In re T.S. CA2/2 ( 2022 )

Filed 9/26/22 In re T.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re T.S., a Person Coming B312520
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
21CCJP01067A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
E.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Robin R. Kesler, Judge Pro Tempore. Affirmed.
Roni Keller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
__________________________________________
In this juvenile dependency appeal, E.S. (mother)
challenges the juvenile court’s jurisdictional findings and
dispositional orders as to her then-15-year-old daughter T.S.
(daughter). Mother argues the juvenile court erred when it
exercised jurisdiction over daughter and removed her from
mother’s custody and care. Additionally, mother claims the
juvenile court abused its discretion in ordering monitored
visitation in particular and her reunification case plan in general.
We conclude mother forfeited her challenges to jurisdiction,
removal, and the reunification case plan. As to her challenge to
monitored visitation, we disagree.
Mother also challenges the juvenile court’s finding that the
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901et seq.) and related California law did not apply. Although the
juvenile court may have committed error under ICWA and
related California law, that noncompliance was harmless because
there is no “ ‘reason to believe’ ” that the inquiry mother
identifies would lead to a different result. (See In re Dezi C.
(2022) 79 Cal.App.5th 769, 779, review granted Sept. 21, 2022,
S275578.)
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BACKGROUND
1. The Family
Mother has four children. Daughter is her second oldest
child. Her other three children live with her, are not involved
with these dependency proceedings, and were found to be safe in
her care. Daughter’s father is not a party to this appeal but was
involved in the proceedings below.
2. Previous Referrals
In June 2020, prior to the instant proceedings, a referral
was made to the Los Angeles County Department of Children and
Family Services (Department), alleging mother had physically
abused daughter with a broom, a belt, and a skillet. Daughter
reported that a mark on her arm was the result of mother hitting
her with a broom. At the time, daughter had been living with
mother but, after the referral, daughter lived with father. The
referral was closed in part as inconclusive and in part as
unfounded. In addition, there were two other earlier referrals
regarding the family that were concluded as unfounded and
inconclusive.
3. Events Preceding Petition
In early February 2021, the Department received a referral
stating paternal grandparents had kicked daughter out of their
home and no longer wanted to care for her. The referral also
stated paternal grandparents had not taken care of daughter and
had fed her only noodles, and that neither parent wanted to care
for daughter.
As a result of the referral, a Department social worker
spoke with daughter and family members. Daughter told the
social worker the allegations of the referral were true. She said
paternal grandparents mistreated her, fed her only noodles,
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would not let her open the refrigerator without asking, and
kicked her out of their home. Daughter said father “bought his
other children a lot of stuff for Christmas and not for her.”
According to daughter, when she lived with mother, she had
everything but when she lived with father “everything went
down.” Daughter also said her paternal aunt and paternal
grandmother hit her. The social worker reported daughter
smirked during her interview and “seemed proud, happy and
appeared to laugh” as she shared a video of her smoking
marijuana with someone else, whom daughter identified as
mother. The Department social worker later noted, however, she
could not tell if the person with daughter was mother. Daughter
told the social worker she began running away from paternal
grandparents’ home in December 2020 and would stay on and off
with Ms. M. Garrett.
On the other hand, father told the social worker the
paternal grandparents had not thrown daughter out of the house.
He expressed frustration with daughter’s desire to do whatever
she wanted and her proclivity to run away whenever she did not
get what she wanted. He noted last Christmas daughter had
asked for something he could not afford. When daughter
discovered he had not bought what she asked for, “she cursed him
out and stopped talking to him.” Father stated mother kept
daughter from him as a child and now she was a teenager who
did not listen. He felt he could not discipline her. He explained
when daughter first came to live with him the year before, he did
not believe mother’s side of the story. Since then, however, father
came to believe daughter made up the allegations against mother
because she did not want to follow rules. Father said he had been
taking daughter to therapy but she had missed her last few
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appointments because she had left home. Father explained he
had other children, a job, and a criminal history. He did not want
to risk daughter making false accusations against him that could
send him to jail. Father did not care if mother wanted to take
daughter back home.
