Opinion
E069495
05-15-2018
In re A.L. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.L., Defendant and Appellant.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J267461, J267462) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, E.L. (father), appeals from the order terminating his parental rights to his children, A.L. and B.L. Father contends plaintiff and respondent, San Bernardino County Children and Family Services (CFS), and the juvenile court did not comply with the inquiry requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law. We conclude the court erred, but father has failed to demonstrate prejudice. We therefore affirm.
II. FACTS AND PROCEDURE
In September 2016, CFS filed petitions under Welfare and Institutions Code section 300, subdivisions (b) and (g) alleging father and M.M. (mother) abused substances; mother engaged in domestic violence in the presence of A.L. and B.L.; father engaged in criminal activity; and father was incarcerated and unable to care for the children.
All further statutory references are to the Welfare and Institutions Code.
The petitions for the children each attached ICWA-010(A) forms (Indian Child Inquiry Attachment). On the forms, the social worker indicated the children "ha[d] no known Indian ancestry." The forms further indicated the social worker had questioned mother, who denied Native American ancestry.
CFS's detention report said the same—mother denied having Native American ancestry. Mother filed an ICWA-020 form (Parental Notification of Indian Status) declaring that she had no Indian ancestry. Father was not present at the detention hearing in September 2016. The court asked mother: "Do you know if either of the dads has Native-American ancestry?" (A.L. and B.L. have a half brother who was also detained but is not a subject of this appeal.) Mother replied: "No."
On October 11, 2016, CFS filed a declaration of due diligence indicating that it had served father in prison with several forms by certified mail. The forms included the ICWA-020 form. Father never completed this form.
CFS's jurisdictional/dispositional report stated ICWA did not apply to the case. Its recommended findings in the report included one stating A.L. and B.L. did not "come under the provisions of the [ICWA]." The court initially scheduled a jurisdictional/dispositional hearing for November 2016 and then continued it to December 2016. Father was present in custody at the November 2016 hearing. His counsel requested that CFS interview him because it was unclear whether the social worker had done that yet, and the court ordered CFS to do so.
At the jurisdictional/dispositional hearing in December 2016, the court found the allegations of the petition to be true. Father testified that he had never spoken to the social worker in this case. The court denied reunification services to father. It adopted all of CFS's recommended findings, thus adopting the finding that ICWA did not apply.
CFS's six-month review report again stated that ICWA did not apply to the case. The maternal aunt was caring for the children and was willing to provide permanency through adoption or legal guardianship. At the six-month review hearing, the court terminated mother's reunification services and set the matter for a section 366.26 hearing, over the parents' objections.
Father filed a notice of his intent to file a writ petition. Shortly after, his counsel filed a letter stating she had found no issues on which to base a writ petition, and we dismissed the matter.
We incorporated the record in the dismissed matter (case No. E068598) with the record in this case.
CFS's section 366.26 report again indicated ICWA did not apply. At the section 366.26 hearing, father objected to the termination of parental rights on the ground that he had a bond with the children. The court terminated parental rights and found the children adoptable.
III. DISCUSSION
Father contends we must reverse the order terminating his parental rights for proper compliance with ICWA. He argues the court and CFS did not comply with their duty to inquire whether father had any American Indian ancestry. We agree the court and CFS failed to properly inquire into father's ancestry, but the error was harmless in this case.
Father also argues the court failed to make any findings as to whether ICWA applied here. But the court did make such a finding at the jurisdictional/dispositional hearing when it adopted CFS's recommended findings.
Father's contention asks us to interpret and apply the inquiry requirements of ICWA and related California law. The relevant facts are undisputed, and the issue is one of statutory interpretation that we independently review. (In re Isaiah W. (2016) 1 Cal.5th 1, 10; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.)
Congress enacted ICWA "'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . .'" (In re Isaiah W., supra, 1 Cal.5th at p. 8.) ICWA requires notice to Indian tribes "in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights 'where the court knows or has reason to know that an Indian child is involved.'" (Ibid.) The child's tribe must receive "notice of the pending proceedings and its right to intervene." (In re H.B. (2008) 161 Cal.App.4th 115, 120.) Our Legislature enacted provisions that require compliance with ICWA "[i]n all Indian child custody proceedings." (§ 224, subds. (a), (b).)
