In re E.R. CA2/8 ( 2023 )

Filed 1/10/23 In re E.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re E.R., a Person Coming B317373
Under the Juvenile Court Law.
_______________________________ Los Angeles County
Super. Ct. No. 19CCJP00279C
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MONICA D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ashley Price, Juvenile Court Referee. Affirmed.
Karen J. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_______________________
Mother Monica D. appeals the juvenile court’s order
terminating parental rights to son E.R. (born October 2018 and
referred to herein as Noah). She does not challenge the juvenile
court’s decision to terminate her rights. Mother’s contention is
that the Los Angeles Department of Children and Family
Services (DCFS) did not comply with its initial duty of inquiry
under Welfare and Institutions Code section 224.2, subdivision
(b)1 in that DCFS failed to ask available extended family
members whether Noah is an “Indian child” within the meaning
of section 1903 of the federal Indian Child Welfare Act (ICWA).
(25 U.S.C. § 1901 et seq.) She also faults the juvenile court for
not personally inquiring of the parents at their initial
appearances about possible Indian ancestry.
We find DCFS erred in failing to question extended family
members despite having contact with a paternal grandparent and
uncle and maternal grandmother and aunts. Although both
parents had filled out paperwork indicating no knowledge of
Indian ancestry, we find the juvenile court erred in not personally
inquiring of them at their initial appearances. However, we
conclude, as explained below, the error was harmless because
Noah’s designated adoptive parent was his paternal uncle.
BACKGROUND
On January 15, 2019, when Noah was three months old,
DCFS filed a section 300 petition alleging Mother left Noah’s
older half-siblings, ages nine and seven, with their paternal
grandmother without a plan for the children’s ongoing care and
supervision. At the time Mother had disappeared with Noah and
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
their whereabouts were unknown. At the detention hearing, the
court detained the half-siblings from Mother and also detained
Noah, noting he was “AWOL.” The court issued a protective
custody warrant for him.2
Noah was located a month later, on February 15, 2019,
living with Mother and maternal grandmother. On February 26,
2019, he was placed with his paternal uncle, Francisco C. On
March 4, 2019, DCFS filed a first amended petition with an
additional allegation that Mother and Father had a history of
domestic violence, the half-siblings had witnessed violent
altercations, and Mother had failed to protect them. On May 11,
2019, a second amended petition was filed, adding a count as to
Noah’s half-siblings only. At the adjudication hearing on July 19,
2019, Father pled no contest to the domestic violence count of the
petition. The court found against each parent on the domestic
violence allegations, found Noah a dependent of the court, and
removed him from the care and custody of his parents. Both
parents were required to attend domestic violence, parenting
programs, and individual counseling. Mother was also ordered to
attend joint counseling with her children. Noah remained placed
with his paternal uncle.
Fifteen months later, the court found both parents had
failed to comply with their case plans and it terminated
reunification services. Paternal uncle Francisco C. and his
longtime girlfriend wanted to adopt Noah, who had bonded with
them, calling them “mommy” and “daddy.” On October 5, 2020,
the court terminated parental rights for both parents and set a
permanency planning hearing for Noah. One year later, on
2 This appeal concerns Noah and Mother only.
3
October 4, 2021, the court found Noah adoptable. By then Noah
had been in placement with his paternal uncle Francisco C. and
uncle’s girlfriend for over two and a half years. The court found
adoption by Francisco C. appropriate and ordered it as the
permanent plan for Noah. On October 3, 2022, the juvenile court
again found the plan of adoption appropriate and ordered it as
the permanent plan.
As for inquiries into Noah’s possible Indian ancestry, on
February 28, 2019, Mother filed an ICWA-020 form, checking the
box which stated, “I have no Indian ancestry as far as I know.”
The court found no reason to know ICWA applied. On March 5,
2019, Father filed an ICWA-020 form checking the same box.
The court found ICWA did not apply through Father’s ancestry.
In addition Noah’s birth certificate indicated Father was born in
Mexico.
The record reflects there were several extended family
members from both sides of the family who lived locally and who
were not asked about possible Indian ancestry. Mother grew up
living with both parents and her five siblings. Mother’s father,
mother and sisters lived in Los Angeles and provided Mother
support. Father lived in Los Angeles County with his mother;
paternal uncle Francisco C. lived locally. None were asked about
Indian ancestry. Based only on the forms filed by both parents,
the court found no reason to believe Noah had Indian ancestry.
This appeal followed.
DISCUSSION
Mother contends the order terminating parental rights
should be reversed because DCFS did not inquire of extended
family members about Noah’s possible Indian ancestry. Mother
also faults the juvenile court for not orally inquiring of each
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parent at their initial appearances about possible Indian
ancestry; she faults DCFS for failing to ask each parent
personally about possible Indian ancestry, instead relying on
their form denials.
