In re R.W. CA2/8 ( 2022 )

Filed 5/20/22 In re R.W. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re R.W., a Person Coming B314287
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK55230D)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
F.P.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa A. Brackelmanns, Juvenile Court Referee.
Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, and Kim Nemoy,
Assistant County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
The juvenile court terminated Mother’s parental rights to
her daughter, R.W. On appeal, Mother does not contest the
merits of the court’s adjudication; instead, her sole contention is
that reversal is warranted because substantial evidence does not
support the juvenile court’s finding that the Indian Child Welfare
Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related
California law (Welf. & Inst. Code,1 § 224 et seq.) do not apply to
R.W.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because compliance with ICWA is the sole basis for
Mother’s appeal, we recite only those facts pertinent to her claim.
On June 30, 2017, the Los Angeles Department of Children
and Family Services (DCFS) received a referral alleging physical
and emotional abuse and general neglect of Mother’s youngest
child, R.W., then two years old. This was not Mother’s first
experience with the dependency court system. Mother had three
older children who were declared dependents of the juvenile
court. After Mother failed to comply with her family
reunification plan, the juvenile court terminated her parental
rights as to those three children.
On July 28, 2017, DCFS filed a section 300 petition due to
father’s violent altercations with maternal relatives and mother’s
history of substance abuse. On November 16, 2017, a first
amended petition was filed. It included an allegation that
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
mother threatened maternal grandmother’s boyfriend with a
knife and mother suffered from mental and emotional problems
including depression, bipolar disorder, schizophrenia, and
suicidal/homicidal ideation rendering her incapable of caring for
R.W. Father’s whereabouts became unknown around July, 2017,
even before the initial petition was filed. His whereabouts
remained unknown throughout the remainder of R.W.’s
dependency proceedings.
On January 26, 2018, Mother eventually entered a no
contest plea to the first amended petition which was sustained
with interlineation. On March 16, 2018, the juvenile court
provided Mother reunification services. Three and one-half years
later, on August 3, 2021, over Mother’s objection, the juvenile
court found R.W. adoptable, found the parental-benefit exception
did not apply, and ordered all parental rights terminated due to
Mother’s failure to complete her reunification plan.
ICWA
On July 6, 2017, before the filing of the initial petition,
Mother stated neither she nor R.W. have Indian ancestry.
Mother signed an ICWA-020 form indicating she has no Indian
ancestry.
On July 6, 19, and 20, DCFS had contact with maternal
grandmother. There is no evidence that an inquiry into the
maternal family’s Indian ancestry was made of maternal
grandmother.
On August 27, 2017, maternal aunt and uncle contacted
DCFS. They reported they had neither seen nor heard from
Mother in over a year and believed she resided in St. Louis.
There is no evidence they were asked about Indian ancestry. On
September 8, 2017, Mother again stated she and R.W. do not
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have Indian ancestry. On the same date, Father stated he does
not have Indian ancestry either.
On September 26, 2017, maternal grandfather denied
Indian ancestry for himself, maternal grandmother, Mother, and
R.W. On September 28, 2017, DCFS contacted maternal
grandmother, who was R.W.’s caregiver at the time. She was not
asked, however, about Indian ancestry.
On November 28, 2017, the juvenile court found it did not
have reason to know R.W. is an Indian child, as defined by ICWA.
DISCUSSION
I. Standard of Review
We review the juvenile court’s ICWA findings “ ‘under the
substantial evidence test, which requires us to determine if
reasonable, credible evidence of solid value supports the court’s
order. [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.’ ” (In re D.F. (2020) 55 Cal.App.5th 558, 565
(D.F.); In re A.M. (2020) 47 Cal.App.5th 303, 314; In re Rebecca R.
(2006) 143 Cal.App.4th 1426, 1430.) We review the evidence in
the light most favorable to the juvenile court’s findings and draw
all reasonable inferences in support of those findings. (In re J.N.
(2021) 62 Cal.App.5th 767, 774.)
The appellant—in this case, Mother—has the burden to
show the evidence was not sufficient to support the ICWA
finding. (D.F., supra, 55 Cal.App.5th at p. 565; In re Austin J.
(2020) 47 Cal.App.5th 870, 885 (Austin J.).)
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II. Applicable Law
ICWA reflects a congressional determination to protect
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal
standards that a state court must follow before removing an
Indian child from his or her family. (25 U.S.C. § 1902; Austin J.,
supra, 47 Cal.App.5th at pp. 881–882.) Both ICWA and the
Welfare and Institutions Code define an “Indian child” as “any
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, subds. (a) & (b)
[incorporating federal definitions].)
The juvenile court and DCFS have “an affirmative and
continuing duty to inquire whether a child for whom a petition
under Section 300 . . . may be or has been filed, is or may be an
Indian child.” (§ 224.2, subd. (a); see D.F., supra, 55 Cal.App.5th
at p. 566; see In re Isaiah W. (2016) 1 Cal.5th 1, 9, 11.) This
continuing duty can be divided into three phases: the initial duty
to inquire, the duty of further inquiry, and the duty to provide
formal ICWA notice. (D.F., at p. 566.)
