Opinion
B315049
02-22-2023
In re GIANNA T., a Person Coming Under the Juvenile Court Law. v. T.M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 21CCJP01756, Craig S. Barnes, Judge.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
T.M. (mother) appeals from the juvenile court's order assuming dependency jurisdiction over her now two-year-old daughter Gianna T. Mother contends substantial evidence does not support the juvenile court's findings that mother's history of substance abuse and mental health problems placed Gianna at risk of harm. Mother further contends the juvenile court and the Los Angeles County Department of Children and Family Services (the Department) failed to comply with the initial inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).
We affirm the juvenile court's order.
BACKGROUND
Detention and Welfare and Institutions Code section 300 petition
All further statutory references are to the Welfare and Institutions Code, unless stated otherwise.
On April 14, 2021, the Department received a referral alleging caretaker absence/incapacity and general neglect of Gianna by mother, who had been arrested for driving a stolen vehicle. Arresting Deputy Sheriff Hernandez observed that infant Gianna, who was in the back seat of the car, was extremely dirty. The car was cluttered with clothes and personal property, and it appeared that mother was homeless and living out of the vehicle. Mother also had outstanding warrants for theft of personal property and taking a vehicle without owner consent.
The Department's social worker interviewed mother at the West Hollywood Sheriff's station. Mother claimed the car she was driving at the time of her arrest belonged to an ex-boyfriend. Mother further claimed she and Gianna were currently living with friends, but she could not provide the names or contact information for those friends. Mother identified Marquise T. as Gianna's father (father) and said he had been incarcerated since Gianna's birth. Mother provided contact information for a cousin named Nicole, to whom Gianna could be released. The social worker's attempts to contact Nicole were unsuccessful.
On April 21, 2021, the Department filed a petition on Gianna's behalf under Welfare and Institutions Code section 300, subdivision (b), alleging that Gianna was at risk of harm because both mother and father were incarcerated, and mother had failed to make an appropriate plan for the child's ongoing care and supervision. A first amended petition added allegations that mother's history of mental and emotional problems, including a diagnosis of depression, rendered her incapable of providing regular care for Gianna.
Both parents were incarcerated at the time of the April 21, 2021 detention hearing at which the juvenile court ordered Gianna detained from both mother and father. The court granted both parents monitored visits upon their release from jail.
In a last minute information for the court filed on April 30, 2021, the Department reported that the social worker had met with mother on April 27, 2021, and provided mother with referrals, information about the upcoming hearing, and the name of the attorney who would represent her in the dependency case.
Jurisdiction and disposition
In its June 18, 2021 jurisdiction/disposition report, the Department reported that Gianna was placed with maternal cousin Rasheda C. on May 20, 2021.
Mother identified her parents as Joyce S. and Ronald M. She said she was raised by her mother and grandmother and had no relationship with her father. Mother said she has nine siblings.
Mother's child welfare history included several referrals dating back to 2015. A March 2015 referral concerned an altercation between mother and the father of Gianna's older halfsibling Steven, resulting in the arrest of both mother and Steven's father (Steven, Sr.). Mother disclosed using methamphetamine while pregnant with Steven but tested negative at Steven's birth.
In August 2015, the Department received another referral involving mother and Steven, Sr., resulting in Steven's detention from both his parents. Mother jumped on Steven, Sr.'s car while holding then six-month-old Steven. Mother appeared to be under the influence of drugs at the time. Mother was partially compliant with her case plan but tested positive for substances throughout the case. Steven, Sr., eventually reunified with Steven and the case was closed in 2016 with Steven, Sr., having sole physical custody and joint legal custody of Steven.
In December 2020 and again in February 2021, the Department received referrals concerning unsanitary conditions in the shelter where mother and Gianna were residing. Mother was reportedly engaging in hoarding behavior and appeared to be overwhelmed with her mental health issues. Although mother was given a bassinet, she did not use it for Gianna but instead filled it with objects. The 2020 referral was closed as inconclusive. The 2021 referral was closed because mother and Gianna were evicted from the shelter and their whereabouts became unknown. Mother also had an extensive criminal history that included a 2021 warrant for possession of unlawful paraphernalia and drug-related arrests in 2020, 2019, and 2018.
