Opinion
B332328
04-17-2024
In re K.J., a Person Coming Under the Juvenile Court Law. v. K.W., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20CCJP00662 Kristen Byrdsong, Judge Pro Tempore. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
BENDIX, J.
Mother K.W. appeals from the termination of her parental rights to her daughter, K.J. Mother contends respondent Los Angeles County Department of Children and Family Services (DCFS) failed to investigate adequately whether K.J. was an Indian child, an investigation 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.). Assuming DCFS's investigation was inadequate, we conclude any such error was harmless. Accordingly, we affirm.
Further unspecified statutory citations are to the Welfare and Institutions Code.
BACKGROUND
1. Proceedings leading to termination of parental rights
Because the sole issue on appeal is ICWA compliance, we provide only a summary of the proceedings below.
At the time these proceedings began, K.J. lived with father R.J. in paternal grandparents' home. Mother lived in Alabama. On January 23, 2020, DCFS received a referral that father had been placed on a psychiatric hold after accusing paternal grandfather of sexually molesting K.J. and threatening to stab paternal grandfather with a knife.
Following detention, investigation, and hearings, the juvenile court on October 20, 2020 sustained section 300 allegations that father had a history of violent behavior, mental and emotional problems, and substance abuse; father had failed to protect K.J. from physical and sexual abuse perpetrated by paternal grandfather; and mother had failed to protect K.J. from father's substance abuse. The court ordered K.J. removed from mother and father and ordered reunification services for both parents.
The section 300 petition also alleged mother had failed to provide K.J. with the necessities of life or protect her from father's violent conduct and paternal grandfather's physical and sexual abuse. These allegations were deleted by interlineation or dismissed by the juvenile court. Thus the only sustained allegation against mother was her failure to protect K.J. from father's substance abuse.
On April 20, 2021, the juvenile court found the parents had not made substantial progress in their case plans and terminated reunification services. On October 5, 2023, the court found K.J. adoptable and terminated mother's and father's parental rights.
Mother timely appealed.
2. ICWA proceedings
a. Inquiry regarding maternal ancestry
DCFS asked mother about her family's heritage on February 26, 2020, July 8, 2021, April 28, 2022, and August 14, 2023, and mother consistently denied knowledge of Indian heritage. Mother also submitted an ICWA-020 form on July 19, 2023 indicating no Indian heritage. The juvenile court questioned her directly about the form, and mother again confirmed she had no Indian heritage. The court asked whether mother had listed any relatives on the ICWA-020 form of whom DCFS could inquire, and mother's counsel said no, but would ask mother to provide any additional information. The court asked counsel to do so that week, "just so that ICWA is not a lingering issue." The record does not indicate mother's counsel provided additional information.
On August 15, 2023, DCFS spoke with maternal aunt Tiffany W., with whom mother lived. Tiffany W. said her family might have Indian heritage, although she could not provide the name of a tribe. She said she would speak with other family members and follow up with DCFS. The record does not contain any further communications between DCFS and Tiffany W.
On September 20, 2023, DCFS again asked mother about her heritage, and mother "reported that no one in her family has any knowledge of Native American Heritage."
Mother stated her mother (maternal grandmother) died in 2020. Mother lived with maternal grandmother prior to her death. The record does not appear to have information about mother's father (maternal grandfather).
b. Inquiry regarding paternal ancestry
On March 16, 2020, paternal grandmother told DCFS she believed both she and paternal grandfather had Cherokee heritage. She said she would contact her aunt (paternal greatgreat aunt) for more information, and have paternal grandfather contact his father (paternal great-grandfather). DCFS asked paternal grandmother to provide family members' full names, dates and places of birth and death, and current addresses.
The next day, paternal grandmother contacted DCFS and said, "Everyone has a little Indian in them, so let's just forget this whole thing. I don't have any specific information about our ancestry. We've only heard that we have it somewhere in our history. We don't have the information to be able to trace it back."
On June 17, 2020, DCFS again spoke to paternal grandmother about possible tribal affiliation. Paternal grandmother said any Indian heritage in the family was just rumors, and she had no further information to provide. DCFS asked paternal grandmother for additional family information for herself, paternal grandfather, mother, and father, but paternal grandmother declined to provide any information, even after DCFS explained the importance of that information to the ICWA investigation.
The next day, paternal grandmother called DCFS and asked why the agency had asked her about Indian heritage. DCFS said it was because she initially had reported such heritage. Paternal grandmother denied ever claiming Indian heritage, and asked why DCFS was not inquiring of other family members. DCFS told paternal grandmother that mother had denied Indian heritage and DCFS could not find father. DCFS asked if paternal grandmother knew of other relatives of whom DCFS should inquire, but paternal grandmother declined to provide additional information and denied the family had any Indian heritage.
A report states that on July 20, 2020, DCFS sent ICWA notices to the Bureau of Indian Affairs, Secretary of the Interior, Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians in Oklahoma. The notices themselves are not in the record.
The United Keetoowah Band of Cherokee Indians and Eastern Band of Cherokee Indians responded with letters indicating K.J. was not a member of those tribes or eligible for membership. The record does not contain a response from the Cherokee Nation or the federal entities.
On August 31, 2020, the juvenile court itself asked paternal grandmother whether she had any knowledge of Indian ancestry in her lineage or paternal grandfather's lineage, and paternal grandmother said no.
On April 28, 2022, mother denied having any knowledge that father had Indian heritage.
