Opinion
B318661 B322407
07-20-2023
In re H.W., A Person Coming Under the Juvenile Court Law. v. C.W., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, In re E.W., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.W., Defendant and Appellant.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Aileen Wong, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. Nos. DK24474, 19CCJP01868, Ashley Price, Judge Pro Tempore. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Aileen Wong, Senior Deputy County Counsel, for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
C.W. (mother) appeals from the orders terminating her parental rights with respect to two of her children, H.W. and E.W., under Welfare and Institutions Code section 366.26. Her sole contention of error is the Department of Children and Family Services (Department) failed to comply with the initial inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). Based on this argument, she asserts we should vacate the juvenile court's findings that ICWA does not apply to the children, conditionally affirm the orders terminating her parental rights, and remand the cases for further proceedings.
All further undesignated statutory references are to the Welfare and Institutions Code.
On December 30, 2022, this court granted mother's motion to consolidate cases B318661 and B322407 for purposes of oral argument and decision.
For the reasons discussed below, we conclude any ICWA errors were harmless. Accordingly, we affirm.
We limit our recitation of the facts to those relevant to the issues before us on appeal.
Mother and H.N. (father) are the parents of H.W., born in July 2017, N.W., born in March 2019, and E.W., born in February 2020. This appeal pertains only to H.W. and E.W.
Father is not a party to this appeal.
The family came to the Department's attention on August 12, 2017, when it received a referral alleging the parents had severely neglected H.W. Two days later, the parents were interviewed by a Department social worker and denied having Indian ancestry.
On August 24, 2017, the Department filed a section 300 petition on H.W.'s behalf, alleging she was at risk of harm due to the parents' failure to obtain timely and necessary medical care for her (count b-1) and father's abuse of marijuana (count b-2). The IWCA-010(A) form attached to the petition stated that, on August 14, 2017, the parents informed a Department social worker that neither they nor H.W. had any Indian ancestry.
Also on August 24, 2017, mother and father signed ICWA-020 forms for H.W.'s dependency case stating they had no Indian ancestry as far as they knew. At the detention hearing held the same day, the juvenile court received the parents' ICWA-020 forms and found it did not have a reason to believe or know the case was covered by ICWA.
On September 5, 2017, the Department filed a first amended petition on H.W.'s behalf containing revised factual allegations relating to count b-1. At a hearing held two days later, the juvenile court dismissed the original petition without prejudice.
In October 2017, the parents pled no contest to the first amended petition. The juvenile court accepted their pleas, sustained count b-1 as amended, and dismissed count b-2. It then removed H.W. from her parents, ordered them to participate in reunification services, and granted them monitored visitation.
At the six-month review hearing held in July 2018, the juvenile court determined continued jurisdiction was necessary, and that returning H.W. to her parents would create a substantial risk of detriment. It also found the parents were partially compliant with their case plans, and therefore continued their reunification services. The juvenile court rendered identical findings and orders at the 12-month review hearing held in December 2018.
Mother gave birth to N.W. on March 7, 2019. The Department received a referral relating to N.W. on March 12, 2019, and obtained a warrant for her removal on March 20, 2019. Shortly thereafter, on March 22, 2019, the Department detained N.W. from her parents, placed her with her paternal grandparents, and filed a section 300 petition on her behalf.
On March 25, 2019, the parents signed ICWA-020 forms in N.W.'s dependency case stating they did not have Indian ancestry as far as they knew. That same day, the juvenile court received the parents' ICWA-020 forms and found it had no reason to know ICWA applied to N.W.
In June 2019, the juvenile court sustained the section 300 petition filed on behalf of N.W. The next month, the Department filed a section 342 subsequent petition on behalf of H.W. and N.W., alleging the children were at risk of harm due to the parents' history of engaging in violent altercations. Subsequently, in September 2019, the juvenile court sustained in part and dismissed in part the section 342 petition.
