Opinion
B331333
03-29-2024
In re F.D., a Person Coming Under the Juvenile Court Law. v. JAMES D. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant James D. Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant I.W. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order terminating parental rights of the Superior Court of Los Angeles County Super. Ct. No. 19CCJP06016, Tiana J. Murillo, Judge. Affirmed.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant James D.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant I.W.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
BENDIX, Acting P. J.
Dependency proceedings commenced in September 2019, and the juvenile court later sustained allegations that mother and father physically abused F.D.'s half sister K.T., father sexually abused K.T., and mother had a developmental delay rendering her incapable of providing regular care and supervision of K.T. and F.D. Almost four years later, in August 2023, the court terminated mother's and father's parental rights over F.D. and K.T. Mother and father (appellants) appeal from the order terminating their parental rights. Their only argument is that the Los Angeles County Department of Children and Family Services (DCFS or the Department) failed to ask maternal aunt and maternal great uncle whether F.D. was an Indian child. Appellants request that this court conditionally reverse the order terminating parental rights and remand the case to the juvenile court to order DCFS to fulfill its duty of inquiry pursuant to Welfare and Institutions Code section 224.2, subdivision (b).
Undesignated statutory citations are to the Welfare and Institutions Code. Section 224.2, subd. (b) provides: "If a child is placed into the temporary custody of a county welfare department pursuant to Section 306 or county probation department pursuant to Section 307, the county welfare department or county probation department has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, 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."
We conclude the social workers did not have to inquire of maternal great uncle because he does not fall within the definition of an extended family member under the relevant statute. We further conclude appellants demonstrate no prejudice from the failure to ask maternal aunt about F.D.'s potential Indian ancestry. In response to two separate inquiries by the juvenile court, mother denied having Indian ancestry. Further, maternal grandmother denied Indian ancestry. The record does not support appellants' statement that interviewing maternal aunt would have borne meaningfully on whether F.D. is an Indian child. We thus affirm.
BACKGROUND
We limit this background to the facts relevant to this appeal.
This appeal concerns only the termination of parental rights over F.D. The juvenile court also terminated parental rights over F.D.'s half sister, K.T. No issue raised on appeal concerns K.T., and the appeal by her father was dismissed. Mother's notice of appeal indicates that her appeal is also from the denial of her section 388 petition to change a court order, but on appeal, mother does not challenge that denial. She only joins in father's arguments.
In September 2019, at the beginning of the dependency proceedings, maternal grandmother denied that F.D. has any Indian ancestry. A social worker spoke to maternal great uncle in September 2019 about whether he could care for the children, but there is no indication that the social worker asked maternal great uncle about Indian ancestry. F.D. was staying with maternal aunt prior to the dependency proceedings. The record contains no indication that social workers asked maternal aunt about Indian ancestry. Mother and maternal grandmother are clients of a regional center.
A regional center "secure[s]" care for a developmentally disabled individual. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 489 .)
At first, DCFS did not locate mother or father; a fortiori DCFS could not ask them about Indian ancestry. On November 6, 2019, father filed a parental notification of Indian status form indicating he had no Indian ancestry as far as he knew. On the same day, mother filed a parental notification of Indian status indicating that she may have Cherokee ancestry.
At a hearing on November 6, 2019, the juvenile court stated father "indicates he has no Indian ancestry as far as he knows." The juvenile court noted mother stated that "she may have some Indian ancestry. She identified the Cherokee tribe." At the November 6, 2019 hearing, the juvenile court asked mother if anyone in her family was a member of the Cherokee tribe and mother responded, "No, no." The court asked DCFS to follow up with maternal grandmother regarding F.D.'s possible Indian ancestry. The court also ordered DCFS to assess maternal aunt for placement of F.D. F.D. was not placed with maternal aunt; the record does not indicate why. DCFS reported that on December 19, 2019, mother and father denied Indian ancestry and on December 6, 2022, mother and father again denied any Indian ancestry.
The hearing to select a permanent plan initially was scheduled for March 9, 2023. Although the court did not select a permanent plan on that day, it discussed with both parents whether there was any chance F.D. had Indian ancestry. The court asked father, "Do you have any new or different information as to whether your family, the family of the mother of your child or your child have [sic] any Native American or Indian ancestry?" Father responded, "Not that I know of."
The court and mother had the following colloquy: "THE COURT: . . . [¶] Ma'am, do you have any new or different information about whether your family, your children, . . . have any Native American ancestry? "THE MOTHER: My family is Indian. "THE COURT: Mom reiterates that her family is Indian."
The court then stated it would ask follow-up questions. "THE COURT: . . . In 2019, ma'am, at some point you said there might be some Cherokee. Do you have any additional information for the court today about what the basis is of your Indian ancestry and whether you have any- "THE MOTHER: Irish.
"THE COURT: Okay. Is there anyone else related to you, ma'am, who is alive who would have additional information about the Indian ancestry?
