Opinion
B327383
10-19-2023
In re C.G., a Person Coming Under the Juvenile Court Law. v. L.G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Nos. 20CCJP01435, 20CCJP01435B, Kristen Byrdsong, Judge Pro Tempore. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
COLLINS, J.
Mother L.G. appeals from a juvenile court order terminating her parental rights to her daughter, C.G., under Welfare and Institutions Code section 366.26. She contends the order must be conditionally reversed and the matter remanded because the Los Angeles County Department of Children and Family Services (DCFS) 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 further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
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.
Mother gave birth to C.G. in Idaho in late 2020. C.G.'s alleged father, M.T., was not present for the birth or named on the birth certificate. DCFS was unable to locate M.T. during the pendency of this case, and he is not a party to this appeal.
Mother and C.G. were both sexually assaulted in Idaho in late 2021. They moved to the Los Angeles area a few weeks later. C.G. came to the attention of DCFS in early January 2022 after mother met a stranger at bar and took C.G. to that person's home. Mother subsequently suffered "loss of awareness" and was unsure if she or C.G. had been abused while she was unconscious. While seeking medical attention for that incident, mother disclosed the similar Idaho incident.
DCFS detained C.G. on January 7, 2022 pursuant to an expedited removal order. It filed a section 300 dependency petition a few days later. In the petition, DCFS represented that it had asked mother about her Native American heritage. DCFS also noted in a detention report dated January 12, 2022 that "mother advised The Indian Child Welfare Act does not apply as to this child." At the detention hearing on January 14, 2022, mother submitted an ICWA-020 form indicating that she had no Native American ancestry. The court found there was no reason to believe ICWA applied "via mother's lineage." The court ordered mother to keep her counsel, DCFS, and the court informed of any new information relating to possible ICWA status.
In a jurisdiction/disposition report filed on February 14, 2022, DCFS reported that it contacted maternal grandfather (MGF) and "his female companion," "Step MGM," also referred to in the record as Joyce. There is no indication that DCFS asked MGF or Step MGM about mother's or C.G.'s potential Native American ancestry at that time. DCFS also failed to make any inquiry of M.L., the father of C.G.'s half sibling. DCFS attached to the report a form from C.G.'s sexual assault examination in Idaho on which C.G.'s ethnicity was reported as "Portuguese, Caucasian."
The court held a jurisdiction and disposition hearing on March 22, 2022. The court dismissed two allegations under section 300, subdivisions (a) and (d) but sustained five others under section 300, subdivisions (b), (d), and (j). The court declared C.G. a dependent and removed her from mother. It ordered reunification services for mother; her case plan noted that ICWA did not apply.
In August 2022, DCFS completed a concurrent planning assessment for C.G. In that assessment, DCFS reported that it "located the [biological] MGM and the mother [sic] adult siblings who informed the Department of not being interested in the care of the child." There is no indication that DCFS asked these unnamed individuals if the family had any Native American heritage.
On October 5, 2022, in advance of the six-month review hearing, DCFS filed a last-minute information. It reported that a children's social worker (CSW) had again spoken to MGF and Step MGM and "inquired if mother [ ] or the family has any Indian Heritage." The last-minute information referred to Step MGM by both her full name and "maternal grandparent," without explicitly indicating that she was C.G.'s step grandmother. It continued, "Joyce reported mother is Portuguese. She stated they are not Indian; they do not have any family that have lived on tribal land. They do not have any family that is registered with a tribe. She stated maternal grandfather [ ] is Portuguese and he is not aware of his family having any Indian Heritage. She reported she would talk to [MGF] and call the CSW back. On the same day Joyce sent text informing CSW she spoke to [MGF] who denied there [sic] ICWA status and further reported never [sic] heard anyone in the family talking about it." The last-minute information also stated that DCFS asked mother about possible Native American heritage on September 22, 2022. At that time, mother "reported her father is German and English," "she is Portuguese," and "she does not have any Indian Heritage."
The court held a contested review hearing on October 18, 2022; mother was not present. During the hearing, counsel for DCFS apprised the court of the last-minute information. He stated, "mother was interviewed, she denied any Native American heritage and indicated that her parents were both foreign in ethnicity as the Department was able to confirm with maternal grandmother [sic]. She denied that there was any Native American heritage on her side or the maternal grandfather's side, after speaking with maternal grandfather. It appears that the family is entirely European and Portuguese in descent. So with that, I'd ask for a finding that there's no reason to note that ICWA applies." The court made the requested finding that there was no reason to believe that ICWA applied to the case. After finding that mother failed to comply with her case plan despite the "above and beyond" efforts by DCFS, the court terminated mother's reunification services and set the matter for a section 366.26 hearing.
