In re J.W. ( 2022 )

Filed 7/19/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.W., a Person Coming B313447
Under the Juvenile Court Law.
_______________________________ Los Angeles County Super.
Ct. No. 17CCJP02230A
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JESSICA W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Craig S. Barnes, Judge. Affirmed.
Linda J. Vogel, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
_______________________
Mother Jessica W. appeals the juvenile court’s order
terminating her parental rights to daughter J.W (born 2008).
She does not challenge the basis of the termination of her rights.
Her sole contention is that the Los Angeles Department of
Children and Family Services (DCFS) did not comply with its
initial duty of inquiry under Welfare and Institutions Code
section 224.2, subdivision (b).1 Specifically, Mother acknowledges
she denied Indian heritage, but she contends DCFS failed to ask
maternal extended family members whether J.W. is an “Indian
child” within the meaning of Section 1903 of the federal Indian
Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.)
We find the juvenile court erred in determining that ICWA
did not apply without evidence that DCFS questioned extended
family members despite having contact with those same family
members. However, we conclude the error was harmless because
J.W. was placed for adoption with her maternal grandmother. As
a second ground, we find no prejudice because there was nothing
in the record to suggest that J.W. had Indian heritage or that
mother’s denial of Indian heritage was uninformed or incorrect.
BACKGROUND
In December 2017, DCFS filed a section 300 petition
alleging nine-year-old J.W. was placed at substantial risk of
serious harm when Mother allowed a registered sex offender to
live in the family home with unlimited access to J.W. J.W.’s half-
brother is a former dependent of the court, having been adopted
by maternal grandmother in 2009.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
When the petition was filed on December 4, 2017, the
whereabouts of Mother and J.W. were unknown. On December 5,
the juvenile court ordered J.W. detained and issued a protective
custody order for her and an arrest warrant for Mother. The
Detention Report includes a cursory statement, “The Indian
Child Welfare Act does not apply.” Six months later, on June 1,
2018, Mother contacted DCFS. On June 6, 2018, J.W. was
present in court, detained, and placed with her maternal uncle
and aunt.
On August 13, 2018, Mother and the alleged father were
present in court (father is not a party to this appeal). Each filed
Parental Notification of Indian Status forms stating no known
Indian ancestry. The juvenile court found no reason to know
J.W. was an Indian child and advised those present to keep it
apprised of any new information relating to possible ICWA
status. The court found father to be an “alleged” father only and
set visitation for Mother only. It continued the adjudication
hearing to August 24, 2018. On August 24, the juvenile court
sustained the petition as interlineated and dismissed father from
the proceedings based on his “alleged” father status.
At the dispositional hearing on September 28, 2018, DCFS
recommended no reunification services because Mother had failed
to reunify with J.W.’s half-brother. The court found J.W. to be a
dependent of the court, extended her placement with maternal
aunt and uncle, and granted Mother reunification services,
finding reunification was in J.W.’s best interests because J.W.
was “close to her mother, and . . . she very much wants to
reunify.” The court noted that at the jurisdictional hearing, the
minor “presented as very sad that she was being removed from
3
her mother, and . . . it did appear to me that she is very close to
and attached to her mother.”
At the six-month and 12-month reviews, the juvenile court
found Mother’s progress with her case plan “appropriate” and “in
partial compliance.” On January 24, 2020, Mother asked for an
extension of services because Mother was homeless. Counsel for
J.W. joined in the request because J.W. was bonded closely with
Mother. DCFS continued to recommend termination of
reunification services for Mother. Expressing concern about how
disappointed J.W. would be if Mother failed to reunify, the court
found Mother’s progress not substantial. Nevertheless it
extended reunification services and granted Mother’s request for
a visitation schedule as she was driving to and from Arizona
where she had relocated.
In March 2020, J.W. was placed with her maternal
grandmother. In November 2020, J.W. said she wanted to stay
with her grandmother and did not want her mother in her life
any longer. When J.W. told Mother this during a telephone call,
Mother told her, “don’t ever call me again.” J.W. told her social
worker that she had given “up on mother trying” and wanted to
be adopted. She said “maybe later” she would be open to a
relationship with her mother.
At the November 17, 2020 disposition hearing, DCFS
recommended that reunification services be terminated because
Mother had received more than 18 months of services and her
housing instability was a barrier to reunification. Mother asked
the court to release J.W. to her and permit J.W. to live
temporarily with maternal grandmother until Mother got settled
in California. Mother had secured a job and completed her case
plan. Mother made a personal statement to the court. She said
4
J.W. was living with her half-brother and maternal grandmother
and living with family members “feels like home to her.” The
juvenile court found Mother had “substantially complied” with
her case plan, but found she had made insufficient progress. The
court terminated reunification services.
