In re Kaylie R. CA2/2 ( 2022 )

Filed 8/16/22 In re Kaylie R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 KAYLIE R. et al., Persons B314141
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
CK87494C-D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RICARDO R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephen C. Marpet, Judge Pro Tempore. Affirmed.
Lelah S. Fisher, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel, for Plaintiff and Respondent.
______________________________
Defendant and appellant Ricardo R. (father) appeals from
the juvenile court’s July 14, 2021, orders terminating his
parental rights to Kaylie R. (Kaylie, born Sept. 2005) and H.R.
(born Apr. 2011).1 Father’s sole contention is that the court and
the Los Angeles County Department of Children and Family
Services (DCFS) failed to comply with the requirements of the
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901et seq.).
Finding that the ICWA error was harmless, we affirm.
BACKGROUND2
2011 Dependency Petition
In April 2011, DCFS filed a Welfare and Institutions Code
section 3003 petition seeking the juvenile court’s exercise of
1 We refer to Kaylie and H.R., collectively, as minors.
2 Because ICWA error is the only issue raised on appeal, this
summary focuses on the procedural history and facts related to
ICWA compliance.
3 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
dependency jurisdiction over minors.4 ICWA-010(A) forms were
attached to the petition indicating that an “Indian child inquiry”
had been made by questioning father and minors’ mother,
Gloria G. (mother),5 and that minors had no known Indian
ancestry. According to the detention report, father and mother
had denied any Indian ancestry on April 14, 2011.
Detention Hearing
On April 26, 2011, father and mother each filed a Parental
Notification of Indian Status (ICWA-020) form indicating that
they had no known Indian ancestry. The same day, the juvenile
court found father to be minors’ presumed father, detained
minors with their paternal grandmother, Teresa R. (paternal
grandmother), and found that ICWA did not apply.6
4 Minors’ older brothers—R.R. (born May 2001) and
Christian R. (Christian, born Jan. 2003)—were also subjects of
the dependency petition and some of the proceedings below. By
the time father’s parental rights to minors were terminated,
however, R.R. and Christian were already adults. Accordingly,
R.R. and Christian are not the subjects of or parties to this
appeal, and we do not discuss them further.
5 Mother is not a party to this appeal.
6 On May 9, 2022, father filed a motion to augment the
record on appeal and for permission to file a supplemental brief.
We granted the motion. On June 15, 2022, an augmented
reporter’s transcript was filed, which included a transcript of a
hearing held on the morning of April 26, 2011. As father
observes in his supplemental brief, the transcript does not reflect
that the juvenile court made any ICWA inquiries, findings, or
orders at that hearing. A minute order dated April 27, 2011,
however, states the following: “The court notes that today’s
findings on the minute order all took place yesterday 4-26-11.
3
Supplemental Report
DCFS reported that, when interviewed on May 31, 2011,
mother again denied any Indian heritage.
Adjudication
At the adjudication hearing in August 2011, the juvenile
court sustained the section 300 petition, declared minors
dependents of the court, and placed minors with father under
DCFS supervision.
Detention and Supplemental Petition
In March 2012, DCFS sought and obtained an order to
detain minors from father. Minors were placed with paternal
grandmother. A few days later, DCFS filed a section 387
supplemental petition. In August 2012, the juvenile court
sustained the supplemental petition, removed minors from
father, ordered reunification services for father, and terminated
reunification services for mother.
The court further notes that the case was concluded in the
morning, but the parent’s [sic], children, and other family
members all appeared in the afternoon after the case was
concluded. The court recalled the case and proceeded with all
appropriate findings. The judicial assistant was unable to make
the appropriate findings in the minute order due to a clerical
error as to the inability to recall the case. [¶] The 4-27-11
minute order reflects 4-26-11 findings.” (Capitalization omitted.)
The April 27, 2011, minute order further states: “Court finds
I.C.W.A. . . . does not apply . . . . The court has no reason to know
that the minor(s) are Indian children as defined by the Indian
Child Welfare Act.” Thus, we disagree with father that the court
made no ICWA findings on April 26, 2011, “whatsoever.” Rather,
we assume that the ICWA findings were made at the afternoon
hearing on April 26, 2011, for which no reporter’s transcript
appears in the record.
4
Termination of Jurisdiction
In February 2013, the juvenile court terminated
reunification services for father. In June 2013, the juvenile court
issued letters of guardianship appointing paternal grandmother
minors’ legal guardian. In August 2013, the juvenile court
terminated its jurisdiction.
