Opinion
B330398
04-26-2024
In re JAYDEN B. et al., Persons Coming Under the Juvenile Court Law. v. S.E., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 18CCJP06243 Kristen Byrdsong, Judge Pro Tempore. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.
BENDIX, Acting P. J.
The juvenile court asserted dependency jurisdiction over Jayden B., Jacqueline E., and M.E., finding that their mother failed to protect them from domestic violence. Nearly five years after these proceedings began, the court terminated mother's parental rights. On the date mother's rights were terminated, Jayden was seven, Jacqueline was three, and M.E. was two.
On appeal from the orders terminating her parental rights, mother raises three claims of error: (1) the juvenile court abused its discretion by denying her request for a bonding study; (2) the court erred in finding mother failed to establish the exception to termination of parental rights in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i); and (3) the Los Angeles County Department of Children and Family Services (DCFS or the agency) violated California law implementing the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) by failing to contact the Shoshone tribes and the Bureau of Indian Affairs (BIA) to conduct further inquiry regarding the children's potential Indian status.
As we explain in Discussion, part B, post, the Supreme Court has labeled this provision "the parental-benefit exception." Undesignated statutory references are to the Welfare and Institutions Code.
Mother fails to show the juvenile court erred in concluding it did not need a bonding study to assess whether the parental-benefit exception applied. Further, mother has not established the evidence compelled the juvenile court to find, as a matter of law, that the children would benefit from continuing their relationship with her, which is an essential element of the parental-benefit exception. Lastly, we conclude that DCFS's alleged violation of state law implementing ICWA was harmless because mother and maternal great-aunt refused to disclose information the Shoshone tribes would have needed to determine whether the minors were Indian children, and contacting the BIA would not have cured that problem. We thus affirm.
In describing the underlying dependency proceedings, we rely in part on admissions made by the parties in their appellate briefing. (See Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [" '[A] reviewing court may make use of statements [in briefs and argument] . . . as admissions against the party [advancing them].' "].) We also rely in part upon, and grant mother's unopposed request for judicial notice of, our prior opinion in case No. B316426. (Evid. Code, §§ 452, subd. (d), 459.)
The record is extensive. We summarize only those portions of the proceedings necessary for context. We address facts relevant to mother's appellate claims in our Discussion, post.
In September 2018, DCFS filed a petition pursuant to section 300, subdivisions (a) and (b)(1) on behalf of Jayden B., who at that time was two years old. As later sustained by the juvenile court in January 2019, the petition alleged, inter alia, that an individual who may have been Jayden's father (alleged father) struck mother with a cup repeatedly, the alleged father physically abused Jayden, and mother failed to protect Jayden by allowing the alleged father to have unlimited access to Jayden. In February 2019, the juvenile court declared Jayden a dependent of the court and ordered DCFS to provide family reunification services to mother. In February 2020, the juvenile court found mother had not made substantial progress with her case plan and terminated her reunification services with respect to Jayden.
Mother and DCFS are the only parties to this appeal.
In December 2020, DCFS filed a petition pursuant to section 300, subdivisions (a), (b)(1), and (j) on behalf of nine-month-old Jacqueline E., alleging, among other things, that mother and Jacqueline E.'s father, C.E., had a history of engaging in violent physical altercations in the child's presence. In February 2021, the juvenile court sustained the petition, declared Jacqueline a dependent, and granted mother family reunification services.
In June 2021, DCFS filed a dependency petition under section 300, subdivisions (a), (b)(1), and (j) on behalf of one-month-old M.E. based on mother's and C.E.'s history of engaging in violent altercations. In November 2021, the juvenile court sustained the petition, declared M.E. a dependent, and granted mother family reunification services.
Also in November 2021, the juvenile court denied a petition mother had filed under section 388, wherein she had sought an order providing her further reunification services with Jayden. In case No. B316426, we affirmed the order denying mother's section 388 petition.
In October 2022, the juvenile court terminated mother's family reunification services for Jacqueline and M.E.
On June 16, 2023, the juvenile court held a section 366.26 hearing. The court rejected mother's contention that the parental-benefit exception applied, and terminated her parental rights as to Jayden, Jacqueline, and M.E. Mother timely appealed the orders terminating her parental rights as to the three children.
