In re A.G. CA2/2 ( 2023 )

Filed 8/25/23 In re A.G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.G., a Person Coming B322642, B326519
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
19CCJP07342B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.B.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Tiana J. Murillo, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Senior Deputy County
Counsel, for Plaintiff and Respondent.
______________________________________________
Alleged father M.B. (Father) appeals orders (1) denying his
request to place his child A.G. with a relative and (2) terminating
parental rights. (Welf. & Inst. Code, §§ 361.3, 366.26.)1 His
appellate brief solely addresses the Indian Child Welfare Act of
1978 (ICWA). (25 U.S.C.S. § 1901 et seq.; Welf. & Inst. Code,
§ 224 et seq.) He argues that no one asked extended family
members if A.G. is Indian. (§ 224.2, subd. (b).)
Substantial evidence supports the court’s finding that
ICWA does not apply. Father denied Indian heritage during the
proceeding and does not assert Indian heritage now. Maternal
grandmother L.G. (MGM) also denied Indian heritage. Because
there is no reason to believe A.G. is an Indian child, any failure to
inquire of extended family members was harmless. We affirm.
FACTS AND PROCDURAL HISTORY
Soon after A.G. was born in 2019, her mother J.G. (Mother)
died. A.G. lived with MGM, her temporary legal guardian.
Father was incarcerated. He was not married to Mother or
named on A.G.’s birth certificate; paternity was uncertain.
Respondent Los Angeles County Department of Children
and Family Services (DCFS) removed A.G. from MGM in 2019. A
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
petition alleging that MGM’s home is unsafe and Father made no
plan for A.G.’s care was dismissed without prejudice in February
2020. A.G. returned to MGM, who was repeatedly investigated
for abuse and neglect of her children from 1998 to 2011.
After the first petition was dismissed, DCFS received a
report that MGM sold drugs at her home and associated with a
street gang. MGM denied drug use or current gang involvement
but tested positive for marijuana and cocaine. A.G. was removed
from MGM in March 2020 and placed in foster care with L.C.
A.G. became very attached to L.C. and was anxious if the
caregiver was not in view and holding her.
DCFS filed a dependency petition. As amended, it alleged
that MGM’s cocaine use endangers A.G., who requires constant
care and supervision; Father is incarcerated and made no plan
for A.G.’s care; and A.G. has no parent to provide supervision,
care, and the necessities of life.
Father’s lengthy criminal history began in 2008, when he
was a juvenile. He was convicted of burglary in 2019 and is
eligible for parole in 2023. He is a registered street gang
participant.
Father suggested that A.G. could reside with paternal aunt
E.W. (PA), or with the mother of one of his other children. MGM
accused PA and Father of beating up Mother and causing her
death. Father did not offer any responses to the petition. DCFS
sought to bypass reunification services for him.
MGM missed seven consecutive drug and alcohol tests in
April and May 2020. At meetings with social workers, she was
aggressive, yelled and made threats. The probate court denied
MGM’s petition for legal guardianship in July 2020 because A.G.
is in foster care.
3
Mother’s death certificate lists her race as “Black, Russian,
Jewish.” In February 2020, MGM signed a form denying Indian
heritage. She said she is “Russian Jewish and her normal food
consumption includes poppy seeds” that “ ‘can trigger for me to
test positive for cocaine.’ ”2 MGM clarified, “ ‘My great
grandmother was a Russian Jew. My great grandfather was
Spanish and Italian and English.’ ” MGM said, “ ‘My mom was a
little white woman and she held her ground with my dad (he was
a Black man).’ ”
After the court ordered his transport from prison for the
jurisdiction hearing, Father waived his right to appear in person
and did not request a telephonic appearance. He did not respond
to efforts to reach him, including letters from counsel seeking to
represent him.
On September 28, 2020, the court found that Father is an
alleged parent, and no reason to know that A.G. is an Indian
child. It did not order notice to any tribe but ordered Father to
advise his attorney, DCFS, and the court of any new information
relating to possible ICWA status. It sustained allegations that
A.G. has no parent to care for her because Mother is deceased
and Father is incarcerated. It declared A.G. a dependent of the
court. The court did not grant reunification services. It set a
permanent plan hearing.
In December 2020, DCFS reported that A.G. needs a
caregiver who can meet her developmental needs. MGM has
unresolved substance abuse issues and a chaotic home; she is
unable to rectify the situation because she denies it exists and
2 MGM also blamed her positive cocaine result on sesame
seeds, cough syrup, ice cream, and fruit. She attributed her
positive marijuana result to a holiday dinner cooked by a relative.
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has not completed parenting, anger management, or drug testing
programs, or counseling. MGM has a history of DCFS referrals
involving her children; Father has a dependency history with his
son. DCFS sent paperwork to PA but she did not seek to have
her home approved for a child or undergo a live-scan. A.G.’s
caregiver L.C. is an assistant school principal who has been
approved for adoption.
