In re C.W. CA2/2 ( 2022 )

Filed 9/30/22 In re C.W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re C.W. et al., Persons Coming B315825
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 21LJJP00410A-B)
Plaintiff and Respondent,
v.
S.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael C. Kelley, Judge. Affirmed.
Roni Keller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and David Michael Miller, Senior
Deputy County Counsel, for Plaintiff and Respondent.
S.W. (Father) appeals a disposition order after the juvenile
court sustained a petition and declared his children dependents
of the court. (Welf. & Inst. Code, §§ 300, 360, subd. (d).)1 He
contends that the inquiry requirements of the Indian Child
Welfare Act of 1978 (ICWA) are unsatisfied. (25 U.S.C.S. § 1901et seq; Welf. & Inst. Code, § 224 et seq.) No one asked extended
family members if the children may be Indian. (§ 224.2,
subd. (b).)
We conclude that any deficiency in the ICWA inquiry did
not cause a miscarriage of justice. (Cal. Const., art. VI, § 13.)
The parents, raised by their biological families, denied Indian
ancestry. No evidence suggests that the parents’ knowledge of
their heritage is incorrect or that the children may have Indian
ancestry. Because there is no reason to believe the children are
Indian, any failure to inquire of extended family members was
harmless and can be cured by further inquiry as the case
progresses. (§ 224.2, subd. (a).) We affirm.
FACTS AND PROCEDURAL HISTORY
Father and P.P. (Mother) moved with C.W. to California
from the Midwest in 2018. C.W. was two years old at the time.
In early 2019, respondent Los Angeles County Department of
Children and Family Services (DCFS) learned the family was
homeless. C.W. was marooned all day in the family car, where
his parents smoked marijuana with the windows closed. Mother
tested positive for marijuana at four prenatal visits before giving
birth to P.W. in March 2019.2
__________________________________________________________
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2 Mother is not a party to this appeal.
2
In July 2021, a mandated reporter told DCFS that C.W.
was medically neglected, with severe scoliosis and impaired
vision. If left untreated, he could suffer irreversible loss of vision
and organ damage. His speech was greatly delayed. Mother was
aware of C.W.’s medical conditions but did not take him or P.W.
to doctors or dentists, or enroll C.W. in school.
C.W. fell and lacerated his head, then sustained a chemical
burn when Mother applied glue to the gash. The parents did not
seek care for days after C.W. developed an infection, began
vomiting, and had fever and diarrhea. A social worker met C.W.
at the hospital and observed his speech delays.
When interviewed for the detention report, both parents
denied Indian ancestry. A petition filed August 11, 2021, alleged
that Mother and Father sought no treatment for C.W.’s scoliosis
and strabismus; further, they waited four days before seeking
treatment for C.W.’s head injury. Their medical neglect places
C.W. and P.W. at risk of serious physical harm. The petition
contains an ICWA-010 form stating that there is no reason to
believe the children are Indian.
The social worker went to an encampment in Palmdale
where the family was living and discovered that their RV had
been destroyed by fire. The maternal grandmother (MGM) told
the social worker by phone that the family moved to Illinois to
live with the paternal grandfather (PGF) after losing all their
belongings in the fire.
The parents did not attend the detention hearing on
August 16, 2021. The court found no reason to know the children
are Indian. It ordered Mother and Father to keep DCFS, their
attorneys, and the court aware of any new information relating to
3
possible ICWA status. The court found a prima facie case for
detaining the children.
The court signed a protective custody warrant directing
DCFS to take custody of the minors. DCFS employees retrieved
them in Illinois and placed them with a caregiver in Los Angeles.
Mother and Father signed ICWA-020 forms on August 31,
2021, before a progress hearing in which they chose not to
participate. They denied having tribal membership, or that the
children are eligible for membership, or that their parents,
grandparents, or other lineal ancestors are or were members of a
tribe. The court found ICWA does not apply based on the
parents’ denial of Indian heritage. The DCFS jurisdiction
hearing report cites the court’s finding that ICWA does not apply
but does not state that extended relatives were interviewed.
The parents waived their appearances for the jurisdiction
and disposition hearing on October 14, 2021. The court sustained
the petition, declared the children dependents of the court, and
removed them from parental custody to protect their health. The
parents were given reunification services and visitation, though
they are in Illinois and the children are in DCFS custody in
California. Father appeals the disposition order.
DISCUSSION
We review ICWA findings under a substantial evidence
standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
If undisputed facts show the initial inquiry into Indian heritage
was deficient, we determine whether the deficiency invalidates
findings that ICWA does not apply. (In re Dezi C. (2022) 79
Cal.App.5th 769, 777, review granted Sept. 21, 2022, S275578
(Dezi).)
