Opinion
B325581
11-01-2023
In re AMBER D., a Person Coming Under the Juvenile Court Law. v. GUILLERMO D., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly G. Emling, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 19CCJP02984B Ashley Price, Juvenile Court Referee. Affirmed.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly G. Emling, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
Guillermo D. (father) appeals from an order terminating his parental rights to Amber D. (born January 2020) following a hearing held pursuant to Welfare and Institutions Code section 366.26. Father's sole argument on appeal is that the Los Angeles County Department of Children and Family Services (DCFS) and the juvenile court failed in fulfilling the duty of inquiry under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and California's equivalent law (Welf. &Inst. Code, § 224 et seq.). We find no error and affirm the order terminating parental rights.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The family
The family consists of father, Rosa G. (mother), and Amber. When these proceedings commenced, an open juvenile dependency case was pending regarding Amber's maternal half sibling, Adrian G. (born February 2012). Adrian had been removed from mother and was residing with caregivers.
Mother is not a party to this appeal.
In July 2019, in Adrian's case, the juvenile court sustained allegations that mother and father had a history of violent altercations, that mother had a history of and was a current abuser of alcohol, that mother failed to protect the child from father's alcohol abuse, and that father drove a motor vehicle while under the influence of alcohol with mother and Adrian as passengers.
Prior to Adrian's removal, mother had a history with DCFS. In 2014, mother overdosed on an unknown substance while Adrian was in her care. Mother was discovered and received help. The allegation was substantiated for general neglect.
Referral and initial investigation
On January 24, 2020, DCFS received an immediate response referral regarding Amber alleging that her maternal half sibling had been removed from mother's care, and mother was not in compliance with orders regarding drug testing, parenting classes, domestic violence intervention training, or her regional center assessment. The reporting party stated mother did not appear to have the mental capacity to care for an infant, and it was not known whether there was a competent adult in the home.
The social worker assigned to Amber made contact with the social worker on Adrian's case. Mother's noncompliance with court-ordered services and her seeming to be "out of it" and not appearing to understand the purpose of the court-ordered services was discussed.
The assigned social worker visited the family's home, a backyard garage with no kitchen, bathroom, or running water. The family reported they used the facilities in the main house, where paternal relatives resided. Neither parent appeared to be under the influence of drugs or alcohol, but mother was delayed in processing information and understanding parts of the conversation. Mother reported having a seizure disorder and nightly seizures lasting about three minutes. Mother reported having been in a coma for three months before Adrian was born.
The social worker asked father if he had concerns regarding mother caring for the infant considering her health condition. He reported no concerns. Father worked part-time, usually three or four days per week, and was always home at night when mother's seizures usually occurred. Father also reported having family help, as his brother, sister and niece lived in the main house. Mother reported no family support.
When asked about her court-ordered case plan regarding Adrian, mother responded, "I think they want me to go weekly to something." Eventually mother was able to find a letter from a recent court hearing directing her to get a regional center evaluation, individual counseling, and show proof of hospitalization. The social worker recommended mother review the requirements and ensure compliance with the case plan.
Father did not understand why there were allegations involving the baby, observing that Adrian's case had nothing to do with him, and he had no concerns with Amber being in their care. The social worker explained that DCFS was concerned due to mother's noncompliance with her case plan regarding Adrian. Father was not willing to leave mother, even if she did not reunify with her son.
On February 27, 2020, the social worker observed Amber to be "very skinny" during a court appearance in Adrian's dependency matter. Mother did not have a diaper bag, and when the social worker inquired, mother said she was breast feeding Amber and only giving her formula at night, but could not articulate the type of formula. Neither parent was able to tell the social worker the date of Amber's next medical appointment. Mother appeared "spaced out" during the contact. Father reported leaving mother at home with the baby when he went to work. Father refused to leave mother or ask her to leave the home.
DCFS requested an expedited removal of Amber from her parents' custody, noting the baby did not appear to be gaining weight. On March 3, 2020, the juvenile court granted the removal order. Amber was taken into protective custody and placed in a foster home.
Section 300 petition and reunification period
On March 5, 2020, DCFS filed a petition on behalf of Amber pursuant to section 300, alleging mother and father had a history of violent altercations, which took place in the presence of Amber's half sibling, Adrian. The petition also alleged that both mother and father were abusers of alcohol, that mother failed to protect Adrian from father's alcohol abuse, and that mother had not completed her court-ordered case plan in Adrian's case.
