Opinion
B316489
01-23-2023
In re A.H., A Person Coming Under the Juvenile Court Law. v. D.P. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant D.P. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant E.H. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Avedis Koutoujian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20CCJP01273A, Terry T. Truong, Judge Pro Tempore of the Juvenile Court. Affirmed.
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant D.P.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant E.H.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Avedis Koutoujian, Deputy County Counsel, for Plaintiff and Respondent.
EGERTON, J.
Mother and father appeal an order terminating their parental rights. They contend the Los Angeles County Department of Children and Family Services (Department) failed to conduct an adequate inquiry to determine whether their daughter A.H. is an Indian child under state law (Welf. &Inst. Code, § 224 et seq.) implementing the Indian Child Welfare Act of 1978 (ICWA or Act) (25 U.S.C. § 1901 et seq.), and they argue the evidence was insufficient to support the juvenile court's finding that an Indian child was not involved. We conclude substantial evidence supports the court's ICWA finding and the record does not establish a miscarriage of justice occurred. We affirm.
FACTS AND PROCEDURAL HISTORY
In March 2020, the Department filed a dependency petition on behalf of A.H. (born January 2020), asserting three counts of neglect based on the parents' persistent substance abuse and failure to obtain necessary medical care for the infant. (§ 300, subd. (b).) In a detention report filed with the petition, the investigating social worker reported she had "spoke[n] with mother and father who denied Native American ancestry."
Before the detention hearing, mother filed a Parental Notification of Indian Status form (ICWA-020), checking a box indicating, "I have no Indian ancestry as far as I know." She also submitted a relative information sheet for foster placement purposes, providing the address and contact information for the maternal grandmother and a maternal cousin.
The juvenile court acknowledged mother's ICWA-020 response at the detention hearing and questioned her counsel about whether mother had any reason to believe father had Indian heritage. After conferring with mother and the maternal grandmother, counsel informed the court that "neither" believed father had Indian heritage.
After the detention hearing, father made his first appearance in the case. He filed an ICWA-020 form, checking a box indicating, "I have no Indian ancestry as far as I know." The court found ICWA did not apply to the case.
By the time of the adjudication hearing, A.H. had been placed with a relative caregiver-her maternal great aunt. The great aunt had known mother all mother's life and she was present for A.H.'s birth.
Mother reported she was raised in Los Angeles by the maternal grandmother. She had no contact with her father. She had one brother with whom she had a good relationship. She did not experience physical or mental abuse growing up, her childhood home was free of drugs and domestic violence, and she denied any history of mental illness.
Father reported he was born and raised in Belize as an only child. He still had a good relationship with both parents, and he had immigrated to the United States with the paternal grandmother, with whom he currently lived. His childhood was free of physical or mental abuse, domestic violence, and drug abuse.
The juvenile court sustained the petition and, in January 2021, terminated the parents' reunification services. A concurrent planning assessment noted A.H. was not "ICWA Eligible," and there is no record of the Department interviewing any family members about the child's heritage following the court's original ICWA finding.
In November 2021, the juvenile court terminated mother's and father's parental rights, releasing A.H. for adoption by the maternal great aunt. The parents filed timely notices of appeal.
DISCUSSION
1. Governing Law and Standard of Review
Congress enacted ICWA 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), and "to promote the stability and security of Indian tribes and families by establishing . . . standards that a state court . . . must follow before removing an Indian child from his or her family" (In re Austin J. (2020) 47 Cal.App.5th 870, 881; In re Ezequiel G. (2022) 81 Cal.App.5th 984, 998 (Ezequiel G.), review den. Nov. 22, 2022, S276223.)
