Opinion
B322972
03-02-2023
In re MARIE Z. et al., Persons Coming Under the Juvenile Court Law. v. JESSICA De S., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Avedis Koutoujian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP00169, Daniel Zeke Zeidler, Judge. Affirmed.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Avedis Koutoujian, Deputy County Counsel, for Plaintiff and Respondent.
WEINGART, J.
Appellant Jessica De S. (Mother) appeals from the juvenile court's order terminating parental rights to her children, Marie Z. and Mariah Z., pursuant to Welfare and Institutions Codesection 366.26. The children's presumed father (Father) is deceased and is not a party to this appeal. Before the court terminated Mother's parental rights, the Los Angeles County Department of Children and Family Services (DCFS) inquired of Mother and certain other extended family members to determine whether Marie and Mariah were "Indian children," as defined by the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.).
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
Mother raises a single issue on appeal, namely the adequacy of the ICWA inquiry. Mother asserts the trial court erred when it found it had no reason to know the children were "Indian children" without DCFS first having inquired of maternal grandfather, maternal aunt, and maternal uncle as to the children's potential Indian status. Mother does not challenge the adequacy of the ICWA inquiry relating to paternal relatives.
As explained below, we find that any error was harmless because the record does not demonstrate that inquiry of maternal grandfather, maternal aunt, or maternal uncle would bear meaningfully on the question of whether Marie and Mariah are Indian children. Mother repeatedly denied the children had Indian ancestry; and Mother twice denied that any other relative would have information about the children's possible Indian ancestry. Maternal grandmother likewise denied Indian ancestry. Additionally, the record demonstrates that maternal grandfather likely passed away in 2017, two years prior to the initiation of these dependency proceedings; that maternal aunt was not maternal grandfather's biological daughter and was not raised by him; and that maternal uncle also was not raised by maternal grandfather. Thus, it is unlikely inquiry of these persons about Indian ancestry would have provided different or additional information than that already provided by Mother and maternal grandmother.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Summary
Because the sole issue on appeal relates to ICWA compliance, we limit our factual summary accordingly.
1. Mother's Prior Child Welfare History as a Minor
According to Mother, maternal grandmother and her stepfather, Cesar I., raised her. She considered Cesar to be her father. Her biological father "was not really involved in her life," and "she had no relationship with [him]."
In October 2002, when Mother was approximately 10 years old, maternal grandmother, Mother, her brother Sergio De S. (maternal uncle), her sister, Hilda I. (maternal aunt), and Cesar lived together. On October 9, 2002, Cesar was nonfatally shot within the vicinity of the family's home. Maternal grandmother reportedly fled the scene, leaving Mother and her siblings at home. Mother and her siblings became dependents of the juvenile court and were released to maternal grandmother under DCFS supervision.
The juvenile court terminated jurisdiction in November 2003, with a family law order awarding maternal grandmother sole legal and physical custody of Mother and maternal uncle. As to maternal aunt, the juvenile court awarded joint legal custody to her biological father Cesar and maternal grandmother, and sole physical custody to maternal grandmother with unmonitored visits for Cesar.
2. Referral, Petition, Amended Petition, Jurisdiction, and Disposition
On November 20, 2019, DCFS received a referral reporting Mother's general neglect of then-eight-year-old Marie and then-five-year-old Mariah.
On January 14, 2020, DCFS filed a section 300 petition alleging three counts of Mother's general neglect of the children pursuant to subdivision (b)(1). That same day, the juvenile court held a detention hearing. It ordered the children removed from Mother and temporarily placed with a paternal aunt, Alice Z. The court also ordered that DCFS refer Mother to low or no cost recommended programs, transportation and housing assistance, and weekly drug and alcohol testing. The juvenile court granted Mother monitored visitation.
On February 18, 2020, DCFS filed a first amended petition, alleging an additional count, substance and alcohol abuse under section 300, subdivision (b)(1).
On March 4, 2020, the juvenile court sustained the three counts in the first amended petition relating to general neglect, but found there was insufficient evidence of substance or alcohol abuse. It concluded the children were persons described under section 300, subdivision (b)(1). It also found that remaining with Mother would pose substantial danger to the children's wellbeing. It removed them from Mother and ordered them suitably placed under DCFS supervision. The juvenile court also ordered reunification services for Mother, weekly drug testing, and monitored visitation.
