In re J.Q. CA3 ( 2023 )

Filed 3/27/23 In re J.Q. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
In re J.Q., a Person Coming Under the Juvenile Court C096652
Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No.
AGENCY, STK-JD-DP-2021-0000189)
Plaintiff and Respondent,
v.
A.G.,
Defendant and Appellant.
Appellant A.G. (mother), mother of the minor, J.Q. (minor), appeals from the
juvenile court’s orders terminating parental rights and freeing the minor for adoption.
(Welf. & Inst. Code, §§ 366.26, 395.)1 Mother’s sole contention on appeal is that the San
1 Undesignated statutory references are to the Welfare and Institutions Code.
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Joaquin County Human Services Agency (Agency) and the juvenile court failed to
comply with the inquiry and notice requirements of the Indian Child Welfare Act
(ICWA) because the Agency did not contact extended family members to inquire about
the ICWA. (25 U.S.C. § 1901 et seq.; § 224.2.) We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of this case are not at issue, and we do not recite them in
detail. We limit our recitation of the background to those facts relevant to the ICWA
inquiry and notice requirements.
On May 6, 2021, father of the minor, G.Q. (father), and mother (collectively,
parents), brought six-week-old J.Q. to the hospital with multiple unexplained injuries.
The minor was taken into protective custody. The parents were subsequently arrested for
felony willful cruelty to a child, infliction of great bodily injury, and felony infliction of
injury on a child. They remained incarcerated in the local jail pending criminal trial for
the remainder of the dependency case. On May 11, 2021, the Agency filed a petition
regarding the minor, alleging serious physical harm under section 300, subdivision (a);
failure to protect under section 300, subdivision (b)(1); and severe physical abuse under
section 300, subdivision (e).
As to the child’s Indian heritage, on May 7, 2021, the investigating social worker
asked the parents at the hospital about possible Native American ancestry, and both
denied any Native American ancestry. Based on this information, the social worker filled
out an ICWA-010 form stating that there was no reason to believe that the ICWA applied
to the minor. Subsequently, at the detention hearing, the juvenile court inquired with the
parents about possible Native American ancestry and each replied, “No.” On June 18,
2021, the Agency filed the ICWA-020 forms completed by the parents on May 7, 2021,
which reflected mother’s and father’s response that they did not have Native American
ancestry.
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The Agency’s October 2021 jurisdiction/disposition report showed the parents
each denied having any Native American ancestry and that there was no reason to believe
the minor was an Indian child within the meaning of the ICWA. The report described the
minor as a “Filipino and Hispanic female.” It was reported that each parent invoked their
Fifth Amendment right and chose not to make any statements for the report. Counsel for
each parent also instructed the social worker not to have contact with mother or father.
As a result, no family background was obtained for the report. The report showed that
the minor was placed in the home of the maternal aunt and uncle. The minor had visits
with the maternal grandmother. It was reported that no paternal relatives had contacted
the Agency for visits with the minor.
Following a contested jurisdictional/dispositional hearing, the juvenile court
ordered reunification services bypassed as to both mother and father, found the ICWA
did not apply, and set a selection and implementation hearing pursuant to section 366.26.
The Agency’s May 12, 2022 section 366.26 report reflected that there was no reason to
believe the minor was an Indian child within the meaning of the ICWA. On July 7, 2022,
the juvenile court held the contested section 366.26 hearing. During the hearing, mother
indicated that there was an error in the Agency’s report because the report stated the
minor was Hispanic and Filipino, but mother wanted the court to know that the minor
was “full Filipino.” The juvenile court found the minor adoptable, determined no
statutory exceptions to adoption applied, and terminated mother’s and father’s parental
rights.
Mother filed a timely notice of appeal.
DISCUSSION
Mother contends that the Agency’s inquiry into the minor’s possible Native
American ancestry was insufficient because, although the parents denied Native
American ancestry, there is no evidence the Agency contacted any of the known extended
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family members to inquire whether they knew of possible Native American ancestry. We
disagree.
As this court recently explained: “ ‘The ICWA protects the interests of Indian
children and promotes the stability and security of Indian tribes by establishing minimum
standards for removal of Indian children from their families, and by permitting tribal
participation in dependency proceedings. [Citations.] A major purpose of the ICWA is
to protect “Indian children who are members of or are eligible for membership in an
Indian tribe.” [Citation.]’ (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA
defines an ‘ “Indian child” ’ as a child who ‘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).) The juvenile court and the social services
department have an affirmative and continuing duty, beginning at initial contact, to
inquire whether a child who is subject to the proceedings is, or may be, an Indian child.
(Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)” (In re G.A. (2022) 81
Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056 (G.A.).)
“[S]ection 224.2 creates three distinct duties regarding ICWA in dependency
proceedings. First, from the Agency’s initial contact with a minor and his [or her] family,
the statute imposes a duty of inquiry to ask all involved persons whether the child may be
an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a ‘reason
to believe’ the child is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make that inquiry as soon as
practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry results in a
reason to know the child is an Indian child, then the formal notice requirements of section
224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance
whether anyone ‘knows or has reason to know that the child is an Indian child’]; id.,
subd. (d) [defining circumstances that establish a ‘reason to know’ a child is an Indian
child]; § 224.3 [ICWA notice is required if there is a ‘reason to know’ a child is an Indian
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child as defined under § 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.) We review claims of inadequate inquiry into a child’s Native American ancestry
for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
Mother cites section 224.2, subdivision (b), which imposes a more extensive duty
to inquire about Indian ancestry if a child is placed in the temporary custody of a welfare
department (§ 306) or probation department (§ 307): “Inquiry includes, but is not limited
to, 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 Agency does not dispute mother’s claim that the record does not show that the
Agency made any inquiry of any of the minor’s extended family members, despite
frequent contact with several of the maternal relatives regarding the minor’s placement.
