Opinion
B320482
06-29-2023
In re ERNEST R., a Person Coming Under the Juvenile Court Law. v. T. R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20CCJP04997A, Kristen Byrdsong, Judge Pro Tempore. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
HOFFSTADT J.
In this appeal from the juvenile court's denial of a mother's petition to award her reunification services, the mother argues that (1) the court erred in denying her petition, (2) the visitation order the court simultaneously entered is defective, and (3) the court has not fully complied with our state's broader version of the federal Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) (Welf. &Inst. Code, § 224.2, subd. (b)). Mother's arguments lack merit, so we affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Mother's pertinent background
Mother has suffered from mental health issues for "years." Those issues include experiencing auditory hallucinations, having paranoia, and being diagnosed with a "Psychotic Disorder Unspecified NOS."
Mother has several children, two of whom are relevant to this appeal: Queen M. (born 2017) and Ernest R. (born 2019).
B. Mother's parental rights over Queen are terminated
In April 2017, the Los Angeles Department of Children and Family Services (the Department) filed a petition asking the juvenile court to exert dependency jurisdiction over Queen because mother's mental health issues detailed above rendered her "incapable of providing regular care" for Queen and placed Queen "at risk of serious physical harm." The court exerted jurisdiction, removed Queen from mother, and ordered the Department to provide mother with reunification services. In March 2018, the court terminated mother's reunification services.
In 2020, the juvenile court terminated mother's parental rights over Queen. Queen was adopted in April 2021.
C. Ernest's early life
By September 2020, when Ernest was 20 months old, mother had been living in a roadside motel for "some months."
While there, mother repeatedly exhibited "erratic" behavior borne of her mental illness. Specifically, she would "constantly" "scream[], yell[] and talk[] to herself"; about four to five times a week, she would stand outside her motel room-while leaving Ernest inside and unsupervised for "an hour or longer"-to "yell[] about people trying to kill her and her son"; and she would claim to be the victim of "conspiracy theories and people envies." On one occasion, she accused a neighbor of causing an earthquake.
Mother's behavior at times erupted into physical aggression and threats to cause bodily harm to others. She would "bang[]" on the walls of her motel room and would "beat[] on the railing" outside the room with a baseball bat. She once "chased a 14- year-old child around the motel for unknown reasons," and once chased a neighbor while threatening to decapitate her.
Although mother had yet to physically harm Ernest and neighbors reported that he appeared to be "healthy" and "happy," mother sometimes placed him at risk of physical harm by using him as a "shield" when neighbors confronted her about being "aggressive" and she once threatened to "beat" his "mother fucking ass." She also placed him at risk of emotional harm: Mother often shouted and screamed at Ernest, once calling him a "punk bitch motherfucker!"; neighbors also heard Ernest "screaming bloody murder" every night in the motel room he shared with mother. Ernest was also "developmentally behind."
When the Department interviewed mother at the motel the day after it received a report about mother's behavior toward Ernest, mother was "not lucid" (despite appearing to be sober). Particularly, mother told the social worker that she was a "'singer, actress, and dancer,'" that she had personal friendships with "'various politician[s] and congressm[e]n'" and "had been offered a study-teaching position at the University of Michigan," that "someone ke[pt] trying to steal her breastmilk for other kids," and that her neighbors were "constantly hitting her wall and saying bad things to her" and Ernest.
II. Procedural Background
A. Petition and detention of Ernest
On September 22, 2020, the Department filed a petition asking the juvenile court to exert dependency jurisdiction over Ernest on two grounds: (1) that mother's history of mental and emotional illness-specifically, her "paranoia, auditory hallucinations and [psychotic disorder] diagnosis"-rendered her "unable to provide regular care and supervision" and therefore "endanger[ed]" Ernest's "physical health and safety" and placed him at "substantial risk of serious physical harm" (under subdivision (b) of Welfare and Institutions Code section 300); and (2) that Ernest's older sibling, Queen, was at that time a dependent of the juvenile court and was receiving permanent placement services due to mother's "mental and emotional problems" (under subdivision (j) of Welfare and Institutions Code section 300).