At the permanency planning hearing on May 18, 2021,
Mother failed to appear. The court found J.W. adoptable,
terminated Mother’s parental rights, and designated maternal
grandmother as J.W.’s prospective adoptive parent.
This appeal followed.
DISCUSSION
In enacting ICWA, Congress found “that an alarmingly
high percentage of Indian families are broken up by the removal,
often unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high
percentage of such children are placed in non-Indian foster and
adoptive homes and institutions.” (25 U.S.C. § 1901(4).) ICWA
reflects the intent of Congress “to protect the best interests of
Indian children and to promote the stability and security of
Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their
families and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture, and
by providing for assistance to Indian tribes in the operation of
child and family service programs.” (25 U.S.C. § 1902.) The
court is obligated to ask each “participant” in the proceedings
whether they have reason to believe the child is an Indian child
and to instruct the parties to inform the court if they
subsequently receive information that provides a reason to know
5
the child is an Indian child. (In re Austin J. (2020)
47 Cal.App.5th 870, 882–883.)
ICWA authorizes states to provide even more protection
than the federal statute provides. In 2006, the California
legislature enacted parallel statutes to affirm ICWA’s purposes
and mandate compliance with ICWA in all Indian child custody
proceedings. (In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.)
In California, the child protection agency is obligated to ask “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).) The child protection
agency, in this case DCFS, must complete the Indian Child
Inquiry Attachment form ICWA-010(a) and attach it to the
petition. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a)(1).
Here, DCFS did not ask Mother’s extended family members
about their Indian ancestry, despite having contact with
maternal grandmother, uncle, and aunt. This was a violation of
California law. But the next question is whether the error was
prejudicial. A prerequisite to reversal of a trial court’s decision in
California is showing a miscarriage of justice. (Cal. Const., art.
VI, § 13.) To answer that question, we delve further into the
concerns prompting the enactment of ICWA.
“Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers
of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7.) In enacting these
6
provisions, “ ‘Congress was concerned not solely about the
interests of Indian children and families, but also about the
impact on the tribes themselves of the large numbers of Indian
children adopted by non-Indians.’ ” (Id. at p. 9.)
The concern about separating Indian children from their
Indian families, heritage and culture was the topic of extensive
Congressional hearings when ICWA was enacted. As one
commentator wrote, the “ ‘wholesale separation of Indian
children from their families is perhaps the most tragic and
destructive aspect of American Indian life today.’ ” (Atwood,
Flashpoints Under the Indian Child Welfare Act: Toward a New
Understanding of State Court Resistance (2002) 51 Emory L.J.
587, 601, cited in In re A.C. (2022) 75 Cal.App.5th 1009, 1014.)
“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., supra,
47 Cal.App.5th at p. 881.)
Here DCFS did not fulfill its duties under section 224.2.
But we are hard pressed to find prejudice, that is, a miscarriage
of justice under article VI, section 13 of the California
Constitution. Assuming for the sake of argument that an inquiry
would have discovered that J.W.’s maternal family held Indian
roots, the purpose of ICWA—to prevent the removal of Indian
children from their Indian families—is not implicated by the
juvenile court’s final disposition. When J.W. was found
adoptable, her prospective adoptive parent was her maternal
grandmother, who had already adopted J.W.’s half-brother. J.W.
was not facing alienation or separation from any assumed Indian
7
ancestry. Indeed, the juvenile court’s disposition placed her back
within the assumed Indian family tree with a grandmother who
was one generation closer to the family’s assumed Indian
heritage than any of J.W.’s other relatives.
Consideration of ICWA’s placement preferences further
bolsters our finding of no prejudice. Section 1915 of title 25 of the
United States Code provides that in any adoptive placement of an
Indian child under state law, “a preference shall be given, in the
absence of good cause to the contrary, to a placement with [¶]
(1) a member of the child’s extended family; [¶] (2) other members
of the Indian child’s tribe; or [¶] (3) other Indian families.”
(25 U.S.C. § 1915 (a).)
Here the juvenile court implemented the first preference by
finding J.W. adoptable by her maternal grandmother, a finding
that comported with J.W.’s own request to be adopted by her
grandmother. J.W.’s request came years after waiting for her
mother’s life to turn around. She asked the court for stability
and the juvenile court’s disposition ensured that she finally
received it from and among family members (her maternal
grandmother and her older half-brother) whom she knew and
trusted. (In re Arturo A. (1992) 8 Cal.App.4th 229, 241, fn. 6 [“we
adopt the proposition that a child has a constitutional right to a
reasonably directed early life, unmarred by unnecessary and
excessive shifts in custody.”].)
