Opinion
B331072
04-23-2024
In re Samuel R., Jr., a Person Coming Under the Juvenile Court Law. v. Samuel R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, 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NOT TO BE PUBLISHED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. 18CCJP07071C Lucia J. Murillo, Judge Pro Tempore. Affirmed.
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, ACTING P. J.
Samuel R. (father) appeals from the juvenile court's order terminating his parental rights over his son, Samuel R., Jr. (Samuel, born Sept. 2009). He alleges that both the Los Angeles County Department of Children and Family Services (DCFS) and the juvenile court failed to comply with the duty of initial inquiry under the Indian Child Welfare Act (25 U.S.C. § 1900 et seq.) (ICWA) and related California law. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Because ICWA error is the only issue raised in this appeal, this summary of the factual and procedural background focuses on matters related to ICWA compliance. (In re I.B. (2015) 239 Cal.App.4th 367, 370.) And, because father only alleges error with respect to Samuel's maternal relatives, we do not describe DCFS's ICWA compliance efforts as to father's relatives.
In June 2020, DCFS began an investigation into the family. The following month, DCFS made contact with Samuel's mother, N.M. (mother), and asked her about her ancestry. Mother denied that she or "anyone else in her family is registered with an Indian tribe, or have possible Indian heritage . . . [and] that [she] has ever resided on an Indian reservation, attended Indian schools and/or received medical treatment at any Indian facilities."
Neither mother nor Samuel's three siblings are part of this appeal.
On September 9, 2020, mother filled out a Parental Notification of Indian Status form (ICWA-020) stating that she "ha[s] no Indian ancestry as far as [she] know[s]." At an arraignment hearing held on the same day, the juvenile court found that there was no reason to know that Samuel was an Indian child.
At multiple points during its initial investigation, DCFS interviewed Samuel's maternal grandmother, Suzette P. (maternal grandmother). On March 1, 2022, maternal grandmother filed a Welfare and Institutions Code section 388 petition requesting custody of Samuel. From the record, it does not appear that DCFS ever asked maternal grandmother about any potential Indian ancestry.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On July 12, 2023, the juvenile court held a permanency planning hearing (§ 366.26), reiterated that it had no reason to know Samuel was an Indian child, and terminated parental rights. Father timely appealed.
DISCUSSION
I. Applicable Law
"ICWA was enacted to curtail 'the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement' [citation], and 'to promote the stability and security of Indian tribes and families by establishing . . . standards that a state court . . . must follow before removing an Indian child from his or her family' [citations]." (In re Dezi C. (2022) 79 Cal.App.5th 769, 780, review granted Sept. 21, 2022, S275578 (Dezi C.).)
Under California law enacted to implement ICWA, DCFS and the juvenile court have "three distinct duties . . . in dependency proceedings." (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) The first is the initial duty of inquiry, which DCFS "discharges . . . chiefly by 'asking' family members 'whether the child is, or may be, an Indian child.' ([§ 224.2], subd. (b).)" (Dezi C., supra, 79 Cal.App.5th at p. 780.) "This includes inquiring of not only the child's parents, but also others, including but not limited to, 'extended family members.' [Citation.] For its part, the juvenile court is required, '[a]t the first appearance' in a dependency case, to 'ask each participant' 'present' 'whether the participant knows or has reason to know that the child is an Indian child.' ([§ 224.2], subd. (c).)" (Dezi C., supra, at p. 780; see also Cal. Rules of Court, rule 5.481(a)(1)-(2).) The second duty-the duty of further inquiry-is triggered if there is "reason to believe that an Indian child is involved" (§ 224.2, subd. (e)), while the third duty-to notify the relevant tribes-is triggered if there is "reason to know . . . that an Indian child is involved" (§ 224.3, subd. (a)).
The appellate courts have created "a continuum of tests for prejudice stemming from error in following California statutes implementing ICWA." (In re A.C. (2022) 75 Cal.App.5th 1009, 1011; see also Dezi C., supra, 79 Cal.App.5th at pp. 777-778.) Our Division has adopted the following rule: "[A]n agency's failure to conduct a proper initial inquiry into a dependent child's American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding. For this purpose, the 'record' includes both the record of proceedings in the juvenile court and any proffer the appealing parent makes on appeal." (Dezi C., supra, at p. 779.)
