Opinion
E083473
08-13-2024
In re Z.F. et al., Persons Coming Under the Juvenile Court Law. v. N.N., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Samara Silverman, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INJ1800239 Kelly L. Hansen, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Samara Silverman, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
N.N. (mother) appeals from orders of the juvenile court terminating parental rights to her children Z.F. and M.F. She contends the Riverside County Department of Public Social Services (DPSS) did not comply with its duty to adequately inquire whether the children were Indian children under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related state law. Specifically, she argues DPSS failed to make sufficient inquiry about C.F.'s (the children's presumed father) extended family members and obtain information of possible Indian ancestry.
U.B., a third child from another father, is not a subject of this appeal.
"'[B]ecause ICWA uses the term "Indian," we do the same for consistency, even though we recognize that other terms, such as "Native American" or "indigenous," are preferred by many.'" (In re Dominick D. (2022) 82 Cal.App.5th 560, 563, fn. 1.)
DPSS concedes the record does not reflect that it made any ICWA inquiry regarding C.F.'s extended family members but argues its duty to contact extended family members when inquiring into whether a child is an Indian child was not triggered in this case because the children were detained pursuant to a detention warrant. DPSS contends that if we conclude it was under such a duty, the error was harmless. Finally, DPSS argues that, if we find prejudicial error, at most we should conditionally reverse the orders terminating parental rights and remand for further ICWA inquiry and notice, if appropriate.
We need not decide in this appeal whether DPSS was under a duty to inquire into C.F.'s extended family because the error, if any, was harmless. Therefore, we affirm the orders terminating parental rights.
I. FACTS AND PROCEDURAL BACKGROUND
Because mother's appeal focuses solely on the adequacy of DPSS's inquiries under ICWA, we need not recite the facts of this case in detail. DPSS investigated referrals about, inter alia, domestic violence between father and mother and possible sexual abuse of U.B. by her half siblings' father. Thereafter, DPSS detained the children under protective custody warrants and filed a petition in the juvenile court alleging the children were dependents of the court pursuant to Welfare and Institutions Code section 300 (all undesignated statutory references are to the Welfare and Institutions Code). The juvenile court subsequently sustained numerous allegations in a second amended petition, declared the children to be dependents, and directed DPSS to offer the parents family reunification services.
Neither parent made adequate progress in completing their case plans and alleviating the reasons for the dependency, so at a six-month review hearing the juvenile court terminated their services and set a hearing under section 366.26 for selection of a permanent plan for the children. At the hearing, mother asked the juvenile court to find applicable the beneficial relationship exception to termination of parental rights and place the children in legal guardianship. The court found by clear and convincing evidence that termination of parental rights would not be detrimental to the children, no exception was applicable, and the children were likely to be adopted. Therefore, the court terminated parental rights and freed the children for adoption. Mother timely appealed.
At the same hearing, the juvenile court denied mother's petitions under section 388, seeking reinstatement of her family reunification services.
Father did not appeal and he is not a party to this proceeding.
Relevant here, throughout the proceedings below both parents consistently denied having any Indian ancestry. The juvenile court found DPSS made adequate inquiry and ICWA did not apply.
Mother was born in Zambia to African parents, and she makes no claim of ICWA error with respect to her own heritage.
II. DISCUSSION
"ICWA establishes minimum federal standards that a state court must follow before removing Indian children from their families. [Citation.] California law implementing ICWA also imposes requirements to protect the rights of Indian children, their families, and their tribes. (See §§ 224-224.6; [citation].) An Indian child is any unmarried person under 18 who '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. (b).)" (In re Ricky R. (2022) 82 Cal.App.5th 671, 678.)
"'Because it typically is not self-evident whether a child is an Indian child, both federal and state law mandate certain inquiries to be made in each case.' [Citation.] DPSS and the juvenile court have an 'affirmative and continuing duty to inquire' whether a child in a dependency proceeding 'is or may be an Indian child.' (§ 224.2, subd. (a).) The duty to inquire consists of two phases-the duty of initial inquiry and the duty of further inquiry. [Citation.] ICWA also imposes a duty to provide notice of the proceedings to the pertinent Indian tribes. (25 U.S.C. § 1912(a); § 224.3, subd. (a).) Notice enables the tribes 'to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in, or exercise jurisdiction over, the matter.'" (In re Ricky R., supra, 82 Cal.App.5th at p. 678.)
"The duty of initial inquiry applies in every dependency proceeding. [Citation.] Federal regulations require state courts to ask each participant 'at the commencement' of a child custody proceeding 'whether the participant knows or has reason to know that the child is an Indian child.' (25 C.F.R. § 23.107(a) (2022).) State law requires the court to pursue an inquiry '[a]t the first appearance in court of each party' by asking 'each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child.' (§ 224.2, subd. (c).) In addition, when DPSS takes a child into temporary custody, the agency must ask 'the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child,' and the reporting party whether the child is or may be an Indian child. (§ 224.2, subd. (b).) Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)" (In re Ricky R., supra, 82 Cal.App.5th at pp. 678-679.)
