Opinion
B332087 B332981 B333986
08-14-2024
In re S.R., a Person Coming Under the Juvenile Court Law. v. S.S., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, In re PRINCETON N. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.S., Defendant and Appellant.
John L. Dodd, 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NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County. Nos. 19LJJP00701A, 19LJJP00701B, 19LJJP00701BC Stephanie M. Davis, Judge.
John L. Dodd, 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.
GRIMES, J.
These consolidated appeals involve siblings Princeton N. and S.N. and their half sibling S.R. (together, the children). S.S. (mother) is mother to all three. The father of Princeton N. and S.N. is T.B. (N. father). S.R.'s father is deceased.
Mother challenges the juvenile court's order terminating her parental rights as to Princeton N. and S.N. and its legal guardianship order as to S.R. Her appeals raise only one issue: whether the juvenile court properly concluded it had no reason to believe any of the children is an Indian child within the meaning of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) before entering the challenged orders. This is the second time we have considered ICWA compliance in this case. (See In re S.R. (Oct. 12, 2021, B307302) [nonpub. opn.].) We again find no error.
We use the term "Indian" as it is defined in section 1903 of title 25 of the United States Code.
BACKGROUND
We limit our recitation of the facts to those relevant to the matter before the court.
Though S.R. was also the subject of prior dependency proceedings, this case began in 2019. In the detention report, mother and N. father claimed Indian heritage. They did not know which tribes but said they would obtain more information. (In re S.R., supra, B307302.)
Mother completed but refused to sign an ICWA-020 parental notification of Indian status form. On the form she wrote she might have" 'Cherokee and other'" Indian affiliations," 'but not sure of the tribe.'" (In re S.R., supra, B307302.) When the investigator from the Los Angeles County Department of Family and Child Services (Department) asked mother for information about maternal grandparents as part of the Department's inquiry, mother declined to provide any. (Ibid.)
N. father did not file an ICWA-020 form. (In re S.R., supra, B307302.) However, he told a Department social worker he was Native American:" 'Chief, Cheyenne, Cherokee.'" (Ibid.) Mother and father thereafter refused to cooperate with the Department in its investigation of their claimed Indian ancestry. (Ibid.)
With the limited information it had, the Department sent notices for the three children to three Cherokee Tribes, the Secretary of the Interior, and the Bureau of Indian Affairs (BIA). For Princeton N. and S.N., based on N. father's claims, the Department also sent notices to the Cheyenne Tribes. The notices listed names and birth dates for mother or mother and N. father, as applicable. They did not list any information for any other relatives. (In re S.R., supra, B307302.)
Two tribes responded to the Department's notices, the Cheyenne River Sioux and the Eastern Band of Cherokee Indians. The former reported that neither mother, N. father, nor S.N. was enrolled in the tribe. The latter reported that, based on the information provided, none of the children was registered or eligible to register as tribe members. (In re S.R., supra, B307302.)
In August 2020, at the dispositional stage of the case, the juvenile court concluded ICWA did not apply. Mother and N. father both appealed that decision and we affirmed. (In re S.R., supra, B307302.)
Subsequent to the August 2020 ICWA finding, the Department continued its efforts to ascertain whether any of the children has Indian ancestry. In January 2021, the Department sought additional information from mother and N. father, but "[t]he parents refused to acknowledge and reported that they would not provide [the Department] with any information, including names of any tribes or the names of anyone who may have information regarding whether or not they have Native American Ancestry." This was consistent with the typical futility of the Department attempting to communicate with the parents throughout the case. As the juvenile court noted at a hearing in October 2021, "every time the social worker spoke to the mother and the [N.] father . . ., [the Department] and [its] social workers have been met with hostility and aggressiveness with vulgar language and with complete and utter disrespect." This continued in April 2022, when the Department reported N. father behaving "nonsensical[ly]" and refusing to help the Department contact mother, who had broken off communication with the Department.
In October 2022, the Department again reported that ICWA did not apply and the parents had not been available for further inquiry. Around this time, S.R. was moved to the home of maternal aunt Gloria A., who was being considered for legal guardianship, while the other children remained in foster care. The juvenile court ordered an inquiry of all maternal and paternal relatives and for the Department to make "one last" attempt to interview mother and N. father about Indian ancestry.
In February 2023, Gloria A. told the Department her side of the family (maternal) had possible Indian ancestry but she did not know which tribe or through which ancestor. She promised to investigate herself. The social worker requested contact information for those with whom Gloria A. would inquire but Gloria A. refused, explaining the maternal great-aunt she intended to ask "hardly answers her telephone" and Gloria A. did not have contact information for N. father, his relatives, or any person related to S.R.'s father.
The same day, the social worker spoke with mother. Mother refused to give the social worker any information, including any contact information for S.R.'s father's relatives. The social worker also spoke with N. father, who denied knowledge of any Indian ancestry.
