In re Darian R.

Filed 2/24/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re DARIAN R. et al, Persons B314783
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 19CCJP04446)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
MARIA V.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Debra R. Archuleta, Judge. Affirmed.
Elena S. Min, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
____________________
The Indian Child Welfare Act of 1978 (25 U.S.C. § 1901et seq.; ICWA), “ ‘is a federal law giving Indian tribes concurrent
jurisdiction over state court child custody proceedings that
involve Indian children living off of a reservation. [Citations.]
Congress enacted ICWA to further the federal policy “ ‘that,
where possible, an Indian child should remain in the Indian
community . . . .’ ” [Citation.]’ [Citation.]” (In re Benjamin M.
(2021) 70 Cal.App.5th 735, 740 (Benjamin M).) Welfare and
Institutions Code section 224.2 sets forth several requirements to
effectuate the policies of ICWA.1
Maria V. (mother) appeals from an order terminating her
parental rights over her three children, who all have the same
father. The sole basis of her appeal is that the Los Angeles
County Department of Children and Family Services (DCFS)
failed to interview her extended family members about their
Indian ancestry. DCFS agrees this was error, but contends the
error was not prejudicial. We agree.
As detailed below, the record does not support mother’s
argument that readily obtainable information would have shed
meaningful light on whether the children are Indian children.
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
2
There was a prior juvenile court finding that two of mother’s
children are not Indian children, the juvenile court asked mother,
father, and paternal aunt about Indian ancestry, both parents
eschewed Indian ancestry, and mother was living with extended
family members whom she could have asked about potential
Indian ancestry. We thus conclude under these circumstances, it
was unlikely that any further inquiry of family members would
have yielded information about Indian ancestry. Accordingly,
DCFS’s failure to ask extended family members about Indian
ancestry was not prejudicial. We affirm the juvenile court’s order
terminating mother’s parental rights.
BACKGROUND
Mother and father have three children: Darian, Hailey,
and Bonnie. From September 2015 to October 2016, the family
participated in family maintenance services. It is undisputed
that in the context of that prior dependency case, the juvenile
court found that ICWA did not apply.
In the current dependency proceeding, mother and father
admitted being addicted to methamphetamine, and using
methamphetamine every day. Father acknowledged that he was
unable to care for the children.2 Father said he stayed away from
the children when he was “out on the street” because he was
“using drugs.”
Mother minimally participated in the current dependency
proceedings. She initially visited the children but then stopped.
Mother did not attend her scheduled drug tests and frequently
2 Father is not a party to this appeal. In October 2018,
father was convicted for possession of paraphernalia concerning a
controlled substance.
3
could not be located. When social workers located mother in
April 2020, she was living with maternal grandfather, and in
July 2021, mother lived with maternal aunt. During the
dependency proceedings, mother was arrested for assault with a
deadly weapon.
1. Petition
In July 2019, DCFS filed a petition involving Darian (then
11), Hailey (then 8), and Bonnie (then 2). As subsequently
sustained, DCFS alleged mother has a history of drug use and
currently abused methamphetamine, rendering her incapable of
caring for her children. DCFS further alleged mother had mental
and emotional problems, including bipolar disorder, depression,
anxiety, and self-mutilating behaviors, rendering her incapable of
caring for the children. With respect to father, the petition
alleged that he had an 18-year history of drug use and currently
used methamphetamine, rendering him incapable of caring for
the children. The petition alleged father had bipolar disorder and
depression, rendering him incapable of caring for the children.
2. DCFS reports
In its detention report, DCFS stated: “The Indian Child
Welfare Act does not apply. Mother . . . denied that she or the
children have American Indian ancestry.” Mother never
retracted her denial that neither she nor the children have
Indian ancestry.
DCFS interviewed father for the detention report, but the
report does not indicate the social workers asked father about
whether he had Indian ancestry. The detention report indicated
a social worker interviewed maternal aunt and had contact with
maternal grandfather, but the detention report does not indicate
4
whether the social worker asked mother’s relatives about any
potential Indian ancestry.3
The jurisdiction report echoed the detention report stating,
“The Indian Child Welfare Act does not apply. Per the 7/16/19
Detention Report, mother . . . denied Indian Ancestry” when
questioned by a social worker.
On January 22, 2020, a social worker interviewed father
and father denied any Indian ancestry.
On July 2, 2020, a social worker interviewed paternal aunt.
Paternal aunt denied any Indian ancestry.
In a status review report dated October 6, 2020, DCFS
indicated: “The Indian Child Welfare Act does not apply.” Both
mother and father denied having Indian ancestry.
On June 1, 2021, DCFS again reported that ICWA did not
apply.
3. Parental notification of no Indian ancestry
On November 1, 2019, father filed parental notification of
Indian status indicating, “I have no Indian ancestry as far as I
know.”
