In re E.G. CA2/2 ( 2022 )

Filed 5/20/22 In re E.G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 E.G., JR., et al., Persons B315741
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
18CCJP00869F, G)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
N.V.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Stacy Wiese, Judge. Affirmed.
Karen B. Stalter, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant
County Counsel, for Plaintiff and Respondent.
N. V. (Mother) appeals an order terminating parental rights.
(Welf. & Inst. Code, § 366.26.)1 The children’s paternal grandmother
(PGM) is adopting them. Mother contends that the Los Angeles County
Department of Children and Family Services (DCFS) failed to
interview extended family members about their ancestry under the
Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.;
Welf. & Inst. Code, § 224 et seq.)
Mother, an immigrant from Mexico, denied Indian heritage and
never, since 2018, claimed otherwise. Neither DCFS nor the court had
reason to believe the children are Indian. Even now, Mother makes no
claim that she or any relative is Indian. She has not shown prejudice
from DCFS’s failure to interview extended family members. We affirm.
FACTS AND PROCEDURAL HISTORY
Mother has seven children born between 2001 and 2019. DCFS
has investigated the family multiple times since 2007. Two children
are the subject of this appeal: E.G., Jr. (born in 2017) and Y.G. (2019).
Their father E.G. (Father) did not appeal the termination of parental
rights.
When E.G., Jr. was three months old, DCFS learned that Father
sold drugs, hiding them among the baby’s clothes. Mother was
scratched and bruised from a violent altercation with Father, who
choked and threatened to kill her; she attempted suicide and was
involuntarily hospitalized. (§ 5150). She told DCFS she took cocaine,
methamphetamine and marijuana. She heard voices, tried to smash a
house window, punched her stomach while pregnant and drove while
Father clung to the side of her car. Though they sought mutual
restraining orders, the parents intend to remain together.
E.G., Jr. was detained and deemed “at very high risk” of abuse
and neglect. He was placed with PGM, where he has remained for over
four years. Attached to the dependency petition filed in February 2018
1 Unlabeled statutory references are to the Welfare and
Institutions Code.
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are “Indian Child Inquiry” forms stating that the children have “no
known Indian ancestry.”
On February 9, 2018, Mother and Father signed “Parental
Notification of Indian Status” (ICWA-020) forms. They declared under
penalty of perjury, “I have no Indian ancestry as far as I know.” The
detention report reads, “The parents . . . stated they do not have any
Native American ancestry.” At the detention hearing, the court cited
the ICWA-020 form to find that Father has no Indian ancestry, to
which his counsel said, “Correct.” Mother asserted that the father of
her oldest child is not Indian; the court replied, “Okay. Still no reason
to know [ICWA] applies.”
The minute order reads, “The Court does not have a reason to
know that this is an Indian Child, as defined under ICWA, and does not
order notice to any tribe or the BIA. Parents are to keep [DCFS], their
Attorney and the Court aware of any new information relating to
possible ICWA status. ICWA-020, the Parental Notification of Indian
Status is signed and filed.”
After detention, neither parent enrolled in a drug program.
Mother missed most drug tests and Father tested positive for
methamphetamine and marijuana. Mother confided to the social
worker that Father threatened to kill her in the past; she fears he will
harm her or the children if she leaves him. Mother was increasingly
paranoid; her appearance and demeanor suggested possible drug abuse.
PGM denied awareness of parental domestic violence but knew they
abuse drugs. The parents, who lived in a car, had always left E.G., Jr.
in PGM’s care.
Mother was born in Mexico in 1985. When she met with the
social worker in May 2018, she admitted missing drug tests but denied
drug use or domestic violence. She claimed people are trying to kill her
and her children are “hacking” into her phone and listening to her
conversations. The older children were shaken by Mother’s aggression.
Though Mother cannot have drug paraphernalia or be under the
influence at visits, PGM saw her with a pipe or bong while visiting
E.G., Jr.
