In re C.S. CA2/1 ( 2023 )

Filed 12/13/23 In re C.S. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
In re C.S., B329602
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 21CCJP02807)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
BRENDAN S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kristen Byrdsong, Judge Pro Tempore.
Conditionally affirmed and remanded with directions.
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 Jessica Buckelew, Deputy County
Counsel, for Plaintiff and Respondent.
_____________________
Appellant Brendan S. (Father) challenges the juvenile
court’s order terminating his parental rights to his daughter C.S.
pursuant to Welfare and Institutions Code section 366.26.1 The
child’s mother B.I. (Mother), who also had her parental rights
terminated, is not a party to this appeal. Father argues we
should reverse because the juvenile court failed to adequately
inquire whether C.S. was an Indian child as defined by the
Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et
seq.)2 before terminating his parental rights. Although we find
no reversible error with the ICWA inquiry of Mother’s extended
family members, there was no attempt to inquire of any paternal
extended family members. We therefore conditionally affirm the
termination of parental rights, and remand for appropriate
efforts to make ICWA inquiry of extended paternal family
members.
1 Further unspecified statutory references are to the
Welfare and Institutions Code.
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.)
2
FACTUAL AND PROCEDURAL BACKGROUND
As this appeal involves only ICWA-related issues, we limit
our factual and procedural summary accordingly. On June 15,
2021, pursuant to a court-issued removal order and protective
custody warrant, the Los Angeles County Department of
Children and Family Services (DCFS) removed C.S. from Mother
and Father and placed her with maternal aunt Hannah A. The
following day, DCFS filed a section 300 petition, which alleged
Mother’s history of substance abuse and Father’s failure to
protect C.S. endangered the child’s safety. The petition included
an ICWA attachment stating Mother and Father were asked in
May 2021 about potential Indian ancestry and neither parent
gave the social worker any reason to believe C.S. was an Indian
Child.
On June 21, 2021, the juvenile court held an initial
hearing, at which neither parent was present. The court deferred
any ICWA-related findings for the parents to appear.
On June 22, 2021, Father and Mother were separately
interviewed by telephone. During her interview, Mother
indicated she has three siblings. During his interview, Father
mentioned that he was raised by his mother in Southern
California and has two sisters and two brothers. There is no
indication either parent was re-asked about Indian heritage
during these June 22, 2021 interviews, or that DCFS requested
contact information for any of the parents’ family members.
A last minute information (LMI) filed in connection with a
June 28, 2021 hearing noted Father had a prior child services
case in Riverside County. In that prior case, the court
terminated Father’s parental rights to a different child in 2012
and that child was subsequently adopted. Neither the LMI nor
3
any other document in the record references any ICWA findings
from that prior matter. On June 28, 2021, the juvenile court
found that ICWA did not apply.
On July 28, 2021, the section 300 petition was amended to
include an allegation about Father having a prior dependency
case due to neglect, and Mother and Father made their first court
appearances. Both parents filed a parental notification of Indian
status form (ICWA-020) stating they had no Indian ancestry.
Father did not sign his form. The juvenile court noted its receipt
of the ICWA-020 forms on the record, found that ICWA did not
apply, and advised the parents to keep their attorneys, DCFS,
and the court aware of any new information relating to possible
ICWA status. At no point in any later proceedings did Father,
Mother, or their counsel make DCFS or the court aware of any
new ICWA-related information.
On October 12, 2021, the juvenile court held a jurisdiction
hearing. Father was not present. Father’s attorney requested a
continuance as counsel did not know where his client was. The
court denied the request and asserted jurisdiction over C.S.
On December 6, 2021, the juvenile court held a contested
disposition hearing; neither Mother nor Father appeared. A LMI
filed before the hearing informed the court that regular visitation
was not taking place due to Mother and Father not calling or
confirming they would attend. The parents’ cell phone numbers
constantly changed, and DCFS was unaware where Mother and
Father were residing.
At a court hearing on January 31, 2022, at which Father
was not present, Father’s counsel indicated he had no direction
from Father regarding a DCFS recommendation to move C.S. to
4
the home of maternal cousin Jessica T. The child was placed
thereafter with Jessica T.
A status review report filed May 12, 2022, indicated that
the social worker routinely lost contact with Mother and Father,
who regularly changed their phone numbers and did not appear
for visitation. The parents provided the social worker with over
14 contact numbers during the review period. The social worker
further noted the numbers provided often did not accept text or
voicemail messages.
On July 14, 2022, the juvenile court held a contested review
hearing at which neither Mother nor Father appeared. Father’s
counsel indicated he did not know where Father was. The court
terminated reunification services and set a section 366.26
hearing.
A section 366.26 report filed on October 12, 2022, indicated
that maternal cousin and caregiver Jessica T. (who said she was
in frequent contact with extended maternal family members)
denied Mother’s family had any Indian ancestry and said C.S.
was not an Indian child. The report also noted the social worker
continued to struggle to maintain contact with Mother and
Father; they did not visit C.S., and their phone numbers kept
changing and were usually “out of service.” The report stated
DCFS was unable to serve Mother and Father with notice of the
section 366.26 hearing, and requested the court make a due
diligence finding regarding DCFS’s attempts to notice the
parents. The due diligence declaration indicated numerous
attempts to locate Mother and Father, and stated their
whereabouts remained unknown.