Thus we have assessed no prejudice because the trial court
arrived at a disposition that approved adoption by the minor’s
maternal grandmother, which would have been the first
placement preference had J.W. been found to have Indian
ancestry under ICWA.
8
A second way to assess prejudice has been set forth in In re
Dezi C. (2022) 79 Cal.App.5th 769. There, our colleagues in
Division 2 held that where the parents were raised by their own
biological relatives and where the record suggests no reason to
believe that the parents’ knowledge of their own heritage is
incorrect or that the children may have Indian heritage, no
prejudice arises from DCFS’s failure to conduct a complete
inquiry. Here, Mother was raised by her biological family with
whom she had remained in contact, and the record does not
otherwise suggest that Mother’s denial of Indian heritage is ill
informed, unfounded, or incorrect.
These proceedings started when J.W. was nine years old.
By the time Mother’s parental rights were terminated four years
later, J.W. was entering her teenage years and she was, by her
own words, tired of waiting. She lost an innocent part of her
childhood because of this case; she should not be obliged to put
her teenage years on hold as well where this proposed adoption
does not perpetuate the abuses ICWA was enacted to prevent.2
2 A tribe might argue that it was prejudiced because the lack
of inquiry (and notice, if a reason to believe J.W. was an Indian
child was discovered) prevented it from requesting a tribal
customary adoption which is implemented through sections
366.24 and 366.26. However, section 366.26, subdivision (h)(1)
provides that “[at] all proceedings under this section, the court
shall consider the wishes of the child and shall act in the best
interests of the child.” Here, the trial court did consider the
wishes of J.W. who wanted to be adopted by her grandmother.
And it made a finding that returning J.W. to the custody of her
mother was detrimental to her physical and emotional well-being.
The findings and disposition approving adoption by maternal
grandmother did not prejudice any possible tribal intervention.
If, for some reason, the proposed adoption by maternal
9
DISPOSITION
The trial court’s order is affirmed.
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
I concur:
*
HARUTUNIAN, J.
grandmother does not go forward and adoption by a non-family
member is contemplated, then the trial court is directed to ensure
that DCFS finishes a complete inquiry into the maternal side of
the J.W.’s family.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
10
WILEY, J., Dissenting.
It would have been overwhelmingly simple for the
Department to ask the maternal relatives about Indian ancestry.
The Department knew where these relatives were. It was
communicating with them already. It had only to ask one simple
question. The Department did not ask, and it does not explain
why. The burden on the Department would have been slight,
while the benefit to a tribe would have been substantial if new
information developed a valuable lead. Tribal interests here are
strong, and are supported by a long and sorry history.
The Department says any error was harmless because the
mother denied Indian ancestry. The Department’s premise must
be that we generally can count on a parent like the mother to
know her own Indian ancestry. That is, the claim must be people
usually know if they have American Indian ancestry.
The Department’s factual premise is incorrect. The state
statute tells us so. The statutory amendment shows the
Legislature learned from experience that people like the mother
sometimes do not know they have Indian ancestry, so asking
extended family members is important. The Legislature also
learned parents or Indian custodians may be afraid to identify
Indian ancestry or wish to evade tribal jurisdiction. (Cal. ICWA
Compliance Task Force, Rep. to Cal. Atty. Gen.’s Bur. of
Children’s Justice (2017) p. 28, available at
[as of July 6, 2022],
archived at .)
Tribes are the victims here. Tribal involvement is
enshrined in law. Tribes have a right to intervene where there is
an Indian child. (25 U.S.C. § 1911(c).) Absent good cause to the
1
contrary, a state court must transfer proceedings to a tribal
jurisdiction. (25 U.S.C. § 1911(b); see California Courts, Tribal
Justice Systems [as of
July 13, 2022], archived at [39
California tribes have access to a tribal court].)
When the Department does not inquire as the law requires,
tribes lose chances to discover children who could help preserve
tribal heritage and culture.
Placing the child with the maternal grandmother without
alerting tribes does not help tribes, which are the real parties in
interest. If the maternal grandmother has information about
Indian ancestry, the tribal interest cannot turn on whether this
grandmother has an active interest in making tribal contact. To
forecast the grandmother’s attitude about a tribal heritage would
be speculation.
This is my fifth dissent on this issue, and I incorporate my
earlier views. (See In re M.M. (July 12, 2022, B315997)
__ Cal.App.5th __ [2022 WL 2679301].) This problem looks
persistent. I would not affirm.
WILEY, J.
2