In re N.Y. CA2/6 ( 2023 )

Filed 6/21/23 In re N.Y. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
In re N.Y., a Person Coming 2d Juv. No. B322194
Under the Juvenile Court (Super. Ct. No. 22JV00197)
Law. (Santa Barbara County)
SANTA BARBARA COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Respondent,
v.
L.Y.,
Defendant and Appellant.
L.Y. (mother) appeals the juvenile court’s jurisdiction and
disposition findings and orders made pursuant to Welfare and
Institutions Code section 300, subdivisions (a) & (b).1 Mother’s
1 All further undesignated statutory references are to the
Welfare and Institutions Code.
sole contention on appeal is that the Santa Barbara County Child
Welfare Services (CWS) and the juvenile court did not comply
with the initial inquiry requirements pursuant to the Indian
Child Welfare Act of 1978 (ICWA) (25 U.S.C., § 1901 et seq.) and
related California law.2 We affirm.
Facts and Procedural History
In June 2022, CWS petitioned the juvenile court to detain
13-year-old N.Y. after mother took him out of Santa Barbara
Cottage Hospital against medical advice. Hospital staff alerted
authorities and mother was subsequently stopped by highway
patrol as she drove with N.Y. to Redding where maternal
grandmother lived.
The detention report indicated that mother met with a
CWS social worker and reported she did not have any Indian
ancestry. At the detention hearing, mother again denied having
any Indian ancestry when asked by the juvenile court.
In July 2022, at the initial contested jurisdiction and
disposition hearing, father denied having any Indian ancestry.
At CWS’s request, the juvenile court found there was no reason to
believe ICWA applies. No party objected to the juvenile court’s
ICWA finding. Mother subsequently completed an ICWA-020
form, “Parental Notification of Indian Status,” and declared,
under penalty of perjury, that none of the criteria indicating
Indian ancestry applied to her or N.Y.
The disposition report indicated that CWS was unable to
complete the family social study assessment with mother because
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same
for consistency, even though we recognize that other terms, such
as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In
re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin
M.).)
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she did not return the agency’s calls. The report also indicated
that CWS spoke with father about his family and discussed a
possible relative placement for N.Y. Father suggested paternal
aunt and provided CWS with her contact information.
In August 2022, following the contested jurisdiction and
disposition hearing, the juvenile court found the allegations of
the second amended petition to be true, declared N.Y. a
dependent of the juvenile court, and ordered reunification
services for mother. The juvenile court also found “there is no
reason to know that the child is an Indian child.”
Motion to Augment
In December 2022, CWS filed an uncontested motion to
augment the record on appeal to include evidence of an updated
ICWA matrix CWS filed in the juvenile court on December 16,
2022. We granted the motion. The augmented record reveals
that between September 2022 and December 2022, CWS
attempted to contact extended family members and a family
friend to inquire about N.Y.’s possible Indian ancestry. For
example, CWS attempted to reach paternal aunt by telephone on
two occasions and left voicemails with callback instructions.
Paternal aunt did not return CWS’s calls. The ICWA matrix also
reveals that CWS texted mother requesting contact information
for maternal grandmother and mother’s friend, Jennifer M., but
mother did not respond to CWS’s request.
Currently, there is a split of authority as to whether an
appellate court should consider additional evidence outside the
lower court record concerning a child services agency’s
investigatory efforts pursuant to ICWA. This issue is pending
review before our state Supreme Court. (In re Kenneth D. (2022)
82 Cal.App.5th 1027, review granted Nov. 30, 2022, S276649.)
We conclude that additional evidence may be considered in
certain circumstances, where as here, it will have the beneficial
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consequence of expediting the proceedings and promoting the
finality of the juvenile court’s orders and judgment. (See In re
Allison B. (2022) 79 Cal.App.5th 214, 219; In re E.L. (2022) 82
Cal.App.5th 597, 600, review granted Nov. 30, 2022, S276508; In
re Dezi C. (2022) 79 Cal.App.5th 769, 779, fn. 4 (Dezi C.), review
granted Sept. 21, 2022, S275578.)