"California adopted conforming legislation in 2006 (Sen. Bill No. 678 (2005-2006 Reg. Sess.)), which was amended effective January 1, 2019 (Assem. Bill No. 3176 (2017-2018 Reg. Sess.)). As currently written, the law provides that the court and county welfare department have an affirmative and continuing duty to inquire whether a child for whom a petition may be filed is or may be an 'Indian child' (§ 224.2, subd. (a))- that is, an '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 § 224.1, subd. (a) [adopting federal definition])." (Ezequiel G., supra, 81 Cal.App.5th at p. 998.)
"The state law duty to make an ICWA inquiry 'begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child.' (§ 224.2, subd. (a).) If a child is removed from parental custody, the county welfare department 'has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking 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 and where the child, the parents, or Indian custodian is domiciled.' (§ 224.2, subd. (b).)" (Ezequiel G., supra, 81 Cal.App.5th at p. 998.)
"If the initial inquiry provides 'reason to believe' that an Indian child is involved in a proceeding-that is, if the court or social worker 'has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe'-then the court or social worker 'shall make further inquiry' regarding the child's possible Indian status as soon as practicable. (§ 224.2, subd. (e).) Further inquiry 'includes, but is not limited to, all of the following: [¶] (A) Interviewing the parents, Indian custodian, and extended family members . . . . [¶] (B) Contacting the Bureau of Indian Affairs and the State Department of Social Services . . . . [and] [¶] (C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility.' (Ibid.)" (Ezequiel G., supra, 81 Cal.App.5th at p. 999.)
"If there is 'reason to know' a child is an Indian child, the agency shall provide notice to the relevant tribes and agencies in accordance with section 224.3, subdivision (a)(5). (§ 224.2, subd. (f).) There is 'reason to know' a child is an Indian child if any one of six statutory criteria is met-i.e., if the court is advised that the child 'is an Indian child,' the child's or parent's residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).)" (Ezequiel G., supra, 81 Cal.App.5th at p. 999.)
"If the juvenile court finds that 'proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child,' the court may make a finding that ICWA does not apply to the proceedings, 'subject to reversal based on sufficiency of the evidence.' (§ 224.2, subd. (i)(2).)" (Ezequiel G., supra, 81 Cal.App.5th at p. 999.)
2. Substantial Evidence Supports the Juvenile Court's ICWA Finding
The parents contend there was insufficient evidence to support the juvenile court's ICWA finding because the Department failed to conduct a proper and adequate inquiry of extended family members. They contend the Department was statutorily mandated to interview all maternal and paternal relatives who were available during the course of the dependency proceeding, and they argue the juvenile court was obligated to ensure those interviews occurred before it could find ICWA did not apply to the case.
We considered a substantively similar argument in Ezequiel G. The mother there argued the juvenile court erroneously relied upon the parents' declaration s that "they did not have Indian ancestry as far as they knew" in finding ICWA did not apply, despite the availability of several identified extended family members whom the Department failed to ask about the child's possible Indian heritage. (Ezequiel G., supra, 81 Cal.App.5th at pp. 997-998.) Addressing the contention, we considered the initial duty to inquire of "extended family members" under the plain text of our state's ICWA law (§ 224.2, subd. (b)) and how a juvenile court should understand that duty in assessing whether "proper and adequate further inquiry and due diligence" have been conducted (§ 224.2, subd. (i)(2)). (Ezequiel G., at pp. 1004-1006.) Because "complying with the literal language of the statute-that is, making an initial and further ICWA inquiry of every member of a child's extended family, including first and second cousins, plus every other person who has an interest in the child-is absurd at best and impossible at worst," we determined a literal construction had to be discarded to avoid absurd results and to give effect to the manifest purposes of the statute. (Id. at pp. 1006, 1008-1009; see Stokes v. Baker (2019) 35 Cal.App.5th 946, 957.) Recognizing that "the question at the heart of the ICWA inquiry" is "[w]hether a child involved in a proceeding 'is or may be an Indian child,'" we held "the focus of the [juvenile] court's analysis should not be on the number of individuals interviewed, but on whether the [Department's] ICWA inquiry has yielded reliable information about a child's possible tribal affiliation." (Ezequiel G., at p. 1009, italics added, quoting § 224.2, subd. (a).)
