In re A.R. CA2/2 ( 2024 )

Filed 5/16/24 In re A.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re A.R. et al., Persons B331352
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
18CCJP01916B-C)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
C.F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Philip L. Soto, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and David Michael Miller, Senior
Deputy County Counsel, for Plaintiff and Respondent.
__________________________________________
In this juvenile dependency appeal, C.F. (father) appeals
the juvenile court’s orders terminating his parental rights to his
two young sons (sons). Father makes two arguments on appeal.
First, he claims the juvenile court erred when it refused to apply
the beneficial parental relationship exception to termination of
parental rights. Second, father argues the juvenile court and the
Los Angeles County Department of Children and Family Services
(Department) failed to comply with the Indian Child Welfare Act
of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California
law. Father seeks a reversal of the termination of his parental
rights.
We find no reversible error and, therefore, affirm.
BACKGROUND
1. The Family
Sons’ mother, A.R. (mother), and father had a contentious
relationship that included domestic violence. Father had been
convicted twice for physical violence against mother. The parents
consistently violated protective orders. The older son was born
during a prior dependency proceeding (involving a half sibling)
and the younger son was conceived while a restraining order was
in effect protecting mother from father. During the underlying
proceedings here, mother and father again violated court orders
2
by continuing their relationship, resulting in mother becoming
pregnant and giving birth to twin boys (twins).1
Mother has an older daughter, who is sons’ half sibling
(half sister). When mother was pregnant with older son, half
sister was the subject of a separate dependency case. In that
case, the juvenile court sustained, among other things,
allegations that mother and father engaged in physical
altercations in the presence of half sister, and mother and father
failed to abide by a criminal protective order. At the conclusion of
that case, half sister’s father received sole physical custody of half
sister.
Mother’s own mother (maternal grandmother) suffered
from substance abuse, which resulted in mother’s placement in
foster care for two years when she was younger. Mother said her
relationship with maternal grandmother had improved. Mother’s
father was killed when she was a child. Mother has five siblings,
with whom she keeps in touch. For a portion of the underlying
proceedings, sons were placed with one of mother’s sisters
(maternal aunt), with whom the Department often
communicated. Additionally, mother stated one of her brothers
(maternal uncle) is part of her support system.
Father lived primarily with his parents (paternal
grandfather and paternal grandmother), some siblings, including
his twin brother, and other relatives. Department social workers
spoke with father’s brother at least once and with both paternal
grandfather and paternal grandmother throughout the
proceedings below.
1 The twins are not involved in this appeal.
3
2. Petition and Supplemental Petition
In November 2020, father physically abused mother, which
resulted in father’s arrest and ultimate conviction for spousal
abuse, the issuance of a three-year criminal protective order, and
the removal of sons from father.
In January 2021, the Department filed a Welfare and
Institutions Code section 300 petition on behalf of sons
(petition).2 At the time the petition was filed, older son was two
years old and younger son was eight months old. The juvenile
court sustained allegations regarding father’s domestic violence
against mother, mother’s failure to protect sons, mother’s
previous inappropriate discipline of half sister, and father’s
substance abuse. The court declared sons dependents of the court
under subdivisions (a), (b), and (j) of section 300. The court
ordered family reunification services for both parents and
granted monitored visitation for father. The court ordered father,
among other things, to participate in a domestic violence
program, individual counseling, and drug testing, and to obey
protective orders. Sons were removed from father’s custody and
care and placed with mother under Department supervision.
In early August 2021, seven months after the petition had
been filed, the Department reported it had been unable to locate
father. Father had not participated in any court-ordered services
and had no monitored visits with sons. At the same time, the
Department reported mother had completed her court-ordered
programs. The Department recommended terminating
2 Undesignated statutory references are to the Welfare and
Institutions Code.
4
jurisdiction and granting mother sole physical and legal custody
of sons.
