In re Sophia C. CA2/1 ( 2022 )

Filed 8/2/22 In re Sophia C. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
In re SOPHIA C., a Person Coming B318301
Under the Juvenile Court Law.
_________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 18CCJP05104A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ERIKA C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Lisa A. Brackelmanns, Judge Pro Tempore. Affirmed.
Michelle E. Butler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_____________________________
Erika C. (Mother) appeals from the juvenile court’s order
terminating her parental rights to her daughter Sophia C. She
contends that the Los Angeles County Department of Children and
Family Services (DCFS) failed to comply with its duty of inquiry to
determine whether there is a reason to believe or know that Sophia
is an Indian child within the meaning of the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.). Because Mother has failed
to demonstrate that DCFS’s error was prejudicial, we affirm.
FACTUAL AND PROCEDURAL SUMMARY1
On August 13, 2018, DCFS filed a juvenile dependency
petition concerning Sophia under section 300 of the Welfare and
Institutions Code.2 Attached to the petition was an ICWA-010 form
dated August 10 in which DCFS indicated that it made inquiry, and
that Sophia had no known Indian ancestry.
The following day, the parents appeared in court at a
detention hearing and filed Parental Notification of Indian Status
forms (Judicial Council Forms, form ICWA-020 (rev. Jan. 1, 2008)).
Both parents checked a box next to the statement: “I have no
Indian ancestry as far as I know.” On this basis, the court found
that ICWA did not apply. According to a dependency investigator
for the DCFS, both parents again denied having any Indian
ancestry in May 2021.
DCFS social workers spoke with several maternal relatives,
but there is no indication that they asked any of them about
1 Because the only issues on appeal are whether DCFS failed
to comply with its duty of inquiry under section 224.2 and, if so,
what remedy is appropriate, we focus on the facts and procedural
history relevant to that issue.
2 Subsequent unspecified statutory references are to the
Welfare and Institutions Code.
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possible Indian ancestry. Among the maternal relatives contacted
were the grandfather, two great aunts, a great uncle, two cousins,
and two uncles. DCFS social workers also encountered Sophia’s
maternal great grandmother but did not speak with her,
and learned about another maternal cousin but apparently
did not contact him. In a prior dependency case, both maternal
grandparents stated that they had no Indian ancestry as far as
they knew.3
DCFS social workers also interviewed both paternal
grandparents and at least one paternal aunt, but there is no
indication that they ever asked them about potential Indian
ancestry. Mother gave the names of a few other paternal
relatives, but it is not clear from the record if DCFS obtained
contact information or spoke with any of them. Father and the
paternal grandparents stated that they were born in El Salvador
and migrated to the United States when Father was eight or
nine years old and the grandparents were in their 40’s.
After several years of proceedings, the juvenile court
terminated Mother and Father’s parental rights on January 31,
2022. Mother filed a timely appeal.
DISCUSSION
When DCFS files a petition under section 300 concerning a
child, it has “an affirmative and continuing duty to inquire whether
[the] child . . . is or may be an Indian child” within the meaning
of ICWA. (§ 224.2, subd. (a); In re Antonio R. (2022) 76 Cal.App.5th
3 Pursuant to DCFS’s request, we take judicial notice of
portions of the juvenile court’s reporter’s transcripts filed in a
related appellate case, In re B.C. (appeal dismissed December 3,
2012, B243191), in which the maternal grandparents made these
statements in 2012.
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421, 429.) More particularly, when DCFS seeks foster care
placement for the child, pre-adoptive placement, or termination
of parental rights, it “must ask the child, if the child is old enough,
and the parents, . . . extended family members, [and] others who
have an interest in the child . . . whether the child is or may be an
Indian child.” (Cal. Rules of Court, rule 5.481(a)(1).)4
Here, there is no evidence that DCFS ever asked any
maternal relatives any questions to determine whether Sophia is
or may be an Indian child. The grandparents, aunts, uncles, and
cousins with whom social workers spoke are either “extended family
member[s],” as defined in ICWA (25 U.S.C. § 1903(2)) or persons
who have an interest in the children under California law (§ 224.2,
subd. (b); see Cal. Rules of Court, rule 5.481(a)(1)). In some cases,
DCFS social workers continued contact with the relatives over
several years, but the record does not indicate a DCFS social
worker or investigator ever asked any of them about possible tribal
membership.