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Born in Los Angeles to parents from Mexico, Father earns a
living from “side jobs.” He admitted a 10-year history of drug abuse but
denied recent use of methamphetamine. He admitted slapping Mother
but said she was “having a seizure” and he did not know what else to
do. He denied threatening to kill her. By August 2018, neither parent
visited E.G., Jr. or tested for drugs.
At the jurisdiction hearing on October 17, 2018, the court
sustained an amended petition, finding that the parents failed to
protect and endangered the children by engaging in violent physical
and verbal altercations in the presence of the children, including
choking, slapping, bruising, and a threat to kill; the parents’ substance
abuse prevents them from providing regular child care; Mother’s
mental and emotional problems and suicidal ideation make her
incapable of providing regular child care. At disposition, the parents
were ordered to participate in a full drug program, drug testing,
domestic violence and parenting programs, and individual counseling.
The children were removed from parental custody. The parents were
allowed monitored visits.
In April 2019, DCFS reported that E.G., Jr. was bonded with
PGM, with whom he has lived since infancy. His parents were
homeless, slept on the streets and did not visit him. They ended
contact with DCFS, so it was unknown if they enrolled in court-ordered
programs. Mother was pregnant but did not have prenatal care. When
she gave birth, prematurely, she and newborn Y.G. tested positive for
methamphetamine.
DCFS detained Y.G. and filed a petition. An inquiry under ICWA
showed Y.G. has no known Indian ancestry. Mother made delusional
statements to the social worker and Father had open sores associated
with use of methamphetamine.
Father was living in a car; he was aware of Mother’s drug use
because of her strange behavior but denied her accusation that he
drugged her. DCFS found Y.G. at “very high” risk of danger from
parental drug abuse, mental illness, and domestic violence. On April
22, 2019, the court found a prima facie case justifying detention and
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removed Y.G. from parental care. The parents disappeared after Y.G.’s
birth and did not attend the hearing.
Y.G. was placed with PGM, who said the parents “are still doing
drugs and living on the streets.” PGM reported that Y.G. experienced
drug withdrawal, observing that her “limbs would shake.” The parents
came to PGM’s home once after Y.G.’s birth. PGM allowed them to
view the baby but not to touch her. They did not seek further visits.
In May 2019, the court found the parents did not comply with the
case plan; they do not visit or have a bond with E.G., Jr. It terminated
reunification services and set a permanency planning hearing for E.G.,
Jr. The court sustained the petition as to Y.G., finding she is at serious
risk of physical harm from being born with drugs in her system and
from parental drug abuse, mental illness, and violence. The court
denied reunification services. The parents did not attend the hearings.
In July 2019, Father told the DCFS social worker that he and
Mother are homeless, sleep next to a freeway, and are unwilling to go
to a shelter. He was personally given notice of the section 366.26
hearing. E.G., Jr. is thriving, happy and bonded with PGM, who has
provided a loving home since he was a few months old. PGM is
committed to adopting him and Y.G. The parents do not visit and have
no parent-child bond. Y.G. is thriving with PGM and meeting
developmental milestones. The parents occasionally appeared in
PGM’s neighborhood but made no effort to see Y.G. or arrange a
visitation schedule with DCFS.
In March 2020, DCFS reported that Mother is incarcerated. The
social worker found Father on the streets. She encouraged both
parents to attend court hearings. In January 2021, DCFS reported
that Mother was in a criminal diversion program. She spoke to the
children by phone. Father said he uses drugs, though less than before.
He hoped to resume his relationship with Mother once she completed
her diversion program. Four months later, Mother was still in the
program, Father was still homeless and the children had “very minimal
contact” with them. Adoption was the proposed plan.
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Mother sought a modification. The changed circumstances she
cited are completion of an anger management class and a parenting
program. She enrolled in a substance abuse outpatient program, a
domestic violence support group and counseling, visits the children
once a week, and has virtual visits every two days. She asked the court
to return the children to her or reinstate family reunification services
and allow unmonitored visits.