Mother told the social worker the woman with whom
daughter had been staying, Ms. Garrett, was the foster parent for
mother’s younger sister, daughter’s maternal aunt (maternal
aunt). Mother said maternal aunt was not a good influence for
daughter and believed maternal aunt may have influenced
daughter to want to be in foster care. However, mother did not
want daughter “in the system” and asked what she could do to
have the referral closed. The social worker explained mother and
father needed to bring daughter home or make an appropriate
plan with relatives. Although mother was skeptical—stating
daughter would not want to be with mother but instead wanted
to be “running the streets” and “doing whatever she wants”—
mother called daughter with the social worker to tell her she had
to return to paternal grandparents’ home or come home with
mother. Daughter responded by yelling and threatening to
“ ‘burn the house; that it was going to be hell or that she was
going to jail for murder.’ ”
Mother explained the year before daughter falsely accused
mother of beating her up and trying to stab her. As a result and
since then, daughter lived with father. Mother noted when
daughter calls her now, mother has someone with her to witness
the conversation because mother does not want daughter making
further allegations against her. Mother stated daughter had
called just before mother’s interview with the social worker. In
that call daughter told mother paternal grandparents mistreated
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her and paternal aunt and paternal grandmother had hit her.
Mother indicated she did not know if daughter was being honest,
stating daughter had “lied about her in the past” and mother
“does not know what to believe anymore.” Although mother did
not know what was happening at paternal grandparents’ home,
she did not believe they would kick daughter out of the house.
Mother indicated daughter could return to live with her but
mother did not believe daughter would want to because mother
did not allow daughter “to be running the streets.”
Paternal grandparents and paternal aunt reiterated what
mother and father had said about daughter. Daughter did not
like rules, wanted to do whatever she desired, had expensive
tastes, and if she did not get what she wanted, would become
very upset. They denied daughter was kicked out of paternal
grandparents’ home and indicated she could return anytime.
They explained daughter began leaving the home in
approximately January 2021 and they discovered she had been
staying with maternal aunt in her foster home. They worried for
daughter’s safety.
The social worker also spoke with daughter’s three
brothers. Her brothers did not believe paternal grandparents
kicked daughter out of their home or that they mistreated her.
Rather, they believed daughter lied, and one of her brothers
stated she “always causes problems.” They believed maternal
aunt also lied a lot and was a bad influence on daughter.
Daughter’s brothers indicated mother always provided for them
and took care of them, including daughter. Daughter’s youngest
brother denied mother hit any of her children. The Department
expressed no concerns for the children’s safety in mother’s care.
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The social worker also spoke with Ms. Garrett, maternal
aunt’s foster mother and with whom daughter had been staying.
Ms. Garrett reported daughter had said she was mistreated and
abused by paternal grandparents. Ms. Garrett stated mother
and father knew daughter was mistreated by paternal
grandparents but did not care. Ms. Garrett said daughter had
bonded with her and her family and was welcome to stay with
them.
Finally, the social worker spoke with mother’s boyfriend of
the past seven months. He stated he did not know daughter well
but reported she called mother to ask for money or to curse at her
and threaten to beat her up. He said mother worked hard and
provided for and took good care of her children. He noted despite
daughter’s poor treatment of mother, mother was always willing
to take money or food to daughter when she could.
In mid-February 2021, a Department social worker
recommended mother or father pick up daughter from Ms.
Garrett’s home. Mother agreed to do so, but believed daughter
would not want to leave with her. The social worker advised
mother to call law enforcement if needed. The social worker
alerted Ms. Garrett of the plan, who then told daughter.
Daughter became upset and threatened to run away. Before
trying to pick up daughter, mother spoke with both daughter and
the social worker on the phone to discuss the plan. However,
daughter again became very upset, saying she preferred to be on
the streets than with mother or father because “they put their
hands on her.” Daughter again threatened to beat up mother.
Mother stayed in contact with daughter for days, trying to
convince her to return home, but daughter refused. Mother also
communicated with the Department social worker, giving
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updates on her attempts to bring daughter home and indicating
she did not want daughter in the foster system or “jumping
around from placement to placement.” Mother and the social
worker discussed possible placement options. Mother appeared
amenable to daughter being placed with Ms. Garrett. The social
worker reported daughter often was irritated with mother, cried,
yelled, claimed she would “ ‘end up in jail for killing someone or
run away,’ ” and threatened to “ ‘fuck the mother up.’ ”
4. Consent to Jurisdiction and Removal
On March 4, 2021, mother and father provided verbal and
written consent granting the Department jurisdiction over
daughter and permitting the removal of daughter from their care.