Mother filed her parental notification of Indian status on
October 6, 2020. Like father, mother checked a box stating, “I
have no Indian ancestry as far as I know.”
3 The children initially were placed with maternal
grandfather, but later were removed from his care because of
referrals concerning him. Hailey told her paternal aunt that
maternal grandfather sexually abused her and that she had
previously told mother about the abuse. After an interim
placement, the children were placed with their paternal aunt and
uncle, who wanted to adopt the children.
5
4. Juvenile court findings and orders
At a hearing on September 3, 2019, the juvenile court
concluded ICWA did not apply. The juvenile court relied in part
on the undisputed fact that in a 2015 dependency case, the
juvenile court found ICWA did not apply as to Darian and Hailey.
The juvenile court’s November 1, 2019 minute order states:
“The Court does not have a reason to know that this is an Indian
Child, as defined under ICWA, and does not order notice to any
tribe or the [Bureau of Indian Affairs]. Parents are to keep the
Department, their Attorney and the Court aware of any new
information relating to possible ICWA status.”
On October 6, 2020, the juvenile court reiterated, “This
does not appear to be a case governed by the Indian Child
Welfare Act.”
On August 6, 2021, the juvenile court terminated mother
and father’s parental rights. Neither was present at the hearing.
Mother timely appealed from the order terminating her parental
rights.
DISCUSSION
A. Applicable Law
“ICWA reflects a congressional determination to protect
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal
standards that a state court, except in emergencies, must follow
before removing an Indian child from his or her family.” (In re
Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.).)
Federal law defines “ ‘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
6
tribe and is the biological child of a member of an Indian tribe.”
(25 U.S.C. § 1903(4); see also In re A.B. (2008) 164 Cal.App.4th
832, 838.) State law incorporates the same definition. (§ 224.1,
subd. (a) & (b).) There is reason to believe a child is an Indian
child if there is information that either child or the parent is a
member or may be eligible for membership in an Indian tribe.
(§ 224.2, subd. (e)(1).) There is reason to know a child is an
Indian child if the child or the child’s parent “possess an
identification card indicating membership or citizenship in an
Indian tribe.” (§ 224.2, subd. (d)(6).) Notice to a tribe to
determine if a child is an Indian child must include the names of
the child’s “direct lineal ancestors.” (25 C.F.R. 23.111(d)(3).)
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 eighteen 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).)
At the outset of a dependency case, 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.4 “The child welfare
department’s initial duty of inquiry includes ‘asking the child,
parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
4 Federal law imposes an initial duty of inquiry into a
child’s Indian ancestry on the juvenile court. (Benjamin M.,
supra, 70 Cal.App.5th at p. 741.) State law imposes that initial
duty on the child welfare agency as well as the juvenile court.
(Ibid.)
7
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).)” (Austin J., supra,
47 Cal.App.5th at p. 883, italics added.)
“The juvenile court must ask the participants in a
dependency proceeding upon each party’s first appearance
‘whether the participant knows or has reason to know that the
child is an Indian child’ (§ 224.2, subd. (c)), and ‘[o]rder the
parent . . . to complete Parental Notification of Indian Status
([Judicial Council] form ICWA-020).’ [Citation].” (Austin J.,
supra, 47 Cal.App.5th at p. 883.) Pursuant to title 25 of the Code
of Federal Regulations part 23.107, “(a) State courts must ask
each participant in an emergency or voluntary or involuntary
child-custody proceeding whether the participant knows or has
reason to know that the child is an Indian child. The inquiry is
made at the commencement of the proceeding and all responses
should be on the record. State courts must instruct the parties to
inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.”5
“The minimum standards established by ICWA include the
requirement of notice to Indian tribes in any involuntary
proceeding in state court to place a child in foster care or to
terminate parental rights ‘where the court knows or has reason
to know that an Indian child is involved.’ [Citation.]” (In re
5 Similarly, section 224.2, subdivision (c) provides: “At the
first appearance in court of each party, the court shall ask each
participant present in the hearing whether the participant knows
or has reason to know that the child is an Indian child. The court
shall instruct the parties to inform the court if they subsequently
receive information that provides reason to know the child is an
Indian child.”
8
Isaiah W. (2016) 1 Cal.5th 1, 8.) Notice requirements help
determine whether a child is an Indian child and ensure that a
tribe is “aware of its right to intervene in or, where appropriate,
exercise jurisdiction over a child custody proceeding involving an
Indian child.” (Ibid.)
B. Mother Demonstrates that DCFS Erred in Failing to
Interview Her Extended Family Members about
Indian Ancestry
We first observe mother does not argue the juvenile court
erred in failing to question her or father about potential Indian
ancestry. We also note the social workers interviewed mother
and father, and both denied any Indian ancestry. Thus, there is
no asserted error as to initial ICWA inquiry as to father and
mother.
