Opinion
B314300
03-18-2022
In re M.G. et al., Persons Coming Under the Juvenile Court Law. v. JOSE G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 18CCJP05046A-C. Diane C. Reyes, Judge. Affirmed.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel for Plaintiff and Respondent.
LUI, P.J.
Jose G. (Father) appeals an order terminating parental rights. (Welf. & Inst. Code, § 366.26.) He contends that the court and Los Angeles County Department of Children and Family Services (DCFS) did not conduct an adequate inquiry under the Indian Child Welfare Act (ICWA). (§ 224 et seq.; 25 U.S.C. § 1901 et seq.) Father and Mother denied Indian heritage and never, in three years, told anyone about Indian relatives though they lived with their parents and could readily inquire about their ancestry. Neither DCFS nor the court had reason to believe the children are Indian. Father has not shown prejudice from DCFS's failure to interview extended family members. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code. The children's mother, Monica H. (Mother) did not appeal the order terminating parental rights.
FACTS AND PROCEDURAL HISTORY
Father is married to Mother. He was born in Northridge; Mother was born in Mexico and immigrated to the United States. They have three children: M.G. (born in 2013), G.G. (2014), and M.G.H. (2017). Parental domestic violence and drug abuse led to a 2014 dependency proceeding. They complied with the case plan and the petition was dismissed.
In June 2018, DCFS learned that Mother and the children lived with relatives who were accused of domestic violence and of violating probation by possessing heroin and ammunition. While investigating the children's safety, DCFS discovered Mother was on probation and recently tested positive for methamphetamine and marijuana; she admitted to drug use. Mother was arrested in 2016 for attempted murder after stabbing someone. Father was incarcerated. He has a lengthy criminal history.
DCFS filed a petition on August 9, 2018, alleging Mother knowingly placed the children in an endangering situation by residing in a home with their uncle, who uses heroin and kept drug paraphernalia within the children's access; Mother has a history of substance abuse and currently uses amphetamine, methamphetamine, and marijuana while caring for the children; and Father has a serious criminal history and is a registered controlled substance abuse offender. The children were removed from Mother's custody and placed with their maternal grandparents (MGPs).
Attached to the petition are "Indian Child Inquiry" forms stating that inquiry was made and the children have no known Indian ancestry. On August 10, 2018, Mother signed a Parental Notification of Indian Status (ICWA-020) form declaring under penalty of perjury, "I have no Indian ancestry as far as I know." At the detention hearing, the court found no reason to know the children are Indian. It did not order notice to any tribe but ordered that "[p]arents are to keep [DCFS], their Attorney and the Court aware of any new information relating to possible ICWA status." On October 5, 2018, Father declared he had no Indian ancestry in his ICWA-020 form.
In November 2018, Mother pleaded no contest that she "has a history of substance use and is a recent user of methamphetamine, amphetamine and marijuana, which renders [her] incapable of providing the children with regular care and supervision." Father appeared at the hearing and submitted to the court's jurisdiction; no allegation was sustained against him. The court sustained the petition against Mother and found the children fall within section 300, subdivision (b).
At disposition, the children were removed from Mother and placed with Father under DCFS supervision. Mother had to complete a drug program with testing. Father was not required to test for drugs unless there was a suspicion he was using them.
Father was arrested in May 2019 for possessing personal information with intent to defraud. The children returned to him upon his release. By July 2019, Mother was not enrolled in a rehabilitation program or testing for drugs; she was in jail.
In August 2019, the children were detained from Father. His odd behavior led the social worker to suspect he was using drugs. He missed drug tests, did not meet the children's medical and mental health needs, and left M.G.H. (age two) with MGPs without providing financial help.
DCFS filed a subsequent petition (§ 342) alleging that Father left M.G.H. without making an appropriate plan for the child's ongoing care and supervision, has a history of drug related convictions, and was recently arrested for possessing a controlled substance. DCFS filed a supplemental petition (§ 387) alleging that Father failed to drug test. He tested positive for methamphetamine while on parole. His parole agent said he was "incoherent" and appeared to be under the influence. The DCFS social worker met with Father and saw that his eyes were dilated and his speech was slow. He resides with his parents, who believe he uses drugs and said he does not leave his room. Mother remained incarcerated.
The court sustained the new petitions on October 31, 2019. It ordered Father to test for drugs; if he missed a test or tested positive, he must undergo a drug rehabilitation program. The children were removed from his care. He was given monitored visits, ordered to take parenting classes and have counseling.