Mother believed she had “tried everything and she no longer
knows what to do with [daughter], as she is refusing to go with
her, the father or anyone else that is not Ms. Garrett.” Mother
hoped to reunify with daughter in the near future. The
Department reported not only did mother and father feel they no
longer were able to meet daughter’s needs, but daughter refused
all of mother’s suggestions and was adamant she wanted to be in
foster care with Ms. Garrett.
Thus, with mother and father’s consent, the Department
removed daughter from parents’ custody and placed her with Ms.
Garrett.
5. Petition and Detention
Soon after, on March 8, 2021, the Department filed a
Welfare and Institutions Code section 300 petition on behalf of
daughter (petition).1 The petition alleged two counts, both of
which stated daughter had ongoing behavior issues, including
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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“chronic runaway episodes and aggressive and threatening
behaviors.” Count b-1 stated father was unable to supervise and
care for daughter and had consented to daughter being placed in
protective custody. Count b-2 stated mother was unable to
supervise and care for daughter and had consented to daughter
being placed in protective custody.
At the detention hearing held a few days later, the juvenile
court ordered daughter removed from her parents’ custody and
care and detained in shelter care under Department supervision.
The court ordered monitored visitation for mother and father.
6. Continued Investigation
In April 2021, a Department social worker conducted
further interviews of the family. Daughter reported she was
happy in Ms. Garrett’s care. Daughter told the social worker
mother had stabbed her in her stomach and hit her with various
items. Daughter stated mother drank a lot, used to drive while
drinking, and became aggressive when she drank. Daughter
claimed mother picked on her and “put her hands on me” when
she fought with her boyfriend. Daughter also accused mother of
committing fraud. As to father, daughter stated he had never
been a part of her life, had “kids everywhere,” and did not
prioritize her. Daughter also accused both paternal aunt and
father’s girlfriend of hitting her. Daughter told the social worker
paternal grandparents did not let her leave the home and only
allowed her to eat noodles. Daughter denied running away from
paternal grandparents’ home. She stated they “kicked me out for
no reason.” Daughter said, “I can’t picture myself ever living
with my parents.” She did not want to reunify with her parents
but wanted to stay in Ms. Garrett’s care.
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Mother told the social worker daughter was a compulsive
liar and materialistic. Mother stated after daughter falsely
accused mother of hitting her, daughter lived with father. Once
father understood daughter had serious behavior issues, he
moved daughter in with paternal grandparents. Mother did not
believe father was a danger to daughter but believed father could
not “ ‘handle her bad attitude.’ ” Mother expressed concern that
daughter’s lies could have resulted in her other children being
“ ‘taken away.’ ” Mother revealed she had been sexually molested
by a trusted family member when she was younger and, as a
result, mother thought she might be “over protective” of
daughter. Due to daughter’s threats against her, mother stated
she suffered from anxiety, expressed feelings of anger toward
daughter, and did not want to visit with daughter “until deemed
appropriate.” Mother also noted her oldest son, who had been
shot eight times and was seriously injured, was affiliated with a
street gang and “ ‘on borrowed time.’ ” She said when he was
shot, she stayed with him at the hospital for 21 days, and lost her
job, home, and car. Mother worried constantly about her oldest
son.
The social worker noted that during her interview mother
“suck[ed] her thumb as a coping mechanism” and there were
“patches of bald spots” on the right side of her head. Mother
explained she suffered high levels of anxiety due to daughter’s
accusations of physical abuse and violent threats, causing mother
to pull her hair out. Nonetheless, the social worker noted mother
was appropriate, engaged, and did not appear to be under the
influence of any substances during the interview. The social
worker also spoke with mother’s therapist, who noted “mother’[s]
behaviors and symptoms have improved since being off he[r]
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medication. . . . [She] is less agitated, aggressive, and more
motivated.” He had no concerns for mother. Mother explained on
the advice of her therapist, she stopped taking her prescribed
anxiety medication, after which her anxiety levels dropped. She
denied using illicit drugs or marijuana or abusing alcohol.