ICWA Inquiry
Mother contends the juvenile court erred in finding ICWA
did not apply because the initial inquiry conducted by the
juvenile court and CWS was insufficient. We review claims of
inadequate inquiry into a child’s Indian ancestry for substantial
evidence. (§ 224.2, subd. (i)(2); In re Rebecca R. (2006) 143
Cal.App.4th 1426, 1430.)
ICWA defines an “‘Indian child’” as “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) & (8); § 224.1, subd. (a).) The juvenile court and
the county child welfare department have an affirmative and
continuing duty to inquire whether a child subject to dependency
proceedings is or may be an Indian child. (§ 224.2, subd. (a); Cal.
Rules of Court, rules 5.481(a) & 5.668(c).) The duty to inquire
begins with the initial contact and obligates the juvenile court
and the child services agency to ask the child, parents, extended
family members, and others who have an interest in the child,
whether the child is, or may be, an Indian child. (§ 224.2, subds.
(a)-(c); In re Antonio R. (2022) 76 Cal.App.5th 421, 429.)
Here, mother and father denied having any Indian
ancestry, and the juvenile court found there was no reason to
believe ICWA applied. However, the record does not reflect that
either the juvenile court or CWS asked any extended family
members whether N.Y. is, or may be, an Indian child.
4
The question becomes whether the error is harmless. (Cal.
Const., art. VI, §13; People v. Watson (1956) 46 Cal.2d 818, 836.)
Presently, appellate courts are divided regarding the
proper standard to apply in determining the prejudicial effect of
an agency’s failure to comply with its duty of initial inquiry.
Respondent contends the tests set forth in Benjamin M. and Dezi
C. “strike the appropriate balance” between cases that favor
automatic reversal and those that favor presumptive affirmance.
For example, respondent contends an agency’s failure to
conduct a proper initial inquiry is harmless if (1) there was no
readily obtainable information that was likely to bear
meaningfully on the issue of Indian ancestry (Benjamin M.,
supra, 70 Cal.App.5th 735), or (2) the record contains no
information suggesting a reason to believe the child may be an
Indian child (Dezi C., supra, 79 Cal.App.5th 769).
Here, as reflected in the augmented record on appeal, CWS
attempted to contact paternal aunt, and attempted to obtain
contact information for maternal grandmother and mother’s
friend, Jennifer M. But neither paternal aunt nor mother have
responded to CWS’s inquiry efforts. Given these facts, CWS’s
failure to comply with its duty of initial inquiry does not
constitute prejudicial error.
The law requires a child services agency to make a
“meaningful effort” to locate and interview extended family
members or other relevant, involved individuals. It is not
required to cast about for information or pursue unproductive
investigative leads, particularly when a potential source of
information is unavailable or unresponsive. (See In re K.R.
(2018) 20 Cal.App.5th 701, 709; In re Levi U. (2000) 78
Cal.App.4th 191, 199.)
Moreover, it is unlikely that paternal aunt, maternal
grandmother, or mother’s friend would have information that
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would bear meaningfully on the issue of N.Y.’s possible Indian
ancestry, even if CWS had asked them. First, the record reflects
mother and father were in contact with extended family members
and could have asked about possible Indian ancestry at any time.
(See In re Y.M. (2022) 82 Cal.App.5th 901, 917.) Second, there is
no evidence that either parent was adopted or estranged from
their biological family such that their “self-reporting of ‘no
[Indian] heritage’ may not be fully informed . . . .” (Dezi C.,
supra, 79 Cal.App.5th at p. 779, citing In re A.C. (2022) 75
Cal.App.5th 1009, 1015-1017.)
Because error on the part of the juvenile court is never
presumed, we will not “set aside” the juvenile court’s judgment
unless it “has resulted in a miscarriage of justice.” (Cal. Const.,
art. VI, § 13; Benjamin M., supra, 70 Cal.App.5th at p. 742.)
Here, it has not.
We conclude remand is not warranted because there is no
evidence that N.Y. is an Indian child or that remand for further
inquiry would lead to a different ICWA finding.
Disposition
The judgment (jurisdiction and disposition findings and
orders) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Gustavo E. Lavayen, Judge
Superior Court County of Santa Barbara
______________________________
Brian Bitker, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rachel Van Mullem, County Counsel, Jennifer J. Lee,
Deputy County Counsel, for Plaintiff and Respondent.