In re R.T. CA2/8 ( 2022 )

Filed 7/6/22 In re R.T. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
In re R.T. et al., Persons Coming
Under the Juvenile Court Law. B315541
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 19CCJP05312A-B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ROBERTA H. et al.,
Defendants and Appellants.
APPEAL from findings and orders of the Superior Court of
Los Angeles County. Hernán D. Vera, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant Roberta H.
Donna B. Kaiser, under appointment by the Court of
Appeal, for Defendant and Appellant Eric. B.
Michelle Jarvis, under appointment by the Court of Appeal,
for Defendant and Appellant Shawn T.
Rodrigo A. Castro-Silva and Dawyn R. Harrison, County
Counsels, Kim Nemoy, Assistant County Counsel, and Veronica
Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
___________________________
INTRODUCTION
Roberta H. (Mother), mother of minors R.T. and A.B. (each,
a Child, and together, Children); Shawn T. (Father T.), presumed
father of R.T.; and Eric B. (Father B.), presumed father of A.B.;
each appeal from the juvenile court’s findings and orders
terminating their parental rights. Father B. also appeals from
the denial of a modification petition to reinstate reunification
services. We refer to Father T. and Father B. together as
“Fathers” and, collectively with Mother, as “Parents.”
Parents’ sole asserted basis for reversal is that the Los
Angeles County Department of Children and Family Services
(DCFS) failed to ask extended family members as required by
section 224.2, subdivision (b) of the Welfare and Institutions
Code,1 whether either Child is an “Indian child” within the
meaning of section 1903 of the federal Indian Child Welfare Act,
25 U.S.C. Sec. 1901 et seq. (ICWA).
We find that the juvenile court erred in determining that
the ICWA did not apply without evidence that DCFS questioned
extended family despite contact with multiple extended family
members. However, we conclude the error was harmless because
all biological parents participated in the proceedings below and
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
each repeatedly disclaimed Indian ancestry. Under these
circumstances, further inquiry of extended family members is not
likely to bear meaningfully upon whether either Child is an
Indian child. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
These proceedings commenced in 2019 after police found
one-month-old A.B. and two-year-old R.T. in the care of an
unrelated probationer in a hotel room where narcotics were easily
accessible to the Children. The police notified DCFS. Later that
evening, Mother told a child social worker (the CSW) that Father
B. was the father of A.B. and Father T. was the father of R.T.
DCFS proceeded to investigate the Children’s family
situation. In the course of this investigation, the CSW
communicated with all three Parents as well as members of their
respective extended families. Although the CSW completed
ICWA-010(A) forms indicating that each Parent had “denied
Native American Heritage,” there is no record that she inquired
as to such heritage with any Parent’s extended family members.
Based on its investigation, DCFS filed a failure to protect
petition against each of the parents and obtained removal orders.
At the detention hearing, DCFS presented ICWA-020 forms
signed by each Parent indicating “I have no Indian ancestry as
far as I know.” On this basis, the juvenile court found no reason
to know that any Child was an Indian child and did not order
notice to any tribe or the Bureau of Indian Affairs. After
considering all evidence at the detention hearing, the court
sustained the petitions, confirmed its initial removal orders, and
ordered reunification and other services and visitation.
The services were ineffective to address the circumstances
that led to the Children’s initial removal and continued custody.
3
As a result, the juvenile court terminated reunification services
in February 2021. On October 1, 2021, the court denied Father
B.’s modification petition to reinstate unification services and
terminated the Parents’ parental rights. This appeal followed.
DISCUSSION
A. Overview of the ICWA Duty of Inquiry
The ICWA contains unique provisions governing court
proceedings concerning custody of American Indian children.
(See generally 25 U.S.C. §§ 1911–1923.) Thus, 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 reference to
federal regulations and related state law. (See, e.g., 25 C.F.R.
§ 23.107; § 224.2; Cal. Rules of Court, rule 5.481.)
We describe the duty of inquiry as having three “phases.”
The first phase— “initial inquiry”—applies in every case.