Applying that standard to the mother's contention in Ezequiel G., we concluded the parents' denials of Indian ancestry were alone sufficient to find the Department's ICWA inquiry had yielded reliable information about the child's tribal affiliation. (Ezequiel G., supra, 81 Cal.App.5th at p. 1015.) In reaching this conclusion, we rejected "the suggestion made in some recent appellate decisions that a parent may not have reliable information about tribal membership." (Id. at p. 1011, citing In re T.G. (2020) 58 Cal.App.5th 275, 295.) As we explained," 'ICWA does not apply simply based on a child or parent's Indian ancestry' "; rather, "the 'definition of "Indian child"' is 'based 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.'" (Ezequiel G., at p. 1009, quoting U.S. Dept. of Interior, Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016) p. 10 <https://www.bia.gov/sites/default/files/ dup/assets/bia/ois/pdf/idc2-056831.pdf> [as of July 29, 2022], archived at <https://perma.cc/5758-64CA> and Indian Child Welfare Act Proceedings, 81 Fed.Reg. 38778, 38795 (June 14, 2016) (BIA ICWA Proceedings), italics added.) We emphasized," 'Tribal citizenship (aka Tribal membership) is voluntary and typically requires an affirmative act by the enrollee or her parent,'" such as" 'the filing of an application'" " 'for Tribal citizenship on behalf of the child.'" (Ezequiel G., at pp. 1009 1010, quoting BIA ICWA Proceedings, 81 Fed.Reg. at p. 38783, italics added.) Thus, because tribal membership typically requires an affirmative act, we held "a child's parents will, in many cases, be a reliable source for determining whether the child or parent may be a tribal member," and a juvenile court may therefore "find an ICWA inquiry was adequate even if an agency has not interviewed some available family members." (Ezequiel G., at p. 1010.)
Applying the Ezequiel G. standard to the record in this case, we agree with the Department that the parents' denials of Indian ancestry constituted sufficient evidence to support the juvenile court's finding that ICWA does not apply to this case. As in Ezequiel G., the evidence here shows the parents had contact with their identified extended families throughout their childhood and into their adult lives. Thus, the possibility that they might unknowingly be members of a tribe is "trivially small." (Ezequiel G., supra, 81 Cal.App.5th at p. 1015; cf. In re Y.W. (2021) 70 Cal.App.5th 542, 548 [mother was adopted and did not have information about her biological relatives]; In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016 ["mother was the product of foster care and thus may not have known her cultural heritage"].) And, critically, because the juvenile court could reasonably infer that the parents would know whether they took the sort of affirmative steps necessary to establish a political relationship to a tribe, the court also could reasonably find their denials of Indian heritage reliably established A.H. was not an Indian child within the meaning of ICWA. (See Ezequiel G., at pp. 1009-1010.) On this record, substantial evidence supports the juvenile court's ICWA finding.
Even if there were reason to deem the parents' denials unreliable (cf. Ezequiel G., supra, 81 Cal.App.5th at p. 1012), remand for further ICWA inquiry still would not be warranted because the parents have not presented a record demonstrating prejudice. The parents argue an alleged ICWA error is not susceptible to prejudice analysis because parents cannot be expected to possess the information necessary to demonstrate a different result was reasonably probable in the absence of error. Instead, they argue we must presume "a reversal would bring information regarding the child's ancestry, cultural heritage, tribe involvement, and further, possible tribal benefits." We disagree.