At the section 366.22 review hearing held in October 2019, the juvenile court determined continued jurisdiction was necessary, and that returning H.W. to her parents would create a substantial risk of detriment. The court terminated father's reunification services, continued mother's reunification services, and ordered mother to participate in additional services based on the sustained allegations in the section 342 petition.
In February 2020, mother gave birth to E.W. The Department filed a section 300 petition on E.W.'s behalf in April 2020. On May 1, 2020, the parents filed ICWA-020 forms in E.W.'s dependency case denying Indian ancestry.
In December 2020, the juvenile court sustained the section 300 petition filed on E.W.'s behalf. Mother was ordered to participate in family maintenance services.
At the section 366.22 review hearing held in February 2021, the juvenile court determined mother made substantial progress in alleviating the causes requiring H.W.'s out-of-home placement, and that returning her to mother's custody would not create a substantial risk of detriment. The court therefore placed H.W. with mother and ordered the child to remain under its jurisdiction.
In May 2021, the juvenile court terminated jurisdiction over E.W. Under the court's family law order, mother had full physical custody, and the parents had joint legal custody, of E.W. The next month, N.W. was also returned to mother's care.
On June 15, 2021, less than a week after N.W. was placed with mother, the Department received a referral alleging mother physically abused H.W., and that N.W. and E.W. were at risk of abuse. While investigating the referral, a Department social worker interviewed mother in person on June 23, 2021. During the interview, mother denied having Native American ancestry.
On June 24, 2021, the Department detained all three children from mother and placed them in protective custody. Four days later, the Department filed a section 342 subsequent petition on behalf of H.W. and N.W. It also filed a section 300 petition on behalf of E.W. Both petitions alleged the children were at risk of harm due to mother's physical abuse of H.W. and father's abuse of marijuana. In addition, the section 300 petition filed on E.W.'s behalf alleged she was at risk of harm due to the parents' history of violent altercations.
At the detention hearing held on July 1, 2021, mother confirmed with the juvenile court that she "is not indicating [she had] American Indian blood[.]" Mother also represented she was unaware of "any American Indian blood in [father's] family[.]" Based on this information, the juvenile court found it had no reason to know or believe ICWA applied.
At the August 2021 adjudication hearing, the juvenile court sustained both petitions filed in June 2021. Subsequently, at the disposition hearing held in September 2021, the juvenile court removed the children from their parents and declined to grant the parents reunification services. Consequently, the court set the matters for a permanency planning hearing under section 366.26.
The juvenile court held the section 366.26 hearing for H.W. in February 2022. After receiving evidence and argument, the court terminated mother's and father's parental rights with respect to H.W.
At a hearing held on April 8, 2022, the juvenile court continued the permanency planning proceedings relating to E.W. The court terminated mother's and father's parental rights with respect to N.W.
On July 15, 2022, the juvenile court "ordered the Department to interview any and all known relatives regarding ICWA." (Bolded text omitted.) In a last minute information filed on July 28, 2022, the Department reported that, on July 27, 2022, mother and the children's paternal grandparents stated they "do[ ] not have ICWA [sic]." Although father's whereabouts were unknown at the time, the paternal grandparents also "state[d] [father] does not have ICWA [sic]."
The section 366.26 hearing for E.W. took place on July 29, 2022. After receiving evidence, the juvenile court noted "the Department has made efforts to provide updated [ICWA] inquiry[ ]" and "reconfirm[ed]" the case "is not . . . governed by [ICWA] based on the updated inquiry." Following arguments from counsel, the juvenile court terminated mother's and father's parental rights with respect to E.W.
DISCUSSION
I. Governing Principles
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 the 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, 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 jumpstarts the Department's investigation. (§ 224.2, subd. (a).) The Department'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 Judicial Council form ICWA-020, Parental Notification of Indian Status. (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 the Department or the juvenile court has "reason to believe that an Indian child is involved" in the case. (§ 224.2, subd. (e); Austin J., supra, 47 Cal.App.5th at p. 883; In re D.S. (2020) 46 Cal.App.5th 1041, 1049.) When the Department or the juvenile court has "reason to know" an Indian child is involved, formal ICWA notice is sent to the relevant tribes. (In re D.S., supra, at p. 1052.)
