Michelle A. v. Superior Court CA2/2 ( 2022 )

Filed 8/19/22 Michelle A. v. Superior Court CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
B313452
MICHELLE A., (Los Angeles County Super.
Ct. No. 19CCJP08094A-B)
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Daniel Zeke
Zeidler, Judge. Petition denied.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Petitioner.
No appearance for Respondent.
Dawyn R. Harrison, Acting County Counsel, and Kim
Nemoy, Assistant County Counsel, for Real Party in Interest.
******
Michelle A. (mother) petitions for extraordinary relief
pursuant to California Rules of Court, rule 8.452. She seeks
review of the juvenile court’s order terminating her reunification
services at the 18-month review hearing. She argues that the
order is defective because the juvenile court did not comply with
the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1900 et seq.)
(Welf. & Inst. Code, § 224.2, subd. (b)). Although the juvenile
court and Department may have committed error under ICWA,
their noncompliance was harmless because there is no “reason to
believe” that the further inquiry mother identifies would lead to a
different result. (See In re Dezi C. (2022) 79 Cal.App.5th 769, 779
(Dezi C.).) We deny the petition.
FACTS AND PROCEDURAL BACKGROUND
I. The Family
Mother has two children with her estranged husband
Henry A. (father)—Travis A. (born August 2007), and Ethan A.
(born April 2010).
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II. The Dependency Proceedings, Generally
In November 2019, mother had allowed the maternal
grandparents to have custody of Travis and Ethan. Father was
living separately in Nevada. When mother came to visit the kids,
she left methamphetamine and a “meth pipe” at their house and
within their reach. By that time, mother and father had been
using methamphetamine for more than 20 years.
On December 19, 2019, the Los Angeles Department of
Children and Family Services (the Department) filed a petition
requesting the juvenile court exert dependency jurisdiction over
Travis and Ethan based on the detrimental home environment
and mother’s substance abuse.
At the jurisdictional hearing in February 2020, the juvenile
court sustained all of the allegations pursuant to Welfare and
Institutions Code, section 300, subdivision (b)(1),1 removed the
children from mother as well as nonoffending father, and ordered
the Department to provide both parents with reunification
services.
After receiving reunification services, the juvenile court at
the 18-month review hearing in June 2021 found that mother’s
progress with her case plan was not “substantial” and terminated
her reunification services. The court continued father’s
reunification services and set the matter for a section 366.25
review hearing on November 30, 2021. On our own motion (Evid.
Code, §§ 452, subd. (d), 459, subd. (a)), we take judicial notice of
the juvenile court’s November 30, 2021, and July 12, 2022 minute
orders, terminating reunification services for father, and ordering
a permanency planning hearing (§ 366.26) on October 13, 2022.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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III. ICWA-related facts
At the outset of the proceedings in juvenile court, mother
and father could not be located, and maternal grandmother and
her husband—with whom the children were living at the time—
told the Department that the children had no known Indian
ancestry in their families. After mother and father were
subsequently located, both they each filled out written ICWA-020
forms attesting that each had “no Indian ancestry as far as [they
knew].” At the detention hearing, the juvenile court asked the
maternal grandmother if she had Indian heritage; she reported
she had none.2
Based on this inquiry, the juvenile court expressly found
that it had no reason to believe that the children were “Indian
children.”
IV. Appeal
Mother filed an appeal from the order terminating her
reunification services in June 2021. This was premature because
the juvenile court had yet to set a permanency planning hearing.
The juvenile court has since scheduled such a hearing, which
triggered mother’s entitlement to petition for extraordinary relief.
We construe mother’s appeal as a petition for extraordinary relief
pursuant to California Rules of Court, rule 8.452 and consider its
merits.
V. Postfiling events
While this proceeding has been pending, the juvenile court
ordered the Department to conduct further inquiries into the
Indian heritage of Travis and Ethan, and on the basis of those
2 Although the maternal stepgrandfather reported some
Indian heritage, he is not biologically related to the children at
issue in this case.
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inquiries turning up no further information, made express
findings that there was no reason to believe that either child was
an “Indian child.” The Department asks us to take judicial notice
of these proceedings in deciding the pending matter. We decline
to do so (and concomitantly deny the Department’s motion to
dismiss) because we can resolve this matter without resort to this
additional information; we therefore have no occasion to take a
position on the propriety of doing so.
DISCUSSION
Mother argues that the order terminating her reunification
services must be reversed because the Department failed to
discharge their initial inquiry duties under ICWA and related
California law to ask “extended family members” and “others who
have an interest in the [children]” whether the children may be
Indian children and thus entitled to the special protections
afforded by ICWA. (§ 224.2, subds. (b) & (c).) The Department
does not dispute that there were extended family members and
nonrelatives involved in the children’s lives that it failed to
question. Because there is no question that the Department
erred in conducting its initial inquiry, our role in determining
whether substantial evidence supports the juvenile court's ICWA
findings turn on whether those errors are harmless. (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 740, 742 (Benjamin M.),
citing Cal. Const., art VI, § 13.)
