In re King A. CA2/1

Filed 5/25/22 In re King A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 KING A., B315030
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 18LJJP00322)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALEXUS S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Susan Ser, Judge. Affirmed.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
——————————
Alexus S. (Mother) appeals from the juvenile court’s order
terminating her parental rights under Welfare and Institutions
Code section 366.26.1 Mother’s sole contention on appeal is that
the Los Angeles County Department of Children and Family
Services (DCFS) failed to comply with its duty under state law
implementing the Indian Child Welfare Act of 1978 (ICWA; 25
U.S.C. § 1901 et seq.) to inquire of unspecified extended family
members whether her child, King, may be an Indian child. (See
§ 224.2.) We agree with DCFS that any such failure was not
prejudicial and, on that basis, affirm the court’s order.
BACKGROUND2
A.A. (Father) is not a party to this appeal.
DCFS received two referrals in April 2018 relating to King,
who was three years old at the time: the first arose out of an
instance of domestic violence involving Mother and her then-
boyfriend, and the second referral was made by Father, who
alleged that Mother used drugs in King’s presence and neglected
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
2 Because the sole issue on appeal is compliance with the
state statute implementing ICWA, a detailed recitation of the
non-ICWA related background is not necessary to the resolution
of this appeal.
2
him. After Mother was arrested for vandalizing maternal
grandmother’s home, DCFS sought a removal order.
DCFS filed a juvenile dependency petition under
section 300, subdivision (b), alleging that Mother has a history of
violent and assaultive behaviors and a history of substance
abuse. In the ICWA-010 form dated May 21, 2018, which was
appended to the petition, the social worker reported that King
had no known Indian ancestry based on in-person discussions
with Father on May 1, 2018, and with Mother on May 15, 2018,
in which both parents denied any Indian ancestry. At this point,
Mother was still living with maternal grandmother. In a
statement of cause in support of King’s removal from Mother, a
social worker also reported that Father “denied ICWA by signing
the DCFS 5649.” Father and Mother subsequently filed ICWA-
020 forms, and both stated, “I have no Indian ancestry as far as I
know.”
On May 23, 2018, the juvenile court held the detention
hearing. Mother and Father were present. The court noted that
both parents had reported no known Indian ancestry and found
that ICWA was not implicated in the case. The court found a
prima facie case for detaining King from Mother and released
him to Father. The court’s minute order informed Mother and
Father that they were “to keep the Department, their [a]ttorney
and the [c]ourt aware of any new information relating to possible
ICWA status.”
On July 24, 2018, DCFS filed another juvenile dependency
petition, alleging domestic violence between Mother and Father
and that Father allowed Mother to have unlimited access to King
in violation of juvenile court orders. Maternal step-grandmother
3
was identified as a potential caretaker for King,3 and he was
ultimately placed with her. DCFS also filed a detention report on
that day which noted: “On 5/23/18, the [c]ourt stated ‘the [c]ourt
does not have a reason to know that this is an Indian child, as
defined under ICWA.’ ”
A jurisdiction/disposition report filed on September 12,
2018 contained a similar statement regarding ICWA. The report
also reflected that DCFS had interviewed maternal step-
grandmother, maternal grandfather, and paternal grandmother.
There is no indication in the report that any of these individuals
was asked about the possible Indian ancestry of King. The report
also indicates that a social worker was attempting to get in
contact with a paternal aunt and paternal uncle.
In March 2019, King was re-placed from maternal step-
grandmother’s home to maternal grandmother’s home.
At a hearing on July 17, 2019, the court terminated
reunification services for Mother due to her nonexistent progress.
A last minute information for the court filed on the day of the
hearing stated that Mother had resided with maternal
grandfather in January 2019.
Status and interim reports filed in September 2018, May
2019, July 2019, and December 2019 all stated that the juvenile
court had concluded that ICWA did not apply. However, a
detention report filed August 14, 2020 stated that “[t]he Indian
3 Because maternal grandfather did not initially pass the
criminal clearance, he and maternal step-grandmother made “a
‘sacrifice’ by living separately” to allow King to be placed with
maternal step-grandmother. The maternal grandfather
“submitted for the proper clearance” and was ultimately
approved as a caregiver.
4
Child Welfare Act does or may apply. The maternal grandmother
denied knowing if child [King] had Indian ancestry. Parents did
not make themselves available to meet with [the children’s social
worker] in person and complete the DCFS form 5649.”4 This
report was filed following allegations of general neglect against
maternal grandmother in connection with the death of King’s
infant brother who was also in maternal grandmother’s care.