In general terms, initial inquiry requires the court and the
county welfare department (here, DCFS) to ask certain persons
(which we detail further below) about the child’s possible Indian
ancestry. (See § 224.2, subds. (a), (b), (c); In re D.F. (2020) 55
Cal.App.5th 558, 566.)
Where “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. (§ 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.)
Where, as a result of further inquiry or otherwise, the
juvenile court has “reason to know” a child is an Indian child, the
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third phase is triggered. This phase requires that notice
pursuant to ICWA be sent to the pertinent tribe(s) so as to
facilitate their participation in the proceedings. (§ 224.3,
subd. (a)(1); In re D.F., supra, 55 Cal.App.5th at p. 568.)
In this case, the juvenile court determined that the ICWA
was inapplicable based on phase one initial inquiry evidence only.
Specifically, the court relied on the Parents’ signed ICWA-020
forms reflecting no knowledge of Indian ancestry and had before
it the petition reflecting that all Parents had denied Indian
ancestry to the CSW. (See § 224.2, subd. (a); Cal. Rules of Court,
rule 5.481(a)(2)(C).) As far as we have been shown, the court
relied on no other evidence in satisfying itself that the ICWA did
not apply.
B. Due to Inadequacies in the Initial Inquiry, the Trial
Court Erred in Finding the ICWA Inapplicable
The juvenile court’s finding that ICWA does not apply to
the Children implies that (a) neither DCFS nor the court had a
reason to know or believe the Children were Indian children; and
(b) DCFS fulfilled its duty of inquiry. (In re Josiah T. (2021)
71 Cal.App.5th 388, 401.) The first question we must answer is
whether the implied finding that DCFS fulfilled its duty of
inquiry constitutes error. We answer that question in the
affirmative.
“ ‘ “[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
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favor of affirmance.” ’ ” (In re Josiah T. (2021) 71 Cal.App.5th
388, 401.)
When, as here, DCFS takes children into custody, it is
required to ask “extended family members,” among others,
“whether the child is, or may be, an Indian child . . . .”2 (§ 224.2,
subd. (b).) This is a requirement imposed only by state law and
not by federal law. (In re S.S. (2022) 75 Cal.App.5th 575, 581.)
Here, though the CSW asked the Parents about Indian
heritage, the Parents complain on appeal that she failed to ask
the same of the Parents’ extended family members with whom
the CSW had contact. DCFS does not dispute this contention and
we are directed to no record evidence that DCFS made any such
inquiry or that the juvenile court inquired into whether DCFS
made any such inquiry.
In the absence of any evidence DCFS complied with its
section 224.2, subdivision (b), duty to inquire with extended
family members, the juvenile court’s implied finding that DCFS
fulfilled its duty of inquiry constitutes error. (See In re Darian R.
(2022) 75 Cal.App.5th 502, 509 [finding error where evidence
showed DCFS had contact with maternal aunt and maternal
grandfather but failed to inquire of them regarding Indian
ancestry].) However, because the error is one of state law, we can
reverse only if it was prejudicial. (In re Benjamin M. (2021)
2 Contrary to Father B.’s assertion that “[t]he court . . . failed
to inquire of available relatives . . . ,” no such duty is imposed on
the court. Section 224.2, subdivision (b) imposes the extended
family inquiry duty only on, in relevant part, “the county welfare
department.”
6
70 Cal.App.5th 735, 742 (Benjamin M.) [citing Cal. Const.,
art. VI, § 13].)
C. No Prejudice Is Shown
Appellate courts are divided on what showing of prejudice
warrants reversal where error is found due to noncompliance
with section 224.2’s extended family inquiry requirement.
In California, prejudicial error is ordinarily found only if,
“ ‘after an examination of the entire cause, including the
evidence . . . ,’ ” we are “of the ‘opinion’ that it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (People v.
Watson (1956) 46 Cal.2d 818, 836.)
“Although an appellant ordinarily has the burden of
establishing prejudice [citation], a parent’s ability to make this
showing based upon the record in failure-to-inquire cases can be
problematic . . . .” (In re S.S., supra, 75 Cal.App.5th at p. 581.)
This is because it is the responsibility of the county welfare
department to make and document its inquiries.