When the Department encountered mother eight days later and sought to take custody of Ernest pursuant to a protective custody warrant issued by the juvenile court, mother tried to evade service of the warrant by "r[unning] into incoming traffic" while holding Ernest. Mother "displayed irrational behaviors" when speaking with a Department social worker in November 2020, and thereafter avoided contact with the Department until the end of January 2021.
B. Exertion of dependency jurisdiction
On March 8, 2021, the juvenile court held the jurisdictional hearing for Ernest, and sustained both allegations in the Department's petition.
On April 5, 2021, the juvenile court held the disposition hearing. The court removed Ernest from mother's custody, but elected not to order reunification services for mother on two statutory grounds-namely, (1) that mother had "not made a reasonable effort to treat the problems" leading to the earlier termination of reunification services, and (2) the termination of parental rights over a sibling (under subdivisions (b)(10) and (b)(11), respectively, of Welfare and Institutions Code section 361.5). The court nevertheless ordered monitored visitation for mother, but its order did not specify the duration or frequency of those visits.
When mother asked the court which issues would be "necessary" for her to address before filing a section 388 petition to modify the court's orders, the court (1) cited several instances of mother's non-lucid statements and erratic behavior, and (2) replied that mother "would need to show that she's actually been able to address those case issues" (italics added).
Ernest was placed with Ms. W. and Mr. S. on September 30, 2020, and has remained with them. He is "well bonded" with the caregivers and their children, and appears to be "happy and thriving." He participated in occupational and physical therapy, as well as mental health services, but continued to have "sensory issues," to experience "sleep disturbances" that would wake him up "about five times" "every night," and to "pull[] his hair out" when "nervous or upset."
Between Ernest's detention in September 2020 and a hearing in May 2022, mother estimated that she had seen Ernest only "about five" times in person. This was largely due to mother's request, in August 2021, to have telephonic visits "due to [her] work schedule." Mother was not consistent with those telephonic visits, and blamed her lack of in-person visits on her full-time job, the death of one of her coworker's children, and difficulty in contacting both the social workers and the caregivers.
C. Mother's section 388 petition
On March 14, 2022, mother filed a petition under section 388 seeking a new and different court order (1) granting her reunification services and allowing unmonitored weekend or overnight visits, or (2) granting her physical custody of Ernest.
In her petition, mother alleged that (1) circumstances had changed since the disposition hearing because mother had "addressed [her] mental health concerns," and (2) the orders she requested were in Ernest's best interest because she and Ernest had a "close bond." In support, she offered a letter from a counselor stating that mother had been attending weekly counseling sessions for "Persistent Depressive Disorder and trauma history" since May 2021.
The juvenile court set the matter for an evidentiary hearing.
The court held the hearing on May 10, 2022.
Mother testified. Mother denied ever having any auditory hallucinations or paranoia, and asserted that the allegations in this case to the contrary were "preposterous." At the same time, she testified that her neighbors at the motel were "threatening" to kick in her door and "banging on the wall [of her room] so hard [that] it made [her] ears bleed"; that her friends in Congress and the National Association for the Advancement of Colored People were "on [her] side"; and that she "see[s] agents, do[es] music, modeling and pageants as a way to empower people" and increase "awareness" of her "platform" against "sex trafficking and child abuse." Mother testified that the sole mental illness she has now is "depression . . . caused by being separated" from Ernest, with whom she has a "tightly bound relationship." Mother testified that she currently has a "stable home," is enrolled in college, and is holding down two jobs.
