Opinion
B329276
01-19-2024
In re A.Z., a Person Coming Under the Juvenile Court Law. v. J.Z., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, 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NOT TO BE PUBLISHED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. 21CCJP03017A. Philip L. Soto, Judge. Affirmed.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
LUI, P. J.
In this juvenile dependency appeal, J.Z. (father) appeals the juvenile court's order terminating his parental rights to his young son, A.Z. (son). Father raises one issue on appeal. He argues the juvenile court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California law. Father seeks a reversal of the juvenile court's order terminating his parental rights and remand so that the juvenile court can ensure compliance with ICWA.
We find no reversible error and, therefore, affirm.
BACKGROUND
1. The Family
In June 2021, son was born with amphetamines in his system. His mother, C.T. (mother), also tested positive for amphetamines at son's birth. Son is mother and father's only child together. Mother and father had a tumultuous relationship that included domestic violence. Although a criminal protective order protected mother from father, they did not always abide by that order. By the end of the underlying proceedings, mother and father were no longer in a relationship.
Father has two older children, both of whom have been involved in the dependency system in one way or another. Father's older children live with their respective mothers.
Mother was adopted when she was two days old. She was raised by her adoptive mother and father (maternal grandparents). Mother has a diagnosis of anxiety disorder and bipolar mood disorder. She did not take her prescribed medication consistently and suffered outbursts and episodes of unstable behavior. Mother also struggled with substance abuse, including amphetamine use. There is no indication mother or maternal grandparents have stayed in contact with mother's birth parents.
Father lived with his parents (paternal grandparents), his brother (paternal uncle), and his grandmother (paternal great grandmother). Father also struggled with addiction and has a criminal history.
2. Brief Case Summary
Beside his ICWA arguments, father does not challenge the merits of the juvenile court's rulings. Consequently, we include only a brief summary of them and the underlying facts here. In June 2021, after son was born, the Department filed a Welfare and Institutions Code section 300 petition on his behalf. In August 2021, the Department filed an amended petition (petition). At the September 2021 adjudication, mother and father each filed a waiver of rights and pleaded no contest to the petition. The juvenile court sustained allegations in the petition relating to mother and father's history of domestic violence, mother's and father's histories of substance abuse, and mother's untreated mental health issues. The court declared son a dependent of the court, removed him from mother and father's custody and care, and ordered family reunification services.
Undesignated statutory references are to the Welfare and Institutions Code.
Son was placed in foster care as an infant. His foster parents, who were longtime friends with maternal grandparents, loved and cared for son throughout the proceedings below and wanted to adopt him. In September 2022, mother wrote a letter to the juvenile court stating she wanted "to relinquish my parental rights to [the foster parents]." Mother wanted son's foster parents to adopt him.
On May 9, 2023, the juvenile court found son was adoptable and likely to be adopted. The court terminated mother's and father's parental rights to son. This appeal followed.
3. Facts Relevant to ICWA
Prior to the July 2021 initial detention hearing, mother and father each denied having Indian ancestry. At the initial detention hearing, the juvenile court asked whether mother had any Indian ancestry. Counsel for mother stated, "To mother's knowledge, she does not have any American Indian ancestry." The court noted father's ICWA-020 form indicated he had no Indian ancestry as far as he knew. The court found it did not have a reason to know son was an Indian child.
In connection with filing the petition, a Department social worker again asked mother whether son had Indian ancestry. Mother gave the social worker no reason to believe son was or might be an Indian child.
In advance of the adjudication and disposition hearing, a Department social worker interviewed mother, again asking her about Indian ancestry. Mother denied Indian ancestry. The social worker also asked father about Indian ancestry. Father again denied Indian ancestry.
In November 2022, just after terminating reunification services for parents, the juvenile court asked mother and father whether they had Indian ancestry. Mother and father both replied they had none. Nonetheless, the court ordered the Department to update its ICWA inquiries, including relatives.