On May 18, 2021, the court conducted the permanency planning
hearing, after many delays caused by the pandemic and DCFS’s
inability to locate the parents. The court denied Mother’s request for a
modification, observing that reunification services ended two years ago.
Though Mother completed some of the case plan, the children have
spent their entire lives with PGM, and Mother’s sporadic visits are
monitored. Resuming services is not in the children’s best interests.
DCFS and minors’ counsel asked the court to terminate parental rights
because there is no parent-child bond. The children are bonded with
PGM, who plans to adopt them. The court found that the parents did
not regularly visit, the parental bond exception to adoption does not
apply, and the children are adoptable. It terminated parental rights
and freed the children for adoption. PGM is the prospective adoptive
parent. Mother appealed.
DISCUSSION
The only issue Mother raises on appeal is the adequacy of the
inquiry under ICWA. “We review a court’s ICWA findings for
substantial evidence.’ [Citations.] ‘We must uphold the court’s orders
and findings if any substantial evidence, contradicted or
uncontradicted, supports them, and we resolve all conflicts in favor of
affirmance,’ ” and Mother “ ‘has the burden to show that the evidence
was not sufficient to support the findings and orders.’ ” (In re Austin J.
(2020) 47 Cal.App.5th 870, 885.)
DCFS inquired about Indian ancestry before filing the
dependency petition. “Indian Child Inquiry” forms attached to the
petition state that the parents offered no reason to believe the children
are Indian. Both parents disclaimed Indian heritage in their ICWA-
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020 forms. At the detention hearing, the court found ICWA does not
apply, which Father’s attorney confirmed. The court ordered the
parents to inform DCFS, their attorneys and the court of any new
information about possible ICWA status. Despite having the
opportunity over three years to submit the names of persons who could
be questioned, the parents never identified family members with
Indian ancestry.
The court and DCFS carried out their duty to inquire if the
children are or may be Indian children. (§ 224.2, subd. (a); In re A.C.
(2021) 65 Cal.App.5th 1060, 1069 [no duty to ask extended family about
tribal membership under federal law].) There was no reason to know
the children are Indian because (1) no person, tribe, or agency informed
the court that the children are Indian; (2) they do not live on a
reservation; (3) no participant informed the court of recently discovered
information indicating Indian ancestry; (4) the children did not give the
court reason to know they are Indian; (5) no one told the court the
children are or have been wards of a tribal court; and (6) no one said
the children have tribal membership cards. (§ 224.2, subd. (d)(1)-(6);
Cal. Rules of Court, rule 5.481(b)(1)(A)–(F).)
No further inquiry under ICWA was triggered. No information
was supplied “suggesting that either the parent of the child or the child
is a member or may be eligible for membership in an Indian tribe.”
(§ 224.2, subd. (e)(1); In re Austin J., supra, 47 Cal.App.5th at pp. 883–
884.) DCFS and the court had no reason to doubt the parents correctly
represented their Mexican heritage. “[T]he evidence already uncovered
in the initial inquiry was sufficient for a reliable determination.” (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 743.)
Mother cites section 224.2, subdivision (b), which imposes a duty
when a child is placed in county custody that 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.”
DCFS inquired about Indian ancestry, which both parents denied;
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further inquiry showed that Mother and her relatives immigrated from
Mexico, as did Father’s parents.
The social worker had no reason to know, on this record, that an
Indian child may be involved. (Cal. Rules of Court, rule 5.481(a)(4)(A).)
The parents denied Indian ancestry and their extended relatives are
from another country. The children have spent their lives with PGM,
who is adopting them. Though Mother complains that PGM was not
questioned, failure to ask a grandparent seeking to adopt the children
about Indian heritage is harmless error. (In re S.S. (2022) 75
Cal.App.5th 575, 582–583 [an adopting grandparent has “a strong
incentive” to disclose any Indian heritage to the court].)
