In re A.H. CA2/8 ( 2022 )

Filed 12/12/22 In re A.H. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.H. et al., Persons Coming
Under the Juvenile Court Law. B316137
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. Nos. 18CCJP02887A–B
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALEXIS S. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Lisa A. Brackelmanns, Juvenile Court Referee.
Affirmed.
Carolyn S. Hurley, under appointment by the Court of
Appeal, for Defendant and Appellant Antonio H.
Maureen L. Keaney, under appointment by the Court of
Appeal, for Defendant and Appellant Alexis S.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
INTRODUCTION
Alexis S. (Mother) and Antonio H. (Father) appeal from the
juvenile court’s orders terminating their parental rights over
their two daughters. They do not argue the orders were wrong,
however. Instead, they argue that the Los Angeles Department
of Children and Family Services (Department) conducted an
inadequate initial inquiry under the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.). The Department concedes the
error but argues it was harmless. We agree with the Department
and affirm.
BACKGROUND1
On May 7, 2018, the Department filed a dependency
petition alleging jurisdiction over Au. R. (age 13 months) and Ay.
R. (age 2 months), under Welfare and Institutions Code
section 300, subdivisions (a) and (b)(1).2 The petition alleged that
the parents engaged in domestic violence that placed the children
at risk for serious physical harm (Count a-1), that the parents
failed to protect the children from the violence (Count b-1), and
that both parents abused marijuana (Counts b-2 & b-3).
At the detention hearing the following day, the court found
Father to be the presumed father, held that the Department had
made a prima facie showing that the children were people
1 Due to the limited nature of this appeal, we recite only the
facts and procedural background relevant to the ICWA inquiry.
2 All undesignated statutory references are to the Welfare
and Institutions Code.
2
described by section 300, and ordered the children detained from
both parents. Mother filed an ICWA-020 form indicating she had
no known Indian ancestry.3 Upon reviewing the form and asking
Mother whether Father had any Indian ancestry, the court found
that ICWA did not apply. Although the maternal grandmother
was in the courtroom, the court did not ask her whether she had
reason to know that the children were Indian children. The
maternal great-grandmother’s name and phone number were
listed in the detention report.
At the June 15, 2018 restraining order hearing, Father
filed an ICWA-020 form indicating he had no known Indian
ancestry.4 The court asked Father’s attorney for confirmation
that Father had indicated “no ICWA.” Based on counsel’s
representation, the court stated it “will continue to find no reason
to know this case is governed by the Indian Child Welfare Act.”
Although the paternal grandmother was in the courtroom, the
court did not ask her whether she had reason to know that the
children were Indian children.
At the September 13, 2018 jurisdiction and disposition
hearing, the court sustained Counts b-1 and b-2 and dismissed
Count a-1. The court declared the children to be dependents of
the court, removed them from both parents, and granted
reunification services.
In addition to the maternal grandmother, maternal great-
grandmother, and paternal grandmother, the Department also
3 Mother had also denied having any Indian ancestry when
the social worker inquired during the Department’s investigation.
4 Father had also denied having any Indian ancestry when
the social worker inquired during the Department’s investigation.
3
had contact with a maternal grandfather, a maternal aunt, a
paternal uncle, and a maternal cousin. The Department did not
ask any of these people whether the children were, or might be,
Indian children.
Reunification efforts failed, and on October 19, 2021, the
court terminated parental rights over both children. Mother and
Father filed timely notices of appeal.
DISCUSSION
Mother and Father each contend the Department violated
ICWA’s initial inquiry requirements by failing to question their
extended family members about whether the children had Indian
ancestry. The Department concedes the error but argues the
failure to inquire was harmless. We agree with the Department.
1. ICWA
ICWA was enacted “ ‘to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture . . . . [Citation.]”
(In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C.
§ 1902.) Under ICWA, an “ ‘Indian child’ ” is “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 also § 224.1, subd. (a) [adopting federal
definition of “Indian child”].) It is up to the tribe to decide
whether a child is an Indian child under ICWA. (Isaiah W., at
p. 15.)