The remedy on appeal for a social welfare agency’s failure
to comply with the duty of initial inquiry is unsettled. (See, e.g.,
In re Dezi C. (2022) 79 Cal.App.5th 769, 779 [failure to comply
with duty of initial inquiry is harmless unless the record, together
4 The juvenile court’s ICWA findings made at the detention
hearing and at the jurisdiction /disposition hearings all were made
prior to the amendment to section 224.2, subd. (b) (effective Jan. 1,
2019) and the amendment to California Rules of Court, rule 5.481
(effective Jan. 1, 2020), which are the provisions upon which Mother
relies to challenge the sufficiency of DCFS’s initial ICWA inquiries
in this case. The parties have not addressed, and in light of our
conclusion regarding harmless error we have no need to decide, to
what extent DCFS was required to comply with these amendments
in this case.
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with any proffer by the appellant, suggests a reason to believe
that the child may be an Indian child]; (In re Ezequiel G. (July 29,
2022, B314432) ___ Cal.App.5th ___ [2022 Cal.App. Lexis 671]
(Ezequiel G.) [no reversal on the basis of failure to inquire unless
the record suggests the absence of further inquiry was prejudicial]);
In re A.R. (2022) 77 Cal.App.5th 197, 207 [reversal is required
“in all cases where ICWA requirements have been ignored”]; In
re Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.)
[reversal required when “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 Rebecca R. (2006) 143
Cal.App.4th 1426, 1431 [in the absence of a representation by the
appellant of Indian heritage, “there can be no prejudice and no
miscarriage of justice requiring reversal”].)
This division of this court has generally evaluated this issue
to determine whether, if further inquiry is required after remand,
“ ‘the probability of obtaining meaningful information is reasonable
in the context of ICWA.’ ” (In re Darian R. (2022) 75 Cal.App.5th
502, 509, quoting Benjamin M., supra, 70 Cal.App.5th at p. 744.)
In making this determination, we have rejected “a wooden approach
to prejudice” (In re A.C. (2022) 75 Cal.App.5th 1009, 1017) and
refused to require further inquiry when, based upon the particular
circumstances revealed by the record, it is apparent “that additional
information would not have been meaningful to the inquiry”
(Benjamin M., supra, 70 Cal.App.5th at p. 743; see, e.g., In re S.S.
(2022) 75 Cal.App.5th 575, 582−583 [failure to inquire of the
child’s maternal grandmother was harmless where the maternal
grandmother was in contact with the social worker and had a
strong incentive to bring to the court’s attention facts suggesting
the child is an Indian child].)
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In this case, there is no reason to believe that additional
inquiry would be fruitful. On Mother’s side of the family, the
grandparents’ denial of Indian ancestry in a prior proceeding
provides strong evidence for this conclusion. As our colleagues
in Division Three recently noted, “tribal membership typically
requires an affirmative act by the enrollee or her parent,” and
as a result, “a parent typically will know whether she has applied
for membership for herself or her child.” (Ezequiel G., supra,
___ Cal.App.5th at p. ___ [2022 Cal.App. Lexis 671 at pp. *33−*34].)
The record suggests that the extended family was relatively tight-
knit and in contact with one another. It would be exceptionally
strange if Sophia was a member of an Indian tribe, and this
information was known by an aunt or cousin, but not by either
of her parents or her maternal grandparents. The only available
family member from an earlier generation than the grandparents
was the maternal great grandmother, but the record indicates that
she was suffering from dementia at the time DCFS social workers
contacted her.
The paternal family’s recent immigration to the United States
makes it highly unlikely that Sophia is an Indian child through that
side of the family. The definition of “ ‘Indian child’ ” is not based
on ancestry, but rather “ ‘on the child’s political ties to a federally
recognized Indian Tribe, either by virtue of the child’s own
citizenship in the Tribe, or through a biological parent’s citizenship
and the child’s eligibility for citizenship.’ ” (In re Ezequiel G.,
supra, ___ Cal.App.5th at p. ___ [2022 Cal.App. Lexis 671 at
p. *32].) With no apparent presence in the United States prior to
2008, it is not reasonably probable that anyone on Father’s side
of the family was a tribal member. (See In re G.A. (July 1, 2022,
C094857) ___ Cal.App.5th ___ [2022 Cal.App. Lexis 630 at p. *14]
[where the father was born in Mexico, the possibility that a
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paternal ancestor was a member of a federally recognized Indian
tribe was too speculative to support reversal based on agency’s
failure to inquire of paternal relatives].)
Because there is no reasonable probability that additional
inquiry would have yielded meaningful information, DCFS’s failure
to inquire of the extended family members was harmless. (See In re
Darian R., supra, 75 Cal.App.5th at pp. 509–510.)
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
KELLEY, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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