On January 31, 2023, DCFS filed a section 366.26 report. It reported that it again spoke to "the MGF's wife," Step MGM, on January 30, 2023 "and inquired as to Native American ancestry for the child." Step MGM stated, "Not that I know, and we looked into it and there doesn't seem to be any." DCFS also re-reported that it had discussions about Native American heritage with MGF, Step MGM, and mother in September 2022.
This time, the summary of the conversation with Step MGM stated, "Joyce reported mother (MGM) is Portuguese. She stated they are not Indian; they do not have any that have lived on tribal land. They do not have any family that is registered with a tribe. She stated maternal grandfather [ ] is Portuguese and he is not aware of his family having any Indian Heritage." DCFS requested that the court make an updated ICWA finding, specifically that "there continues to be no reason to know that ICWA applies."
At the section 366.26 hearing on February 14, 2023, counsel for DCFS asked the court to make "a continued finding as to ICWA." Counsel stated, "on January 30[, 2023,] the Department did provide statements that were reflected in the .26 report wherein the maternal grandmother [sic] indicated that she is Portuguese and did not have any Native American ancestry. Also, the maternal grandfather indicated that he was English and German. Therefore, in conjunction with mother's prior denial of Native American heritage, on September 2nd [sic], and also given that father has yet to make an appearance and has been whereabouts unknown throughout the case, I'd ask the court to find that there's no reason to note [sic] that ICWA applies to this case." Without comment from any other counsel, the court found "there's no reason to believe that ICWA applies to this case." The court ultimately found by clear and convincing evidence that returning C.G. to mother would be detrimental, that C.G. was adoptable, and that no exception to adoption existed. It accordingly terminated mother's and alleged father M.T.'s parental rights.
Mother timely appealed.
DISCUSSION
Mother's sole argument on appeal is that the order terminating parental rights must be conditionally reversed because DCFS and the court failed to comply with their duties of inquiry under ICWA and related state statutes. We disagree.
I. Legal Principles
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. (2021) 70 Cal.App.5th 735, 741-742; see § 224.2, subd. (a); In re Y.W., supra, 70 Cal.App.5th 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, DCFS 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 DCFS 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, 46 Cal.App.5th 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, 46 Cal.App.5th 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
Mother contends the juvenile court and DCFS failed to fulfill their inquiry duties under section 224.2, subdivision (b). Specifically, she asserts DCFS failed to make any ICWA inquiry of the biological maternal grandmother and mother's adult siblings. She further asserts that "the oversight was further concealed by imprecise reporting," namely the last-minute information and in-court remarks that identified Step MGM Joyce as a "maternal grandparent." DCFS does not dispute that it failed to ask maternal grandmother and mother's siblings about the family's heritage. It contends that its inquiry was adequate in light of the information provided by mother, MGF, and Joyce, and that any error is harmless given that information.
Mother does not argue that DCFS erred by failing to ask the father of C.G.'s half-sibling about her heritage.
We will assume for purposes of this appeal that DCFS had a duty to comply with section 224.2, subdivision (b) even though C.G. was detained pursuant to an expedited removal order."[T]he initial duty of inquiry mandated by California's version of ICWA obligates the Department to question 'extended family members' about a child's possible American Indian heritage.'" (In re Dezi C. (2022) 79 Cal.App.5th 769, 776 (Dezi C.), review granted Sept. 21, 2022, S275578; § 224.2, subd. (b).) Mother's biological mother and siblings are C.G.'s extended family and were available to provide information on possible Indian ancestry, but there is no indication that DCFS broached the topic with them. This was error.
The Supreme Court is currently considering the following issue: "Does the duty of a child welfare agency to inquire of extended family members and others about a child's potential Indian ancestry apply to children who are taken into custody under a protective search warrant?" (See In re Ja. O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023, S280572; In re Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743.)
"Where, as here, there is no doubt that 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." (Dezi C., supra, 79 Cal.App.5th at p. 777.)
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 any reason to believe that C.G. is an Indian child. Mother, MGF, and Step MGM consistently and repeatedly informed DCFS and the juvenile court that C.G. had exclusively European heritage. Mother made the same representations on a medical form in Idaho prior to the initiation of this case. Moreover, there is no indication that the erroneous references to Step MGM as a "maternal grandparent" had any effect on the issue. Instead, the record shows that Step MGM provided the same information as mother and MGF, and also consulted with MGF to confirm the information she provided. 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: CURREY, P.J. MORI, J.