However, soon after, in mid-August 2021, the Department
filed a supplemental petition alleging mother had violated the
active criminal protective order as well as juvenile court orders
(supplemental petition). Specifically, the supplemental petition
alleged mother had been in contact with father and had allowed
him unlimited and unmonitored contact with sons. The
Department reported mother had not been honest about her
contact with father or knowledge of his whereabouts. In addition,
mother was pregnant with father’s twins. Mother and father had
violated court orders and the criminal protective order. Sons
were removed from mother and placed in foster care and then
with maternal aunt.
Also in mid-August, father finally met with Department
social workers. He apologized that he “ ‘went MIA’ ” and
indicated he wanted “ ‘to get back on track.’ ” He admitted he
violated the criminal protective order. Father had enrolled in
and completed several domestic violence group workshops.
Father began drug testing and enrolled in a parenting program.
Father also began monitored visits with the children, which went
well. Paternal grandfather monitored the visits. By October
2021, father had signed up for individual counseling.
In mid-October 2021, the juvenile court sustained the
supplemental petition and ordered family reunification services
for mother and father, including monitored visitation. The
children remained placed with maternal aunt.
5
3. Reunification Period
a. Mother and Twins
In December 2021, the twins were born and declared
dependents of the court. In January 2022, they were placed with
maternal aunt, who at the time continued to care for sons as well
as her own two young children.
In February 2022, the Department allowed mother to have
unmonitored visits with all four of her children. The next month
during one of her unmonitored visits, mother allowed father to
visit with the children. In August 2022, mother had a violent
outburst at father’s home, which resulted in mother’s arrest.
Mother’s visits returned to monitored.
b. Sons
In early April 2022, the Department reported sons were
bonded with maternal aunt and were doing well in her care,
although they displayed some aggressive behaviors. Later that
same month, however, two maternal uncles attacked father,
paternal grandfather, and a paternal uncle as they were
returning all four children to maternal aunt’s home after a visit.
As a result, father and the paternal uncle were hospitalized.
Maternal aunt requested sons and twins be placed in a different
home.
In late September 2022, after moving through a few
different placements, sons were placed with non-relative
caregivers Ms. K and Mr. M (caregivers). Sons remained with
caregivers for the remainder of the proceedings. Sons bonded
with the caregivers and became affectionate and comfortable with
them. Under caregivers’ care, the children made great strides in
their emotional and social development. The caregivers provided
professional care for older son’s diagnosed PTSD and younger
6
son’s speech delay. Caregivers are the children’s prospective
adoptive parents. Father and mother both indicated they wanted
to reunify with the children, but also liked the caregivers and
were open to them adopting sons.
c. Father
Despite his progress in many areas and willingness to
learn, father continued to struggle. In late March 2022, father
tested positive for cocaine. Soon after, father enrolled in a
substance abuse program, but five months later he was
terminated by the program. By July 2022, father also was in
danger of being terminated from his domestic violence program
because he missed many sessions. The facilitator of that program
noted father had become less engaged, which was unusual for
him. Father admitted (although later recanted) he visited his
children while they were with mother, which violated court
orders, and sometimes was with mother instead of visiting the
children as scheduled. In September 2022, mother and father
had another physical altercation, during which mother sustained
a cut to her lip. By October 2022, father had moved out of
paternal grandparents’ home because he “was ‘causing too much
problems to family.’ ” Father stated he was unemployed and
“ ‘surf couching.’ ” By February 2023, however, father was
employed full-time.
d. Visits
In early 2022, when sons still were placed with maternal
aunt, the Department reported father had been visiting sons
consistently and had completed or almost completed his court-
ordered services. A Department social worker noted father and
sons had “a strong attachment” and father “demonstrates having
a positive emotional bond to his children.”
7
In March 2022, however, maternal aunt reported father no
longer was consistent with his visits and was not communicating
with her as well as he previously had. In October 2022, the
Department similarly reported father’s visits were inconsistent.