A status review report filed on December 19, 2022, stated
that Mother and Father had not had any contact with DCFS
5
during the period of supervision, and that neither parent had
visited C.S.
A LMI filed January 31, 2023, stated that Mother and
Father’s whereabouts remained unknown. At a hearing on
February 14, 2023, the juvenile court was informed Father was in
custody. Counsel for DCFS requested a continuance of the
section 366.26 hearing for Father to be transported to the
hearing, for Father to sign his ICWA-020 form, and for Father to
provide names of his relatives for ICWA inquiry. The court
continued the hearing and ordered the “parents’ counsel to make
best efforts to ensure their clients sign an ICWA-020 form.” The
court was silent with regard to DCFS’s request that the court
order Father to provide contact information for his relatives for
ICWA inquiry, and entered no such order.
At the continued hearing on February 22, 2023, Father was
present in custody. The court again continued the matter and
ordered DCFS to prepare an updated report on its ICWA
inquiries.
On April 13, 2023, maternal grandmother and maternal
aunt Theresa H. both denied any Indian heritage in the family.
Maternal grandmother stated she did not know Mother’s
whereabouts but provided a cell phone number at which the
social worker was able to speak to Mother, who again denied any
Indian heritage.
A LMI filed on April 25, 2023, stated that Mother and
Father continued to report no Indian ancestry.
On May 25, 2023, the juvenile court held a permanency
planning hearing pursuant to section 366.26. No further ICWA
findings were made at this hearing. Father was present in
custody. The court found that C.S. was adoptable and that no
6
exceptions applied, and terminated the parental rights of Mother
and Father. C.S. remained placed with the prospective adoptive
parent, maternal cousin Jessica T. Father timely appealed.
DISCUSSION
The juvenile court and DCFS “have an affirmative and
continuing duty to inquire whether a child for whom a [section
300] petition . . . has been filed, is or may be an Indian child.”3
(§ 224.2, subd. (a).) This “duty to inquire begins with the initial
contact” by DCFS. (Ibid.) Additionally, section 224.2,
subdivision (b) states, in part, that “[i]nquiry includes, but is not
limited to, asking . . . extended family members [and] others who
have an interest in the child . . . whether the child is, or may be,
an Indian child . . . .” Under ICWA, the term “ ‘extended family
member’ ” is “defined by the law or custom of the Indian child’s
tribe or, in the absence of such law or custom, shall be a person
who has reached the age of [18] and who is the Indian child’s
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).)
The record here indicates that both Mother and Father
have extended family members who were not contacted by DCFS
3 An “Indian child” is an unmarried person under 18 years
of age who is (1) a member of a federally recognized Indian tribe
or (2) is eligible for membership in a federally recognized tribe
and is the biological child of a member of a federally recognized
tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting
federal definitions], subd. (b) [expanding the age range stated in
the federal definition to include persons over 18, but under 21,
years of age].)
7
about Indian heritage. Mother at a minimum had an additional
sister (Hannah A., with whom C.S. was initially placed) who was
not the subject of ICWA inquiry; none of Father’s relatives were
contacted. However, as prior decisions make clear, in the view of
our division, DCFS’s failure to inquire of extended family
members does not result in automatic reversal. (See In re Adrian
L. (2022) 86 Cal.App.5th 342; In re A.C. (2022) 75 Cal.App.5th
1009; In re S.S. (2022) 75 Cal.App.5th 575; In re Darian R. (2022)
75 Cal.App.5th 502.) Rather, we have generally evaluated the
record to determine whether “ ‘the probability of obtaining
meaningful information is reasonable in the context of ICWA.’ ”
(In re Darian R., supra, at p. 509, quoting In re Benjamin M.,
supra, 70 Cal.App.5th at p. 744.) Information available from
extended family members must be both “readily obtainable,” and
“likely to bear meaningfully upon whether the child is an Indian
child.” (In re Benjamin M., supra, at p. 744.) In making this
determination, we have rejected “a wooden approach to prejudice”
(In re A.C., supra, at p. 1017) and refused to require further
inquiry when, based upon the particular circumstances presented
by the record, it is apparent “that additional information would
not have been meaningful to the inquiry” (In re Benjamin M.,
supra, at p. 743; see, e.g., In re S.S., supra, at p. 582).4
4 Because federal law does not impose a duty on social
workers to inquire of extended family members about tribal
affiliation, any error would be under state law. (In re Benjamin
M., supra, 70 Cal.App.5th at p. 742; In re A.C. (2021) 65
Cal.App.5th 1060, 1069.) The usual test for prejudicial state law
error is whether, “ ‘after an examination of the entire cause,
including the evidence,’ ” we are “of the ‘opinion’ that it is
8
Nothing in the record suggests that further inquiry of
maternal extended family members would have produced
additional information that would bear meaningfully on whether
C.S. was an Indian child. DCFS obtained information from
Mother, maternal grandmother, a maternal aunt, and a maternal
cousin. All uniformly indicated Mother’s family had no Indian
ancestry. Further, maternal cousin indicated that maternal
family members remained in contact with one another, such
there is no reason to expect that extended family members not
asked about ICWA would have new or different information
about Native American ancestry. While Father faults these
inquiries for being “made at the end of the case” instead of
earlier, they were indisputably made before the court terminated
Father’s parental rights and nothing suggests the answers would
have differed if DCFS had inquired earlier in the case. Thus, any
alleged inadequacy in the ICWA inquiry of maternal extended
family members was harmless.
