In re Mateo G. CA2/4

Filed 6/30/22 In re Mateo G. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
In re MATEO G. et al., Persons B314871
Coming Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No. 18CCJP06591)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHELLE B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Martha Matthews, Judge. Affirmed.
Donna P. Chirco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant
County Counsel, and Peter Ferrera, Principal Deputy County Counsel,
for Plaintiff and Respondent.
Michelle B. (mother) appeals from the juvenile court’s jurisdiction
orders over her two children, Mateo G. and Dominic B., under Welfare
and Institutions Code section 300, subdivision (b)(1).1 Mother’s sole
contention on appeal is that the juvenile court and the Los Angeles
County Department of Family and Children Services (DCFS) failed to
adequately discharge their duties of initial inquiry within the meaning
of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA).
We agree with mother that DCFS and the court failed to
adequately discharge their duties of initial inquiry at the time mother
filed her appeal. After mother filed this appeal, however, DCFS and the
court engaged in additional efforts to inquire into the children’s possible
Indian heritage. Those efforts revealed information suggesting a reason
to believe both children may be Indian children. In light of those efforts
and the court’s subsequent order to make further inquiries into the
children’s Indian heritage, we agree with DCFS that the deficient
efforts at initial inquiry are harmless. We affirm the court’s jurisdiction
and disposition orders.
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
Mother has an extensive dependency history for issues arising out
of substance abuse and child neglect. Because the sole issue on appeal
relates to ICWA compliance, we omit a summary of the facts leading to
the court’s jurisdiction over her children, Mateo G. (born July 2017) and
Dominic B. (born Aug. 2018).
In a May 2021 detention report, DCFS reported that mother had
denied having any Indian heritage. Both children were placed in the
home of Mateo’s paternal grandparents, Maria G. and Audie G. On
May 26 and 27, 2019, mother and Mateo’s father, Adam G., filed
separate Parental Notification of Indian Status (ICWA-020) forms in
which they indicated that they did not have any known Indian ancestry.
Present at the detention hearing were mother, maternal
grandmother, Tina W., Adam G., and Maria G. Dominic’s alleged
father, Jose N., did not appear at the detention hearing. The court did
not ask anyone present at the hearing whether Mateo or Dominic were
Indian children. Instead, the court relied on the ICWA-020 forms
submitted by mother and Adam G. to find “that the [ICWA] does not
apply” as to Mateo.2 The court also relied on mother’s ICWA-020 form
to find “no reason to believe that the [ICWA] applies” to Dominic, “but if
and when [DCFS] is able to contact and interview that child’s father or
paternal relatives, [DCFS] is to make further inquiries.”
2 In a minute order from the detention hearing, the court also indicated
that it had “no reason to know” Mateo was an Indian child.
3
In a jurisdiction/disposition report, DCFS informed the court that
in July 2021, mother and Adam G. denied having any known Indian
heritage. Mother, Adam G., Maria G., and Tina W. attended the
August 2021 jurisdiction/disposition hearing. The court did not discuss
the ICWA during the hearing. Mother filed a notice of appeal from the
jurisdiction and disposition orders as to Mateo and Dominic.
This court granted two requests by DCFS to take judicial notice of
various documents filed in the juvenile court. Attached to the first
request are two ICWA-020 forms that were filed in a prior dependency
proceeding as to Dominic in 2018. In one ICWA-020 form, Jose N.
indicated that he had no known Indian ancestry.
Attached to the second request for judicial notice are a status
review report and minute orders that were filed in the juvenile court in
this case. In a status review report, DCFS informed the court that in
February 2022, mother, Jose N., and Mateo’s “paternal grandparents”
had all denied having any known Indian ancestry. In minute orders
from a February 25, 2022 status review hearing, the court noted that it
had “inquire[d of] the mother regarding any Native American heritage.
The mother denies any such heritage. The Court inquires the maternal
grandmother regarding any Native American heritage. The maternal
grandmother denies any such heritage for herself but states that there
may be Cherokee heritage on the maternal grandfather’s side. The
Court inquires [of Mateo’s] paternal grandmother regarding any Native
American heritage. [She] denies any such heritage.” Thereafter, the
court ordered DCFS to “[m]ake further inquiries as to Native American
heritage and provide an update in the next report.”