Mother also called her counselor as a witness. The counselor stated that mother had attended 36 hour-long therapy sessions over the phone. The counselor explained that she only treated mother for the conditions-and only worked toward the goals-self-identified by mother, as her patient. The sole condition mother reported was "feeling depressed" due to the "injustice" of having Ernest wrongfully removed from her custody. Mother never identified-and, when asked, affirmatively denied-having been previously diagnosed with, or suffering from, paranoia, hallucinations, or any other mental health conditions. As a result, the counselor diagnosed mother as suffering solely from depression. The only treatment goals mother identified were "maintaining employment, increasing sleep and increasing social engagement." The counselor noted that mother had "made progress" toward addressing those goals, but that therapy was still in process. The counselor testified that, during their calls, she had not noticed any evidence of paranoia or hallucinations, but acknowledged that she was unable to "visually" "assess" mother and that mental health issues such as psychotic episodes, paranoia, and hallucinations "typically" "persist" and do not "self-resolve." In light of the information about mother's prior diagnoses that mother had not self-reported, the counselor admitted that it was "fair to say" that "additional work" was required "with mother in terms of treatment" and that it could be necessary to "reassess" the counselor's prior diagnosis of mother based on the incomplete information mother had provided.
The juvenile court denied the section 388 petition. The court found no change of circumstances because the counseling mother obtained did not "address[] the case issues" giving rise to jurisdiction-namely, mother's paranoia, hallucinations, and psychotic disorders. Rather than obtain counseling on those issues, the court explained, mother sought counseling on the mental health issues "mother cho[se] to address" and "failed to take any accountability" for the issues necessitating jurisdiction in this case. The court also found that granting mother reunification services or placing Ernest in her custody was not in Ernest's best interest because the record showed that Ernest had special needs and that mother was unable to "interact with him in an appropriate way" in the handful of in-person visits they had had over the prior 20 months. The juvenile court nevertheless ordered the Department to give mother a visitation schedule for future in-person visits and ordered the Department to provide a monitor for those visits; the order did not specify the frequency or duration of those visits.
D. Appeal
Mother filed a timely notice of appeal.
DISCUSSION
Mother argues on appeal that the juvenile court (1) erred in denying her section 388 petition, (2) improperly delegated control of her visits by not specifying the frequency or duration of visits, and (3) erred in finding ICWA did not apply due to its inadequate initial inquiry into Ernest's possible American Indian heritage.
For the first time in her reply brief, mother cites two casesIn re Hashem H. (1996) 45 Cal.App.4th 1791 and In re Lesly G. (2008) 162 Cal.App.4th 904-dealing with an improper summary denial of a section 388 petition. Not only is it inappropriate to cite existing authority for the first time in a reply brief, but these cases are irrelevant because the juvenile court here did not summarily deny her section 388 petition and instead held an evidentiary hearing.
I. Denial of the Section 388 Motion
To establish entitlement to a modification of a prior juvenile court order under section 388, a parent must show (1) "a change of circumstances," and (2) that the "modification of the prior order would be in the best interests" of the child. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223; In re Mickel O. (2011) 197 Cal.App.4th 586, 615 (Mickel O.).) The moving parent has the burden of establishing both prerequisites. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) Because mother had the burden of showing the first element of changed circumstances and did not carry that burden, mother can prevail on appeal only if the evidence compels a finding of changed circumstances "as a matter of law." (In re Matthew M. (2023) 88 Cal.App.5th 1186, 1194; cf. In re R.V. (2015) 61 Cal.4th 181, 201 [when the question on appeal turns on the burden of proof at trial, the reviewing court asks whether the "weight and character of the evidence" "was such that the juvenile court could not reasonably reject it"].) Mother can prevail on appeal regarding the second element only if she shows that the juvenile court abused its discretion in finding that changing the order was not in Ernest's best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Alayah J. (2017) 9 Cal.App.5th 469, 478.)
