Opinion
E080508
06-29-2023
In re E.Z., a Person Coming Under the Juvenile Court Law. v. J.R. et al., Defendants and Appellants. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant S.Z. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.R. Tom Bunton, County Counsel, David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. J283634, Steven A. Mapes, Judge.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant S.Z.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.R.
Tom Bunton, County Counsel, David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
S.Z. (Mother) and J.R. (Father) appeal from the juvenile court's order terminating parental rights as to their four-year-old daughter E.Z. The parents, sole contention on appeal is that the juvenile court and the San Bernardino County Children and Family Services (CFS) failed to discharge their duty of initial inquiry under state law implementing the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.), and therefore substantial evidence did not support the court's finding that ICWA did not apply. Although we agree that there was error, we conclude there was no prejudice, meaning the record does not show additional inquiry would bear meaningfully on E.Z.'s status as an Indian child. Accordingly, we affirm the order terminating parental rights.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
II.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of CFS on November 27, 2019, after a referral was received alleging that Mother was being arrested for shoplifting with then one-year-old E.Z. and E.Z.'s half-siblings. Due to Mother's arrest, the children were detained without a warrant. Mother denied the allegations, and Father's whereabouts were unknown. Upon the social worker's inquiry, Mother denied having any Native American ancestry. The social worker attempted to contact Father at a phone number provided by Mother, but was unsuccessful. The social worker also sent Father a text message advising him of the detention hearing.
E.Z.'s half-siblings are not subjects to this appeal.
On December 31, 2019, CFS filed a petition on behalf of E.Z. pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support) based on Mother and Father's unresolved substance abuse issues, the parents engaging in domestic violence, and the parents failing to adequately provide for the children. In the ICWA-010(A) inquiry form attached to the petition, the social worker checked the box that stated, "The child has no known Indian ancestry."
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
On January 2, 2020, Mother filed an ICWA-020 Parental Notification of Indian Status form (ICWA-020 form) indicating that she had no Indian ancestry. In the Family Find and ICWA Inquiry form (Inquiry form), Mother provided the names and contact information for the maternal grandmother and three maternal aunts (J.Z., B.Z. and G.Z.) to be assessed as possible placements for the child, and again indicated that she had no Indian ancestry. On January 2, 2020, the maternal grandmother also filed an Inquiry form indicating that she would like to be considered for placement of the children and noted that she had no Indian ancestry.
The detention hearing was held on January 2, 2020. Mother was present, however Father was not. The court inquired of Mother regarding Father's whereabouts and paternity. Mother indicated that she did not know Father's whereabouts, Father was not on E.Z.'s birth certificate, they had never been married, had only seen the child twice, and did not pay child support. The court also inquired of Mother regarding her Indian ancestry. Mother denied having any such ancestry. The maternal grandmother and a maternal uncle, Mr. P., who were present in court, also denied Indian ancestry when questioned by the court. The court thereafter formally detained E.Z. from parental custody, provided the parents with pre-dispositional services, and set the matter for a jurisdiction/disposition hearing.
In its jurisdiction/disposition report, CFS recommended that E.Z. be removed from parental custody with reunification services offered to Mother. CFS recommended that Father be found alleged as he had never resided with the child, did not provide support for the child, and was not involved in the child's life. Mother identified as her safety network the maternal grandmother and maternal uncle J.M. and requested that the maternal grandmother be assessed for placement of E.Z.
On January 23, 2020, maternal uncle J.M. completed an Inquiry form and indicated that he did not know whether he had Indian ancestry, nor did he know whether E.Z. had any relatives with such ancestry. Maternal uncle J.M. listed maternal aunts, J.Z. and A.Z., as well as his wife B.M. as other adults in his home, and provided contact information for the maternal aunts.
The jurisdiction/disposition hearing was held on January 23, 2020. Mother was present in court, but Father was not. At the hearing, Mother requested mediation on the issues, and the court ordered the parents and CFS to participate in mediation. At mediation, Mother agreed to the allegations, as well as her case plan and reunification services. Father was not present.
At the further jurisdiction/disposition hearing held on February 18, 2020, the juvenile court found true the allegations in the petition as to Mother and Father, declared E.Z. a dependent of the court, and removed her from parental custody. The court found Father to be E.Z.'s alleged father and not entitled to services. The court further found that E.Z. did not come under the provisions of ICWA. Mother was provided with reunification services for approximately 18 months.
