Opinion
B330068
01-24-2024
In re M.S., a Person Coming Under the Juvenile Court Law. v. KATHY M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. DK22287 Pete R. Navarro, Temporary Judge. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
BENDIX, Acting P. J.
Kathy M. (mother), sometimes referred to in the record as Cathy H., appeals from the termination of her parental rights to her daughter, M.S. Mother contends respondent Los Angeles County Department of Children and Family Services (DCFS) did not provide adequate notice of the dependency proceedings to father Carlos S. (father). Mother further argues DCFS failed adequately to investigate whether M.S. was an Indian child as required under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and its corresponding provisions under California law (see Welf. &Inst. Code, § 224 et seq.), and failed to send complete and accurate notices to a tribe and federal entities.
Further unspecified statutory citations are to the Welfare and Institutions Code.
We hold any deficiencies in notice to father were harmless. DCFS removed M.S. from father and noticed him in person of a hearing early in the proceedings, yet father did not attend that hearing and made no further efforts to contact M.S. or DCFS for the many years this case has been ongoing. Assuming arguendo DCFS's other efforts to serve notice were deficient, we conclude father's conduct indicates he would not have participated in the proceedings even with additional notice.
We further hold that any deficiencies in DCFS's inquiry of extended family as to M.S.'s Native American ancestry or errors and omissions in ICWA notices were harmless, and there was no reason to know that M.S. was an Indian child.
Accordingly, we affirm.
BACKGROUND
Because mother on appeal raises solely procedural challenges based on notice and ICWA compliance, we provide only a brief summary of the underlying proceedings. We summarize the background relevant to mother's particular contentions in our Discussion, post.
On April 3, 2017, DCFS filed a petition under section 300 seeking to detain M.S., then six years old. The petition alleged that father, with whom M.S. resided, abused drugs and was a registered sex offender, and that mother was incarcerated in a federal penitentiary in Florida and had a criminal history that included child cruelty and drug offenses.
The juvenile court ordered M.S. detained and placed with nonrelative extended family member N.O. On June 29, 2017, the court sustained the allegations in the petition. On July 19, 2017, the court denied mother reunification services, citing section 361.5, subdivision (e), which governs the provision of reunification services for incarcerated parents. On August 23, 2017, following receipt of a due diligence declaration from DCFS, the court found father's whereabouts were unknown, and denied father reunification services as well. The court set a section 366.26 hearing to select a permanent plan for M.S.
Mother was released from prison in November 2018 and filed a section 388 petition seeking reunification services and liberalized visitation. The juvenile court denied the petition without a hearing and mother appealed. We reversed, holding mother's petition stated a prima facie basis for relief and thus mother was entitled to a hearing. (DCFS v. Kathy M. (Jul. 26, 2019, B295030) [nonpub. opn.].) On remand, the juvenile court held a hearing and again denied the petition, finding, inter alia, that mother had been arrested twice since the filing of the petition, had unresolved substance abuse issues, and it would not be in M.S.'s best interest to have more contact with mother. Mother did not appeal that ruling, and has since been reincarcerated.
Resolution of the case was delayed for several years as DCFS attempted to find an adoptive placement for M.S. On July 7, 2022, M.S.'s current caregivers informed DCFS they wished to move forward with adopting M.S. On May 2, 2023, the juvenile court found M.S. adoptable, designated her caregivers as the prospective adoptive parents, and terminated mother's and father's parental rights.
Mother timely appealed.
DISCUSSION
A. Any Deficiencies in Notice to Father Were Harmless
Mother contends we must reverse the order terminating parental rights because DCFS did not provide father with adequate notice of the proceedings. We conclude the purported notice deficiencies were harmless beyond a reasonable doubt.
1. Standing
As an initial matter, DCFS contends mother lacks standing to assert notice error on behalf of father. We disagree.
Although" 'the general rule is that" '[a]n appellant cannot urge errors which affect only another party who does not appeal,'" '" "' "[w]here the interests of two parties interweave, either party has standing to litigate issues that have a[n] impact upon the related interests."' [Citation.]" (In re J.R. (2022) 82 Cal.App.5th 569, 581 (J.R.).) In J.R., we held the father had standing to assert notice error on behalf of mother because otherwise "this constitutional violation would otherwise probably go uncured, thereby thwarting the dependency system's objectives of family reunification and ensuring that the disposition of a dependency petition is based on all material facts and circumstances. Because the fate of mother's and father's respective parental rights thus depends upon whether mother's due process claim is meritorious, their interests are 'intertwined,' meaning that father has standing to raise mother's due process challenge." (Id. at pp. 581-582.)