DCFS again asked paternal grandmother about ICWA on August 14, 2023, and she again denied knowledge of Indian heritage. That same day, DCFS spoke with paternal grandfather's sister (paternal great-aunt) Barbara D., who denied knowledge of Indian heritage. On September 20, 2023, DCFS spoke with paternal aunt Brenda W., who also denied having information about Indian heritage.
c. Additional family members with whom DCFS had or attempted contact
During these proceedings, DCFS spoke with paternal uncle R.J. and paternal great-aunt Mary J., but the record does not indicate they were asked about possible Indian heritage. A DCFS "Delivered Service Log" (some capitalization omitted), which documents "All Contacts, Services &Visits" regarding K.J.'s case, indicates DCFS contacted or attempted to contact 11 additional individuals with the same last name as father, and one individual with the same last name as mother. The "Contact Purpose" listed for these contacts is "Consult with Collateral," but there is no further indication of the subject of the communications, including whether DCFS inquired regarding the family's ancestry.
d. ICWA findings
At the August 31, 2020 hearing, after paternal grandmother denied knowledge of Indian heritage on both her and paternal grandfather's side of the family, the juvenile court found it had no reason to believe ICWA applied "at this time."
On May 17, 2022, the juvenile court found that ICWA did not apply to mother's lineage. It reaffirmed this finding on July 19, 2023 after receiving mother's ICWA-020 form, although, as noted, the court asked mother's counsel to inquire of mother whether there were additional relatives to contact.
In the October 5, 2023 order terminating parental rights, the juvenile court again found ICWA did not apply.
DISCUSSION
A. 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); Welf. &Inst. Code, § 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. (i)(2)." (Ezequiel G., supra, 81 Cal.App.5th at p. 999.)
B. Any Deficiencies in ICWA Inquiry Were Harmless
DCFS and the juvenile court conducted substantial ICWA inquiry in this case. DCFS spoke repeatedly and in detail with paternal grandmother about the family's heritage. DCFS inquired of extended family members on both sides of the family. DCFS also contacted three Cherokee tribes as well as federal entities regarding K.J.'s Indian status. The juvenile court itself questioned mother and paternal grandmother about ICWA.
Mother contends DCFS's ICWA inquiry was insufficient because, although relatives on both sides of the family indicated possible Indian heritage, DCFS did not inquire further of all available extended family members. Mother notes that paternal grandmother indicated possible Cherokee heritage on father's side of the family, and maternal aunt Tiffany W. indicated there might be Indian heritage on mother's side as well. Mother argues these statements triggered DCFS's duty of additional inquiry. According to mother, DCFS should have followed up with Tiffany W. to see if she had contacted additional family members as she said she would, and if so, what she had learned. Mother contends DCFS also should have investigated the family's ancestry when speaking with the nearly dozen individuals with mother's or father's last name identified in the delivered service log. Mother asserts we can draw no conclusions from the notices to the Cherokee tribes and federal entities because the notices are not in the record, and therefore we cannot determine if the information contained in the notices was accurate and adequate.
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 K.J. is an Indian child or that further inquiry was necessary. We note initially that" '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 984, at p. 1009, fn. omitted.)
Although paternal grandmother initially stated she and paternal grandfather might have Cherokee ancestry, she retracted that assertion the next day, and from that point on consistently denied any such heritage, including when questioned by the juvenile court. DCFS further confirmed with Barbara D., who was paternal grandfather's sister, as well as paternal aunt Brenda W., that the family had no Indian heritage. Mother also stated she was not aware that father had any Indian heritage. It is highly improbable that father or K.J. would be members or eligible to be members of an Indian tribe, yet none of these relatives knew it. It is therefore not reasonably probable that inquiring of additional paternal family members would lead to a different result.
As for K.J.'s maternal lineage, mother repeatedly and consistently denied Indian ancestry, including when questioned by the juvenile court. "Because tribal membership typically requires an affirmative act by the enrollee or his 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." (Ezequiel G., supra, 81 Cal.App.5th at p. 1010.)
The juvenile court and DCFS did not, however, rely solely on mother's assertions. Following mother's declaration in juvenile court that she had no Indian ancestry, the court asked mother's counsel to provide within a week the names of any additional relatives that could provide information on the family's heritage. Counsel provided no such information, which suggests there was no such information to report.
DCFS inquired further of mother's sister Tiffany W., who stated the family might have Indian ancestry, although she could not identify a tribe or provide further information. Tiffany W. stated she would check with other relatives and get back to DCFS. A month later, DCFS followed up with mother, who lived with Tiffany W., and mother "reported that no one in her family has any knowledge of Native American Heritage." Had Tiffany W. discovered something of significance, one would assume mother would know about it, and would not instead affirm on behalf of not only herself, but also her entire family that no one knew of any Indian heritage. On this record, we cannot conclude there is a reasonable probability that had DCFS contacted Tiffany W. again, or inquired of additional maternal relatives, that the outcome of the inquiry would be different.
Accordingly, the purported deficiencies in ICWA inquiry were harmless. In reaching this conclusion, we do not rely on the responses from the two Cherokee tribes stating K.J. was not an Indian child. We agree with mother that, because the notices sent to the tribe are not in the record, and therefore presumably were not presented to the juvenile court, neither we nor the juvenile court can know whether those notices were complete and accurate.
We further note, however, 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., Jr. (2024) 98 Cal.App.5th 992, 997.) 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, K.J. and parents do not live on a reservation, K.J. has not been a ward of a tribal court, and neither parent nor K.J. has a tribal identification card. (See § 224.2, subd. (d).) Thus, the notices DCFS sent were not required by statute and were voluntary, and the absence of those notices in the record does not mandate reversal. As stated in P.H., Jr., DCFS's decision to "provide notice to tribes as a prudential matter" "is to be encouraged, and a rule mandating reversal any time such voluntarily provided notice is imperfect would not encourage the practice." (P.H., Jr., at p. 996, fn. 3.)
DISPOSITION
The order terminating parental rights is affirmed.
We concur: ROTHSCHILD, P. J. WEINGART, J.