In re H.R. CA4/1 ( 2022 )

Filed 9/16/22 In re H.R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re H.R., a Person Coming Under
the Juvenile Court Law.
D080481
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. J520473)
Plaintiff and Respondent,
v.
N.J.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Marissa A. Bejarano, Judge. Affirmed.
Linda Rehm, under appointment by the Court of Appeal, for Defendant
and Appellant.
Claudia Silva, Acting County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Dana Shoffner, Deputy County Counsel, for Plaintiff
and Respondent.
I.
INTRODUCTION
N.J. (Mother) appeals from a Welfare and Institutions Code1 section
366.26 order terminating her parental rights over her now two-year-old
daughter, H.R. Mother’s sole complaint on appeal is that the San Diego
County Health and Human Services Agency (the Agency) failed to satisfy its
initial inquiry duties under the Indian Child Welfare Act (25 U.S.C. § 1901 et
seq.) (ICWA) and Welfare and Institutions Code section 224.2 because it did
not interview maternal grandmother about H.R.’s possible Native American
ancestry.
The Agency contends its initial inquiry was sufficient and that,
regardless, any error was harmless. We agree in part. We conclude that the
Agency’s failure to conduct an ICWA inquiry with maternal grandmother
violated section 224.2, subdivision (b), but that, applying the prejudicial error
standard adopted in In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin
M.), the error was harmless. Therefore, we affirm the order.
II.
FACTUAL AND PROCEDURAL BACKGROUND2
In July 2020, the Agency petitioned the juvenile court under section
300, subdivision (b)(1) on behalf of newborn H.R. Among the Agency’s
allegations was that during Mother’s pregnancy with H.R., Mother abused
1 All statutory references are to the Welfare and Institutions Code unless
otherwise specified.
2 Because Mother’s only contention on appeal concerns ICWA, we limit
our factual background accordingly.
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alcohol and/or controlled substances, including amphetamine and
methamphetamine, making her unable to provide regular care for H.R.
The Agency reported in its detention report that, at a meeting between
the Agency and Mother in late July 2020, Mother denied having any Native
American ancestry.
At the August 2020 detention hearing, the juvenile court asked Mother
directly if she had any Native American ancestry in her family and if she had
any reason to believe that the alleged father, L.R. (Father), had any Native
American ancestry in his family.3 Mother responded “no” to both questions.
The court ordered Mother to complete the “Parental Notification of Indian
Status” form and submit it to the Agency. The record does not reflect that
any such form was completed. The court also ordered Mother to disclose to
the Agency the names, residences, and any known identifying information of
H.R.’s maternal and paternal relatives. The court deferred ruling on whether
ICWA applied.
In the Agency’s jurisdiction/disposition report, the social worker noted
that at two August 2020 meetings between Mother and the Agency, Mother
again denied having any Native American ancestry in her family. The social
worker also noted that, in July 2020, she called and left voice messages for
maternal grandmother twice and visited maternal grandmother’s last known
address, but was unable to reach her. The report stated that the Agency had
not been able to reach Father to conduct an ICWA inquiry with him.
3 Although Father is only the alleged father of H.R. because he declined
to take a paternity test, we refer to him as Father for readability. Father is
not a party to this appeal, and we discuss him as needed.
3
In the Agency’s subsequent addendum report, the social worker noted
that Mother did not identify any relatives or extended family members who
could care for H.R.
In the Agency’s September 2020 declaration of due diligence, the
Agency stated that, as of September 2020, Father still could not be located,
and that Mother said Father did not wish to speak with the Agency or attend
court.
Mother did not attend the October 27, 2020 contested
jurisdiction/disposition hearing. There, the juvenile court found without
prejudice that there was no reason to believe H.R. was an Indian child and
that ICWA did not apply. In addition, the court again ordered Mother to
disclose to the Agency the names, residences, and any known identifying
information of all maternal and paternal relatives of H.R.
In the Agency’s June 2021 addendum report, the social worker noted
that the Agency was still unable to reach Father. At the related contested
hearing, the juvenile court reiterated its finding without prejudice that ICWA
did not apply.
In the Agency’s October 2021 WIC report, the Agency reported that in
August and September 2021, it had been in contact with maternal
grandmother about H.R.’s placement. In September 2021, maternal
grandmother notified the Agency that she was feeling “pressure” because
Mother said she wanted H.R. to be placed with family. Maternal
grandmother stated that she did not want to be considered for H.R.’s
placement but wished to have a relationship with H.R. There is no indication
in the record that the Agency ever asked maternal grandmother about H.R.’s
potential Native American ancestry.
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In the Agency’s subsequent addendum report, the social worker noted
that when she called maternal grandmother in September 2021, maternal
grandmother stated that she was no longer in contact with Mother because
Mother was upset that maternal grandmother was not being assessed for
H.R.’s placement. Maternal grandmother also disclosed that Mother would
be giving birth soon.
