Opinion
B316487
10-05-2022
In re L.H., a Person Coming Under the Juvenile Court Law. v. L.U., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP02077A. Marguerite D. Downing, Judge. Conditionally reversed.
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
HARUTUNIAN, J. [*]
Mother L.U. (Mother) appeals from an order terminating her parental rights to her son L.H. Mother argues that the Los Angeles County Department of Children and Family Services (the Department) failed to comply with section 1903 of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and the initial and further inquiry requirements of section 224.2, subdivisions (b) and (e), of the Welfare and Institutions Code.Mother asserts that the Department failed to carry out its initial inquiry obligations by not interviewing any maternal or paternal extended family members as to whether L.H. is an Indian child. She also claims that the Department failed to fulfill its duty of further inquiry, which she asserts was triggered by L.H.'s father's (Father) statement that his grandfather was "mixed with Indian," although he "had no tribal affiliation."
Undesignated statutory references are to the Welfare and Institutions Code.
We conclude that the juvenile court erred in determining that ICWA did not apply to L.H. without evidence that the Department questioned any extended family members. This error was not prejudicial as to the ICWA inquiry about Mother's ancestry because L.H. was placed for adoption with his maternal grandmother, and because there is nothing in the record suggesting a reason to believe L.H. had maternal Indian heritage or that Mother's denial of Indian heritage was uninformed or incorrect.
In contrast, the Department's initial inquiry error was prejudicial as to Father's Indian ancestry. Father's statement that his grandfather was "mixed with Indian" suggests a reason to believe that L.H. may be an Indian child. But there is no evidence in the record that the Department asked Father if he had any extended family members who might be able to provide further information, such as his grandfather or the other paternal relatives mentioned in the record.
Because we determine that the Department's error in the initial inquiry stage was prejudicial and warrants reversal for an inquiry into paternal extended family members who may have further information, we need not reach the question of whether the Department was required to conduct further inquiry solely based upon Father's statement that his grandfather was "mixed with Indian."
Accordingly, we affirm the ICWA determination as to the inquiry about Mother's ancestry. We conditionally reverse the order terminating parental rights and remand with directions for the juvenile court to order the Department to comply with ICWA and related California law as to potential paternal Indian heritage.
Mother may raise ICWA errors on appeal related to Father. (In re A.W. (2019) 38 Cal.App.5th 655, 663.) Additionally, a reversal of the juvenile court's order terminating Father's parental rights must also result in a reversal of the order terminating Mother's parental rights. (Cal. Rules of Court, rule 5.725(a)(1) & (f) ["The purpose of termination of parental rights is to free the dependent child for adoption. Therefore, the court must not terminate the rights of only one parent . . ." except in certain circumstances not applicable here]; see also Los Angeles County Dept. of Children and Family Services v. Superior Court (Rebecca H.) (2000) 83 Cal.App.4th 947, 949.)
A. FACTUAL AND PROCEDURAL BACKGROUND A. The Petition, Termination of Parental Rights, and Parents' Appeals.
We take the majority of these facts from our decision in Father's appeal. (In re L.U. (July 16, 2021, B306908) [nonpub. opn.] (L.U.).)
L.H. and his parents came to the attention of the Department in March 2020 when it received a report that Mother called the police after Father hit her. The Department investigated and discovered that Mother had made previous reports of domestic violence to law enforcement that involved Father. (L.U., supra, B306908 at p. 2.)
The Department filed a petition asserting that L.H. is a person described by Welfare and Institutions Code section 300 due to the March 2020 domestic violence incident and Mother's alleged failure to protect L.H. from domestic violence. (L.U., supra, B306908 at pp. 3-4.) The juvenile court removed L.H. from his parents' custody and placed him with his maternal grandmother, who was already the legal guardian of parents' older child through probate court. (Id. at p. 4.)
