Opinion
B316684
08-04-2022
In re Emma B., a Person Coming Under the Juvenile Court Law. v. JASMINE B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn Harrison, Acting 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NOT TO BE PUBLISHED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 of the Superior Court of Los Angeles County No. 19CCJP03043A Jean M. Nelson, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
STRATTON, P. J.
Mother Jasmine B. appeals the juvenile court's order terminating her parental rights to daughter Emma B. (born 2019). She does not challenge the basis of the termination of her rights. Her sole contention is that the Los Angeles Department of Children and Family Services (DCFS) did not comply with its initial duty of inquiry under Welfare and Institutions Code section 224.2, subdivision (b). Specifically, Mother contends DCFS failed to ask maternal extended family members (grandmother and uncle) whether Emma B. is an "Indian child" within the meaning of Section 1903 of the federal Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
Undesignated statutory references are to the Welfare and Institutions Code.
We find the juvenile court erred in determining that ICWA did not apply without evidence that DCFS questioned extended family members with whom it had contact. However, we conclude the error was harmless because the record reflects maternal grandmother, maternal great-grandmother, and maternal great-grandfather were all born in Zacatecas, Mexico and there is no reason to believe further inquiry would have established that Emma is an Indian child.
BACKGROUND
In May 2019, DCFS filed a section 300 petition alleging infant Emma B. was at risk as a result of mother's mental and emotional problems. At the detention hearing Mother initially checked a form indicating she might have Indian ancestry with an "unknown" tribe. On June 21, 2019, however, Mother denied to DCFS that she had American Indian ancestry. In 2017, with respect to her older son's dependency case, Mother had also denied Indian heritage. In that case the juvenile court found ICWA inapplicable.
Mother told DCFS she was born in Los Angeles and had been raised by her mother after her parents separated. She said her family was from Mexico. Indeed, in a previous contact with DCFS with respect to her older child, Mother had said maternal grandfather had been deported to Mexico. The record also reflects DCFS learned maternal grandmother, maternal great grandmother, and maternal great grandfather had all been born in Zacatecas, Mexico.
At the adjudication hearing on August 12, 2019, the juvenile court declared Emma a dependent of the court, removed her from parental custody, denied reunification services to Mother, and found ICWA did not apply. At the time Mother was living with maternal grandmother. In January 2020, DCFS again reported Mother said her family was from Mexico and she denied American Indian ancestry. In March 2020, Mother gave birth to a third child and disappeared with the infant. The juvenile court issued arrest warrants for Mother and Father (who is not a party to this appeal). Although the parents participated in video calls with Emma, they refused to disclose their whereabouts. On October 22, 2021, the juvenile court terminated Mother's and Father's parental rights as to Emma. The court found Emma adoptable and approved a proposed plan for Emma's adoption by her foster parents.
We grant DCFS's request that we take judicial notice of Mother's denial of Indian ancestry in the case of her newborn third child, a full sibling of Emma B.
This appeal followed.
DISCUSSION
In enacting ICWA, Congress found "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions." (25 U.S.C. § 1901(4).) 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." (25 U.S.C. § 1902.) The court is obligated to ask each "participant" in the proceedings whether they have reason to believe the child is an Indian child and to instruct the parties to inform the court if they subsequently receive information that provides a reason to know the child is an Indian child. (In re Austin J. (2020) 47 Cal.App.5th 870, 882-883.)
ICWA authorizes states to provide even more protection than the federal statute provides. In 2006, the California legislature enacted parallel statutes to affirm ICWA's purposes and mandate compliance with ICWA in all Indian child custody proceedings. (In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.) In California, the child protection agency is obligated to ask "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." The child protection agency, in this case DCFS, must complete the Indian Child Inquiry Attachment form ICWA-010(A) and attach it to the petition. (Cal. Rules of Court, rule 5.481(a)(1).)
Here, DCFS did not ask Mother's extended family members about their Indian ancestry, despite having contact with maternal grandmother, maternal uncle, and aunt. This was a violation of California law. But the next question is whether the error was prejudicial. A prerequisite to reversal of a trial court's decision in California is a showing that a miscarriage of justice occurred. (Cal. Const., art. VI, § 13.) We find no prejudice here.
Where the parents were raised by their own biological relatives and where the record suggests no reason to believe that the parents' knowledge of their own heritage is incorrect or that the children may have Indian heritage, no prejudice arises from DCFS's failure to conduct a complete inquiry. (In re Dezi C. (2022) 79 Cal.App.5th 769.) Here, Mother was raised by her biological mother and with her biological brother. She was still living with her mother at the time the petition was filed. The record also reflects DCFS learned maternal grandmother, maternal great-grandmother, and maternal great-grandfather were all born in Zacatecas, Mexico and maternal grandfather had been deported to Zacatecas, Mexico by the United States. There is nothing in the record to suggest that Mother's denial of American Indian heritage was incorrect, uninformed, or unfounded. Nor does the record otherwise reflect a reason to believe Emma was an Indian child.
We acknowledge, as does the court in In re Dezi C., that California courts have staked out three different rules for assessing whether a defective initial inquiry is harmless. We adopt and apply the fourth rule announced in In re Dezi C.
DISPOSITION
The trial court's order is affirmed.
I concur: HARUTUNIAN, J. [*]
WILEY J., Dissenting.
This is my seventh dissent on this issue. The Department continues its pattern of violating the law. Yet it continues to escape consequences on appeal. I think this is wrong and would find prejudice. (See, e.g., In re J.W. (July 19, 2022, B313447) Cal.App.5th,[2022 WL 2816867 at pp. *4-*5] (dis. opn. of Wiley, J.).)
[*] Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.