In a May 26, 2021 telephonic interview, mother told the dependency investigator that she had recently been diagnosed with depression and prescribed psychotropic medication. Mother admitted to being arrested on April 14, 2021, on an outstanding petty theft warrant but refused to discuss her April 29, 2021 arrest.
Mother denied that she and Gianna were living in a car at the time of her April 29, 2021 arrest. She said she was renting a small room and kept some of their belongings in the car. Mother said she and Gianna had lived in a shelter before renting a room but left because they were being bullied by another woman.
Mother claimed she was sober and was not consuming any illegal drugs. She admitted consuming methamphetamine for a period of one year. When the dependency investigator offered to set up an on-demand drug test, mother said she was unsure if she could keep the appointment.
The social worker reported that mother was not doing well. Mother had reported feeling extremely depressed but had not yet enrolled in any services. Mother's often erratic behavior caused the social worker to suspect that mother was using drugs.
The housing coordinator at mother's former shelter residence told the investigator he had last seen mother and Gianna in March 2021. At that time, mother was not meeting the shelter's sanitary condition standards. The coordinator reported observing concerning behavioral issues in mother as well. Mother talked to herself, behaved erratically, and destroyed property at the shelter.
In a last minute information for the court filed in June 2021, the Department reported that mother began receiving mental health services in March 2021. She was first diagnosed with major depressive disorder in 2015. Mother was participating in monthly virtual therapy sessions and had been prescribed Zoloft.
On June 18, 2021, the juvenile court continued the adjudication hearing pending completion of a DNA test requested by father. The court ordered the Department to assess maternal aunt Carolyn S., who had filed a request for placement of Gianna and to serve as a monitor for mother's visits.
In a last minute information for the court filed in July 2021, the Department reported that mother had been arrested on July 20, 2021, for a felony charge. The Department filed a second amended petition adding allegations concerning mother's July 2021 arrest and her history of illicit drug use.
In another last minute information for the court filed in September 2021, the Department reported on an August 24, 2021 interview with mother. Mother said she was seeing a therapist every three weeks but was unable to recall the therapist's name. She was not enrolled in any other services.
Mother was present at the September 1, 2021 adjudication hearing. The juvenile court received into evidence mother's exhibits and the Department's reports, exhibits, and case file. The court struck the allegations of the second amended petition concerning mother's arrests and her failure to make an appropriate plan for Gianna's care, struck the allegations concerning father, and sustained the petition as amended by interlineation. The juvenile court ordered Gianna removed from parental custody and suitably placed. The court granted mother reunification services and ordered mother to enroll in individual counseling and parenting classes, to take all prescribed medications, and to submit to five drug tests. If mother tested positive or missed any of the drug tests, mother was to complete a drug treatment program with testing.
ICWA facts
In an Indian child inquiry attachment dated April 14, 2021, the social worker indicated he had asked mother about Gianna's Indian status and that the inquiry gave him no reason to believe Gianna is or may be an Indian child. On May 24, 2021, mother completed an ICWA-020 form on which she checked a box indicating that neither she, Gianna, nor any of their lineal ancestors were members of, or eligible for membership in, any federally recognized Indian tribe.
At the May 25, 2021 arraignment hearing, the juvenile court acknowledged receipt of mother's completed ICWA-020 form: "The ICWA form is consistent with the court finding that ICWA does not appear to apply. Mother has indicated she does not believe she has Native American ancestry. [¶] The court will revisit the issue of ICWA at the time of father's arraignment which is set for June the 11th." The court's May 25, 2021 minute order states: "The Court does not have a reason to know that ICWA applies as to mother."
On June 11, 2021, father completed an ICWA-020 form in which he indicated that neither he, Gianna, nor any of their lineal ancestors were members of, or eligible for membership in, any federally recognized Indian tribe. At the June 11, 2021 detention hearing, the juvenile court acknowledged receipt of father's ICWA-020 form and found there was no reason to believe ICWA applied: "Father has indicated he does not believe he has Native American ancestry. And mother has indicated that she does not believe she has Native American ancestry. Based hereon, the court finds that ICWA does not apply to this child or doesn't have reason to believe that ICWA applies to this child." The court's June 11, 2021 minute order states the parents should keep their attorneys, the court, and the Department apprised of any new information concerning possible Indian status.