The report identified maternal aunt as a relative to consider for
placement.
The subsequent status report filed on August 19, 2020 once
again stated that the court had found that ICWA did not apply in
May 2018, as did a jurisdiction/detention report filed
September 21, 2020. The jurisdiction/detention report identified
several extended family members as possible placements for
King, including maternal aunt, maternal grandfather, and
maternal step-grandmother. The report indicates that a social
worker spoke with each of these individuals but does not reflect
that the social worker asked them about the Indian ancestry of
the child.
On September 28, 2020, maternal grandmother filed a form
request to change court order seeking King’s return to her home
following his removal. In the portion of the form regarding
information about Mother and Father, maternal grandmother left
the line reading “Indian tribe (if applicable and known)” blank.
At the 18-month review hearing on October 7, 2020, the
juvenile court also terminated Father’s reunification services.
4 This claim is contradicted elsewhere in the record. For
example, as noted above, a social worker had reported that
Father “denied ICWA by signing the DCFS 5649.”
5
Father testified at this hearing that he was living with paternal
grandmother.
The “366.26 WIC” report filed January 26, 2021 again
stated that “[t]he Indian Child Welfare Act does not apply” and
referenced the juvenile court’s May 2018 order. This report also
indicated that maternal uncle and his girlfriend and maternal
grandfather and maternal step-grandmother had come forward
and were being assessed by DCFS as possible placements. The
report does not state that DCFS asked any of these individuals
whether King may have Indian ancestry. King was ultimately
placed with maternal grandfather and maternal step-
grandmother on February 25, 2021.
A status review report filed March 19, 2021 noted again
that the court had found that there was no reason to know that
King was an Indian child and that no notice had been given to
any tribe. The report also stated that a social worker had
attempted to assess other relatives for placement, including a
paternal aunt and paternal uncle. The paternal aunt had failed
to provide identification when asked in November 2020 and
January 2021. In March 2020, paternal uncle had informed a
social worker that “he did not want any part of DCFS” and
refused to meet with a social worker, and he also refused to
provide his date of birth or an identification card. The report also
stated that maternal uncle and his girlfriend were still in the
process of being assessed.
A status report filed May 20, 2021 again stated that the
court had found that there was no reason to know that King is an
Indian child. The report noted that King had been placed with
maternal grandfather and maternal step-grandmother and
appeared to be doing very well in the home. It further stated that
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maternal grandfather and maternal step-grandmother had
informed DCFS that they were committed to adopting King.
DCFS recommended that the juvenile court terminate parental
rights to allow for adoption planning.
On August 31, 2021, the juvenile court held the
permanency planning hearing. Mother was present by phone and
Father did not attend. The court stated that it had “no reason to
know that [King] is an Indian child.” It further found that
adoption was in the best interests of King and terminated Mother
and Father’s parental rights.
Mother timely appealed.
DISCUSSION
Under California law implementing ICWA, “the child
welfare agency and the juvenile court have a statutory initial
duty to inquire into whether a child is, or may be, an Indian
child.” (In re Darian R. (2022) 75 Cal.App.5th 502, 507, fn.
omitted.) This “[i]nquiry 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 and where the child, the parents, or
Indian custodian is domiciled.” (§ 224.2, subd. (b), italics added.)
DCFS does not dispute that it failed to interview members
of King’s extended family concerning his possible status as an
Indian child, other than maternal grandmother. DCFS’s failure
to do so was error. Whether we reverse depends upon whether
this error was prejudicial. (In re Benjamin M. (2021) 70
Cal.App.5th 735, 742.) In the cases decided after Benjamin M.,
we have concluded prejudice exists when DCFS fails to conduct
an initial inquiry of extended family members if the record
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discloses that there was readily obtainable information that was
likely to bear meaningfully upon whether a child is an Indian
child. (In re A.C. (2022) 75 Cal.App.5th 1009, 1017; In re S.S.
(2022) 75 Cal.App.5th 575, 582.) As we describe below, there is
no prejudice here.
Mother does not identify any specific family member who
should have been asked about King’s Indian status or identify
anyone in King’s family from whom further inquiry might have
yielded information that was likely to bear meaningfully upon
whether King is or may be an Indian child.
