Opinion
B315718
07-12-2022
In re F.D. et al., Persons Coming Under the Juvenile Court Law. v. FRANK D., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19CCJP00412, Stacy Wiese, Judge. Conditionally affirmed with directions.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
BENDIX, Acting P. J.
Frank D. (father) appeals from a juvenile court order terminating his parental rights. Father argues that respondent Los Angeles County Department of Children and Family Services (DCFS) failed to comply with state law (Welf. & Inst. Code,§ 224.2) implementing the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). Specifically, father argues that, although father and mother J.C. (mother) both disclaimed any Indian ancestry, DCFS was required to interview the children's extended family members regarding Indian ancestry as well. DCFS concedes it failed to interview extended family members, but counters that the error was not prejudicial because interviewing the extended family members would not have produced meaningful information about the children's Indian ancestry.
Undesignated statutory citations are to the Welfare and Institutions Code.
Mother is not a party to this appeal.
On this record, we cannot conclude DCFS's failure to interview extended family members was harmless. The record indicates that mother was estranged from maternal grandfather for most of her life, and therefore may not have been fully informed regarding her ancestry. That fact distinguishes the instant case from others in which the record indicated a parent's declaration that the parent had no Indian ancestry likely was reliable. Accordingly, we conditionally affirm the order terminating parental rights and remand for further ICWA inquiry. BACKGROUND
Because the sole issue on appeal is compliance with state law implementing ICWA, a detailed recitation of the non-ICWA related background is not necessary to the resolution of this appeal.
On January 22, 2019, DCFS filed a petition under section 300 seeking to detain minors F.D., K.D., and A.D., then ages five, three, and one, from father and mother. The petition alleged violent altercations between the parents in the children's presence. DCFS amended the petition on March 1, 2019, to add allegations that father abused alcohol and used marijuana.
In advance of the detention hearing, mother and father both signed ICWA-020 forms indicating they had no Indian ancestry as far as they knew. Mother and father were both present at the detention hearing, as were the children, maternal grandmother, and paternal great aunt. The juvenile court asked, "Is there any American Indian ancestry, mother, father?" Mother's counsel and father's counsel both answered, "No." The court found, "There is no reason to know that the child[ren are] Indian child[ren] within the meaning of ICWA and I find that ICWA does not apply."
The juvenile court ordered the children detained, and DCFS placed them with paternal great aunt. The minute order for each child from the detention hearing read, "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 the Department, their Attorney and the Court aware of any new information relating to possible ICWA status. ICWA-020, the Parental Notification of Indian Status[,] is signed and filed."
DCFS filed a jurisdiction/disposition report on March 4, 2019. The report described a prior dependency case in 2014 involving parents and then-infant F.D. The report stated that in that prior dependency case, the juvenile court found that it did "not have a reason to know that [F.D. was] an Indian Child," and did not order notices to any tribes or the BIA. The court in the prior case ordered the parents to keep DCFS, their attorney, and the juvenile court aware of any new information relating to ICWA status, and noted the filing of signed parental notification of Indian status forms. The prior case ended with the juvenile court returning F.D. to mother and father and terminating jurisdiction.
The jurisdiction/disposition report also stated that on February 26, 2019, a month after the detention hearing in the instant case, a dependency investigator asked father if he had Indian ancestry, and father said no, consistent with his ICWA-020 form and his counsel's response to the juvenile court at the detention hearing. The investigator asked father whether mother had Indian ancestry, and father said, "I don't think so." Mother missed her appointment with the investigator so the investigator did not interview her. Although DCFS social workers spoke with mother on later occasions, the record does not indicate they asked her further about possible Indian ancestry.
The jurisdiction/disposition report contained biographical information about mother and father obtained in the 2014 dependency case. The report indicated that mother's parents separated when she was an infant, and she was raised by her mother (maternal grandmother). Mother indicated she had a "distant relationship" with her father (maternal grandfather), whom she did not visit until she was 13, and who "shortly thereafter . . . 'disowned' her because she was a 'troublemaker.' "
On June 10, 2019, the juvenile court sustained the allegations in the amended section 300 petition except for the claim that father used marijuana. On October 16, 2020, the juvenile court terminated reunification services for mother and father, finding they were not in compliance with the case plan and had made minimal progress in addressing the issues that led to the detention of the children. A year later, on October 13, 2021, the juvenile court terminated mother's and father's parental rights. The court declared adoption as the appropriate permanent plan and designated maternal grandmother as the prospective adoptive parent.
Father timely appealed. Mother did not appeal.
DISCUSSION
The only issue in this appeal concerns the adequacy of DCFS's inquiry into the children's ancestry as required by state law implementing ICWA. Father does not otherwise challenge the orders issued in this case.
"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).)
Father argues DCFS did not fulfill its duties under state law implementing ICWA because DCFS social workers never interviewed available extended family members as to whether the children might be Indian children. DCFS concedes this was error. DCFS nonetheless contends the error was harmless under the test for prejudice articulated in In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.).
Benjamin M. held that the failure to interview an extended family member about Indian ancestry is prejudicial "where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Supra, 70 Cal.App.5th at p. 744.) In that case, the appellate court concluded the failure to inquire of extended family members was prejudicial because the father of one of the children never appeared in the proceeding and father's brother was available to ask about whether father had Indian ancestry. (Id. at p. 745.)
Similar to Benjamin M., opinions from this division have assessed whether ICWA error was prejudicial by evaluating whether further investigation was likely to produce meaningful information about whether a child is an Indian child. In In re A.C. (2022) 75 Cal.App.5th 1009, 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." (Id. 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.)