"' "A section 366.26 hearing . . . is . . . specifically designed to select and implement a permanent plan for the child." [Citation.]' . . . [¶] . . . [¶] At a section 366.26 hearing, the court must terminate parental rights and free the child for adoption if it determines by clear and convincing evidence the child is adoptable within a reasonable time, and the parents have not shown that termination of parental rights would be detrimental to the child under any of the statutory exceptions . . . ." (In re D.M. (2012) 205 Cal.App.4th 283, 289290.)
DISCUSSION
On appeal, mother argues: (1) the juvenile court erred in denying mother's request for a bonding study, thereby hindering her ability to establish the parental-benefit exception to termination of parental rights; (2) the court erred in concluding that the parental-benefit exception did not apply; and (3) DCFS failed to contact the Shoshone tribes and the BIA to conduct further inquiry regarding whether the minors are Indian children under ICWA.
As set forth below, we conclude mother fails to demonstrate the juvenile court abused its discretion in denying her request for a bonding study. She also fails to show the juvenile court erred in finding that she did not establish an essential element of the parental-benefit exception, that is, that the children would benefit from continuing their relationship with mother. Lastly, assuming arguendo DCFS failed to discharge its duty of further inquiry imposed by California law implementing ICWA, we conclude this failure was harmless.
A. Mother Fails To Demonstrate the Juvenile Court Abused Its Discretion In Concluding She Did Not Need a Bonding Study To Establish the Parental-Benefit Exception
"In attempting to establish or eliminate th[e parental-benefit] exception to the preference for adoption, the parties or the court may require a bonding study to illuminate the intricacies of the parent-child bond so that the question of detriment to the child may be fully explored." (See In re S.R. (2009) 173 Cal.App.4th 864, 869.) Approximately four months prior to the section 366.26 hearing, the juvenile court denied mother's request to order a bonding study for the three children.
"There is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339 (Lorenzo C.).) We review an order denying a request for a bonding study for abuse of discretion. (See id. at p. 1341.) We thus determine "whether, under all the evidence viewed in a light most favorable to the juvenile court's action, the juvenile court could have reasonably refrained from ordering a bonding study." (See ibid.)
Numerous reports documenting mother's visits with Jayden, Jacqueline, and M.E. were submitted to the juvenile court during the four and a half years in which this case was pending. Given the state of the evidentiary record, the juvenile court could have reasonably concluded that ordering a bonding study would have been unnecessary. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [observing that "the nature and extent of the particular relationship [between the parent and the child] should be apparent" by the time of a § 366.26 hearing because "the parent and child [often will] have been in the dependency process for 12 months or longer, during which time .... [s]ocial workers, interim caretakers and health professionals will have observed the parent and child interact and provided information to the court"].)
Mother insists that DCFS's reports of her visits with the children did not "describ[e] the nature of mother's relationship with her children" because the agency "more often than not described mother's interactions with [DCFS] staff and [her] ability to follow visitation rules and/or have respect for authority." This contention fails because, as we explain in Discussion, part B, post, DCFS's reports indicate the children reacted negatively to the inappropriate behavior mother had directed toward the agency's personnel in the presence of the children.
Next, mother asserts, "[T]here was evidence outside the record that there were good visits and a beneficial relationship" such that "the juvenile court did not have before it all the information it required to make an educated decision regarding the nature of the children's relationship with mother and was thus remiss in refusing to order a bonding study." In particular, mother argues that at a hearing in February 2023, the children's trial counsel represented that Jayden's "caregivers 'indicated they wish[ed] to have an open adoption with the mom remaining in [Jayden's] life,' which [(mother claims)] indicated that the caregivers believed the relationship was of benefit to Jayden." Mother asserts this attorney further indicated the children's caregivers had informed counsel that" 'there are a lot of . . . good visits and the kids come back fine and there's no issues.'" Assuming arguendo the caregivers possessed additional information bearing on the applicability of the parental-benefit exception, mother offers no explanation as to why she could not have obtained that purported favorable evidence through means other than a bonding study, for example, testimony on this point from the caregivers at the section 366.26 hearing. She thus fails to undermine the presumption that "the juvenile court could have reasonably refrained from ordering a bonding study."
(See Lorenzo C., supra, 54 Cal.App.4th at p. 1341; see also In re J.F. (2019) 39 Cal.App.5th 70, 79 (J.F.) ["The juvenile court's orders are 'presumed to be correct, and it is appellant's burden to affirmatively show error.' [Citations.] .... '" 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.'"' "].)