DISCUSSION
I. Jurisdiction
A. Applicable law and standard of review
Section 300, subdivision (b) authorizes the dependency court to assume jurisdiction over a child when the child has suffered or is at a substantial risk of suffering serious physical harm because of the parent's failure or inability to adequately supervise or protect the child. A substantial risk of serious physical harm can be established by proof of an identified, specific hazard in the child's environment, or by the failure to rebut the presumption that the absence of adequate supervision and care poses an inherent risk to the physical health and safety of a child of "'tender years.'" (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219.) With respect to a child of "tender years," a finding of substance abuse or mental illness is prima facie evidence of the inability of a parent to provide regular care, resulting in a substantial risk of physical harm. (Ibid.)
We review mother's challenge to the sufficiency of the evidence supporting the juvenile court's jurisdictional and dispositional orders under the substantial evidence standard. (In re Hailey T. (2012) 212 Cal.App.4th 139, 145-146 [disposition]; In re Alexis E. (2009) 171 Cal.App.4th 438, 450 [jurisdiction].) Under that standard, "the issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences. Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court. Evidence from a single witness, even a party, can be sufficient to support the trial court's findings." (Alexis E., at pp. 450-451.)
B. Substantial evidence supports the jurisdictional findings
Substantial evidence supports the juvenile court's findings, under section 300, subdivision (b), that mother's history of mental and emotional problems rendered her incapable of providing regular care for Gianna and that mother's unresolved history of substance abuse placed Gianna at risk of serious physical harm.
Mother's methamphetamine use led to the removal of Gianna's older sibling Steven from mother's custody. Mother continued to test positive for substances throughout Steven's case, which terminated in August 2016 with Steven's father having sole physical and joint legal custody. Mother's criminal history showed a pattern of more recent drug-related offenses, including a 2021 warrant for possession of unlawful paraphernalia and drug-related arrests in 2020, 2019, and 2018. Mother's failure to address her substance abuse issues in Steven's dependency case, her recent drug-related criminal history, and Gianna's tender age (the child was a year old at the time of the adjudication hearing), amply support the juvenile court's jurisdictional findings that mother's history of substance abuse placed Gianna at risk of harm.
Substantial evidence also supports the juvenile court's assumption of jurisdiction based on mother's mental health issues. Mother was diagnosed with major depressive disorder in 2015 and again in May 2021. She exhibited erratic and concerning behaviors such as hoarding, living in unsanitary conditions, and destroying shelter property. When Gianna was first taken into protective custody, the arresting deputy and the social worker both observed that Gianna was extremely dirty. Although given a bassinet for Gianna, mother did not use it for the infant but instead filled it with their belongings. Mother's housing coordinators offered to help mother keep her living quarters clean and to connect her with mental health services, but mother did not accept their assistance. Her whereabouts subsequently became unknown. Substantial evidence supports the finding that mother's history of mental health issues placed Gianna at risk of harm.
II. ICWA
A. Applicable law and standard of review
ICWA and related California statutes reflect the Legislature's intent "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families." (25 U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.) An "Indian child" is defined as any unmarried person under the age of 18 who is either a member of an Indian tribe or 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, subds. (a), (b).)
"Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case. These requirements are sometimes collectively referred to as the duty of initial inquiry." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 741 (Benjamin M.).) "The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (a).) The court and child welfare department "have an affirmative and continuing duty" to inquire whether a child for whom a petition under section 300 may be or has been filed may be an Indian child. (Ibid.)
Under California law, the child welfare department's initial duty of 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).) Under ICWA, the term "extended family member" is "defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian 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." (25 U.S.C. § 1903(2).)
The juvenile court must also inquire at each participant's first appearance in court whether the participant knows or has reason to know that the child is an Indian child. (§ 224.2, subd. (c).) In addition, the juvenile court must instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child. (§ 224.2, subd. (c).)
