL 794843 at p. *7] [disagreeing with Darian R.].)
Here, as in Darian R., the juvenile court had found in a prior dependency proceeding involving children of the same parents ICWA did not apply. It does not appear from our record, and Mother does not assert, that the prior finding had been challenged or reversed. Indeed, the court's statement to Father at the detention hearing in the instant case that the court had "previously . . . found that you do not have American Indian in your family's background as far as you know," appears to refer to the finding in the siblings' case that ICWA does not apply, and indicates that the prior finding had not changed.
As in Darian R., it is undisputed the children in the siblings' case "have the same parents and thus, the same ancestry," as the child in the instant proceeding. (Darian R., supra, 75 Cal.App.5th at p. 509.) It follows that, if ICWA did not apply in the siblings' case, it would not apply to S.P.'s case, and the failure to conduct an inquiry of extended family members would not likely bear meaningfully upon whether S.P. is an Indian child. (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
Mother contends, however, we cannot rely on the prior finding because the report in the siblings' case stating that ICWA did not apply was filed prior to recent statutory changes. At the time the report was filed in the siblings' case, social workers were not required to inquire of extended family members unless the social worker knew or had a reason to know the child is an Indian child. (Former § 224.3, subd. (c).) Since January 1, 2019, however, social workers must inquire of extended family members even in the absence of a reason to know the child is an Indian child. (Stats. 2018, ch. 833, § 5.) Although Mother is correct about the statutory change, her point is blunted by the fact the siblings' case did not terminate until May 2019. Thus, although the interim report filed in the siblings' case, which DCFS relied on in S.P.'s case, was filed in 2018, DCFS's "affirmative and continuing duty to inquire" of extended family members (§ 224.2, subd. (a) & (b)) was in place while the siblings' case was ongoing. (See In re A.M. (2020) 47 Cal.App.5th 303, 321 ["juvenile court has a continuing duty to determine whether ICWA applies"].) Again, the finding that ICWA did not apply in the siblings' case was neither challenged nor reversed, and was reaffirmed by the juvenile court's acknowledgment of the finding when it questioned Father at the detention hearing in S.P.s case. There is thus no reason to believe the court's finding that ICWA did not apply in the siblings' case was based solely on pre-2019 law.
Mother also refers to the parental grandmother as an extended family member whom social workers should have inquired about possible Indian ancestry. We reject this argument. According to the social worker's service log, the social worker asked the parental grandparents and S.P.'s caregivers "about any Indian Ancestry and they reported that they Do/Do Not [sic] have Indian Ancestry." The phrase "Do/Do Not" is patently ambiguous and contradictory. In light of the social worker's subsequent report to the court, however, that the "Indian Child Welfare Act does not apply," we reasonably infer the word "Do" is a typographical or clerical error, and that the paternal grandparents reported that they do not have Indian ancestry. This inference is further supported by the court's finding in the siblings' case-in which the paternal grandmother was appointed the children's guardian- that ICWA does not apply.
For the foregoing reasons, we hold appellant has failed to show that the failure to inquire of extended family members about S.P.'s Indian ancestry under the circumstances in this case is prejudicial.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: CHANEY, J., VOGEL, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.