In February 2023, in preparation for the permanency planning hearing, the Department summarized its ICWA inquiries to date. The Department noted father, maternal grandmother, maternal grandfather, paternal grandfather, paternal grandmother, paternal aunt, and son's foster mother consistently and repeatedly denied Indian ancestry. Maternal grandmother reported her parents were "Hungarian and [maternal grandfather] is middle-eastern." Maternal grandmother stated, when she and maternal grandfather adopted mother, "the info given from her birth mother is that she is Irish. There was no mention of Indian." Paternal grandparents both reported they were Mexican. When asked by a Department social worker, maternal and paternal grandparents all said there were no other family members that could be interviewed regarding the family's Indian ancestry.
Although mother also consistently denied Indian ancestry, in January 2023, for the first time, mother told a Department social worker "she may have American Indian ancestry, but that she is not sure which tribe(s) she is associated with." Mother said she was "doing research," planned to do a DNA test, and would update the Department with new information. By late-February, mother had provided no updates.
Maternal grandmother did not know "where [mother] came up with having [potential Indian ancestry]." Maternal grandmother had no telephone number for mother's birth parents, but she gave the Department the last known address she had for them. In February 2023, the Department mailed letters to mother's birth parents at the address provided by maternal grandmother. In its letters, the Department stated it had been attempting to contact mother's birth parents "regarding an important matter" and wanted "to know if you [i.e., birth parents] have any American Indian Ancestry." The Department requested the birth parents to call at their earliest convenience. There is no indication the birth parents responded or otherwise contacted the Department.
DISCUSSION
1. Applicable Law
ICWA establishes minimum standards courts must follow before removing an Indian child from his or her family. Under California law implementing ICWA, the juvenile court and the Department "have an affirmative and continuing duty to inquire whether" a dependent child "is or may be an Indian child." (§ 224.2, subd. (a); In re Austin J. (2020) 47 Cal.App.5th 870, 883.) For these purposes, an "Indian child" is a child who (1) is "a member of an Indian tribe," or (2) "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); Welf. &Inst. Code, § 224.1, subd. (a) [adopting federal law definition].)
Under ICWA as implemented in California, "the Department and juvenile court have 'three distinct duties.' [Citations.] The first duty is the initial 'duty' of the Department and the juvenile court 'to inquire whether [a] child is an Indian child.' (§ 224.2, subds. (a) &(b).) The Department discharges this duty chiefly by 'asking' family members 'whether the child is, or may be, an Indian child.' (Id., subd. (b).) This includes inquiring of not only the child's parents, but also others, including but not limited to, 'extended family members.' (Ibid.)" (In re Dezi C. (2022) 79 Cal.App.5th 769, 780, review granted Sept. 21, 2022, S275578 (Dezi C.).) "Extended family members" include the dependent child's adult "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); Welf. &Inst. Code, § 224.1, subd. (c) [adopting federal law definition].) "For its part, the juvenile court is required, '[a]t the first appearance' in a dependency case, to 'ask each participant' 'present' 'whether the participant knows or has reason to know that the child is an Indian child.' ([§ 224.2], subd. (c).)" (Dezi C., supra, 79 Cal.App.5th at p. 780, rev.gr.)
"The second duty is the duty of the Department or the juvenile court to 'make further inquiry regarding the possible Indian status of the child.' ([§ 224.2], subd. (e).) This duty of further inquiry is triggered if the Department or court 'has reason to believe that an Indian child is involved' because the record contains 'information . . . suggesting the child is Indian' (ibid.; [citations]), and, once triggered, obligates the Department to conduct further interviews to gather information, to contact the Bureau of Indian Affairs and state department of social services for assistance, and/or to contact the relevant Indian tribe(s). (§ 224.2, subd. (e)(2).)" (Dezi C., supra, 79 Cal.App.5th at pp. 780-781, rev.gr.) "Reason to believe" is defined as "information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (§ 224.2, subd. (e)(1).)
"The third duty is the duty to notify the relevant Indian tribe(s). (§ 224.3, subd. (a); 25 U.S.C. § 1912(a).) This duty is triggered if the Department or the court 'knows or has reason to know . . . that an Indian child is involved.' (§ 224.3, subd. (a).)" (Dezi C., supra, 79 Cal.App.5th at p. 781, rev.gr.)