"THE MOTHER: None of my family is out here.
"THE COURT: . . . Ma'am, you had previously said Cherokee. Are you saying today it's not Cherokee, it's Irish? "THE MOTHER: Yeah, Irish.
"THE COURT: Okay. Mom says Irish. Again, the question is, ma'am, I heard you say none of your family is out here.
"THE MOTHER: Yes, they are not out here. They moved to the Valley. They are not out here.
"THE COURT: Whether they are out here or not, do any of them know anything more about your possible Indian ancestry?
"THE MOTHER: They should.
"THE COURT: Do you have their contact information?
"THE MOTHER: Yes. My mom wanted to talk to you guys anyway."
The juvenile court ordered mother to provide her attorney the contact information for her living relatives regarding mother's ancestry. The court ordered mother's attorney to provide the contact information "directly to the Department forthwith." The court ordered DCFS to evaluate the information mother provided. The court found that it has no reason to know F.D. was an Indian child and ordered the parents, their attorney, and DCFS to keep the court aware of any new information. Also on March 9, 2023, the court ordered DCFS to "[c]onduct further ICWA inquiry on known living relative contacts that are to be provided by Mother."
Shortly after the hearing, on March 22, 2023, a social worker telephoned mother to obtain the contact information in order to inquire as to F.D.'s potential Indian status. Mother did not pick up the phone and her phone did not accept voicemails. The social worker called mother's case worker and was able to speak to mother, who was with her caseworker. Mother "declined" to give the social worker any information that could assist the social worker in contacting mother's relatives about Indian ancestry. Mother "stated that her family is mean to her and she does not want to involve them." Mother was "persistent" in her refusal to provide information.
Also on March 22, 2023, the social worker called father and left a message requesting father to return the call. On April 25, 2023, a social worker again tried to contact father and left him a voicemail requesting that he return her call. On April 25, 2023, a social worker called maternal grandmother, but her phone was not accepting calls. On May 30, 2023, a social worker tried to call father, but father did not answer the call. On May 30, 2023, the social worker also tried to call mother, who responded by text, but did not provide any contact information for her relatives. Father never called the social worker.
After several continuances on July 24, 2023, the juvenile court held a hearing to determine F.D.'s permanent plan. The juvenile court found: "Based on the Department's more recent efforts, I do believe the Department has made . . . reasonable efforts . . . to determine whether I.C.W.A. applies." The court indicated that it was taking judicial notice of its inquiry of mother where she denied any Indian ancestry. The court found F.D. is not an Indian child.
The court stated it would receive briefs from the parties after the section 366.26 hearing and continue the hearing for purposes of issuing its permanent placement order. On August 7, 2023, the court issued its decision. Maternal grandmother and maternal aunt were present in court with mother. The court terminated mother's and father's parental rights over F.D. The court ordered adoption as F.D.'s permanent plan.
DISCUSSION
To reiterate, Father's appeal consists only of his contention that DCFS did not comply with its initial duty of inquiry under state law, specifically section 224.2, subdivision (b). Father contends social workers should have asked maternal aunt and maternal great uncle about F.D.'s possible Indian ancestry. Father argues that DCFS's failure to ask maternal aunt and maternal great uncle about Indian ancestry was "prejudicial as these 'extended family members' possessed information 'likely to bear meaningfully upon whether' [F.D.] was an Indian child." Father "requests this Court conditionally reverse the juvenile court's judgment terminating father's parental rights and remand the matter with instructions to ensure the Department comply with its duty of initial inquiry [under ICWA]." Mother joins in father's arguments. Mother also requests that if this court reverses the order terminating father's parental rights, it also reverse the order terminating her parental rights.
The requirements of state law regarding inquiry are greater than those required under federal law. (In re T.G. (2020) 58 Cal.App.5th 275, 289-290.)
An" 'Indian child'" is "any 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(4); see also § 224.1, subd. (a) [adopting federal definition of" 'Indian child' "].) The Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.), does not apply based solely on the parent's Indian ancestry but instead, the" 'definition of "Indian child"' is" 'based on the child's political ties to a federally recognized Indian Tribe, either by virtue of the child's own citizenship in the Tribe, or through a biological parent's citizenship and the child's eligibility for citizenship.' [Citation.]" (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1009, italics omitted.)
"The juvenile court and DCFS 'have an affirmative and continuing duty to inquire whether a child for whom a [section 300] petition . . . has been filed, is or may be an Indian child.' (§ 224.2, subd. (a).) . . . Inquiry includes, but is not limited to, 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 Adrian L. (2022) 86 Cal.App.5th 342, 349-350, fn. omitted.) Extended family members include "adults who are the 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." (In re H.B. (2023) 92 Cal.App.5th 711, 719.) "Where . . . a parent largely fails to cooperate with DCFS or to provide names and contact information for extended family members, DCFS's ability to conduct an exhaustive ICWA inquiry necessarily is constrained." (In re Q.M. (2022) 79 Cal.App.5th 1068, 1082.)