Father told the social worker he wanted to waive
reunification services and did not want daughter returned to his
custody. He stated daughter did not listen to him, lied about
family members hitting her, left the house without permission,
refused to eat food paternal grandparents made for her,
threatened paternal grandparents, and got angry if others did not
buy her expensive things. Father did not believe mother hit
daughter. Father said, “I don’t care for any visits. Once she
reaches of age, she can look for me. I’m not trying to get in
trouble. I have a four-year-old that needs me.”
The social worker also spoke with daughter’s three siblings
and paternal grandparents, all of whom reiterated what they and
others had already reported. For example, they noted daughter
had behavior issues that included compulsive lying, running
away, and threatening harm to others, especially when she did
not get her way. Daughter’s brothers denied any abuse or neglect
in their home with mother.
Ms. Garrett told the social worker she had not seen
daughter display any problematic behaviors. Ms. Garrett stated
she was supporting daughter in her goal of becoming a registered
nurse. Ms. Garrett believed mother was not pleased with
daughter’s progress while in Ms. Garrett’s care.
Finally, also in April 2021, the Department social worker
spoke with a mental health provider for daughter, who reported
daughter had made homicidal threats against mother and the
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Department. Daughter said she made such threats so she would
be “taken ‘serious.’ ” The mental health provider said daughter
participated actively in intensive services and was motivated and
goal oriented.
Due to allegations of general neglect, mother and father’s
contentious relationship, daughter’s defiant behaviors, mother
and father’s inability to manage those behaviors, mother’s and
father’s childhood trauma, emotional abuse, and daughter’s
homicidal ideations toward mother, the Department concluded
daughter was at high risk for future neglect and recommended
she be declared a dependent of the court.
7. Amended Petition
On April 27, 2021, nine days before the jurisdiction and
disposition hearing, the Department filed a first amended
petition (amended petition). In addition to the two original
subdivision (b) counts (alleging mother and father were unable to
supervise and care for daughter and had consented to daughter
being placed in protective custody), the amended petition also
alleged eight new counts. Three new subdivision (a) counts
alleged mother, father, and father’s significant other physically
abused daughter. Five new subdivision (b) counts repeated the
physical abuse allegations as well as alleged mother suffered
from mental and emotional problems, had a history of substance
abuse, and was a current abuser of alcohol and marijuana. After
the amended petition was filed, the juvenile court dismissed the
original petition.
8. Adjudication and Disposition
The juvenile court held the adjudication and disposition
hearing on May 6, 2021.
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At the hearing, counsel for mother entered a general denial
as to the amended petition on behalf of mother. Counsel stated,
“My client is asking the court to dismiss all the counts on this
[amended] petition.” Mother’s counsel argued there was
insufficient evidence to support either of the counts related to
alleged physical abuse, the count related to mother’s alleged
mental health issues, or the count related to mother’s alleged
substance abuse. Counsel submitted count b-2 (related to
mother’s inability to supervise and care for daughter and her
consent to daughter being placed in protective custody) to the
court stating, “This was the only count pled in the original
petition, and this is the only count that this court can possibly
sustain today.” As to disposition, counsel for mother stated
mother submitted to an order of suitable placement but objected
to drug testing and a mental health assessment.
Counsel for father noted the general consensus that
daughter was not trustworthy. Nonetheless, similar to mother’s
counsel, counsel for father stated count b-1 (related to father’s
inability to supervise and care for daughter and his consent to
daughter being placed in protective custody) “is true” and
submitted on that count.
Counsel for the Department argued the juvenile court
should sustain the amended petition except for the counts related
to father’s alleged physical abuse of daughter. Counsel for the
Department expressed concern that the family situation was
“chaotic” and mother and father had admitted “they are not able
to provide care for [daughter], they are not able to meet her
needs.” The Department asked the court to “protect [daughter] so
that she can get the services and the support that she needs.”
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After hearing argument from counsel, the juvenile court
sustained the two original subdivision (b) counts, counts b-1 and
b-2, related to mother’s and father’s inability to provide daughter
proper care and supervision and their consent to protective
custody. The court dismissed the remaining counts of the
amended petition. The court stated, “I cannot find, necessarily,
that the minor’s statements are credible, throughout.” The court
concluded that daughter’s “behaviors are beyond these parents’
ability to maintain her safely in the home.” The court declared
daughter a dependent of the court under section 300, subdivision
(b), and removed her from her parents’ custody and care.