A. Changed circumstances
To establish entitlement to relief due to changed circumstances, the moving parent must show that the circumstances that have changed "relate to the purpose of the [prior] order" and have accordingly "removed or ameliorated" "the problem that initially brought the child within the dependency system." (In re A.A. (2012) 203 Cal.App.4th 597, 612.) The moving parent must also do more than show that those pertinent circumstances are merely in the process of changing; she must show that they have, in fact, changed. (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.), overruled in part on other grounds by In re Caden C. (2021) 11 Cal.5th 614.) This makes sense: Granting a section 388 petition and reinstituting reunification services "delay[s] the selection of a permanent home for a child," and such additional delay is justified only if circumstances have changed. (Casey D., supra, at p. 47.) In assessing whether the pertinent circumstances have changed, the court "may consider the entire factual and procedural history of the case." (Mickel O., supra, 197 Cal.App.4th at p. 616.)
Mother has not demonstrated that the evidence in this case shows changed circumstances as a matter of law. Indeed, she has not shown that the relevant circumstances have changed at all. Here, the problem that initially justified dependency jurisdiction over Ernest was mother's auditory hallucinations, paranoia, and psychotic disorder. Yet mother's counseling did not address those issues at all. Instead, mother's counseling dealt solely with mother's self-reported depression and improving her life goals of keeping her job, sleeping better, and being more socially engaged. (See In re Edward H. (1996) 43 Cal.App.4th 584, 592 [when the basis for jurisdiction was sexual abuse of the child, father's attendance in "general mental health counseling" for depression did not establish changed circumstances].) If anything, mother's persistent denial of any other mental health issues reinforces that nothing has changed. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [parental "denial is a factor often relevant to determining whether persons are likely to modify their behavior" because denial increases resistance to "treatment necessary to effect behavioral changes to insure" the child's safety in the parent's custody].)
Mother resists this conclusion with what boils down to two arguments.
First, mother-while quixotically maintaining that she is not doing so-attacks the juvenile court's finding of jurisdiction over Ernest, claiming that it was impermissibly based solely on the existence of her mental illness rather than the potential harm to Ernest arising from that illness. As a threshold matter, this attack is not properly before us because mother did not appeal the dispositional order (of which the jurisdictional finding was a part), and thus cannot attack it in this subsequent appeal. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.) More to the point, this attack is meritless. Mother is correct that a parent's mental illness is not enough, by itself, to justify the exertion of dependency jurisdiction; there must also be substantial evidence to support the juvenile court's finding that the child is at substantial risk of serious physical or emotional harm due to that mental illness. (See, e.g., In re A.L. (2017) 18 Cal.App.5th 1044, 1050.) But such substantial evidence exists here. Substantial risk of harm may be inferred where a child is "'of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety'" (In re Drake M. (2012) 211 Cal.App.4th 754, 766-767 (Drake M.), overruled in part on other grounds by In re D.P. (2023) 14 Cal.5th 266), such as when mother regularly left Ernest alone and unsupervised. Alternatively, substantial risk of harm may be shown through an "'identified, specific hazard in the child's environment,'" such as "'an adult with a proven record of abusiveness.'" (Drake M., supra, at pp. 766-767.) Here, there is also substantial evidence of an identified, specific hazard in Ernest's environment-namely, mother's erratic behavior because (1) she is physically aggressive and threatens bodily harm when her outbursts are directed at others (by chasing them, by threatening to decapitate them, and by using a baseball bat to strike property); (2) she sometimes directs outbursts at Ernest (such as when she shouted profanities at him); and (3) some of her outbursts have endangered Ernest (such as when she used him as a "shield" and when she ran into traffic while holding him). Although mother's outbursts have not yet caused Ernest injury, dependency jurisdiction is appropriate when there is a risk of harm: The juvenile court's intervention need not wait until after it is too late and the child is actually harmed. (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383; In re Yolanda L. (2017) 7 Cal.App.5th 987, 993.) Because mother continues to deny any mental illness other than depression, the risk her illness poses to Ernest continues to be substantial.