California appellate courts have formulated 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. 275578 (Dezi C.). There, 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.)
II. Analysis
Mother contends the Department failed to fulfill its duty of initial inquiry under section 224.2, subdivision (b). Specifically, she argues: (1) even though the Department had contact with the children's paternal grandparents throughout H.W.'s dependency case, it never inquired whether they had Indian ancestry before mother's parental rights were terminated with respect to H.W.; and (2) while H.W.'s and E.W.'s dependency cases were open, the Department had contact information for one of their paternal aunts and their maternal grandfather, but failed to contact either relative to ask whether they had Indian ancestry. Further, mother contends we need not determine whether the asserted ICWA errors were prejudicial because she "is requesting a conditional affirmance and remand for proper ICWA inquiry[,]" instead of "seeking a reversal on the ICWA inquiry issue." (Italics omitted.)
We begin our analysis by addressing mother's argument that we need not conduct a harmless error analysis. In support of her contention, she primarily relies on In re J.K. (2022) 83 Cal.App.5th 498 (J.K.), In re S.H. (2022) 82 Cal.App.5th 166 (S.H.), and In re Dominick D. (2022) 82 Cal.App.5th 560 (Dominick D.). For the reasons discussed below, we conclude her argument is unpersuasive.
With respect to J.K., mother accurately observes the majority opinion did not require a showing of prejudice before conditionally affirming an order terminating parental rights and issuing a limited remand based on the Department's failure to discharge its duty of initial inquiry. (See J.K., supra, 83 Cal.App.5th at pp. 504, 507-511.) In so doing, however, the J.K. majority adopted the harmless error rule discussed in In re Rylei S. (2022) 81 Cal.App.5th 309 (Rylei S.). (J.K., supra, at p. 507.) That rule, in turn, is essentially a formulation of "the 'automatic reversal rule'" adopted in In re Y.W. (2021) 70 Cal.App.5th 542 and In re Antonio R. (2022) 76 Cal.App.5th 421. (Dezi C., supra, 79 Cal.App.5th at p. 777 [listing In re Y.W and In re Antonio R. among cases applying "the 'automatic reversal rule'"]; see also Rylei S., supra, at p. 313 [noting application of "the governing harmless error standard" previously articulated in In re Antonio R. and In re Y.W.].) Under the Rylei S. rule, "the failure to fully comply with [ICWA inquiry duties] may be harmless error[ ]" only where "the record affirmatively reflects that the protections intended to be afforded through the exercise of that duty have been provided." (Rylei S., supra, at p. 325.) As noted above, however, this division has not adopted the same approach, and we are not convinced by mother's contention that we should not follow Dezi C. Accordingly, mother's discussion of J.K. does not persuade us to remand without first considering whether the Department's failure to ask certain extended family members about their Indian ancestry was prejudicial under the rule set forth in Dezi C., supra, at p. 779.
Consistent with our approach, the dissenting opinion in J.K. also supports the application of the rule articulated in Dezi C., noting "[t]he scholarly opinion is consistent with the oath of office, follows the Constitutional mandate of when and when not to reverse a judgment, and is a pragmatic solution for the ICWA issue at the Court of Appeal level." (J.K., supra, 83 Cal.App.5th at p. 514 (dis. opn. of Yegan, J.).)