Mother further argues that Jayden had a "complex" attachment to her such that "a bonding study would have been valuable in clarifying the nature of Jayden's attachment to mother." Mother asserts DCFS observed that when mother visited the children on November 22, 2022, Jayden" 'perform[ed] almost manic antics to get [mother's] attention[,]'" and" 'bec[ame] sullen [and] exhibit[ed] . . . outbursts of seemingly unprompted anger.' "
This argument fails under the deferential abuse of discretion standard. In a last minute information report filed by DCFS on July 27, 2022, the agency stated mother told Jayden during a visit that "she would give up and . . . not fight for him anymore" and would "not want more visits with" him if Jayden wanted to live with and be adopted by his foster parents. The report reveals that at the conclusion of the visit, Jayden did not look at mother, kept his head down, and "hesitate[d] to say his goodbyes to his mom." Based on this evidence, the juvenile court could have reasonably concluded that mother was making Jayden feel the dependency proceedings were his fault and he could control their outcome, and that mother's behavior caused Jayden later to engage in desperate attention-seeking behavior.Consequently, the court's decision not to obtain a bonding study to ascertain the cause of Jayden's attention-seeking behavior fell within the bounds of reason. (See In re L.W. (2019) 32 Cal.App.5th 840, 851 ["The appropriate test [under the abuse of discretion standard] is whether the court exceeded the bounds of reason."].)
We acknowledge that one could draw an inference from this evidence more favorable to mother, that is, that Jayden would suffer psychological harm if their relationship were severed, but our standard of review does not permit us to reweigh evidence or ignore inferences supporting the juvenile court's ruling. (See Lorenzo C., supra, 54 Cal.App.4th at p. 1341 ["The applicable standard of review is whether, under all the evidence viewed in a light most favorable to the juvenile court's action, the juvenile court could have reasonably refrained from ordering a bonding study," italics added].)
Lastly, mother claims that "a bonding study would also have been beneficial to the juvenile court in assessing the nature of [Jacqueline's and M.E.'s] relationship with mother ...." In support of this contention, mother asserts the record is "unclear" as to what DCFS was intending to convey when it had reported in early 2023 that Jacqueline and M.E. had" 'acclimated' to mother and appeared 'comfortable' with her during visits." In fact, the report mother cites instead indicates the children were "acclimated to" and "comfortable" with a particular DCFS staff member who had monitored mother's visits.
In sum, mother fails to show the juvenile court abused its discretion in denying her request for a bonding study.
B. Because Mother Does Not Show the Evidence Compelled the Juvenile Court To Find, as a Matter of Law, That Her Children Would Benefit From Continuing Their Relationship with Her, Mother's Claim of Error Regarding the Court's Rejection of the Parental-Benefit Exception Fails
"Even when a court proceeds to select a permanent placement for a child who cannot be returned to a parent's care, the parent may avoid termination of parental rights in certain circumstances defined by statute. One of these is the parental-benefit exception" provided in section 366.26, subdivision (c)(1)(B)(i). (See In re Caden C. (2021) 11 Cal.5th 614, 625 &fn. 2, 629 (Caden C.).) "What [the exception] requires a parent to establish, by a preponderance of the evidence, is that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child." (See id. at p. 629.) The juvenile court's focus "throughout [this analysis] is on the best interests of the child." (See id. at p. 632.)
Mother challenges the juvenile court's findings as to the second and third elements of the parental-benefit exception. Because we reject her challenge to the court's finding on the second element-whether the children would benefit from continuing their relationship with her-we do not address her other arguments. As to the second element, "the parent must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship." (See Caden C., supra, 11 Cal.5th at p. 636.) "[T]he relationship [between the parent and child] may be shaped by a slew of factors, such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.' [Citation.] . . . [C]ourts often consider how children feel about, interact with, look to, or talk about their parents." (See id. at p. 632.)
We review the juvenile court's finding as to the second element of the parental-benefit exception for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 639.) "In reviewing factual determinations for substantial evidence, a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.' [Citation.] The determinations should 'be upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the [juvenile] court might have reached a different result had it believed other evidence.' [Citations.]" (Id. at p. 640.) "Under th[e substantial evidence] standard, 'when the trier of fact has expressly or implicitly concluded the party with the burden of proof did not carry the burden and that party appeals, . . ." 'the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.]'" '" (Garcia v. KND Development 52, LLC (2020) 58 Cal.App.5th 736, 744-745 (Garcia).)
