In re M.H. CA2/8 ( 2022 )

Filed 5/13/22 In re M.H. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re M.H. et al., Persons Coming B313118
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20CCJP00653A-B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.H. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles
County, Debra Archuleta, Judge. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for
Defendant and Appellant R.H.
Johanna R. Shargel, under appointment by the Court of Appeal,
for Defendant and Appellant J.G.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant
County Counsel, and Sarah Vesecky, Deputy County Counsel, for
Plaintiff and Respondent.
**********
Father R.H. and mother J.G. appeal the juvenile court’s order
terminating their parental rights to daughters M.H. and T.H., arguing
the Los Angeles County Department of Children and Family Services
(Department) made an inadequate inquiry under the Indian Child
Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). We affirm.
BACKGROUND
M.H. and T.H. were detained from mother and father after
infant T.H. was taken to the hospital and doctors discovered
numerous fractures in varying stages of healing, which were deemed
suspicious for physical abuse.
The petition states the children have no known Indian ancestry.
At the February 4, 2020 detention hearing, mother and father filed
parental notification of Indian status forms (ICWA–020) indicating “I
have no Indian ancestry as far as I know.” The juvenile court
acknowledged that “[b]oth parents have indicated under penalty of
perjury that they do not believe they have Native American ancestry.
Based thereon, the court finds that the ICWA does not apply to these
two children.” The minute order from the hearing recites that the
“[p]arents are to keep the Department, their Attorney and the Court
aware of any new information relating to possible ICWA status.” A
similar warning is recited in boldface font on the ICWA–020 forms.
The Department’s jurisdiction and disposition report reflects
that mother once again denied any Indian ancestry on March 10,
2020. Mother reported that maternal grandmother is Filipino, and
maternal grandfather is American and Filipino. Because father did
not make himself available to communicate with any representative of
the Department after the detention hearing, the Department had no
further opportunity to ask him about his social history or ancestry.
The Department contacted maternal grandmother and paternal
grandmother, but the record does not reflect whether they were asked
about any possible Indian ancestry.
2
On June 14, 2021, the juvenile court terminated mother’s and
father’s parental rights. This timely appeal followed.
DISCUSSION
Congress enacted ICWA “ ‘to protect the best interests of Indian
children and to promote the stability and security of Indian tribes and
families.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1, 8.) Welfare and
Institutions Code section 224.2 imposes on the juvenile court and the
Department “an affirmative and continuing duty to inquire whether a
child . . . is or may be an Indian child . . . .” (Id., subd. (a).) “If a child
is placed into the temporary custody of a county welfare department[,
the department] has a duty to inquire whether that child is an Indian
child[, including] asking the child, parents, . . . extended family
members, [and] others” whether the child is or may be an Indian
child. (Id., subd. (b).) The adequacy of the ICWA inquiry is reviewed
for sufficiency of the evidence, and the harmless error rule applies on
appeal. (In re S.B. (2005) 130 Cal.App.4th 1148, 1160–1162; but see
In re S.S. (2022) 75 Cal.App.5th 575, 581–582 [acknowledging that the
standard for assessing prejudice in ICWA cases is unsettled].)
Mother and father argue the Department made an inadequate
initial inquiry because it did not ask the children’s grandmothers
about possible Indian ancestry, and that the error was prejudicial
because the Department “failed to obtain information that appears to
have been both readily available and potentially meaningful.” (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 744.) Their reliance upon In
re Benjamin M. is unpersuasive. In that case, in finding the
Department’s initial inquiry was inadequate and the error was
prejudicial, the court observed that one parent was not available to
report or deny Indian ancestry, and the Department never inquired of
the missing parent’s available relatives. (Id. at pp. 744–745.) Here,
both mother and father were available (although father later stopped
communicating with the Department), and more than once denied any
Indian ancestry. We therefore reject the parents’ “unvarnished
3
contention that additional interviews of [relatives] would have
meaningfully elucidated the children’s Indian ancestry.” (In re
Darian R. (2022) 75 Cal.App.5th 502, 510.)1
DISPOSITION
The order terminating parental rights is affirmed.
GRIMES, Acting P. J.
I CONCUR:
HARUTUNIAN, J.*
1 The dissent argues we cannot determine if the error is harmless
because we do not know what extended family members would say.
But we do have reason to believe we know what they would say
because the children’s parents have certified they have no information
that Indian heritage exists in their lineage. And harmless error does
not equate with absolute certainty. Courts routinely hold that failing
to admit certain evidence was harmless error, even though the
possibility exists that the evidence might strike a particular juror
differently than the reviewing court. The only way to know for sure is
to retry every case where there is error. That approach itself results
in frequent needless harm, delay and expense, which is why the
harmless error doctrine ultimately results in a just outcome.
* Judge of the San Diego Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
4
WILEY, J., Dissenting.
I respectfully dissent. With little effort, the Department could
have asked the grandmothers about Indian heritage, but inexplicably
did not. I cannot tell if this error is harmless because, due to the
Department’s error, we lack information about what these extended
family members would have said.
If appellants have brought this appeal to achieve delay, I
condemn this tactic. Any delay, however, need not be significant if the
Department begins following the law with alacrity. Failure to conduct
a proper inquiry leaves a case vulnerable to collateral attack, which
“would be devastating to the concepts of finality and permanency.” (In
re A.R. (2022) 77 Cal.App.5th 197, 208.)
WILEY, J.
1