Here, similarly, father's participation or lack thereof in this case could impact the outcome as to mother. Further, if there has been notice error of constitutional proportions as to father, it could "go uncured" if mother cannot raise it. (J.R., supra, 82 Cal.App.5th at p. 581.) Following the reasoning of J.R., mother therefore has standing to raise a due process challenge on behalf of father.
DCFS argues that J.R. is distinguishable because father received more notice than the mother in J.R. This contention does not inform mother's standing, but instead, whether father's due process challenge is meritorious.
We therefore proceed to the merits of mother's due process argument. Because we conclude mother's argument fails on the merits, we do not reach DCFS's alternative contention that mother has forfeited her due process challenge by not raising it below.
2. Governing law and standard of review
"Because parents have a fundamental liberty interest in the companionship, care, custody, and management of their children, the due process clause requires child welfare agencies to exercise reasonable diligence in attempting to locate and notify them of dependency proceedings." (J.R., supra, 82 Cal.App.5th at p. 572.)"' "There is no due process violation where a child welfare services agency has exercised reasonable diligence to provide notice to a parent whose whereabouts are unknown. [Citation.] On this score, reasonable diligence 'denotes a thorough, systematic investigation and an inquiry conducted in good faith.' [Citation.] It includes searching not only 'standard avenues available to help locate a missing parent,' but' "specific ones most likely under the unique facts known to the [agency], to yield [a parent's] address."' [Citations.]" [Citation.]' [Citation.]" (Id. at p. 588.)
Section 294 lists acceptable methods to serve notice of a section 366.26 hearing, primarily involving personal service or service by mail to the parent's residence or business. (§ 294, subd. (f)(1)-(6).) Certified mail to the parent's last known mailing address is sufficient notice "if the child welfare agency receives a return receipt signed by the parent." (Id., subd. (f)(2).)
If a parent's "whereabouts are unknown," the parent has no attorney of record, and the juvenile court determines "there has been due diligence in attempting to locate and serve the parent," "the court shall order that service be made by publication of citation" published in a newspaper once a week for four consecutive weeks. (§ 294, subd. (f)(7)(A).) If the parent later is found, "notice shall immediately be served upon the parent" personally or by mail as specified in section 294, subdivisions (2) through (6). (§ 294, subd. (f)(7)(C).)
Because the facts are not in dispute, we review de novo whether notice to father comported with due process. (J.R., supra, 82 Cal.App.5th at p. 588.) Although some courts have held that failure to notify a parent at all is reversible per se, case law establishes that when the social services agency has attempted notice, but the notice is deficient, "the question is whether the error is harmless beyond a reasonable doubt." (In re Marcos G. (2010) 182 Cal.App.4th 369, 387; In re Mia M. (2022) 75 Cal.App.5th 792, 806 ["An error in attempted notice is subject to a harmless beyond a reasonable doubt standard of prejudice."].)
3. Additional background
a. DCFS's in-person contact with father
DCFS received the referral that initiated the instant proceedings on March 9, 2017, in which the caller stated that M.S. had told the caller father used drugs in front of her. On March 15, 2017, social workers went to the referral address and encountered father in the parking lot. Father stated he had been evicted and was now homeless, but M.S. was staying with neighbor N.O. The social workers explained the referral allegations to father and gave him their contact information. Later that day, a social worker again met with father, and they discussed a safety plan for M.S.
On March 20, 2017, father arrived unannounced at the DCFS office and said he had missed his scheduled drug test.
Over the next two days, the social worker and father spoke twice on the phone about drug testing and M.S.'s safety plan.
On March 28, 2017, the social worker informed N.O. that the juvenile court had issued a removal order for M.S. On March 29, 2017, N.O. told the social worker she had encountered father the previous evening and given him the removal order. The social worker asked N.O. to tell father to contact the social worker to discuss the order. A social worker attempted to call father on March 30, 2017, but the given number was a wrong number.
Father did not appear at the first two juvenile court hearings on April 3 and 10, 2017. The appellate record does not indicate how or if father received notice of these hearings.
The social worker met with father at the DCFS office on April 19, 2017. The social worker provided in-person notice to father of the next juvenile court hearing on May 11, 2017. Father said he would" 'try my best to be present at the next court hearing because I want to take care of [M.S.].'" The social worker offered father transportation services.