Second, mother urges that she has shown a change in circumstances because the counselor testified that she observed no evidence of mother's paranoia or hallucinations during their weekly phone sessions. The counselor's testimony does not establish changed circumstances as a matter of law. That testimony does not establish that mother's mental health issues are now resolved: The counselor admitted her ability to assess mother was hampered by only speaking with her over the phone; the counselor admitted that the mental illnesses associated with paranoia and hallucinations typically do not resolve without treatment (and mother has yet to obtain any treatment directed at those conditions); and the record shows that mother continues to be delusional, as she continues to make statements about her ears bleeding and about having friends in high places. In the end, the counselor acknowledged that mother had not disclosed her prior diagnoses, and that those diagnoses warranted "reassess[ment]" of mother's condition and necessitated "additional work" in terms of treatment.
B. Best interest of the child
In evaluating what is in a child's best interest, the juvenile court is to examine "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of the relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) What is more, where-as here-the juvenile court bypassed reunification services, the focus of dependency proceedings is on addressing the child's need for a "'stable [and] permanent'" home rather than the parent's desire for reunification (In re Jasmon O. (1994) 8 Cal.4th 398, 419-420), and "continued care [by the current caregiver] is [presumptively] in the best interest of the child" (In re Marilyn H. (1993) 5 Cal.4th 295, 310).
Applying these standards, the juvenile court did not abuse its discretion in finding that it was not in Ernest's best interest to provide mother reunification services or award her custody. As explained above, the chief basis proffered for her section 388 motion was her counseling sessions, yet those sessions did not address-let alone ameliorate or remove-the mental health issues that led to the assertion of dependency jurisdiction over Ernest. Thus, the first and third factors noted above counsel against a finding that a change to the juvenile court's prior orders was in Ernest's best interest. What is more, the bond between Ernest and his caregivers was strong, while mother had seen Ernest a total of five times over nearly 20 months and Ernest's reactions to mother were less than warm. Thus, the second factor also counsels against changing the prior orders.
Mother raises two further arguments in response. First, she urges us to give little or no weight to the caregivers' reports regarding her visits, but it is not our place to re-weigh the evidence or to disbelieve certain witnesses; instead, we leave "'issues of fact and credibility'" to the trial court. (In re R.T. (2017) 3 Cal.5th 622, 633; In re M.F. (2019) 32 Cal.App.5th 1, 14.) Second, she contends that the reason she has had so few visits is because the juvenile court's visitation order did not specify the frequency and duration of the visits. This contention is not only based on challenges to an order that mother never objected to until now, but it is also meritless given that mother did not even attend all of the visits that she and the caregivers arranged.
II. Validity of the Visitation Orders
Mother attacks as invalid both the juvenile court's visitation order issued at the dispositional hearing and the renewed visitation order the court issued when denying mother's section 388 petition. Mother has waived her right to attack the order issued at the dispositional hearing because she did not appeal the court's dispositional order, and is precluded from doing so now. (John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405; In re Jesse W. (2001) 93 Cal.App.4th 349, 356.) We therefore examine only the validity of the visitation order issued in May 2022 at the conclusion of the section 388 hearing.
A parent's right to visit a child who is declared a dependent turns on whether the juvenile court has ordered reunification services. If reunification services are ordered, visitation is a "necessary and integral component of any reunification plan" because "'regular visits between the noncustodial parent'" and the child are an "'obvious prerequisite to family reunification'"; in such an instance, a visitation order is typically mandatory. (In re S.H. (2003) 111 Cal.App.4th 310, 317; § 362.1, subd. (a)(1)(A).) But if reunification services are bypassed, the justification for making visitation mandatory is absent and the court has discretion whether to make a visitation order. (§ 361.5, subd. (f); In re Korbin Z. (2016) 3 Cal.App.5th 511, 518 &fn. 5; In re J.N. (2006) 138 Cal.App.4th 450, 458.)