By the 18-month review hearing, CFS recommended Mother's services be terminated and that a section 366.26 hearing be set. Mother had missed four of her six scheduled drug tests and had slapped E.Z. very hard while changing her diaper. CFS noted in its reports that ICWA did not apply. E.Z. had been placed in the home of Mr. M. and Mrs. C. since December 27, 2019 and there were no relatives to consider for placement of the child. Mother was residing with her mother, sister and brother in Los Angeles, but they were not in the position to care for the children, and the maternal grandmother had never been approved for placement of the children.
The 18-month review hearing was held on August 3, 2021. At that time, the juvenile court terminated Mother's reunification services, but continued to provide the children services under the permanency planning program. In addition, because a potential adoptive home or legal guardian had not been identified, the court found compelling reasons for determining a section 366.26 hearing was not in the child's best interest. At CFS's recommendation, the court thus ordered a permanent plan of placement in foster care with a permanent plan of return home for the child and provided Mother with services under the child's permanent plan.
By January 28, 2021, CFS recommended that a section 366.26 hearing be set in E.Z.'s case to establish a permanent plan of adoption. CFS was concerned that Mother had not benefitted from services based on her actions. CFS was also concerned about the safety of the children and their caretakers. Mother had missed random drug testing and repeatedly questioned the older children about where they lived and whether the home had an alarm system.
The contested permanency planning hearing was held on March 22, 2022. At that time, Mother was present and Father appeared for the first time with the paternal grandfather. The juvenile court inquired of Father whether he had any Native American ancestry, and Father denied such ancestry. The court also inquired of the paternal grandfather whether he had any Native American ancestry, and the paternal grandfather indicated no such ancestry. Father completed an ICWA-020 form and denied any Native American ancestry. He also completed an Inquiry form, noting the paternal grandfather as his first choice for placement of E.Z., and listed the paternal uncle G.R. and his contact information as an additional relative. As Father had made his first appearance, the court continued the matter for a further hearing and ordered paternity testing for Father and E.Z. Father was later confirmed to be E.Z.'s biological father.
The further contested hearing was held on July 11, 2022. Mother and Father were present in court. The court set the matter for a section 366.26 hearing and ordered supervised visits one time per month for two hours.
On November 8, 2022, CFS reported that a maternal great aunt, H.R., had come forward seeking placement of E.Z. When asked why she did not seek placement sooner, H.R. claimed that she did not know about the situation until maternal aunt B.Z. notified her about a month ago about the adoption. Maternal aunt B.Z. was also interviewed regarding her request for placement. Because E.Z. had no relationship or bond with either aunt, CFS opined that it was not in the child's best interest to change her placement and noted that E.Z. was adoptable. CFS also reported that both maternal great aunt H.R. and maternal aunt B.Z. denied Native American ancestry. Specifically, when asked about Native American heritage, maternal aunt B.Z. stated, "'No, we don't[.] I don't think so,'" noting that "'we are from Guatemala.'" She further reported that the maternal grandmother is from Guatemala and the maternal grandfather is from Mexico.
At the November 8, 2022 section 366.26 hearing, numerous paternal and maternal relatives were present, and the juvenile court inquired of the relatives regarding Native American ancestry. Paternal uncle G.R., Father's sister-in-law Y.C., and the paternal grandmother all denied Indian ancestry. A maternal cousin, M.R., the maternal grandmother, and a maternal relative E.R. all denied Native American ancestry as well. Mother and Father set the matter for contest on the recommendation to terminate parental rights, and the court continued the matter.
The contested section 366.26 hearing was held on January 17, 2023. Following testimony by Mother and Father and argument by counsel, the juvenile court found that E.Z. was both generally and specifically adoptable and terminated parental rights. The parents timely appealed.
III.
DISCUSSION
Mother and Father contend CFS failed to comply with its duty of inquiry with respect to ICWA because the record does not reflect that inquiry was undertaken of maternal relatives, J.Z., G.Z., A.Z. (the maternal aunts), or maternal grandfather M.M. They thus argue there is insufficient evidence to support the juvenile court's finding that ICWA did not apply. CFS concedes that the record does not reflect that inquiry was undertaken of maternal relatives, J.Z., G.Z., A.Z., and M.M., but argues "the considerations for why the expanded initial inquiry are necessary were not present here" under section 224.2, subdivision (b) because E.Z. was not placed into custody pursuant to section 306. In the alternative, CFS contends any error was harmless.