In early 2023, caregivers reported father’s visits with the
children went well. After visits with mother and father, however,
the children regressed to problematic behaviors such as hitting
and screaming.
4. Termination of Parental Rights
By February 2023, the Department recommended
terminating reunification services. Although the Department
believed father “loves his children” and “has good intentions of
reunifying with his children and providing for them,” the
Department also noted father “has continued to only have
monitored visits [throughout] the life of this case with very slow
progress due to past substance use, going to classes and not
completing them, and continued violent engagement with the
mother.” According to the Department, father had gained
“minimal insight” into “his current situation.”
In April 2023, the juvenile court terminated reunification
services for mother and father and set the matter for a
permanency planning hearing. In June 2023, the juvenile court
granted caregivers’ request for de facto parent status.
Prior to the permanency planning hearing, the Department
reported sons continued to do well and progress socially,
emotionally, and intellectually with caregivers’ support and
attention. The Department stated sons had “a strong emotional
attachment to [caregivers] in that they seek them for comfort and
affection, and are easily soothed by them.”
8
During the months leading up to the permanency planning
hearing, father visited sons consistently, missed “a handful of
times,” and often arrived late. Paternal grandfather continued to
monitor father’s visits. Paternal grandfather reported father was
appropriate and attentive with sons, fed them, played with them,
and changed the younger son’s diaper. Paternal grandfather said
sons listened to father, behaved well during visits, and “love to
spend time with their father.” According to the Department,
father engaged sons, spoke appropriately with them, and sons
enjoyed their visits with father. The Department described “a
positive emotional bond” between father and sons, noting sons
“seek” father, “smile when they see him and respond with
excitement when they expect to visit him.”
Nonetheless, it was apparent sons regressed after visits.
Caregivers and sons’ teachers reported sons were agitated and
angry after visits with father. Sons’ therapist also noticed a
change in their behavior after visits with father. The
Department noted, after visits with father, the older son’s
“hitting behavior toward his brother increases,” he “has difficulty
readjusting to the routine of the [caregivers’] home,” and “he has
a lower frustration tolerance at school after the visits.”
Caregivers also reported visits “destabilize[d] [older son’s] mood”
and caused “reduction in age-appropriate behavior” for younger
son, all of which had been witnessed by teachers, social workers,
and others. Caregivers described an instance when the day after
a visit with father, younger son had an hours-long “meltdown”
over juice. Caregivers did not know why sons regressed after
visits, saying father “talks to [the] children appropriately and
appears engaging.”
9
It was also reported father was not particularly concerned
with sons’ medical or developmental needs or appointments. For
example, after younger son injured himself, requiring an
emergency room visit, father did not inquire how younger son
was doing. And when older son required dental treatment under
sedation, father failed to attend the appointment as agreed to
provide consent. After the procedure, father did not inquire as to
older son’s well-being. Caregivers also expressed concern that,
despite being advised against giving sons junk food, father
continued to provide sons with “juice, soda, and junk food during
their monitored visits with him.” Notably, father had received
six letters from different pediatricians advising that the older son
was not to have sugar. Similarly, although father had been
asked not to bring balloons during visits because they were “a
trigger” for the older son, father brought balloons for the younger
son’s birthday. Caregivers noted father (and paternal
grandfather) would laugh when sons fought instead of
intervening. Caregivers believed sons saw father “more as a
friend, than a father figure” and had a “brother type relationship”
with father.
The Department recommended adoption as sons’
permanent plan. Caregivers wanted to adopt sons and provide
them with a “loving, nurturing and stable home environment.”
After almost one year with caregivers, sons looked to caregivers
“for comfort in the form of hugs and reassurance they are okay”
and were “comfortable in their presence.” The Department
concluded father did “not have a bond with the children . . . that
would be a barrier to . . . adoption.”