When a juvenile court makes a visitation order, the court typically sets forth the frequency of the visits and their duration. (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.) The court may not delegate to a third party-whether it be a guardian, a parent, a therapist, or the dependent child-the right to control the frequency and duration of visits. (See, e.g., In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314 [discussing impermissible delegation to the legal guardian]; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476 [impermissible delegation to therapist]; In re Julie M. (1999) 69 Cal.App.4th 41, 48-49 [impermissible delegation to children].) The court has greater latitude to let the social services agency (here, the Department) decide the frequency and duration of visits if they are not spelled out in the order because a court may allow the agency to determine the "time, place and manner" of the visits (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374-1377; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009) and because the agency is independently obligated to "act[] as an arm of the court in the best interests of the minor" (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1234) and is more "accountable to the court" than other private parties (In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1166, superseded on other grounds by § 366.26, subds. (c)(4)(A) &(c)(4)(B)).
We review an order setting the terms of visitation for abuse of discretion. (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.)
The juvenile court's May 2022 visitation order is not invalid for three reasons. First, mother has forfeited her right to attack the absence of terms addressing the frequency and duration of visits on appeal because she did not point out that absence to the juvenile court, at a time when the court could have easily filled in those blanks. (In re Richard K. (1994) 25 Cal.App.4th 580, 590 ["a party is precluded from urging on appeal any point not raised in the trial court"].) Second, mother has no right to visitation at all because the juvenile court bypassed reunification services (and its decision to do so may not be attacked in this appeal because mother did not appeal the dispositional order). Third, the visitation order is valid on its merits. Although the order does not explicitly set forth the frequency and duration of visits, by May 2022, the parties had an established routine for the visits that necessarily included an agreed-upon frequency and duration and to which mother never voiced any objection; by not altering that routine in its May 2022 order, the juvenile court necessarily incorporated the past practice and any complained-of blanks were filled in by the existing routine. Further, the court at most left the further implementation of that routine to the Department, which is not a third party.
III. ICWA
A. Pertinent facts
1. Pre-appeal facts
Mother was adopted as a child by a family that now lives in Georgia.
In September 2020, the Department reported that Ernest "has no known Indian ancestry," but did not explain the basis for this assertion.
On January 4, 2021, mother filled out an ICWA-020 form, checking the box that she had no Indian ancestry "as far as [she knew]." During the jurisdictional hearing convened on the same day, the juvenile court reviewed mother's ICWA form, but without asking mother again about her heritage in court, concluded that it had "no reason to believe that ICWA applies to this case via mother's lineage." (Italics added.)
At the April 2021 dispositional hearing, the juvenile court reaffirmed its finding that ICWA did not apply in this case. At that hearing, the court also ordered that the Department initiate an investigation to explore possible placement with mother's relatives in Georgia under the Interstate Compact on the Placement of Children.
As of the date the juvenile court denied mother's section 388 petition, the Department had not questioned any of the maternal relatives it spoke with regarding Ernest's possible Indian heritage.
Mother identified two potential fathers of Ernest, and the Department unsuccessfully attempted to contact both individuals. While it is undisputed that the Department also made no ICWA inquiries into either potential father, mother makes no claim of Indian ancestry through Ernest's paternal lineage.
We take judicial notice of these facts as part of the juvenile court's record. (Evid. Code, §§ 452, 459.) Mother simultaneously objects to our doing so while also expressly asking us to do so.
At a permanency planning hearing on September 27, 2022, the Department told the juvenile court that its "ICWA inquiry- at least [w]hat[ was] reported-[was] insufficient." At the Department's request, the court asked mother if she "ha[d] any reason to believe that [she] ha[s] Native American or Indian ancestry." Mother responded that she had "Italian, Irish, Sardinian, African, Neapolitan, West Indian" and "Mesoamerican" heritage, but, when further questioned, reported having "no" "Native American or Indian ancestry." However, mother agreed to supply the Department with a list of relatives who might know more about her heritage, and the court ordered the Department to "make all appropriate inquiries" of "all relatives" on mother's list.
