In re M.P. CA2/2 ( 2022 )

Filed 8/11/22 In re M.P. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re M.P., a Person Coming B316646
Under the Juvenile Court Law. (Los Angeles County Super.
Ct. No. 19CCJP03981A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
MANUEL P. II,
Defendant and Appellant.
APPEAL from the orders of the Superior Court of Los
Angeles County, Philip L. Soto, Judge. Conditionally affirmed
with directions.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
******
Manuel P. (father) appeals the juvenile court’s orders
terminating parental rights over his three-year-old son. He
argues that the orders are defective because the juvenile court
did not comply with the Indian Child Welfare Act (ICWA) (25
U.S.C. § 1900 et seq.) (Welf. & Inst. Code, § 224.2, subd. (b)). The
Los Angeles Department of Children and Family Services (the
Department) committed error under ICWA, and its
noncompliance was not harmless because there is “reason to
believe” that at least one aspect of the further inquiry father
identifies would lead to a different result. (See In re Dezi C.
(2022) 79 Cal.App.5th 769, 774 (Dezi C.).)
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Father and Irene P. (mother) met in August 2016 and got
married in July 2017. They used methamphetamine together
regularly; as mother once put it, we “met high and got married
high.”
2
M.P. was born in May 2019. At the time of M.P.’s birth,
both mother and M.P. tested positive for amphetamines and
methamphetamines.
II. Procedural Background
In June 2019, the Department filed a petition asking the
juvenile court to exert dependency jurisdiction over M.P. (1)
because M.P. tested positive for drugs at the time of his birth,
and because of (2) mother’s history of drug abuse, including
during her pregnancy with M.P. and (3) father’s history of drug
abuse. Further alleging that the parents’ conduct placed M.P. at
“substantial risk” of “serious physical harm,” the Department
asserted that jurisdiction was appropriate under Welfare and
Institutions Code section 300, subdivision (b).1
In August 2019, the court sustained the allegations in the
petition and exerted dependency jurisdiction over M.P. The court
left M.P. in both parents’ custody, and ordered family
maintenance services—namely, it ordered the parents to
complete substance abuse programs, and to participate in
substance abuse testing, parenting classes, and individual
counseling.
Following father’s arrest for striking mother while she was
holding M.P. in her arms, the Department in September 2019
filed a supplemental petition (under section 342) asking the
juvenile court to exert dependency jurisdiction over M.P. based on
an additional ground—namely, domestic violence between
mother and father. At the October 2019 hearing on the
supplemental petition, father pled no contest to the new
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
3
allegation. The court sustained the supplemental petition,
removed M.P. from father and placed him with mother, ordered
the parents to engage in domestic violence counseling in addition
to their prior obligations, and issued a protective order in favor of
mother.
Following mother testing positive for methamphetamines
in October and December 2019 and violating the restraining
order by allowing father to live in the family home, the
Department in December 2019 filed a supplemental petition
(under section 387) asking the juvenile court to alter the
disposition order by removing M.P. from mother’s custody in light
of mother’s recent conduct. At the February 2020 hearing on the
supplemental petition, the court sustained the new allegation,
removed M.P. from mother, and ordered family reunification
services for both parents.
At the 12-month status review hearing (which was held in
April 2021 rather than February 2021 because of COVID-related
delays), the juvenile court found that the parents were only in
partial compliance with their case plans, terminated further
reunification services, and set the matter for a permanency
planning hearing.
The court held the permanency planning hearing for M.P.
in October 2021. At that hearing, mother waived her appearance
and made it known that she supported adoption as the preferred
permanent plan. Father argued for the application of the
beneficial-relationship exception to termination of parental
rights. (§ 366.26, subd. (c)(1)(B)(i).) After entertaining further
argument from counsel, the juvenile court found M.P. to be
adoptable, found no exception to adoption applied, and
terminated both parents’ parental rights.
4
III. ICWA-related facts
Father and mother both repeatedly told the Department
that they had no known Indian ancestry in their respective
families. Both father and mother also filled out the written
ICWA-020 form attesting that they had “no Indian ancestry as
far as [they knew].”