In spring 2020, Mother was released from jail. She did not drug test or visit the children consistently. She had completed programs for drug education, parenting, and domestic violence while incarcerated. In March 2020, Mother's parole officer reported that she tested positive for heroin, methamphetamine, and marijuana; she was arrested for drug possession and carjacking. Father was arrested three times in six months for possessing narcotics and violating parole. He did not visit the children or comply with the court's drug testing requirement. He told DCFS he planned to enroll in a rehabilitation program upon release from jail. Instead, he disappeared.
DCFS recommended that the court terminate reunification services. The children are at very high risk of abuse or neglect if reunified with their parents, who did not maintain sobriety or comply with the case plan. MGPs are the prospective adoptive family. On August 26, 2020, the court found the parents made little progress to alleviate the conditions giving rise to dependency jurisdiction, terminated services, and set a permanent plan hearing.
In December 2020, DCFS reported that both parents are incarcerated. Mother has seldom seen the children in the past year; Father has not seen them since August 2019. MGPs realize Mother is unlikely to regain custody and wished to proceed with adoption. Like Mother, MGPs were born in Mexico; they were married as teenagers and have six children. MGPs have cared for Mother's children almost their whole lives. DCFS recommended that the court terminate parental rights.
At a hearing on March 15, 2021, the court reiterated its finding that Mother and Father disclaimed Indian heritage in their ICWA-020 forms and ICWA does not apply. No one objected. Mother's attorney submitted on the ICWA finding; Father's attorney said, "I believe so" and promised to reconfirm the ICWA information with him.
At the permanent plan hearing on August 6, 2021, Father refused to exit his jail cell; he objected to termination of parental rights, arguing he has a bond with the children, even if he is limited by his incarceration. Mother waived her appearance and objected to termination of her rights. DCFS and minors' counsel asked the court to terminate parental rights. The court found the children are adoptable, no exception to adoption applies, and it would be detrimental for the children to return to their parents. MGPs are the prospective adoptive parents. Father appeals.
DISCUSSION
The only issue Father raises on appeal is the adequacy of the inquiry under ICWA. "We review a court's ICWA findings for substantial evidence. [Citations.] 'We must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance'" and Father" 'has the burden to show that the evidence was not sufficient to support the findings and orders.'" (In re Austin J. (2020) 47 Cal.App.5th 870, 885.)
DCFS inquired about Indian ancestry before filing the dependency petition. The "Indian Child Inquiry" forms attached to the petition state that the parents offered no reason to believe the children are Indian. Both parents disclaimed Indian heritage in their ICWA-020 forms. At the detention hearing, the court found ICWA does not apply.
It should be noted that the children were initially detained from Mother, the custodial parent. Father attended the 2018 jurisdiction hearing and obtained custody of the children at disposition. At no time did he claim Indian ancestry. In March 2021, attorneys for the parents confirmed their denials of Indian ancestry. Despite having multiple opportunities over three years to submit the names of persons who could be questioned, the parents never suggested that a family member might know more about their ancestry. They or their attorneys stated they have no reason to believe they are Indian.
The court and DCFS carried out their duty under state law to inquire if the children are or may be Indian children. (§ 224.2, subd. (a); In re A.C. (2021) 65 Cal.App.5th 1060, 1069 [no duty to ask extended family about tribal membership under federal law].) There was no reason to know the children are or may be Indian because (1) no person, tribe or agency informed the court that the children are Indian; (2) they do not live on a reservation; (3) no participant informed the court of recently discovered information indicating Indian ancestry; (4) the children did not give the court reason to know they are Indian; (5) no one told the court the children are or have been wards of a tribal court; and (6) no one said the children have tribal membership cards. (§ 224.2, subd. (d)(1)-(6); Cal. Rules of Court, rule 5.481(b)(1)(A)-(F).)
No further inquiry under ICWA was triggered because the court and the social worker did not know, or have reason to know, that an Indian child is involved: No information was supplied "suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (§ 224.2, subd. (e)(1); In re Austin J., supra, 47 Cal.App.5th at pp. 883-884.)
Father cites section 224.2, subdivision (b), which imposes a duty to inquire about Indian ancestry if a child is placed in the temporary custody of a welfare department (§ 306) or probation department (§ 307). The duty to inquire arises if a social worker knows or has reason to know an Indian child is or may be involved, by interviewing the parents and extended family members. (Cal. Rules of Court, rule 5.481(a)(4)(A).)
Here, the parents denied Indian ancestry and Father took custody of the children; they later went to live with MGPs, who plan to adopt them. (See In re S.S. (Feb. 24, 2022, B314043) ___ Cal.App.5th ___, ___ [2022 Cal.App. Lexis 156, *10-*11] [if a grandmother seeks to adopt the children, failure to ask her about Indian heritage is harmless].) DCFS did not need to question others. "[T]he evidence already uncovered in the initial inquiry was sufficient for a reliable determination." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 743.)