4
“[T]he burden of coming forward with information to
determine whether an Indian child may be involved . . . in a
dependency proceeding does not rest entirely—or even
primarily—on the child and his or her family.” (In re Michael V.
(2016) 3 Cal.App.5th 225, 233.) Rather, “[j]uvenile courts and
child protective agencies have ‘an affirmative and continuing
duty to inquire’ whether a dependent child is or may be an Indian
child.” (Ibid.; see also Isaiah W., supra, 1 Cal.5th at pp. 9–11;
§ 224.2, subd. (a).)
This affirmative duty to inquire comprises a two-step
process. First, if a child is removed from his or her parents and
placed in the custody of a county welfare department, the
department has a duty to “ask[ ] 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 . . . .” (§ 224.2, subd. (b), italics added.) The court must
make a similar inquiry when the parents first appear in court:
“[T]he 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.” (§ 224.2, subd. (c), italics added.)
The court’s duty of initial inquiry includes requiring each party to
complete California Judicial Council Form ICWA-020, Parental
Notification of Indian Status. (Cal. Rules of Court,
rule 5.481(a)(2)(C).)
Second, if the court or social worker has “reason to believe
that an Indian child is involved in a proceeding,” the court or
social worker must “make further inquiry regarding the possible
Indian status of the child,” by, among other things, interviewing
the parents and extended family members, and contacting any
5
tribe that may reasonably be expected to have information about
the child’s membership, citizenship status, or eligibility. (§ 224.2,
subd. (e), italics added; see § 224.3, subd. (a)(5)(C).)
If, after the initial and further inquiries, there is reason to
know that an Indian child is involved, notice must be provided to
the parent, legal guardian, or Indian custodian and the child’s
tribe. (§ 224.2, subd. (f).) There is reason to know a child is an
Indian child if any one of the six statutory criteria is met.
(Id., subd. (d).)
We review ICWA-related matters for substantial evidence.
(In re D.N. (2013) 218 Cal.App.4th 1246, 1251.) But, “where the
facts are undisputed, we independently determine whether
ICWA’s requirements have been satisfied. [Citation.]” (In re D.S.
(2020) 46 Cal.App.5th 1041, 1051, fn. omitted.)
2. The ICWA error was harmless.
As discussed, in this case the Department did not ask the
parents’ extended family members about their Indian ancestry
despite having contact with a maternal grandmother, maternal
grandfather, paternal grandmother, maternal great-
grandmother, maternal aunt, paternal uncle, and maternal
cousin. The Department concedes, and we agree, that this was
error. (See In re Darien R. (2022) 75 Cal.App.5th 502, 509
[finding error where evidence showed Department had contact
with maternal aunt and maternal grandfather but failed to
inquire of them regarding Indian ancestry].)
Because the error is one of state law, we typically reverse
only if the error was prejudicial under People v. Watson (1956)
46 Cal.2d 818, 836. (In re J.W. (2022) 81 Cal.App.5th 384, 389–
390 (J.W.); see In re S.S. (2022) 75 Cal.App.5th 575, 581 (S.S.)
[requirement imposed by state law, not federal law].) Under
6
Watson, the appellant must show prejudice by establishing that
“it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.” (Watson, at p. 836.)
Yet “[a]lthough an appellant ordinary has the burden of
establishing prejudice [citation], a parent’s ability to make this
showing based upon the record in failure-to-inquire cases can be
problematic” because it is the Department’s responsibility—not
the parents’—to make inquiries and document its efforts.
(S.S., supra, 75 Cal.App.5th at p. 581.) Recognizing this problem,
the appellate courts have disagreed about the extent to which
prejudice must be shown to justify reversal when the Department
fails to comply fully with its initial duty of inquiry under
California’s revised ICWA statutes. (See In re Dezi C. (2022)
79 Cal.App.5th 769, 777–779, review granted Sept. 21, 2022,
S275578 (Dezi C.) [discussing three competing approaches and
adopting a fourth].) Specifically, courts disagree on whether a
failure to inquire of extended family members necessitates a
remand when the parents deny Indian heritage and there is no
other information in the record indicating additional inquiry will
prove fruitful. (Ibid.)5
One line of cases holds that any error in the initial inquiry
must result in reversal because the duty to inquire is mandatory
and unconditional. (See, e.g., In re J.C. (2022) 77 Cal.App.5th 70,
80–82; In re A.R. (2022) 77 Cal.App.5th 197, 206–207; In re Y.W.