We consider whether DCFS’s failure to inquire was
prejudicial with respect to the extended family members
mentioned in the record. In addition to asking both Mother and
Father, who denied having any Indian ancestry, the record shows
that DCFS asked maternal grandmother about Indian ancestry,
and she indicated that she was not aware of any. Further, in a
form request to change court order filed by maternal
grandmother, in which she sought King’s return to her home
following his removal, there was a line stating, “Indian tribe (if
applicable and known),” which maternal grandmother left blank.
Maternal grandfather sought clearance to have King placed
in his home and is seeking to adopt King with maternal step-
grandmother. As this court observed in In re S.S., supra, 75
Cal.App.5th 575, because preference is given to placing an Indian
child with extended family both for fostering and adoption (25
U.S.C. § 1915(a) & (b)), there is a strong incentive to bring to the
court’s attention any facts suggesting that a child is an Indian
child. Nonetheless, the maternal grandfather and maternal step-
grandmother did not so do.
8
The record indicates that maternal aunt and maternal
uncle were also considered for placement. However, as neither
maternal grandmother nor maternal grandfather disclosed
knowledge of any Indian ancestry, it is speculative to assume
that their children would have information their parents did not.
Turning to King’s extended paternal family members, there
is no indication in the record that DCFS asked any extended
paternal relatives about their Indian ancestry. However, Father
affirmatively represented on multiple occasions that he had no
Indian ancestry. That paternal grandmother, aunt or uncle
would have provided any different information is again
speculative. The record suggests that paternal aunt and uncle
may not have been forthcoming with information even if asked.
The social worker spoke with paternal aunt twice and asked her
to provide identification so that she could be assessed, which she
did not provide. Paternal uncle stated that “he did not want any
part of DCFS” and refused even to provide his date of birth or
identification to a social worker.
Furthermore, both Mother and Father were instructed to
provide new information relevant to ICWA to DCFS and the
juvenile court. Notwithstanding the advisement, the length of
the proceedings, and that at times during the proceedings Mother
lived with maternal grandmother and maternal grandfather,
respectively, and Father lived with paternal grandmother,
neither Mother nor Father advised the court of any additional
information about Indian ancestry.
Mother asserts that In re Y.W. (2021) 70 Cal.App.5th 542compels reversal here. We disagree. In Y.W., the mother was
adopted at age two, and DCFS failed to make meaningful efforts
to locate and interview her biological family, even after her
9
adoptive mother “blazed a new trail of ICWA information: She
had access to knowledge about [the mother’s] biological family
the Department could have obtained with a phone call or email.”
(Id. at pp. 548, 553–555.) Y.W. is similar to In re A.C., supra, 75
Cal.App.5th 1009, in which the “mother was the product of foster
care and thus may not have known her cultural heritage,” but
“[t]he same may not have been true of her biological relatives.”
(A.C., at pp. 1015-1016.) In light of this, and the fact that one
detention report indicated that the child could have Indian
ancestry, we held that we could not “conclude from this equivocal
record that DCFS’s failure to conduct any inquiry as to [the]
mother and father’s extended family members was not
prejudicial.” (Id. at p. 1016.)
Mother does not point to any facts in the record that would
indicate that she or Father lack a relationship with their
biological families or knowledge of their cultural heritage.
Rather, Mother and Father easily “could have asked about
potential Indian ancestry” while staying with family. (In re
Darian R., supra, 75 Cal.App.5th at p. 504 [no prejudice arose
from failure to ask extended family about Indian ancestry where
mother lived with extended family members and both parents
eschewed Indian ancestry].)
Although there is a detention report in the record that
states “[t]he Indian Child Welfare Act does or may apply,” it
explained that the reason for uncertainty was because Mother
and Father purportedly “did not make themselves available to
meet with [the children’s social worker] in person and complete
the DCFS form 5649.” The record elsewhere contradicts this
statement. Two years prior to that detention report, DCFS
completed an ICWA-010 form that reported that the child had no
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known Indian ancestry based on a social worker’s in-person
discussions with Father and Mother; a social worker reported to
the court that Father “denied ICWA by signing the DCFS 5649”;
and Father and Mother both filed ICWA-020 forms stating “I
have no Indian ancestry as far as I know.” We therefore find that
this statement does not create an “equivocal record” as in In re
A.C., supra, 75 Cal.App.5th at page 1016.
“The record simply does not support mother’s unvarnished
contention that additional interviews . . . would have
meaningfully elucidated” King’s Indian ancestry. (In re Darian
R., supra, 75 Cal.App.5th at p. 510.) DCFS’s failure to interview
members of King’s extended family was therefore harmless.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED
MORI, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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