Father incorrectly argues that no inquiry of paternal uncle G.R. was made. The juvenile court specifically inquired of the paternal uncle at the November 8, 2022 section 366.26 hearing. Mother also incorrectly claims that maternal aunt B.Z., maternal uncle J.M., and paternal uncle G.R. were never questioned regarding their Native American ancestry. The record clearly indicates that CFS and/or the juvenile court inquired of these relatives.
"Section 306 authorizes county welfare departments to take children into temporary custody 'without a warrant' in certain circumstances. (§ 306, subd. (a)(2).) A department that takes a child into protective custody pursuant to a warrant does so under section 340, not section 306." (In re Robert F., (2023) 90 Cal.App.5th 492, 497.) Under subdivision (b) of section 224.2, "[i]f a child is placed into the temporary custody of a county welfare department pursuant to [s]ection 306," the department's obligation includes asking the "extended family members" about the child's Indian status. Here, as CFS acknowledges, E.Z. was taken into temporary custody following Mother's arrest. We disagree with CFS that "the considerations for why the expanded initial inquiry are necessary were not present here." Even if those considerations, i.e., time-sensitive requirements, were not present in this case, CFS did conduct the inquiry required under section 224.2, subdivision (b).
ICWA establishes minimum federal standards that a state court must follow before removing Indian children from their families. (In re T.G. (2020) 58 Cal.App.5th 275, 287.) California law implementing ICWA also imposes requirements to protect the rights of Indian children, their families, and their tribes. (See §§ 224-224.6; In re Abbigail A. (2016) 1 Cal.5th 83, 91 ["persistent noncompliance with ICWA led the Legislature in 2006 to 'incorporate[] ICWA's requirements into California statutory law'"].)
"'"'Federal regulations implementing ICWA . . . require that state courts "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." [Citation.] The court must also "instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child."'"' [Citations.] 'State law, however, more broadly imposes on social services agencies and juvenile courts (but not parents) an "affirmative and continuing duty to inquire" whether a child in the dependency proceeding "is or may be an Indian child."'" (In re J.C. (2022) 77 Cal.App.5th 70, 77.)
Under California law, the juvenile court and county child welfare department have "an affirmative and continuing duty to inquire" whether a child subject to a section 300 petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th 558, 566.) "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." (In re D.F., supra, at p. 566.) This case does not concern the duty of further inquiry, which arises only if the court or the department has "reason to believe that an Indian child is involved" (§ 224.2, subd. (e)), or the duty to provide formal ICWA notice, which occurs only if the court or the department has reason to know that an Indian child is involved (25 C.F.R. § 23.107(c)(1)-(6); § 224.2, subd. (d)(1)-(6)).
"At the outset of a dependency case, the child welfare agency and the juvenile court have a statutory initial duty to inquire into whether a child is, or may be, an Indian child. 'The child welfare department's initial duty of inquiry includes "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." [Citation.]' [Citation.]" (In re Darian R. (2022) 75 Cal.App.5th 502, 507 (Darian R.), fn. &italics omitted.) 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).) Part of the initial inquiry also includes requiring each party to complete California Judicial Council form ICWA-020, Parental Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
"'"If the court makes a finding that proper and adequate further inquiry and due diligence as required in [section 224.2] 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."'" (In re J.C., supra, 77 Cal.App.5th at p. 78.) A juvenile court finding that ICWA is inapplicable generally implies that the department and court have fulfilled their duty to inquire. (See In re Austin J. (2020) 47 Cal.App.5th 870, 885 [a finding that "ICWA does not apply" implies social workers and court "did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry"].) We review ICWA findings for substantial evidence, but "where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied." (In re D.S. (2020) 46 Cal.App.5th 1041, 1051.)
In this case, we agree with the parties that CFS failed to inquire of all ascertainable and known relatives, specifically the maternal aunts and maternal grandfather M.M. However, we find any error to be harmless.
An error is one of state law, and requires reversal only upon a showing of prejudice. (In re S.S. (2022) 75 Cal.App.5th 575, 582.) In assessing prejudice, this court has examined whether "'the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.'" (Ibid., quoting In re Benjamin M., supra, 70 Cal.App.5th at p. 744; see also Darian R., supra, 75 Cal.App.5th at p. 509 [applying test for prejudice from Benjamin M.]; In re A.C. (2022) 75 Cal.App.5th 1009, 1017 (A.C.) [assessing whether there was "readily obtainable information that was likely to bear meaningfully on whether A.C. was an Indian child"].)
