In re J.B. CA2/8 ( 2023 )

Filed 2/21/23 In re J.B. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.B., a Person Coming B320089
Under the Juvenile Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF Los Angeles County
CHILDREN AND FAMILY Super. Ct. No. CK64456C
SERVICES,
Plaintiff and Respondent,
v.
N.I.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Donald A. Buddle, Judge. Affirmed.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell, Senior Deputy
County Counsel, for Plaintiff and Respondent.
**********
Mother N.I. appeals the juvenile court’s order terminating
her parental rights to her son J.B. J.B.’s father, R.B., is not a
party to this appeal. Mother’s sole contention on appeal is that
the trial court erred in finding the Indian Child Welfare Act
(ICWA; 25 U.S.C. § 1901 et seq.) did not apply because the Los
Angeles County Department of Children and Family Services
(Department) made an inadequate initial inquiry concerning
J.B.’s relevant ancestry by failing to contact and interview
mother’s extended family members. We affirm.
BACKGROUND
1. Overview of Proceedings
This dependency proceeding began in August 2017, more
than five years ago, when J.B. was four years old. At the time of
the petition, J.B.’s father had legal and physical custody of him
pursuant to a 2016 family law order. Mother’s contact with J.B.
and his father was restricted by a restraining order stemming
from a domestic violence incident in which she was the aggressor.
In violation of that order, mother resided with father and J.B.
This living arrangement resulted in another violent
altercation between the parents. J.B. was present. Mother called
police after father assaulted her and a referral was made to the
Department. J.B. was placed with his paternal grandfather and
paternal stepgrandmother pursuant to a safety plan pending
investigation.
Shortly thereafter, the Department filed a detention
petition and J.B. was ordered detained. He remained with his
paternal grandfather and paternal stepgrandmother pursuant to
this order. The petition was sustained without contest under
Welfare and Institutions Code section 300, subdivision (b)(1) and
(b)(2), and J.B. was ordered removed from the parents. J.B.
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remained in the home of his paternal grandfather and paternal
stepgrandmother pursuant to this order. The court ordered
services for both parents.
The parents failed to reunify with J.B. (mother had two
separate periods of incarceration during the reunification period)
and the court terminated reunification services in August 2019.
Paternal grandfather and paternal stepgrandmother expressed
willingness to adopt J.B. The juvenile court ordered such
adoption as his permanent plan in December 2021 over mother’s
objection. In April 2022, the court ordered the parental rights of
mother and father terminated and directed the Department to
implement J.B.’s adoption.
Mother timely appealed termination of her parental rights.
2. Facts Relevant to ICWA Inquiry
As this appeal rests entirely on the Department’s failure to
“contact and interview mother’s extended family members about
ICWA,” we recite in detail the facts relevant to the Department’s
ICWA inquiry.
The Department attached an ICWA-010(A) form to the
petition indicating it had made Indian child inquiries with J.B.’s
father and J.B. had no known Indian ancestry.
Mother and father each filed a signed ICWA-020 form in
connection with their initial appearances in August 2017. Each
indicated “no Indian ancestry as far as [they] know.” Based on
these forms, the court found no reason to believe J.B. had Indian
ancestry on either side of his family. The court further
admonished the parents “to keep the Department, their
Attorney[s] and the Court aware of any new information relating
to possible ICWA status.”
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The Department spoke with “Paternal Grandmother” in
November 2019 and she stated father had no Indian heritage.
We understand this as a reference to paternal stepgrandmother
because paternal grandmother died sometime before 2017. The
Department reported paternal stepgrandmother’s statement to
the juvenile court. In December 2020, the Department spoke
with “Ms. B”—a name the Department has used to identify
paternal stepgrandmother—who stated “the family does not have
any Native American Heritage.” The Department reported this
to the court as well.
At a hearing in December 2020, the juvenile court inquired
again with father about Indian heritage. Father equivocated,
explaining, “I really don’t know. My family doesn’t tell me about
everything.” But, based on what he did know and had “tried to
figure out [him]self,” he confirmed he did not believe he had any
Indian ancestry. Based on this and the signed ICWA-20 forms,
the juvenile court found “no reason to know that [J.B.] is an
Indian child.”