Mother argues, "It does not appear the court properly examined the nature of the parent-child relationship to evaluate whether the children had a significant, positive, emotional attachment with mother." Mother observes the juvenile court remarked that" 'the children are repeatedly described as not having a bond with mother[,]'" and she argues, "The court does not appear to have evaluated the quality of the parent-child relationships or to have considered factors such as the childrens' [sic] ages, how much of their life [was] spent in mother's custody, the positive or negative effects of interaction with mother, and the children's particular needs." Mother further suggests the juvenile court "impermissibly" considered only "whether mother was respectful with visitation staff." Additionally, mother quotes our prior opinion's description of certain DCFS reports from 2021, for example, a social worker's statement that mother had a" 'good relationship'" with Jayden, to support her contention "there was evidence that Jayden . . . had a significant, positive emotional attachment with mother."
Mother has not demonstrated the juvenile court erred in finding she failed to establish the second element of the parental-benefit exception. As an initial matter, the fact the juvenile court did not reference explicitly all factors bearing on that element does not demonstrate the court failed to consider them. (See In re A.L. (2022) 73 Cal.App.5th 1131, 1156 ["[W]e are aware of no requirement . . . that the juvenile court, in finding the parental-benefit exception inapplicable, must recite specific findings relative to its conclusions regarding any or all of the three elements of the exception."].) Similarly, because" 'all presumptions and intendments are in favor of supporting the . . . order appealed from'" (see Estate of Sapp (2019) 36 Cal.App.5th 86, 104), the juvenile court's remark that "the children are repeatedly described as not having a bond with mother" does not establish that the court oversimplified its analysis and thereby failed to assess whether the children have "a substantial, positive, emotional attachment" to mother (see Caden C., supra, 11 Cal.5th at p. 636).
In asserting that the juvenile court focused improperly on reports of her interactions with visitation staff, mother ignores evidence of the negative impact of those interactions on her children. Mother acknowledges-but does not dispute-the juvenile court's findings that" 'mother's very out of control and poor behavior at the visits'" (i.e.," 'combative, inappropriate, and threatening behavior with the social workers' ") led the children to react negatively to her presence (e.g.," '[they are inconsolable] . . . and Jayden's acted out on numerous occasions' "). Indeed, mother admits "DCFS reported that during a visit on October 18, 2022, [she] began cursing at and violently arguing with [a] social worker in the presence of the children[, which] caused distress to the children and on-site law enforcement was needed to de-escalate the situation." Mother further acknowledges that during a visit on February 7, 2023, she made "inappropriate remarks in front of the children" and "yell[ed] at the social worker," and that "Jayden went to a corner of the room away from mother and did not want to continue to engage with her." She also concedes that DCFS reported in January 2023, "The foster parents of Jacqueline and [M.E. had] reported that when the children returned from their visits, they had trouble sleeping through the night ...." This evidence tends to establish that mother's interaction with the children had a"' "negative" effect'" on them, thereby demonstrating they would not benefit from continuing their relationship with her. (See Caden C., supra, 11 Cal.5th at p. 632.)
Mother contends the juvenile court should have "isolat[ed] the nature of the children's relationship with mother and examin[ed] that specifically," instead of taking into account "mother's relationship with [DCFS] and the court ...." Mother does not argue, however, that she would have been entitled to unmonitored visitation had her parental rights not been terminated. Because mother's future visits with the children presumably would have been monitored if her parental rights had not been terminated, we cannot say that mother's behavior toward DCFS staff, and the detrimental effect her behavior had on the children in the past, would not have any bearing on whether the children would benefit from continuing their relationship with her. Mother thus fails to demonstrate the juvenile court erred in considering her behavior toward the agency and the court in analyzing the parental-benefit exception. (See J.F., supra, 39 Cal.App.5th at p. 79.)
Mother's reliance on our April 2023 opinion's reference to the agency's 2021 reports of her interactions with Jayden is misplaced. Under the deferential substantial evidence standard of review, we do not" 'reweigh the evidence,'" and the mere existence of evidence arguably supportive of mother's position does not demonstrate error. (See Caden C., supra, 11 Cal.5th at p. 640.) Rather, mother must direct us to evidence that is" '" '(1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." '"' [Citations.]" (See Garcia, supra, 58 Cal.App.5th at pp. 744-745.) As noted above, mother acknowledges on appeal that the record includes other evidence not favorable to her concerning her relationship with Jayden, including reports of visits that were far more recent than those described in our prior opinion. Mother thus fails to demonstrate the evidence" '" 'compels a finding in [her] favor . . . as a matter of law'" '" on the second element of the parental-benefit exception. (See id. at p. 744.)
