Opinion
B324800 B327282
11-14-2023
In re Raven L. et al., Persons Coming Under the Juvenile Court Law. v. MICHELLE L., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lori N. Siegel, by appointment of the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 21CCJP00601A-C Lisa A. Brackelmanns, Commissioner. Affirmed.
Lori N. Siegel, by appointment of the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
Michelle L. (mother) appeals from the juvenile court's order terminating parental rights (Welf. &Inst. Code, § 366.26) over her three children. Her sole contention on appeal is that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the "initial duty to inquire" under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California statutes (§ 224 et seq.). We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
On May 18, 2023, this court granted mother's motion to consolidate cases B324800 and B327282 for purposes of oral argument and decision.
FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the facts is limited to those needed for resolution of the ICWA issue raised on appeal and to provide relevant context.
The family consists of mother and her three children, R.L. (born July 2009), C.L. (born Dec. 2010), and X.G. (born Apr. 2015). Juan G. is the father of R.L. and C.L. Jose G. is the father of X.G.
The fathers are not parties to the appeal.
In January 2021, DCFS received a referral alleging general neglect of the three children by mother. Mother had left the children in the care of maternal great-aunts, Ermelinda B. and Adelaida G., without making an appropriate plan for the children's ongoing care, supervision, and basic necessities. The maternal great-aunts were the sisters of maternal grandfather, Osvaldo L. Ermelinda reported to DCFS that she had been taking care of the children for seven years while mother resided with maternal grandparents.
On February 8, 2021, DCFS filed a dependency petition on behalf of the children. Attached to the petition were the ICWA-010 forms, stating that on January 26, 2021, Ermelinda gave no reason to believe the children were Indian children. On February 5, 2021, mother gave no reason to believe the children were Indian children.
On February 10, 2021, mother filed an ICWA-020 form, stating that none of the criteria for Indian ancestry applied. Juan also filed an ICWA-020 form, stating he had no Indian ancestry as far as he knew.
At the detention hearing, the juvenile court found Juan to be the presumed father of R.L. and C.L., and Jose to be the presumed father of X.G. The court noted that mother and Juan provided ICWA-020 forms, indicating they did not have any Indian ancestry. The court found the ICWA did not apply for R.L. or C.L. The court also found, based on the information provided by mother, there was no reason to know that the ICWA applied to X.G. However, the court ordered DCFS to continue to investigate and locate Jose. The court ordered the parents to keep DCFS, their counsel, and the court aware of any new information relating to possible ICWA status.
In February 2021, mother reported she was living with maternal grandparents. However, in March 2021, mother was actually living with maternal grandfather at a motel. Mother said she was mostly raised by maternal grandfather and great-aunts. Juan reported he was mostly raised by his maternal grandmother as his parents were absent. He also stated DCFS was involved in his life from age 11 to 18. During that time, he was raised in "foster homes, group homes, and with his grandmother."
On March 30, 2021, DCFS filed a first amended petition on behalf of the children, which was sustained on June 1, 2021.
A dependency investigator reported that Jose was incarcerated in Arizona with a projected release date of May 17, 2024. On May 5, 2021, Jose filed an ICWA-020 form, stating that none of the criteria for Indian ancestry applied.
On September 6, 2022, Ermelinda reported neither mother, Juan nor Jose possessed any known Indian ancestry. She believed they all had Mexican ancestry. On September 7, 2022, Adelaida confirmed mother, Juan and Jose's lack of known Indian ancestry. Jose also denied having any known Indian ancestry.
On January 10, 2023, maternal grandmother reported she did not think she had Indian ancestry but would check with her parents. Maternal grandmother did not want to provide the social worker with any direct telephone numbers to continue with the ICWA inquiries. The next day, maternal grandmother informed the social worker she did not have any Indian ancestry.
On February 16, 2023, the court terminated parental rights and designated Adelaida as the children's prospective adoptive parent.
DISCUSSION
I. Applicable Law
ICWA reflects "a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court . . . must follow before removing an Indian child from his or her family." (In re Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.).) Both ICWA and the Welfare and Institutions Code define an "Indian child" as "any 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, subds. (a) and (b) [incorporating federal definitions].)