Aside from paternal stepgrandmother (who mother also
refers to as paternal grandmother), mother does not identify
direct contact between the Department and any other of J.B.’s
extended family members. Mother notes father was raised by
paternal great-grandmother, paternal grandfather, and now-
deceased paternal grandmother. The reports refer to contact
with paternal great-grandmother, who was identified as a
visitation monitor, and with paternal grandfather, with whom
J.B. was placed. We are directed to nothing in the record
indicating the Department inquired with these paternal family
members about Indian ancestry, but mother claims no error in
this regard.
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As to her own extended family members, mother notes the
absence of any record that the Department contacted or
attempted to contact them. Mother told the Department she was
raised by maternal grandmother until she was 17, excepting a
one-year stint in foster care when she was 12. When mother was
17, maternal grandmother murdered mother’s five-year-old
brother and remains incarcerated for his killing. At age 18,
mother developed a relationship with maternal grandfather for
the first time. She has two older brothers and an older sister.
Mother has a relationship with maternal aunt and one of the
maternal uncles. There is no indication in the record the
Department requested or received contact information for
mother’s extended family members.
Finally, both parties note mother was involved in prior
dependency proceedings involving two older children by another
father. Mother observes these prior proceedings took place before
the current law expanding the duty of initial inquiry to include
reference to extended family members.
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.) It is incumbent upon a state court administering a proceeding
where child custody is at issue to inquire whether the subject
child is an Indian child. The scope of the duty on the court, as
well as certain participants in the proceeding, is defined by
federal regulations and related state law. (See, e.g., 25 C.F.R.
§ 23.107 (2022); Welf. & Inst. Code, § 224.2; Cal. Rules of Court,
rule 5.481.)
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The duty of inquiry has three “phases.” Mother claims
error with the first. This phase—the “initial inquiry”—applies in
every case. The initial inquiry requires the court and the
Department to ask certain persons related to the proceedings
about the child’s possible Indian ancestry. (See Welf. & Inst.
Code, § 224.2, subds. (a), (b), (c); In re S.S. (2022) 75 Cal.App.5th
575, 581; In re D.F. (2020) 55 Cal.App.5th 558, 566.) The state
law initial inquiry requirements exceed those imposed by federal
law, which merely require the court to “ask each participant in an
emergency or voluntary or involuntary child-custody proceeding
whether the participant knows or has reason to know that the
child is an Indian child” and instruct the parties to inform the
court if they subsequently receive information that provides
reason to know the child is an Indian child. (25 C.F.R.
§ 23.107(a) (2022).)
Where the “initial inquiry” gives “reason to believe” the
child is an Indian child, but there is insufficient information to
make a definitive determination, the second phase—“further
inquiry”—comes into play. (Welf. & Inst. Code, § 224.2,
subd. (e)(2).) Further inquiry requires more robust investigation
into possible Indian ancestry. (See ibid.; In re D.F., supra,
55 Cal.App.5th at p. 566.)
If further inquiry gives the court a “reason to know” a child
is an Indian child, the third phase is triggered. This phase
requires notice pursuant to ICWA be sent to the tribes to
facilitate their participation in the proceedings. (Welf. & Inst.
Code, § 224.3, subd. (a)(1); In re D.F., supra, 55 Cal.App.5th at
p. 568.)
A juvenile court’s finding that ICWA does not apply in a
proceeding implies (a) neither the Department nor the court had
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a reason to know or believe the subject child is an Indian child;
and (b) the Department fulfilled its duty of inquiry. (In re Josiah
T. (2021) 71 Cal.App.5th 388, 401.)
“ ‘ “[W]e 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 Josiah T., supra, 71 Cal.App.5th at
p. 401.)
Mother’s claim of error is that the juvenile court found the
ICWA inapplicable without evidence the Department contacted,
or attempted to contact, mother’s extended family members to
inquire about Indian ancestry. The Department concedes it
failed in its initial inquiry obligation imposed by California law to
ask “extended family members” whether J.B. is, or may be, an
Indian child, rendering the trial court’s finding erroneous. (Welf.
