Opinion
B316116
08-18-2022
In re Z.B. et al., Persons Coming Under the Juvenile Court Law. v. JOY G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly Emling, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. No. 18CCJP00415B-C, Kristen Byrdsong, Judge Pro Tempore. Affirmed.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly Emling, Deputy County Counsel for Plaintiff and Respondent.
HARUTUNIAN, J. [*]
INTRODUCTION
Joy G. (Mother), mother of minors Z.B. and L.B., appeals from the juvenile court's findings and orders terminating her parental rights. Mother's sole asserted basis for reversal is that the Los Angeles County Department of Children and Family Services (the Department) failed to ask extended maternal family members whether Z.B. or L.B. is an "Indian child" within the meaning of Section 1903 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) (ICWA), as required by section 224.2, subdivision (b), of the Welfare and Institutions Code.
Undesignated statutory references are to the Welfare and Institutions Code.
We find that the juvenile court erred in determining that ICWA did not apply. There was no evidence that the Department questioned extended maternal family members. However, we conclude that the error was harmless because Mother participated in the proceedings below and denied Indian ancestry. The record before us does not provide any reason to believe that she may have Indian ancestry and thus that the Department's failure to properly inquire was prejudicial to the juvenile court's ICWA finding as to Mother. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Due to the limited nature of this appeal, we recite only the facts and procedural background relevant to ICWA inquiry.
In January 2018, the Department commenced proceedings requesting that the juvenile court exercise dependency jurisdiction over siblings Z.B. (born August 2015) and L.B. (born February 2017). The Department filed a petition under section 300, subdivisions (a) and (b), based on allegations of domestic violence by the children's father Melvin B. (Father) involving Mother in the children's presence, and Father's substance abuse. The petition also alleged that Mother failed to protect the children from Father's domestic violence and from his substance abuse.
ICWA-010(A) forms for both children were attached to the Department's section 300 petition, indicating that in December 2017 the Department's social worker questioned both parents and both denied Indian heritage.
Both parents also filed ICWA-020 forms. The ICWA-020 form for Father had the box checked next to "I may have Indian ancestry," included the statement "PGGM [paternal great grandmother] on the PGM side has information," and on the line for "tribe" stated "unknown." The ICWA-020 form for Mother had the box checked stating that "I have no Indian ancestry as far as I know."
At the juvenile court's initial hearing in January 2018, Father informed the court that he did not know whether he had Indian ancestry, but testified that his grandmother, who was still alive, told him that he did. The court then directed Father to give his grandmother's name, address, and phone number to the Department's social worker, and indicated that the social worker would contact the children's paternal great-grandmother.
At the same hearing, based on the ICWA-020 form and Mother's prior denial recorded in the ICWA-010 form, the court found that it had no reason to know that ICWA applied to Mother. The parties do not point us to any evidence that the Department questioned any extended maternal relatives before the court made this finding. At some point during these dependency proceedings, Mother lived with the children's paternal grandfather. The Department's history with Mother also included two prior referrals from 2013 and 2016, which involved altercations between Mother and maternal grandmother.
In May 2018, the juvenile court sustained the Department's section 300 petition as to Mother and Father. Several months later, the juvenile court ordered the children detained from both parents and ordered family reunification services for both parents.
In January 2021, a Department social worker called Father to ask about his possible Indian ancestry. Father stated that his paternal grandmother told him he had Indian ancestry, and provided her name and contact information. The social worker left two messages for her in January 2021. As of late January 2021, the messages had not been returned.
In May 2021, the Department filed a Last Minute Information stating that the only impediment to adoption of the children was an ICWA finding as to Father. At a hearing that same month, County Counsel requested a continuance of the section 366.26 hearing to resolve the ICWA issue as to Father. The juvenile court granted the request, citing the need for ICWA inquiry as to Father.
According to a Last Minute Information filed by the Department in August 2021, in June 2021 the Department took the following steps to determine whether Father had Indian heritage: First, a social worker called the paternal grandfather, who provided contact information for the children's paternal grandmother. The social worker then called the paternal grandmother and left a message. That same day, the social worker called the paternal great-grandmother who said she was not registered with any tribe, but believed her mother had Indian (specifically, Pascua Yaqui) heritage. The social worker then sent ICWA-030 forms to the Bureau of Indian Affairs (BIA), the Department of the Interior, and the Pascua Yaqui Indian Tribe. The Pascua Yaqui Indian Tribe responded that neither Father nor the children were members of the tribe, nor were they eligible for tribal membership.
After reviewing the August 2021 Last Minute Information, the juvenile court indicated that it did not have reason to know that the children were Indian children and did not order notice to any tribe or the BIA.
In November 2021, after reunification efforts failed, the court terminated parental rights and the children were ordered free for adoption by their paternal grandfather and paternal stepmother.