After a combined jurisdiction and disposition hearing in July 2020, the juvenile court sustained the petition, declared L.H. a dependent of the court, and removed him from his parents' custody. (L.U., supra, B306908 at p. 4.) Father appealed that decision, asserting there was insufficient evidence to support the juvenile court's jurisdictional findings and removal orders. We disagreed and affirmed the juvenile court's orders in July 2021. (Id. at pp. 1, 10.) Father is not a party to the present appeal.
The juvenile court subsequently terminated parental rights and ordered adoption as the permanent plan for L.H., with his maternal grandmother as the prospective adoptive parent.
This appeal by Mother followed.
B. The ICWA Inquiry.
In April 2020, the Department filed an ICWA-010(A) form, which it attached to the dependency petition, stating that L.H. had no known Indian ancestry. The spaces for "persons questioned" were blank. The Department's detention report stated that in March 2020 both parents denied Indian ancestry.
In April 2020, counsel for each parent subsequently filed ICWA-020 forms for both Mother and Father, which were signed by the attorneys on the parents' behalf and stated that they had no Indian ancestry as far as they knew. Citing these forms, at the April 16, 2020 detention hearing the juvenile court found that ICWA did not apply to L.H.
When interviewed by a social worker on April 24, 2020, Mother denied American Indian ancestry.
When interviewed by a social worker on May 22, 2020, Father "reported that his grandfather was mixed with Indian but he [sic] had no tribal affiliation and just identified as Black."
The Department's 6-month, 12-month, and section 366.26 permanent plan reports stated that ICWA did not apply.
When the juvenile court terminated parental rights, it did not make any further finding about the application of ICWA to L.H.
DISCUSSION
The juvenile court's finding that ICWA does not apply 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 L.H. is an Indian child. (In re Josiah T. (2021) 71 Cal.App.5th 388, 401 (Josiah T.).)
"' "[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." '" (Josiah T., supra, 71 Cal.App.5th at p. 401, quoting In re D.F. (2020) 55 Cal.App.5th 558, 565, 569 (D.F.).)
A. Applicable 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. (D.F., at p. 566.)
The initial inquiry phase requires the Department to ask "the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) At each participant's first appearance at dependency proceedings, the court must ask whether the participant knows or has reason to know the child is an Indian child. (Id., subd. (c).)
Both the court and the Department must make "further inquiry" if they have "reason to believe" an Indian child is involved. (§ 224.2, subd. (e).) The version of section 224.2, subdivision (e), in effect when the juvenile court held the section 366.26 hearing is the current version, and defines "reason to believe" 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. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know [the child is an Indian child]." (§ 224.2, subd. (e)(1).)
While this case was pending in the juvenile court, section 224.2, subdivision (e) was amended, effective September 18, 2020, to define information triggering a "reason to believe." It was previously undefined. (See In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14 (T.G.).)
If "further inquiry" is required, the next steps the Department must take include, but are not limited to, interviewing parents and extended family members, and notifying the Bureau of Indian Affairs and any tribes that "may reasonably be expected to have information regarding the child's membership status or eligibility." (§ 224.2, subd. (e)(2)(B); see also Cal. Rules of Court, rule 5.481(a)(4).)
The final phase, the duty to provide formal notice, is triggered only if there is "reason to know" a child is an Indian child. (§ 224.3, subd. (a).)
B. Due to Inadequacies in the Initial Inquiry, the Trial Court Erred in Finding ICWA Inapplicable.
The first question we must answer is whether the implied finding that the Department fulfilled its duty of initial inquiry constitutes error. We conclude 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).) Here, there is no evidence that the Department inquired of any extended family members. This is despite evidence that the Department had contact with maternal grandmother and grandfather, in whose home L.H. was placed when he was removed from his parents, and Mother's aunt, with whom Mother lived for a time during these proceedings.