Mother, however, does argue DCFS and the juvenile court
failed to interview her extended family members—specifically
maternal grandfather and maternal aunt—about the children’s
potential Indian ancestry. Mother also argues DCFS and the
court should have interviewed paternal aunt about her Indian
ancestry. Starting with the latter challenge, the record reveals
that in fact, a social worker asked paternal aunt about her Indian
ancestry, and paternal aunt denied having any. Mother’s
argument to the contrary is not well-founded.
To the extent mother argues the juvenile court (as opposed
to DCFS) should have asked her extended family members or
paternal aunt about Indian ancestry, the argument lacks merit
because section 224.2, subdivision (b) requires only the child
welfare agency to interview a child’s extended family about
Indian ancestry.
9
Mother, however, correctly contends DCFS had an
obligation under section 224.2 subdivision (b) to interview
maternal aunt and maternal grandfather, as extended family
members, about Indian ancestry. Its failure to do so was error.
DCFS does not argue otherwise, essentially conceding error. The
remaining question is whether that error was prejudicial.
C. Mother Fails to Demonstrate Prejudice from DCFS’s
Failure to Interview Mother’s Extended Family
Members
The parties rely on Benjamin M. for the definition of
prejudice when considering DCFS’s failure to interview extended
family members about their Indian ancestry. According to
Benjamin M., the failure to ask extended family members about
Indian ancestry would be prejudicial if “the record indicates that
there was readily obtainable information that was likely to bear
meaningfully upon whether the child is an Indian child.”
(Benjamin M., supra, 70 Cal.App.5th at p. 744.) Continued
inquiry is required “where the probability of obtaining
meaningful information is reasonable in the context of ICWA.”
(Ibid.) Benjamin M. reasoned that relying just on the parents for
information about Indian ancestry does not take into account
that the parents themselves may have scant information about
their ancestry, and one does not always know “what information
an initial inquiry, properly conducted might reveal.” (Id. at
pp. 742–743.)
In Benjamin M, the juvenile court conditionally reversed an
order terminating a mother’s parental rights; her children did not
all have the same father. On appeal, she contended the juvenile
court erred in finding ICWA did not apply to one of her children
because the child welfare agency did not interview the brother
10
of that child’s father about potential Indian ancestry.
(Benjamin M., supra, 70 Cal.App.5th at p. 740.) The father never
appeared in the proceeding. Benjamin M. reasoned: “Father’s
brother’s knowledge of his own Indian status would be suggestive
of Father’s status. While we cannot know how Father’s brother
would answer the inquiry, his answer is likely to bear
meaningfully on the determination at issue about his brother.”
(Id. at p. 745.)
Applying Benjamin M.’s definition of prejudice here, we
conclude the record does not demonstrate that failing to ask
maternal aunt and grandfather about the children’s Indian
ancestry was prejudicial. Mother does not contest that in 2015,
the juvenile court found ICWA did not apply to Darian and
Hailey. It is undisputed that Bonnie, Darian and Hailey have the
same parents and thus, the same ancestry. This case
substantially differs from Benjamin M. where the mother was
challenging the social services agency’s failure to interview a
paternal relative whom the mother may not have known. Here,
mother at various times lived with the relatives she claims DCFS
failed to interview. In further contrast to Benjamin M., it is
undisputed that the juvenile court had already found in 2015
that ICWA did not apply to two of the children when all three
children have the same parents.
In addition, since November 2019, mother has been under
court order to continue providing information relevant to ICWA.
Although mother cites In re Y.W. (2021) 70 Cal.App.5th 542, 554,
for the proposition that a parent may not know about any
relationship to a tribe, mother does not show the relevance of
that proposition here. In Y.W., mother was adopted at age two by
unrelated adoptive parents from whom she was estranged, and
11
mother had no contact with her biologic parents.6 Here, mother
lived with maternal grandfather and aunt during the dependency
proceedings, and she was under court order to continue to provide
information relevant to ICWA. Unlike in Y.W., there is no
evidence in the record that mother was estranged from her
extended family. Mother also denied Indian ancestry, and did
not dispute that in 2015, the juvenile court found ICWA did not
apply to Bonnie’s biologic siblings. The record simply does not
support mother’s unvarnished contention that additional
interviews of mother’s father and sister would have meaningfully
elucidated the children’s Indian ancestry.
In sum, the record shows no prejudice flowing from DCFS’s
failure to interview maternal grandfather and maternal aunt.
DISPOSITION
The order terminating mother’s parental rights is affirmed.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. CHANEY, J.
6 Also, the father in Y.W. had referenced his potential
Cherokee heritage during his social worker interview.
12