In re R.G. CA2/5 ( 2022 )

Filed 5/16/22 In re R.G. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re R.G., Person Coming Under B315712
Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 18CCJP00954B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kristen Byrdsong, Judge, Pro Tempore.
Conditionally reversed and remanded with directions.
John P. McCurley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen D. Watson, Deputy
County Counsel, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Mother appeals from an order terminating parental rights
to her son under Welfare and Institutions Code section 366.26.1
She contends the juvenile court erred when it found the parent-
child beneficial relationship exception to the termination of
parental rights inapplicable and asserts the reports submitted in
support of termination by the Los Angeles County Department of
Children and Family Services (DCFS) were inadequate. Mother
also argues DCFS failed to comply with section 224.2, subdivision
(b)—the California statute implementing the initial inquiry rules
of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901et seq.). We conclude mother forfeited her challenge to the
adequacy of DCFS’s reports. We conditionally reverse and
remand for DCFS to comply with its ICWA inquiry statutory
responsibilities.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has four children. When these dependency
proceedings commenced, her three older children were under the
jurisdiction of the dependency court, following their detention
from mother in 2015 due to domestic violence.2 The three older
children are son’s half-siblings. Mother never reunified with
these children because of continuing domestic violence and drug
abuse.
1 All further undesignated statutory references are to the
Welfare and Institutions Code.
2 Mother’s third child was detained shortly after birth in
2017. The father of the three older children is not the father of
mother’s youngest child who is the subject of this appeal.
2
1. Detention and Jurisdiction
In late April 2019, Mother gave birth to son, the dependent
in this case. One month later, police arrested mother for
possession of methamphetamine. On July 5, 2019, DCFS filed a
petition pursuant to section 300, alleging son was at risk of harm
due to mother’s substance abuse. Three days later, the court
detained son from mother’s custody. On August 16, 2019, DCFS
filed a first-amended section 300 petition, alleging both parents’
substance abuse endangered son.
On August 20, 2020, the juvenile court sustained the
section 300 substance abuse allegations against the parents,
declared son a dependent, removed him from parental custody,
granted the parents monitored visits, and ordered reunification
services. The court ordered mother to participate in a domestic
violence program; random or on-demand drug testing, and a drug
program if any tests were missed or dirty; a 12-step program;
parenting classes; and individual counseling. During visits,
mother was loving and affectionate toward son. She actively
engaged with son and was attentive toward him. She listened to
music with him, watched videos with him, and taught him how to
go down a slide. Mother brought son toys, crafts, food, and
snacks. Son was responsive to mother’s affection, laughing and
smiling during visits. He blew kisses to mother when visits
ended. Caregivers noted son had no trouble transitioning when
he returned from visits.
Mother failed to complete the court ordered programs,
repeatedly missed drug tests, and tested positive for
methamphetamine. Mother’s visits were never liberalized
because of her positive methamphetamine tests and failure
appear for many drug tests.
3
At the April 5, 2021 six-month review hearing, the juvenile
court terminated reunification services and set a selection and
implementation hearing pursuant to section 366.26.
2. ICWA Inquiry Efforts
In one of its reports, DCFS noted that in an August 2015
minute order from the half-siblings’ dependency case, the juvenile
court found it had no reason to know the two oldest half-siblings
were Indian children. The report did not indicate that DCFS
contacted mother’s extended family members in the half-siblings’
cases.
In May 2019, DCFS interviewed the maternal
grandmother, but there is no evidence DCFS inquired about
Indian ancestry.
Several times, both parents verbally denied Indian
ancestry when DCFS asked. On July 8, 2019 and December 9,
2019, mother and father respectively filed Parental Notification
of Indian Status (ICWA-020) forms declaring, “I have no Indian
ancestry as far as I know.”3 In July 2019 and December 2019,
the court found it did not have reason to know son was an Indian
child based on the ICWA-020 forms.
3 The ICWA-020 form stated: “To the parent, Indian
custodian, or guardian of the above-named child: You must
provide all the requested information about the child’s Indian
status by completing this form. If you get new information that
would change your answers, you must let your attorney, all the
attorneys on the case, and the social worker or probation officer,
or the court investigator know immediately and an updated form
must be filed with the court.” The bottom part of the form
provided: “Note: This form is not intended to constitute a
complete inquiry into Indian heritage. Further inquiry may be
required by the Indian Child Welfare Act.”
4
In July 2020, DCFS spoke to the paternal great aunt, but
the record does not disclose that DCFS asked about Indian
ancestry. Nothing in the record indicates DCFS discussed Indian
ancestry with son’s extended family members.