At a hearing a few days later, the juvenile court noted the Department's additional ICWA inquiry and asked counsel if they wanted to be heard on the matter. None did, and the court found no reason to believe any of the children have Indian ancestry.
Yet the Department thereafter continued its ICWA inquiry. In July 2023, it again asked mother about Indian ancestry, and she again refused to answer. In July and August 2023, the Department tried to reach N. father by phone "to no avail." But in July 2023, maternal aunt Gloria A. told the Department she believed her ancestors were from the Cherokee and Geechee Tribes. She provided names of some of her relatives: maternal great-aunts Beatrice S. and Gloria S., maternal great-greataunt Mary Louis R.R., and maternal great-great-great-aunt Beatrice R. She also provided birth dates for Beatrice S. and Mary Louis R.R. Again, maternal aunt told the Department she would make further inquiry with a maternal great-aunt (specified this time as Gloria S.) herself.
While the Department was unable to contact maternal great-aunt Gloria S. directly, it learned from maternal cousin Angel S. that Gloria S. had previously mentioned maternal great-aunt Beatrice S. had Indian ancestry and believed her family was part of the Cherokee Tribe. However, maternal aunt Gloria A. cast doubt on that report. Gloria A. had managed to speak to Gloria S. and Gloria S. stated she was unsure about any Indian heritage. Gloria A. promised to reach out to another relative and text the Department if she obtained any additional information. She later confirmed she was unable to obtain any additional information.
The Department's direct contact with three other relatives yielded no information of use.
S.R. was never able to contact any of her father's relatives and simply repeated what maternal aunt Gloria A. had said about Indian heritage on mother's side-that it was possible but uncertain and she could not identify a tribe.
In August 2023, the Department submitted it had complied with its ICWA inquiry obligations. Of the three possible tribal affiliations the family had suggested, the Department concluded Cheyenne and Cherokee were ruled out by the responses it received to its 2019 notices to the tribes. And the Geechee Tribe is not federally recognized, rendering it irrelevant to the Department's ICWA compliance obligations. Based on this record, the juvenile court found the Department had complied with ICWA as to S.R. and appointed maternal aunt Gloria A. to be S.R.'s legal guardian.
In December 2023, the juvenile court made the same findings of ICWA compliance as to Princeton N. and S.N. and terminated parental rights.
Mother, who had persistently refused to cooperate in the Department's efforts to conduct its ICWA inquiry, appealed these rulings to contend the Department's inquiry was inadequate.
DISCUSSION
1. Applicable ICWA Law and Standard of Review
In involuntary state court proceedings concerning child custody, such as these dependency proceedings, ICWA requires notice to the relevant Indian tribe "where the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a).) It is incumbent upon the court administering such a proceeding to inquire whether the subject child is an Indian child. The scope of the duty on the court, as well as certain participants in the proceeding (including county welfare departments, like the Department), is defined by federal regulations and related state law. (See, e.g., 25 C.F.R. § 23.107 (2024); Welf. &Inst. Code, § 224.2; Cal. Rules of Court, rule 5.481.)
Undesignated statutory references are to the Welfare and Institutions Code.
We describe the duty of inquiry as having up to three "phases" in any given case. The first phase-"initial inquiry"- applies in every case. In general terms, initial inquiry requires the court and county welfare departments like the Department to ask certain persons about the child's possible Indian ancestry. (See § 224.2, subds. (a), (b), (c); In re D.F. (2020) 55 Cal.App.5th 558, 566.)
Where "initial inquiry" gives "reason to believe" the child is an Indian child, but there is insufficient information to make a definitive determination, the second phase-"further inquiry"- comes into play. (§ 224.2, subd. (e)(2).) Further inquiry requires more robust investigation into possible Indian ancestry, including interviewing the parents and extended family members, contacting the BIA, and contacting the relevant tribe or tribes. (See ibid.; In re D.F., supra, 55 Cal.App.5th at p. 566.)
Where, as a result of further inquiry or otherwise, the juvenile court has "reason to know" a child is an Indian child, the third phase is triggered. This phase requires notice to ICWA be sent to the applicable tribe or tribes so as to facilitate their participation in the proceedings. (§ 224.3, subd. (a)(1); In re D.F., supra, 55 Cal.App.5th at p. 568.)
"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 court and county welfare department "have an affirmative and continuing duty" to inquire whether a child for whom a petition under section 300 may be or has been filed may be an Indian child. (§ 224.2, subd. (a).)
Mother claims error in both the first and second phases of inquiry. She complains the Department failed to satisfy its obligations under Welfare and Institutions Code section 224.2, subdivision (b) to inquire with the children's statutorily defined "extended family members." (Ibid.; see also 25 U.S.C. § 1903(2); § 224.1, subd. (c).) And she complains the Department failed to satisfy its obligations under section 224.2, subdivision (e) to further inquire based on "information suggest[ing] eligibility in the Cherokee tribe" it obtained from extended family members it did interview.