3. Status Review and Termination of Mother's Parental Rights
On August 31, 2020 and March 10, 2021, the juvenile court found Mother had not made substantial progress in the case plan. On March 18, 2021, Mother called the social worker and reported she was in an inpatient drug treatment program. On June 29, 2021, the court found Mother had made substantial progress in the case plan. The juvenile court granted Mother unmonitored visits if she continued current services and had "clean" toxicology results. Mother continued to struggle to find permanent housing, and DCFS provided Mother with resources to help address that issue. On October 18, 2021, the juvenile court found Mother had made substantial progress in the case plan, that the only impediment to returning the children to Mother was her lack of housing, and referred Mother to a housing assessment appointment. The court further ordered the children be released to Mother upon Mother securing housing.
Between October 18, 2021 and March 21, 2022, DCFS's contact with Mother was limited to text messages from Mother in which she attempted to schedule calls with the social worker but then did not follow through. Mother did not regularly visit the children during this time.
On March 21, 2022, Mother reported she had been living in temporary housing for five months but had been kicked out. She was homeless and living out of her car. Mother stated that if she could not presently get the children back because she was not in a place to take care of them, she would like the opportunity to get them back in the future. She agreed the best place for the children at the time was with paternal aunt.
On March 24, 2022, Mother tested positive for 6-acetylmorphine, a metabolite of heroin.
At a hearing on April 22, 2022, the juvenile court concluded Mother partially complied with the case plan, but that compliance was not substantial. The court terminated reunification services and scheduled a permanency planning hearing.
On August 22, 2022, the juvenile court terminated Mother's parental rights.
B. ICWA-related Proceedings
As of January 14, 2020, when DCFS filed the section 300 petition, it had not yet made an Indian child inquiry relating to either child.
On January 14, 2020, Mother attended the detention hearing and submitted an ICWA parental notification form in which she indicated that she had no Indian ancestry as far as she knew. Paternal grandmother, a paternal aunt, and a paternal cousin also attended the hearing. The juvenile court asked Father's relatives whether they knew of any Indian ancestry. Paternal grandmother responded that she believed paternal grandfather's mother may have been from the Yaqui tribe in Arizona and that paternal grandfather's cousins would likely have more information about such Indian ancestry. The juvenile court ordered DCFS to investigate Indian ancestry, including interviewing paternal relatives, and to send notice to the Yaqui tribe.
In the jurisdiction and disposition report, DCFS reported that on February 10 and 11, 2020, an investigator interviewed Mother, maternal grandmother, paternal grandmother, and paternal grandfather about any possible Indian heritage. Mother and maternal grandmother denied having any. During her interview, Mother reported her biological father (maternal grandfather) was not involved in her life and she would rather not have contact with him. Mother also denied that Father's side of the family had Indian heritage. She claimed paternal grandfather (who paternal grandmother had claimed was from the Yaqui tribe) was not Father's biological father and that she could produce a witness to state so. Paternal grandfather claimed his parents were registered members of the Yaqui tribe, but that he never enrolled.
On February 12, 2020, DCFS executed a Judicial Council form to provide notice of child custody proceedings for an Indian child to Mother, the Pascua Yaqui tribe, Bureau of Indian Affairs, and Secretary of the Interior. The notice identified maternal grandfather as deceased. The notice also provided his name, date of birth, country of birth (Mexico), specific date of death in 2017, and place of death (which was in California).
On February 19, 2020, attorneys for each of the parties appeared before the juvenile court. Deputy county counsel reported that the DCFS investigator asked paternal grandparents if they were Father's biological grandparents and they confirmed that they were.
By a letter dated March 3, 2020, the Arizona Attorney General reported neither Mother, Father, nor either of their children was a member of the Pascua Yaqui Tribe or had a pending application for membership.
On March 4, 2020, the juvenile court held an ICWA progress hearing. The juvenile court stated for the record that DCFS had submitted return receipts from the Yaqui tribe, the Bureau of Indian Affairs, and the Department of the Interior. It also reviewed the March 3, 2020 Arizona Attorney General letter. The juvenile court concluded that ICWA notice was proper and complete, that it did not have reason to know or believe the children were Indian children, and that ICWA did not apply.
On June 29, 2022, the juvenile court ordered that DCFS file a last minute information (LMI) that "include[d] all ICWA inquiries since the beginning of the case."