3. Section 366.26 Hearing
At the September 23, 2021 section 366.26 hearing, the
court received into evidence the section 366.26 reports and a June
2021 Last Minute Information for the Court Report.4 The
juvenile court took judicial notice of the sustained petition, all
court ordered case plans, and all court orders and findings. No
party objected to admission of the evidence. Although mother
planned to testify at the hearing, she did not appear, and her
counsel was unable to reach her.
DCFS argued that son was adoptable and no exception to
adoption applied. DCFS requested the court terminate parental
rights.
Counsel for mother opposed termination and argued,
“mother would be arguing the [section 366.26, subdivision]
(c)(1)(B)(i) exception. [¶] It’s quite clear that throughout the
duration of this case, mother has maintained contact with the
minor. She visits regularly, and she indicated to me --
[¶] . . . [¶] that she has a strong bond with the child. [¶]
Submitted.” Father’ counsel stated he had no direction from his
client, but he objected for the record.
Son’s counsel argued for termination of parental rights,
asserting that son will be adopted and no exceptions applied.
Son’s counsel explained: “It does appear that mom did maintain
regular visitation with the child during the month[s] of June and
4 An attachment to one of the section 366.26 reports noted:
“Parents [sic] visits are good. Parents are engaging and loving.”
5
July. However, despite her recent consistent visits, there is no
bond between mom and the child that rises to the level of the
[section 366.26, subdivision] (c)(1)(B)(i) exception. [¶] The child
has been placed in his current caregiver’s care since he was three
months old. It has been two years since he resided with them.
He has a healthy and positive attachment to his caregivers, and
they continue to provide him with a stable home. [¶] They are
also committed to adopting him. All adoption requirements have
been completed and there are no current barriers to moving
forward with the adoption.”
The juvenile court found son was adoptable and no
exception to adoption applied, terminated parental rights, and
ordered adoption as the permanent plan.
Mother filed a timely notice of appeal, challenging the order
terminating parental rights. Father did not appeal.
DISCUSSION
Mother argues the court’s termination order should be
vacated because DCFS failed to submit adequate reports to
support the court’s finding that the parent-child beneficial
relationship exception was inapplicable. Mother asserts reversal
is also necessary for DCFS to comply with its duty of inquiry
under the California statutes that implement ICWA.
1. Mother Forfeited Her Challenge to the Adequacy of
DCFS’s Reports
Mother asserts the juvenile court erred in terminating
parental rights because the court was unable to make an
informed decision due to DCFS’s inadequate reports. Mother has
forfeited this argument by failing to object in the juvenile court.
(In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [failure to
prepare section 366.22 assessment waived by failure to object
6
despite that provision’s mandatory language]; In re Crystal J.
(1993) 12 Cal.App.4th 407, 411 [failure to object to the sufficiency
of the adoption assessment reports at the section 366.26 hearing
waived the right to raise the issue on appeal].) Courts “have
repeatedly held that a party’s failure to object forfeits appellate
review of the adequacy of—or the failure to prepare—mandatory
assessment reports in juvenile proceedings.” (In re M.V. (2014)
225 Cal.App.4th 1495, 1508.)
Perhaps in recognition that DCFS would raise forfeiture in
its respondent’s brief (which it did), mother specifically disclaims
reliance on the social worker’s reports. Instead, she argues that
because the social worker’s reports were inadequate, the evidence
was insufficient to support the trial court’s findings that the
parental benefit exception was unmet. This argument, too, does
not survive. Mother, as movant, had the burden of establishing
the parental benefit exception. (In re Caden C. (2021) 11 Cal.5th
614, 636.) Any failure of proof simply means the exception
remains unestablished.
Finally, mother explains that her sufficiency of the
evidence argument is not so much a failure of proof, but a failure
of DCFS to present the court with sufficient information to
enable it to make an informed decision. (See In re B.D. (2021)
66 Cal.App.5th 1218, 1230, fn. 5.) But this is simply a
restatement of mother’s forfeited argument that the DCFS’s
reports were inadequate, and meets the same fate. “If [mother]
had brought this matter to the attention of the juvenile court, the
court could have remedied any error. [Citation.] Allowing
[mother] to raise [this] issue[] . . . for the first time on appeal
would contravene the dependency law’s objective of expediently
providing a permanent home for children whose parents have
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been unable to reunify with them.” (In re Desiree M. (2010)
181 Cal.App.4th 329, 334.)
2. DCFS’s Failure to Comply with Section 224.2 Requires
Conditional Reversal
Mother argues DCFS failed to comply with state law
requiring ICWA inquiry of extended family members, and the
case must be remanded for the juvenile court to ensure DCFS
properly investigates son’s ancestry.
a. ICWA and the Standard of Review
The juvenile court and DCFS have an affirmative and
continuing duty under ICWA and related California law to
inquire whether a child who is the subject of a dependency
proceeding is or may be an Indian child. (In re Isaiah W. (2016)
1 Cal.5th 1, 10–11.) The scope of the duty of inquiry is defined in
regulations promulgated under ICWA (see 25 C.F.R. § 23.107 et
seq. (2020)), California statutes, and rules of court. (In re T.G.