The initial duty to inquire whether a child is an Indian
child begins with “the initial contact,” i.e., when the referring
party reports child abuse or neglect that jumpstarts DCFS
investigation. (§ 224.2, subd. (a).) DCFS’s initial duty to inquire
includes asking the child, parents, legal guardian, 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).)
Similarly, the juvenile court must inquire at the “first
appearance in court of each party” whether he or she “knows or
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has reason to know that the child is an Indian child.” (Id.,
subd. (c).) The juvenile court must also require the parties to
complete Judicial Council form ICWA-020, Parental Notification
of Indian Status. (See D.F., supra, 55 Cal.App.5th at p. 566.)
The parties are instructed to inform the court “if they
subsequently receive information that provides reason to know
the child is an Indian child.” (§ 224.2, subd. (c).)
A duty of further inquiry is imposed when DCFS or the
juvenile court has “reason to believe” that an Indian child is
involved in the proceedings “but does not have sufficient
information to determine that there is reason to know” the child
is an Indian child. (§ 224.2, subd. (e); see D.F., supra,
55 Cal.App.5th at p. 566.) There is reason to believe an Indian
child is involved 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.”
(§ 224.2, subd. (e)(1).) Further inquiry as to the possible Indian
status of the child includes: 1) interviewing the parents and
extended family members to gather required information;
2) contacting the Bureau of Indian Affairs and State Department
of Social Services for assistance in identifying the tribes in which
the child may be a member or eligible for membership in; and
3) contacting the tribes and any other person that may
reasonably be expected to have information regarding the child’s
membership or eligibility. (§ 224.2, subd. (e)(2)(A)–(C).)
The juvenile court’s finding there is a “reason to know” an
Indian child is involved triggers the duty to send formal notice
per ICWA to the pertinent tribe(s) via registered or certified mail.
(§ 224.3, subd. (a)(1); see D.F., supra, 55 Cal.App.5th at p. 568.)
“The sharing of information with tribes at [the further] inquiry
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stage is distinct from formal ICWA notice, which requires a
‘reason to know’—rather than a ‘reason to believe’—that the child
is an Indian child.” (In re D.S. (2020) 46 Cal.App.5th
1041, 1049.)2
If the alleged shortcoming in the ICWA inquiry concerns
only DCFS’s duty of initial inquiry, only state law is involved.
The reviewing court may not reverse unless it finds prejudicial
error. (Cal. Const., art. VI, § 13 [“No judgment shall be set aside
. . . unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice”]; People v.
Watson (1956) 46 Cal.2d 818, 836 [“a ‘miscarriage of justice’
should be declared only when the court, ‘after an examination of
the entire cause, including the evidence,’ is of the ‘opinion’ that it
is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.”].)
III. Analysis
Mother argues the juvenile court’s finding that ICWA did
not apply to R.W. was “error as the Department’s initial duty of
inquiry was never fulfilled.” She contends DCFS’s initial inquiry
was incomplete because DCFS contacted but never asked
maternal grandmother, maternal aunt and maternal uncle about
their family’s Indian ancestry.
2 Here, neither the duty of further inquiry nor ICWA’s formal
notice provisions are at issue because Mother does not contend
there is “reason to believe” the child is an Indian child. Rather,
her single contention finds fault with DCFS’s duty to conduct
initial inquiry as to whether R.W. is an Indian child.
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We agree with Mother’s contention that DCFS had an
obligation under section 224.2, subdivision (b) to inquire of
extended family members about Indian ancestry. (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 742.) However, we find
DCFS’s imperfect initial inquiry harmless. DCFS did inquire of
maternal grandfather who stated neither he nor maternal
grandmother had Indian ancestry. Mother also denied Indian
ancestry. Given the inquiry made of maternal grandfather, we
find harmless DCFS’s failure to also inquire of maternal
grandmother or Mother’s sibling. On this record there is no
reason to believe Mother’s sibling would have more accurate
information about Indian ancestry than their own father,
maternal grandfather. Neither is there reason to believe
maternal grandfather would not have accurate information about
maternal grandmother’s ancestry.
We also note Mother has three older children who were
declared dependents of the court and for whom her parental
rights were previously terminated. If Indian ancestry had been
an issue for R.W.’s three older siblings, Mother and her family
had a strong incentive to bring that fact to the attention of the
juvenile court to support Mother’s objection to adoption by a non-
family caregiver. No one did so. We infer that is because there is
no Indian ancestry to discover. We conclude DCFS’s failure to
inquire further after both parents and maternal grandfather
denied Indian ancestry was harmless as it was not likely to bear
meaningfully upon R.W.’s status as an Indian child. (Cf. In re
Benjamin M., supra, 70 Cal.App.5th at p. 744.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
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