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DISCUSSION
1. ICWA and Harmless Error
“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 a state court must
follow before removing an Indian child from his or her family.” (In re
T.G. (2020) 58 Cal.App.5th 275, 287 (T.G.), citing 25 U.S.C. § 1902; In re
Isaiah W. (2016) 1 Cal.5th 1, 7–8; In re W.B. (2012) 55 Cal.4th 30, 47.)
“[P]ersistent noncompliance with ICWA led [our] Legislature in 2006 to
‘incorporate[] ICWA’s requirements into California statutory law.’
[Citations.]” (In re Abbigail A. (2016) 1 Cal.5th 83, 91.) Both ICWA and
California law define an “Indian child” as a child who is either a
member of an Indian tribe or 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); accord, § 224.1, subds. (a)-(b).)
California law implementing ICWA imposes on the court and
county welfare department “an affirmative and continuing duty to
inquire whether a child,” who is the subject of a juvenile dependency
petition, “is or may be an Indian child.” (§ 224.2, subd. (a); Cal. Rules of
Court, rule 5.481(a).)3 “Under ICWA as amended, the [child welfare
department] and juvenile court have ‘three distinct duties.’ (In re D.S.
(2020) 46 Cal.App.5th 1041, 1052 (D.S.).)” (In re Dezi C. (June 14, 2022,
B317935) __ Cal.App.5th __, __, 2022 WL 2128670 at p. *4 (Dezi C.).)
3 Unspecified references to rules are to the California Rules of Court.
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The first duty is the initial duty of the court and child welfare
department to inquire whether the child is an Indian child. (§ 224.2,
subds. (a)-(c).) The child welfare department discharges its initial duty
of inquiry by 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
[who has been placed in temporary custody] is, or may be, an Indian
child and where the child, the parents, or Indian custodian is
domiciled.” (§ 224.2, subd. (b).) The court must also “ask each
participant present” at the “first appearance in court of each party”
whether he or she “knows or has reason to know that the child is an
Indian child.” (§ 224.2, subd. (c).)
If the court or child welfare department “has reason to believe
that an Indian child is involved in a proceeding, but does not have
sufficient information to determine that there is reason to know that
the child is an Indian child,” the court or welfare department “shall
make further inquiry” into the child’s possible Indian status as soon as
practicable. (§ 224.2, subd. (e); see rule 5.481(a)(4); In re J.S. (2021) 62
Cal.App.5th 678, 686; T.G., supra, 58 Cal.App.5th at p. 290.) The duty
of further inquiry obligates the welfare department to conduct
interviews of the child’s parents and extended family members to
gather specific information, contact the Bureau of Indian Affairs, the
state department of social services, and contact any relevant Indian
tribes. (§§ 224.2, subds. (e)(2)(A)-(C), 224.3, subd. (a)(5); rule
5.481(a)(4); see Dezi C., supra, at p. *4.)
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If further inquiry results in a “reason to know the child is an
Indian child,” then the welfare department must provide formal notice
to the parents, Indian custodian (if any), and the child’s tribe with
detailed information. (§ 224.3, subd. (a); accord, 25 C.F.R. §§ 23.11(a),
23.111(e).) We review a juvenile court’s ICWA findings for substantial
evidence. (In re Josiah T. (2021) 71 Cal.App.5th 388, 401; In re S.R.
(2021) 64 Cal.App.5th 303, 312.)
“Where, as here, there is no doubt that [DCFS’s] inquiry was
erroneous . . . we must assess whether it is reasonably probable that the
juvenile court would have made the same ICWA finding had the inquiry
been done properly. (People v. Watson (1956) 46 Cal.2d 818, 836
(Watson).) If so, the error is harmless and we should affirm; otherwise,
we must send it back for [DCFS] to conduct a more fulsome inquiry.”
(Dezi C., supra, at p. *3.)
At present, courts of appeal have applied different standards of
harmless error to defects occurring at the initial inquiry phase. Several
courts have reversed for defective initial inquiries whenever there is an
“absence of an appellate record affirmatively showing the court’s and
the agency’s efforts to comply with ICWA’s inquiry . . . requirements.”