2. 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 ICWA finding." (Dezi C., supra, 79 Cal.App.5th at p. 777, rev.gr.) Even if substantial evidence does not support the juvenile court's ICWA findings, we may not reverse unless we find that error was prejudicial. (Cal. Const., art. VI, § 13; Dezi C., supra, 79 Cal.App.5th at p. 777, rev.gr.)
California appellate courts have taken varying positions on the rules for assessing whether a defective initial inquiry is harmless. The varying approaches have led to "a continuum of tests for prejudice stemming from error in following California statutes implementing ICWA." (In re A.C. (2022) 75 Cal.App.5th 1009, 1011; see Dezi C., supra, 79 Cal.App.5th at pp. 777-778, rev.gr.) Our division has adopted the following rule: "[A]n agency's failure to conduct a proper initial inquiry into a dependent child's American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding. For this purpose, the 'record' includes both the record of proceedings in the juvenile court and any proffer the appealing parent makes on appeal." (Dezi C., at p. 779, rev.gr.)
3. Application
Father argues the juvenile court and the Department failed to fulfill their duties under ICWA because the Department did not ask, and the court did not ensure that the Department ask, two extended family members about whether son had Indian ancestry. As a result, father argues, we must reverse the order terminating parental rights and remand for further proceedings in compliance with ICWA. Relying on In re E.W. (2023) 91 Cal.App.5th 314, the Department counters it and the juvenile court satisfied their ICWA mandates and substantial evidence supports the court's ICWA finding.
As an initial matter, we agree with father that the Department erred in not asking the available extended family members-paternal great grandmother and maternal great aunt-whether son had Indian ancestry. Given this error, we must consider whether it requires remand. (Dezi C., supra, 79 Cal.App.5th at p. 777, rev.gr.)
We decline to follow In re E.W., supra, 91 Cal.App.5th 314, as suggested by the Department.
As noted above, the Department's failure to conduct a proper inquiry under section 224.2, subdivision (b) is harmless unless the record contains a reason to believe that the child is an Indian child within the meaning of ICWA. (Id. at p. 779.) The record here contains no such evidence. Not only did mother and father consistently state they had no Indian ancestry, so too did the paternal and maternal grandparents. Although mother stated once, years after the underlying proceedings had begun, that she might have Indian ancestry, her allegation was vague, unsupported, and isolated. As such, it was unreliable and did not support a reason to believe son may be an Indian child. In any event, the Department followed up on that statement by again asking maternal grandparents about potential Indian ancestry. They again denied Indian ancestry and did not know why mother made that statement.
This case is factually distinguishable from the cases on which father relies, where the relevant social services agency asked no available extended family members as to potential Indian ancestry. (See In re H.V. (2022) 75 Cal.App.5th 433, 438; In re A.C., supra, 75 Cal.App.5th at p. 1015; In re Benjamin M. (2021) 70 Cal.App.5th 735, 744-745.)
Finally, it is important to note that mother is adopted. When a parent is adopted, remand may be necessary because that parent's "self-reporting of 'no heritage' may not be fully informed." (Dezi C., supra, 79 Cal.App.5th at p. 779, rev.gr.) Here, however, remand is not warranted. Maternal grandmother reported mother's birth parents stated mother was Irish. Maternal grandmother and maternal grandfather consistently stated they had no Indian ancestry. Additionally, the Department attempted, to no avail, to contact mother's birth parents by sending letters to them at the address provided by maternal grandmother. Thus, this is not a case where the juvenile court relied solely on an adopted parent's own statements as to potential Indian heritage.
Nothing in the record suggests either mother, father, or son "is a member or may be eligible for membership in an Indian tribe." (§ 224.2, subd. (e)(1).) Thus, although the Department did not inquire of two available extended family members, we conclude this error was not prejudicial and is not grounds for reversal.
DISPOSITION
The juvenile court's May 9, 2023 order is affirmed.
We concur: CHAVEZ, J., HOFFSTADT, J.