Opinion
B329315
03-21-2024
In re E.R., a Person Coming Under the Juvenile Court Law. v. G.R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Laura D. Pedicini, by appointment of the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. 22CCJP02682, Craig S. Barnes, Judge. Affirmed in part and dismissed.
Laura D. Pedicini, by appointment of the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
G.R. (mother) appeals from the juvenile court's order terminating parental rights (Welf. &Inst. Code, § 366.26) to her child E.R. (born Oct. 2019). Mother contends the juvenile court erred when it failed to apply the beneficial parental relationship exception to termination of parental rights. Additionally, mother contends that the Los Angeles County Department of Children and Family Services (DCFS) and the juvenile court 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.
Mother also argues the juvenile court abused its discretion in denying her request for a parent-child bonding study at an earlier hearing. We dismiss mother's untimely appeal of that order.
The parties are familiar with the facts and procedural history of the case, so we do not restate those details in full here. Below, we discuss only the facts and procedural history germane to the issues on appeal.
DISCUSSION
A. Beneficial Parental Relationship Exception
Mother contends the court erred in relying on impermissible factors when it declined to apply the beneficial parental relationship exception and instead terminated her parental rights. We need not address whether the court erred, however, because mother cannot show the alleged error was prejudicial.
1. Governing Principles
Once the juvenile court terminates reunification services and determines a dependent child is adoptable, it must select adoption as the permanent plan and terminate parental rights unless doing so would be detrimental to the child under one of several statutory exceptions. (§ 366.26, subd. (c)(1); In re Caden C. (2021) 11 Cal.5th 614, 630-631 (Caden C.).)
The beneficial parental relationship exception applies if the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Our Supreme Court clarified the three elements a parent must prove, by a preponderance of the evidence, to establish the exception: (1) the parent's "regular visitation and contact with the child"; (2) the child's "substantial, positive, emotional attachment to the parent," "the continuation of which would benefit the child"; and (3) the termination of "that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Caden C., supra, 11 Cal.5th at pp. 631, 636 [italics in original].) "When the parent has met that burden, the [beneficial parental relationship] exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption. (See § 366.26, subd. (c)(4)(A).)" (Id. at pp. 636-637.)
California's Constitution provides that "[n]o judgment shall be set aside" unless the error has resulted in a "miscarriage of justice." (Cal. Const., art. VI, § 13.) The California Supreme Court has "interpreted that language as permitting reversal [in dependency matters] only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error. [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 60.) A juvenile court's error "is amenable to harmless error analysis" where determining prejudice does not "require 'a speculative inquiry into what might have occurred in an alternate universe.' [Citation.]" (In re James F. (2008) 42 Cal.4th 901, 915.)
2. Analysis
The harmless error analysis in this case requires no speculation. As noted, it was mother's burden to prove, by a preponderance of the evidence, that the beneficial parental relationship exception applied. (Caden C., supra, 11 Cal.5th at pp. 631, 636-637.) Mother concedes she could not meet her evidentiary burden to establish the exception absent the bonding study. As discussed below, mother's appeal from the court's denial of her bonding study request was untimely. In any event, we conclude the court did not abuse its discretion in denying mother's belated request. "Bonding studies after the termination of reunification services would frequently require delays in permanency planning.... The Legislature did not contemplate such lastminute efforts to put off permanent placement. [Citation.] While it is not beyond the juvenile court's discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process." (In re Richard C. (1998) 68 Cal.App.4th 1191, 1197 (Richard C.); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339-1340 ["There is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order....Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services"].)
Here, mother requested a bonding study nearly one year after the court terminated her reunification services and after the court scheduled the section 366.26 hearing. The court thus did not abuse its discretion in denying mother's late request. (Richard C., supra, 68 Cal.App.4th at p. 1197 [concluding juvenile court did not abuse its discretion when it denied a bonding study request made after the juvenile court terminated reunification services and after the court scheduled the § 366.26 hearing].)
Mother also failed to put forth any evidence at the hearing in support of her argument that the exception applied. Therefore, any error by the court was harmless. (See In re J.R. (2022) 82 Cal.App.5th 526, 529 ["[W]hen a juvenile court applies the wrong legal standard in rejecting the beneficial relationship exception, reversal is not warranted if the parent did not introduce evidence that would permit a finding in their favor under the correct legal standard. When a parent has not done so, any reliance by the juvenile court on improper factors is harmless"])
B. The Bonding Study
Mother also contends the juvenile court abused its discretion when it denied her request for a parent-child bonding study. DCFS argues mother's appeal from the order should be dismissed as untimely. We agree.
An appeal must be filed "within 60 days after the rendition of the judgment or the making of the order being appealed." (Cal. Rules of Court, rule 8.406(a)(1).) "[A]ppellate jurisdiction is dependent upon the filing of a timely notice of appeal. [Citations.]" (In re Megan B. (1991) 235 Cal.App.3d 942, 950 (Megan B.).)