4
ICWA establishes standards to follow before an Indian
child is removed from parental custody. (In re Austin J. (2020) 47
Cal.App.5th 870, 881–882.) An “Indian child” 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.S. § 1903(4); Welf. & Inst. Code, § 224.1, subd.
(a).) From “the initial contact” with a family, DCFS and the court
have “an affirmative and continuing duty to inquire” whether a
child “is or may be an Indian child.” (§ 224.2, subd. (a).) This
means “asking the child, parents, legal guardian, Indian
custodian, extended family members, and others who have an
interest in the child . . . whether the child is, or may be, an Indian
child.” (Id., subd. (b).) At initial appearances, the court must ask
if a participant knows whether the child is Indian. (Id., subd.
(c).) Additional inquiry and notice to tribes is required only if
there is “reason to believe” or “reason to know” that the child is
Indian. (Id., subds. (d), (e) & (f).)
Father urges reversal because DCFS failed to “ ‘interview
extended family members to obtain whatever information they
may have as to the child’s possible Indian status.’ ” (In re A.C.
(2022) 75 Cal.App.5th 1009, 1015; § 242.2, subd. (b).) We agree
DCFS fell short in its initial ICWA duty: The social worker
called MGM when the family disappeared from Palmdale but did
not ask her, PGF, or others about Indian heritage. (§ 242.2, subd.
(b).) Despite the shortcomings in the DCFS inquiry, this does not
justify reversal of the jurisdiction or disposition orders.
Some courts have held that failure to question extended
family members requires automatic reversal, “no matter how
‘slim’ the odds are that further inquiry on remand might lead to a
different ICWA finding by the juvenile court.” (Dezi, supra, 79
5
Cal.App.5th at p. 777, rev.gr.) We do not follow the automatic
reversal rule. (Id. at pp. 782–785.)
“In our view, an agency’s failure to conduct a proper initial
inquiry into a dependent child’s American Indian heritage is
harmless unless the record contains information suggesting a
reason to believe that the child may be an ‘Indian child’ within
the meaning of ICWA, such that the absence of further inquiry
was prejudicial to the juvenile court’s ICWA finding. For this
purpose, the ‘record’ includes both the record of proceedings in
the juvenile court and any proffer the appealing parent makes on
appeal.” (Dezi, supra, 79 Cal.App.5th at p. 779, fn. omitted,
rev.gr.)
Father cites nothing in the trial record indicating possible
Indian heritage. Nor does he make a proffer on appeal of such
heritage. (Dezi, supra, 79 Cal.App.5th at p. 786, rev.gr.; Code
Civ. Proc., § 909.) Father does not assert even a bare claim of
membership in a federally recognized tribe or that his children
are eligible for tribal membership as “the biological child[ren] of a
member of an Indian tribe.” (25 U.S.C.S. § 1903(4).)
The record shows no reason to believe C.W. and P.W. are
Indian children. The parents currently live with PGF; Mother
was raised by MGM and saw her father while growing up. Thus,
there is no concern the parents do not know their heritage.
Mother and Father verbally denied Indian heritage when
interviewed for the detention report, then formally attested on
official forms that they have no Indian heritage. They elected not
to appear remotely via Webex for the detention or jurisdiction
hearings, to be questioned on the record about Indian heritage.
(§ 224.2, subd. (c).) Counsel for the parents and children did not
suggest possible Indian heritage or demand further inquiry.
6
A judgment cannot be set aside unless it has resulted in a
miscarriage of justice, meaning “it is reasonably probable that a
result more favorable to the appealing party would have been
reached in the absence of the error.” (People v. Watson (1956) 46
Cal.2d 818, 836; Dezi, supra, 79 Cal.App.5th at p. 779, rev.gr.)
Father has not shown a miscarriage of justice.
We note that this case is in its earliest phase. As it
progresses, DCFS and the court have “an affirmative and
continuing duty to inquire” whether a child “is or may be an
Indian child.” (§ 224.2, subd. (a), italics added.) Father has now
brought his ICWA inquiry claim to the attention of DCFS and the
court. The parents and extended family members can still be
questioned about Indian ancestry, by DCFS and in court. The
court’s prior determination that the children are not Indian may
be superseded if the court or DCFS receives information about
Indian ancestry that contradicts the parents’ denials of such
ancestry. (In re S.H. (2022) 82 Cal.App.5th 166, 176–177, 179
[declining to reverse a disposition order due to a deficient initial
ICWA inquiry, where the agency and the court were aware of
their continuing duty to inquire about Indian ancestry].)
7
DISPOSITION
The October 14, 2021 adjudication and disposition orders
are affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
8