2020 Supplemental Petition
Paternal grandmother died in October 2020. On
December 10, 2020, DCFS filed a section 387 supplemental
petition on behalf of minors, indicating that the previous
disposition was no longer effective as the children’s legal
guardian was deceased. DCFS recommended that minors be
placed in the home of their paternal cousin, Jeannette R., with
whom they had been detained on December 8, 2020. According to
the ICWA-010 forms attached to the supplemental petition, a
social worker questioned mother on December 1, 2020, and, based
on that inquiry, the social worker had no reason to believe that
minors were Indian children.7
December 15, 2020, Hearing
Mother and father appeared at a hearing on December 15,
2020, during which the juvenile court sustained the supplemental
petition. The court asked mother’s counsel if mother had “file[d]
an ICWA notice[.]” Mother’s counsel responded: “ICWA findings
were made since we’re at a 387 post legal guardianship. I just
ask those findings remain.” The court stated that the findings
7 According to the detention report, mother denied Native
American ancestry on December 1, 2020. The social worker was
unable to obtain a statement from father.
5
would “remain.” Soon after, the court stated, “We also had
previous findings of ICWA as to father as well.”8
Section 366.26 Hearing
At the section 366.26 hearing on July 14, 2021, the juvenile
court terminated father’s and mother’s parental rights to minors
and ordered adoption as minors’ permanent plan.
Appeal
Father’s timely appeal ensued.
DISCUSSION
I. Relevant Law
“ICWA was enacted to curtail ‘the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement’ [citation], and ‘to
promote the stability and security of Indian tribes and families by
establishing . . . standards that a state court . . . must follow
before removing an Indian child from his or her family’
[citations].”9 (In re Dezi C. (2022) 79 Cal.App.5th 769, 780
(Dezi C.).)
Under California law enacted to implement ICWA, DCFS
and the juvenile court have “three distinct duties . . . in
dependency proceedings.” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052 (D.S.).) The first is the initial duty of inquiry, which DCFS
8 In an addendum report filed on July 7, 2021, DCFS
reported: “ICWA findings were made on [December 15, 2020,]
and do not apply.”
9 An “‘Indian child’ means any unmarried person who is
under age eighteen and is either (a) a member of an Indian tribe
or (b) 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); see also § 224.1, subd. (a) [adopting federal definition].)
6
“discharges . . . chiefly by ‘asking’ family members ‘whether the
child is, or may be, an Indian child.’ ([§ 224.2], 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).)” (Dezi C., supra,
79 Cal.App.5th at p. 780; see also Cal. Rules of Court,
rule 5.481(a)(1)-(2).) The second duty—the duty of further
inquiry—is triggered if there is “reason to believe that an Indian
child is involved” (§ 224.2, subd. (e)), while the third duty—to
notify the relevant tribes—is triggered if there is “reason to
know . . . that an Indian child is involved” (§ 224.3, subd. (a)).10
A spate of appellate courts has recently weighed in on the
consequence of a social services agency’s failure to conduct the
required initial ICWA inquiry, resulting in “a continuum of tests
for prejudice stemming from error in following California statutes
implementing ICWA.” (In re A.C. (2022) 75 Cal.App.5th 1009,
1011; see also Dezi C., supra, 79 Cal.App.5th at pp. 777–778.)
Our Division has adopted the following rule: “[A]n agency’s
failure to conduct a proper initial inquiry into a dependent child’s
American Indian heritage is harmless unless the record contains
information suggesting a reason to believe that the child may be
an ‘Indian child’ within the meaning of ICWA, such that the
absence of further inquiry was prejudicial to the juvenile court’s
ICWA finding. For this purpose, the ‘record’ includes both the
10 Here, father only challenges compliance with the initial
duty of inquiry, so the duties of further inquiry and notice are not
at issue.
7
record of proceedings in the juvenile court and any proffer the
appealing parent makes on appeal.” (Dezi C., supra, at p. 779.)
II. Standard of Review
“On appeal, we review the juvenile court’s ICWA findings
for substantial evidence. [Citations.] But where the facts are
undisputed, we independently determine whether ICWA’s
requirements have been satisfied. [Citation.]” (D.S., supra,
46 Cal.App.5th at p. 1051.)
III. Analysis
Father contends that DCFS failed to interview minors’
extended family members regarding possible Indian ancestry and
that this error warrants the conditional reversal of the orders
terminating his parental rights so that a proper initial inquiry
can be conducted. Although we agree with father that DCFS’s
initial ICWA inquiry was deficient, we find that the error was
harmless.
A. The doctrine of invited error does not apply
As an initial matter, we address DCFS’s contention that
father is estopped under the doctrine of invited error from
challenging ICWA compliance on appeal because his counsel and
mother’s counsel below specifically asked the juvenile court at the
December 15, 2020, hearing to maintain its prior findings that
ICWA did not apply.