In the Agency’s January 2022 addendum report, the social worker
noted that, in October 2021, Mother had informed the Agency that she was
staying with maternal grandmother. Maternal grandmother confirmed to the
Agency that Mother was staying with her.
On April 6, 2022, the juvenile court terminated Mother’s parental
rights, selected adoption as H.R.’s permanent plan, and designated H.R.’s
caregivers as her prospective adoptive parents. The court again found
without prejudice that ICWA did not apply. Mother timely appealed from
that order.
III.
DISCUSSION
Mother contends that the juvenile court erred by finding ICWA
inapplicable before the Agency asked maternal grandmother about H.R.’s
possible Native American ancestry. Mother raises no other appellate issue
concerning the section 366.26 order that she is appealing. The Agency
concedes that it never conducted an ICWA inquiry with maternal
grandmother but contends that this was not error and, regardless, the error
was harmless. We agree in part. Although we conclude that the Agency’s
initial inquiry under ICWA was deficient, we conclude the error was
harmless and affirm.
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A. ICWA Inquiry Duties
Congress enacted ICWA to address concerns regarding the separation
of Indian children from their tribes through adoption or foster care placement
with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Under
California law adopted pursuant to ICWA, the juvenile court and Agency
have an “affirmative and continuing duty to inquire” whether a child “is or
may be an Indian child.” (§ 224.2, subd. (a); see Isaiah W., at p. 9.)
“[S]ection 224.2 creates three distinct duties regarding ICWA in
dependency proceedings. First, from the Agency’s initial contact with a
minor and his family, the statute imposes a duty of inquiry to ask all involved
persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).)
Second, if that initial inquiry creates a ‘reason to believe’ the child is an
Indian child, then the Agency ‘shall make further inquiry regarding the
possible Indian status of the child, and shall make that inquiry as soon as
practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry
results in a reason to know the child is an Indian child, then the formal notice
requirements of section 224.3 apply.” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052 (D.S.).)
A juvenile court finding that ICWA is inapplicable generally implies
that the Agency has fulfilled its inquiry duty. (See In re Austin J. (2020)
47 Cal.App.5th 870, 885 (Austin J.) [a finding that “ICWA does not apply”
implies social workers and court “did not know or have a reason to know the
children were Indian children and that social workers had fulfilled their duty
of inquiry”].) (Id. at p. 885) We review ICWA findings for substantial
evidence, but “where the facts are undisputed, we independently determine
whether ICWA’s requirements have been satisfied.” (D.S., supra, 46
Cal.App.5th at p. 1051.)
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B. Initial Inquiry
The first stage of initial 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.’ ”
(D.S., supra, 46 Cal.App.5th at p. 1049.) ICWA defines “ ‘extended family
member’ ” by “the law or custom of the Indian child’s tribe” or, absent such
law or custom, as “a person who has reached the age of eighteen and who is
the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-
law or sister-in-law, niece or nephew, first or second cousin, or stepparent.”
(25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c) [extended family
member “defined as provided in [§] 1903” of ICWA].)
Mother asserts that the Agency’s initial inquiry violated section 224.2,
subdivision (b) because the Agency failed to ask maternal grandmother about
H.R.’s potential Native American ancestry, despite the Agency having spoken
with maternal grandmother on multiple occasions. The Agency, however,
contends that its initial inquiry was sufficient because in July 2020, it called
maternal grandmother several times and visited her last known address but
could not locate her.
We agree with Mother that the Agency’s initial inquiry efforts fell
short. Grandparents are “extended family members” for ICWA purposes.
(See 25 U.S.C. § 1903(2).) It is true that the Agency tried to contact maternal
grandmother early in its investigation, but those efforts did not extinguish
the Agency’s inquiry obligations under ICWA. Rather, the Agency’s duty of
inquiry is a continuing and affirmative one. (Isaiah W., supra, 1 Cal.5th at
p. 9; § 224.2, subd. (a).) Thus, when the Agency finally reached maternal
grandmother in August, September, and October 2021, it could have—and
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should have—asked her about H.R.’s potential Native American ancestry.
(25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c); D.S., supra, 46
Cal.App.5th at pp. 1048–1049; see In re J.C. (2022) 77 Cal.App.5th 70, 78–79
[error in finding ICWA did not apply where agency had regular contact with
paternal grandmother and maternal grandmother was readily accessible, but
it did not ask them about possible Native American ancestry]; In re Darian R.