The parents' contention advances what we and other courts have characterized as "a rule of automatic reversal." (Ezequiel G., supra, 81 Cal.App.5th at p. 1002; see, e.g., In re Dezi C. (2022) 79 Cal.App.5th 769, 777 (Dezi C.), review granted Sept. 21, 2022, S275578.) Under this rule, "appellate courts have reversed orders terminating parental rights on the mere showing that relatives identified in the juvenile court record were not asked about the family's possible Indian ancestry." (Ezequiel G., at p. 1000.) In Ezequiel G. we rejected this approach as incompatible with ICWA's text and its central purpose to protect Indian families and communities. As we explained, "nothing in [§ 224.2, subd. (i)(2)]'s language suggests that ICWA error requires reversal in the absence of a showing of prejudice." (Id. at p. 1002.) Furthermore, automatic reversal discourages parents and their counsel from bringing ICWA errors to the juvenile court's attention, thus undermining the critical role that early identification of Indian children plays in proper implementation of ICWA. (Id. at p. 1003.)
The Dezi C. court similarly rejected the automatic reversal rule, opting instead to fashion a" 'reason to believe' rule" that "weaves together the test for harmless error compelled by our state's Constitution with the cascading duties of inquiry imposed upon agencies by our state's ICWA statutes." (Dezi C., supra, 79 Cal.App.5th at pp. 779, fn. omitted, 784.) In Ezequiel G., we adopted the Dezi C. rule as the appropriate standard for assessing prejudicial error where an appeal is taken from an order terminating parental rights on the ground that an ICWA inquiry was inadequate. (Ezequiel G., supra, 81 Cal.App.5th at p. 1014, citing Dezi C., at p. 779.) Under the rule, a child welfare 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." (Dezi C., at p. 779.) "For this purpose, the 'record' includes both the record of proceedings in the juvenile court and any proffer the appealing parent makes on appeal." (Ibid.) As the Dezi C. court explained, "a reviewing court would have 'reason to believe' further inquiry might lead to a different result if the record indicates that someone reported possible American Indian heritage and the agency never followed up on that information; if the record indicates that the agency never inquired into one of the two parents' heritage at all [citation]; 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." (Ibid.)
There is no indication in the record that someone reported possible American Indian heritage, let alone that the Department failed to follow up on such information. On the contrary, the record confirms the Department asked both parents about their Indian heritage and both parents denied they had any reason to believe A.H. is an Indian child. And, although the parents were in contact with the extended family members who they contend the Department should have interviewed, they proffer nothing on appeal to suggest these relatives have information that would have given the juvenile court a reason to believe A.H. is an Indian child. (Cf. Dezi C., supra, 79 Cal.App.5th at p. 779 [for purposes of demonstrating prejudicial ICWA error record includes any "proffer the appealing parent makes on appeal"].)
Finally, father reported he was raised by both parents and maintained a good relationship with them, yet neither gave him reason to believe A.H. is an Indian child. Mother likewise reported she was raised by the maternal grandmother, with whom she lived at times during the dependency proceeding, yet her mother gave her no reason to believe A.H. is an Indian child. While mother said she had no contact with the paternal grandfather, it is undisputed that he was unavailable during the dependency proceeding, and the parents do not contend the Department had an obligation to interview him about A.H.'s heritage. On this record, any purported error related to the Department's failure to interview extended relatives is harmless and does not warrant reversal. (See Ezequiel G., supra, 81 Cal.App.5th at p. 1014.)
DISPOSITION
The order is affirmed.
I concur: EDMON, P.J.
RICHARDSON (ANNE K.), J., [*] Dissenting.
I respectfully disagree with the majority's conclusion that the juvenile court did not err in finding that ICWA did not apply, and I would conditionally affirm the court's order terminating parental rights subject to further ICWA compliance.
The language of the governing statute provides that: "Inquiry includes, but is not limited to, asking 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." (Welf. &Inst. Code, § 224.2, subd. (b), italics added.) This provision was added (and prior section 224.3 repealed) effective January 1, 2019. As stated in the Legislative Counsel's Digest of Assembly Bill 3176, this "bill would revise the specific steps a social worker, probation officer, or court is required to take in making an inquiry of a child's possible status as an Indian child." (Legis. Counsel's Dig., Assem. Bill No. 3176 (2017-2018 Reg. Sess.).) California Rules of Court, rule 5.481(a)(5) also requires the Department on an ongoing basis to report "a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status."
