In re N.D. CA2/8 ( 2022 )

Filed 9/22/22 In re N.D. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re N.D. et al., Persons Coming B316361
Under Juvenile Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN Los Angeles County
AND FAMILY SERVICES, Super. Ct. No. 19CCJP05436A-B
Plaintiff and Respondent,
v.
M.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Steff R. Padilla, Juvenile Court Referee.
Affirmed.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Kelly Emling, Deputy County
Counsel, for Plaintiff and Respondent.
___________________________
Father M.D. appeals the juvenile court’s order terminating
his parental rights to his children N.D. and K.D. Father’s sole
claim of error is that the Los Angeles County Department of
Children and Family Services (Department) made an inadequate
initial inquiry concerning the children’s ancestry for purposes of
the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.).
We affirm.
BACKGROUND
1. Overview of Proceedings
N.D. is now 18 years old. K.D. is now 17 years old. This
dependency proceeding began three years ago, in 2019, when
N.D. and K.D. were detained from their parents due to parents’
drug abuse and neglect of the children, who lived in a
dangerously filthy and deplorably unsanitary home. Soon
thereafter, the Department added allegations of domestic
violence. The children were placed with N.D.’s high school music
teacher and her husband. The parents failed to reunify with
their children, and the court terminated reunification services in
April 2021. The foster parents wanted to adopt both children,
and both children told the court they wanted to be adopted. The
court terminated parental rights in September 2021.
2. Facts Relevant to ICWA Inquiry
Paternal grandmother lived in the squalid home with the
family when the children were detained. In the detention report,
the Department reported the children would be staying with
paternal aunt while the parents cleaned the house.
The petition reflects that the Department questioned father
in person about K.D. and N.D.’s ancestry and he advised that
neither has any known Indian ancestry. In August 2019, at the
initial appearance hearing, both mother and father filed parental
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notification of Indian status forms (ICWA–020) indicating “I have
no Indian ancestry as far as I know.” Counsel for father
reconfirmed to the court at the hearing that father has “[n]o
Native American heritage.” Based on the record before it, the
court found “at this time it has no reason to know that I.C.W.A.
applies to this matter.”
The ICWA–020 forms and the court’s minute order of
proceedings admonished the parents to keep the Department,
their attorneys, and the court aware of any new information
relating to possible ICWA status.
Additional ICWA forms were attached to the amended
petition, stating the Department questioned both parents in
person about K.D. and N.D.’s ancestry and both advised that
neither has any known Indian ancestry.
In an October 2019 addendum report, mother reported she
was adopted at a very young age and had no information about
her biological parents. She was raised in the Philippines by her
adoptive parents, who are now deceased, and came to the U.S.
when she was 13. She has two brothers who live locally but she
has minimal contacts with them. Although the report does not
specify, we infer from the attendant circumstances that the
brothers are adoptive and not biological.
Father reported he was born in Hawaii, moved to
California with his mother when he was seven, and did not know
his father. He has a good relationship with his three sisters.
Paternal grandmother and paternal great-aunt attended the
jurisdiction and disposition hearing in October 2019.
We are directed to no evidence in the record that the
Department ever asked any extended family members about the
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children’s possible Indian heritage, notwithstanding having
direct contact with certain 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; Welf. & Inst. Code, § 224.2; Cal. Rules of Court,
rule 5.481.)
The duty of inquiry has three “phases.” Father 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 extended family members about the child’s possible Indian
ancestry. (See Welf. & Inst. Code, § 224.2, subds. (a), (b), (c); In
re D.F. (2020) 55 Cal.App.5th 558, 566.)
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 juvenile
court a “reason to know” a child is an Indian child, the third
phase is triggered. This phase requires that notice pursuant to
ICWA be sent to the tribes to facilitate their participation in the
proceedings. (§ 224.3, subd. (a)(1); In re D.F., at p. 568.)
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“ ‘ “[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. (2021) 71 Cal.App.5th
388, 401.)
As part of its initial inquiry, the Department was required
to ask “extended family members,” among others, “whether the
child is, or may be, an Indian child . . . .” (Welf. & Inst. Code,
§ 224.2, subd. (b); In re S.S. (2022) 75 Cal.App.5th 575, 581.)
Although the Department asked the parents about Indian
heritage, it failed to inquire of extended family members with
whom the Department had contact.
In the absence of any evidence the Department complied
with its Welfare and Institutions Code section 224.2, subdivision
(b) duty to inquire of extended family members, the juvenile
court’s finding that ICWA does not apply is error. (See In re
Darian R. (2022) 75 Cal.App.5th 502, 509 [finding error where
evidence showed Department had contact with maternal aunt
and maternal grandfather but failed to inquire of them regarding
Indian ancestry].) However, we can reverse only if the error was
prejudicial. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742
(Benjamin M.), citing Cal. Const., art. VI, § 13.)
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
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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 that “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 recently
took a fourth approach, concluding initial inquiry errors require
reversal only when the record of proceedings in the juvenile court
or a proffer of evidence made on appeal suggests a reason to
believe that the child may be an Indian child. (In re Dezi C.
(2022) 79 Cal.App.5th 769, 779.)
We have previously rejected the error per se line of cases.
(In re M.M. (2022) 81 Cal.App.5th 61, 71.) Under any of the other
three lines of cases, the juvenile court’s error here was harmless.
On the record before us, there is no reason to believe there is
readily available information that is likely to bear meaningfully
on whether N.D. and K.D. have Indian ancestry. Mother and
father appeared and unequivocally denied knowledge of any
Indian ancestry. Mother was adopted at a young age and has no
information about her biological parents. She was raised in the
Philippines, and father was raised in Hawaii until he moved to
California at age seven. Nothing in the record concerning the
parents’ background indicates there is reason to believe N.D. and
K.D. have Indian ancestry.
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Moreover, no one has even suggested there is any reason to
believe N.D. and K.D. might have Indian ancestry. Certainly,
father has made no offer of proof that they are Indian children.
Instead, father and mother both certified they have no
information N.D. or K.D. may have Indian heritage. No
relative—not even paternal grandmother or paternal great-aunt,
both of whom attended the jurisdiction and disposition hearing—
has provided any information to suggest N.D. and K.D. have
Indian heritage. As such, this case is unlike Benjamin M. There,
the father was 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
“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.
Given the absence of any evidence or claim that N.D. and
K.D. might have Indian ancestry, father’s “unvarnished
contention that additional interviews of [relatives] would have
meaningfully elucidated the children’s Indian ancestry” does not
support a finding of prejudice. (In re Darian R., supra,
75 Cal.App.5th at p. 510.)
Finally, we note that no practical purpose would be served
if we were to remand for a further ICWA inquiry in this case,
where N.D. has aged out of the system, and K.D. will age out in
another year. We recognize that N.D. may remain a nonminor
dependent, at least until she is adopted, but one thing is clear:
N.D. is not a child, Indian or otherwise.
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DISPOSITION
The order terminating parental rights is affirmed.
GRIMES, J.
I CONCUR:
STRATTON, P. J.
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WILEY, J., Dissenting.
The Department could easily have asked the paternal
grandmother about possible Indian heritage but did not. I adhere
to my previous views: this is my ninth dissent on this issue, and
I am hardly alone. (E.g., In re Ezequiel G. (2022) 81 Cal.App.5th
984, 1015–1025 (dis. opn. of Lavin, J.).) The Department’s
management could eliminate harmful delay and costly
controversy by instructing its social workers to ask a few simple
questions.
WILEY, J.
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