During a telephone interview with mother on April 28, 2020, a social worker found mother's thought process scattered with long lapses of silence before mother responded. Mother provided some inconsistent and incongruent answers to the social worker's questions and terminated the call after saying the social worker was confusing mother and the social worker had the wrong number.
On July 13, 2020, the juvenile court adjudicated the petition via exhibits and argument, sustaining four abuse of sibling counts.
On June 19, 2020, a social worker reviewed mother's case plan requirements with her. Mother nodded that she understood but was unable to repeat the requirements back to the social worker.
On September 6, 2020, mother was found unconscious on the street. Mother was hospitalized, suffered a stroke, and a miscarriage on September 13, 2020. As of October 6, 2020, mother remained hospitalized and required support to eat, walk, and speak. On November 10, 2020, father told the social worker he had taken mother to the emergency room on November 9, 2020, due to anxiety. Father was not allowed to enter the hospital due to COVID-19. On November 11, 2020, a hospital social worker informed DCFS that mother had been hospitalized pursuant to an involuntary psychiatric hold. On November 24, 2020, the social worker visited father and mother at home. Mother could not explain why she had been involuntarily hospitalized.
Mother was again hospitalized on November 28, 2020. Father told the social worker that mother was hallucinating and laughing and did not eat or sleep for three days.
On December 15, 2020, due to mother's previous diagnoses of catatonia and amnesia, and the totality of the circumstances, the juvenile court appointed a guardian ad litem for mother.
During a December 22, 2020, visit with the parents to discuss visitation and case plans, the social worker observed mother to be "spacing out and unresponsive." In response to the social worker's repeated attempts to reach out to father about visitation, father stated he had been working and unable to check his voicemail. Father informed the social worker that maternal grandmother had moved to San Jose and occasionally stayed with them to take care of mother. When asked if she had any questions, mother laughed and remarked that she just noticed the social worker had small hands.
Father returned mother to the hospital on January 15, 2021, after finding her in a "crisis," yelling, screaming and pacing.
On January 22, 2021, the juvenile court conducted the disposition hearing, ordering Amber removed from the parents with reunification services and separate monitored visitation for the parents. Father and mother were ordered to complete drug programs, domestic violence programs, participate in individual counseling, anger management and child safety programs. Mother was also ordered to undergo a psychiatric evaluation pursuant to Evidence Code section 730.
In March 2021, the social worker reported that mother was unresponsive, unable to speak, and laughing during a scheduled home visit with the parents. Father claimed not to visit Amber because he was caring for mother without support. He did not notify Amber's caregiver that he would not be attending visits. Mother failed to drug test. Father drug-tested but did not visit Amber.
The parents visited Amber together on March 27, 2021. Father said Amber did not recognize them. When reminded that father and mother were not supposed to visit the child together, father responded that he had to assist mother. Father cancelled visits with Amber on May 15, May 22, May 29, and June 12, 2021, because of mother's health condition. On June 18, 2021, father informed the social worker that he was not participating in court-ordered services because he was working long hours.
Father felt overwhelmed during visits because of caring for mother and handling Amber. Father knew the court orders but refused to follow them because his priority was mother's health.
At the section 366.21, subdivision (e) review hearing on July 23, 2021, the juvenile court terminated reunification services for the parents.
Termination of parental rights
A status review report dated January 21, 2022, indicated that the parents had not established a bond with Amber and the quality of their visits was limited due to mother's dependence on father for basic needs such as walking and talking. On November 9, 2022, the social worker reported the parents missed most of their weekly visits with Amber.
On November 9, 2022, the juvenile court terminated the parental rights of both parents and ordered the permanent plan of adoption to be carried out.
FACTS PERTAINING TO ICWA
On January 24, 2020, the social worker filed an "Indian child inquiry attachment" indicating that an Indian child inquiry had been made and Amber had no known Indian ancestry. In a status review report dated January 14, 2020, the social worker indicated the juvenile court found Amber's half sibling Adrian's case was "not an ICWA case."
At the detention hearing on March 6, 2020, father filed a signed ICWA-020 form after marking the selection "I may have
Indian ancestry" and indicating the tribe was "unknown." Mother filed the same form after marking the selection "I have no Indian ancestry as far as I know." The court inquired of father whether there was anyone else in his family that might have information about father's possible American Indian ancestry, to which father replied, "No." The court ordered DCFS to further investigate father's potential American Indian ancestry and provide notice, if appropriate. The court found there was no reason to know that ICWA applied as to mother.
