In re E.E. CA2/8 ( 2022 )

Filed 6/15/22 In re E.E. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re E.E., a Person Coming Under B316263
the Juvenile Court Law. (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CCJP05074A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.M.,
Defendant and Appellant.
APPEAL from findings and orders of the Superior Court of
Los Angeles County. Debra R. Archuleta, Judge. Affirmed in
part and remanded in part with directions.
Konrad S. Lee, under appointment by the Court of Appeal,
for Appellant.
Dawyn Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Kelly Emling, Deputy County
Counsel, for Respondent.
___________________________
M.M. (Mother) appeals from the juvenile court’s order
terminating her parental rights. Mother’s sole basis for reversal
is that the Los Angeles County Department of Children and
Family Services (Department) failed to inquire of extended
maternal family members who were readily available, as
required by section 224.2, subdivision (b), of the Welfare and
Institutions Code,1 whether E.E. is an “Indian child” within the
meaning of section 1903 of the federal Indian Child Welfare Act
(25 U.S.C. § 1901 et seq.) (ICWA).
We find that the juvenile court erred in determining that
ICWA did not apply without evidence that the Department
questioned extended maternal family members with whom it had
contact. We conclude that the error was prejudicial because
Mother was adopted as a baby and her adoptive mother
(Maternal Grandmother) and her sister (Maternal Aunt) might
have information about Mother’s ancestry. Maternal
Grandmother and Maternal Aunt were interviewed by the
Department, but the record does not reflect that they were asked
about Mother’s biological parents or Indian heritage. Under
these circumstances, further inquiry of readily available
Maternal Grandmother and Maternal Aunt was likely to bear
meaningfully upon whether E.E. is an Indian child.
Accordingly, we remand the matter with directions for the
juvenile court to order the Department to comply with section
224.2.
FACTUAL AND PROCEDURAL BACKGROUND
Because the alleged failure to comply with the inquiry
requirements of ICWA and related California law is the sole basis
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
for Mother’s appeal, we recite only those facts pertinent to this
claim.
I. Parents’ Prior Dependency Proceedings
Mother had a prior dependency court matter involving her
child born in 2018. That matter was closed after an independent
adoption when the child was one month old. The parties do not
point us to any evidence of an ICWA inquiry or determination in
that proceeding.
E.E.’s father (Father) has another child, S.E. (E.E.’s
biological half sibling), born in 2007. Father’s parental rights
were terminated with respect to S.E. in 2017. In that matter, the
juvenile court found that the ICWA did not apply to S.E based on
S.E.’s mother’s testimony on behalf of Father when Father was
not present in court.
II. Active Dependency Proceedings
When E.E. was born in August 2019, a caller contacted the
Department and informed it that Mother had tested positive for
drugs during pregnancy. Shortly after E.E.’s birth, Mother tested
positive for amphetamines and opiates, and E.E. tested positive
for opiates.
In August 2019, a social worker interviewed both of E.E.’s
parents, and both denied any Indian ancestry. That same month,
the juvenile court authorized the detention of E.E. from her
parents. At the detention hearing, in response to the court’s
inquiries, both parents indicated they lacked Indian ancestry.
The minute order from that hearing also states that an ICWA-
020 form was filed by both parents, and that form is in the
record.
When interviewed by a social worker, Mother suggested
Maternal Aunt as a potential placement for E.E. Maternal Aunt
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confirmed that she was Mother’s sister,2 but said that she was
unable to care for E.E.
The social worker then contacted Maternal Grandmother
regarding a placement for E.E. Maternal Grandmother told the
social worker that she adopted Mother through a private
adoption when Mother was 24 hours old. Grandmother reported
that Mother’s “birth mother and father signed [a] relinquishment
paper. We went through an attorney.”
In November 2021, the juvenile court found that there was
no exception to adoption, terminated the parental rights of both
parents, and ordered adoption as the permanent plan for E.E.
Mother timely appealed.
DISCUSSION
I. Standard of Review
In cases where “ ‘the facts are undisputed, we
independently determine whether ICWA’s requirements have
been satisfied.’ ” (In re D.F. (2020) 55 Cal.App.5th 558, 565
(D.F.), quoting In re D.S. (2020) 46 Cal.App.5th 1041, 1051.)