Father did not attend the May 11 hearing or any subsequent hearing, and DCFS had no further contact with him after the April 19, 2017 meeting. DCFS was unable to reach him by phone-N.O. reported that father had told her he had lost all of his belongings including his cell phone. In DCFS reports throughout the rest of 2017 and early 2018, N.O. reported seeing father on occasion on the street, and once in October when he had come to her house to get some eyedrops, but he had not tried to visit or speak with M.S. N.O. said when she and M.S. saw father on the street, he would not acknowledge M.S.
DCFS sent notice of the June 7, 2017 jurisdiction hearing to the referral address, which was father's last known address.
b. Due diligence and notice by publication
On August 23, 2017, DCFS filed a due diligence declaration evidencing attempts to locate father. The declaration identified father by first and last name and included a birthdate. The juvenile court found "due diligence has been completed on all appropriate parties as required by law."
In a subsequent report filed December 21, 2017, DCFS stated it had "resubmitted a Due Diligence" for father on December 15, 2017 that now included his middle name in addition to his first and last names, as well as his date of birth from M.S.'s birth certificate, which was one day different from the birthdate used in the first due diligence declaration. DCFS stated the results of the resubmitted due diligence report were "pending."
That same day, the juvenile court ordered DCFS to provide notice to father by publication.
In a report filed January 29, 2018, DCFS again stated it had resubmitted due diligence for father that included his middle name and the birthdate from M.S.'s birth certificate, although now DCFS stated it had done so on January 8, 2018. DCFS again said results were pending.
In a last minute information filed April 19, 2018, DCFS asked for a 90-day continuance to notice father by publication. The last minute information attached the original due diligence report filed August 23, 2017, which the last minute information identified as "Father's Current Due Diligence Report."
That same day, the juvenile court found due diligence complete and ordered publication for father. DCFS informed the court on July 19, 2018 that publication occurred on April 27, May 4, May 11, and May 18, 2018, and attached a copy of the published notice.
Apart from the original due diligence report filed August 23, 2017, there are no other due diligence reports in the appellate record. Status review reports filed July 30, 2020, and February 19, 2021, indicated a "Due Diligence Report" was attached, but the appellate record contains no such attachments to either report. Similarly, a last minute information filed October 1, 2020 stated that on August 27, 2020, "a Due Diligence was submitted for [mother] and [father]," and DCFS "was unable to locate" them. The last minute information referred the juvenile court to "attached Due Diligence reports" (italics omitted), but the appellate record does not contain any attachments to the last minute information.
Although not in the appellate record, DCFS asks us to take additional evidence on appeal pursuant to Code of Civil Procedure section 909, and provides what appears to be a declaration of due diligence executed February 13, 2018 listing searches using father's middle name and birthdate matching M.S.'s birth certificate. Counsel for DCFS declares he obtained the declaration from the social worker currently assigned to the instant matter, who retrieved it from DCFS's case file.
c. Subsequent efforts to provide notice to father
On February 3, 2021, mother informed DCFS that her sister had located father in Tehama County Jail in Red Bluff. She provided father's booking number and jail address. The juvenile court ordered DCFS to notice father properly and request that he be released for the section 366.26 hearing.
In a last minute information filed March 4, 2021, a social worker reported he had sent a letter to father at the jail asking if he wished to participate in the upcoming hearings. The social worker also reported he submitted an in-and-out request for mother and father to attend the section 366.26 hearing despite their incarceration. The appellate record does not contain a copy of the letter sent by the social worker, any certified mail receipts, or father's in-and-out request; it does, however, contain a notice of hearing on selection of a permanent plan on June 24, 2021, along with its proof of service, with notice addressed to father at the jail address, including his booking number.
At the June 24, 2021 hearing, the juvenile court found notice was proper as to both parents for the section 366.26 hearing. The court continued the hearing for 120 days for DCFS to have more time to assess a prospective adoptive family, and ordered "[c]ourtesy notice to the parties."
During an October 21, 2021 hearing, the juvenile court noted the social worker had attempted to contact father in jail "to see if he wanted representation," and "[w]e did not get feedback on that." The court stated there needed to be a new date for the section 366.26 hearing, and the court was not sure if there had been appropriate notice to the parents. The court instructed DCFS "to contact father to see if he wants to be represented."
A few days later, the juvenile court set the section 366.26 hearing for March 16, 2022. In February 2022, according to a proof of service, DCFS sent father notice of that hearing at the jail address, although the notice did not include his booking number. There are no certified mail receipts in the record for this mailing.
At the March 16, 2022 hearing, the juvenile court continued the proceedings until September 14, 2022.