The jurisdiction/disposition report contained an excerpt from a report in Adrian's case stating mother was born and raised in Los Angeles. She was raised by her maternal grandfather because the maternal grandparents sent her mother, who was born in Guatemala and diagnosed with schizophrenia, to live in Guatemala to receive care and treatment for her condition. Mother never knew her father.
On July 13, 2020, the juvenile court noted there were outstanding ICWA issues. Counsel for DCFS stated, "[S]ince we're not able to get information from the father, we're going to have to notice [the] BIA."
In a follow-up with father, he clarified he did not have any American Indian heritage. Father believed paternal greatgrandfather (PGGF) had American Indian ancestry; however, paternal grandfather (PGF) clarified that while PGGF lived and had a romantic relationship with an American Indian woman, they never had children together. Father and PGF were born in Tuxtla Gutierrez, Chiapas, Mexico. Father was the child of first generation immigrants to the United States from Mexico.
The juvenile court's minute order of October 8, 2020, stated, "The court does not have reason to know that this is an
Indian Child, as defined under ICWA, and does not order notice to any tribe or the BIA. Parents are to keep [DCFS], their [a]ttorney and the [c]ourt aware of any new information relating to possible ICWA status.... The [c]ourt does not have a reason to know that ICWA applies as to [f]ather."
On June 3, 2022, the court ordered DCFS "to conduct updated inquiries of all known living relatives [and] prepare a Last Minute Report and submit prior to the next hearing date. Report is to address updated ICWA inquiries." The court's minute order dated September 19, 2022, also required DCFS to "interview any and all known relatives regarding ICWA and to give an update in an LMI for the next hearing."
On October 17, 2022, DCFS reported that the social worker spoke with mother, who denied having any Indian ancestry or "ICWA relatives." The social worker attempted to contact other maternal relatives to make ICWA inquiries. She called maternal great-grandmother, who did not have voicemail, and maternal grandmother, whose number was not valid. The social worker also called Adrian's caregiver, a maternal great-aunt, and left a voicemail message.
In a follow-up with father, he reported he had heard he had Native American heritage and that his great-grandparents lived in the United States a long time ago. Father had no further information and declined to provide his brother's contact information, as father believed his brother, who lived in Mexico, probably did not know either. DCFS called a paternal uncle, who did not have voicemail set up, and a paternal aunt, but was unable to make contact. The social worker left a voicemail message for one paternal cousin, and was unable to reach another paternal cousin, as the phone was disconnected. The social worker e-mailed Adrian's father in Guatemala on August 23 and October 12, 2022, but received no response.
On October 17, 2022, the juvenile court addressed father directly, stating: "[T]he law requires us to call your relatives and ask them if they are aware of any Native American Indian ancestry in the family and your family members are not responding. If you could please reach out to them and ask them to return the social worker's calls. It will be a somewhat short conversation." Father responded, "Yes." The court ordered DCFS to provide an ICWA update.
On November 9, 2022, DCFS reported that Amber's paternal relatives did not respond to DCFS's ICWA inquiries. Amber's maternal aunt stated the family is from Guatemala and did not have American Indian ancestry. At the section 366.26 selection and implementation hearing on November 9, 2022, the court held that ICWA was inapplicable.
On November 18, 2022, father filed a notice of appeal.
DISCUSSION
I. 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. (§ 224.2, subd. (a).)
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. 21, 2022, S275578 (Dezi C.).) Even if substantial evidence does not support the juvenile court's ICWA findings, we may not reverse unless we find that error was prejudicial. (Cal. Const., art. VI, § 13; Benjamin M., supra, 70 Cal.App.5th at p. 742.)
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; 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." (Dezi C., at p. 779.)
The California Supreme Court granted review of Dezi C. on September 21, 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).)
II. Father has failed to show reversible error
Father argues that DCFS erred by failing to carry out its ICWA duties of initial inquiry with respect to Amber's extended relatives, including Amber's maternal aunt, maternal grandmother, maternal great-grandparents, two paternal uncles, paternal aunt, and paternal cousin. Father argues DCFS's "last minute, fruitless flurry of telephone calls" were insufficient to discharge the agency's duties, and such inquiries should have been made earlier in the proceedings. Father cites In re Josiah T. (2021) 71 Cal.App.5th 388, 408, for the proposition that "the court may not find that ICWA does not apply when the absence of evidence that a child is an Indian child results from a DCFS inquiry that is not proper, adequate, or demonstrative of due diligence."
