Opinion
B332229
07-30-2024
In re KIMBERLY G., a Person Coming Under Juvenile Court Law. v. TERESA V., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 22CCJP04134 Philip L. Soto, Judge.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, standard 8.1.
In 2022, respondent Los Angeles County Department of Children and Family Services (DCFS) filed a petition on behalf of newborn Kimberly G., the daughter of appellant Teresa V. (Mother), under Welfare and Institutions Code section 300, subdivisions (b)(1) and (j). The juvenile court sustained the petition, leading to dependency proceedings based primarily on Mother's illicit drug and alcohol abuse. Kimberly's two older siblings "are former dependents of the juvenile court and received permanent placement services due to . . . [M]other's substance abuse." (Capitalization omitted.) At an October 2, 2023 permanency planning hearing, the court found that the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) did not apply to Kimberly, terminated Mother's parental rights, and designated Kimberly's caregivers as the prospective adoptive parents. Mother appeals from the order terminating her parental rights on the sole basis that DCFS did not comply with its duty under ICWA and California implementing legislation (§ 224 et seq.) to inquire regarding whether Kimberly is an Indian child. We conclude that any such error was not prejudicial and, accordingly, affirm.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
The record is unclear as to whether the siblings were placed in legal guardianship or adopted at the conclusion of these dependency proceedings. The siblings are now in the custody of maternal grandmother, and some portions of the record suggest she adopted them.
DCFS's inquiry as to Kimberly's ancestry consisted of the following: Mother filed a parental notification of Indian status form (Judicial Council Forms, form ICWA-020) disavowing knowledge that Kimberly has Indian ancestry. In an interview with DCFS several months later, Mother again denied knowledge of any Indian ancestry. When a DCFS social worker spoke with the maternal grandmother, she likewise denied knowledge of any Indian ancestry. Kimberly's nonrelative caregiver also denied knowledge of any Indian ancestry. Because Mother identified Kimberly's father solely by his first name and his whereabouts were unknown, DCFS could not inquire of father or any paternal relatives regarding possible Indian ancestry.
DISCUSSION
Under ICWA, in any "proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe . . . have a right to intervene" (25 U.S.C. § 1911(c)) and may petition the court to invalidate an order terminating parental rights over an Indian child. (25 U.S.C. § 1914; see § 224.2, subd. (e).) ICWA defines an" 'Indian child'" as "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 § 224.1, subd. (a).) When DCFS files a petition under section 300 concerning a child, it has "an affirmative and continuing duty to inquire whether [the] child . . . is or may be an Indian child" within the meaning of ICWA. (§ 224.2, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 9.)" 'The duty to inquire consists of two phases-the duty of initial inquiry and the duty of further inquiry.' [Citation.]" (In re C.L. (2023) 96 Cal.App.5th 377, 384.)
On appeal, Mother argues that DCFS's efforts were insufficient to satisfy the initial duty of inquiry under ICWA and California implementing legislation because DCFS did not ask the maternal aunt or the maternal great-grandmother about Kimberly's ancestry. Both of these extended relatives were in the hallway outside the courtroom during the December 2022 adjudication and disposition hearing and participated in that hearing by telephone. Mother argues that DCFS thus easily could have made contact with these additional extended relatives and inquired regarding Kimberly's ancestry.
Even assuming, without deciding, that DCFS failed to comply with its initial inquiry duty by failing to interview the extended family members Mother identifies, any inquiry error here was harmless. Appellate courts have adopted a range of tests for examining prejudice arising from ICWA inquiry error (see In re S.H. (2022) 82 Cal.App.5th 166, 175-176 [describing five different tests for analyzing prejudice]), but this division has held such error reversible only if" 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citations.]" (In re S.S. (2022) 75 Cal.App.5th 575, 581 (S.S.).) In assessing prejudice, we look to whether" 'the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.'" (Id. at p. 582, quoting In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.) "[T]he focus of the court's analysis" regarding ICWA findings "should not be on the number of individuals interviewed, but on whether the agency's ICWA inquiry has yielded reliable information about a child's possible tribal affiliation." (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1009 (Ezequiel G.).) Here, social workers interviewed Mother, who confirmed her prior written representation that she was not aware of any Indian ancestry, as well as maternal grandmother, who likewise denied knowledge of such ancestry. We are unpersuaded by Mother's conjecture that other maternal relatives might have possessed contrary information of which Mother and maternal grandmother were not aware establishing that Kimberly "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 § 224.1, subd. (a).) Our conclusion in this regard is bolstered by the fact that nothing in the record suggests Mother was estranged from the relatives she identifies, a fact that would increase the likelihood they have information of which Mother is not aware. (In re Darian R. (2022) 75 Cal.App.5th 502, 509-510.) And the record affirmatively shows Mother had contact with other maternal extended family members, in that she "stated . . . the maternal great grandmother is her support." Our conclusion is further bolstered, although to a lesser extent, by the fact that Kimberly's siblings were the subject of separate dependency proceedings lasting long enough for the siblings to have received "permanent placement services." (See ibid.) Thus, it is highly likely that the maternal family ancestry Kimberly shares with these siblings has already been the subject of at least some juvenile court and DCFS inquiry, even if the current record does not reflect what those efforts were.
Mother does not argue that DCFS failed to sufficiently inquire of paternal extended relatives or potential Indian ancestry on the paternal side. Nor could she establish any reversible error resulting from a failure to do so, as DCFS had no information about who or where Kimberly's father or any of his family is, and thus any such information was not" 'readily obtainable.'" (S.S., supra, 75 Cal.App.5th at p. 582.)
See § 224.2, subd. (a) [court and agency's "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. (c) ["At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child"].
The fact that Mother can identify additional maternal relatives who were potentially available to speak with DCFS does not render the responses of the maternal family members DCFS did interview insufficient to facilitate a "reliable, informed determination concerning whether the child is or may be an Indian child." (In re K.H. (2022) 84 Cal.App.5th 566, 609; see ibid. ["for the purpose of assessing prejudice, the focus is on the missed opportunity to uncover relevant information necessary to make" such determination].) Mother "do[es] not explain how not interviewing additional relatives . . . casts any doubt on the reliability of the answers already obtained from [her] and [maternal grandmother]." (In re E.W. (2023) 91 Cal.App.5th 314, 323.) In short, "[n]othing in the record gives us a reason to doubt the accuracy [or sufficiency] of [Mother's and maternal grandmother's] denial that they or [Kimberly] were members of or eligible for membership in an Indian tribe." (Ezequiel G., supra, 81 Cal.App.5th at p. 1015.) Thus, there is no reason to believe inquiring of additional maternal relatives is" 'likely to bear meaningfully upon whether [Kimberly] is an Indian child.'" (S.S., supra, 75 Cal.App.5th at p. 582.)
DISPOSITION
The order is affirmed.
We concur: WEINGART, J. KELLEY, J. [*]
[*] Judge of the San Luis Obispo Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.