Mother filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
" ' "[W]e review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court's order. [Citations.] We must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance." '" (In re Josiah T. (2021) 71 Cal.App.5th 388, 401 (Josiah T.), quoting In re D.F. (2020) 55 Cal.App.5th 558, 565, 569 (D.F.).)
II. Overview of ICWA and Related State Law
ICWA contains provisions governing court proceedings concerning custody of American Indian children. (See generally 25 U.S.C. §§ 1911-1923.) "ICWA reflects a congressional determination to protect American Indian children and to promote the stability and security of Indian tribes and families." (Josiah T., supra, 71 Cal.App.5th at p. 401.) In ICWA, Congress established procedural rules applicable in dependency cases to ensure that if an Indian child is involved, they are properly identified. (Ibid.; 25 C.F.R § 23.107(a).)
Federal regulations implementing ICWA provide that "[s]tate courts must ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child[]" and that "[s]tate courts must instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." (25 C.F.R § 23.107(a).)
Under state law, the juvenile court and the Department both additionally have a" 'continuing duty to inquire'" whether the child is an Indian child. (D.F., supra, 55 Cal.App.5th at p. 566, citing § 224.2, subd. (a).) This duty has three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice. (Ibid.)
In this case, the juvenile court determined that ICWA was inapplicable to Mother based on initial-inquiry evidence only. Specifically, the court relied on Mother's signed ICWA-020 form reflecting no knowledge of Indian ancestry and Mother's statement to the social worker that she lacked Indian ancestry (recorded on form ICWA-010). The record does not reflect that the court relied on any other evidence in satisfying itself that ICWA did not apply to Mother.
III. Due to Inadequacies in the Initial Inquiry, the Trial Court Erred in Finding ICWA Inapplicable
The juvenile court's finding that ICWA does not apply to the two children implies that (a) the Department fulfilled its duty of inquiry; and (b) neither the Department nor the court had a reason to know or believe they were Indian children. (Josiah T., supra, 71 Cal.App.5th at p. 401.) The first question we must answer is whether the implied finding that the Department fulfilled its duty of inquiry constitutes error. We find that it does.
When the Department takes children into custody, it is required to ask "extended family members," among others, "whether the child is, or may be, an Indian child ...." (§ 224.2, subd. (b).) This is a requirement imposed only by state law and not by federal law. (In re S.S. (2022) 75 Cal.App.5th 575, 581 (S.S.).)
Here, although the social worker asked Mother about her Indian heritage, Mother argues on appeal that the Department failed to inquire of her maternal extended family members with whom the Department had contact in this matter and in two prior Department referrals. Specifically, Mother argues that the Department failed to inquire of her father, with whom she lived during at least part of the proceedings below, and Mother's mother, with whom the Department had contact through two prior referrals. The Department does not dispute this contention, nor are we directed to any evidence that the Department made any such inquiry or that the juvenile court inquired into whether the Department made any such inquiry.
In the absence of any evidence that the Department complied with its section 224.2, subdivision (b), duty to inquire with Mother's extended family members, the juvenile court's implied finding that the Department fulfilled its duty of inquiry constitutes error. (See In re Darien R. (2022) 75 Cal.App.5th 502, 509 [finding error where evidence showed Department had contact with maternal aunt and maternal grandfather but failed to inquire of them regarding Indian ancestry].) However, because the error is one of state law, we reverse only if it was prejudicial. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.), citing Cal. Const., art. VI, § 13.)
IV. The Juvenile Court's Error Was Not Prejudicial
Appellate courts are divided on what showing of prejudice warrants reversal where error is found due to non-compliance with Section 224.2's requirements for initial inquiry into a dependent child's Indian heritage.
In California, prejudicial error is generally found only if," 'after an examination of the entire cause, including the evidence,'" we are "of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
"Although an appellant ordinarily has the burden of establishing prejudice [citation], a parent's ability to make this showing based upon the record in failure-to-inquire cases can be problematic ...." (S.S., supra, 75 Cal.App.5th at p. 581.) This is because it is the responsibility of the child welfare department to make and document its inquiries.
The California Courts of Appeal have taken four different approaches to the issue of when to reverse for prejudicial error in failure-to-inquire cases. (See In re Dezi C. (2022) 79 Cal.App.5th 769 (Dezi C.) [discussing three prior approaches and adopting a fourth].) One line of cases holds that any error in the initial inquiry must result in reversal because the duty to inquire is mandatory and unconditional. (See, e.g., In re J.C. (2022) 77 Cal.App.5th 70, 80-82; In re A.R. (2022) 77 Cal.App.5th 197, 206207; In re Y.W. (2021) 70 Cal.App.5th 542, 556.) A second line of cases holds the error of failure to inquire is presumptively harmless unless a showing is made by the parent on appeal (such as by an offer of proof) why further inquiry would lead to a different ICWA finding. (See In re A.C. (2021) 65 Cal.App.5th 1060, 1070; accord, In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431.) A third line of cases is somewhere in between these two prior approaches, holding that if the initial inquiry is deficient, then the error is harmless unless upon an examination of the record it appears that inquiry would yield "readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child" and that "the probability of obtaining meaningful information is reasonable." (Benjamin M., supra, 70 Cal.App.5th at p. 744; S.S., supra, 75 Cal.App.5th at pp. 582-583.)
