Opinion
B331584
04-23-2024
In re A.J., a Person Coming Under the Juvenile Court Law. v. N.C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, 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NOT TO BE PUBLISHED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. 19CCJP05380C Charles Q. Clay III, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Defendant and appellant N.C. (father) appeals from the juvenile court's September 7, 2023, order terminating his parental rights to A.J. (minor, born Jan. 2021). Father's sole contention is that the court and the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California law.
Finding any error harmless, we affirm.
Because ICWA error is the only issue raised in this appeal, our summary of the procedural history and facts focuses on matters related to ICWA compliance.
Prior ICWA Findings
Before minor was born, his mother, Y.Q. (mother),
Mother is not a party to this appeal.
]
was involved in dependency cases regarding her older children.
In a case involving maternal half-sibling Matthew Q., a detention report from December 2010 indicated that mother had denied "Native American Indian Heritage." On December 28, 2010, the juvenile court in that case found that ICWA did not apply as to mother.
In dependency proceedings in 2019 concerning maternal half-sibling Genesis Q. (Genesis), mother again "denied having any Indian ancestry[,]" and the juvenile court found it had no reason to know that an Indian child was involved.
Instant Dependency Petition
In November 2021, DCFS filed a Welfare and Institutions Code section 300 petition seeking the juvenile court's exercise of dependency jurisdiction over minor and Genesis. An ICWA-010(A) form attached to the petition indicated that, on September 29, 2021, DCFS questioned father and mother and the inquiry provided no reason to believe that minor "is or may be an Indian child."
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Genesis is not father's child and is not the subject of this appeal.
Detention Report
According to the detention report, father and mother had both "denied any American Indian [a]ncestry." The report further noted that the juvenile court had found that ICWA did not apply in Genesis's prior dependency case.
DCFS reported having contact with maternal grandmother, Maria S. (maternal grandmother), and maternal great-aunt, Rosie C. (maternal great-aunt), in September 2021, and with paternal grandmother, A.C. (paternal grandmother), in October 2021. In October 2021, mother reported that father was living with an uncle in Los Angeles, but she did not provide contact information.
Detention Hearing
At the detention hearing on November 12, 2021, both mother and maternal grandmother appeared, but father did not. Mother's attorney represented that mother did not "claim any Native American heritage[.]" The juvenile court noted that a prior "no-ICWA-finding" had been made in the family's previous dependency case. The court found it had no reason to know that ICWA applied with respect to mother. The court deferred an ICWA finding as to father pending his appearance.
Jurisdiction/Disposition Report
On December 17, 2021, the dependency investigator asked both father and mother about "any Native American [a]ncestry ...." Both denied having such ancestry.
Mother reported that she was born in Rosario Santa Fe, Argentina. Her biological father was unknown and had never been involved in her life. She had two younger maternal half-siblings.
Father reported being raised by paternal grandmother and that he had relationships with both his parents. Father had five siblings on his mother's side and "too many" half-siblings on his father's side.
Arraignment
Father appeared for arraignment on December 30, 2021. The juvenile court noted that father had completed a Parental Notification of Indian Status (ICWA-020) form denying Native American heritage. Father's attorney confirmed that was correct.
Based on father's ICWA-020 form, the court found that ICWA did not apply as to father because there was no reason to know that it applied.
In his ICWA-020 form filed on December 30, 2021, father denied any of the indicators of "Indian Status" (bolding omitted).
Adjudication
On February 10, 2022, the juvenile court sustained an amended section 300 petition. On May 11, 2022, the court declared minor a dependent of the court and removed him from parental custody.
Family Reunification Period
On September 28, 2022, mother again reported that "she did not have any American Indian ancestry." The same day, maternal grandmother also reported "that mother did not have any American Indian ancestry." On October 31, 2022, father denied "Native American [a]ncestry[.]"
Both maternal grandmother and paternal grandmother appeared in the juvenile court on November 16, 2022. On November 18, 2022, minor was placed with maternal grandmother and the maternal step-grandfather. DCFS made contact with paternal grandmother on December 13, 2022.
The juvenile court terminated family reunification services for the parents on January 20, 2023.
Section 366.26 Hearing
At the section 366.26 hearing on September 7, 2023, the juvenile court terminated father's and mother's parental rights to minor.
Appeal
Father's timely appeal ensued.