As to disposition, the court ordered mother “to do four
random and on-demand consecutive clean drug tests, and then on
suspicion after that. And she needs to have very low levels of
marijuana.” The court noted its drug testing order was
“dispositional, but not jurisdictional.” The court also ordered
mother to take her prescribed medications, to participate in
mental health counseling, and to submit to a psychological
assessment, stating, “Mother’s behaviors in regards to sucking a
thumb and pulling her hair out is concerning to this court if she
is going to reunify with her child.” The court also ordered mother
to take parenting classes. Although daughter did not want to
visit with either mother or father, the court ordered monitored
visitation for both parents.2 Counsel for mother noted “mother’s
objection to the case plan.”
2 At the hearing, father waived family reunification
services. Thus, the juvenile court did not order services for
father.
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9. ICWA
In February 2021, mother denied having Native American
heritage. In March 2021, father was unsure but thought his
grandmother (paternal great grandmother) might have Native
American heritage. Mother and father each filed a “parental
notification of Indian status” form (ICWA-020) with the juvenile
court. Mother’s form indicated she had no Indian ancestry.
Father’s form stated he had “no Indian ancestry as far as I
know.”
At the March 11, 2021, detention hearing, the juvenile
court stated it had no reason to know that ICWA applied as to
mother. However, the court noted “there may be some Unknown
tribe Native American/Indian heritage in the father’s
background.” The court ordered the Department to investigate
that claim.
The following month, on April 21, 2021, father told a
Department social worker he did not have any Native American
ancestry.
At the May 6, 2021 jurisdiction and disposition hearing,
father’s counsel questioned father regarding his previous
equivocal statement regarding potential Native American
ancestry. Father stated he spoke with paternal great
grandmother, who “didn’t say anybody was [a] registered”
member of an Indian tribe. He said there was “nothing that she
can do in order [to] get the full ancestry report. So I have no way
of obtaining that information.” The juvenile court then made “the
ultimate finding that the Indian Child Welfare Act does not
apply,” stating, “I have no reason to believe that it would apply.”
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10. Appeal
Mother appealed the juvenile court’s “Dispositional case
plan orders made following hearings on 05/06/2021.”
DISCUSSION
1. Jurisdiction and Removal
Mother argues the juvenile court erred when it took
jurisdiction over daughter. Mother claims there were no factual
or legal grounds for dependency jurisdiction and the juvenile
court’s jurisdictional findings were arbitrary and unfounded.
Mother argues daughter simply was willful, misbehaving, and
dictating what she wanted and where she wanted to be.
Similarly, mother asserts the juvenile court’s removal order was
unsupported and an abuse of discretion.3
We conclude mother forfeited her challenges to jurisdiction
and removal for the simple reasons she consented to both and
failed to object below. (See In re S.B. (2004) 32 Cal.4th 1287,
1293 [forfeiture doctrine applies in dependency cases].) In March
2021, mother gave her consent for the Department to remove
daughter from her custody and care. According to her written
affidavit, mother made this decision based not only on her
inability to care for and supervise daughter but also on
daughter’s threatening behaviors. The petition’s one count
related to mother (count b-2) addressed these very concerns and
noted mother had consented to both daughter’s removal and
3 Although in her opening brief mother cites legal authority
regarding removal orders, she fails to apply that authority to the
specific facts of her case. Thus, her position as to removal (as
well as to the court-ordered case plan discussed below) is lacking
any true legal analysis or argument for us to consider. (Cal.
Rules of Court, rule 8.204(a)(1)(B).)
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daughter being taken into protective custody. That same count
(count b-2) was repeated in the amended petition and was the
only sustained count involving mother. All other counts
involving mother were dismissed. Indeed, at the jurisdiction
hearing, after arguing against the amended petition, counsel for
mother conceded count b-2 was “the only count that [the juvenile]
court can possibly sustain today” and submitted “the matter of
count (b)(2) to the court.” Thus, although mother objected to the
counts added to the amended petition, she did not object as to the
original b-2 count alleged in the petition. Counsel for mother also
“submit[ed] to a suitable placement order.”