The juvenile court's finding that ICWA does not apply implies that (a) neither the Department nor the court had a reason to know or believe the child was an Indian child; and (b) the Department fulfilled its duty of inquiry. (In re Josiah T. (2021) 71 Cal.App.5th 388, 401.) Some courts review both such findings for substantial evidence (see ibid.), while others review the former for substantial evidence and the latter for abuse of discretion (see In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004).
Regardless of the proper standard of review, the errors mother claims are of state law, so they are reversible only if shown to be prejudicial. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.), citing Cal. Const., art. VI, § 13.)
2. Analysis
Mother has not even tried to show prejudice. Rather than try to show prejudice, mother asks us to follow those cases holding that ICWA inquiry errors are prejudicial per se. While the proper standard of prejudice is the subject of considerable disagreement and currently under review by our Supreme Court (In re Dezi C. (2022) 79 Cal.App.5th 769, review granted Sept. 21, 2022, S275578), a majority of this court has already rejected the per se standard in In re M.M. (2022) 81 Cal.App.5th 61, 71, review granted October 12, 2022, S276099. We reiterate that rejection here.
Mother's legal argument for reversible error aside, she makes no effort to show prejudice under any other standard. She therefore fails to carry her burden to show reversible error and we must affirm. (See In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 ["Injury is not presumed from error, but injury must appear affirmatively upon the court's examination of the entire record. 'But our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a "miscarriage of justice."' "].)
Even if mother had attempted to show prejudice, it is unlikely she would have been successful under any of the other ICWA inquiry prejudice standards. "Some courts have . . . requir[ed] an appellant who asserts a breach of the duty of inquiry to, at a minimum, make an offer of proof or other affirmative assertion of Indian heritage on appeal." (In re S.S. (2022) 75 Cal.App.5th 575, 581-582, citing cases.) The Fourth Appellate District in Benjamin M., supra, 70 Cal.App.5th 735 concluded that prejudice is shown by record evidence "that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Id. at p. 744.) Division Two of this court suggested initial inquiry errors require reversal only when the record of proceedings in the juvenile court or a proffer of evidence made on appeal suggests a "reason to believe" further inquiry would lead to a different result. (In re Dezi C., supra, 79 Cal.App.5th at p. 779, review granted.)
Here, none of these standards is satisfied. The record reflects that the Department made substantial and persistent efforts to ascertain whether the children were Indian children from the outset of the case, and the juvenile court was attentive to those efforts and encouraged them, while recognizing the challenges the Department faced in obtaining information from the family.
Mother's claimed initial inquiry error centers on the Department's reliance on maternal aunt, Gloria A., to interface with other extended family members instead of making the inquiry directly with them. Assuming this was error-and the record suggests otherwise, as Gloria A. "declined" to share necessary contact information with the Department (see, e.g., In re H.B. (2023) 92 Cal.App.5th 711, 720)-there is no suggestion that the Department would have received different or better information from those relatives Gloria A. spoke to than Gloria A. did. The extreme levels of antipathy and distrust parents showed the Department suggest the Department was fortunate to receive cooperation from any extended family member, and all the more so one willing to communicate with other extended family members who were otherwise reluctant to help (such as the maternal great-aunt who "hardly answers her telephone").
Nothing in the record suggests additional inquiry with extended family members might have shed meaningful light on whether the children are Indian children. Mother does not claim there was more information available on the paternal side for any of the children. She focuses only on the possibility of additional information on the maternal side. But the information the Department obtained from the several family members it did interview was the same: there might be Cherokee heritage, but no one could say for sure (mother does not contend more inquiry was necessary about possible heritage in the nonfederally recognized Geechee Tribe). This was true since the start of the case, when mother completed her form ICWA-020. And despite the Department's many attempts to get additional information- including from mother, who refused to help, various extended family members, and three Cherokee Tribes-there was never any confirmation or concrete evidence that the children were Indian children. There was just more unsubstantiated family speculation.
Mother contends the Department was obligated to conduct "further inquiry" based on reassertions of the same speculation about Cherokee heritage that prompted the Department to contact the BIA, Secretary of the Interior, and Cherokee Tribes in 2019. Mother has made no comprehensible claim that any of the other four maternal relatives Gloria A. named might have additional information Gloria A. had not already obtained and relayed to the Department. Further, she fails to explain how the Cherokee Tribes would have been able to ascertain more from this information than they were in 2019.
Finally, mother does not make any offer of proof that more inquiry would have led to a finding of Indian heritage.
DISPOSITION
The juvenile court's orders, including its finding with respect to the children's Indian heritage, are affirmed.
WE CONCUR: STRATTON, P. J., WILEY, J.