In an LMI filed on July 7, 2022, DCFS reported that on June 9, 2022, an investigator interviewed Mother, in person, "in regards to [Mother] and/or other family members having American Indian [a]ncestry, and [Mother] stated, 'No, we don't.'" The investigator then asked Mother whether she had any family members the investigator could interview to obtain additional information about the children's possible Indian status. Mother "reported that she does not have any family members that [the investigator] can contact." On July 6, 2022, a DCFS social worker also interviewed Mother about whether she or other family members had Indian ancestry. According to DCFS, "[M]other stated that she is positive they have no American Indian [a]ncestry," and "that there are no additional relatives that [DCFS] can interview in regards to ICWA." The investigator and social worker also interviewed a paternal aunt, who reported no new information.
At the August 22, 2022 permanency planning hearing, the juvenile court asked Mother whether she had any new information regarding Indian ancestry for the children. Mother responded, "No, they don't have any."
Mother timely appealed the juvenile court's August 22, 2022 order.
DISCUSSION
A. Legal Standard
The juvenile court and DCFS "have an affirmative and continuing duty to inquire whether a child for whom a [section 300] petition . . . has been filed, is or may be an Indian child." (§ 224.2, subd. (a).) Additionally, section 224.2, subdivision (b), states, in part, that "[i]nquiry includes, but is not limited to, asking . . . extended family members . . . whether the child is, or may be, an Indian child." 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-inlaw or sister-in-law, niece or nephew, first or second cousin or stepparent." (25 U.S.C. § 1903(2).) An "Indian child" is an unmarried person under 18 years of age who is (1) a member of a federally recognized Indian tribe or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) &(8); see § 224.1, subd. (a) [adopting federal definitions], subd. (b) [expanding the age range stated in the federal definition to include persons over 18, but under 21, years of age].)
The Courts of Appeal have taken various approaches in determining whether an ICWA inquiry error warrants reversal or remand. (See In re S.H. (2022) 82 Cal.App.5th 166, 175 [listing five approaches]; In re Dezi C. (2022) 79 Cal.App.5th 769, 777 [discussing automatic reversal, presumptive affirmance, and readily obtainable information approaches and introducing a fourth], review granted Sept. 21, 2022, S275578.) As prior decisions make clear, in the view of our division DCFS's failure to inquire of extended family members does not result in automatic reversal. (See In re Adrian L. (2022) 86 Cal.App.5th 342; In re A.C. (2022) 75 Cal.App.5th 1009; In re S.S. (2022) 75 Cal.App.5th 575; In re Darian R. (2022) 75 Cal.App.5th 502.) Rather, we have generally evaluated the record to determine whether" 'the probability of obtaining meaningful information is reasonable in the context of ICWA.'" (In re Darian R., supra, at p. 509, quoting In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.) Information available from extended family members must be both" 'readily obtainable,'" and" 'likely to bear meaningfully upon whether the child is an Indian child.'" (In re Benjamin M., supra, at p. 744.) In making this determination, we have rejected "a wooden approach to prejudice" (In re A.C., supra, at p. 1017) and refused to require further inquiry when, based upon the particular circumstances presented by the record, it is apparent "that additional information would not have been meaningful to the inquiry" (In re Benjamin M., supra, at p. 743; see, e.g., In re S.S., supra, at p. 582).
Because federal law does not impose a duty on social workers to inquire of extended family members about tribal affiliation, any error would be under state law. (In re Benjamin M., supra, 70 Cal.App.5th at p. 742; In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The usual test for prejudicial state law error is whether," 'after an examination of the entire cause, including the evidence,'" we are "of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; see In re Benjamin M., supra, at p. 742 [Watson standard applies to agency's failure to comply with initial duty of inquiry under California's ICWA-related law].)
B. Analysis
Mother argues DCFS had a duty under section 224.2, subdivision (b), to inquire of "Mother's available extended family members" whether her children might be Indian children, and faults DCFS for not contacting maternal grandfather, maternal uncle, and maternal aunt. Mother also argues that we need not determine whether the error was prejudicial because she is seeking a conditional affirmance with remand only for ICWA compliance purposes.
1. Harmless Error Analysis Applies
We begin by addressing Mother's argument that we need not conduct a harmless error analysis. In making this argument, Mother relies on In re J.K. (2022) 83 Cal.App.5th 498 (J.K.) and In re Dominick D. (2022) 82 Cal.App.5th 560 (Dominick D.)
Mother is correct that the majority opinion in J.K. did not require a showing of prejudice before conditionally affirming and issuing a limited remand. (J.K., supra, 83 Cal.App.5th at p. 507.) But that was because J.K. adopted an analysis closer to a per se reversal rule. (See ibid. ["when . . . a statutorily mandated duty has not been performed, the matter must be remanded for satisfaction of the duty unless the record 'affirmatively reflects that the protections intended to be afforded through the exercise of that duty have been provided' "].) As described above, our division has not adopted the same approach, and Mother provides no persuasive argument why we should deviate from our prior precedents. Thus, Mother's reference to J.K., supra, 83 Cal.App.5th 498 does not persuade us to remand without first considering whether DCFS's failure to inquire of maternal extended family members was prejudicial.