In contrast, 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 In re S.S. (2022) 75 Cal.App.5th 575 (S.S.), we similarly rejected the argument that DCFS's failure to interview the maternal grandmother about Indian ancestry was prejudicial. (Id. 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 over DCFS's objection. (Id. at pp. 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.)
DCFS argues that Darian R. and S.S. support a finding of harmless error here. As in Darian R., in the instant case there was a previous finding in 2014 that ICWA did not apply. Also, the juvenile court ordered mother and father to update their attorneys, DCFS, and the court with any new information relating to their ICWA status, yet mother and father gave no indication they had any such information. As in S.S., maternal grandmother sought placement of the children, and thus, DCFS argues, had the incentive to inform the court of any Indian ancestry to take advantage of ICWA's preference for placement with extended family.
There are key factual distinctions between the instant case and Darian R. and S.S. that render those prior cases inapposite. In Darian R., it was highly unlikely the mother would not have knowledge of her ancestry, given that she lived with her father and sister and was not estranged from her extended family. Here, in contrast, the record reflects that mother was estranged from her birth father, the children's maternal grandfather. According to mother's biographical information in the jurisdiction and disposition report, maternal grandfather separated from maternal grandmother when mother was a baby. Although maternal grandfather briefly reunited with mother in her teen years, he soon after" 'disowned'" her. Thus, akin to the mother raised in foster care in A.C., and unlike Darian R., we cannot be confident on this record that mother's declaration that she had no Indian ancestry was fully informed, given her estrangement from maternal grandfather. For the same reason, unlike in Darian R., we are not reassured by the 2014 finding that ICWA did not apply, when that finding may also have been based on an ill-informed declaration from mother.
Assuming arguendo father could not show prejudice from a lack of inquiry into his own heritage, he nonetheless has standing to assert ICWA error based on DCFS's failure adequately to investigate mother's heritage. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 339 [non-Indian parent has standing to assert ICWA error on appeal].)
S.S. also differs from the instant case in that in S.S., the maternal grandmother was seeking placement over the objection of DCFS, who preferred adoption by the person who had fostered the child throughout the proceedings. (S.S., supra, 75 Cal.App.5th at p. 580.) Given this controversy, the maternal grandmother in S.S. had a strong incentive to invoke ICWA, if applicable, to strengthen her chances of obtaining placement. Further, she was assisted in that effort by two attorneys, namely counsel for the mother and the child, who presumably would be aware of ICWA and its relative placement preference.
In the instant case, in contrast, it appears maternal grandmother was the only person seriously considered as the prospective adoptive parent, with no objection from DCFS. The record does not disclose that counsel for either parent or the children was advocating for placement with maternal grandmother-indeed, the issue appears to have been uncontroversial. The incentive the maternal grandmother and the attorneys had in S.S. to explore the child's Indian heritage was not present here.
DCFS argues it is significant that maternal grandmother and paternal great aunt were at the detention hearing, yet "[n]either relative spoke up in disagreement with the parents' answers" to the juvenile court's ICWA inquiries. We decline to ascribe any substantive meaning to maternal grandmother's and paternal great aunt's silence. The court's questions were directed expressly to the parents. The record does not indicate if the relatives in the audience, who likely were supervising the children also in attendance, heard the court's questions, much less understood their significance. Even if they had heard the questions, they understandably might have been reluctant to speak up when the court had not addressed them and they were neither parties nor represented by counsel.
DCFS argues that because the trial court ordered mother and father to update the court, DCFS, and their attorneys regarding any new information relating to ICWA, we may presume from their silence, as well as maternal grandmother's and paternal great aunt's silence, that they had no further information on this issue. We considered a similar order a factor in favor of a harmless error finding in Darian R. (Darian R., supra, 75 Cal.App.5th at p. 510.) As we have explained, however, mother's apparent estrangement from maternal grandfather distinguishes this case from Darian R., and prevents us from attributing significance to mother's silence on the issue of her heritage, even in the face of the court's order.
Father contends we should reverse the order terminating parental rights and remand for a proper ICWA inquiry. (See In re A.B. (2008) 164 Cal.App.4th 832, 839; In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1456.) The better course, as reflected in recent cases from this district, is to conditionally affirm the order terminating parental rights. (In re Antonio R. (2022) 76 Cal.App.5th 421, 436; In re Y.W. (2021) 70 Cal.App.5th 542, 559.) A conditional affirmance of the termination order limits the juvenile court's authority to modify that order (see § 366.26, subd. (i)(1)), which reduces the chance of further delays in establishing permanency for the children apart from the required ICWA inquiry.
We note that Benjamin M.'s harmless error test focuses on whether there is "readily obtainable information," regarding a child's heritage (supra, 70 Cal.App.5th at p. 744), and the record here does not disclose if information about maternal grandfather's side of the family is readily obtainable, given mother's estrangement from him. It is not our intention that DCFS turn over every possible stone to investigate the children's heritage, merely that DCFS make reasonable efforts to interview extended family members, as defined by ICWA, on both mother's and father's sides of the family. The record does not allow us to conclude further inquiry would not disclose useful information on the children's heritage.
DISPOSITION
The order terminating parental rights is conditionally affirmed. We remand to the juvenile court for DCFS and the court to comply with the inquiry and notice provisions of ICWA and California law consistent with this opinion. If the court finds the children are Indian children, it shall conduct further proceedings in compliance with ICWA and related California law. If not, the court's original order terminating parental rights will remain in effect.
We concur: CHANEY, J., KELLEY, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.