Moreover, beyond mother’s consent and failure to object,
the factual record amply supports the jurisdictional findings and
removal order. (In re I.J. (2013) 56 Cal.4th 766, 773 [substantial
evidence standard of review applies to juvenile court’s
jurisdictional findings and removal order]; In re Nathan E. (2021)
61 Cal.App.5th 114, 123 [same].) As the Department notes, this
is an incorrigible child case. (See In re R.T. (2017) 3 Cal.5th 622,
637.) Daughter repeatedly ran away from home, physically
threatened mother and others (including homicidal threats), lied
compulsively, and despite sincere efforts to care for and supervise
daughter, mother was unable to do so. Finally, in her notice of
appeal, mother seemed to recognize jurisdiction and removal
were appropriate, stating she appealed only the “Dispositional
case plan orders made following hearings on 05/06/2021.”
Based on the record before us, we conclude the juvenile
court’s jurisdictional findings and removal order were neither
arbitrary nor unfounded. Rather, they were supported not only
by mother’s consent and failure to object but also substantial
evidence.
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2. Visitation and Reunification Case Plan
Mother also argues the court-ordered reunification case
plan generally, and its monitored visitation requirement
specifically, were unfounded and an abuse of discretion. We
review the court’s dispositional orders including monitored
visitation for an abuse of discretion. (In re D.P. (2020) 44
Cal.App.5th 1058, 1070; In re Christopher H. (1996) 50
Cal.App.4th 1001, 1006.)
a. Monitored Visitation
In making a visitation order, the juvenile court balances
“the interests of the parent in visitation with the best interests of
the child. In balancing these interests, the court in the exercise
of its judicial discretion should determine whether there should
be any right to visitation.” (In re Jennifer G. (1990) 221
Cal.App.3d 752, 757.) “The court may, of course, impose any
other conditions or requirements to further define the right to
visitation in light of the particular circumstances of the case
before it.” (Ibid.)
Mother states “there was no risk presented by either parent
justifying a need for a monitor” and “[t]here was no evidence that
unmonitored visitation would place the minors [sic] at risk.” As
the Department correctly notes, however, mother’s position is not
supported by the record. Daughter did not want to live with
mother and when she spoke with mother she often cursed at and
physically threatened her. Although mother appeared to want
what was best for daughter, mother had grown apart from
daughter and reported “feelings of anger toward” her since she
had accused mother of physical abuse. Mother insisted on having
a witness with her when she spoke with daughter to protect
against false accusations. Based on the record before us, we
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conclude the juvenile court did not abuse its discretion in
ordering monitored visitation for mother.
b. Reunification Case Plan Generally
“At the dispositional hearing, the juvenile court must order
child welfare services for the minor and the minor’s parents to
facilitate reunification of the family. [Citations.] The court has
broad discretion to determine what would best serve and protect
the child’s interest and to fashion a dispositional order in accord
with this discretion.” (In re Christopher H., supra, 50 Cal.App4th
at p. 1006.) “The reunification plan ‘ “must be appropriate for
each family and be based on the unique facts relating to that
family.” ’ ” (Ibid.)
Mother asserts the entire court-ordered case plan “was
without substantiation or justification.” Mother fails to support
this conclusion with either reasoned argument or relevant legal
citation. Thus, we consider the argument forfeited. (See Benach
v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“When
an appellant fails to raise a point, or asserts it but fails to support
it with reasoned argument and citations to authority, we treat
the point as waived”]; Cal. Rules of Court, rule 8.204(a)(1)(B).)4
3. ICWA
Finally, mother argues the Department failed to satisfy its
inquiry requirements under ICWA and, therefore, the juvenile
court erred because it relied on inadequate information in
4 Mother ends her discussion of the court’s disposition
orders by claiming voluntary supervision under section 301
would have been less drastic and more than sufficient. However,
because we have already affirmed the juvenile court’s
jurisdictional findings, mother’s voluntary supervision argument
is unavailing.
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determining ICWA did not apply. Applying our recent decision in
In re Dezi C., supra, 79 Cal.App.5th 769, review granted, we
conclude any error was harmless.
a. Applicable Law
“[The] 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, except in emergencies, must follow
before removing an Indian child from his or her family.” (In re
Austin J. (2020) 47 Cal.App.5th 870, 881; see also 25 U.S.C.
