Opinion
B327843
04-08-2024
In re E.B. et al., Persons Coming Under the Juvenile Court Law. v. K.E., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19CCJP01353, Ashley Price, Juvenile Court Referee. Affirmed.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
Mother K.E. appeals from a juvenile court order, under Welfare and Institutions Code section 366.26, terminating her parental rights to her children, Er.B and Ez.B. She contends the order must be conditionally reversed and the case remanded because the Los Angeles County 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) and related state statutes. Finding any ICWA error harmless, we affirm.
All undesignated statutory references are to the Welfare and Institutions Code. "[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.)
BACKGROUND
Because the sole issue on appeal concerns compliance with ICWA and related state statutes, we limit our recitation of the facts and procedural background to those matters relevant to that issue, except as necessary for context.
When the Department interviewed mother in January 2019, she indicated neither she nor the children's fathers had Native American heritage.
At the initial hearing in March 2019, mother stated she believed she had Apache heritage through her grandmother, whom she believed was a registered tribal member. The juvenile court ordered the Department to investigate and give notice to the various Apache tribes and the Bureau of Indian Affairs (BIA).
In March 2019, the Department sent form Notices of Child Custody Proceeding for Indian Child to the BIA, the Secretary of the Interior, The Apache Tribe of Oklahoma, The Fort Sill Apache Tribe of Oklahoma, The Jicarilla Apache Nation, The Mescalero Apache Tribe, The San Carlos Apache Tribe, The Tonto Apache Tribe, The White Mountain Apache Tribe, and The Yavapai Apache Nation. The notices listed: (1) mother's name, identifying information, and identified the following Apache tribes: The Apache Tribe of Oklahoma, The Fort Sill Apache Tribe of Oklahoma, The Jicarilla Apache Nation, The Mescalero Apache Tribe, The San Carlos Apache Tribe, The Tonto Apache Tribe, The White Mountain Apache Tribe, and The Yavapai Apache Nation; (2) maternal grandmother's name, birthdate, the same Apache tribes listed in mother's information, and grandmother's date and place of death; (3) maternal grandfather's name, his current address, date and place of birth, and the same Apache tribes listed in mother's information. Much of maternal great-grandparents' identifying information was listed as "Unknown." The completed form stated, "[m]other does not know any information as to her maternal great-grandmother," and "[m]other does not know any information as to her paternal great-grandfather." The names of one maternal great-grandmother and one maternal great-grandfather were provided, along with the fact that maternal great-grandfather was born and died in Dumas, Arkansas. The same Apache tribes listed in mother's information were identified for all of the maternal great-grandparents. The notices also included the name of one alleged father. All paternal family information was listed as "Unknown."
The Department interviewed maternal grandfather in March 2019, but the record is silent concerning any ICWA inquiry made of him. The same month, mother completed an ICWA-020 Parental Notification of Indian Status form indicating she may have Apache ancestry.
The Department received letter responses to its Notice of Child Custody Proceeding from the Yavapai-Apache, Fort Sill Apache, Mescalero Apache, and Tonto Apache tribes in April 2019. The letters indicated the children were neither enrolled nor eligible to enroll in the tribes.
When the Department interviewed mother in April 2020, she provided no additional information regarding her claimed Indian ancestry. Mother also informed the Department she no longer had current contact information for maternal grandfather and that she was not in contact with her three siblings.
Because the Department had not received responses from The Apache Tribe of Oklahoma, The Jicarilla Apache Nation Tribe, The San Carlos Apache Tribe, and The White Mountain Apache Tribe, the Department sent additional notices to those tribes in August 2020 by email, certified mail, and fax, and by telephone. The same month, the San Carlos Apache Tribe reported the children were not eligible for membership in the tribe.
At a September 2020 status hearing, the juvenile court found ICWA did not apply as the children were in the home of the mother.
In an October 2020 Last Minute Information for the Court, the Department reported that the San Carlos Apache Tribe responded to its Notice and declared the children were not eligible for membership in the tribe. The Department's first- amended section 387 petition filed later that month included an Indian Child Inquiry Attachment. The attachment reflected mother "gave . . . reason to believe" the children might be Indian children. The Department checked off the item indicating it had contacted the tribes the children may be affiliated with.