(2020) 58 Cal.App.5th 275, 290–291 (T.G.).) Here, we apply the
statutes in effect in July 2021, when the section 366.26 hearing
took place. (In re A.M. (2020) 47 Cal.App.5th 303, 321.)
By statute, DCFS’s initial duty of inquiry at the beginning
of a child welfare proceeding includes “asking the child, parents,
legal guardian, Indian custodian, extended family members,
others who have an interest in the child, and the party reporting
child abuse or neglect, whether the child is, or may be, an Indian
child . . . .” (§ 224.2, subd. (b).) The court must inquire at each
party’s first appearance, whether any participant in the
proceeding “knows or has reason to know that the child is an
Indian child.” (Id. at subd. (c).) Part of the initial inquiry
includes requiring each party to complete the ICWA-020 form.
(Cal. Rules of Court, rule 5.481(a)(2)(C).) When there is “reason
8
to believe that an Indian child is involved in a proceeding,”
further inquiry is required. (§ 224.2, subd. (e); T.G., supra,
58 Cal.App.5th at p. 290, fn. 14.)
On undisputed facts, we make an independent
determination whether ICWA’s requirements have been satisfied.
(In re D.F. (2020) 55 Cal.App.5th 558, 565.)
b. DCFS Failed to Comply with Section 224.2,
Subdivision (b)
Mother correctly contends DCFS had an obligation under
section 224.2, subdivision (b) to ask the maternal grandmother
and the paternal great aunt about Indian ancestry, as both are
extended family members. DCFS does not argue to the contrary.
Given DCFS’s failure to interview the two extended family
members, both of whom were involved in the dependency
proceedings, the juvenile court’s ICWA finding was error.
“Nothing in section 224.2, subdivision (b), relieves the
Department of its broad duty to seek that information from ‘all
relevant’ individuals [citation] simply because a parent states on
the ICWA-020 form, . . . ‘I have no Indian ancestry as far as I
know.’ Such a rule ignores the reality that parents may not know
their possible relationship with or connection to an Indian tribe.”
(In re Y.W. (2021) 70 Cal.App.5th 542, 554 (Y.W.).) In the
circumstances present here, relying entirely on the parents’
representations was error.
c. The Error Was Prejudicial
DCFS acknowledges that this Court has found prejudice
based on similar facts in In re H.V. (2022) 75 Cal.App.5th 433(H.V.), an appeal decided by another of panel of this division.
There, DCFS asked mother about the child’s Indian ancestry, and
mother “did not give the social worker any reason to believe the
9
child was or might be an Indian child.” (Id. at p. 436.) The social
worker interviewed maternal great-grandmother and paternal
great-grandfather, but failed to ask questions about the child’s
Indian heritage. Mother also executed an ICWA-020 form in
which she denied any knowledge of Indian ancestry. (Ibid.) In
response to an inquiry from the juvenile court, mother (through
counsel) “indicated that alleged father did not have Indian
ancestry.” (Ibid.)
On the appeal from jurisdiction and disposition orders,
DCFS did not contend it discharged its first-step inquiry. It
instead took the tack from the courts in In re A.C. (2021)
65 Cal.App.5th 1060, 1069, and In re Rebecca R. (2006)
143 Cal.App.4th 1426, 1431, and argued that mother must make
an affirmative representation of Indian ancestry or any error is
deemed harmless. (H.V., supra, 75 Cal.App.5th at p. 438.) This
court disagreed. “Mother does not have an affirmative duty to
make a factual assertion on appeal that she cannot support with
citations to the record.” (Ibid.) It found the error prejudicial and
remanded for ICWA compliance.5 (Id. at pp. 438–439.)
5 Justice Baker, in his dissent in H.V., decried ICWA’s
complexity, finding it anything but straightforward, a point with
which we agree. (H.V., supra, 75 Cal.App.5th at p. 440 (dis. opn.
of Baker, J.).) He concluded that under appropriate substantial
evidence review, there was “substantial evidence supporting the
juvenile court’s determination that ICWA does not apply.” (Id. at
p. 441.)