The permanency planning hearing was held on August 15,
2023. Counsel for father urged application of the beneficial
10
parental relationship exception to adoption. Counsel argued sons
“would be affected negatively by losing [their] parental
relationship [with father],” which counsel described as a
“significant, positive emotional attachment.” Counsel believed “it
would create a hole in [sons’] lives to not have the father be a part
of their lives.” On the other hand, counsel for the Department
argued the court should terminate parental rights. The
Department’s counsel stated, “Father does not function in a
parental role. At best, he’s like an extended family member,
maybe an uncle or a cousin who is around on occasion.”
Similarly, counsel for caregivers urged the court to terminate
parental rights, arguing, “Father has not acted as a parental
figure in the children’s life.”
After hearing argument, the juvenile court found sons were
adoptable and no exception to adoption applied. The court
determined sons’ lives “would look no different” if the parental
relationship were terminated. The court stated, “[A]s much as
[father] believes he’s doing something that’s parental, he’s . . .
like a good uncle or adult cousin or extended family member
maybe.” The court noted caregivers had been granted de facto
parent status, had been parenting sons on a daily basis, and had
been “the parents that these two children need.” Accordingly, the
juvenile court terminated mother’s and father’s parental rights to
sons.
5. Facts Relevant to ICWA
In connection with filing the petition, a Department social
worker reported mother gave the social worker “no reason to
believe” sons were Indian children. In its detention report for the
court, the Department stated, “[M]other denied having Indian
11
Ancestry.” Mother also filed a form ICWA-020, indicating sons
were not Indian children for purposes of ICWA.
At the detention hearing, the juvenile court found it had no
reason to know sons were Indian Children for purposes of ICWA.
Nonetheless, the court ordered parents to keep the attorneys and
the court apprised of any new ICWA-related information.
In August 2021, father filed an ICWA-020 form, indicating
sons were not Indian children for purposes of ICWA. That same
month, the juvenile court stated, “ICWA does not apply to this
case,” and, “This is not an ICWA case.”
In October 2021, both mother and father stated they were
born in Los Angeles and denied having Indian ancestry.
In April 2023, father told a Department social worker he
did not have Indian ancestry. At the April 2023 hearing during
which the juvenile court terminated the parents’ reunification
services, the court asked mother and father if they had American
Indian heritage and if they knew of relatives who might know of
such heritage. Mother and father replied no to both questions.
At that hearing, the court held the case was not an ICWA case.
In July 2023, paternal grandparents denied Indian
ancestry and father again denied Indian ancestry.
The Department did not ask any maternal relatives
whether sons might be Indian children for purposes of ICWA.
6. Appeal
Father appealed the juvenile court’s August 15, 2023,
orders.
12
DISCUSSION
1. Termination of Parental Rights
a. Applicable Law
At the permanency planning hearing, the juvenile court
may terminate parental rights only upon finding the child is
likely to be adopted and no statutory exception to adoption
applies. (§ 366.26, subds. (b) & (c)(1).) Here, it is undisputed
sons were likely to be adopted. Thus, our focus is whether a
statutory exception to adoption and the termination of parental
rights applies.
The exception father raises is the beneficial parental
relationship exception. This exception is set forth in section
366.26, subdivision (c)(1)(B)(i), which provides: “[T]he court shall
terminate parental rights unless . . . [¶] . . . [¶] (B) The court
finds a compelling reason for determining that termination would
be detrimental to the child due to one or more of the following
circumstances: [¶] (i) The parents have maintained regular
visitation and contact with the child and the child would benefit
from continuing the relationship.”
To establish this exception, the parent must prove the
following three elements: “(1) regular visitation and contact, and
(2) a relationship, the continuation of which would benefit the
child such that (3) the termination of parental rights would be
detrimental to the child.” (In re Caden C. (2021) 11 Cal.5th 614,
631 (Caden C.).) “[I]n assessing whether termination would be
detrimental, the trial court must decide whether the harm from
severing the child’s relationship with the parent outweighs the
benefit to the child of placement in a new adoptive home.