& Inst. Code, § 224.2, subd. (b).)
Although Welfare and Institutions Code section 224.2,
subdivision (b), requires the Department to inquire with
extended family members about Indian heritage as part of its
initial inquiry, no court has read it as requiring inquiry with all
extended family members, no matter how challenging it may be
to reach them. (Cf. In re Q.M. (2022) 79 Cal.App.5th 1068, 1082
[“requiring DCFS to run down unpromising leads comes at a
significant cost in terms of protecting the welfare of dependent
children”].)
Mother’s opening brief cites a number of cases in support of
her contention that “the duty of initial inquiry was not completed
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absent contact, or documented attempts to contact mother’s
extended family members.” But her leading cases on the topic
address the point in the context of further inquiry. (See In re
D.S. (2020) 46 Cal.App.5th 1041, 1053–1054 [“As part of its duty
to inquire about a child’s Indian ancestry pursuant to
section 224.2, subdivision (e)(1) [i.e., the duty of further inquiry],
the Agency must interview extended family members”; duty
satisfied by speaking to single aunt]; In re D.F., supra,
55 Cal.App.5th at p. 569 [addressing only adequacy of further
inquiry]; In re T.G. (2020) 58 Cal.App.5th 275, 290 [discussing
obligation to interview extended family members only in context
of further inquiry].) Indeed, mother’s authorities could be read as
limiting the extended family member initial inquiry duty to
inquiring only with those actually involved in the proceedings.
(See In re D.F., at p. 568 [initial inquiry duty is “to ask all
relevant involved persons whether the child may be an Indian
child” (italics added)]; In re T.G., at p. 290 [initial inquiry duty is
“to ask all relevant involved individuals whether the child may be
an Indian child” (italics added)].) As far as we can glean from the
record, in the five years they were pending, none of the persons
mother claims the Department should have contacted had any
involvement in the proceedings below. Maternal grandmother
was incarcerated and there is no indication mother’s siblings or
maternal grandfather were readily accessible to the Department
(access that may have been further complicated by mother’s
multiple stints in state custody during the case).
Under the circumstances, however, we need not resolve
whether error occurred. The only claimed error is one of state
law and therefore reversible only if shown to be prejudicial. (In
re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.),
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citing Cal. Const., art. VI, § 13.) We are satisfied any error that
occurred here was not.
Courts are divided on what showing of prejudice warrants
reversal for initial inquiry errors. “Some courts have addressed
this problem by requiring an appellant who asserts a breach of
the duty of inquiry to, at a minimum, make an offer of proof or
other affirmative assertion of Indian heritage on appeal.” (In re
S.S., supra, 75 Cal.App.5th at pp. 581–582, citing cases.) Others
have excused such a showing, effectively treating failure to
inquire as error per se. (See, e.g., In re Y.W. (2021)
70 Cal.App.5th 542, 556; In re J.C. (2022) 77 Cal.App.5th 70, 80.)
The Fourth Appellate District in Benjamin M., supra,
70 Cal.App.5th 735, took a third approach, concluding “a court
must reverse where the record demonstrates that the agency has
not only failed in its duty of initial inquiry, but where the record
indicates that there was readily obtainable information that was
likely to bear meaningfully upon whether the child is an Indian
child.” (Id. at p. 744.) Our court took a fourth approach,
concluding initial inquiry errors require reversal only when the
record of proceedings in the court or a proffer of evidence made on
appeal suggests a reason to believe the child may be an Indian
child. (In re Dezi C. (2022) 79 Cal.App.5th 769, 779, review
granted Sept. 21, 2022, S275578.)
We have previously rejected the error per se line of cases.
(In re M.M. (2022) 81 Cal.App.5th 61, 71, review granted Oct. 12,
2022, S276099.) Under any of the other three lines of cases, the
court’s error here was harmless.
On the record before us, there is no reason to believe there
is readily obtainable information likely to bear meaningfully on
whether J.B. has Indian ancestry. Mother and father both
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denied knowledge of any Indian ancestry in signed, written
submissions to the juvenile court. Father reiterated his lack of
knowledge of Indian ancestry in person on the record. And
neither parent provided additional information to the court about
Indian ancestry in the five years since being admonished to do so.