The Agency argues, however, that any error is harmless because the record does not
support a reason to believe that the minor may be an “ ‘Indian child’ within the meaning
of ICWA, such that the absence of further inquiry was prejudicial.” (In re Dezi C. (2022)
79 Cal.App.5th 769, 779, review granted Sept. 21, 2022, S275578 (Dezi C.).) Recently,
our Supreme Court granted review in Dezi C., and we anticipate further clarification on
this issue.
Due to changes in California law over the past few years, agencies now have a
broader duty of inquiry and a duty of documentation (§ 224.2, subd. (b); Cal. Rules of
Court, rule 5.481(a)(5)), and courts have been tasked with determining how to assess
error when the agency fails to discharge its now broad duty of inquiry. Agencies have
often conceded error and, therefore, disposition of the issue on appeal has turned on
whether the error was prejudicial. Although reviewing courts generally agree that
reversal is dependent on showing prejudice, or a miscarriage of justice, approaches for
assessing prejudice have varied. (See, e.g., In re E.V. (2022) 80 Cal.App.5th 691, 698
[father did not have to show prejudice from the lack of initial inquiry; father’s failure to
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make affirmative representation about his possible Apache heritage did not render
harmless trial court’s failure to obtain parental notification of Native American status and
failure to ask the parents questions about their heritage on the record ]; Dezi C., supra, 79
Cal.App.5th at p. 779, rev.gr. [“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”]; In re J.C. (2022) 77 Cal.App.5th 70, 80 [where
agency’s failure to conduct an adequate inquiry makes it impossible for the parent to
show prejudice, remand is required]; In re A.C. (2021) 65 Cal.App.5th 1060, 1069
[parent asserting failure to inquire must make an offer of proof or affirmatively claim
Indian heritage on appeal]; In re Benjamin M. (2021) 70 Cal.App.5th 735, 744 [reversal
required where record demonstrates agency failed in its duty of initial inquiry and where
the record indicates that there was readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child].)
In this court’s prior decision addressing this issue, G.A., supra, 81 Cal.App.5th
355, review granted, both parents repeatedly denied Indian ancestry and the record
showed the child welfare agency attempted to contact other family members, but they
were not responsive. (Id. at pp. 359, 362.) The mother claimed that, to demonstrate
prejudice, she only needed to show “ ‘there were sources of information readily available
to respondent that were not consulted.’ ” (Id. at p. 362.) We rejected her contention and
determined that the evidence derived from the initial inquiry “ ‘was sufficient for a
reliable determination’ ” and the agency had no duty to inquire beyond that which it did.
(Id. at p. 363.)
Here, both in writing and during the detention hearing, the parents each denied any
Native American ancestry. Additionally, the record shows that mother advised the court
that the minor was “full Filipino” on both sides, correcting an error in the Agency’s
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report describing the minor as Hispanic and Filipino. Thus, the Agency had no evidence
whatsoever of a tribal link. Assuming the Agency had a duty to interview extended
family under the circumstances presented here, a parent claiming ICWA deficiencies
following termination of parental rights must show prejudice from the Agency’s failure to
conduct such interviews. (See G.A., supra, 81 Cal.App.5th at p. 364, rev.gr.; Dezi C.,
supra, 79 Cal.App.5th at pp. 781-782, rev.gr.; In re Darian R. (2022) 75 Cal.App.5th
502, 510.)
Mother’s reliance on In re Benjamin M. is unpersuasive. There, the child welfare
agency could not locate the minor’s father and did not obtain any information about
Native American ancestry from the minor’s paternal side. Although the agency had
access to the father’s brother and sister-in-law, it failed to ask them about potential
Native American ancestry. In concluding that this error was prejudicial, the appellate
court reasoned that the missing information was “readily obtainable” and “likely to bear
meaningfully upon whether the child is an Indian child.” (In re Benjamin M., supra, 70
Cal.App.5th at p. 744.) Here, in contrast to In re Benjamin M., both mother and father
were available, although they did not cooperate in providing family history to the
Agency, and they each denied any Native American ancestry on multiple occasions. Due
to mother’s and father’s refusal to provide any family history to the Agency, the Agency
lacked any information about paternal relatives. While inquiry of the maternal
grandmother and maternal aunt and uncle may have been readily obtainable, it was
unlikely to “bear meaningfully” on whether the minor was a member or eligible for
membership in a federally recognized American Indian tribe under the ICWA where
mother answered this question by correcting the record in court to state that the minor
was “full Filipino.” We therefore reject mother’s “unvarnished contention that additional
interviews of [relatives] would have meaningfully elucidated the [minor’s] Indian
ancestry.” (In re Darian R., supra, 75 Cal.App.5th at p. 510; see In re Rebecca R., supra,
143 Cal.App.4th at p. 1431 [“The burden on an appealing parent to make an affirmative
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representation of Indian heritage is de minimis. In the absence of such a representation,
there can be no prejudice and no miscarriage of justice requiring reversal”].)
We cannot say that remanding this matter to allow the Agency to specifically ask
maternal relatives whether they have Native American ancestry is likely to shed
meaningful light on whether the minor is an Indian child. Indeed, mother’s consistent
denial of any Native American ancestry on her side and insistence that the minor is of
Filipino heritage on both sides makes such an inquiry even less likely to be fruitful. We
therefore conclude there is no showing of prejudice from the Agency’s failure to
interview extended family members in this case and any error was therefore harmless.
DISPOSITION
The orders of the juvenile court are affirmed.
KRAUSE , J.
We concur:
HULL , Acting P. J.
RENNER , J.
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