§ 1902.) For purposes of ICWA, an “ ‘Indian child’ ” is an
unmarried individual under age 18 who is either (1) a member of
a federally recognized Indian tribe or (2) eligible for membership
in a federally recognized tribe and is the biological child of a
member of a federally recognized tribe. (See 25 U.S.C. § 1903(4)
[definition of “ ‘Indian child’ ”] & (8) [definition of “ ‘Indian
tribe’ ”]; see also Welf. & Inst. Code, § 224.1, subd. (a) [adopting
federal definitions].)
Under California law, the Department and the juvenile
court “have an affirmative and continuing duty to inquire” into
whether a dependent child “is or may be an Indian child.”
(§ 224.2, subd. (a); see also In re Benjamin M. (2021) 70
Cal.App.5th 735, 741–742.) “ ‘Following changes to the federal
regulations concerning ICWA compliance, California made
conforming amendments to its statutory scheme regarding
ICWA, effective in 2019. [Citation.] . . . [T]he resulting
clarification of law, found in part in section 224.2, “creates three
distinct duties regarding ICWA in dependency proceedings.” ’ ”
(In re H.V. (2022) 75 Cal.App.5th 433, 437.) The first duty—an
initial duty of inquiry—is at issue here.
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The initial duty of inquiry requires “ ‘from the
[Department]’s initial contact with a minor and his family, . . . a
duty of inquiry to ask all involved persons whether the child may
be an Indian child. (§ 224.2, subds. (a), (b).)’ ” (In re H.V., supra,
75 Cal.App.5th at p. 437.) This includes the Department “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” (§ 224.2, subd. (b); see also Cal. Rules of
Court, rule 5.481(a)(1)), as well as the juvenile court inquiring at
each party’s first appearance in the proceedings whether he or
she knows or has reason to know that the child is an Indian child
(§ 224.2, subd. (c); see also Cal. Rules of Court, rule 5.481(a)(2)).
Further inquiry and notice to the tribes (i.e., the second and third
ICWA duties) may be required only if there is “reason to believe”
or “reason to know” that the child is an Indian child based upon
this initial inquiry. (§ 224.2, subds. (d), (e) & (f); 25 C.F.R.
§ 23.107(c) (2021).) These further inquiry and notice
requirements are not at issue here.
b. Standard of Review
“We review claims of inadequate inquiry into a child’s
Indian ancestry for substantial evidence.” (In re H.V., supra, 75
Cal.App.5th at p. 438.) Where the facts are undisputed, we must
independently determine whether ICWA’s requirements have
been satisfied. (In re D.S. (2020) 46 Cal.App.5th 1041, 1051.)
c. The Department’s deficient initial inquiry did
not result in prejudicial error.
As mother correctly notes, the Department did not satisfy
its initial inquiry obligation because it failed “ ‘to make a
meaningful effort to . . . interview extended family members to
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obtain whatever information they may have as to the child’s
possible Indian status.’ ” (In re A.C. (2022) 75 Cal.App.5th 1009,
1015.) Although the Department inquired of mother and father
as to daughter’s potential status as an Indian child, the
Department did not ask the same of extended family members,
such as paternal grandparents and paternal aunt, all of whom
the Department had contact with during the underlying
proceedings. (§ 224.2, subd. (b); see also Cal. Rules of Court,
rule 5.481(a)(1).)
In light of the Department’s failings in this regard, we
must determine whether the juvenile court committed reversible
error when, based on insufficient evidence, it held ICWA did not
apply. The courts—including those within our Second District—
are at odds over whether and when such an error is prejudicial
and, therefore, reversible. (In re A.C., supra, 75 Cal.App.5th at
p. 1011.) 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.” (In re Dezi
C., supra, 79 Cal.App.5th at p. 779, rev.gr.)
Applying the “ ‘reason to believe’ rule” we adopted in In re
Dezi C., supra, 79 Cal.App.5th at page 779, review granted, we
conclude the juvenile court did not commit reversible error. The
Department’s failure to make the requisite inquiries of
daughter’s extended family members was harmless because the
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record does not provide a reason to believe daughter is an Indian
child within the meaning of ICWA. Mother and father both
reported that they had no known Indian ancestry, and neither
parent was adopted such that “their self-reporting of ‘no heritage’
may not be fully informed.” (Ibid.) Mother also makes no proffer
on appeal that she or father have any Indian heritage. (See id. at
pp. 779, fn. 4, 786.) As such, substantial evidence supports the
juvenile court’s order below.
DISPOSITION
The May 6, 2021 order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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