"ICWA itself does not expressly impose any duty to inquire as to American Indian ancestry; nor do the controlling federal regulations. [Citation.] But ICWA provides that states may provide 'a higher standard of protection to the rights of the parent . . . of an Indian child than the rights provided under [ICWA]' [citation], and long-standing federal guidelines provide 'the state court shall make inquiries to determine if the child involved is a member of an Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe.'" (In re H.B., supra, 161 Cal.App.4th at pp. 120-121, fns. omitted.)
Consistent with these federal guidelines, section 224.3 imposes on the juvenile court and CFS "an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care." (§ 224.3, subd. (a).) Likewise, the California Rules of Court impose on the court and CFS "an affirmative and continuing duty to inquire whether a child is or may be an Indian child . . . ." (Cal. Rules of Court, rule 5.481(a).) The rules further mandate that CFS "ask the child, if the child is old enough, and the parents . . . whether the child is or may be an Indian child . . . ." (Id., rule 5.481(a)(1).) And, "[a]t the first appearance by a parent . . . the court must order the parent . . . to complete Parental Notification of Indian Status (form ICWA-020)." (Id., rule 5.481(a)(2), italics omitted.) If the parent does not appear at the first hearing, the court must order CFS "to use reasonable diligence to find and inform the parent . . . that the court has ordered the parent . . . to complete" the ICWA-020 form. (Id., rule 5.481(a)(3).)
Here, as a preliminary matter, CFS argues father has forfeited his ICWA argument by failing to raise it at the jurisdictional/dispositional hearing, the subsequent hearings, or in his writ petition proceedings. We disagree. Given the continuing nature of the court's duty to inquire into a child's Indian status, the order terminating parental rights was "necessarily premised on the juvenile court's fulfillment of that duty, [and] there is nothing improper or untimely about [father's] contention in this appeal that the juvenile court erred in discharging that duty." (In re Isaiah W., supra, 1 Cal.5th at p. 11.)
As to the merits of father's contention, CFS asserts the duty of inquiry was satisfied when it sent father the ICWA-020 form, and father failed to provide any information in response. This narrow view of CFS's and the court's duty of inquiry does not square with the law. The court and CFS had "an affirmative and continuing duty" to inquire into both parents' potential Indian ancestry. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a).) CFS's representations in the petition and its reports that ICWA did not apply were based only on mother's response that she did not have any Indian ancestry. When questioned by the court, mother did not know whether father had any Indian ancestry. CFS never spoke with father. Father did not appear at the first hearing in this matter (the detention hearing). The court should have ordered CFS to inform father that he needed to complete the ICWA-020 form, but the court did not. When father appeared at later hearings, neither the court nor CFS asked about any potential Indian ancestry. They did not satisfy their affirmative and continuing duty of inquiry. (In re H.B., supra, 161 Cal.App.4th at pp. 120-121 [holding the court erred in failing to ensure compliance with ICWA inquiry requirements].)
Still, this error in complying with the inquiry requirement was harmless. A violation of the inquiry requirement "may be harmless error, particularly when, as here, the source of the duty to inquire is not ICWA itself but rather . . . a rule of court implementing ICWA." (In re H.B., supra, 161 Cal.App.4th at p. 121.) We must hold such errors harmless "'unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.'" (Id. at p. 122.)
When the parent makes no suggestion even on appeal that he or she has any Indian ancestry, the parent has failed to demonstrate the necessary prejudice. (In re H.B., supra, 161 Cal.App.4th at p. 122; In re N.E. (2008) 160 Cal.App.4th 766, 769.) There is nothing preventing parents, in their "briefing or otherwise, from removing any doubt or speculation." (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431; accord, In re H.B., supra, at p. 122.) "'The knowledge of any Indian connection is a matter wholly within the appealing parent's knowledge and disclosure is a matter entirely within the parent's present control. The ICWA is not a "get out of jail free" card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands. Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.'" (In re H.B., supra, at p. 122, quoting In re Rebecca R., supra, at p. 1431.)
In this case, while urging reversal, father makes no suggestion whatsoever that he in fact may have Indian ancestry. "In the absence of such a representation, there can be no prejudice and no miscarriage of justice requiring reversal." (In re Rebecca R., supra, 143 Cal.App.4th at p. 1431.) We decline to remand this matter for a fruitless inquiry that would only cause further undue delay.
IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.