Noting the purpose of ICWA and its legislation, Mother argues she does not have to show prejudice. Courts of Appeal have reached different conclusions on that issue. (In re Y.M. (2002) 82 Cal.App.5th 901, 911-918; In re S.H. (2022) 82 Cal.App.5th 166, 175.) "A prerequisite to reversal of a trial court's decision in California is showing a miscarriage of justice." (In re J.W. (2022) 81 Cal.App.5th 384, 389-390 [finding no miscarriage of justice where the department failed to fulfill its duties of inquiry of extended family members about Indian ancestry].) Multiple appellate decisions have considered how to assess whether error in carrying out ICWA inquiry is prejudicial, and the issue is currently pending before our Supreme Court. (In re Dezi C. (2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022, S275578.)
In Darian R., supra, 75 Cal.App.5th 502, the Court of Appeal rejected the mother's claim that failure to interview her sister and father, with whom she had lived during part of the dependency proceedings, was prejudicial where both parents denied Indian ancestry, mother was under a court order to provide information relevant to ICWA, there was no evidence mother was estranged from her family, and a prior court order in an earlier dependency case involving the same biological parents found ICWA inapplicable. (Id. at p. 510.) Under these circumstances, the court concluded, "The record simply does not support mother's unvarnished contention that additional interviews of mother's father and sister would have meaningfully elucidated the children's Indian ancestry." (Ibid.)
In In re Adrian L. (2002) 86 Cal.App.5th 342 (Adrian L.), the appellate court similarly found additional inquiry would not have yielded information that was likely to bear meaningfully on whether the child was an Indian child. (Id. at p. 345.) In Adrian L., both mother and father denied Indian ancestry, and both completed forms so indicating. (Id. at p. 349.) The appellate court rejected the argument that inquiring of maternal grandmother, paternal grandmother, or paternal aunt would have yielded information likely to bear meaningfully on the court's ICWA determination. (Id. at p. 345.) The court relied on evidence that the mother and the father had contact with their families and the mother unsuccessfully urged the juvenile court to place the child with the maternal grandmother and paternal aunt, who also sought placement. (Id. at p. 352.) Yet, despite an "incentive to bring to the juvenile court's attention facts suggesting that a child is an Indian child," neither the maternal nor the paternal relatives did so. (Ibid.)
In contrast, in A.C., supra, 75 Cal.App.5th 1009, the appellate court held a failure to interview extended family members was prejudicial because, although both parents had signed ICWA forms indicating neither had Indian ancestry, "mother was the product of foster care and thus may not have known her cultural heritage." (Id. at pp. 10151016.) Also, the detention report had indicated the child might be an Indian child. (Id. at p. 1016.) The court "[could not] conclude from this equivocal record that DCFS's failure to conduct any inquiry as to mother and father's extended family members was not prejudicial." (Ibid.)
Like in Adrian L. and Darian R., and unlike in A.C., the record in this case lacks affirmative indications that remand for further inquiry would yield meaningful additional information about E.Z.'s ancestry. CFS had no contact information for the maternal grandfather, but did have contact information for the three maternal aunts. However, maternal aunt J.Z. and A.Z. initially resided with the maternal uncle and the maternal grandmother, and there is no indication that they would have provided any different information than the other numerous relatives who had all denied Native American ancestry. Likewise, there is no indication that maternal aunt G.Z. and the maternal grandfather would have provided information likely to bear meaningfully on the court's ICWA determination. Every relative that had been questioned about their Native American heritage had denied having such ancestry. Indeed, maternal aunt B.Z. clearly explained that the family was from Guatemala and Mexico and that they did not have Native American ancestry.
The parents' statements that the juvenile court and CFS should have inquired of the maternal aunts and the maternal grandfather does not support the conclusion that it was prejudicial not to inquire. Even if CFS had inquired of these four relatives, such inquiry would not have provided meaningful information on the question of whether E.Z. was an Indian child given the overwhelming information otherwise. The fact that CFS had contact information for the maternal aunts does not support the inference the aunts would have shed meaningful light on E.Z.'s status as an Indian child given Mother, Father, the maternal grandmother, the parental grandfather, and numerous relatives' (undisputed) denial of Indian ancestry.
IV.
DISPOSITION
The order terminating parental rights as to E.Z. is affirmed.
We concur: MILLER Acting P.J., MENETREZ J.