“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.) 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, utilized 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
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readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child.” (Id. at
p. 744.)
We decline to follow the “error per se” line of cases such as
In re J.C., supra, 77 Cal.App.5th 70, whereby a failure to inquire
is never harmless error. There are real and serious costs, both
monetary and emotional, if courts blindly delay finalizing the
placement of a child in every case where any extended family was
not questioned, on the off-chance they might disagree with the
parents’ representation that the child has no Indian heritage.
(See In re A.C. (2022) 75 Cal.App.5th 1009, 1018–1024 (conc. &
dis. opn. of Crandall, J.); In re H.V. (2022) 75 Cal.App.5th 433,
439–442 (dis. opn. of Baker, Acting P.J.).)
Under either of the other two lines of cases, the juvenile
court’s error in not requiring DCFS to conduct further inquiry
was harmless error. On the record before us, further inquiry is
unlikely to bear meaningfully upon whether the Children are
Indian children. The biological parents of each Child have
appeared and unequivocally denied knowledge of any Indian
ancestry. No one has suggested there is any reason to believe the
Children might have Indian ancestry. 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. The court conditionally reversed to
permit the social services agency to inquire with the father’s
brother, who was accessible to the agency. 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,
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70 Cal.App.5th at p. 744.) Here, there is information bearing on
whether each Child is an Indian child from both sides of such
Child’s family.
This case is also unlike In re A.C., supra, 75 Cal.App.5th
1009, where remand was ordered to permit DCFS to interview
available extended family members. There, the mother was the
product of the foster system, calling into question whether she
knew her own biological heritage. (Id. at p. 1017.) And, a
detention report indicated a possibility that A.C. was an Indian
child. (Id. at p. 1016.) Similar facts are absent from the record in
this case.3
In short, there is nothing in the record indicating that the
Parents are unaware of their ancestry and all Parents denied
Indian ancestry. Nothing beyond the speculation of the Parents’
appellate lawyers suggests some hypothetical possibility that
R.T. or A.B. might be an Indian child. To reverse under these
circumstances would be to treat the error as reversible per se.
The Benjamin M. court rejected this approach as inconsistent
with California’s harmless error rules. (Benjamin M., supra,
70 Cal.App.5th at p. 743.) So do we.4 We also note our decision is
3 Mother argues that “parents with substance abuse
histories,” like she has, “may not be the mo[s]t reliable reporters
of events or family history.” We are unpersuaded that a history
of substance abuse raises doubts concerning a person’s knowledge
of their ancestry to the same degree that being raised by
nonbiological parents does.
4 The dissent argues the failure to inquire of extended family
members leads to a “self-fulfilling prophecy” that the courts will
find no basis for overturning DCFS’s conclusion that ICWA does
9
fully consistent with the recent decision by Division Two of our
court in In re Dezi C. (2022) 79 Cal.App.5th 769.
DISPOSITION
The juvenile court’s findings and orders are affirmed.
*
HARUTUNIAN, J.
I concur:
GRIMES, Acting P. J.
not apply. But it is not self-fulfilling. It is based on the complete
absence of any hint of contrary evidence. There is no declaration
from a family member saying, “I once heard my aunt say there is
Indian blood in our family.” There is no statement by a parent
that they were mistaken in disclaiming Indian heritage. There is
no declaration that any extended family member refused to
informally answer the question when contacted by a parent or
counsel. We have cited cases where courts did remand for further
inquiry because all biological parents had not sworn under oath
that they had no Indian heritage. Nothing about our decision
insulates the DCFS decision from scrutiny.
* 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.
This is another case in which DCFS contacted extended
family members but failed to ask about Indian heritage, even
though asking would have been easy. I agree with Mother that,
in these cases, to affirm without this inquiry is to rely on “a self-
fulfilling prophecy”: the less DCFS investigates, the more
insulated from reversal will be its work. This self-fulfilling
prophecy sets an unfortunate incentive for an agency that, to
judge from our current docket, routinely confesses its failings on
this score.
I lament delay in finalizing the adoption of children. When
DCFS already is interacting with extended family members, it
would seem a simple matter to add this question to the agenda.
WILEY, J.
1