As such, this case is unlike Benjamin M. There, the father was
entirely absent from the proceedings and no person from the
father’s side of the family had been asked about Indian ancestry.
With information about ancestry on the father’s side completely
“missing,” inquiry with a person sharing the father’s ancestry
“would likely have shed meaningful light on whether there [wa]s
reason to believe Benjamin [wa]s an Indian child.” (Benjamin M.,
supra, 70 Cal.App.5th at p. 744.) No such facts are present here.
Moreover, the record does not reflect the information
mother claims the Department should have sought was “readily
obtainable.” Mother contends the Department should have
contacted each living person mother mentioned in relaying her
family history to the Department—her three older siblings,
maternal grandfather, and maternal grandmother. Maternal
grandmother is incarcerated. Mother is not in contact with an
older brother. While she is in contact with maternal grandfather
and her other two older siblings, there is no indication those
individuals were willing to talk to the Department at all. Despite
their relation to J.B., none appeared or was volunteered by
mother as a potential participant in the proceedings.
Further, we are offered no reason in the record to believe
mother’s extended family members would have better
information about her ancestry than she did. Citing to In re
Y.W., supra, 70 Cal.App.5th 542, mother argues her knowledge of
her own ancestry “may not be reliable as she was raised in foster
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care and estranged from her parents.” This overstates the degree
of detachment from her family. Mother was in foster care for one
year in her early teens. Otherwise, until she was 17, she was
raised by maternal grandmother. After that, when she was 18,
she developed a relationship with maternal grandfather.
Accordingly, this case is nothing like In re Y.W., in which the
mother was adopted and did not have information about her
biological relatives at all, much less any contact with them. (Id.
at p. 548.)
Mother’s contact with maternal grandfather and two older
siblings is significant in the abstract to show a likelihood of
shared knowledge of ancestry. (See, e.g., In re Ezequiel G. (2022)
81 Cal.App.5th 984, 1015 [“All of the parents appear to have been
in contact with their extended families, and thus the possibility
that they might unknowingly be members of a tribe appears
trivially small.”].) But it takes on heightened significance in the
context of a repeat participant in dependency proceedings.
Although we agree with mother that dependency proceedings
occurring prior to the relevant amendments to Welfare and
Institutions Code section 224.2 are not direct evidence of what a
family member might have said about Indian ancestry, such
ancestry was still at issue in mother’s prior proceedings with the
Department. Given the repeated significance of the issue to her
parental rights, we expect she would have asked her relatives
with whom she had contact about Indian heritage. But after two
Department cases, mother still “ha[s] no Indian ancestry as far as
[she] know[s].”
Finally, no one has suggested any reason to believe J.B.
might have Indian ancestry. Certainly, mother has made no offer
of proof that he is an Indian child.
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Given the absence of any evidence or claim J.B. might have
Indian ancestry, mother’s “unvarnished contention that
additional interviews of [her relatives] would have meaningfully
elucidated [his] Indian ancestry” does not support a finding of
prejudice. (In re Darian R. (2022) 75 Cal.App.5th 502, 510.)
DISPOSITION
The juvenile court’s order terminating mother’s parental
rights is affirmed.
GRIMES, Acting P. J.
I CONCUR:
HARUTUNIAN, J.
 Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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WILEY, J., Dissenting.
It would not have been hard for the Department to try to
contact the maternal grandfather. The Department was in
regular contact with J.B.’s mother and knew she had phoned that
grandfather recently. The Department just never made the
effort.
The Department should have made the effort. When it
would be so easy to comply with the statute, it is more than an
affront to tribes for whom the Legislature amended the statute in
2018. For tribes, it is a miscarriage of justice. The Department’s
disinterest in their fate shuts them out of a process that could
allow them to learn of children to carry tribal culture into the
future.
This is my 18th dissent on this issue. I remain hopeful the
Department one day will conclude a wise course would be to
comply with the law.
WILEY, J.
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