At some point prior to September 8, 2022, DCFS learned father was now incarcerated in Avenal State Prison, as indicated by a status review report in which father's address was listed as a post office box in Avenal that the California Department of Corrections and Rehabilitation (CDCR) website lists for inmates in Facility A of that institution. (See "Mailing Addresses" tab at <https://www.cdcr.ca.gov/facility-locator/asp/> (as of Jan. 22, 2024), archived at <https://perma.cc/XL7E-6UJM>.) DCFS's reports do not indicate how DCFS learned father was in prison, but mother stated during a later hearing it was she that informed DCFS that father was incarcerated in Avenal.
According to a proof of service, DCFS sent notice of the September 14, 2022 hearing to father at the prison post office box. DCFS also sent father a form letter with boxes checked indicating the social worker had been unable to contact father and asking him to contact the social worker regarding the court orders, service plan, and visitation. There are no certified mail receipts for this mailing.
On September 14, 2022, the juvenile court continued the section 366.26 hearing to December 13, 2022, and ordered DCFS to send notice to parents, who were not present. DCFS mailed notice to father, this time addressed to a post office box the CDCR website lists for "All Staff" of Avenal State Prison rather than for inmates. The certified mail receipt for the notice was signed by "Renee," who checked the box for "Agent."
On December 13, 2022, the juvenile court continued the section 366.26 hearing to March 15, 2023 at DCFS's request. DCFS again sent notice of the hearing to father at the "All Staff" address for Avenal State Prison, and the certified mail receipt once again was signed by "Renee" as "Agent."
On March 15, 2023, the juvenile court continued the hearing to April 13, 2023, so DCFS could find out the circumstances of mother's current incarceration and whether she could appear at the hearing by video or telephone. The record does not indicate that DCFS sent notice of the continued hearing to father.
On April 13, 2023, the juvenile court continued the hearing to May 2, 2023 for DCFS to compile its past efforts regarding ICWA to ensure compliance. At DCFS's request, the court found notice remained proper as to mother and father. Again, the record does not indicate DCFS provided further notice to father.
Mother was present at the May 2, 2023 hearing via WebEx. When counsel for DCFS noted the juvenile court had denied father reunification services in 2017 because his whereabouts were unknown, mother stated father was in Avenal State Prison and asked why no one had attempted to contact him. The court asked DCFS's counsel if father had been properly noticed, and counsel stated the court had found notice proper at the April 13, 2023 hearing.
After further discussion, the juvenile court terminated mother's and father's parental rights.
4. Analysis
We note initially that throughout these proceedings, DCFS provided or attempted to provide notice to father multiple times and through multiple methods. DCFS provided in-person notice to father of a hearing early in the proceedings, noticed him by publication of the section 366.26 hearing, and upon learning of his incarceration, mailed notice to him in jail and prison.
Mother contends DCFS failed in its notice obligations in three ways. First, she contends DCFS's searches reflected in the due diligence declaration did not include father's complete name or the birthdate matching M.S.'s birth certificate. Second, she argues the record does not reflect that DCFS asked available paternal relatives if they knew where father was. Third, she claims the record lacks sufficient proof DCFS sent notice to father in Tehama County Jail, and the notices DCFS mailed to father in Avenal State Prison were sent to incorrect or incomplete addresses.
DCFS argues in response that, assuming we grant the motion to take new evidence, DCFS has established it adequately searched for father before noticing him by publication, and the evidence of notice mailed to father in jail or prison was sufficient.
We need not reach DCFS's contention notice was sufficient or address its motion to take new evidence, because we conclude any deficiency was harmless beyond a reasonable doubt. Father was well aware of the proceedings in this case because he was the parent from whom DCFS removed M.S. Father had multiple interactions with DCFS in the early days of the case, including phone conversations with the social worker and meetings at the DCFS office. As noted, the social worker notified father in person of a hearing in juvenile court, and offered transportation services as reported in the May 11, 2017 last minute information.
Given this conclusion, we deny as moot DCFS's motion to take new evidence.
Father therefore knew DCFS had removed his child and was initiating proceedings in juvenile court, and further knew how and where to reach DCFS about his case. Yet after April 19, 2017, father made no further attempts to contact DCFS or keep DCFS apprised of his whereabouts or contact information. According to caregiver N.O., father also made no attempt to visit M.S., and would not acknowledge M.S. when they encountered him on the street.
Under these circumstances, the only reasonable conclusion is that father no longer wished to recover custody of M.S. or maintain a relationship with her, and additional notice from DCFS would not have affected the outcome of the case.