In addition, “ ‘ “[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 (Josiah T.), quoting D.F., supra, 55 Cal.App.5th at
pp. 565, 569.)
2 The parties do not bring to our attention any record
evidence as to whether Maternal Aunt is Mother’s biological
sister or adoptive sister.
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II. Overview of ICWA and Initial Inquiry Law
ICWA contains unique provisions governing court
proceedings concerning custody of American Indian children.
(See generally 25 U.S.C. §§ 1911-1923.) “ICWA reflects a
congressional determination to protect American Indian children
and to promote the stability and security of Indian tribes and
families.” (Josiah T., supra, 71 Cal.App.5th at p. 401.) In ICWA,
Congress established procedural rules applicable in dependency
cases to ensure that if an Indian child is involved, they are
properly identified. (Ibid.; 25 C.F.R § 23.107(a).)
Federal regulations implementing ICWA provide that
“[s]tate courts must ask each participant in an emergency or
voluntary or involuntary child-custody proceeding whether the
participant knows or has reason to know that the child is an
Indian child[]” and that “[s]tate courts must instruct the parties
to inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.” (25 C.F.R
§ 23.107(a).)
Under state law, the juvenile court and the Department
both additionally have a “ ‘continuing duty to inquire’ ” whether
the child is an Indian child. (D.F., supra, 55 Cal.App.5th at
p. 566, citing § 224.2, subd. (a).) This duty has three phases: the
initial duty to inquire, the duty of further inquiry, and the duty
to provide formal ICWA notice. (Ibid.)
In this case, the juvenile court determined that ICWA was
inapplicable based on phase-one initial inquiry evidence only.
Only the Department’s initial duty of inquiry is at issue in this
appeal.
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III. Due to Inadequacies in the Initial Inquiry, the
Juvenile Court Erred in Finding ICWA Inapplicable
The juvenile court’s finding that ICWA does not apply to
E.E. implies that (a) neither the Department nor the court had a
reason to know or believe that E.E. was an Indian child; and
(b) the Department fulfilled its duty of inquiry. (Josiah T., supra,
71 Cal.App.5th at p. 401.)
“State law lays out the requirements for initial inquiry.”
(Josiah T., supra, 71 Cal.App.5th at p. 402.) This inquiry
requires the Department to inquire of “extended family
members,” among others, “whether the child is, or may be, an
Indian child and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b).)
Mother argues that the Department never questioned
readily available maternal relatives, specifically Maternal
Grandmother and Maternal Aunt, about E.E.’s Indian ancestry,
despite speaking with both. The Department does not dispute
this contention. The record also does not reflect that the
Department or the juvenile court ever questioned any extended
family members about E.E.’s Indian status.
In the absence of any evidence that the Department
complied with its section 224.2, subdivision (b), duty to inquire
with extended family members, the juvenile court’s implied
finding that the Department fulfilled its duty of inquiry
constitutes error. (See In re Darian R. (2022) 75 Cal.App.5th
502, 509 [finding error where evidence showed the Department
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
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prejudicial. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742
(Benjamin M.) [citing Cal. Const., art. VI, § 13].)
IV. The Juvenile Court’s Error Was Prejudicial
Appellate courts are divided on the showing of prejudice
required for reversal where error is due to non-compliance with
section 224.2’s extended-family-inquiry requirement. In other
words, appellate courts disagree on whether, and to what extent,
the failure to inquire of extended family can constitute harmless
error.
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.)
One line of cases concludes that a failure to inquire of any
extended family member must result in reversal because the duty
to inquire is mandatory and unconditional. (See In re A.R. (2022)
77 Cal.App.5th 197, 206–207; In re Y.W. (2021) 70 Cal.App.5th
542, 556 (Y.W.).) In the view of these courts, no error is
harmless.
The second line of cases concludes the error of failure to
inquire is harmless unless a showing is made (such as by an offer
of proof) that there is reason to believe Indian heritage exists.
(See In re A.C. (2021) 65 Cal.App.5th 1060, 1070; In re Noreen G.
(2010) 181 Cal.App.4th 1359, 1388.) Under this approach,
reversal is not warranted simply because a parent points out a
theoretical possibility that an extended family member, if spoken
to, might contradict the parent’s representation to the court that
the parent has no Indian heritage.