II. Standard of Review
"We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence. [Citation.]" (In re H.V. (2022) 75 Cal.App.5th 433, 438.) "Where, as here, there is no doubt that [DCFS]'s inquiry was erroneous, our examination as to whether substantial evidence supports the juvenile court's ICWA finding ends up turning on whether that error by [DCFS] was harmless-in other words, we must assess whether it is reasonably probable that the juvenile court would have made the same ICWA finding had the inquiry been done properly." (Dezi C., supra, 79 Cal.App.5th at p. 777.)
III. Analysis
Father argues that DCFS violated the initial duty of inquiry by failing to interview maternal grandmother about potential Indian ancestry. DCFS concedes that they did not interview her, but argues that the omission does not constitute reversible error.
We agree with DCFS. Applying the "'reason to believe' rule" that we adopted in Dezi C., supra, 79 Cal.App.5th at page 779, we conclude that the juvenile court and DCFS's failure to make the requisite inquiries of maternal grandmother was harmless because the record does not suggest a reason to believe that Samuel is an Indian child within the meaning of ICWA. (Contra, In re S.R. (2021) 64 Cal.App.5th 303, 315-316 [remand for inquiry required where maternal grandparents filed ICWA-020 forms "asserting [the children] had a very close connection to a specific Indian tribe"]).
Father urges us to set aside the "reason to believe" rule, presumably in favor of one of the more stringent prejudice tests promulgated by our colleagues in other divisions. Unless and until the Supreme Court tells us otherwise, we adhere to Dezi C., supra, 79 Cal.App.5th 769. (See Cal. Rules of Court, rule 8.1105(e) [an appellate opinion remains good law while pending review by the Supreme Court].)
Mother repeatedly denied any known Indian ancestry, and nothing in the record suggests that mother was adopted or otherwise grew up apart from her biological family, such that her "self-reporting of 'no heritage' may not be fully informed [citation]." (Dezi C., supra, 79 Cal.App.5th at p. 779; cf. In re Y.W. (2021) 70 Cal.App.5th 542, 554 [a parent's denial of Indian heritage was unreliable because she was adopted and had no contact with her biological parents].) Father also makes no proffer on appeal that mother may have any Indian heritage. (See Dezi C., supra, at pp. 779, fn. 4, 786.)
Our analysis is underscored by ICWA itself, which narrowly defines "Indian child" to include only a child who is herself or whose parent is a current member of a federally recognized Indian tribe. (§ 224.1, subd. (b).) We doubt that maternal grandmother, if asked, would have been able to provide any different information about whether Samuel or his parents were tribal members-particularly absent any contrary suggestion from father. (See In re A.C., supra, 75 Cal.App.5th at p. 1023 (dis. opn. of Crandall, J.) ["Because such basic information is often known or easily discoverable by each respective parent, there is limited utility in remanding such matters for 'extended family member' inquiry"].)
Lastly, as a relative seeking custody, Samuel's maternal grandmother had unique incentives to provide any information about Samuel's maternal ancestry. (In re S.S. (2022) 75 Cal.App.5th 575, 582 [because "[u]nder ICWA, when an Indian child is the subject of . . . adoptive placement proceedings, 'preference shall be given, in the absence of good cause to the contrary, to a placement with .... [¶] . . . a member of the
Indian child's extended family[,]'" a prospective custodian or adoptive parent "ha[s] a strong incentive to bring to the court's attention any facts that suggest that [the child] is an Indian child"].) The fact that maternal grandmother never provided any information that could suggest that Samuel or his mother were tribal members strengthens our conclusion that DCFS's failure to conduct a proper inquiry was harmless.
Accordingly, we conclude that "it is reasonably probable that the juvenile court would have made the same ICWA finding" even if it had conducted a proper initial inquiry with Samuel's maternal grandmother. (Dezi C., supra, 79 Cal.App.5th at p. 777.)
DISPOSITION
The order is affirmed.
We concur: CHAVEZ, J. HOFFSTADT, J.