We find a fourth approach, recently adopted in the Dezi C., supra, case by our colleagues in the Second District, Division Two, most consistent with existing rules and purposes of appellate review, and apply it here. In Dezi C. the court reasoned that "[a]n agency's failure to discharge its statutory duty of initial inquiry is harmless unless the record contains information suggesting a reason to believe that the children at issue may be 'Indian child[ren],' in which case further inquiry may lead to a different ICWA finding by the juvenile court." (Dezi C., supra, 79 Cal.App.5th at p. 774.) The court in Dezi C. calls this the "reason to believe" rule because it holds the agency's failure to properly inquire into a child's Indian heritage harmless unless there is "reason to believe" in the "record" that the absence of "further inquiry was prejudicial to the juvenile court's ICWA finding." The record is defined as the record from the court below and evidence proffered by a parent on appeal. (Id. at p. 779.)
We do not recite the extensive and persuasive reasoning of Dezi C. here. (See Dezi C., supra, 79 Cal.App.5th at pp. 779-782.) However, in summary, we adopt its approach because we find it most consistent with California's harmless error test, while also taking into consideration the requirements that state ICWA law places on child welfare agencies. The harmless error test is compelled by our State's Constitutional requirement that a ruling may not be set aside unless it has resulted in a "miscarriage of justice" (Cal. Const., art. VI, § 13), which, as interpretated by our Supreme Court in Watson, supra, means when it is reasonably probable that a more favorable result would have been reached in the absence of error. (Watson, supra, 46 Cal.2d at p. 836.) Harmless error recognition also helps discourage the gamesmanship (and emotional harm to children) that arises when a parent seeks to delay adoption proceedings by waiting until a matter is on appeal and then pointing to entirely technical errors that could have been quickly addressed in juvenile court.
California ICWA law is designed to ensure that Indian children are identified as intended in federal ICWA law through the Department's initial inquiry duties. (See D.F., supra, 55 Cal.App.5th at pp. 565-566 [discussing federal ICWA intent to protect Indian children and the stability and security of Indian tribes and related state law inquiry requirements]). Thus, in applying the rule in Dezi C. that holds the error harmless unless there is record evidence providing a "reason to believe" additional inquiry by the Department would have been more than just a formality, we uphold the harmless error standard while also requiring further inquiry in cases where there is reason to believe that the child might be an Indian child. This would, for example, result in remanding for further inquiry where the record shows a parent had been adopted at an early age and lacked any personal knowledge about their biological ancestry, but known biological extended family was not contacted. (See In re A.C. (2022) 75 Cal.App.5th 1009.)
Applying the approach articulated in Dezi C. here, we conclude that the juvenile court's error was harmless. There is nothing in the record that gives us any reason to believe that Z.B. and L.B. are Indian children. Neither party points us to any such evidence. Mother also makes no proffer of evidence on appeal that she has Indian heritage. The Department already inquired into Father's Indian heritage, and the tribe it identified through those inquires responded in the negative to questions of Father's Indian heritage. During the time between Mother's initial denial of Indian heritage in January 2018 and the juvenile court's termination of parental rights in November 2021, Mother had ample time to change her response if she came to doubt her original denial of Indian ancestry. On appeal, Mother simply asserts that the Department should have asked extended maternal relatives, and specifically her parents, about the children's possible Indian heritage, yet she denied Indian heritage twice. There is no suggestion these denials were insufficient because she was adopted or otherwise might not have known her own heritage. Accordingly, there is no "reason to believe" the children are Indian children, and we conclude the juvenile court's error was harmless. (Dezi C., supra, 79 Cal.App.5th at p. 779.)
Mother makes no claim that the Department erred regarding its inquiry of Father's extended family. She limits her claim to the absence of maternal family inquiries.
DISPOSITION
The juvenile court's findings and orders are affirmed.
I concur: STRATTON, P.J.
WILEY, J., Dissenting.
I respectfully dissent for reasons I have stated in the past. (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.).) I would find prejudice.
This is my eighth dissent on this issue. The Department persistently violates the law and consistently prevails on appeal. One wonders how long this puzzling and unhappy pattern will continue.
[*] Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.