Mother argues DPSS failed to satisfy its duty under section 224.2, subdivision (b), to inquire of father's extended family members about the children's possible Indian heritage. In contrast, DPSS argues it had no duty to inquire of extended family members in this case because the children were taken into custody pursuant to protective custody warrants.
There is currently a deep split in authority within this division about whether the duty to inquire of extended family members under section 224.2, subdivision (b), applies when the child is taken into custody pursuant to a detention warrant. Four published decisions have held there is no such duty. (In re Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743 [holding duty is not triggered when the child is taken into custody pursuant to a detention warrant]; In re Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023, S280572 [adopting the reasoning of Robert F.]; In re Andres R. (2023) 94 Cal.App.5th 828, review granted Nov. 15, 2023, S282054 [majority opinion defending Robert F. and Ja.O.]; In re D.M. (2024) 101 Cal.App.5th 1016, review granted July 24, 2024, S285537 [majority opinion defending the Robert F. line of cases].) Two published decisions have held there is such a duty. (In re Delila D. (2023) 93 Cal.App.5th 953, review granted Sept. 27, 2023, S281447 [majority opinion concluding Robert F. was wrongly decided]; In re Samantha F. (2024) 99 Cal.App.5th 1062 [same].)
At the time of writing, every other district of the Court of Appeal to address this issue in a published opinion has sided with our decision in In re Delila D. and held the duty of inquiry as to extended family members applies regardless of whether the child was taken into custody pursuant to a warrant. (In re L.B. (2023) 98 Cal.App.5th 512 [First Dist., Div. Four]; In re C.L. (2023) 96 Cal.App.5th 377 [Third Dist.]; In re Jerry R. (2023) 95 Cal.App.5th 388 [Fifth Dist.]; In re V.C. (2023) 95 Cal.App.5th 251 [First Dist., Div. Two].)
But we need not wade into that debate here because, even assuming DPSS had a duty to inquire into extended family members, its failure to do so in this case was harmless. We have consistently applied the harmless error analysis first articulated by this court in In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.). "When DPSS fails to comply with the duty of initial inquiry under state law, we will find the error to be prejudicial and conditionally reverse if 'the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.'" (In re Ricky R., supra, 82 Cal.App.5th at p. 679, quoting Benjamin M., at p. 744; accord, In re Samantha F., supra, 99 Cal.App.5th at p. 1083; In re D.B. (2022) 87 Cal.App.5th 239, 245.) "That standard does not require 'proof of an actual outcome (that the parent may actually have Indian heritage).' [Citation.] The missing information need only be relevant to the ICWA inquiry, 'whatever the outcome will be.'" (In re Ricky R., at p. 679.)
The Courts of Appeal are divided on the appropriate test for harmless error when reviewing ICWA inquiry errors, and our Supreme Court granted review to resolve the issue. (In re Dezi C. (2022) 79 Cal.App.5th 769, 779-782, review granted Sept. 21, 2022, S275578.) In her reply brief, mother mistakenly says we ourselves are split on the appropriate standard for harmless error, and she argues we are bound to follow In re A.R. (2021) 11 Cal.5th 234, a decision that did not address ICWA error. As noted in the text, since deciding Benjamin M., supra, 70 Cal.App.5th 735, we have consistently applied that standard to ICWA inquiry errors. And, until we receive more guidance from the Supreme Court, we will continue to apply it. (In re D.B., supra, 87 Cal.App.5th at p. 245, fn. 5; see generally Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9 ["Absent a compelling reason, the Courts of Appeal are normally loath to overrule prior decisions from another panel of the same undivided district or from the same division."]; People v. Allen (2023) 96 Cal.App.5th 573, 581 ["We see no reason to depart from this court's precedent concerning the facial validity of Health and Safety Code section 11370.1 under the Second Amendment."].)
"Under Benjamin M.'s prejudice analysis, we do not speculate about whether the extended family members might have information that suggests the child is an Indian child." (In re D.B., supra, 87 Cal.App.5th at p. 246.) "Rather, in determining whether the failure to make an adequate initial inquiry is prejudicial, we ask whether the information in the hands of the extended family members is likely to be meaningful in determining whether the child is an Indian child, not whether the information is likely to show the child is in fact an Indian child. In most circumstances, the information in the possession of extended relatives is likely to be meaningful in determining whether the child is an Indian child-regardless of whether the information ultimately shows the child is or is not an Indian child." (In re Antonio R. (2022) 76 Cal.App.5th 421, 435 [applying Benjamin M.].)