Father's parental rights to minor's full sibling, M.J. (born Apr. 2022), were terminated on July 21, 2023. Father filed a separate appeal concerning M.J. (In re M.J. (Apr. 23, 2024, B331299 [nonpub. opn.].)
DISCUSSION
I. Applicable Law
"ICWA was enacted to curtail 'the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement' [citation], and 'to promote the stability and security of Indian tribes and families by establishing . . . standards that a state court . . . must follow before removing an Indian child from his or her family' [citations]." (In re Dezi C. (2022) 79 Cal.App.5th 769, 780 (Dezi C.), review granted Sept. 21, 2022, S275578.)
An "'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 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); see also § 224.1, subd. (a) [adopting federal definition].)
Under California law enacted to implement ICWA, DCFS and the juvenile court have "three distinct duties . . . in dependency proceedings." (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) The first is the initial duty of inquiry, which DCFS "discharges . . . chiefly by 'asking' family members 'whether the child is, or may be, an Indian child.' ([§ 224.2], subd. (b).) This includes inquiring of not only the child's parents, but also others, including but not limited to, 'extended family members.' [Citation.] For its part, the juvenile court is required, '[a]t the first appearance' in a dependency case, to 'ask each participant' 'present' 'whether the participant knows or has reason to know that the child is an Indian child.' ([§ 224.2], subd. (c).)" (Dezi C., supra, 79 Cal.App.5th at p. 780; see also Cal. Rules of Court, rule 5.481(a)(1)-(2).) The second duty-the duty of further inquiry-is triggered if there is "reason to believe that an Indian child is involved" (§ 224.2, subd. (e)), while the third duty-to notify the relevant tribes-is triggered if there is "reason to know . . . that an Indian child is involved" (§ 224.3, subd. (a)).
Here, father only challenges compliance with the initial duty of inquiry, so the duties of further inquiry and notice are not at issue.
Numerous appellate courts have weighed in on the consequence, in an appeal from an order terminating parental rights, of a social services agency's failure to conduct the required initial ICWA inquiry. This has resulted in "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 also Dezi C., supra, 79 Cal.App.5th at pp. 777-778.)
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.)
II. Standard of Review
"On appeal, we review the juvenile court's ICWA findings for substantial evidence. [Citations.] But where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied. [Citation.]" (In re D.S., supra, 46 Cal.App.5th at p. 1051.)
III. Analysis
During the course of this dependency case, DCFS reported contact with paternal grandmother and a maternal great-aunt. The record is silent, however, as to whether DCFS asked these extended family members about minor's possible Indian ancestry. We interpret this silence to mean that DCFS did not conduct such inquiries. (See In re K.R. (2018) 20 Cal.App.5th 701, 709; In re N.G. (2018) 27 Cal.App.5th 474, 484.) Additionally, DCFS was informed that father had a relationship with minor's paternal grandfather and that both father and mother had numerous siblings. As father correctly observes, the record does not reflect efforts by DCFS to locate these family members in order to make ICWA-related inquiries. DCFS thus failed to discharge its initial duty of inquiry. (See § 224.2, subd. (b) [requiring DCFS to question "'extended family members'" about possible Indian ancestry]; Dezi C., supra, 79 Cal.App.5th at pp. 776-777.)
While DCFS does not concede that ICWA error occurred, it does not contend that it attempted to interview these extended family members regarding minor's possible Indian ancestry.
Having found ICWA error, "our examination as to whether substantial evidence supports the juvenile court's ICWA finding . . . turn[s] on whether that error . . . 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.]" (Dezi C., supra, 79 Cal.App.5th at p. 777.)
Applying the "'reason to believe' rule" that we adopted in Dezi C., supra, 79 Cal.App.5th at page 779, we conclude that DCFS's failure to make the requisite inquiries of minor's extended family members was harmless because nothing in the record suggests a reason to believe that minor is an Indian child within the meaning of ICWA. Both father and mother repeatedly denied Indian ancestry. Maternal grandmother also reported that mother did not have Indian ancestry. Juvenile courts twice made findings that ICWA did not apply in dependency cases involving minor's maternal half-siblings. And, father makes no proffer on appeal that he or mother have any Indian heritage.
Without any reason to believe that minor may be an Indian child, remand for additional ICWA inquiry is unwarranted. (See Dezi C., supra, 79 Cal.App.5th at p. 786.)
DISPOSITION
The order terminating parental rights is affirmed.
We concur: LUI, P. J. CHAVEZ, J.