Opinion
B324665
08-23-2023
In re D.M.L., a Person Coming Under the Juvenile Court Law. v. D.M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP03469, Brett Bianco, Judge. Affirmed.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
BENDIX, J.
D.M. (father) appeals from the juvenile court's order terminating his parental rights to his daughter D.M.L. Father's sole assertion on appeal is the juvenile court and respondent Los Angeles County Department of Children and Family Services (DCFS) failed to fulfill their duties under state law implementing the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). We hold the juvenile court adequately inquired as to D.M.L.'s Indian status at the detention hearing; DCFS obtained adequate information from father and maternal relatives as to same; and any error in not interviewing additional paternal relatives beyond father and his sisters was harmless. Accordingly, we affirm.
BACKGROUND
1. Summary of case
Apart from the ICWA issue, father does not challenge the merits of the juvenile court's rulings, which we summarize briefly.
In July 2021, DCFS filed a petition under Welfare and Institutions Code section 300, seeking to detain newborn D.M.L. from R.L. (mother) and father. The petition alleged D.M.L. was born with a positive toxicology screen for amphetamine/methamphetamine; mother had a history of substance abuse, was a current abuser of amphetamine and methamphetamine, and had a positive toxicology screen at the time of D.M.L.'s birth; and D.M.L.'s five older siblings were all prior dependents of the juvenile court and had received permanent placement services because of mother's substance abuse. The petition further alleged father knew or reasonably should have known of mother's substance abuse but failed to protect D.M.L accordingly.
Unspecified statutory citations are to the Welfare and Institutions Code.
The juvenile court ordered D.M.L. removed from parents' custody. The court later sustained all counts in the petition, and ordered D.M.L. put in suitable placement. Ultimately, the court found D.M.L. adoptable and terminated mother's and father's parental rights. The court designated D.M.L.'s caretakers, her maternal grandparents, as the prospective adoptive parents.
Father timely appealed. Mother did not appeal.
2. Background relevant to ICWA
Prior to detention, DCFS asked mother about D.M.L.'s Indian status. Mother denied that she or father had any Indian heritage. Father submitted an ICWA-020 form stating he had no Indian ancestry as far as he knew. Mother submitted a different version of the ICWA-020 form that lists possible bases for a child to be an Indian child; mother indicated, "None of the above apply."
Mother and father attended the detention hearing via WebEx. After confirming both parents could hear what the juvenile court was saying, the court stated that mother had submitted an ICWA-020 form indicating no American Indian heritage, and father had done the same. The court stated, "ICWA does not apply in this case." Neither parents nor their counsel said anything in response.
Later in the detention hearing, mother's counsel confirmed D.M.L. currently was in the custody of maternal grandmother. According to the reporter's transcript, mother's counsel then stated, "I would like the paternal grandmother to be assessed as the monitor for visits." This was likely a misstatement or mistranscription, and mother's counsel in fact meant maternal grandmother-all subsequent discussion at the hearing regarding visitation and monitoring pertained to maternal grandmother, with no further mention of paternal grandmother at that hearing or elsewhere in the record.
Reports indicated mother had been raised by maternal grandmother and maternal grandfather. Maternal grandmother denied any Indian ancestry. Although DCFS interviewed maternal grandfather, the report does not indicate he was asked about Indian heritage. Maternal grandmother and maternal grandfather both were born and raised in Mexico, and both came to the United States at age 17. They had been together for 31 years.
A report stated that in 2019, the juvenile court found ICWA did not apply to D.M.L.'s sibling K.M.
A last minute information indicated a social worker had visited father's address to deliver hearing notices, and met a woman, D.J., who identified herself as father's aunt (D.M.L.'s paternal great-aunt). Paternal great-aunt stated father and mother did not live in the home. She further stated she would be interested in caring for D.M.L. if the maternal family did not wish to provide permanency. The record does not indicate DCFS asked paternal great-aunt about Indian ancestry.
Father and paternal aunt C.W. appeared together at a March 4, 2022 hearing. When asked by the juvenile court, father's counsel stated he had no other information on father's ICWA status. The court ordered DCFS to assess C.W. as a potential visitation monitor.
DCFS reported additional ICWA investigation in a last minute information dated September 9, 2022. Paternal aunts K.W. and C.M. denied any Indian ancestry. C.M. reported she and father were full siblings. A social worker asked K.W. about D.J., the woman identified in the earlier report as a paternal great-aunt. K.W. identified her instead as father's cousin. The DCFS social worker was unable to obtain contact information for D.J.-K.W. stated she did not have D.J.'s phone number and had not spoken to her in years.
The social worker also was unsuccessful in contacting maternal grandfather to inquire further as to his Indian ancestry. The social worker spoke instead to maternal grandmother, who again denied her own Indian ancestry and said maternal grandfather also had no Indian ancestry. Maternal uncle (mother's brother) denied Indian ancestry as well.
Paternal aunt C.W. attended the section 366.26 hearing. The juvenile court asked if her family had any Indian ancestry, and C.W. said, "Not as far as I'm aware." The court found it still had no reason to know that D.M.L. was an Indian child.
DISCUSSION
On appeal, father contends the juvenile court failed to comply with state law implementing ICWA when inquiring about D.M.L.'s Indian status at the detention hearing. Father further contends DCFS failed adequately to interview father and various extended family members about D.M.L.'s Indian status. We conclude there is no basis to remand for further ICWA inquiry.