Mother contends it is "speculative" that father would not have participated in the proceedings had he received adequate notice. She argues, "The record is silent as to whether Father was told he could phone the court and seek to have an attorney appointed to represent him, or whether transportation assistance could have been provided for him to attend the hearing." Mother notes that early in the proceedings father stated he wished "to take care of" M.S.
As noted, the social worker did offer father transportation services to come to court. Regardless, it is inconceivable that father, had he wished to recover custody of M.S., would not have somehow tried to contact M.S. or DCFS in the six years between her removal and the termination of his parental rights.
Mother cites our decision in J.R. in support of her position, but that case is distinguishable. In J.R., the question was whether the mother, who resided in Central America, had received adequate notice of dependency proceedings after her child was removed from the father in California. (See J.R., supra, 82 Cal.App.5th at pp. 572-573.) We concluded she had not received adequate notice; although father informed DCFS mother was in Central America, DCFS's due diligence searches were limited to United States records and databases, and notice by publication occurred in a Los Angeles-based newspaper. (Id. at p. 573.) Further, when over a year into the proceedings mother contacted DCFS and provided her telephone number and mailing address, DCFS failed to use that information to provide adequate notice. (Ibid.; id. at p. 590.)
The crucial distinction between the instant case and J.R. is here, father knew about the dependency proceedings from the outset because he was the parent from whom DCFS removed M.S. DCFS informed him in person of a hearing early in the proceedings and provided him with means to contact DCFS and attend the hearing. He knew where M.S. was placed and could have, had he wished, visited her and attempted to recover custody.
In contrast, in J.R. the child was removed from the father, not the mother, and there was no indication mother was even aware of the dependency proceedings until she called DCFS over a year after the child's removal. Although she spoke with DCFS on the phone at that time, "there [was] no indication in DCFS's records . . . that the social worker informed mother that she could request visits with J.R. or otherwise participate in the dependency proceedings." (J.R., supra, 82 Cal.App.5th at p. 592.) Thus, there was no reason to conclude based on the record that, had the mother received adequate notice, she would not have participated in the proceedings. J.R. does not conflict with our conclusion that any notice deficiencies in the instant case were harmless beyond a reasonable doubt.
B. The Juvenile Court Did Not Err In Concluding ICWA Did Not Apply
Mother argues DCFS's ICWA inquiry was deficient and the notices sent were inaccurate and incomplete. DCFS concedes its "ICWA inquiry fell short," although it does not specify any deficiencies, and advocates for a limited remand to ensure ICWA compliance.
We decline to accept DCFS's concession. We conclude none of mother's asserted errors requires reversal or remand.
1. Governing law
ICWA "protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings." (In re A.W. (2019) 38 Cal.App.5th 655, 662.) Under state law implementing federal ICWA requirements, the juvenile court and DCFS "have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . has been filed, is or may be an Indian child." (§ 224.2, subd. (a).) An" 'Indian child'" is defined as an "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); § 224.1, subd. (a) [adopting federal definition]).
"If a child is removed from parental custody, the county welfare 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.' (§ 224.2, subd. (b).)" (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 998 (Ezequiel G.).)
"If the initial inquiry provides 'reason to believe' that an Indian child is involved in a proceeding-that is, if the court or social worker 'has 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'-then the court or social worker 'shall make further inquiry' regarding the child's possible Indian status as soon as practicable. (§ 224.2, subd. (e).) Further inquiry 'includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, Indian custodian, and extended family members .... [¶] (B) Contacting the Bureau of Indian Affairs and the State Department of Social Services ....[and] [¶] (C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility.' (Ibid.)" (Ezequiel G., supra, 81 Cal.App.5th at p. 999.)
If, following inquiry, "there is 'reason to know' a child is an Indian child, the agency shall provide notice to the relevant tribes and agencies in accordance with section 224.3, subdivision (a)(5). (§ 224.2, subd. (f).)" (Ezequiel G., supra, 81 Cal.App.5th at p. 999.) "There is 'reason to know' a child is an Indian child if any one of six statutory criteria is met-i.e., if the court is advised that the child 'is an Indian child,' the child's or parent's residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).)" (Ezequiel G., at p. 999.)
"If the juvenile court finds that 'proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child,' the court may make a finding that ICWA does not apply to the proceedings, 'subject to reversal based on sufficiency of the evidence.' (§ 224.2, subd. (d)." (Ezequiel G., supra, 81 Cal.App.5th at p. 999.)