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The third line of cases examines the record to determine
whether it appears inquiry of the unasked extended family
member(s) would yield “readily obtainable information that was
likely to bear meaningfully upon whether the child is an Indian
child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744; In re S.S.
(2022) 75 Cal.App.5th 575, 582–583.) Under this line of cases,
the court does a case-by-case analysis examining the likelihood
that the particular extended family member would possess new
information about the child’s heritage.
Considering the fractured nature of the caselaw, it is
apparent our Supreme Court will have to ultimately weigh in on
the standard for reversal in ICWA cases. We decline to make any
broad pronouncement about cases involving facts not before us.
The narrow question before us is whether the failure to inquire of
known extended family members is harmless error (i.e.,
prejudicial) when a parent was adopted as a baby and has not
provided the court with a reliable reason to believe the parent
knows whether the parent’s birth parents possessed Indian
heritage. With these facts, reversal is warranted under any of
the three lines of cases.
Under the first line of cases reversal is mandated because
the Department spoke with both Maternal Grandmother and
Maternal Sister about E.E., but never asked them about E.E.’s
Indian ancestry. Under the second line of cases, Mother’s
representation that she has no Indian ancestry is, without more,
simply a guess in light of her being adopted as an infant. No
evidence was presented that Mother ever had an opportunity to
learn of her heritage from her birth parents. No court has held
that inquiry of extended family can be bypassed when a child’s
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parent is unaware of the identity or heritage of their biological
parents.
Here, under the third line of cases, there was “readily
obtainable information that was likely to bear meaningfully upon
whether [E.E.] is an Indian child.” (Benjamin M., supra, 70
Cal.App.5th at p. 744.) Both Maternal Grandmother and
Maternal Sister were available to discuss their knowledge, if any,
about Mother’s biological parents. The record does not reflect
any representation by Mother that she had personal knowledge of
her biological parents, or that she had more information about
them than older, extended family. Her biological relatives, which
the record suggests Maternal Grandmother may have knowledge
of, may have information on whether Mother has Indian
ancestry.
This case is therefore similar to In re A.C. (2022) 75
Cal.App.5th 1009 (A.C.), where both parents signed ICWA papers
stating that A.C. was not an Indian child. Because the mother in
A.C. spent time in foster care as a child, the court determined
that the Department’s lack of further inquiry was prejudicial
because while the mother may not have known of her own Indian
heritage, “[t]he same may not have been true of her biological
relatives.” (Id. at p. 1016.)
The facts here also resemble those in Y.W., supra, 70
Cal.App.5th 542, where the court found prejudicial inquiry error
where the mother was adopted and signed a form stating that she
lacked Indian heritage, but the Department did not make
meaningful efforts to “locate and interview” the biological parents
despite having “a potentially viable lead to locate them.” (Id. at
pp. 547, 549, 552–553.)
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In sum, because Mother was adopted at an age when she
was incapable of discussing her heritage with her biological
parents, and Maternal Grandmother and Maternal Aunt were
readily available to the Department and may have had
information on Mother’s biological parents and Indian ancestry,
the Department’s error in not inquiring of them as to Mother’s
heritage was prejudicial error. Because Mother is adopted, her
mere denial of Indian ancestry is not sufficient for us to hold that
there is no prejudice from the Department’s failure to inquire
with E.E.’s readily available extended-family members about
potential Indian ancestry. (Cf. Y.W., supra, 70 Cal.App.5th at
pp. 553–554; A.C., supra, 75 Cal.App.5th at p. 1016.)
DISPOSITION
The jurisdiction and disposition orders concerning E.E. are
affirmed with instructions. The case is remanded to the juvenile
court to comply with section 224.2. The juvenile court shall order
that within 45 days of the remittitur, the Department report to
the court its investigation of E.E.’s potential Indian ancestry by
interviewing available extended family members. If the juvenile
court determines that further inquiry under ICWA is warranted,
it shall order the Department to comply with its obligations and
make such disposition orders as may be compelled by statute.
*
HARUTUNIAN, J.
We concur:
STRATTON, P. J. WILEY, J.
* 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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