The record also mentions Father having extended family members, but there is no evidence that Father was asked if any of them could be questioned, let alone evidence that any were interviewed. In addition to Father's grandfather (although it is not indicated in the record whether or not Father's grandfather is still living), Father told the Department's social worker about other extended relatives, stating he had financial "assistance from family members," and that he had seven siblings. Father also reported that he had "family members who could provide care" to L.H.
The Department concedes that it failed to fully comply with its initial inquiry duties, asserting only that this error was harmless. Given the Department's failure to comply with its section 224.2, subdivision (b), duty to inquire with extended family members, the juvenile court's implied finding that the Department fulfilled its duty of inquiry constitutes error. (See In re Darian 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]; In re K.R. (2018) 20 Cal.App.5th 701, 709 [holding that the Department has an "obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child[ren]'s possible Indian status"].) 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 [citing Cal. Const., art. VI, § 13].)
C. The Juvenile Court's Error Was Prejudicial.
Although we conclude that the trial court erred in its ICWA finding based upon maternal Indian ancestry, we do not find prejudicial error for two reasons. We do find prejudicial error as to the ICWA finding based upon paternal Indian ancestry.
A prerequisite to reversal of a trial court's decision in California is showing a miscarriage of justice. (Cal. Const., art. VI, § 13.) Prejudicial error warranting reversal is therefore 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.)
As we recently held in In re J.W. (2022) 81 Cal.App.5th 384 (J.W.), the error in failing to ask maternal extended family members about Indian heritage is harmless when the prospective adoptive parent is the maternal grandmother, which is the case here. Accordingly, L.H. is "not facing alienation or separation from any assumed Indian ancestry," and thus the concerns about the separation of Indian children from their Indian families, heritage, and culture are not implicated because "the juvenile court's disposition place[s] [the child] back within the assumed Indian family tree with a grandmother who was one generation closer to the family's assumed Indian heritage than any of [the child's] other relatives." (Id. at p. 390.)
In addition, our colleagues in the Second District, Division Two, recently set forth a way to assess prejudice in In re Dezi C. (2022) 79 Cal.App.5th 769, review granted Sept. 21, S275578 (Dezi C.) that we also adopted in J.W., supra, 81 Cal.App.5th at page 391. 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., at p. 774.)
Applying the approach articulated in Dezi C., we conclude that the juvenile court's error was harmless as to the ICWA finding regarding Mother. Mother denied Indian heritage before the juvenile court. Mother makes no new proffer of evidence on appeal that she has Indian heritage. There is no suggestion her previous denials were insufficient because she was adopted or otherwise might not know her own heritage. On appeal, Mother simply asserts that the Department should have asked available maternal extended family members. But there is nothing in the record suggesting a reason to believe that L.H. is an Indian child based upon maternal ancestry. Thus, there is no prejudicial error.
In contrast, there is evidence that the juvenile court's ICWA finding as to Father's lineage was prejudicial error. As the court in Dezi C. stated in discussing its approach to determining prejudice, "[t]o illustrate, a reviewing court would have 'reason to believe' further inquiry might lead to a different result if the record indicates that someone reported possible American Indian heritage and the agency never followed up on that information. . . ." (Dezi C., supra, 79 Cal.App.5th at p. 779, italics added.) That is the case here. Father reported possible American Indian heritage through his grandfather, yet there is no evidence that the Department followed up on that information, such as by asking Father whether his grandfather was still living and could be questioned, or whether any of the other paternal extended family members mentioned in the record could be interviewed. In order for Father to have identified extended family members who were available to be questioned by the Department about potential Indian ancestry, the Department needed to ask Father whether any such relatives existed. There is no evidence he was asked, nor does the Department assert otherwise.
