In re M.A. CA2/8 ( 2022 )

Filed 12/7/22 In re M.A. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re M.A., a Person Coming B316262
Under the Juvenile Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN Los Angeles County
AND FAMILY SERVICES, Super. Ct. No. 20CCJP03224A
Plaintiff and Respondent,
v.
DIANA P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Stephen C. Marpet, Juvenile Court Referee.
Affirmed.
Donna B. Kaiser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.
**********
Mother Diana P. appeals the juvenile court’s order
terminating her parental rights to her child, M.A. M.A.’s
presumed father, Jose A., is not a party to this appeal. Mother’s
sole contention on appeal is that the trial court erred in finding
the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) did
not apply because the Los Angeles County Department of
Children and Family Services (Department) made an inadequate
initial inquiry concerning M.A.’s relevant ancestry by failing to
discuss the topic with M.A.’s grandmothers with whom the
Department had contact. We affirm.
BACKGROUND
1. Overview of Proceedings
This dependency proceeding began in June 2020, two and a
half years ago, when M.A. was a newborn. He was detained
under Welfare and Institutions Code section 300,
subdivision (b)(1), because he and mother both tested positive for
marijuana and amphetamines at his birth and father knew of
mother’s prenatal drug use but failed to prevent it. M.A. was
immediately placed with his paternal grandmother.
The court ordered M.A. removed from the parents and
denied reunification services to father, who was largely absent
from the process. It conditionally ordered mother reunification
services if she contacted the Department, which she later did,
and services were provided. However, mother failed to reunify
with M.A. The court terminated parental rights and ordered
adoption by paternal aunt and her husband as M.A.’s permanent
plan.
2. Facts Relevant to ICWA Inquiry
The Department’s initial contact with parents was in
person in June 2020 at the hospital following M.A.’s birth. The
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detention report does not reflect that the Department inquired
about Indian ancestry at that time. The Department’s form
ICWA-010(A) reflects that, as of a few days after this initial
contact, no Indian child inquiry had been made.
In its September 2020 jurisdiction/disposition report, the
Department reported difficulty locating mother and father but
had met once with mother in person outside of a restaurant. The
report does not refer to any Indian ancestry inquiry at that time.
Despite extensive diligence and noticing efforts on the part
of the Department, father never appeared before the juvenile
court. Mother appeared for the first time at a hearing in April
2021. She did not file the form ICWA-020, but stated, through
counsel, that she has no Indian ancestry as far as she knows. On
this basis, the court found M.A. was not an Indian child but
ordered parents to keep the Department, counsel, and the court
apprised of any new information relating to possible ICWA
status. We are directed to no evidence that any such information
was later provided.
Paternal aunt appeared at the same April 2021 hearing
that mother did but was not questioned about Indian ancestry on
the record. However, a report by the Department made the same
day said that the Department had asked her and a maternal
uncle about possible Indian ancestry and that both denied Indian
ancestry.
The Department also had contact with M.A.’s
grandmothers from both sides of the family during its
investigation. There is no indication that the Department
discussed Indian heritage with these extended family members.
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3. The Department’s Request for Judicial Notice
The Department requests that we take judicial notice of a
minute order from a 2015 proceeding involving a paternal half
sibling of M.A. The minute order contains a finding that ICWA
did not apply and refers to a “Parental Notification of Indian
Status” as having been “signed and filed.” The Department does
not include in its request the referenced form. Mother opposes
the Department’s request.
DISCUSSION
Congress enacted ICWA “ ‘to protect the best interests of
Indian children and to promote the stability and security of
Indian tribes and families.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1,
8.) 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
federal regulations and related state law. (See, e.g., 25 C.F.R.
§ 23.107 (2022); Welf. & Inst. Code, § 224.2; Cal. Rules of Court,
rule 5.481.)
The duty of inquiry has three “phases.” Mother claims
error with the first. This phase—the “initial inquiry”—applies in
every case. The initial inquiry requires the court and the
Department to ask certain persons related to the proceedings
about the child’s possible Indian ancestry. (See Welf. & Inst.
Code, § 224.2, subds. (a), (b), (c); In re S.S. (2022) 75 Cal.App.5th
575, 581; In re D.F. (2020) 55 Cal.App.5th 558, 566.) The state
law initial inquiry requirements exceed those imposed by federal
law, which merely require the court to “ask each participant in an
emergency or voluntary or involuntary child-custody proceeding
whether the participant knows or has reason to know that the
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child is an Indian child” and 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) (2022).)
Where the “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. (Welf. & Inst. Code, § 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.)
If further inquiry gives the court a “reason to know” a child
is an Indian child, the third phase is triggered. This phase
requires that notice pursuant to ICWA be sent to the tribes to
facilitate their participation in the proceedings. (Welf. & Inst.
Code, § 224.3, subd. (a)(1); In re D.F., supra, 55 Cal.App.5th at
p. 568.)