DCFS reported that A.G. dislikes virtual visits with MGM,
screaming and running from the phone. Father has no parental
role in A.G.’s life but wants reunification services when he is
released from prison. The court ordered DCFS to assess the
home of Father’s sibling, T.J. T.J. later withdrew her request for
consideration.
A.G. is developing appropriately in a nurturing home and is
closely bonded with L.C. In May 2021, the court named L.C. as
de facto parent. The following month, Father’s fiancée sought to
become A.G.’s guardian. The court summarily denied her
petition because it does not show new evidence or a change in
circumstances.
In July 2021, a court-ordered paternity test showed a 99.99
percent probability that Father is A.G.’s biological parent. After
being declared A.G.’s biological father, Father submitted a
Parental Notification of Indian Status denying tribe membership
or eligibility for membership; he denied that A.G. is a tribe
member, or that his parents, grandparents, or other ancestors are
Indians.
In September 2021, Father moved to vacate all orders
because he lacked counsel at the jurisdiction hearing. DCFS and
A.G. opposed the request, arguing that nothing would change
because Father is not entitled to custody, visitation, or
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reunification services; he is a stranger to A.G. The court decided
to readjudicate the petition. The paternal grandmother (PGM)
and MGM attended the hearing but the court did not ask if they
are Indian.
In a new jurisdiction report, DCFS wrote that Father
wishes to have custody of A.G. after he is paroled in 2023, with
assistance from a former partner. The former partner was
“shocked” to hear of this; she has an eight-year-old child with
Father, who seldom speaks to her. MGM accused Father of
arranging for Mother to be beaten and robbed, leading to her
death. PGM has a criminal and dependency history; Father was
raised by his aunt.
The petition was readjudicated on February 7, 2022. The
court denied Father presumed parent status and sustained
allegations that A.G. has no parent to provide care, supervision,
and the necessities of life. It bypassed reunification services due
to the length of his incarceration, lack of relationship with A.G.,
and status as an alleged father. DCFS was ordered to investigate
placements with MGM, PA, and other proposed relatives. The
court set a permanent plan hearing.
PA denied a criminal or dependency history; she lives in
Oklahoma. She has one juvenile arrest for battery. She and
PGM never visited A.G. because they only recently learned that
A.G. is a blood relative. PA “is unable to adopt but she is willing
to pursue legal guardianship” of A.G. PA “only wants to be the
caregiver until [Father] is released from jail,” when A.G. would
be handed over to him. The court authorized monitored visits for
PA.
De facto parent L.C., now a school principal, told DCFS
that A.G. has been with her for over two years, is part of her
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family, and refers to her as “mommy.” PA had one in-person visit
with A.G. and four virtual visits. A.G. greets PA during virtual
visits then goes off to play. DCFS asked the court to terminate
parental rights and free A.G. for adoption. Father has no
parental role or attachment with A.G.
At a hearing on June 14, 2022, Father asked for A.G. to be
placed with PA. He reached out to his relatives when he found
out that he is A.G.’s biological parent and gave their names to
DCFS in February 2022. However, he has known about A.G.
since DCFS contacted him in 2020 and made no effort to propose
relatives for placement for two years. PA saw A.G. once in
person, and six times virtually; she intends to give the child to
Father, which is not a secure placement. PA knew about A.G. in
2019 and did not step forward until 2022.
The court found that A.G., age three, has lived with her de
facto parent nearly all her life. Changing her placement is not in
her best interest. L.C. provides permanence, stability, and for all
of A.G.’s needs. Father appealed the order declining custody to
his relatives.
DCFS reported that A.G. requested termination of parental
rights and adoption. Father appeared for the permanent plan
hearing on January 17, 2023. He asked the court to continue the
case until he is released from prison. A.G. has never met Father
and does not know he exists. The court found A.G. is adoptable
and no exception to adoption applies. It terminated parental
rights and identified L.C. as the prospective adoptive parent.
Father appealed.3
3 Father’s appeals were consolidated.
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DISCUSSION
We review ICWA findings for substantial evidence. (In re
Dezi C. (2022) 79 Cal.App.5th 769, 777, review granted Sept. 21,
2022, S275578 (Dezi).) If the record shows a deficient inquiry
into Indian heritage, we determine whether this invalidates
findings that ICWA does not apply. (Ibid.) We conclude here
that even if DCFS did not interview PGM or PA about possible
Indian ancestry, any error is harmless. Father’s claim that “no
inquiry was made” of MGM is refuted by the record.
An Indian child “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.S.