Mother’s mother (the maternal grandmother) died when
mother was 3 months old, and mother was thereafter raised by
other members of the maternal grandmother’s family. Mother
did not know her father, but mother has four older siblings—one
of whom is 17 years older than her.
Based on this inquiry, the juvenile court expressly found
that this was “not an ICWA case” and it had no reason to believe
that M.P. was an “Indian child.”
IV. Appeal
Father filed this timely appeal from the termination of his
parental rights.
DISCUSSION
Father argues that the orders terminating his parental
rights must be reversed because the Department failed to
discharge its initial inquiry duties under ICWA and related
California law to ask “numerous extended paternal and maternal
family members known to the Department” whether M.P. may be
an Indian child and thus entitled to the special protections
afforded by ICWA. (§ 224.2, subds. (b) & (c).)
I. Governing Law
A. The initial duty to inquire
ICWA was enacted to curtail “the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement.” (Mississippi Band of
5
Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) To that
end, under the ICWA and the corresponding statutes the
California legislature enacted to implement it (§§ 224 -224.6), a
juvenile court and the Department have duties aimed at
assessing whether a child in a dependency action is an “Indian
child.” (§§ 224.2, 224.3, added by Stats. 2018, ch. 833, §§ 5, 7.)
An “Indian child” is a child who (1) is “a member of an Indian
tribe,” or (2) “is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe.” (25 U.S.C. §
1903(4); Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal
law definition].) By its terms, this definition turns “‘on the child’s
political affiliation with a federally recognized Indian Tribe,’” not
“necessarily” “the child’s race, ancestry, or ‘blood quantum.’” (In
re Austin J. (2020) 47 Cal.App.5th 870, 882 (Austin J.), quoting
81 Fed.Reg. 38801-38802 (June 14, 2016).)
Under ICWA as amended, the Department and juvenile
court have “three distinct duties.” (In re D.S. (2020) 46
Cal.App.5th 1041, 1052 (D.S.) [noting amendment’s creation of
three duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-884
[same].) Only the first duty is at issue here: The initial “duty” of
the Department and the juvenile court is “to inquire whether [a]
child is an Indian child.” (§ 224.2, subds. (a) & (b).) The
Department discharges this duty by “asking” family members
“whether the child is, or may be, an Indian child.” (Id., subd. (b).)
This includes inquiring of not only the child’s parents, but also
others, including but not limited to, “extended family members.”
(Ibid.) For its part, the juvenile court is required, “[a]t the first
appearance” in a dependency case, to “ask each participant”
“present” “whether the participant knows or has reason to know
that the child is an Indian child.” (Id., subd. (c).)
6
B. The prejudice requirement
Should an appellate court conclude that the juvenile court
did not comply with its duty of initial inquiry under ICWA, the
court’s next task is to evaluate whether its noncompliance was
prejudicial. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 740
(Benjamin M).) In Dezi C., we recently held that deficiencies in
the discharge of ICWA’s initial duty of inquiry is prejudicial only
if the juvenile court record or evidence proffered by the appealing
party on appeal indicates “a reason to believe” that the child may
be an Indian child. (Dezi C., supra, 79 Cal.App.5th at p. 774.)
For example, a reviewing court would have “reason to believe”
the Department’s error was prejudicial if the record indicates
that someone reported possible American Indian heritage and the
Department never followed up on that information; if the record
indicates that the Department never inquired into one of the
biological parents’ heritage at all (e.g., Benjamin M., at p. 744); or
if the record indicates that one or both of the parents is adopted
and hence their self-reporting of “no heritage” may not be fully
informed (e.g., In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016
(A.C. 2022)).
II. Analysis
The Department does not dispute that there were extended
family members involved in M.P.’s life that the Department
failed to question. Because there is no question that the
Department erred in conducting their initial inquiry, our role in
determining whether substantial evidence supports the juvenile
court’s ICWA findings turns on whether those errors are
harmless. (Benjamin M., supra, 70 Cal.App.5th at pp. 740, 742,
citing Cal. Const., art VI, § 13.)