2. Additional background
We note initially that when mother appealed in 2019 from the denial of her section 388 petition, she additionally argued, and DCFS conceded, that DCFS had yet to comply with ICWA. Our July 26, 2019 opinion directed the juvenile court to ensure DCFS did so. Our opinion did not provide any specific direction as to how DCFS was to carry out its inquiry, other than to provide proper notice to relevant tribes and other parties if appropriate based on that inquiry.
a. Initial ICWA inquiry
i. Paternal relatives
In DCFS's first meetings with father on March 15, 2017, father reported M.S. had "some" Native American ancestry on both sides of her family, but father could not provide further information.
On June 26, 2019, a social worker spoke with M.S.'s adult brother S.M., who said he was 90 percent sure the paternal side of the family had no Native American ancestry, but his aunt Esther A. might know more. The social worker also spoke to caregiver N.O., who said she had never heard mother or father mention Native American ancestry.
On September 24, 2019, the social worker spoke with Verna L., identified as paternal aunt Esther A.'s niece. Verna L. said she did not believe her side of the family had Native American ancestry, and did not know much about M.S.'s maternal side.
ii. Maternal relatives
On June 26, 2019, the social worker tried without success to reach mother, and left voicemails for maternal aunts Connie C. and Tina V. to discuss M.S.'s ancestry. On July 8, 2019, the social worker again tried without success to contact mother, Connie C., and Tina V. The number the social worker had for Tina V. turned out to be a wrong number.
Maternal aunt Connie C. is alternatively referred to in the record as Cony S. and Connie S.
On September 4, 2019, the social worker asked mother about M.S.'s ancestry. Mother stated she was 25 percent sure she had Kiowa ancestry because M.S.'s maternal grandmother and great-grandfather were Native American. Both had passed away and she did not know if other family member would have information about them. She did not remember maternal greatgrandfather's birthday, but would ask "aunt Betty" via Facebook.
The record reflects that a social worker spoke with maternal grandmother (mother's mother) in 2017 about case matters. The record does not indicate whether maternal grandmother subsequently died, or if mother in fact said her grandmother (M.S.'s maternal great-grandmother) had died.
On September 19, 2019, the social worker spoke with maternal aunt Connie C., who said she did not know if the family had Native American ancestry, but her sister Tina V. or father Ronald H. might have more information. Connie C. provided contact numbers for both, and the social worker left voicemails for them.
b. ICWA notice and response
On October 17, 2019, DCFS sent ICWA notices to the Kiowa Indian Tribe of Oklahoma, the Bureau of Indian Affairs, and the Secretary of the Interior. Although mother had stated her family had Kiowa ancestry, the notice indicated it was father's side of the family that was affiliated with the Kiowa tribe. Mother was identified as "Cathy [H.]," one of the names by which she is referred to in the appellate record, but her alternative name Kathy M. was not listed. Father's first and last name were listed without a middle name. Mother's and father's places of birth were listed as "[u]nknown." Father's birthdate was the same that was used in the first due diligence report, and was therefore one day off from father's listed birthdate on M.S.'s birth certificate. Mother's birthdate on the notice matched the birthdate listed the various DCFS reports, but did not match the birthdate on M.S.'s birth certificate.
The next page of the notice listed two individuals, A.G. and L.G., as mother's biological mother and father (i.e., M.S.'s maternal grandparents) respectively, with all further information regarding them unknown, and no tribal affiliation listed. L.G. was also listed as mother's grandfather (M.S.'s maternal greatgrandfather). The ICWA notice is the first appearance in the appellate record of the names A.G. and L.G., so it is unclear when and how DCFS obtained those names.
Father's mother was identified as S.S. and listed as affiliated with the Kiowa tribe. Father's father's name was listed as unknown, and he also was listed as affiliated with the Kiowa tribe. No names or other identifying information were listed for the father's grandparents (M.S.'s paternal great-grandparents), but all were listed as affiliated with the Kiowa tribe.
The Kiowa tribe responded with a letter from its Indian Child Welfare Program on November 25, 2019. The letter listed M.S.'s, mother's, and father's names as they were listed in the ICWA notice (i.e., mother was identified as Cathy H.), along with their birthdates. Mother's listed birthdate matched the birthdate listed in the ICWA notice, i.e., her birthdate from the DCFS reports, but not the birthdate listed on M.S.'s birth certificate. Father's listed birthdate in the letter matched M.S.'s birth certificate, not the ICWA notice. The record does not explain why father's birthdate listed in the letter from the Kiowa tribe was different from the birthdate listed on the ICWA notice.