"Under this approach, we require continued inquiry where the probability of obtaining meaningful information is reasonable in the context of ICWA." (Benjamin M., supra, 70 Cal.App.5th at p. 744; see In re K.H. (2022) 84 Cal.App.5th 566, 604 ["[R]easonableness, viewed through the lens of ICWA's purpose, is the touchstone."].) Where a relative is not "readily available" to the agency (Benjamin M., at p. 744), there would be no basis to find the agency's failure to comply with its duty was prejudicial. (See In re Samantha F., supra, 99 Cal.App.5th at p. 1083 [error was prejudicial where the agency failed to inquire of several paternal relatives who attended hearings and acted as caregivers to the child throughout the proceeding]; In re Antonio R., supra, 76 Cal.App.5th at p. 431 [inadequate inquiry where the agency failed to inquire of known and available extended family members]; In re J.W. (2022) 81 Cal.App.5th 384 [error in initial inquiry for failure to ask extended family members about their Indian ancestry despite the agency having contact with those family members].)
Mother argues she was prejudiced when DPSS failed to ask father about his extended family members who might have information relevant to ICWA. While conceding DPSS was "denied access to father, presumably by his criminal defense attorney," mother suggests DPSS could have asked father for the names and contact information of his extended family members "without violating any prohibition from his attorney regarding not discussing the facts of the case with the social worker." We are not persuaded. Father initially spoke with the social worker, but the jurisdictional report indicated DPSS "was denied access to interview" father about his social history and relative placement for the children because of his "[l]aw [e]nforcement involvement." Asking father about his extended family members would have touched on the two broad categories that were expressly off limits, so we must agree with DPSS that to do so "would have been improper."
Moreover, even if the embargo on interviewing father was only applicable during the early stages of the proceedings, the record demonstrates father was soon beyond the reach of DPSS to make further ICWA inquiries. Father appeared intermittently from the detention hearing held March 8, 2022, to a scheduled review hearing held March 1, 2023. However, at the contested review hearing held March 20, 2023, the juvenile court stated it and father's counsel had been unable to contact father. The social worker spoke to father in May, but on June 5, 2023, DPSS filed a declaration of due diligence indicating it had been unable to locate father. The juvenile court granted a request by DPSS to serve father with all future notices by certified mail to his attorney. At hearings conducted September 1 and 15, 2023, and January 18, 2024, father's attorney told the juvenile court that father's whereabouts were still unknown. And, at the selection and implementation hearing held March 6, 2024, the juvenile court granted a request from father's attorney for a finding that father, who was not present, had received proper notice.
Next, mother argues she was prejudiced when DPSS failed to inquire of two of father's "known" or "easily ascertainable" relatives. Responding to the allegation that father had sexually abused U.B., mother told the social worker that father's aunt had called mother "and said your son has behavior issues." First, a parent's aunt or uncle- the dependent child's great-aunt or great-uncle-is not included in the definition of "extended family members" for purposes of ICWA inquiry. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) Moreover, nothing in the record demonstrates father's aunt was "readily available" to DPSS. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) Mother apparently did not provide the aunt's name or any additional information about the aunt or how to reach her. And, for the reasons given, father was unavailable to provide that information either.
A dependent child's great-aunt or great-uncle might qualify as a person with "an interest in the child" (§ 224.2, subd. (c)), though the courts have yet to define that category with any specificity (see In re A.C. (2022) 86 Cal.App.5th 130, 141-142 (diss. opn. of Baker, J.)). In any event, for the reasons given in the text, failure to inquire of father's aunt was harmless.
As for the second relative, the declaration of due diligence mentioned, ante, indicates DPSS attempted to contact father in person at an address in Hemet he had provided to the juvenile court. A woman who said she was father's sister-in-law answered the Ring doorbell and indicated she would contact father to obtain his current contact information. Apparently the sister-in-law did not give her name. While conceding "[i]t is unclear the nature of father's relationship with this person," mother argues the sister-in-law "clearly could have provided [DPSS] with more information about fathers family." We decline to speculate whether the sister-in-law "clearly could" provide such information because nothing in the record suggests she would. Not only did the sister-in-law not give her name-she did not open the door and only spoke through the doorbell camera. Therefore, we cannot say the sister-in-law was "readily available" to DPSS either (Benjamin M., supra, 70 Cal.App.5th at p. 744), so the failure to further inquire of her was not prejudicial.
In addition, on June 2, 2023, DPSS mailed a letter of inquiry to father at the Hemet address.
Last, mother argues the record from a prior dependency proceeding "most certainly would have provided [DPSS] with father's extended family information." The record here contains numerous references to an earlier proceeding in which U.B. and Z.F. were detained from the parents but ultimately returned to mother's sole custody. At the contested jurisdiction/disposition hearing in that previous case the juvenile court found ICWA did not apply. We decline mother's invitation to speculate what, if any, information about father's family was contained in the record from that prior proceeding.
In sum, on this record, we conclude that even if DPSS had a duty to inquire of father's extended family when conducting its initial ICWA duty, its failure to do so in this case was harmless.
III. DISPOSITION
The orders of the juvenile court terminating parental rights are affirmed.
We concur: MILLER J. MENETREZ J.