§ 1903(4); Welf. & Inst. Code, § 224.1, subd. (a).) “Being an
‘Indian child’ is thus not necessarily determined by the child’s
race, ancestry, or ‘blood quantum,’ but depends rather ‘on the
child’s political affiliation with a federally recognized Indian
Tribe.’ ” (In re Austin J. (2020) 47 Cal.App.5th 870, 882; Dezi,
supra, 79 Cal.App.5th at p. 780, fn. 6, rev.gr.)
ICWA sets standards to follow if an Indian child is removed
from parental custody. (In re Austin J., supra, 47 Cal.App.5th at
pp. 881–882.) From “initial contact” with a family, DCFS and the
court have “an affirmative and continuing duty to inquire”
whether a child “is or may be an Indian child.” (§ 224.2, subd.
(a).) This means “asking the child, parents, legal guardian,
Indian custodian, extended family members, [and] others who
have an interest in the child . . . whether the child is, or may be,
an Indian child.” (Id., subd. (b).) At initial appearances, the
court must ask if a participant knows whether the child is Indian.
(Id., subd. (c).) Additional inquiry and notice to tribes is required
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if there is “reason to believe” or “reason to know” that the child is
Indian. (Id., subds. (d), (e) & (f).)
Father does not claim membership in a federally recognized
tribe or assert that A.G. is eligible for membership as the child of
a member of an Indian tribe. (25 U.S.C.S. § 1903(4).) His ICWA
form denied Indian ancestry. He was raised by and is still in
touch with his mother and aunt. There is no reason to believe he
does not know his own ancestry. (See In re Ezequiel G. (2022) 81
Cal.App.5th 984, 1015 [if parents are in contact with extended
family members, “the possibility that they might unknowingly be
members of a tribe appears trivially small”].)
MGM identified her mother as White (Russian Jewish,
Spanish, Italian and English) and her father as Black. MGM
wanted custody of A.G. and was motivated to disclose Indian
ancestry, if it existed. (In re S.S. (2022) 75 Cal.App.5th 575, 582
[a grandmother seeking custody has “a strong incentive to bring
to the court’s attention any facts” showing that the child is
Indian].) MGM detailed her ancestry and told DCFS she is not
Indian. Further questioning was unnecessary.
DCFS spoke to PA but apparently did not inquire about
Indian ancestry. Nor did the court question PA when she
appeared at a hearing. Extended family members include aunts
and uncles. (25 U.S.C.S. § 1903(2); Welf. & Inst. Code, § 224.1,
subd. (c).) Father argues that this lapse mandates reversal. Like
MGM, PA sought custody of A.G. and had a strong incentive to
disclose Indian heritage to the court.
Some courts have held that failure to question extended
family members requires automatic reversal “no matter how
‘slim’ the odds are that further inquiry on remand might lead to a
different ICWA finding by the juvenile court.” (Dezi, supra, 79
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Cal.App.5th at p. 777, rev.gr.) We do not follow the automatic
reversal rule. (Id. at pp. 782–785.)
“In our view, an 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 record of proceedings in
the juvenile court and any proffer the appealing parent makes on
appeal.” (Dezi, supra, 79 Cal.App.5th at p. 779, fn. omitted,
rev.gr.)
There is no reason to believe A.G. is an Indian child.
Father denies Indian heritage. Unlike the parent in In re Y.W.
(2021) 70 Cal.App.5th 542, 548, who was adopted at age two and
lacked information about her biological family, there is no similar
concern for Father. He points to nothing in the record indicating
Indian heritage nor does he make a proffer on appeal of such
heritage. (Dezi, supra, 79 Cal.App.5th at p. 786, rev.gr.)
A judgment cannot be set aside unless it has resulted in a
miscarriage of justice, meaning “it is reasonably probable that a
result more favorable to the appealing party would have been
reached in the absence of the error.” (People v. Watson (1956) 46
Cal.2d 818, 836; Dezi, supra, 79 Cal.App.5th at p. 779, rev.gr.;
Cal. Const., art. VI, § 13.)
Father has not shown a miscarriage of justice. He denied
Indian heritage to DCFS, and never said anything to the contrary
to the court. Because Father denied Indian ancestry, there is no
reason to believe his sister PA is Indian. Father’s attorney did
not object to the adequacy of the ICWA inquiry, or to the court’s
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ICWA findings, or suggest that Father has Indian ancestry. (In
re Ezequiel G., supra, 81 Cal.App.5th at p. 1013.)
Courts discourage “game playing by parents who hold back
any objection to the adequacy of the [ICWA] inquiry until an
appeal of the termination of their parental rights in hopes of
delaying the finality of the termination.” (Dezi, supra, 79
Cal.App.5th at p. 781, rev.gr.) Father’s unsupported assertion of
ICWA error is a fruitless effort to delay, without a showing that
interviews with PA or other relatives would disclose Indian
ancestry. (See In re Darian R. (2022) 75 Cal.App.5th 502, 510.)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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