In re Z.W. CA2/1 ( 2022 )

Filed 5/23/22 In re Z.W. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
In re Z.W. et al., Persons B314296
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 19CCJP02788)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
S.R.,
Defendant and Appellant.
APPEAL from an order establishing a legal guardianship of
the Superior Court of Los Angeles County, Stephen C. Marpet,
Judge Pro Tempore. Reversed with instructions.
Patricia K. Saucier, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
____________________
Mother and father have three children. The eldest was
born in 2012, the middle in 2013, and the youngest in 2015.
Since the beginning of the dependency proceedings, the children
lived with their paternal grandparents. During the course of the
dependency proceedings, the juvenile court concluded that it had
no reason to know the children were Indian children. Mother
appeals from the order granting paternal grandparents’ legal
guardianship over the children.
Mother argues that the Los Angeles County Department of
Children and Family Services (DCFS) failed to comply with state
law (Welf. & Inst. Code,1 § 224.2) implementing the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA).
Specifically, mother argues that the child welfare agency should
have interviewed her extended family members about Indian
ancestry. Respondent counters that the error was not prejudicial
because interviewing mother’s extended family members would
not have produced meaningful information about the children’s
Indian ancestry.
Although she later denied it, mother initially indicated that
her family may have Indian ancestry. DCFS did not ask
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
2
maternal grandmother about this apparent conflict when DCFS
interviewed her nor did DCFS ask maternal aunt about Indian
ancestry, even though maternal aunt monitored mother’s visits
with the children. Based on this record, we conclude DCFS’s
failure to ask extended family members about Indian ancestry
was prejudicial. We thus reverse the order terminating juvenile
court jurisdiction, conditionally affirm the order granting legal
guardianship, and remand to the juvenile court with instructions.
BACKGROUND
On May 2, 2019, DCFS filed a section 300 petition. As
later sustained, the petition alleged that mother abused
amphetamine, methamphetamine, ecstasy, and marijuana and
was thus unable to care for her children. On appeal, mother does
not challenge these jurisdictional findings. Her sole claim of
error on appeal is that DCFS did not interview extended family
members about the children’s Indian ancestry and that this
failure was prejudicial. We thus limit our background discussion
to the ICWA proceedings below and the court’s orders.
On May 3, 2019, at the detention hearing, the juvenile
court asked paternal grandmother if her family had any Indian
heritage. Paternal grandmother denied any such ancestry, and
the juvenile court found as to father, it had no reason to know the
children were Indian children. The juvenile court deferred any
ICWA determination as to mother because mother did not appear
at the detention hearing.
On May 30, 2019, mother told a social worker that the
children may have Indian ancestry. Mother did not provide the
name of any specific tribe. Mother refused to provide maternal
grandmother’s contact information. Mother reported she would
check with maternal grandmother about Indian ancestry and
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provide additional information to the social worker. Mother
never provided any additional information about Indian ancestry,
and the record does not reveal whether she ever spoke with her
grandmother about Indian ancestry.
A social worker asked paternal grandmother if mother’s
family had Indian ancestry. Paternal grandmother reported that
she was not aware of any. Paternal grandmother reiterated that
father’s side had no Indian ancestry.
On June 10, 2019, mother filed a Judicial Council
ICWA-020 Form (as updated January 1, 2008) indicating that she
had no Indian ancestry as far as she knew. At a hearing on June
10, 2019, the juvenile court asked mother if she had any Indian
ancestry, and she indicated she did not. That same day, the court
found no reason to know that the children were Indian children
as to mother’s side.
On June 12, 2019, the social worker contacted maternal
grandmother. The record does not indicate whether the social
worker asked maternal grandmother about Indian ancestry.
Maternal aunt A.P. monitored mother’s visits with the children.
There is no indication that social workers asked A.P. about
Indian ancestry. The record also indicates that the children had
contact with another maternal aunt, but does not disclose
whether DCFS asked her about Indian ancestry.