A juvenile court’s finding that ICWA does not apply in a
proceeding implies that (a) neither the Department nor the court
had a reason to know or believe the subject child is an Indian
child; and (b) the Department fulfilled its duty of inquiry. (In re
Josiah T. (2021) 71 Cal.App.5th 388, 401.)
“ ‘ “[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., supra, 71 Cal.App.5th at
p. 401.)
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Mother’s claim of error is that the juvenile court found the
ICWA inapplicable even though the Department had contact with
grandmothers from both sides of M.A.’s family yet failed to ask
them about Indian ancestry. We agree that the Department
failed in its initial inquiry obligation imposed by California law to
ask “extended family members” whether M.A. is, or may be, an
Indian child. (Welf. & Inst. Code, § 224.2, subd. (b).) The
Department only asked paternal aunt and maternal uncle about
Indian heritage and the court asked mother—the only appearing
parent—about Indian heritage at a hearing attended by the
Department. In the absence of evidence the Department
complied with its section 224.2, subdivision (b) duty to inquire of
all extended family members with whom it had contact, the
court’s finding that ICWA does not apply is error. (See In re
Darian R. (2022) 75 Cal.App.5th 502, 509 [finding error where
evidence showed Department had contact with maternal aunt
and maternal grandfather but failed to inquire of them regarding
Indian ancestry].)
However, because the court’s error is one of state law, we
can reverse only if the error was prejudicial. (In re Benjamin
M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.), citing
Cal. Const., art. VI, § 13.)
Courts are divided on what showing of prejudice warrants
reversal for initial inquiry errors. “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, citing cases.) Others
have excused such a showing, effectively treating failure to
inquire as error per se. (See, e.g., In re Y.W. (2021)
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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, took 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 readily obtainable
information that was likely to bear meaningfully upon whether
the child is an Indian child.” (Id. at p. 744.) Our court recently
took a fourth approach, concluding initial inquiry errors require
reversal only when the record of proceedings in the court or a
proffer of evidence made on appeal suggests a reason to believe
that the child may be an Indian child. (In re Dezi C. (2022)
79 Cal.App.5th 769, 779, review granted Sept. 21, 2022,
S275578.)
We have previously rejected the error per se line of cases.
(In re M.M. (2022) 81 Cal.App.5th 61, 71, review granted Oct. 12,
2022, S276099.) Under any of the other three lines of cases, the
court’s error here was harmless.
On the record before us, there is no reason to believe there
is readily available information that is likely to bear
meaningfully on whether M.A. has Indian ancestry. Mother
appeared and denied knowledge of any Indian ancestry. Mother’s
lack of Indian ancestry was corroborated by her brother,
maternal uncle, who denied Indian ancestry to the Department
and further denied that anyone on mother’s side of the family is
“registered to a tribe.” Although father was absent from the
proceedings, the Department made an inquiry as to M.A.’s
paternal heritage by inquiring with father’s sister. Paternal aunt
denied having Indian ancestry. As such, this case is unlike
Benjamin M. There, like here, the father was absent from the
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proceedings. But no person from the father’s side of the family
had been asked about Indian ancestry. With information about
ancestry on the father’s side completely “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,
70 Cal.App.5th at p. 744.) The inquiry for which remand was
ordered in Benjamin M. was already made here and revealed no
Indian ancestry.
Further, the record gives no reason to believe that
maternal grandmother or paternal grandmother, each of whom
the Department spoke with, would have better information about
parents’ ancestry than mother, maternal uncle, or paternal aunt
did. Maternal uncle who denied Indian heritage lives with
maternal grandmother, suggesting they are likely to share
knowledge of their ancestry. Likewise, paternal aunt who denied
Indian heritage lives on the same property as paternal
grandmother.
Finally, no one has suggested there is any reason to believe
M.A. might have Indian ancestry. Certainly, mother has made
no offer of proof that he is an Indian child. Instead, she
represented on the record that he has no Indian heritage.
Paternal uncle similarly denied Indian heritage on father’s side
of the family.
Given the absence of any evidence or claim that M.A. might
have Indian ancestry, mother’s “unvarnished contention that
additional interviews of [relatives] would have meaningfully
elucidated [M.A.’s] Indian ancestry” does not support a finding of
prejudice. (In re Darian R., supra, 75 Cal.App.5th at p. 510.)
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As we reach this conclusion without reference to the facts
as to which the Department sought judicial notice, we deny the
Department’s request as moot.
DISPOSITION
The Department’s request for judicial notice is denied. The
juvenile court’s order terminating parental rights is affirmed.
GRIMES, Acting P. J.
I CONCUR:
HARUTUNIAN, 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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WILEY, J., Dissenting.
This is my 12th dissent on this issue. The regularity with
which we confront this same problem should occasion concern
and dismay rather than a resigned sense of inevitable normalcy.
The Department could avoid this problem with nearly no effort
and could spare these children and those who love them the delay
and uncertainty that now attends this litigation.
WILEY, J.
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