The Department may be unable to contact the grandfather, if still living, or other paternal extended family members. Nevertheless, to the extent that Father is acting as a surrogate for a tribe, to achieve the purpose of allowing that tribe to determine whether L.H. is an Indian child, we will conditionally reverse the order terminating parental rights and remand with instructions that the Department comply with its duty to inquire of paternal extended family, and potentially to inquire further, and any resulting duty to provide notice to the tribes. If that notice is ordered and a tribe responds and indicates that L.H. is an Indian child, and seeks intervention, then the juvenile court's orders shall be vacated and proceedings consistent with ICWA conducted. If no tribe responds that L.H. is an Indian child, or if no tribe seeks to intervene, the court should then reinstate its section 366.26 orders. (See Josiah T., supra, 71 Cal.App.5th at p. 409.)
In sum, we conclude that there was prejudicial error at the initial inquiry stage as to Father's Indian heritage but not Mother's.
D. We Need Not Decide Error as to Further Inquiry into Father's Indian Heritage.
Mother also argues that there was error because Father's statement that his "grandfather was mixed with Indian but he had no tribal affiliation and just identified as Black," triggered the duty of further inquiry. If the court or social worker has "reason to believe" that an Indian child is involved in the proceeding, the court or social worker "shall make further inquiry regarding the possible Indian status of the child...." (§ 224.2, subd. (e).)
There is a split of authority as to what information is sufficient to trigger the duty of further inquiry. Specifically, there are differing views as to what information gives rise to a "reason to believe" a child is an Indian child and whether amendments to the law in 2019 changed the inquiry. (Compare In re Austin J. (2020) 47 Cal.App.5th 870 with T.G., supra, 58 Cal.App.5th 275.) Complicating things further, after Austin J. and T.G. were decided, the Legislature explicitly defined "reason to believe," which it had previously failed to define. (See ante, fn. 4, and full definition in related text.)
Prior to 2019, California law required further inquiry if the agency" 'knows or has reason to know or believe that an Indian child is or may be involved' in the case. (Cal. Rules of Court, rule 5.481(a)(4), italics added.)" (In re A.M. (2020) 47 Cal.App.5th 303, 315.)
Regardless, given our resolution of the initial inquiry issue as to Father's ancestry in this case, we do not need to decide whether Father's statement regarding his grandfather's Indian heritage was sufficient, by itself, to trigger the duty of further inquiry. On remand, the Department must ask Father which extended relatives can be questioned about Indian ancestry and question them. They may provide more specific information about tribal affiliation and membership than Father provided. "Oral transmission of relevant information from generation to generation and the vagaries of translating from Indian languages to English combine to create the very real possibility that a parent's . . . identification of the family's tribal affiliation is not accurate. Accordingly, just as proper notice to Indian tribes is central to effectuating ICWA's purpose, an adequate investigation of a family member's belief a child may have Indian ancestry is essential to ensuring a tribe entitled to ICWA notice will receive it." (T.G., supra, 58 Cal.App.5th at p. 289.)
Mother does not assert further inquiry was needed as to maternal lineage, only paternal.
We therefore do not determine whether the statement by Father, by itself, gives rise to a "reason to believe" that L.H. is an Indian child and thus triggers the duty of further inquiry. We leave that determination to the juvenile court in the first instance after it orders the Department to comply, and the Department complies, with the initial inquiry requirements of section 224.2.
DISPOSITION
The juvenile court's order terminating parental rights is conditionally reversed. The matter is remanded for further proceedings to satisfy requirements under ICWA and related California law as to possible paternal Indian heritage. The juvenile court shall order that within 45 days of the remittitur, the Department report to the court its investigation of L.H.'s potential Indian ancestry through Father. The juvenile court is required to order that the Department comply with its duty to inquire of paternal extended family, and potentially to inquire further, and with any resulting duty to provide notice to a tribe or tribes.
If that notice is ordered and a tribe responds and indicates that L.H. is an Indian child, and seeks intervention, then the juvenile court's orders shall be vacated and proceedings consistent with ICWA conducted. If no tribe responds that L.H. is an Indian child, or if no tribe seeks to intervene, the court should then reinstate its section 366.26 orders.
We concur: STRATTON, P. J. GRIMES, J.
[*] Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.