In re D.H. CA2/5

Filed 8/24/20 In re D.H. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re D.H., et al., Persons Coming B302142
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 17CCJP02148)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.N.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kim L. Nguyen, judge pro tempore. Dismissed.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, and Kim Nemoy,
Principal Deputy County Counsel, for Plaintiff and Respondent.
________________________
INTRODUCTION
Mother appeals from the termination of her parental
rights, raising a single argument — the juvenile court and the
Department of Children and Family Services (DCFS) failed to
comply with the Indian and Child Welfare Act (ICWA).
(25 U.S.C. § 1901 et seq.) Specifically, mother argues that
neither the court nor DCFS inquired of paternal relatives
whether father, who was deceased, had Indian ancestry. We
dismiss the appeal as moot because while the appeal was
pending, DCFS presented evidence from the paternal relatives
that father had no Indian ancestry and the trial court found for a
second time that ICWA did not apply.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has three children (ages nine, seven, and five when
DCFS initiated proceedings in 2017). Father died in 2013. On
November 30, 2017, DCFS filed a Welfare and Institutions Code
section 300 petition alleging that mother had a history of
engaging in altercations with relatives in the presence of her
children and used inappropriate physical discipline on her oldest
child.1
On December 1, 2017, the court detained all three children
from mother. Mother filed paternity questionnaire forms for each
child, showing father was deceased. The court acknowledged the
paternity forms and found father to be an alleged father.
At this hearing, mother claimed to have Indian ancestry
through the Tarasco tribe, which the juvenile court later
confirmed was not a federally recognized tribe. The court
1 All subsequent statutory references are to the Welfare and
Institutions Code. This is a fast track juvenile dependency case.
Because of delays caused by the COVID-19 pandemic and further
proceedings in the trial court related to the issue on appeal, the
court finds good cause to file this opinion after the 250th day.
2
questioned mother about deceased father’s ancestry. The court
asked mother: “Do you have any reason to know whether [father]
had any American Indian ancestry?” She replied: “Their father,
not that I know of.” Paternal grandmother and a paternal aunt
were present in court but the court did not ask them about
father’s ancestry. The court found there was no reason to know
ICWA applied. The record does not contain evidence that DCFS
ever asked paternal relatives about father’s ancestry.
In February 2018, the court declared the children
dependents under section 300, subdivision (b), removed them
from mother’s custody, and ordered DCFS to provide
reunification services. In March 2018, DCFS placed the children
in the home of the paternal grandmother and aunt. A year later,
the juvenile court terminated mother’s reunification services. On
November 6, 2019, the court terminated parental rights to free
the children for adoption by the paternal grandmother and aunt.
Mother filed a notice of appeal on November 7, 2019,
challenging the termination of her parental rights.
DISCUSSION
Mother argues the order terminating parental rights must
be reversed because DCFS did not inquire about the children’s
Indian ancestry through their father’s lineage. Specifically,
mother asserts the paternal grandmother and aunt should have
been questioned about father’s heritage. “We review a court’s
ICWA findings for substantial evidence.” (In re Austin J. (2020)
47 Cal.App.5th 870, 885 (Austin J.).)
“Under California law, the court and county child welfare
department ‘have 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.’ [Citations.] The child
welfare department’s initial duty of inquiry includes ‘asking the
child, parents, legal guardian, Indian custodian, extended family
3
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).)” (Austin J., supra,
47 Cal.App.5th at p. 883.)
Here, the court took mother’s lack of knowledge about
father’s lineage as conclusive proof of no Indian ancestry in
December 2017. This, without further inquiry, was error.
DCFS, nevertheless, later remedied this error by asking the
paternal grandmother and aunt whether father had Native
American Indian ancestry; they answered in the negative. DCFS
filed a report documenting these statements with the juvenile
court on May 5, 2020, while this appeal was pending. On July 9,
2020, the juvenile court issued a post judgment order, finding
that ICWA did not apply based on the new information.2 On
July 13, 2020, DCFS moved to dismiss the appeal, asserting that
the appeal is now moot. We agree the appeal is moot as
substantial evidence supports the court’s finding that ICWA does
not apply.
Mother opposed the motion to dismiss and request for
judicial notice, arguing that because the matter was “walked on
calendar” for an ICWA finding, neither mother nor her counsel
attended the hearing, nor were they able to review and be in a
position to object to the documents submitted by DCFS.
We conclude the lack of notice to mother of this hearing
was harmless error. (In re J.P. (2017) 15 Cal.5th 789. 798 [“The
harmless error analysis applies in juvenile dependency
2 We grant DCFS’s May 12, 2020 request for judicial notice of
its “Last Minute Information for the Court” document filed with
the juvenile court on May 5, 2020, and its July 13, 2020 request
for judicial notice of the juvenile court’s corresponding July 9,
2020 order. (See Evid. Code, §§ 459, 452.)
4
proceedings even where the error is of constitutional
dimension.”].) At the outset of the dependency case, mother
indicated that she did not have any evidence regarding father’s
Indian heritage. On appeal, she does not indicate that she now
has any information of Native American ancestry she would
present to the trial court. We conclude that mother’s presence at
the hearing would have had no bearing on the trial court’s order.
DISPOSITION
The appeal is dismissed.
RUBIN, P. J.
I CONCUR:
MOOR, J.
5
In re D.H., et al.
B302142
BAKER, J., Concurring
I agree the appeal should be dismissed as moot. L.N.’s
absence from the judicially noticed proceeding in which the
juvenile court found the Indian Child Welfare Act
inapplicable does not undermine that finding. Mother had
no stake in the outcome of that proceeding, having
previously asserted (as the juvenile court found) that the
father had no Indian ancestry. Further, in this court,
Mother does not challenge or otherwise object to the report
the Department of Children and Family Services submitted
recounting the paternal aunt and grandmother’s statements.
BAKER, J.