(2022) 75 Cal.App.5th 502, 509 (Darian R.) [error in finding ICWA did not
apply where agency had contact with maternal aunt and maternal
grandfather but did not ask them about possible Native American ancestry];
Y.W., supra, 70 Cal.App.5th at p. 556 [“[T]he point of the statutory
requirement that the social worker ask all relevant individuals whether a
child is or may be an Indian child [is] to obtain information the parent may
not have.”].)
Because substantial evidence does not support the juvenile court’s
implicit finding that the Agency complied with its duty of initial inquiry
under section 224.2, subdivision (b), we conclude the court erred by finding
that ICWA did not apply to H.R.’s case.
C. Harmless Error
Next, we consider the appropriate remedy. Mother contends that the
initial inquiry error was prejudicial and requires reversal. The Agency, on
the other hand, contends the error was harmless. We agree with the Agency
and therefore affirm.
There is a split of authority in the California courts of appeal as to the
proper standard for prejudicial error under ICWA. (See Dezi C., supra, 79
Cal.App.5th at pp. 777–782 [discussing the “continuum” of three rules for
“assessing whether a defective initial inquiry is harmless” (“ ‘automatic
reversal,’ ” “ ‘readily obtainable information,’ ” and “ ‘presumptive
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affirmance’ ”) and proposing a fourth (“ ‘reason to believe’ ”)].) Because the
California Supreme Court has yet to resolve this split, we recently evaluated
each of these approaches in In re Y.M. (Sept. 2, 2022, D080349) __
Cal.App.5th __ [2022 WL 4007600] (Y.M.)). For the same reasons discussed
in Y.M., we again decline to apply the presumptive affirmance approach (In
re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430–1431), the automatic
reversal approach (Y.W., supra, 70 Cal.App.5th at p. 556 and In re Antonio R.
(2022) 76 Cal.App.5th 421, 432–437), or the reason to believe approach (Dezi
C., supra, 79 Cal.App.5th at p. 779), and instead, apply the readily obtainable
information approach employed in Benjamin M., supra, 70 Cal.App.5th at
p. 744. (See ibid.)
In Benjamin M., the agency could not locate the minor’s father and did
not obtain any information about Native American ancestry from the minor’s
paternal side. Although the agency had access to the father’s brother and
sister-in-law, it failed to ask them about potential Native American ancestry.
In concluding that this error was prejudicial, the appellate court reasoned
that the missing information was “readily obtainable” and “likely to bear
meaningfully upon whether the child is an Indian child.” (Id. at p. 744.)
Here, because the record indicates that the Agency had multiple
contacts with maternal grandmother, we conclude that any information
maternal grandmother could have provided was “readily obtainable” under
Benjamin M. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) The record
does not show, however, that information from maternal grandmother was
likely to “bear meaningfully” on whether H.R. is an Indian child under ICWA.
(Ibid.) Mother’s conclusory assertion to the contrary—that simply because
ICWA information “could easily be obtained from [maternal] grandmother,”
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there was a reasonable probability of obtaining meaningful information—is
not persuasive.
First, there is not even a suggestion in the record that H.R. might have
potential Native American ancestry, and Mother has consistently and
repeatedly denied—both to the Agency and to the court—any knowledge of
possible Native American ancestry. Further, the record indicates that
Mother was in touch with maternal grandmother at various points during the
dependency proceeding, and even lived with maternal grandmother at least
in September and October 2021, prior to and after giving birth to H.R.’s
younger sibling. The record also indicates that Mother wanted maternal
grandmother to adopt H.R. Therefore, presumably, Mother had a motive to
ask, and easily could have asked, maternal grandmother about any possible
Native American ancestry that may have provided her with additional rights
or protection under ICWA. (See Darian R., supra, 75 Cal.App.5th at p. 510
[because mother lived with maternal grandfather and maternal aunt, mother
did not meet her burden on appeal to show that agency’s inquiry of those
extended family members “would have meaningfully elucidated the children’s
Indian ancestry”]; Y.M., supra, __ Cal.App.5th __ [2022 WL 4007600]
[agency’s failure to conduct ICWA inquiry with paternal grandmother and
uncle was harmless error under Benjamin M., where mother and father
denied Native American ancestry, father lived with paternal grandmother
and uncle, and father had close and regular proximity to paternal
grandmother and could have asked her about Native American ancestry].)
Thus, we cannot say that inquiring of maternal grandmother is likely to shed
meaningful light on whether H.R. is or may be an Indian child. (Benjamin
M., supra, 70 Cal.App.5th at p. 744.)
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Accordingly, considering Mother’s consistent denials of any Native
American ancestry, the utter lack of any suggestion in the record that H.R.
might have Native American ancestry, and our conclusion that an inquiry of
maternal grandmother is not likely to bear meaningfully on whether H.R. is
an Indian child, we conclude that the Agency’s inquiry error was harmless
and affirm. (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
DISPOSITION
The order is affirmed.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
HALLER, J.
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