Our state Legislature incorporated ICWA's requirements into California statutory law in 2006. (In re Abbigail A. (2016) 1 Cal.5th 83, 91.)
The juvenile court and DCFS have "an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9, 11-12.) This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice. The phase at issue here is the initial duty to inquire.
The duty to inquire whether a child is an Indian child begins with "the initial contact," i.e., when the referring party reports child abuse or neglect that triggers DCFS's investigation. (§ 224.2, subd. (a).) DCFS's initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (Id., subd. (b).) Similarly, the juvenile court must inquire at each parent's first appearance whether he or she "knows or has reason to know that the child is an Indian child." (Id., subd. (c).) The juvenile court must also require each parent to complete the parental notification of Indian status form (ICWA-020). (Cal. Rules of Court, rule 5.481(a)(2)(C).) The parties are instructed 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); § 224.2, subd. (c).)
A duty of further inquiry is imposed when DCFS or the juvenile court has "reason to believe that an Indian child is involved" in the proceedings. (§ 224.2, subd. (e); see Austin J., supra, 47 Cal.App.5th at pp. 883-884; In re D.S. (2020) 46 Cal.App.5th 1041, 1048-1049 (D.S.).) When DCFS or the juvenile court has "reason to know" an Indian child is involved, formal ICWA notice is sent to the relevant tribes. (D.S., supra, at p. 1052.)
We review the juvenile court's ICWA findings for substantial evidence. (In re Josiah T. (2021) 71 Cal.App.5th 388, 401; In re S.R. (2021) 64 Cal.App.5th 303, 312.)
II. Initial Inquiry
Mother contends DCFS failed to fulfill its duty of initial inquiry by not (1) interviewing maternal grandfather and (2) asking both fathers for contact information of any available paternal relatives.
Mother argues it was "particularly important" to ask Juan for contact information of any available parental relatives because Juan was raised in the foster care system and therefore "it is plausible he did not know the full extent of his family lineage." That is not accurate. Mother omits that Juan had been raised by his maternal grandmother until age 11, and from age 11 through 18, he was in foster care, group homes, and with his grandmother.
As noted, section 224.2, subdivision (b) imposes on DCFS a duty of initial inquiry, which includes asking "extended family members" whether the child may be an Indian child. "Extended family members" are defined as the "child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (See 25 U.S.C. § 1903(2) and § 224.1, subd. (c).) Mother resided with maternal grandfather during the dependency proceedings, and maternal great-aunts reported to DCFS that they were in contact with him. It does not appear that DCFS made any attempt to retrieve maternal grandfather's contact information from either source. In addition, DCFS failed to ask Juan or Jose for contact information of any available paternal relatives to determine whether the children had Indian ancestry. Therefore, DCFS did not conduct a proper inquiry. Based on our conclusion, we must next determine whether the error was harmless.
California appellate courts have crafted several different tests for deciding whether a defective initial inquiry is harmless. Unless and until our Supreme Court weighs in on the matter, Division Four of this court will apply the rule set forth in In re Dezi C. (2022) 79 Cal.App.5th 769, 777, review granted, Sept. 21, 2022, No. S275578 (Dezi C.). In Dezi C., our colleagues in Division Two of this court stated, "[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." (Dezi C., supra, at p. 779.)
There is nothing in the record to suggest that contacting maternal grandfather or paternal relatives might contradict the unqualified statements by mother and both fathers that the family did not have Indian ancestry. DCFS also spoke to maternal great-aunts and maternal grandmother, who all denied any Indian ancestry. Despite multiple opportunities to do so over the course of the dependency case, neither parent suggested that a family member who had not been contacted might know more about their ancestry. Given mother lived with maternal grandfather during the dependency proceedings, we presume she had a motive to ask, and could have easily asked, him about any possible Indian ancestry. (See In re Y.M. (2022) 82 Cal.App.5th 901, 917; see also In re Darian R. (2022) 75 Cal.App.5th 502, 510.) Thus, we conclude DCFS's failure to comply with its section 224.2, subdivision (b) duty of initial inquiry is harmless error.
DISPOSITION
The order is affirmed.
WE CONCUR: COLLINS, Acting P. J., MORI, J.