Father cites In re Y.W. (2021) 70 Cal.App.5th 542. It is inapposite. The father in that case declared he was or may be a member of a tribe; he wrote "Cherokee from Texas" on his ICWA-020 form, told a social worker his grandmother was" '95% Cherokee, '" and provided vital family information. The mother in In re Y.W. disclaimed Indian heritage but said she was adopted at age two and had no information about biological relatives. (Id. at p. 548; see also In re N.G. (2018) 27 Cal.App.5th 474, 478-481 [duty to inquire arose when the child's father signed an ICWA-020 form saying he had Indian ancestry and told the social worker his cousins are registered Cherokee tribe members].)
By contrast, DCFS had no evidence of a tribal link. Unlike In re Y.W., supra, 70 Cal.App.5th 542, Father never claimed Indian ancestry. Nor was he adopted and unaware of his biological relatives. On the contrary, he and Mother lived with their parents, even as adults, and could readily inquire about their ancestry. This is not a case in which a parent was missing or unavailable to report or deny Indian ancestry, giving rise to a duty to ask relatives about their ancestry. (In re Benjamin M., supra, 70 Cal.App.5th at pp. 744-745 [father never appeared in the case and could not be asked if his children are Indian]; In re Josiah T. (2021) 71 Cal.App.5th 388, 393, 403 [same].) Father relies on cases in which ancestry is ambiguous; no such ambiguity exists here.
Even if there was a duty to interview extended family, we agree with our colleagues in Division One of this appellate district that a parent claiming ICWA deficiencies following termination of parental rights must show prejudice from DCFS's failure to conduct such interviews. (In re Darian R. (Feb. 24, 2022, B314783) ___ Cal.App.5th ___ .) In Darian R., as here, three children had the same parents and ancestry; both parents denied Indian ancestry and participated in the dependency proceeding; neither parent was adopted; they knew their relatives and lived with them as adults; for three years, the parents were "under court order to continue providing information relevant to ICWA." (Id. at *12.) There was no basis for reversal because "[t]he record simply does not support [the parent's] unvarnished contention that additional interviews of [the parent's] father and sister would have meaningfully elucidated the children's Indian ancestry." (Id. at *13.)
Division Five of this appellate district recently held in an appeal taken after the jurisdiction hearing that DCFS failed to comply with its "first-step inquiry duty under ICWA." (In re H.V. (2022) 75 Cal.App.5th 433, 438.) In re H.V. is distinguishable. Once parental rights are terminated, as in this appeal, a parent must be able to show prejudice and point to some effort to comply with the court order to provide information relevant to ICWA over the course of the proceeding.
In re H.V. is akin to In re Benjamin M., supra, 70 Cal.App.5th at pages 744-745, because the whereabouts of the alleged father were unknown. Under Benjamin M., extended family members of a missing parent should be interviewed.
As Father writes in his brief, the duty to inquire arises if a court or agency has reason to believe an Indian child is involved but lacks sufficient information. He cites no evidence to support his claim that the court and DCFS had reason to believe an Indian child is involved. When Mother and Father denied Indian ancestry in 2018, the court found ICWA did not apply and instructed them to inform DCFS, their attorneys, and the court of "any new information relating to possible ICWA status." Father now seeks to delay the children's adoption, contrary to their interest in a stable, permanent home, without providing any new information about Indian status.
In 2021, the court again found ICWA does not apply; no one suggested that the children are Indian. Father waited until this appeal, after parental rights were terminated, to assert that the inquiry was inadequate. Even now, he does not identify in his brief any association with a tribe showing a reason to believe his children are Indian. (In re A.C., supra, 65 Cal.App.5th at p. 1069 [parent asserting failure to inquire must make an offer of proof or affirmatively claim Indian heritage on appeal]; In re H.B. (2008) 161 Cal.App.4th 115, 122 [ICWA" 'is not a "get out of jail free" card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves'" by asserting it for the first time on appeal]; In re N.E. (2008) 160 Cal.App.4th 766, 769 [ICWA error harmless because father "does not assert on appeal that he in fact has any Indian heritage"].)
"In sum, the record shows no prejudice flowing from DCFS's failure to interview" extended family members. (In re Darian R., supra, ___ Cal.App.5th at p.___ [2022 Cal.App. Lexis 155, *13].) Father has not carried his burden of showing juvenile court error or a miscarriage of justice. (Cal. Const., art. VI, § 13.)
DISPOSITION
The order is affirmed.
We concur: ASHMANN-GERST, J., HOFFSTADT, J.