(In re N.G. (2018) 27 Cal.App.5th 474, 484 (N.G.); see, e.g., In re A.R.
(2022) 77 Cal.App.5th 197, 203, 206–207; In re H.V. (2022) 75
Cal.App.5th 433, 438, fn. 4.) Other courts have deemed any defect
harmless unless the parent makes an offer of proof or other assertion of
Indian heritage on appeal. (See, e.g., In re A.C. (2021) 65 Cal.App.5th
1060, 1065, 1070–1073 (A.C.); In re Noreen G. (2010) 181 Cal.App.4th
7
1359, 1389–1390; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430–
1431.) Yet other courts have treated deficient inquiry to be harmless
unless, based on the appellate record, it is reasonably probable that
missing information “likely to bear meaningfully upon whether the
child is an Indian child” could reasonably be obtained by the welfare
department (e.g., In re Benjamin M. (2021) 70 Cal.App.5th 735, 744
(Benjamin M.)), or unless the record contains information “suggesting a
reason to believe that the child may be an ‘Indian child’ within the
meaning of ICWA” (Dezi C., supra, at p. *4).
2. Analysis
It is undisputed that DCFS and the trial court failed to discharge
their respective duties of initial inquiry at the time mother filed this
appeal. Mother, Adam G., Maria G., and Tina W. were not asked at the
detention or jurisdiction/disposition hearings whether they knew or had
reason to know that Mateo or Dominic were Indian children. (§ 224.2,
subd. (c).) Mateo and Dominic’s known extended family members
(Maria G., Audie G., and Tina W.) and Jose N. were also not asked by
DCFS whether Mateo or Dominic is or may be an Indian child, and
where the children, parents, or Indian custodian(s) is domiciled.
(§ 224.2, subd. (b).)
However, based on the evidence of which we have taken judicial
notice, it is also undisputed that every person known to possess
information regarding Mateo and Dominic’s Indian heritage—mother,
Adam G., Maria G., Audie G., Tina W., and Jose N.—have all been
interviewed by DCFS. (See In re A.B. (2008) 164 Cal.App.4th 832, 839
8
[reviewing courts may judicially notice post-appeal juvenile court
documents for ICWA compliance determinations].)
Through jurisdiction/disposition and status review reports, DCFS
informed the court that during several interviews in July 2020 and
February 2022, mother, Adam G., Jose N., and Mateo’s “paternal
grandparents” (i.e., Maria G. and Audie G.) all denied having any
known Indian ancestry. Indeed, mother, Tina W., and Maria G. also
informed the court during the February 2022 status review hearing that
they did not have any Indian heritage. It was at that time that Tina W.
indicated that an unnamed maternal grandfather (an extended family
member of both Mateo and Dominic) may have Cherokee heritage.
Based on this information, the court ordered DCFS to “make further
inquiries” as to Mateo and Dominic’s Indian heritage.
Thus, because the record and postjudgment evidence affirmatively
demonstrate that additional inquiry by DCFS and the court revealed
information suggesting a reason to believe Mateo and Dominic may be
Indian children, any prior defects occurring at the initial duty of inquiry
stage during the detention and jurisdiction/disposition hearings was
harmless under any standard of prejudice. (See N.G., supra, 27
Cal.App.5th at p. 484; A.C., supra, 65 Cal.App.5th at pp. 1070–1073;
Benjamin M., supra, 70 Cal.App.5th at p. 744; Dezi C., supra, at p. *4.)
Of paramount consideration in any dependency proceeding is that such
actions “be resolved expeditiously. [Citations.] That goal would be
thwarted if the proceeding had to be redone without any showing the
new proceeding would have a different outcome.” (In re Jesusa V.
(2004) 32 Cal.4th 588, 625.) That DCFS was ordered to conduct further
9
inquiry into the children’s Indian heritage means that any remand by
this court for compliance with the duty of initial inquiry would produce
no different outcome in the case. We therefore conclude that the prior
errors of initial inquiry occurring before or during the detention and
jurisdiction/disposition hearing were harmless.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
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