C. DCFS's Alleged Failure To Conduct Further Inquiry Under California Law Implementing ICWA Was Harmless, Given that Mother and Joyce R. Refused To Provide Basic Identifying and Contact Information that Would Have Enabled the Shoshone Tribes To Determine Whether the Minors Are Indian Children
"ICWA establishes minimum federal standards that a state court must follow before removing Indian children from their families. [Citation.] . . . An Indian child is any unmarried person under 18 who '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.' [Citations.]" (In re Ricky R. (2022) 82 Cal.App.5th 671, 678 (Ricky R.).)
"California law implementing ICWA also imposes [certain] requirements" upon DCFS and the juvenile court, including "an 'affirmative and continuing duty to inquire' whether a child in a dependency proceeding 'is or may be an Indian child.' [Citation.]" (See Ricky R., supra, 82 Cal.App.5th at pp. 675, 678, quoting § 224.2, subd. (a).) "The duty to inquire consists of two phases- the duty of initial inquiry and the duty of further inquiry." (Ricky R., at p. 678.) DCFS's" 'initial duty of inquiry includes "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." [Citation.]' [Citation.]" (See In re S.S. (2022) 75 Cal.App.5th 575, 577, 580 (S.S.).)
If DCFS or the juvenile court "has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court [or DCFS] . . . shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (See § 224.2, subd. (e).) "There is reason to believe a child involved in a proceeding is an Indian child whenever the court[ or DCFS] . . . 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." (See § 224.2, subd. (e)(1).)
"If there is 'reason to know' a child is an Indian child, [DCFS] shall provide notice to the relevant tribes and agencies in accordance with section 224.3, subdivision (a)(5). [Citation.] 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." (See In re Ezequiel G. (2022) 81 Cal.App.5th 984, 995, 999 (Ezequiel G.), quoting § 224.2, subds. (d) &(f).) "Notice enables the tribes 'to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in, or exercise jurisdiction over, the matter.' [Citation.]" (Ricky R., supra, 82 Cal.App.5th at p. 678.)
Although mother concedes that DCFS "made the initial inquiry required by ICWA by inquiring of all the available relatives regarding the children's Indian ancestry," she argues the agency failed to discharge its duty of further inquiry. Specifically, mother argues DCFS had reason to believe the minors were Indian children because (a) mother told the agency her great-grandparents may have been members of a Shoshone tribe, and (b) one of mother's relatives (Joyce R.) indicated this relative's great-great grandmother's parents were members of the Shoshone tribe. According to mother, DCFS should have contacted the Shoshone tribes "and possibly the BIA" to inquire further as to the children's Indian status.
In the opening brief, mother's appellate counsel asserts that in January 2023, mother told DCFS that" 'her great grandparents'" (i.e., the children's maternal great-great-grandparents)" 'may have been members of'" " 'the Shoshone tribe from California or Nevada.'" (Italics added.) Yet, the DCFS addendum report counsel cites indicates that in January 2023, mother informed the agency that maternal grandmother had said that maternal grandmother's grandmother (i.e., mother's great-grandmother/the children's maternal great-great-grandmother) "was part of a . . . Shoshone Tribe from California or Nevada." (Italics added & boldface omitted.) Additionally, although mother's appellate counsel asserts in the opening brief that" '[m]aternal aunt'" Joyce R." 'reported that her maternal great-great-grandmother's parents were members of the Shoshone tribe'" (italics added), the addendum report counsel cites shows that Joyce R. was the children's maternal great-aunt. It further shows that, although Joyce R. expressed uncertainty about whether she had Shoshone ancestry, she reported that "many years ago she heard from her mother that her great-great-grandmother's parents (on her mother's side) were Shoshone Indian." (Boldface omitted.) Regardless of whether mother's appellate counsel's characterizations of the record are accurate, her claim of error still fails for the reasons set forth in the text.
The Courts of Appeal are currently split on whether "a report of possible Indian ancestry" gives rise to a reason to believe minors are Indian children "trigger[ing] the duty of further inquiry" under California law implementing ICWA. (See In re E.C. (2022) 85 Cal.App.5th 123, 146-147 (E.C.) [collecting cases].) We need not enter this fray to resolve the instant appeal because, regardless of whether there existed a reason to believe Jayden B., Jacqueline E., and M.E. were Indian children, DCFS's alleged failure to contact the Shoshone tribes and the BIA was harmless.