Here, mother did not file her notice of appeal within 60 days of the juvenile court's order denying her bonding study request. The court denied mother's request on March 8, 2023, and mother filed her notice of appeal 64 days later, on May 11. Further, mother's timely appeal from the court's subsequent order terminating her parental rights cannot save her appeal from the court's denial of her bonding study request. (Megan B., supra, 235 Cal.App.3d at p. 950 ["'An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed'"].) We, therefore, conclude mother's appeal from the court's March 8, 2023 order is untimely.
For the first time on reply, mother contends she should not be precluded from challenging the March 8 order because her attorney's late filing constituted ineffective assistance of counsel. Mother forfeited this argument by failing to raise it in her opening brief. (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1050 [where appellant fails to raise an argument "until [her] appellate reply brief," she "has forfeited the argument"].)
Accordingly, we dismiss mother's appeal of the court's order denying her bonding study request.
C. ICWA Inquiry
Mother next contends that the juvenile court and DCFS failed to sufficiently inquire into mother's potential Indian ancestry as required under section 224.2. We agree.
1. Applicable Law and Standard of Review
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.) 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.)
"[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.)
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).)
Here, the juvenile court "f[oun]d it ha[d] no reason to believe ICWA applie[d] to this child." We review the court's ICWA finding 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.)
2. Initial Inquiry
Section 224.2, subdivision (b) imposes on DCFS a duty of initial inquiry, which includes asking "extended family members" and "others who have an interest" in the child 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 argues DCFS did not fulfill its initial duty to inquire because DCFS did not ask E.R.'s maternal grandfather, two maternal uncles, and a maternal great-aunt whether E.R. had Indian ancestry. Here, mother told DCFS that she and maternal grandfather spoke on the phone often. However, there is no evidence showing DCFS asked mother, or any of the maternal relatives, for maternal grandfather's contact information. DCFS also communicated with the two maternal uncles and the maternal greataunt about the case, but there is no evidence DCFS asked them whether E.R. may be an Indian child. We, therefore, conclude that DCFS did not conduct a proper initial inquiry.
Section 224.2, subdivision (c) also requires the juvenile court to inquire at each parent's first appearance whether he or she "knows or has reason to know that the child is an Indian child." Here, the court did not ask mother about Indian ancestry at her first appearance. We conclude the court did not comply with its statutory duty.
We must next determine whether the errors were harmless.
3. Harmless Error
"Where, as here, there is no doubt that [DCFS's and the court'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 . . . 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. [Citation.] If so, the error is harmless and we should affirm; otherwise, we must send it back for the Department to conduct a more comprehensive inquiry." (In re Dezi C. (2022) 79 Cal.App.5th 769, 777 (Dezi C.), review granted Sept. 21, 2022, S275578.)
California appellate courts have crafted several different tests to decide whether a defective initial inquiry is harmless. (Dezi C., supra, 79 Cal.App.5th at pp. 777-782.) Until our Supreme Court weighs in on the matter, we will apply the rule set forth in Dezi C. Under that standard, "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." (Id. at p. 779.) Following Dezi C., we conclude any error in failing to interview maternal extended family members about Indian ancestry was harmless.
Here, the record is devoid of any indication E.R. may have Indian ancestry through mother. Rather, mother repeatedly denied Indian ancestry. After interviewing mother, DCFS filed the Indian child inquiry form (ICWA-010 form), demonstrating mother had been interviewed about E.R.'s Indian status and gave DCFS no reason to believe E.R. is or may be an Indian child. Mother also signed an ICWA-020 form, indicating she had no known Indian ancestry. The juvenile court also acknowledged receipt of the ICWA-020 form and found ICWA did not apply. The court ordered the parents to keep DCFS, their counsel, and the court aware of any new information relating to possible ICWA status. There is no evidence that the parents provided new information regarding ICWA status, and mother does not proffer any on appeal.
There is also no indication that mother would lack knowledge of her family history, as there is no evidence in the record showing she was adopted. (Cf. Dezi C., supra, 79 Cal.App.5th at p. 779 [failure to inquire of extended family members may not be harmless if the record indicates that one or both of the parents were adopted and hence their self-reporting of no ancestry may not be fully informed]; see also In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1015 [in many cases, a child's parents will be a reliable source for determining whether the child or parent may be a tribal member].)
The maternal grandmother also reported that the family did not have any Indian ancestry.
There is nothing in the record to suggest that contacting additional maternal relatives might contradict the statements from mother and maternal grandmother that the family did not have Indian ancestry.
Lastly, we note mother does not proffer on appeal evidence that a particular maternal family member might know more about mother's ancestry. Thus, we conclude DCFS and the court's failure to comply with their respective section 224.2 duties of initial inquiry is harmless error.
DISPOSITION
The juvenile court's order terminating mother's parental rights is affirmed. Mother's appeal of the juvenile court's order denying her request for a bonding study is dismissed as untimely.
We concur: CURREY, P. J. MORI, J.