The letter stated, "The above names were submitted to the Kiowa Tribe Enrollment Office for confirmation of enrollment or eligibility. The Enrollment Office notified this office that the above names were not located in the enrollment records. If there are other last names than the ones listed, please notify this office, and we will investigate further. Otherwise, the child does not fall under the guidelines of the Indian Child Welfare Act. Additional notice to the Kiowa Tribe will not be necessary." (Boldface omitted.)
At a February 19, 2019 hearing, DCFS counsel cited the letter from the Kiowa tribe and asked the juvenile court to find ICWA did not apply. The other parties offered no argument. The court found ICWA did not apply.
c. Subsequent ICWA inquiry
On April 13, 2023, during the section 366.26 hearing, the juvenile court expressed concern that it could not determine from the case file whether DCFS had complied with its ICWA obligations as this court had ordered in our July 26, 2019 opinion. The court was aware of the February 19, 2020 finding that ICWA did not apply, "But I don't know that is going to satisfy" "[t]he appellate court." Mother interjected that her sister Bonnie and her father's sister Tracy were never contacted. The court continued the hearing and ordered DCFS to "put together all of its efforts on I.C.W.A. so that we can . . . take a close look at what was done and make sure that a finding is based on the entire record."
A last minute information filed April 28, 2023 indicated DCFS had conducted the following further ICWA inquiries after the hearing:
On April 13, 2023, mother stated her grandfather L.G. was Kiowa, and father was possibly part Navajo.
On April 27, 2023, maternal aunt Bonnie H. "stated she believed her father grandfather [sic] Ronal[d H.] was part Native American and Mexican," but did not know what tribe or whether he was on a tribal registry. She said she had "no connection to her grandfather's family and does not know about her family history." Bonnie H. said her mother Kathy H. did not have any Native American ancestry. Bonnie H. opined that mother was using the issue of ancestry to prolong her case.
That same day, the social worker called maternal aunt Connie C. (identified in the last minute information as Connie S.) and left a voicemail. The social worker also called "maternal cousin" Tina V. (identified earlier in the record as maternal aunt) and was informed he had a wrong number.
Also on April 27, the social worker spoke with parental aunt Esther A., father's sister. She stated she was not aware of any Native American ancestry in her family and her parents A.S. and S.O. (M.S.'s paternal grandparents) never mentioned any such ancestry to her. The social worker called paternal sibling S.M. and left a voicemail.
d. The juvenile court's ICWA ruling
At the May 2, 2023 hearing at which the juvenile court ultimately terminated parental rights, mother again asserted her grandfather was Kiowa, and was enrolled with a tribe. She stated her grandfather "was out of Oklahoma." She said her sister Connie was trying to learn more and become enrolled, and a "relative" was trying to find out from the "Native Association in Sacramento" if anyone from her family was registered with a tribe.
The juvenile court read aloud the November 25, 2019 letter from the Kiowa tribe stating ICWA did not apply. Mother's counsel argued inquiry was nonetheless insufficient because the April 28, 2023 last minute information indicated a maternal aunt believed there was Native American ancestry, and DCFS was unable to contact the second aunt.
The juvenile court found "that reasonable efforts were made, inquiries and investigation, including the interview of various relatives." Although mother believed her family had Kiowa ancestry, the Kiowa tribe's letter indicated mother and M.S. were not enrolled. "[T]he court has no reason to know that I.C.W.A. applies. I mean we can spend years trying to find out. But there is no information [from which one] can reasonably conclude that I.C.W.A. applies."
3. Analysis
We note initially that DCFS conducted substantial ICWA inquiry in this case. In addition to questioning mother and father, DCFS spoke with three paternal relatives and two maternal relatives, and attempted to contact two additional maternal relatives.
Mother acknowledges DCFS contacted some extended family members regarding ICWA, but argues DCFS should have done more. Mother notes DCFS, despite trying, never reached maternal aunt Tina V. or maternal aunt Connie C.'s father Ronald H. (the record is unclear if Ronald H. is also mother's father). Mother further notes at the May 2, 2023 hearing she informed the juvenile court Connie C. was doing additional research into the family's heritage, yet the court found ICWA did not apply without DCFS first following up with Connie C. DCFS also did not contact mother's "aunt Betty" or aunt Tracy, whose names she mentioned to DCFS or in court. On the paternal side, mother notes DCFS did not contact father's mother (paternal grandmother), although caregiver N.O. informed DCFS she had spoken to paternal grandmother about the case.