7
Turning to the prejudice inquiry, father proffers three
reasons why there is “reason to believe” that a more fulsome
inquiry by the Department might lead to a different outcome.
First, father generally asserts that the Department
interviewed several relatives—a paternal grandmother, a
paternal cousin, and maternal aunt—but did not ask them about
M.P.’s possible Indian heritage. This assertion does not establish
the requisite prejudice because there is nothing in the record to
indicate that any of the three individuals father lists had any
information which would create a “reason to believe” M.P. had
Indian ancestry. Instead, father’s sole observation is that “it does
not appear” the Department asked those individuals about
Indian ancestry. In essence, father is asking us to apply the
“automatic reversal rule” for determining harmlessness which we
previously rejected. (Dezi C., supra, 79 Cal.App.5th at pp. 782-
785.) We decline to revisit that ruling here.
Second, and along the same lines, father argues that the
information that these individuals might have relayed if asked
about M.P.’s Indian heritage was “readily obtainable” to the
Department, and hence constitutes prejudice under the test
articulated in Benjamin M. (See Benjamin M., supra, 70
Cal.App.5th at p. 744; In re Darian R. (2022) 75 Cal.App.5th 502,
509-510.) To the extent Benjamin M. is read to find prejudice
upon a mere failure to question an available person, we rejected
that reading of Benjamin M. in Dezi C. (Dezi C., supra, 79
Cal.App.5th at pp. 785-786.)
Third, father argues that that prejudice can be shown
under Dezi C. itself. Specifically, father points to Dezi C.’s
observation that “a reviewing court would have ‘reason to believe’
further inquiry might lead to a different result . . . if the record
8
indicates that one or both of the parents is adopted and hence
their self-reporting of ‘no heritage’ may not be fully informed.”
(Dezi C., supra, 79 Cal.App.5th at p. 779.) Because mother’s
mother died when mother was an infant and because mother’s
father was never present in her life, father urges that mother’s
self-reported disclaimer of Indian heritage is not “fully informed.”
Father has a point. Although mother is not “adopted” and
although mother’s upbringing by her maternal relatives renders
her opinion about her heritage on that side of the family “fully
informed,” the record indicates that mother did not know her
father and that her knowledge of her heritage on her father’s side
of the family is consequently not fully informed. (Accord, In re
Y.W. (2021) 70 Cal.App.5th 542 [mother was adopted, and did not
know her biological family members]; A.C. 2022, supra, 75
Cal.App.5th 1009 [same].) What is more, there are ostensible
avenues of investigation that were never explored—namely, the
Department was aware that mother has four older siblings, who
may have known the identity and heritage of mother’s father and
may be able to provide some insight as to whether mother (and
hence, M.P.) has Indian heritage. Because these somewhat
unusual facts establish that mother’s denial of Indian heritage is
not fully informed, there is reason to believe that further inquiry
of the siblings and other maternal relatives who may have known
mother’s father would lead to a different outcome.
Because the record creates a reason to believe M.P. may be
an Indian child, father has established prejudice.
DISPOSITION
The juvenile court orders terminating parental rights are
conditionally affirmed. The matter is remanded with directions
to the juvenile court to order the Department to comply
9
with ICWA by making diligent efforts to interview mother’s four
older siblings and other extended family members who may have
information about mother’s father, and to follow up on any leads
from those interviews.
Based on those efforts, if no further inquiry is required, the
court’s original order shall be reinstated. If further inquiry is
required, the court shall ensure that the Department complies
with all applicable ICWA statutes and regulations, as well as
related state statutes and rules. After ICWA compliance, unless
a tribe indicates that M.P. is an Indian child, the court shall
reinstate the order terminating father's parental rights. If M.P.
is an Indian child, the court shall proceed in accord with all
applicable ICWA statutes and regulations, as well as related
state statutes and rules.
In all other respects, the orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
10