When the Department interviewed mother again in December 2020, she reported she believed she was part Apache. The mother did not, however, have any further information about her biological family.
In March 2021, the Department received contact information for a maternal aunt, Meshia T., for possible placement. The Department attempted to contact her by phone and text message. A person responded saying he would let maternal aunt know the Department had called.
At the section 366.26 hearing in May 2022, the juvenile court ordered the Department to follow up with both parents' families regarding possible Indian ancestry "out of an abundance of caution."
In June 2022, the Department attempted to contact paternal grandmother and a paternal aunt. The paternal grandmother denied any Native American ancestry in her family. Paternal aunt did not return the Department's calls. The Department made several attempts in August 2022 to contact mother, maternal grandfather, maternal aunt (Meshia T.), and maternal uncle via phone and text message. The phone numbers were either disconnected or went directly to voicemail, and no one responded to the messages left.
At a September 2, 2022, hearing, the Department asked the juvenile court for a 30-day continuance to allow it to conduct "additional ICWA interviews and for adoption readiness." The juvenile court found there was no reason to know this was an ICWA case, but directed the Department to continue its ICWA investigation. The juvenile court also advised the parents to keep their attorneys, the Department, and the court aware of any updated information possibly relating to ICWA.
On September 26 and 27, 2022, the Department contacted mother by text message and phone. Mother stated she believed her Apache heritage was through maternal great-grandmother and she had no further information. Mother did not have a contact number for maternal grandfather and reported she had no contact with any other family member. Mother stated she already provided all she knew to the juvenile court regarding her possible Indian ancestry. Mother then ended the call and did not respond to the Department's further attempts to reach her.
When the Department reviewed the case searching for any other relatives and their contact information, it found a phone number for maternal grandfather. The number, however, was disconnected. The Department then tried another phone number for maternal grandfather, but a recorded message stated, ". . . your call cannot be completed as dial[ed]." The Department also twice called and text messaged maternal aunt (Meshia T.) and a maternal uncle, asking about possible Indian ancestry, but did not receive responses. The Department again sent ICWA notices to the BIA, the Secretary of the Interior, The Apache Tribe of Oklahoma, The Fort Sill Apache Tribe of Oklahoma, The Jicarilla Apache Nation, The Mescalero Apache Tribe, The San Carlos Apache Tribe, The Tonto Apache Tribe, The White Mountain Apache Tribe, and The Yavapai Apache Nation in September 2022 and submitted certified mail receipts for the notices.
In November 2022, the Department sent notice of termination of paternal rights and adoption for an Indian Child to The Apache Tribe of Oklahoma, The Fort Sill Apache Tribe of Oklahoma, The Jicarilla Apache Nation, The Mescalero Apache Tribe, The San Carlos Apache Tribe, The Tonto Apache Tribe, The White Mountain Apache Tribe, and The Yavapai Apache Nations, and submitted signed return receipts from the tribes to the juvenile court. The notices sent by the Department indicated Er.B. and Ez.B. might be eligible for membership in The Apache Tribe of Oklahoma, The Fort Sill Apache Tribe of Oklahoma, The Jicarilla Apache Nation, The Mescalero Apache Tribe, The San Carlos Apache Tribe, The Tonto Apache Tribe, The White Mountain Apache Tribe, and The Yavapai Apache Nations. Consistent with the information provided by mother and maternal family, the tribe and tribal membership were listed as "Unknown." The maternal great-grandparents' information was also listed as "Unknown."
In January 2023, the Department reported that after ICWA notices were sent to the tribes in September 2022, it followed up with phone calls and emails to the Apache Tribe of Oklahoma, Fort Sill Apache Tribe of Oklahoma, Jicarilla Apache Nation, Mescalero Apache Tribe, San Carlos Apache Tribe, and White Mountain Apache Tribe. The Department received responses from the Fort Sill Apache Tribe of Oklahoma, Tonto Apache Tribe, and the Yavapai-Apache Nation stating the children were not enrolled nor eligible for membership in their respective tribes. At the section 366.26 permanency planning hearing in January 2023, the juvenile court found there was no reason to know the children were Indian children as defined by the ICWA.