If the "initial inquiry creates a 'reason to believe' the child is an Indian child, then the Agency 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' ([§ 224.2], subd. (e), italics added.) [I]f that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone 'knows or has reason to know that the child is an Indian child']; id., subd. (d) [defining circumstances that establish a 'reason to know' a child is an Indian child]; § 224.3 [ICWA notice is required if there is a 'reason to know' a child is an Indian child as defined under § 224.2, subd. (d)].)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.)
We review a 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 ICWA finding.") (In re Dezi C. (2022) 79 Cal.App.5th 769, 777, review granted Sept. 8, 2022, S275578 (Dezi C.).) Even if substantial evidence does not support the juvenile court's ICWA findings, we may not reverse unless that we find that error was prejudicial. (Cal. Const., art. VI, § 13; Benjamin M., supra, 70 Cal.App.5th at p. 742.)
The California Supreme Court granted review of Dezi C. on September 8, 2022, S275578. In its opinion granting review, the Supreme Court has stated that pending review, Dezi C. "may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict." (In re Dezi C. (Sept. 21, 2022, S275578).)
At this time, California appellate courts have taken varying positions on the rules for assessing whether a defective initial inquiry is harmless. The varying approaches have led to "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 (A.C.); see Dezi C., supra, 79 Cal.App.5th at pp. 777-778, review granted.) 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." (In re Dezi C., at p. 779.)
B. Substantial evidence review
Mother contends the Department's and the juvenile court's failure to ask her, father, and other extended family members, including maternal cousin Rasheda C., maternal aunt Carolyn S., and the paternal grandmother, whether Gianna had possible Indian heritage requires reversal of the juvenile court's order.
The record shows that the Department did ask mother about Gianna's ICWA status. A declaration by the Department's social worker filed on May 14, 2021 states that the social worker asked mother about Gianna's Indian status and that the inquiry gave him no reason to believe that Gianna is or may be a member of or eligible for membership in a tribe. Both parents filed ICWA-020 forms indicating that none of Gianna, mother, father, or any of Gianna's grandparents or other lineal ancestors may be a member of, or eligible for membership in any federally recognized Indian tribe. Although the juvenile court did not expressly ask mother or father about their ICWA status, the court acknowledged on the record its receipt of both parents' ICWA-020 forms denying knowledge of any Indian ancestry. The juvenile court found, based on the parents' submissions, that ICWA did not apply. Neither parent objected to that finding.
California law imposes on the juvenile court a statutory duty to ask each party at their first appearance in court about a child's Indian ancestry. (§224.2, subd. (c).) California law imposes a similar duty on child welfare agencies to ask extended family members about a child's possible Indian heritage. (§ 224.2, subd. (b).) The failure to make such statutorily mandated inquiries is error under state law. The record does not show that the juvenile court asked mother and father whether they knew or had reason to know that Gianna was an Indian child. There is also no evidence contradicting mother's claim that the Department failed to inquire of the extended family members whose respective contact information was available to the Department whether Gianna may be an Indian child. Because section 224.2, subdivision (b) requires the Department to inquire of extended family members as part of the initial inquiry under ICWA, substantial evidence is lacking to support the juvenile court's ICWA finding. However, under California law, we may not reverse unless that we find that error was prejudicial. (Cal. Const., art. VI, § 13; Benjamin M., supra, 70 Cal.App.5th at p. 742.)
C. Harmless error analysis
Despite the technical violation of the initial inquiry requirements under section 224.2, we apply the "'reason to believe' rule" that we adopted in In re Dezi C., supra, 79 Cal.App.5th at pages 779-780 and conclude that the error was harmless. Nothing in the record suggests a reason to believe that Gianna is an Indian child within the meaning of ICWA. Both parents denied Indian heritage. No circumstances suggest that the parents would not know their own heritage. Mother was raised by her biological mother and grandmother. Mother makes no proffer on appeal that she has any Indian heritage, or that she has any information regarding possible Indian heritage on father's side. In sum, there is no evidence that any extended relative had any information as to whether Gianna is or may be an Indian child. Remand is not warranted under these circumstances.
DISPOSITION
The juvenile court's order is affirmed.
We concur: LUI, P. J., HOFFSTADT, J.