In re M.S. CA2/2 ( 2023 )

Filed 2/1/23 In re M.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 M.S., a Person Coming B319126
Under the Juvenile Court Law. (Los Angeles County
Super. Ct.
No. 19CCJP06320A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
A.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Lisa A. Brackelmanns, Judge Pro Tempore.
Affirmed.
Maryann M. Goode, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Following the termination of parental rights over her
daughter, M.S. (born July 2017), A.R. (mother) filed the instant
appeal. She alleges that both the Los Angeles County
Department of Children and Family Services (DCFS) and the
juvenile court failed to comply with their initial inquiry duties
under the Indian Child Welfare Act (ICWA) and related
California law. Because the juvenile court did not commit
reversible error, we affirm.
FACTS AND PROCEDURAL BACKGROUND1
This case is neither mother nor M.S.’s first time in a
dependency court. Mother and her husband, Jared S. (father),
have a long history of mutual substance abuse issues and
domestic violence. For much of M.S.’s young life, the family did
not have stable housing, instead moving back and forth between
various relatives’ homes in California and Arizona.
From May 2018 until June 2019, M.S. was a dependent of
the Arizona court system because both mother and father had
1
Because ICWA error is the only issue raised in this appeal,
this summary of the factual and procedural background focuses
on matters related to ICWA compliance. (In re I.B. (2015)
239 Cal.App.4th 367, 370.)
2
issues with substance abuse and domestic violence. Both parents
eventually reunified with M.S., prompting the Arizona court to
close the case.
But three months later, the family had relocated to
California and once again found itself caught up in dependency
court. On September 25, 2019, the juvenile court removed M.S.
from her parents’ custody, placing her with her maternal great
aunt.
A few days later, the juvenile court detained M.S. The
detention report included ICWA-101(A) inquiry forms signed by
both parents, who each denied any Native American ancestry.
Both parents and multiple relatives, including the paternal step-
grandmother, paternal grandmother, and paternal step-
grandmother, attended the hearing; the juvenile court did not
inquire with any of these persons regarding possible Indian
ancestry. Instead, the court simply stated that there were “no
American-Indian heritage issues . . . [s]o that need not be further
investigated between now and the next date.”
On September 27, 2019, DCFS filed a petition asking the
juvenile court to assert jurisdiction over M.S. pursuant to section
300 of the Welfare and Institutions Code2 due to mother and
father’s ongoing substance abuse and domestic violence. Mother
and father eventually pled no contest to an amended petition,
including three allegations against mother for her substance
abuse and domestic violence.
While the dependency court worked out potential
jurisdictional issues regarding the parents’ intermittent Arizona
residence, Arizona Child Protective Services (Arizona CPS)
2
All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
3
provided the court with its own ICWA reports; in September
2018, Arizona CPS reported that it had sent notices to the
Apache tribe, but the agency ultimately concluded in May 2019
that ICWA did not apply.
DCFS’ jurisdiction report stated that “[t]he [ICWA] does
not apply,” and reported that mother and father had again
“denied any Native American ancestry” when DCFS inquired
with them in November 2019. Despite noting the presence of
many extended relatives in this and subsequent reports,
including M.S.’s two maternal great grandmothers, maternal
grandparents, maternal aunt, paternal grandparents, and
paternal step-grandmother, DCFS did not report asking any of
these family members about possible Native American ancestry.
On December 26, 2019, the juvenile court sustained the
petition as amended and assumed jurisdiction over M.S.
On September 17, 2020, DCFS found that ICWA did not
apply to the case.
After multiple continuances due to the COVID-19
pandemic, the juvenile court terminated family reunification
services and set a section 366.26 hearing. Several more
continuances ensued before the juvenile court finally terminated
parental rights on March 14, 2022.
Mother timely appealed.
4
DISCUSSION
I. Relevant Law and Standard of Review
A. ICWA
“ICWA was enacted to curtail ‘the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement’ [citation], and ‘to
promote the stability and security of Indian tribes and families by
establishing . . . standards that a state court . . . must follow
before removing an Indian child from his or her family’
[citations].”3 (In re Dezi C. (2022) 79 Cal.App.5th 769, 780,
review granted Sept. 8, 2022, S275578 (Dezi C.).)
Under California law enacted to implement ICWA, DCFS
and the juvenile court have “three distinct duties . . . in
dependency proceedings.” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052 (D.S.).) The first is the initial duty of inquiry, which DCFS
“discharges . . . chiefly by ‘asking’ family members ‘whether the
child is, or may be, an Indian child.’ ([§ 224.2], subd. (b).) This
includes inquiring of not only the child’s parents, but also others,
including but not limited to, ‘extended family members.’ (Ibid.)
For its part, the juvenile court is required, ‘[a]t the first
appearance’ in a dependency case, to ‘ask each participant’
‘present’ ‘whether the participant knows or has reason to know
that the child is an Indian child.’ (Id., subd. (c).)” (Dezi C., supra,
79 Cal.App.5th at p. 780; see also Cal. Rules of Court,
3
An “‘Indian child’ means 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 also § 224.1, subd. (a) [adopting federal definition].)
5
rule 5.481(a)(1)-(2).) The second duty—the duty of further
inquiry—is triggered if there is “reason to believe that an Indian
child is involved” (§ 224.2, subd. (e)), while the third duty—to
notify the relevant tribes—is triggered if there is “reason to
know . . . that an Indian child is involved” (§ 224.3, subd. (a)).4
A spate of appellate courts has recently weighed in on the
consequence of a social services agency’s failure to conduct the
required initial ICWA inquiry, resulting in “a continuum of tests
for prejudice stemming from error in following California statutes
implementing ICWA.” (In re A.C. (2022) 75 Cal.App.5th 1009,
1011; see also Dezi C., supra, 79 Cal.App.5th at pp. 777–778.)