“‘Under the doctrine of invited error, when a party by its
own conduct induces the commission of error, it may not claim on
appeal that the judgment should be reversed because of that
error.’ [Citations.]” (In re G.P. (2014) 227 Cal.App.4th 1180,
1193.) For the doctrine to apply, however, “it must be clear that
counsel intentionally caused the trial court to err, and that
counsel acted for tactical reasons and not out of ignorance or
8
mistake. [Citation.]” (People v. Hampton (2022) 74 Cal.App.5th
1092, 1103 (Hampton).)
We reject DCFS’s claim of invited error. The reporter’s
transcript from the hearing reflects that only mother’s counsel
made the request for prior ICWA findings to remain. Even if we
were to infer that father’s counsel’s failure to object indicates an
acquiescence to mother’s counsel’s request, there is no indication
in the record that father’s counsel acted for tactical reasons such
that the doctrine of invited error would apply. (See Hampton,
supra, 74 Cal.App.5th at p. 1103; see also In re K.R. (2018)
20 Cal.App.5th 701, 706 (K.R.) [“the parent’s failure to object in
the juvenile court to deficiencies in the investigation or noticing
does not preclude the parent from raising the issue for the first
time on appeal”].)
B. The ICWA error was harmless
As father correctly observes, DCFS had contact with
numerous extended family members throughout the course of the
dependency case, including (now-deceased) paternal
grandmother, maternal grandmother, a maternal aunt, and
maternal and paternal cousins. The record is silent, however, as
to any inquiries made of these extended family members
regarding minors’ possible Indian ancestry. We interpret this
silence to mean that DCFS did not actually conduct such
inquiries. (See In re N.G. (2018) 27 Cal.App.5th 474, 484; K.R.,
supra, 20 Cal.App.5th at p. 709.) DCFS thus failed to discharge
its initial duty of inquiry.11 (See § 224.2, subd. (b) [requiring
11 While DCFS does not explicitly concede that ICWA error
occurred, it does not contend that it fully complied with its initial
duty of inquiry.
9
DCFS to question “‘extended family members’” about possible
Indian ancestry]; Dezi C., supra, 79 Cal.App.5th at pp. 776–777.)
Having found ICWA error, “our examination as to whether
substantial evidence supports the juvenile court’s ICWA
finding . . . turn[s] on whether that error . . . was harmless—in
other words, we must assess whether it is reasonably probable
that the juvenile court would have made the same ICWA finding
had the inquiry been done properly. [Citation.]” (Dezi C., supra,
79 Cal.App.5th at p. 777.)
Applying the “‘reason to believe’ rule” that we adopted in
Dezi C., supra, 79 Cal.App.5th at page 779, we conclude that
DCFS’s failure to make the requisite inquiries of minors’
extended family members was harmless because nothing in the
record suggests a reason to believe that minors are Indian
children within the meaning of ICWA. Father and mother both
repeatedly reported that they had no known Indian ancestry, and
nothing in the record suggests that either parent was adopted
such that “their self-reporting of ‘no heritage’ may not be fully
informed [citation].” (Dezi C., supra, at p. 779.) Father also
makes no proffer on appeal that he or mother have any Indian
heritage. (See id. at pp. 779, fn. 4, 786.)
Father cites several recent cases where ICWA error arising
from the failure to question extended family members warranted
remand. We find them distinguishable. The Courts of Appeal in
In re Y.W. (2021) 70 Cal.App.5th 542 (Y.W.) and In re H.V. (2022)
75 Cal.App.5th 433 applied “the ‘automatic reversal rule’”
(Dezi C., supra, 79 Cal.App.5th at p. 777) to assess prejudice from
a defective initial ICWA inquiry, while the Court of Appeal in In
re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.) applied
the “‘the readily obtainable information rule’” (Dezi C., supra, at
10
p. 778). We explained our rejection of both rules in Dezi C.,
supra, at pages 782–786. There are also factual differences. For
example, the mother in Y.W., supra, 70 Cal.App.5th at pages 548,
552–553 had been adopted as a young child, yet DCFS made no
effort to follow up on viable leads to contact her biological parents
to inquire about Indian ancestry. In Benjamin M., supra,
70 Cal.App.5th at page 740, the mother denied Indian ancestry
and the social services department was unable to locate or
contact the father. Here, in contrast, both parents were
contacted by DCFS and both denied Indian ancestry. Finally, in
In re Josiah T. (2021) 71 Cal.App.5th 388, 397, the paternal
grandmother represented that she had Cherokee Indian ancestry,
yet DCFS failed to follow up on that information. Here, no family
member reported Indian ancestry.
DISPOSITION
The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
11