In another recent dissent that disagreed with the majority’s
finding that ICWA noncompliance was prejudicial, Judge
Crandall, sitting on assignment, observed that any presumption
of prejudice in this setting “provides parents with a last-minute,
10
In both this case and H.V., DCFS went no further than to
inquire of the parents. Equally telling is that in both cases,
DCFS knew about extended family members – the maternal
grandmother and paternal grandfather in H.V. and the maternal
grandmother and the paternal great aunt in the present case –
but asked them nothing about the child’s Indian ancestry.6
DCFS asserts that we should not follow H.V. because doing
so “leads to an absurd result.” DCFS asserts that if we reverse,
DCFS may be “ ‘left to follow a new unspoken rule: interrogate
every person contacted in a child welfare investigation about
ICWA issues and hope both the juvenile courts and reviewing
courts will agree that is enough.’ ” We disagree and decline to
depart from the court’s analysis and resolution in H.V. DCFS is
not left with a new rule, unspoken or otherwise—it is left to
follow section 224.2, as it has been in effect since January 1,
2019. DCFS must ask “the child, parents, legal guardian, Indian
custodian, extended family members, others who have an interest
in the child, and the party reporting child abuse or neglect,
whether the child is, or may be, an Indian child.” (§ 224.2, subd.
(b).)
readily-available delay tactic.” (In re A.C. (March 4, 2022,
B312391) 75 Cal.App.5th at p. 1024 (conc. & dis. opn. of Crandall,
J.) For this and other policy reasons, the dissent found no
prejudice. The majority’s response was: “These arguments are
grist for the legislative mill.” (Id. at p. *5.)
6 Arguably In re H.V., supra, 75 Cal.App.5th 433, is a
stronger case for prejudice than the present one as the only
information about father there came not from father or his family
but from mother.
11
DCFS argues that “given that both mother and father
denied Indian ancestry both verbally and in writing [citations],
and mother makes no affirmative representation on appeal that
additional inquiry with the maternal and paternal relatives
would bear meaningfully on whether [son] was an Indian child,
the juvenile court had sufficient information to find the ICWA did
not apply.” Family elders may well have firsthand or more
accurate information about the family tree. (See In re S.R. (2021)
64 Cal.App.5th 303, 314 [“It isn’t easy to track tribal affiliations
and those connections are easily lost. . . . This case is a stark
example of that dynamic, because the children’s parents
apparently had no idea of their family’s connection to the Yaqui
tribe of Arizona, even though the children’s great-grandmother
was a member and still lived with the grandparents in
Colorado”].)
“Speculation as to whether extended family members might
have information likely to bear meaningfully on whether the
child is an Indian child has no place in the analysis of prejudicial
error where there is an inadequate initial inquiry. Rather, in
determining whether the failure to make an adequate initial
inquiry is prejudicial, we ask whether the information in the
hands of the extended family members is likely to be meaningful
in determining whether the child is an Indian child, not whether
the information is likely to show the child is in fact an Indian
child.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 435; see also
In re J.C. (2022) 77 Cal.App.5th 70, 80–81 [“By failing to conduct
an adequate inquiry, the Department virtually guarantees that
the (incomplete) information it obtains will support a finding that
ICWA does not apply” and such reasoning “allows the harmless
error exception to swallow the rules governing the duty to
12
inquire”].)7 We must remand for the juvenile court to order
DCFS to comply with its ICWA inquiry duties.
7 We do not suggest that in every case where initial DCFS
inquiry is limited to the receipt of negative Indian ancestry on an
ICWA-020 that error is automatically prejudicial. There may be
circumstances that make further inquiry unavailable or
unnecessary. For example, in In re Darian R. (2022)
75 Cal.App.5th 502, 510, the appellate court held that failure to
inquire of the children’s maternal aunt and grandfather was not
prejudicial because in earlier dependency proceedings the
juvenile court had found that the children did not have Indian
ancestry. That is not our case.
13
DISPOSITION
The juvenile court’s order terminating parental rights
under section 366.26 is conditionally reversed solely based on
inadequate ICWA compliance. The case is remanded to the
juvenile court to ensure compliance with ICWA and related
California law by ordering DCFS to inquire of available extended
family members whether they have reason to believe minor is an
Indian child. Based on the responses, if no additional inquiry is
necessary, the court’s original order shall be reinstated. If
additional inquiry is required, DCFS shall comply with all
applicable ICWA statutes and regulation, and related state law.
In all other respects, the order is affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J
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