Our Division has adopted the following rule: “[A]n agency’s
failure to conduct a proper initial inquiry into a dependent child’s
American Indian heritage is harmless unless the record contains
information suggesting a reason to believe that the child may be
an ‘Indian child’ within the meaning of ICWA, such that the
absence of further inquiry was prejudicial to the juvenile court’s
ICWA finding. For this purpose, the ‘record’ includes both the
record of proceedings in the juvenile court and any proffer the
appealing parent makes on appeal.” (Dezi C., supra, at p. 779.)
B. Standard of Review
“We review claims of inadequate inquiry into a child’s
Indian ancestry for substantial evidence. [Citation.]” (In re H.V.
(2022) 75 Cal.App.5th 433, 438.) “Where, as here, there is no
doubt that the Department’s inquiry was erroneous, our
examination as to whether substantial evidence supports the
juvenile court’s ICWA finding ends up turning on whether that
4
Here, mother only challenges compliance with the initial
duty of inquiry, so the duties of further inquiry and notice are not
at issue.
6
error by the Department was harmless—in other words, we must
assess whether it is reasonably probable that the juvenile court
would have made the same ICWA finding had the inquiry been
done properly.” (Dezi C., supra, 79 Cal.App.5th at p. 777.)
II. Analysis
Mother identifies two ICWA inquiry errors. First, she
asserts that the juvenile court failed to ask her or father about
any potential Indian heritage when they appeared in court,
beginning with the September 2019 detention hearing. Second,
she argues that DCFS failed to make inquiries with any of the
numerous extended family members present at various times
during the dependency proceeding. DCFS concedes that these
were errors.
The parties diverge on the effect of these errors, with
mother arguing that the errors were substantial and DCFS
contending that they were harmless.
We agree with DCFS. Applying the “‘reason to believe’
rule” that we adopted in Dezi C., supra, 79 Cal.App.5th at page
779, we conclude that the juvenile court and DCFS’s failure to
make the requisite inquiries of the parents and extended family
members was harmless because the record does not suggest a
reason to believe that M.S. is an Indian child within the meaning
of ICWA.
Mother and father both repeatedly reported that they had
no known Indian ancestry, and nothing in the record suggests
that either parent was adopted such that “their self-reporting of
‘no heritage’ may not be fully informed [citation].” (Dezi C.,
supra, 79 Cal.App.5th at p. 779; contra In re Y.W. (2021) 70
Cal.App.5th 542, 554 [a mother’s denial of Indian heritage was
unreliable because she was adopted at a young age and had no
7
contact with her biological parents].) Indeed, mother and father
appeared to have ongoing relationships with their parents,
grandparents and/or siblings throughout these proceedings.
Mother also makes no proffer on appeal that she or father have
any Indian heritage. (See Dezi C., at pp. 779, fn. 4, 786.)
Our analysis is underscored by ICWA itself, which
narrowly defines “Indian child” to include only a child who is
herself or whose parent is a current member of a federally
recognized Indian tribe. (§ 224.1, subd. (b).) We doubt that
M.S.’s extended relatives, if asked, would have been able to
provide any different information about whether M.S., her
mother, or her father were current tribal members—particularly
in the absence of any contrary suggestion from mother, either
before the juvenile court or on appeal. (See In re A.C., supra, 75
Cal.App.5th at p. 1023 (dis. opn. of Crandall, J.) [“Because such
basic information is often known or easily discoverable by each
respective parent, there is limited utility in remanding such
matters for ‘extended family member’ inquiry”].)
Mother argues that the record does suggest reasons to
believe that M.S. is an Indian child, because while M.S. was a
dependent in Arizona, the Arizona CPS reportedly sent ICWA
notices to the Apache tribe, indicating that one of M.S.’s relatives
had provided a reason to know that M.S. may be an Indian child.
But although Arizona CPS did send notices to the Apache tribe, it
later concluded that ICWA did not apply.5 Viewed in their
entirety, and particularly in context of a trial and appellate
5
Mother speculates that this finding was due to M.S. being
placed back into her parents’ custody in March 2018, not because
the Apache tribe disclaimed M.S. However, the Arizona CPS
report does not so specify.
8
record bereft of any assertion of potential Indian ancestry from
M.S.’s parents, the Arizona CPS reports do not suggest a reason
to know that M.S. may be an Indian child within the meaning of
ICWA.
Mother also notes that when she and father moved with
M.S. to Arizona, the family once lived two and a half hours
outside of an Apache tribal reservation. Mother does not assert
that she and the family lived there because of its proximity to the
reservation, or because either she or father had any relatives
associated with the tribe. This barebones connection based solely
on the family’s occasional geographic proximity to an Apache
reservation—assuming arguendo that a two and half hour drive
from the reservation’s border could be considered proximate—is
even more tenuous evidence of potential Indian ancestry than the
closed Arizona CPS investigation.
Accordingly, we conclude that “it is reasonably probable
that the juvenile court would have made the same ICWA finding”
even if it and DCFS had conducted proper initial inquiries with
M.S.’s parents or extended relatives. (Dezi C., supra, 79
Cal.App.5th at p. 777.)
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DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________, Acting P. J.
ASHMANN-GERST
We concur:
_________________________, J.
CHAVEZ
_________________________, J.
HOFFSTADT
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