Mother cites In re Y.W. (2021) 70 Cal.App.5th 542. It is
inapposite. The father in that case declared he was or may be a
member of a tribe; he wrote “ ‘Cherokee from Texas’ ” on his ICWA-020
form, told a social worker his grandmother is 95 percent Cherokee, and
provided vital family information. The mother in In re Y.W. disclaimed
Indian heritage but said she was adopted at age two and had no
information about biological relatives. (Id. at p. 548; see also In re N.G.
(2018) 27 Cal.App.5th 474, 478–481 [duty to inquire arose when the
child’s father signed an ICWA-020 form saying he had Indian ancestry
and told the social worker his cousins are registered Cherokee tribe
members].)
By contrast, DCFS had no evidence of a tribal link. Unlike the
parents in In re Y.W., supra, 70 Cal.App.5th 542, Mother and Father
never claimed Indian ancestry nor were they adopted or unaware of
biological relatives. This is not a case in which the parents were
missing and unavailable to report or deny Indian ancestry, giving rise
to a duty to inquire with relatives. (In re Benjamin M., supra, 70
Cal.App.5th at pp. 744–745 [father never appeared in the case and
could not be asked if his children are Indian]; In re Josiah T. (2021) 71
Cal.App.5th 388, 393, 403 [same].) Mother relies on cases in which
ancestry is ambiguous; no such ambiguity exists here.
Even if there was a duty to interview extended family, we agree
with our colleagues in Division One of this district that a parent
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claiming ICWA deficiencies following termination of parental rights
must show prejudice from DCFS’s failure to conduct such interviews.
(In re Darian R. (2022) 75 Cal.App.5th 502.) In Darian R., as here, the
parents denied Indian ancestry; neither parent was adopted or
estranged from family; and for years, they were “under court order to
continue providing information relevant to ICWA.” (Id. at p. 510.)
There was no basis for reversal because “[t]he record simply does not
support mother’s unvarnished contention that additional interviews of
mother’s father and sister would have meaningfully elucidated the
children’s Indian ancestry.” (Ibid.)
Mother cites no evidence to support her claim that an Indian
child may be involved, requiring further inquiry. When Mother and
Father denied Indian ancestry in 2018, the court found ICWA did not
apply and instructed them to inform DCFS, their attorneys, and the
court of “any new information relating to possible ICWA status.” At no
time since 2018 has anyone suggested that the children are Indian.
Mother waited until this appeal, after parental rights were
terminated, to assert that the inquiry was inadequate. Even now, she
does not identify in her brief any association with a tribe or offer a
reason to believe her children are Indian. (In re A.C., supra, 65
Cal.App.5th at p. 1069 [parent asserting failure to inquire must make
an offer of proof or affirmatively claim Indian heritage on appeal]; In re
H.B. (2008) 161 Cal.App.4th 115, 122 [ICWA “ ‘is not a “get out of jail
free” card dealt to parents of non-Indian children, allowing them to
avoid a termination order by withholding secret knowledge, keeping an
extra ace up their sleeves’ ” without showing their hand on appeal]; In
re N.E. (2008) 160 Cal.App.4th 766, 769 [ICWA error harmless because
father “does not assert on appeal that he in fact has any Indian
heritage”].) The record shows that Mother immigrated to the United
States, as did Father’s family. It is unlikely that foreign relatives are
members of a U.S. tribe or could provide information likely to bear
meaningfully upon whether the children are Indian.
“In sum, the record shows no prejudice flowing from DCFS’s
failure to interview” extended family members. (In re Darian R., supra,
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75 Cal.App.5th at p. 510.) Mother has not shown a reasonable
probability of a more favorable result had relatives been interviewed or
a miscarriage of justice. (Cal. Const., art. VI, § 13; In re S.S., supra, 75
Cal.App.5th at p. 581; In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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