In a November 7, 2022, report, the Department relayed that it spoke with all four of the maternal relatives that mother identified-the maternal grandmother (Lillie M.), two maternal aunts (Michelle B. and Queen H.), and a maternal cousin (Rekeya H.), all of whom indicated that mother was adopted and that there was no Indian heritage "in the family." The Department was unable to reach the fifth non-relative that mother identified.
On November 8 and 9, 2022, the juvenile court held the permanency planning hearing for Ernest. The Department's attorney recounted what mother's four family members reported-namely, that mother's "stories" about having Indian heritage are "fabricated" and that some of the family members expressed frustration at being repeatedly asked about Indian heritage. At the conclusion of the hearing, the juvenile court terminated mother's parental rights over Ernest.
In another report dated April 18, 2023, the Department relayed its further efforts in March and April 2023 to track down mother's biological relatives-namely, Department workers tried to contact mother (mother never responded) and successfully questioned two maternal aunts as to whether they had "any info on mother's bio-family or any contact numbers." Both aunts responded that they had no knowledge of mother's biological family, and that mother had never had contact with her biological family while living with her adopted family in Georgia.
Mother filed a timely appeal from that order, which is before us in No. B324719.
B. Analysis
ICWA and corresponding statutes that our Legislature enacted to implement ICWA assign the juvenile court and the Department "three distinct duties" aimed at assessing whether a child in a dependency action is an "Indian child," and hence a child who should not be separated from their tribal family through adoption or foster care placement. (§§ 224.2, 224.3; In re D.S. (2020) 46 Cal.App.5th 1041, 1052; Miss. Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) Only the first duty is at issue here-namely, the initial "duty" of the Department and the juvenile court "to inquire whether [a] child is an Indian child." (§ 224.2, subds. (a) &(b).) The Department discharges this duty by "asking" family members "whether the child is, or may be, an Indian child." (Id., subd. (b).) For these purposes, an "Indian child" is a child who (1) is "a member of an Indian tribe," or (2) "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); Welf. &Inst. Code, § 224.1, subd. (a).) The Department's duty to inquire extends not only to the child's parents, but also to others, including "extended family members." (§ 224.2, subd. (b).) 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." (Id., subd. (c).) Here, although mother denied any Indian heritage, it is undisputed that the Department did not ask any of the "extended family members" it contacted or knew of about Ernest's potential status as an "Indian child."
Mother argues that the trial court's section 388 order must be reversed because (1) the Department did not "question the available maternal relatives" about Ernest's possible Indian heritage, as it is obligated to do as part of its initial inquiry duty under ICWA, and (2) the juvenile court did not ask mother about her Indian heritage at her initial appearance, as it is obligated to do under ICWA. Both on appeal and at the post-appeal September 2022 hearing, the Department concedes that the ICWA inquiry was deficient at the time of the section 388 hearing. However, the Department urges that we should still affirm the order because the post-appeal events-specifically, the Department's further interviews of mother's relatives and the juvenile court's inquiry of mother about Ernest's Indian heritage at the September 2022 hearing-either (1) render mother's ICWA challenge "moot," or (2) render any ICWA error harmless because the further interviews and inquiry dispelled any possibility that Ernest qualifies as an "Indian child" under ICWA.
We decline the Department's invitation to treat the ICWA issue as moot. An issue becomes moot when the court can no longer grant effective relief. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055 [issue is moot when "the occurrence of an event renders it impossible for the appellate court to grant . . . effective relief"].) Although the Department and the juvenile court have now done the two things mother pointed to as deficiencies in her opening brief-namely, the Department "questioned the available maternal relatives" and the juvenile court questioned her-mother, in her reply brief, identifies a new deficiency: The Department failed to ask the maternal adoptive relatives whether they had contact information for mother's birth relatives. Although we could disregard as waived the newly identified deficiency because it was raised for the first time in mother's reply brief (In re Luke H. (2013) 221 Cal.App.4th 1082, 1090; In re Daniel M. (2003) 110 Cal.App.4th 703, 707, fn. 4), we elect instead not to decide the issue on mootness grounds.