In March 2023, the juvenile court found Er.B and Ez.B. to be adoptable and terminated parental rights.
Mother timely appealed.
DISCUSSION
Mother's sole argument on appeal is that the order terminating parental rights must be conditionally reversed because the Department and the juvenile court failed to comply with their duties of inquiry under ICWA and related state statutes. We disagree.
I. Governing Principles 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.) "In any given case, ICWA applies or not depending on whether the child who is the subject of the custody proceeding is an Indian child." (In re Abbigail A. (2016) 1 Cal.5th 83, 90.)
Both ICWA and state statutory law define an "Indian child" as an unmarried minor 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); accord, § 224.1, subds. (a)-(b).) When a court "knows or has reason to know that an Indian child is involved" in "any involuntary proceedings in a State court," the agency seeking foster care placement of an Indian child is required to "notify the parent or Indian custodian and the Indian child's tribe . . . of the pending proceedings and of their right of intervention. . . . No foster care placement . . . proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary. . . ." (25 U.S.C. § 1912(a).)
""' ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal regulations implementing ICWA, however, require that state courts 'ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.' [Citation.] The court must also 'instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child."'" (In re Y.W. (2021) 70 Cal.App.5th 542, 551; see 25 C.F.R. § 23.107(a) (2021).) Additionally, state law "more broadly imposes on social services agencies and juvenile courts (but not parents) an 'affirmative and continuing duty to inquire' whether a child in the dependency proceeding 'is or may be an Indian child.'" (In re Benjamin M., supra, 70 Cal.App.5th at pp. 741-742; see § 224.2, subd. (a); In re Y.W., supra, at p. 551.)
"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 inquiry duty continues if a child is placed in the temporary custody of a county welfare department. (§ 224.2, subd. (b).) "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." (Ibid.) If this initial inquiry creates a "reason to believe" a child is an Indian child, the Department is required to "make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (§ 224.2, subd. (e); In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) If the further inquiry gives the Department a "reason to know" the child is an Indian child, then the formal notice requirements set forth in section 224.3 apply. (§§ 224.2, subd. (d), 224.3, subd. (a); In re D.S., supra, at p. 1052.) Alternatively, the juvenile court may find that a child is not an Indian child if the agency's "proper and adequate" inquiry and due diligence reveal no "reason to know" the child is an Indian child. (§ 224.2, subd. (i)(2); In re D.S., supra, at p. 1050.)
"We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence." (In re H.V. (2022) 75 Cal.App.5th 433, 438; but see In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004-1005 [applying a hybrid substantial evidence and abuse of discretion standard].) II. Analysis
The Department does not dispute that it failed to ask maternal grandfather about the family's heritage when it was in contact with him during the earlier part of the proceedings. It contends, however, that despite multiple efforts, it could not locate or make contact with maternal grandfather again nor could it make contact with any of the other maternal relatives.
We need not decide whether the Department's initial failure to ask maternal grandfather about the children's potential Indian heritage was error, where, as here, the Department repeatedly tried to obtain that information from maternal grandfather but was unable to do so. Instead, we will assume the ICWA inquiry was erroneous and decide whether that assumed error was harmless. "Where . . . the Department'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 by the Department 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 formulated numerous tests for deciding whether a defective initial inquiry is harmless. (See, e.g., In re Antonio R. (2022) 76 Cal.App.5th 421, 435 [most inquiry error is prejudicial and requires conditional remand for full compliance]; In re Benjamin M., supra, 70 Cal.App.5th at p. 744 [inquiry error is harmless unless "the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child" and the probability of obtaining meaningful information is reasonable]; In re A.C. (2021) 65 Cal.App.5th 1060, 1065, 1071 [error harmless unless parent makes proffer on appeal that further inquiry would lead to a different result].) Unless and until our Supreme Court resolves the matter, Division Four of this court will apply the rule our colleagues in Division Two of this court set forth in Dezi C: "[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, 79 Cal.App.5th at p. 779.)
Nothing in the record suggests a reason to believe the children are Indian children within the meaning of ICWA. Mother has not proffered additional evidence in her appellate filings. (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 deficiencies in the ICWA procedures were harmless.
DISPOSITION
The order is affirmed.
We concur: COLLINS, J., MORI, J.