Essentially, the language of the 2019 amendment flips the burden for obtaining that information such that the court and the child welfare department can no longer rely on waiting to get information from a relevant party. Now, it is the department's obligation to make an affirmative inquiry, and the court's obligation to find that an adequate inquiry has been made. (Welf. & Inst. Code, § 224.2, subd. (i)(2).)
There may be times when it is not feasible to make contact with all of the persons listed in the code: when they refuse to respond, when no contact information is provided, and certainly if there are no such relevant persons or such persons are deceased. In this case, however, the Department failed to make any inquiry of those relatives that were available for inquiry, or at the very least, failed to document its inquiry. These relatives included maternal grandmother, maternal great-grandparents, the maternal great-aunt, the maternal cousin, and the paternal grandfather. Under these circumstances, I would conclude that there was no substantial evidence to support a finding that the Department's inquiry was proper, adequate, and duly diligent.
Appellate courts have adopted several divergent standards for determining whether the failure to comply with the duty of inquiry is prejudicial error. These standards have been described as ranging from an automatic reversal approach (In re A.R. (2022) 77 Cal.App.5th 197, 207; In re Y.W. (2021) 70 Cal.App.5th 542, 556), to a presumptive affirmance rule (In re A.C. (2021) 65 Cal.App.5th 1060, 1065), with variations in between, including the reason-to-believe test (In re Dezi C. (2022) 79 Cal.App.5th 769, 779, review granted Sept. 21, 2022, S275578), and whether there is readily obtainable information likely to "bear meaningfully" on whether the child is an Indian child (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744).
The choices presented by these conflicting standards are stark. On the one hand, the prospect of allowing an appellant to raise an alleged ICWA issue for the first time on appeal, without evidence that there is Indian ancestry, flies in the face of constitutional principles that only prejudicial errors that have been duly preserved can be reversed on appeal. (See Dezi C., supra, 79 Cal.App.5th at pp. 779, 781.)
On the other hand," 'ICWA compliance presents a unique situation'" because its purpose, and the purpose of the California statutes that implement it," 'is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child, and whether the tribe wishes to intervene in the proceedings.'" (In re K.H. (2022) 84 Cal.App.5th 566, 608 (K.H.); In re Isaiah W. (2016) 1 Cal.5th 1, 15.) "Indian tribes have interests protected by ICWA that are separate and distinct from the interests of parents of Indian children. [Citation.] ICWA's notice requirements are 'intended to protect the interests of Indian children and tribes despite the parents' inaction.'" (Isaiah W., at p. 13.) Therefore, "to require a parent to prove on appeal . . . that there is reason to believe a child may have Indian ancestry . . . would frustrate the ICWA federal and state statutory scheme." (K.H., at p. 613.)
After weighing these competing principles, I agree with the court in K.H. that Congress and the California legislature have spoken, and the legislative mandate is clear. (K.H., supra, 84 Cal.App.5th at pp. 615-616.) And while the number of Indian children involved in dependency cases may be small, it is not for us to weigh the odds or re-weigh the competing policy considerations. (Id. at pp. 619-620.)
As in K.H., the record in this case reflects that the Department was in touch with several relatives and either did not inquire of anyone beyond father and mother or did so but neglected to document the inquiries and responses received. (Cal. Rules of Court, rule 5.481 (a)(5).) This left the juvenile court with no evidence upon which it could find that the inquiry was proper, adequate, and duly diligent. This error is prejudicial because, limited only to the parents, the inquiry fell short of that required to safeguard the rights of the tribes. (K.H., supra, 84 Cal.App.5th at p. 620.)
For all these reasons, I would not find the error in the failure to comply with the duty of inquiry to be harmless in this case.
[*]Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.