In enacting ICWA, Congress found “that an alarmingly
high percentage of Indian families are broken up by the removal,
often unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high
percentage of such children are placed in non-Indian foster and
adoptive homes and institutions.” (25 U.S.C. § 1901(4).) ICWA
reflects the intent of Congress “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, and
by providing for assistance to Indian tribes in the operation of
child and family service programs.” (25 U.S.C. § 1902.) The
court is obligated to ask each “participant” in the proceedings
whether they have reason to believe the child is an Indian child
and to instruct the parties to inform the court if they
subsequently receive information that provides a reason to know
the child is an Indian child. (In re Austin J. (2020)
47 Cal.App.5th 870, 882–883.)
As our Supreme Court has recognized, “Congress enacted
ICWA in 1978 in response to ‘rising concern in the mid-1970’s
over the consequences to Indian children, Indian families, and
Indian tribes of abusive child welfare practices that resulted in
the separation of large numbers of Indian children from their
families and tribes through adoption or foster care placement,
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usually in non-Indian homes.’ ” (In re Isaiah W. (2016) 1 Cal.5th
1, 7.) In enacting these provisions, “ ‘Congress was concerned not
solely about the interests of Indian children and families, but also
about the impact on the tribes themselves on the large numbers
of Indian children adopted by non-Indians.’ ” (Id. at p. 9.)
The concern about separating Indian children from their
Indian families, heritage and culture was the topic of extensive
Congressional hearings when ICWA was enacted. As one
commentator wrote, the “ ‘wholesale separation of Indian
children from their families is perhaps the most tragic and
destructive aspect of American Indian life today.’ ” (Atwood,
Flashpoints Under the Indian Child Welfare Act: Toward a New
Understanding of State Court Resistance (2002) 51 Emory L.J.
587, 601, cited in In re A.C. (2022) 75 Cal.App.5th 1009, 1014.)
ICWA authorizes states to provide even more protection
than the federal statute provides. In 2006, the California
legislature enacted parallel statutes to affirm ICWA’s purposes
and mandate compliance with ICWA in all Indian child custody
proceedings. (In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.)
In California, the child protection agency is obligated 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).) The child protection agency,
in this case DCFS, must complete the Indian Child Inquiry
Attachment form ICWA-010(A) and attach it to the petition.
(Cal. Rules of Court, rule 5.481(a)(1); In re Dominick D. (2022)
82 Cal.App.5th 560, 566.)
Here DCFS did not fulfill its duties under section 224.2 as
it did not ask extended family members about Indian ancestry,
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despite having contact information for paternal grandmother,
paternal uncle, maternal grandmother, and maternal aunts. In
addition, the juvenile court did not personally inquire of each
parent when each appeared in court. This was a violation of law.
But the next question is whether the error was prejudicial. A
prerequisite to reversal of a trial court’s decision under California
law is s showing of a miscarriage of justice. (Cal. Const., art. VI,
§ 13.)
We are hard pressed to find a miscarriage of justice. ICWA
itself sets out placement priorities. Section 1915 of title 25 of the
United States Code provides that in any adoptive placement of an
Indian child under state law, “a preference shall be given, in the
absence of good cause to the contrary, to a placement with [¶]
(1) a member of the child’s extended family; [¶] (2) other members
of the Indian child’s tribe; or [¶] (3) other Indian families.”
(25 U.S.C. § 1915(a).) Extended family under ICWA includes
uncles. (25 U.S.C. § 1903(2).)
In this case, Noah was detained at the age of three months
and placed with his paternal uncle at the age of four months. He
remained with his paternal uncle throughout the proceedings.
He is now four years old, having lived with his paternal uncle
almost his entire life. The juvenile court implemented ICWA’s
first preference by designating Noah adoptable by his paternal
uncle, a logical finding given Noah’s lifelong placement and bond
with him. The minor is not in danger of being separated from his
biological family, the evil ICWA was enacted to prevent.
Mother does not argue her son’s proposed adoption by his
paternal uncle is contrary to his best interests or lacks good
cause. The juvenile court’s plan for Noah belies a finding of
prejudice under ICWA as it is the first preferred placement had
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the minor been found to be an Indian child and had his tribe
intervened. The abuses ICWA was enacted to prevent are not in
play here.
Alternatively, applying the rule for assessing prejudice as
set forth in In re Dezi C. (2022) 79 Cal.App.5th 769, review
granted Sept. 21, 2022, S275578, we find nothing in the record to
indicate Mother’s and Father’s claims were ill-informed,
unfounded, or incorrect. Father lived with his parents and
Mother was in touch with and supported by her own mother and
sisters. Each parent’s familiarity with and continuous contacts
with their own biological families distinguish this case from In re
A.C. (2022) 75 Cal.App.5th 1009, where the mother was isolated
from her biological family at a young age.
Noah has now spent his entire life of four years with the
same caregivers from his own biological family. He is entitled to
the security and stability of the adoptive home that is awaiting
him, a disposition with which appellant does not quarrel. We
find no miscarriage of justice.
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DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
I concur:
GRIMES, J.
*
HARUTUNIAN, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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