Mother did not reunify with the children. Mother lived
with maternal grandmother during portions of the dependency
period and at other times, enrolled in multiple drug treatment
programs. Father did not participate in the dependency
proceedings, during which he was incarcerated. Father had not
seen paternal grandparents in over four years.
4
The children remained placed with paternal grandparents
throughout the dependency proceedings. Paternal grandmother
wanted to become the children’s legal guardian. Paternal
grandmother did not want to adopt the children because she did
not want to prevent the parents from reunifying with them in the
future.
At the section 366.26 hearing, the juvenile court found that
the children were living with a relative who is unable or
unwilling to adopt but who is willing and capable of providing the
children with permanency through legal guardianship. The court
ordered long-term guardianship with paternal grandparents as
the children’s permanent plan. The court then terminated
jurisdiction over the children. Mother appealed from the order
setting long-term guardianship as the permanent plan.2
DISCUSSION
“At the outset of a dependency case, the child welfare
agency and the juvenile court have a statutory initial duty to
inquire into whether a child is, or may be, an Indian child. ‘The
child welfare department’s initial duty of inquiry includes “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 and where the child, the parents, or
Indian custodian is domiciled.” [Citation.]’ [Citation.]” (In re
Darian R. (2022) 75 Cal.App.5th 502, 507 (Darian R.), fn. &
italics omitted.) Under ICWA, the term “extended family
2 Mother also appealed from the denial of a section 388
motion. In her appellate briefing, however, she does not address
this section 388 motion. We thus do not discuss it.
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member” is “defined by the law or custom of the Indian child’s
tribe or, in the absence of such law or custom, shall be 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).)
The parties do not dispute that social workers should have
interviewed maternal grandmother and maternal aunts, who
were readily available. They only dispute whether this error was
prejudicial.
Respondent argues the error was not prejudicial under the
test in In re Benjamin M. (2021) 70 Cal.App.5th 735, (Benjamin
M.). Benjamin M. held that the failure to interview an extended
family member about Indian ancestry is prejudicial “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.) The Benjamin M. court concluded
the failure to inquire of extended family members was prejudicial
there because the father of one of the children never appeared in
the proceeding and father’s brother was available to ask about
father’s Indian ancestry. Benjamin M. reasoned, “Father’s
brother’s knowledge of his own Indian status would be suggestive
of Father’s status. While we cannot know how Father’s brother
would answer the inquiry, his answer is likely to bear
meaningfully on the determination at issue about his brother.”
(Id. at p. 745.)
In In re A.C. (2022) 75 Cal.App.5th 1009, a majority of this
court held the failure to ask extended family members about
Indian ancestry was prejudicial under the circumstances of that
case. There, on their Judicial Council ICWA forms, the parents
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declined Indian ancestry, but a detention report referenced that
the child may be an Indian child. Yet DCFS failed to interview
readily extended family members about Indian ancestry, and
particularly the conflicting evidence of such ancestry. The need
to interview extended family members was all the more apparent
because mother herself had been in foster care and arguably may
not have been familiar with her own heritage. The majority thus
concluded that we could not “assume that the parents’ mere
denial of Indian ancestry on a form was sufficient to dispel
prejudice from DCFS’s failure to ask A.C.’s extended family
members about potential Indian ancestry.” (Id. at p. 1017.)
In contrast, in Darian R., we rejected the mother’s claim
that failure to interview her aunt and father, with whom she had
lived during part of the dependency proceedings, was prejudicial
where both parents denied Indian ancestry, mother was under a
court order to provide information relevant to ICWA, there was
no evidence mother was estranged from her family, and a prior
court order in an earlier dependency case involving the same
biologic parents found ICWA inapplicable. Under these
circumstances, we concluded, “The record simply does not support
mother’s unvarnished contention that additional interviews of
mother’s father and sister would have meaningfully elucidated
the children’s Indian ancestry.” (Darian R., supra,
75 Cal.App.5th at p. 510; but see In re Antonio R. (2022)
76 Cal.App.5th 421, 435 [disagreeing with Darian R.].) Similarly,
DCFS’s failure to interview a maternal grandmother was not
prejudicial when the maternal grandmother was incentivized
earlier in the proceedings to reveal Indian ancestry when she,
with the support of mother’s counsel, sought placement of the
child in her care, yet revealed no such Indian ancestry. (In re
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S.S. (2022) 75 Cal.App.5th 575, 581–582 but see In re Antonio R.,
supra, 76 Cal.App.5th at p. 435 [disagreeing with In re S.S.].)