(2021) 70 Cal.App.5th 542, 556.) A second set of cases holds that
5 The Supreme Court granted review in Dezi C., supra,
79 Cal.App.5th 769 to resolve this issue. The court also denied
the appellant’s request to depublish the opinion.
7
failing to inquire is presumptively harmless unless a showing is
made by the parent on appeal (such as by an offer of proof) why
further inquiry would lead to a different ICWA finding. (See In
re A.C. (2021) 65 Cal.App.5th 1060, 1070; accord, In re Rebecca R.
(2006) 143 Cal.App.4th 1426, 1430–1431.) A third group charts a
middle course, holding that if the initial inquiry is deficient, the
error is harmless unless, upon an examination of the record, it
appears that inquiry would yield “readily obtainable information
that was likely to bear meaningfully upon whether the child is an
Indian child” and that “the probability of obtaining meaningful
information is reasonable.” (See In re Benjamin M. (2021) 70
Cal.App.5th 735, 744; S.S., supra, 75 Cal.App.5th at pp. 582–
583.)
This court has adopted a fourth approach taken by our
colleagues in Division 2 in Dezi C. (J.W., supra, 81 Cal.App.5th
at p 391.) There, the court held that “[a]n agency’s failure to
discharge its statutory duty of initial inquiry is harmless unless
the record contains information suggesting a reason to believe
that the children at issue may be ‘Indian child[ren],’ in which
case further inquiry may lead to a different ICWA finding by the
juvenile court.” (Dezi C., supra, 79 Cal.App.5th at p. 774.)
The court in Dezi C. calls this the “reason to believe” rule because
it holds the agency’s failure to properly inquire into a child’s
Indian heritage harmless unless there the record reveals “reason
to believe” that the absence of “further inquiry was prejudicial to
the juvenile court’s ICWA finding.” (Id. at p. 779.) The record is
defined as the record from the court below and evidence proffered
by a parent on appeal. (Ibid.)
8
Based on the record before us, we conclude that additional
inquiry would be a mere formality.6 In Dezi C., “our colleagues in
Division 2 held that where the parents were raised by their own
biological relatives and where the record suggests no reason to
believe that the parents’ knowledge of their own heritage is
incorrect or that the children may have Indian heritage, no
prejudice arises from [the Department’s] failure to conduct a
complete inquiry.” (J.W., supra, 81 Cal.App.5th at p. 391.)
Similarly, in this case, both parents were raised by, and
were in touch with, a plethora of their extended biological
relatives. When asked—more than once—neither parent
expressed any doubt or hesitation as to whether they possessed
Indian heritage. No representation has been made to this court
that any extended family member has ever made a statement
even hinting at Indian heritage. There is no reason to believe the
parents misunderstood their familial roots. Accordingly, we
conclude the Department’s failure to conduct an adequate initial
inquiry was harmless.
6 The Department’s request for judicial notice, filed July 13,
2022, is denied because the documents at issue were not before
the trial court and are unnecessary to the resolution of this
appeal.
9
DISPOSITION
The orders are affirmed.
HARUTUNIAN, J.*
I concur:
STRATTON, P. J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
10
WILEY, J., Dissenting.
This is my 14th dissent on this issue. In this case the
Department easily could have posed the key question of ancestry
to
1. the maternal great-grandmother,
2. the maternal grandfather,
3. the paternal grandmother,
4. the maternal aunt,
5. the paternal uncle,
6. and the maternal cousin.
The Department does not say why it so persistently violates
the law when compliance would involve nearly no effort—just a
minute or two of time to obey a clear statutory directive. The
Department simply argues its conduct is harmless.
Tribes are the victims here. Do they think these errors are
harmless? We do not know because no one has given them notice
and an opportunity to be heard. I perceive harm.
WILEY, J.
1