Dominick D. is procedurally distinguishable. There, the challenged ICWA inquiry error arose prior to the termination of parental rights. Indeed, in remanding the matter for compliance with ICWA, the appellate court explained that it "decline[d] to address the parties' arguments concerning harmlessness . . . because 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." (Dominick D., supra, 82 Cal.App.5th at p. 563, italics added.) Thus, Dominick D. does not stand for the proposition that reviewing courts need not consider prejudice when a parent appeals the alleged ICWA error after the termination of parental rights, when there is a greater risk of delaying permanency. Mother has not articulated any convincing reason why this court should expand Dominick D. to foreclose any analysis of prejudice from alleged ICWA inquiry errors appealed after the termination of parental rights, and we thus decline to do so.
Accordingly, we do not depart from the analysis employed in our prior opinions, and will "remand only if [our examination of the record] shows prejudice because there was' "information that was likely to bear meaningfully upon whether the child is an Indian child."' [Citations.]" (In re Adrian L., supra, 86 Cal.App.5th at p. 350.)
2. Any ICWA Inquiry Error Was Harmless
Here, the record does not support that inquiring of maternal extended family members would have yielded additional information likely to bear meaningfully on the juvenile court's ICWA determination. Mother, while represented by counsel, denied the children had Indian heritage at least five times: on the ICWA parental notification forms that she executed for each of her daughters on January 14, 2020; in response to DCFS's inquiries on February 11, 2020, June 9, 2022, and July 5, 2022; and in response to the juvenile court asking her on August 22, 2022, whether she had any new information regarding Indian ancestry for the children. Maternal grandmother also denied Indian heritage. Moreover, Mother told DCFS on two occasions that there was no one else in her family DCFS could contact who would have additional information about the children's possible Indian heritage. DCFS properly reported those statements to the juvenile court, who conscientiously had ordered DCFS to submit a summary of all ICWA inquiries prior to the termination of parental rights.
Mother now directly contradicts her prior statements, arguing there were in fact three relatives that DCFS should have contacted to obtain additional information about the children's possible status as Indian children. Putting aside our concern with this flip-flop in position, the record indicates that none of the three maternal relatives at issue was likely to have information that would bear meaningfully upon the applicability of ICWA. Beginning with maternal grandfather, DCFS reported that he passed away in 2017. Mother notes that the record does not explain how DCFS learned this information, but she did not contradict this fact when it was reported to her in the juvenile court, nor does she contradict it on appeal (instead only questioning its provenance). Even if she did seek now to contradict this statement, we would resolve the factual conflict, as we must, in favor of the court's findings. (See In re Carlos T. (2009) 174 Cal.App.4th 795, 804 [" 'In juvenile cases, as in other areas of the law, . . . [a]ll conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible' "].) Obviously, when an individual is deceased, information is not readily obtainable from them.
Turning to maternal aunt and maternal uncle, Mother asserts they could have been asked about the family's ancestry, including maternal grandfather's information. However, nothing in the record indicates that maternal aunt or maternal uncle had additional or superior knowledge concerning maternal grandmother's lineal ancestry than maternal grandmother herself, who told DCFS she had no Indian heritage. As for whether maternal aunt and uncle were likely to have information about maternal grandfather's ancestry, maternal aunt is Mother's half-sister and not maternal grandfather's biological child. Maternal aunt's biological father, Cesar, raised her, and there is no evidence that maternal aunt knew maternal grandfather or would have had any knowledge about his possible Indian ancestry. As for maternal uncle, the prior child welfare history describes that Cesar, and not maternal grandfather, also raised Mother and maternal uncle. This indicates that maternal uncle would not have had any greater contact with maternal grandfather than Mother or maternal grandmother, and thus was unlikely to have information not already presented by Mother and maternal grandmother.
Because nothing suggests the additional relatives at issue had any readily obtainable information that was likely to bear meaningfully upon whether Marie Z. and Mariah Z. were Indian children, we conclude any error in not conducting additional inquiries of or relating to maternal grandfather, maternal aunt, or maternal aunt was harmless.
DISPOSITION
The juvenile court's order terminating parental rights is affirmed.
We concur: ROTHSCHILD, P. J., BENDIX, J.