As mother argues, and we agree, this case resembles In re
A.C. more than Darian R. and In re S.S. As in A.C., mother gave
conflicting information about her Indian ancestry on her ICWA
Judicial Council form and to the social worker, yet when the
juvenile court asked mother if she had Indian ancestry, the court
did not inquire as to mother’s conflicting descriptions of her
ancestry. Despite this conflicting evidence, DCFS did not ask any
of mother’s relatives about Indian ancestry even though relatives
were readily available to DCFS. As in Benjamin M. and In re
A.C., asking maternal relatives about Indian ancestry may have
yielded meaningful information about the children’s Indian
ancestry and the failure to do so was prejudicial.
Where there is conflicting evidence about Indian ancestry,
DCFS has a duty to obtain additional information if relatives
are available to address a parent’s conflicting statements
about Indian ancestry. Thus, in In re Gabriel G. (2012)
206 Cal.App.4th 1160 the father indicated on his ICWA-020 form
that paternal grandfather may have Cherokee ancestry. (Id. at
p. 1167.) Later, when a social worker interviewed him, father
denied any Indian ancestry. (Ibid.) The social worker did not
ask father about this apparent discrepancy regarding Indian
ancestry and did not interview paternal grandfather. (Ibid.)
Division Two of this court held: “At a minimum, a conflict in the
evidence exists. Under these circumstances, the social worker
had a duty of further inquiry. [Citation.] But there is nothing in
the record to indicate the social worker interviewed anyone
besides father . . . .” (Id. at pp. 1167–1168.) The court then
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remanded the case to the juvenile court to ensure compliance
with ICWA. (Id. at p. 1168.)
Following In re Gabriel G., Division Eight of this court held
in In re Josiah T. (2021) 71 Cal.App.5th 388 that where seven
months after paternal grandfather told social workers about
Cherokee ancestry, paternal grandmother denied Indian
ancestry, “a mere change in reporting, without more, is not an
automatic ICWA free pass; when there is a conflict in the
evidence and no supporting information, DCFS may not rely on
the denial alone without making some effort to clarify the
relative’s claim.” (Josiah T., at p. 405.) The same holds true here
regarding mother’s conflicting statements about Indian
ancestry.3
3 Other appellate courts have applied a more stringent test
of prejudice for failure to ask extended family members about
Indian ancestry, generally finding that failure always prejudicial.
See, e.g., In re A.R. (2022) 77 Cal.App.5th 197, 207 [“Any other
rule would potentially make enforcement of the tribes’ rights
dependent on the quality of the parents’ effort on appeal. . . .
Stated plainly, it is the obligation of the government, not the
parents in individual cases, to ensure the tribes’ interests are
considered and protected.” ]; In re Antonio R., supra,
76 Cal.App.5th at pp. 433–435; see also In re J.C. (2022)
77 Cal.App.5th 70, 81–84. Under more stringent tests, the
failure to ask extended family members about Indian ancestry
here also would be prejudicial.
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DISPOSITION
The juvenile court’s order terminating jurisdiction is
reversed. The order setting a permanent plan for the children is
conditionally affirmed. The case is remanded to the juvenile
court to direct DCFS to comply with Welfare and Institutions
Code section 224.2 and, if applicable, section 224.3. If after
completing the inquiry, the juvenile court finds it has no reason
to believe or know that the children are Indian children, the
section 366.26 guardianship order shall remain in effect and the
juvenile court shall issue a new order terminating its jurisdiction.
If the court finds ICWA applies, the court shall vacate its existing
section 366.26 order and proceed in compliance with ICWA and
related California law.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
MORI, J.*
* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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