[Citation.] By making this decision, the trial court determines
whether terminating parental rights serves the child’s best
13
interests.” (Id. at p. 632.) “ ‘If severing the natural parent/child
relationship would deprive the child of a substantial, positive
emotional attachment such that,’ even considering the benefits of
a new adoptive home, termination would ‘harm[ ]’ the child, the
court should not terminate parental rights.” (Id. at p. 633.) The
“ ‘statutory exceptions merely permit the court, in exceptional
circumstances [citation], to choose an option other than the norm,
which remains adoption.’ ” (Id. at p. 631.)
b. Standard of Review
When reviewing an order terminating parental rights and
rejecting application of the beneficial parental relationship
exception, we apply a hybrid standard of review. On the one
hand, “[a] substantial evidence standard of review applies to the
first two elements [of the exception]. The determination that the
parent has visited and maintained contact with the child
‘consistently,’ taking into account ‘the extent permitted by the
court’s orders’ [citation] is essentially a factual determination.
It’s likewise essentially a factual determination whether the
relationship is such that the child would benefit from continuing
it.” (Caden C., supra, 11 Cal.5th at pp. 639–640.)
On the other hand, the juvenile court’s determination on
the third element is reviewed for an abuse of discretion. As to the
third element, the juvenile court “makes the assessment by
weighing the harm of losing the [parent-child] relationship
against the benefits of placement in a new, adoptive home. And
so, the ultimate decision—whether termination of parental rights
would be detrimental to the child due to the child’s relationship
with his parent—is discretionary and properly reviewed for abuse
of discretion.” (Caden C., supra, 11 Cal.5th at p. 640.)
14
“In reviewing factual determinations for substantial
evidence, a reviewing court should ‘not reweigh the evidence,
evaluate the credibility of witnesses, or resolve evidentiary
conflicts.’ [Citation.] The determinations should ‘be upheld if . . .
supported by substantial evidence, even though substantial
evidence to the contrary also exists and the trial court might have
reached a different result had it believed other evidence.’ ”
(Caden C., supra, 11 Cal.5th at p. 640.) “Review for abuse of
discretion is subtly different, focused not primarily on the
evidence but the application of a legal standard. A court abuses
its discretion only when ‘ “ ‘the trial court has exceeded the limits
of legal discretion by making an arbitrary, capricious, or patently
absurd determination.’ ” ’ [Citation.] But ‘ “ ‘[w]hen two or more
inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.’ ” ’ ” (Id. at p. 641.)
“At its core,” this hybrid standard of review “embodies the
principle that ‘[t]he statutory scheme does not authorize a
reviewing court to substitute its own judgment as to what is in
the child’s best interests for the trial court’s determination in
that regard, reached pursuant to the statutory scheme’s
comprehensive and controlling provisions.’ ” (Caden C., supra, 11
Cal.5th at p. 641.)
c. No Error
Father argues the juvenile court erred when it failed to
apply the beneficial parental relationship exception to adoption.
Father claims the court should have ordered a legal guardianship
instead so that sons could continue their relationship with him.
Father asserts he satisfied all three elements of the beneficial
parental relationship exception. We assume father satisfied the
15
first element (regular visitation and contact with sons) and the
second element (a relationship with sons, the continuation of
which would benefit them). We conclude, however, the juvenile
court did not abuse its discretion in determining father failed to
establish the third element.
As noted above, the third element requires the juvenile
court to “decide whether it would be harmful to the child to sever
the [parental] relationship and choose adoption.” (Caden C.,
supra, 11 Cal.5th at p. 633.) The court must determine “how the
child would be affected by losing the parental relationship—in
effect, what life would be like for the child in an adoptive home
without the parent in the child’s life.” (Ibid.) Although the loss
of a parental relationship, including the one in this case, may
certainly cause detriment to a child, the question for the juvenile
court is whether the countervailing positives the child gains in a
permanent, stable home outweigh any such detriment. (Ibid.)