Turning to paternal extended family members, the record
shows DCFS made no inquiry of C.S.’s paternal relatives beyond
Father. Both sides blame the other for this failure. DCFS faults
Father’s unavailability during most of the dependency
proceedings and his failure to volunteer contact information for
any extended family members for any inadequacy in its inquiry.
Noting ICWA does not require it “to ‘cast about’ for information”
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; see In re Benjamin
M., supra, at p. 742 [Watson standard applies to agency’s failure
to comply with initial duty of inquiry under California’s ICWA-
related law].)
9
(In re D.S. (2020) 46 Cal.App.5th 1041, 1053), DCFS argues it did
not err in failing to inquire beyond Father. For his part, Father
asserts he was available at the beginning of the proceedings and
again after he was in custody. He further notes the record does
not indicate that DCFS ever asked for his relatives’ contact
information when Father was available.
DCFS cites opinions from other divisions of this court
holding ICWA inquiry error harmless in the absence of some
indication in the record that Father’s disclaiming of Indian
ancestry was unreliable. (See, e.g., In re Ezequiel G. (2022) 81
Cal.App.5th 984, 1015; In re Dezi C. (2022) 79 Cal.App.5th 769,
779, review granted Sept. 21, 2022, S275578.) As noted above,
this division applies a different analysis of harmless error. Our
approach assumes Father’s representation that he lacks Indian
ancestry is not sufficiently reliable to support a finding of
harmless error unless something else in the record corroborates
it, such as findings in an earlier proceeding (In re Darian R.,
supra, 75 Cal.App.5th at p. 509), or circumstances suggesting an
extended family member would have come forward with
information about Indian ancestry had they any (In re S.S.,
supra, 75 Cal.App.5th at p. 582).
Such evidence is absent here. Father’s unavailability
during most of the proceedings undoubtedly made things more
difficult for DCFS. But we cannot go so far as to say information
from extended family members was not “readily obtainable” (In re
Benjamin M., supra, 70 Cal.App.5th at p. 744), because Father
indisputably was available during the June 22, 2021 interview
when he mentioned several extended family members to DCFS,
and for the three plus months from February 14, 2023, until the
May 25, 2023 section 366.26 hearing when he was in custody.
10
But during those times, nothing in the record indicates DCFS
ever asked Father for contact information for any of his extended
family members, much less attempted to contact them. Nor did
the court make any order to provide contact information that
Father defied. Despite a DCFS request, the court did not order
Father to provide his relatives’ contact information to DCFS for
ICWA inquiry.
The record here does not contain other information that
would dispel concerns about ICWA’s application. It is not the
case that some but not all of Father’s extended family members
were contacted; none were. No paternal family member was
requesting custody, and thus incentivized to declare any Indian
ancestry. The record does not contain any ICWA findings from
the earlier dependency case involving Father. Father was raised
by his mother, but there is little information regarding Father’s
relationship with his mother, siblings, or others who might know
of their heritage. Thus, there is insufficient information to
reassure us that Father was close enough to his extended family
that his knowledge of his ancestry, as declared in his ICWA-020
form, is reliable.
Father asks us to reverse the termination of his parental
rights in light of the ICWA inquiry error. The better course, in
our view, is to conditionally affirm the order terminating parental
rights. (In re Antonio R. (2022) 76 Cal.App.5th 421, 436; In re
Y.W. (2021) 70 Cal.App.5th 542, 559.) A conditional affirmance of
the termination order limits the juvenile court’s authority to
modify that order (see § 366.26, subd. (i)(1)), which reduces the
chance of further delays in establishing permanency for C.S.
apart from the remaining required ICWA inquiry.
11
We do not intend for DCFS to turn over every possible
stone to investigate C.S.’s heritage, merely that DCFS make
reasonable efforts to interview Father’s extended family
members, as defined by ICWA, provided their contact information
is reasonably available. As noted above, no further inquiry is
necessary of maternal extended family members. The record,
however, does not allow us to conclude further inquiry of paternal
extended family members is not possible or would not disclose
useful information regarding C.S.’s heritage on Father’s side of
the family.
DISPOSITION
The order terminating parental rights is conditionally
affirmed. We remand for DCFS and the juvenile court to comply
with the inquiry and notice provisions of ICWA and California
law consistent with this opinion. If the court finds C.S. is an
Indian child, it shall conduct further proceedings in compliance
with ICWA and related California law. If not, the court’s original
order terminating parental rights will remain in effect.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J. CHANEY, J.
12