I. Governing Law
ICWA was enacted to curtail “the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement.” (Mississippi Band of
Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) To that
end, under the ICWA and the corresponding statutes the
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California legislature enacted to implement it (§§ 224 -224.6), the
juvenile court and the Department have duties aimed at
assessing whether a child in a dependency action is an “Indian
child.” (§§ 224.2, 224.3, added by Stats. 2018, ch. 833, §§ 5, 7.)
An “Indian child” is a child who (1) is “a member of an Indian
tribe,” or (2) “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); Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal
law definition].) By its terms, this definition turns “‘on the child's
political affiliation with a federally recognized Indian Tribe,’” not
“necessarily” “the child's race, ancestry, or ‘blood quantum.’” (In
re Austin J. (2020) 47 Cal.App.5th 870, 882 (Austin J.), quoting
81 Fed.Reg. 38801-38802 (June 14, 2016).)
Under ICWA as amended, the Department and juvenile
court have “three distinct duties.” (In re D.S. (2020) 46
Cal.App.5th 1041, 1052 (D.S.) [noting amendment's creation of
three duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-884
[same].) Only the first duty is at issue here: The initial “duty” of
the Department and the juvenile court is “to inquire whether [a]
child is an Indian child.” (§ 224.2, subds. (a) & (b).) The
Department discharges this duty by “asking” family members
“whether the child is, or may be, an Indian child.” (Id., subd. (b).)
This includes inquiring of not only the child's parents, but also
others, including but not limited to, “extended family members.”
(Ibid.) For its part, the juvenile court is required, “[a]t the first
appearance” in a dependency case, to “ask each participant”
“present” “whether the participant knows or has reason to know
that the child is an Indian child.” (Id., subd. (c).)
Should an appellate court conclude that the juvenile court did
not comply with its duty of initial inquiry under ICWA, the
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court's next task is to evaluate whether its noncompliance was
prejudicial. (Benjamin M., supra, 70 Cal.App.5th at pp. 740,
742.) In Dezi C., we recently held that a deficiency in the
discharge of ICWA’s initial duty of inquiry is prejudicial only if
the juvenile court record or evidence proffered by the appealing
party on appeal indicates “a reason to believe” that the child may
be an Indian child. (Dezi C., supra, 79 Cal.App.5th at p. 779.)
For example, a reviewing court would have “reason to believe”
the Department’s error was prejudicial if the record indicates
that someone reported possible American Indian heritage and the
Department never followed up on that information; if the record
indicates that the Department never inquired into one of the
biological parents’ heritage at all (e.g., Benjamin M., at p. 740); or
if the record indicates that one or both of the parents is adopted
and hence their self-reporting of “no heritage” may not be fully
informed (e.g., In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016
(A.C. 2022)).
II. Analysis
The record in this case does not provide a “reason to
believe” that Travis and Ethan are Indian children. Mother,
father, and the maternal grandmother each unequivocally denied
that they had any Indian heritage. These denials came from the
people most likely to know the ancestry of the children—namely,
their biological parents and their caregiver. Mother points to
nothing else in the juvenile court’s record indicating that there is
any reason to believe that she, father, or either child themselves
had any Indian heritage. And mother makes no proffer of
additional evidence that would point to a reason to believe that
either child has any such heritage. As such, substantial evidence
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supports the juvenile court’s ruling terminating mother’s
parental rights.
Resisting this conclusion, mother argues that the
Department’s failure to ask the paternal grandfather about his
heritage and to ask the maternal grandmother about the heritage
of her former husband amounts to reversible error. We reject this
argument because mother offers no explanation as to how either
of the two individuals mother identifies for the first time on
appeal had any information as to the children’s ancestry that
would contradict or supplement the information provided by
mother, father, and the maternal grandmother. Nor does the
record reveal any reason to believe that those individuals would
have such information. Mother implies that the information that
these individuals would relay in interviews was “readily
available,” and hence constitutes prejudice under the test
articulated in Benjamin M. (Benjamin M., supra, 70 Cal.App.5th
at p. 744; In re Darian R. (2022) 75 Cal.App.5th 502, 509-510),
but we have rejected Benjamin’s approach in Dezi C. (Dezi C.,
supra, 79 Cal.App.5th at pp. 785-786.)
Because neither the record nor any evidence proffered by
mother creates a reason to believe the children may be Indian
children, mother has not carried her burden.
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DISPOSITION
The petition for extraordinary relief is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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