Assuming arguendo DCFS's inquiry efforts were deficient, the question is whether those deficiencies were prejudicial. Appellate courts disagree about the appropriate standard for assessing prejudice in the context of a failure to conduct adequate ICWA inquiry. (See In re S.H. (2022) 82 Cal.App.5th 166, 175-176 [describing five different tests for assessing prejudice].) This division has held such error reversible only if" 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citations.]" (In re S.S. (2022) 75 Cal.App.5th 575, 581.) In assessing prejudice, we look to whether" 'the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.'" (Id. at p. 582, quoting In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.)
We do not think additional inquiry would have led to a different result, i.e., a finding by the juvenile court either that M.S. is an Indian child or that further inquiry was necessary. Although mother and father both reported Native American ancestry, and maternal aunt Bonnie similarly reported such ancestry," 'ICWA does not apply simply based on a child or parent's Indian ancestry.' [Citation.] 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 other words, an Indian child is one with a tribal affiliation, not merely Indian ancestry." (Ezequiel G., supra, 81 Cal.App.5th at p. 1009, fn. omitted.) Further, "[b]ecause tribal membership typically requires an affirmative act by the enrollee or her parent, a child's parents will, in many cases, be a reliable source for determining whether the child or parent may be a tribal member." (Id. at p. 1010.)
In this case, mother and father gave no indication they were members of a tribe. Father said he had no additional information other than M.S. having unspecified Native American ancestry on both sides of the family. Mother claimed Kiowa ancestry through her grandfather but indicated no knowledge that she personally was a member of that tribe.
The many extended family members of whom DCFS inquired similarly gave no indication that M.S. was a member of a tribe or eligible to be a member, or that mother or father were members of a tribe. On the maternal side, maternal aunt Connie C. said in 2019 she had no knowledge of any Native American ancestry. Maternal aunt Bonnie H. believed either her father or grandfather was part Native American and part Mexican but did not know the tribe or whether he was on a tribal registry.
On the paternal side, the three relatives to whom DCFS spoke-father's sister, father's adult son, and father's sister's niece, all stated they did not know of any Native American ancestry or, by extension, political affiliation with a tribe. Mother stated father was "possibly part Navajo," but did not suggest he was a member of that tribe.
It is highly improbable that father, mother, or M.S. are members or eligible to be members of an Indian tribe, yet neither they nor any of the extended family members to whom DCFS spoke is aware of any such membership. It is therefore not reasonably probable that inquiring of additional family members would lead to a different result.
Mother additionally argues the notices DCFS sent to the Kiowa tribe, the Bureau of Indian Affairs, and the Secretary of the Interior were incomplete and erroneous. She provides a long list of errors, including that the notices did not list all of the names mother has gone by, did not include father's middle name, did not include either parent's correct birthdate, incorrectly attributed Kiowa heritage to father rather than mother, did not list mother's past addresses, possibly misidentified maternal great-grandparents as maternal grandparents, and did not include other relatives of whom DCFS was aware such as the maternal aunts.
We agree the notices contained errors and omissions, but for similar reasons to those discussed above, we conclude those errors and omissions were harmless. As an initial matter, formal notice to tribes is required only when there is "reason to know" a child is an Indian child. (§ 224.3, subd. (a); In re P.H. (Jan. 12, 2024, B321592) [2024 Cal.App.Lexis 17 at pp. *7-*8].) None of the statutory circumstances establishing a "reason to know" a child is an Indian child applies here: The court has not been advised the child is an Indian child, M.S. and parents do not live on a reservation, M.S. has not been a ward of a tribal court, and neither parent nor M.S. have a tribal identification card. (See § 224.2, subd. (d).) Thus, the notices DCFS sent were not required by statute and were voluntary.
The question then is whether, had these voluntary notices been more accurate or complete, it is reasonably probable the Kiowa tribe or federal entities would have discovered M.S. is an Indian child. Again, the answer must be no. Contacting tribes or federal entities may be a prudent additional inquiry step if a child's tribal status is open to question-for example, if there are strong indications the child or her parents might be members of a tribe, or if DCFS is unable to inquire of the parents or extended family members. Here, however, DCFS spoke with many family members, and none had any knowledge that mother, father, or M.S. was a member or eligible to be a member of a tribe. It is thus highly improbable that the Kiowa tribe or federal entities, unbeknownst to all these relatives, would have mother, father, or M.S. in their enrollment records.
In the absence of any prejudicial deficiencies in DCFS's compliance with its ICWA obligations, the juvenile court did not err in concluding M.S. was not an Indian child and ICWA did not apply.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: CHANEY, J. WEINGART, J.