A. Applicable Law
"At the outset of a dependency case, the child welfare agency and the juvenile court have a statutory initial duty to inquire into whether a child is, or may be, an Indian child. 'The child welfare department's initial duty of inquiry includes "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." [Citation.]' [Citation.]" (In re Darian R. (2022) 75 Cal.App.5th 502, 507 (Darian R.), fn. &italics omitted.) Under ICWA, the term" 'extended family member'" is "defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2).)
State law further mandates that "[a]t 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." (§ 224.2, subd. (c).)
Appellate courts disagree about the appropriate standard for assessing prejudice in the context of a failure to conduct adequate ICWA inquiry. (See In re S.H. (2022) 82 Cal.App.5th 166, 175-176 [describing five different tests for assessing prejudice].) 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.)
B. Analysis
Father's first argument is that the juvenile court failed to comply with section 224.2, subdivision (c), because at the detention hearing, the court did not directly ask mother and father about their Indian ancestry, nor did the court instruct them to inform the court if they subsequently learned of information giving reason to know D.M.L. is an Indian child.
We disagree with father's characterization of the record. It is true the juvenile court did not literally inquire of the parents at the detention hearing as to D.M.L.'s Indian status. The court, however, after confirming mother and father could hear the court over the WebEx connection, reiterated the information in the parents' ICWA-020 forms indicating no Indian ancestry. Neither the parents nor their counsel gave any indication that information was incorrect or that there was any additional information. There thus was no need for the court expressly to ask the parents to confirm the information.
Although the court did not orally instruct the parties to update it with any future information regarding D.M.L.'s Indian status, the written order issued after that hearing contained that instruction. The juvenile court adequately satisfied section 224.2, subdivision (c).
Father's second argument is that DCFS failed adequately to ask both him and various extended family members about D.M.L.'s Indian status. Although DCFS expressly asked mother about her Indian ancestry, father notes the record does not indicate DCFS ever spoke with him about his own ancestry. He further argues DCFS should have inquired of paternal grandmother, who was named as a potential visitation monitor, as well as paternal great-aunt D.J. and maternal grandfather, whom DCFS had contact with during the proceedings.
We fail to see why DCFS had to ask anything further of father when, as discussed above, father had submitted an ICWA-020 form denying Indian ancestry, and said nothing when the court orally reiterated the contents of that form at the detention hearing. Nor did father or his counsel say anything at the later hearing at which the court asked if there was any new information relevant to ICWA. DCFS and the juvenile court received all the information necessary from father.
We further conclude DCFS satisfied its obligations as to the maternal relatives. Although DCFS did not interview maternal grandfather about his heritage, maternal grandmother, who had been with maternal grandfather for 31 years, confirmed he had no Indian ancestry. Mother and maternal uncle also stated they had no Indian heritage, supporting maternal grandmother's same assertion. Further, both maternal grandparents were born and raised in Mexico. The likelihood that maternal grandfather has American Indian heritage unbeknownst to maternal grandmother, mother, or maternal uncle is speculative.
As for the paternal relatives, DCFS and/or the juvenile court inquired of multiple paternal aunts, all of whom disclaimed Indian ancestry. Assuming arguendo DCFS should have interviewed additional relatives, such as D.J., the woman identified as paternal great-aunt, or paternal grandmother, such error was harmless given father's implicit denial of Indian ancestry on two occasions, corroborated by his sisters, including at least one full sister who shared the same parentage.
It is unclear if paternal grandmother is alive or available to answer questions. As noted above, the only mention of her appears to be a misstatement or mistranscription from the detention hearing. For purposes of our harmless error analysis, however, we assume arguendo she would have been available to interview.
Father argues that his sisters, being of his generation, would not have any better information regarding their Indian heritage than he, and it was therefore necessary to interview members of earlier generations like paternal great-aunt. We disagree. Again, our inquiry is whether" 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error,'" that is, whether it is reasonably probable that further ICWA inquiry would reveal possible Indian heritage. (S.S., supra, 75 Cal.App.5th at p. 581.) Although it is conceivable a single member of a generation might not have heard from earlier generations of the family's Indian heritage (or may have heard and forgotten), it is not reasonably probable that multiple members of that generation would not have heard of, or would have forgotten their Indian heritage if such heritage existed.
The fact that the juvenile court in 2019 found that D.M.L.'s sibling was not an Indian child is a factor further supporting our conclusion any inquiry error was harmless. (See Darian R., supra, 75 Cal.App.5th at pp. 509-510 [ICWA inquiry error harmless because, inter alia, juvenile court had found in 2015 that ICWA did not apply to minor's three full siblings].) We acknowledge, as father argues, that we do not know the extent of the ICWA inquiry in that case, which may not have involved interviews of extended family. The fact that no one has come forward to challenge that earlier finding in the four-year interim, however, particularly now when D.M.L.'s Indian status is at issue, is further indication there is no Indian heritage to be found.
Father urges us, even in the absence of prejudice, to conditionally affirm the termination of parental rights but remand for further ICWA inquiry. Assuming arguendo we have the discretion to remand for further inquiry in the absence of a showing of prejudice, we decline when doing so is not reasonably likely to bear fruit and would further delay D.M.L.'s permanent placement.
DISPOSITION
The juvenile court's order terminating parental rights is affirmed.
We concur: ROTHSCHILD, P. J., WEINGART, J.