"DCFS's failure to inquire of extended family members does not result in automatic reversal. [Citations.] Instead, we must examine the record and reverse or remand only if that review shows prejudice because there was' "information that was likely to bear meaningfully upon whether the child is an Indian child."' [Citation.]" (In re Adrian L., supra, 86 Cal.App.5th at p. 350; In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.) "Whether remand for an expanded inquiry is appropriate must also be assessed in light of how much information the Department has already obtained. The more family members the Department has already inquired of, the less the benefit that is likely to obtain from an additional inquiry. At the same time as the incremental value of another interview decreases, the burden of locating and contacting the next family member typically increases. The juvenile court has discretion to determine when enough is enough." (In re H.B., supra, 92 Cal.App.5th at pp. 720-721.)
We recognize that appellate courts apply different tests for assessing prejudice, and the issue is pending in the Supreme Court. (See, e.g., In re Dezi C. (2022) 79 Cal.App.5th 769, 777-778 [describing the diversity of rules for prejudice], review granted Sept. 21, 2022, S275578.) This division has followed in In re Benjamin M., supra, 70 Cal.App.5th at p. 744, which provides that prejudice exists when the "record demonstrates that the agency has not only failed in its duty of initial inquiry, but . . . that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (See In re Adrian L., supra, 86 Cal.App.5th at pp. 351-352; In re A.C. (2022) 75 Cal.App.5th 1009, 1017; In re S.S. (2022) 75 Cal.App.5th 575, 582-583; In re Darian R. (2022) 75 Cal.App.5th 502, 509-510.)
DCFS had no obligation to ask maternal great uncle about F.D.'s potential Indian ancestry because great uncle is not included in the definition of extended family member. (25 U.S.C.A. § 1903(2); 224.1, subd. (c) [adopting definition in 25 U.S.C. § 1903].) Father quotes the definition of "[e]xtended family members," but offers no theory as to how maternal great uncle falls within that definition.
Assuming that DCFS did not conduct its duty of inquiry by failing to interview maternal aunt about F.D.'s potential Indian ancestry, there was no prejudice. Although mother reported possible Cherokee ancestry, she later denied any Indian ancestry and her denial was confirmed by maternal grandmother. The record does not support the inference that maternal aunt would have had meaningful information unavailable to maternal grandmother about F.D.'s "political ties to a federally recognized Indian Tribe, either by virtue of the child's own citizenship in the Tribe, or through a biological parent's." (In re Ezequiel G., supra, 81 Cal.App.5th at p. 1009, italics omitted.) In contrast to In re Benjamin M. where father made no appearance and none of his extended family members was questioned about Indian ancestry, here mother was questioned twice by the juvenile court and maternal grandmother repeatedly denied Indian ancestry. (In re Benjamin M., supra, 70 Cal.App.5th at p. 740.)
The record also does not show that interviewing maternal great uncle would have borne meaningfully on whether F.D. was an Indian child. It does not support the inference that maternal great uncle would have had information unavailable to maternal grandmother, who repeatedly denied that F.D. had Indian ancestry.
Father's contrary arguments are unpersuasive. Father states mother "did not definitively deny Indian ancestry." Assuming arguendo this is an accurate statement, maternal grandmother did definitively deny Indian ancestry. Father states given mother's "estrangement" from maternal relatives, it was "unlikely" that they shared information with her. The record does not show mother was estranged from maternal aunt, who was present with mother for the final hearing. On March 9, 2023, the court ordered mother and her attorney to keep the court apprised of any new information and neither provided new information notwithstanding mother's contact with maternal aunt. (See In re Darian R., supra, 75 Cal.App.5th at p. 510.)
Citing In re S.S., supra, 75 Cal.App.5th at p. 575, father contends there was no "incentive" for mother's relatives to claim Indian ancestry. In In re S.S., we found that the maternal grandmother, who sought placement of the dependent child, had "a strong incentive to bring to the court's attention any facts that suggest that S.S. is an Indian child." (Id. at p. 582.) Here, maternal aunt, who was being evaluated for placement arguably had similar incentive. Even if maternal aunt did not have the same incentive as the grandmother in In re S.S., the absence of that incentive would not be dispositive in assessing whether the "record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.) Finally, father emphasizes mother and maternal grandmother were regional center clients but cites to no evidence showing that their need for assistance from the regional center prevented them from understanding or accurately reporting on Indian ancestry.
On appeal, the sole relief appellants seek is a remand "with instructions to ensure the Department comply with its duty of initial inquiry." Appellants, however, cite no legal authority supporting their request for another such order when in the face of the court's prior order to DCFS to make such an inquiry, mother refused to provide contact information despite the court's order requiring her to do so. Father was similarly uncooperative in not returning the social worker's phone calls. Under these circumstances, appellants' assumption that DCFS ignored its duty of inquiry is not supported by the record.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: CHANEY, J., WEINGART, J.