“When the relationship with a parent is so important to the child
that the security and stability of a new home wouldn’t outweigh
its loss, termination would be ‘detrimental to the child due to’ the
child’s beneficial relationship with a parent.” (Id. at pp. 633–
634.)
Here, it was not an abuse of discretion to determine
adoption by caregivers outweighed any detriment sons might
experience by losing their relationship with father. Although it is
clear sons enjoyed their time with father and the Department
described a “strong attachment” and a “positive emotional bond”
between father and sons, it was reasonable to conclude
maintaining this relationship did not outweigh the “ ‘the security
and the sense of belonging a new family would confer.’ ” (Caden
C., supra, 11 Cal.5th at p. 633.) Father has not occupied a
16
parental role in sons’ lives for years. For most of their young
lives, sons have not lived with father and their visits with him all
have been monitored.3 Moreover, father did not attend or ask
about many of sons’ medical appointments and procedures, or
educational meetings and developments. On the other hand, for
one of the first times in sons’ very short lives, caregivers created
a stable and secure home for them. It is undisputed sons were
happy, comfortable, and thriving with caregivers. Sons were
making strides in all aspects of their lives.
Contrary to father’s suggestion, the decision to terminate
parental rights (and not apply the beneficial parental exception)
was not based on an improper comparison of parenting styles.
(Caden C., supra, 11 Cal.5th at p. 634.) Rather, it was based both
on the factual record, which reveals concrete benefits sons
realized through a stable home environment, as well as the legal
requirement that, at this stage of dependency proceedings, the
paramount concern is the child’s best interests. (Id. at p. 633; In
re Stephanie M. (1994) 7 Cal.4th 295, 317 [noting, after
reunification services are terminated, “ ‘the focus shifts to the
needs of the child for permanency and stability’ ”].) The juvenile
court did not abuse its discretion when it refused to apply the
beneficial parental relationship exception here.
2. ICWA
a. Applicable Law
ICWA establishes minimum standards courts must follow
before removing an Indian child from his or her family. Under
California law implementing ICWA, the juvenile court and the
3 This does not include the unauthorized visits mother
allowed father to have with sons.
17
Department “have an affirmative and continuing duty to inquire
whether” a dependent child “is or may be an Indian child.”
(§ 224.2, subd. (a); In re Austin J. (2020) 47 Cal.App.5th 870, 883,
superseded by statute on other grounds as stated in In re E.C.
(2022) 85 Cal.App.5th 123, 147.) For these purposes, an “Indian
child” is a child who (1) is “a member of an Indian tribe,” or (2) “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); Welf.
& Inst. Code, § 224.1, subd. (a) [adopting federal law definition].)
Under ICWA as implemented in California, “the
Department and juvenile court have ‘three distinct duties.’
[Citations.] The first duty is the initial ‘duty’ of the Department
and the juvenile court ‘to inquire whether [a] child is an Indian
child.’ (§ 224.2, subds. (a) & (b).) The Department discharges
this duty chiefly by ‘asking’ family members ‘whether the child is,
or may be, an Indian child.’ (Id., subd. (b).) This includes
inquiring of not only the child’s parents, but also others,
including but not limited to, ‘extended family members.’ (Ibid.)”
(In re Dezi C. (2022) 79 Cal.App.5th 769, 780, review granted
Sept. 21, 2022, S275578 (Dezi C.).) “Extended family members”
include the dependent child’s adult “grandparent, aunt or uncle,
brother or sister, brother-in-law or sister-in-law, niece or nephew,
first or second cousin, or stepparent.” (25 U.S.C. § 1903(2); Welf.
& Inst. Code, § 224.1, subd. (c) [adopting federal law definition].)
“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.’ ([§ 224.2], subd. (c).)” (Dezi C.,
supra, 79 Cal.App.5th at p. 780, rev.gr.)