The other two cases cited by mother do not apply here. In S.H., the appellate court considered whether to conditionally affirm or reverse a jurisdiction/disposition order and remand the matter for ICWA compliance based on the social services agency's failure to conduct an adequate investigation into the child's possible Native American ancestry. (See S.H., supra, 82 Cal.App.5th at pp. 173, 175.) Given the procedural posture of the case, and the social services agency's concession it failed to discharge its duty of inquiry, the appellate court "conclude[d] there is no need under the circumstances to disturb the juvenile court's order." (Id. at p. 173.) In so doing, the appellate court observed that the dependency proceedings were still in the early stages, and that "the duty to inquire is a continuing one[ ]" (id. at p. 176, original italics), which the agency and the juvenile court had demonstrated awareness of and still had ample opportunity to discharge. (Id. at pp. 176-177; see also id. at p. 179.)
Ultimately, the S.H. court summarized its holding as follows: "[W]e hold that disturbing an early order in a dependency proceeding is not required where, as here, the [juvenile] court, counsel, and the [social services] [a]gency are aware of incomplete ICWA inquiry. The [a]gency must comply with its broad duty to compete [sic] all appropriate inquiries and apprise the court, and the court has a continuing duty to ensure that the [a]gency provides the missing information. So long as proceedings are ongoing, and all parties recognize the continuing duty of ICWA inquiry, both the [a]gency and the juvenile court have an adequate opportunity to fulfill those statutory duties." (S.H., supra, 82 Cal.App.5th at p. 179, original italics.) The S.H. court did not-as mother appears to suggest-conclude that, on appeal from an order terminating parental rights, a reviewing court need not consider whether a parent was prejudiced by a deficient ICWA inquiry in order to conditionally affirm the order and remand the matter for further proceedings. (See ibid.) Indeed, the S.H. court itself acknowledged its holding would not apply in an appeal from an order terminating parental rights. (See id. at p. 178 [noting "[a] more difficult question would be presented" if the case before the court was "an appeal from an order terminating parental rights"].)
Dominick D. likewise does not apply here. There, on appeal from the juvenile court's dispositional findings and orders, the appellate court expressly "decline[d] to address" whether the social services agency's failure to discharge its duty of initial inquiry was harmless. (Dominick D., supra, 82 Cal.App.5th at p. 563.) Instead, the court held "ICWA inquiry and notice errors do not warrant reversal of the juvenile court's jurisdictional or dispositional findings and orders other than the finding that ICWA does not apply." (Ibid., italics added.) Thus, contrary to mother's argument, Dominick D. does not demonstrate appellate courts need not consider prejudice when addressing a parent's challenge to an order terminating parental rights based on ICWA inquiry error. (See ibid.; see also id. at pp. 567-568.)
Having rejected mother's contention that she need not demonstrate prejudice arising from her asserted ICWA errors, we next consider whether we should disturb the orders terminating mother's parental rights by vacating the juvenile court's ICWA findings and remanding the cases for further proceedings under the rule adopted in Dezi C. As noted above, that rule requires us to evaluate whether "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, 79 Cal.App.5th at p. 779.)
Here, father denied Indian ancestry during his August 2017 interview with the Department. Likewise, mother denied Indian ancestry during multiple interviews with the Department. In addition, at the July 2021 detention hearing, mother confirmed with the juvenile court that, to her knowledge, neither she nor father had Indian ancestry. Further, through their respective ICWA-020 forms filed in the three children's dependency cases, both parents have denied having Indian heritage under penalty of perjury multiple times. Consistent with the parents' statements, the children's paternal grandparents denied having Indian ancestry, and stated father did not have Indian ancestry, during their July 2022 interview with the Department.
Nothing in the record suggests any reason to believe either parent's knowledge of their heritage is incorrect, or that any of the children might have Indian ancestry. Mother has not proffered additional evidence. (See Dezi C., supra, 79 Cal.App.5th at p. 779, fn. omitted [for purposes of evaluating whether defective initial inquiry is harmless, "the 'record' includes both the record of proceedings in the juvenile court and any proffer the appealing parent makes on appeal"].) Under these circumstances, we conclude any ICWA errors were harmless.
DISPOSITION
The orders terminating parental rights are affirmed.
We concur: COLLINS, J. MORI, J.