However, the ICWA error here is harmless.
In In re Dezi C. (2022) 79 Cal.App.5th 769, review granted September 21, 2022, S275578 (Dezi C.), our Division held that "an 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." (Id. at p. 779.)
Here, the record contains no information suggesting a reason to believe that Ernest may be an Indian child. The juvenile court subsequently asked mother-point blank-if she had Indian or Native American heritage, and she said "no." Given that mother was adopted, the juvenile court and Department correctly did not accept mother at her word. (Dezi C., supra, 79 Cal.App.5th at p. 779 [further inquiry may be required "if the record indicates that [a] . . . parent[] is adopted and hence [her] self-reporting of 'no heritage' may not be fully informed"]; cf. In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016 [ICWA remand necessary where sole evidence was adopted mother's denial of Indian heritage]; In re Y.W. (2021) 70 Cal.App.5th 542, 552-553 (Y.W.) [ICWA remand necessary where Department had "viable lead" on how to contact mother's biological parents but did not follow up on it].) Instead, they asked mother for anyone who might provide additional information about Ernest's Indian ancestry, and twice proceeded to ask the relatives mother identified about that heritage, including asking the relatives in March 2023 whether they had contact information for mother's biological family. All of them said "no" and provided no viable leads. (See Y.W., supra, at pp. 552-553.) What is more, the juvenile court previously terminated mother's parental rights over Ernest's older sibling, Queen; that termination order necessarily rests on a finding that Queen was not an Indian child. (E.g., In re Charles W. (2021) 66 Cal.App.5th 483, 490-492 [holding that a prior finding of no ICWA concerns as to sibling means deficiencies in ICWA inquiry as to subsequent sibling were harmless]; In re E.W. (2009) 170 Cal.App.4th 396, 400-402 [same as to half sibling]; In re J.M. (2012) 206 Cal.App.4th 375, 383 [same]; accord, In re Michael V. (2016) 3 Cal.App.5th 225, 233-234 [juvenile court's order terminating parental rights "implicit[ly]" incorporates prior rulings rejecting ICWA concerns].) Because mother is only challenging her heritage, and because she is the mother of both children, this prior finding that ICWA did not apply gives us additional confidence that there is no reason to believe that Ernest is an "Indian child."
Mother raises two arguments in response. First, she urges that any ICWA error is per se reversible regardless of harmlessness. Although one line of authority so holds, our decision in Dezi C. has rejected that line of authority in favor of the harmlessness test we apply here. Second, mother argues in her reply brief that the Department's further questioning was still deficient because the Department did not ask mother's adopted maternal relatives about any Indian heritage that might arise from mother's birth parents. We note that mother did not list her birth parents on the list of people she thought the Department should question; now she mentions this new line of inquiry for the first time in her reply brief on appeal. In Dezi C., we specifically identified as relevant-though not controlling- "the [judicial] branch's interest in discouraging game playing by parents who hold back any objection to the adequacy of the agency's inquiry until an appeal of the termination of their parental rights in the hopes of delaying the finality of the termination." (Dezi C., supra, 79 Cal.App.5th at p. 781.) Yet this is precisely what mother appears to be doing here. More importantly, however, the absence of this further inquiry does not suggest a reason to believe that Ernest is an Indian child. In the prior dependency case involving Ernest's older sibling, the juvenile court terminated mother's parental rights based in part on a finding that the sibling was not an Indian child; we presume that finding is correct (Evid. Code, § 664; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; In re J.F. (2019) 39 Cal.App.5th 70, 79), and that finding necessarily means that mother has no Indian heritage.
DISPOSITION
The juvenile court's order is affirmed.
We concur: LUI, P. J., CHAVEZ, J.