Mother argues that DCFS failed to discharge its duty of further inquiry under section 224.2, subdivision (e). Our division has held that failure to conduct an adequate inquiry under California law implementing ICWA is governed by "[t]he usual test for prejudicial state law error," which is whether" 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citations.]" (See S.S., supra, 75 Cal.App.5th at pp. 581-583, quoting People v. Watson (1956) 46 Cal.2d 818, 836.) The record belies the existence of a reasonable probability that mother would have secured a more favorable result because mother and Joyce R. did not provide sufficient information for the agency to further inquire as to the possible Indian status of the children.
Section 224.2, subdivision (e)(2)(C) provides that in discharging its duty of further inquiry, DCFS "shall . . . shar[e] information identified by the tribe as necessary for the tribe to make a membership or eligibility determination ...." (See § 224.2, subd. (e)(2)(C).)" 'That determination often requires providing a tribe with extensive biographical data (that is, information about ancestors and ancestry) ....' [Citation.]" (See E.C., supra, 85 Cal.App.5th at p. 146.)
An addendum report filed by DCFS in May 2023 indicates that at that time, although mother had disclosed to the agency certain identifying information pertaining to several of her relatives (i.e., concerning the children's maternal greatgrandmother, their maternal grandmother, their maternal aunts and uncles, their maternal great-aunts, and their maternal first cousin once removed), mother was reluctant to disclose further family information to the agency, including any contact information for her family members, because "she d[id] not want herself or her children to be identified as . . . Indian" and mother did not want her relatives to learn of the dependency proceedings. (Boldface omitted.) Of note, the report shows that mother did not reveal the identity of the children's maternal great-great-grandparents, whom mother had previously claimed could have been part of a Shoshone tribe, and that mother disclosed only the first-but "would not" provide the last-name of a maternal great-grandmother.
Similarly, the addendum report shows that in January 2023, Joyce R. told the agency "she would have to check with family members first[ ] before" disclosing her "family tree" or "additional family members' contact information ...." Although DCFS reported its personnel attempted to obtain further information from Joyce R. by leaving a voicemail message for her in May 2023, there is no indication that Joyce R. returned that telephone call.
Given the dearth of information mother and Joyce R. were willing to reveal to DCFS concerning the children's alleged Indian ancestors, we conclude there is no reasonable probability that if the agency had contacted the Shoshone tribes, the tribes would have been able to make an eligibility or membership determination. (Cf. In re Q.M. (2022) 79 Cal.App.5th 1068, 1082 ["Where . . . a parent largely fails to cooperate with DCFS or to provide names and contact information for extended family members, DCFS's ability to conduct an exhaustive ICWA inquiry necessarily is constrained."].) Because the Shoshone tribes could not have conducted an eligibility or membership determination without having key identifying information, contacting the tribes could not have provided the agency or the juvenile court with a reason to know that the minors were Indian children. Accordingly, mother would not have been able to invoke ICWA's protections to avoid termination of her parental rights.
(See Ezequiel G., supra, 81 Cal.App.5th at p. 999 [indicating that ICWA's protections apply only if there is reason to know the minor is an Indian child]; see, e.g., Ricky R., supra, 82 Cal.App.5th at pp. 678-679 [indicating that a tribe's right to" 'intervene in, or exercise jurisdiction over, the matter'" is predicated on the juvenile court or the agency having" 'reason to know that an Indian child is involved' "].) In arriving at this conclusion, we do not suggest the minors are, in fact, Indian children. We simply point out that mother and Joyce R. failed to provide sufficient information to DCFS to allow the agency to contact the Shoshone tribes for the purpose of ascertaining whether there was reason to know the minors are Indian children.
Furthermore, under state law, DCFS must contact the BIA "for assistance in identifying the names and contact information of the tribes in which the child may be a member[ ] or eligible for membership ...." (See § 242.2, subd. (e)(2)(B).) Even if the agency had obtained tribal contact information from the BIA, as set forth in the preceding paragraphs, there is no reasonable probability that DCFS would have been able to relay biographical information to the tribes sufficient for conducting a membership and eligibility determination.
In sum, assuming arguendo DCFS had reason to believe the minors were Indian children, the agency's failure to conduct further inquiry was harmless error.
DISPOSITION
We grant mother's unopposed request for judicial notice of our prior opinion in case No. B316426. We affirm the juvenile court's June 16, 2023 orders terminating mother's parental rights as to Jayden B., Jacqueline E., and M.E.
We concur: CHANEY, J., WEINGART, J.