18
“The second duty is the duty of the Department or the
juvenile court to ‘make further inquiry regarding the possible
Indian status of the child.’ ([§ 224.2], subd. (e).) This duty of
further inquiry is triggered if the Department or court ‘has
reason to believe that an Indian child is involved’ because the
record contains ‘information . . . suggesting the child is Indian’
(ibid.; [citations]), and, once triggered, obligates the Department
to conduct further interviews to gather information, to contact
the Bureau of Indian Affairs and state department of social
services for assistance, and/or to contact the relevant Indian
tribe(s). (§ 224.2, subd. (e)(2).)” (Dezi C., supra, 79 Cal.App.5th
at pp. 780–781, rev.gr.) “Reason to believe” is defined as
“information suggesting that either the parent of the child or the
child is a member or may be eligible for membership in an Indian
tribe.” (§ 224.2, subd. (e)(1).)
“The third duty is the duty to notify the relevant Indian
tribe(s). (§ 224.3, subd. (a); 25 U.S.C. § 1912(a).) This duty is
triggered if the Department or the court ‘knows or has reason to
know . . . that an Indian child is involved.’ (§ 224.3, subd. (a).)”
(Dezi C., supra, 79 Cal.App.5th at p. 781, rev.gr.)
b. Standard of Review
“ ‘[W]e review the juvenile court’s ICWA findings under the
substantial evidence test, which requires us to determine if
reasonable, credible evidence of solid value supports’ the court’s
ICWA finding.” (Dezi C., supra, 79 Cal.App.5th at p. 777, rev.gr.)
Even if substantial evidence does not support the juvenile court’s
ICWA findings, we may not reverse unless we find that error was
prejudicial. (Cal. Const., art. VI, § 13; Dezi C., supra, 79
Cal.App.5th at p. 777, rev.gr.)
19
California appellate courts have taken varying positions on
the rules for assessing whether a defective initial inquiry is
harmless. The varying approaches have led to “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 Dezi C., supra, 79 Cal.App.5th at pp. 777–778,
rev.gr.) 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 record of proceedings in the juvenile court and
any proffer the appealing parent makes on appeal.” (Dezi C., at
p. 779, rev.gr.)
c. No Reversible Error
In this appeal, we are concerned with the initial duty of
inquiry. Specifically, father argues the juvenile court and the
Department failed to fulfill their duties under ICWA because the
Department did not ask, and the court did not ensure that the
Department ask, maternal relatives or paternal relatives (other
than paternal grandparents) whether the children had Indian
ancestry. As a result, father argues we must reverse the order
terminating parental rights and remand for further proceedings
in compliance with ICWA. The Department concedes error with
respect to mother’s side of the family, but asserts any error was
harmless.
As an initial matter, we agree with father that the
Department erred in not asking the many reasonably available
20
extended family members—both maternal and paternal—
whether sons might be Indian children for purposes of ICWA.
Given this error, we must consider whether it requires remand.
(Dezi C., supra, 79 Cal.App.5th at p. 777, rev.gr.)
As noted above, we consider the Department’s failure to
conduct a proper initial inquiry harmless unless the record
contains a reason to believe the children are Indian children
within the meaning of ICWA. (Dezi C., supra, 79 Cal.App.5th at
p. 779, rev.gr.) The record here contains no such evidence.
Mother and father consistently stated they had no Indian
ancestry. The paternal grandparents reported the same.
Nothing in the record below suggests mother, father, or either of
the sons “is a member or may be eligible for membership in an
Indian tribe.” (§ 224.2, subd. (e)(1).) No proffer to that effect has
been made on appeal. Although on appeal father relies on cases
from different appellate districts as well as different divisions
within this district, our division follows Dezi C., supra, 79
Cal.App.5th 769, review granted. We respectfully decline to
follow the other cases cited. Thus, although the Department
clearly erred by not inquiring of many reasonably available
extended family members, we conclude this error was not
prejudicial and is not grounds for reversal.
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DISPOSITION
The juvenile court’s August 15, 2023 orders are affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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