We find that no ICWA error occurred in this case. Amber's parents provided compelling evidence that they had no American Indian ancestry. The parents' statements were corroborated by information from knowledgeable individuals on both sides of the family, and DCFS made a diligent effort to contact the additional extended family members father mentions on both sides. Father cites no law suggesting DCFS is required to make repeated requests when social workers' calls are not returned, nor does he provide authority that the ICWA inquiry of extended family cannot continue throughout the proceedings, up until the section 366.26 hearing.
In this case, mother repeatedly reported having no American Indian ancestry. Mother's mother and grandparents were born in Guatemala. Mother never knew her father.Amber's maternal aunt, who was Adrian's caregiver and prospective adoptive parent, confirmed mother's family is from Guatemala and has no American Indian ancestry. In addition, in maternal half sibling Adrian's case, the juvenile court found ICWA did not apply to Adrian. DCFS also made inquiries of the following maternal relatives: maternal great-grandmother; maternal grandmother; and maternal great-aunt. The social worker was not able to make contact with any of these maternal extended family members despite her efforts. DCFS's phone calls to these extended family members was sufficient to fulfill the duty of inquiry. ICWA does not obligate DCFS to conduct further inquiry if an extended family member is unreachable or refuses to speak with the agency representative. (In re A.M. (2020) 47 Cal.App.5th 303, 323 [finding no need for further inquiry if the parents fail to provide information regarding follow-up, if persons with additional information are deceased, or if such persons "refuse to talk to" the agency].)
There is no evidence that any maternal relative had contact information for mother's unknown father. DCFS was not required "to conduct an extensive independent investigation for information." (In re C.Y. (2012) 208 Cal.App.4th 34, 41.) "Without reliable contact information, DCFS could not reasonably have been expected to interview" mother's paternal relatives. (In re Q.M. (2022) 79 Cal.App.5th 1068, 1083.)
Father initially reported that he may have Indian ancestry with an unknown tribe. However, when asked if there was anyone else in his family that might have information regarding his potential Indian ancestry, father responded, "No." DCFS was ordered to conduct further inquiries.
When the social worker talked with father later in the proceedings, father reported that he did not have any American Indian heritage. Father explained that "PGF clarified to father that PGGF lived and had a romantic relationship with an American Indian woman, nonetheless; they never had children together." PGF and father were born in "Tuxtla Gutierrez, Chiapas[,] Mexico." Father was the child of first generation Mexican immigrants. Father subsequently confirmed this information, and Amber's birth certificate showed father's birthplace as "Tamps, MX." The social worker attempted to contact two paternal uncles, a paternal aunt, and two paternal cousins to make ICWA inquiries, but received no responses.
Given DCFS's fruitless efforts, the juvenile court addressed father directly, asking him to reach out to his extended family and ask them to return the social worker's calls. Father responded that he would do so. However, no further information suggesting Indian ancestry was forthcoming.
The record shows that DCFS took its ICWA duty of inquiry seriously, making inquiries of all known relatives for whom the agency had contact information. Father points out that DCFS had contact with some of these extended relatives earlier in the case and could have asked at that time. However, father presents no authority that the initial absence of inquiry, which DCFS rectified later in the proceedings, constitutes reversible error. In addition, father objects that inquiry was not mailed to a paternal uncle, aunt and cousin who cohabitated with father at the outset of the proceedings, nor did DCFS mail inquiry to the maternal grandmother, although DCFS knew her mailing address. Father cites no authority that DCFS is required to make such inquiries by mail, particularly when other means of contact were attempted. Father has failed to demonstrate error.
We decline to address In re Adrian L. (2022) 86 Cal.App.5th 342, discussed at pages 19 and 20 of father's opening brief, as DCFS does not rely on the case in opposing father's arguments on appeal.
III. Father has failed to show prejudice
Because we have determined that no error occurred in this case, we need not address the issue of prejudice. However, as set forth above, 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, 79 Cal.App.5th at p. 779.) We decline to adopt father's arguments that Dezi C. is wrongly decided. Father has failed to point to evidence suggesting a reason to believe that Amber is an Indian child within the meaning of ICWA. Therefore, even if there had been ICWA error, any such error is not prejudicial under the circumstances of this case.
DISPOSITION
The juvenile court order is affirmed.
We concur: LUI, P. J., HOFFSTADT, J.