In re A.C. CA2/2

Filed 5/16/23 In re A.C. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re A.C. et al., Persons Coming B318943
Under the Juvenile Court Law. (Los Angeles County
Super. Ct.
No. 18CCJP06623A-D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Y.E. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County. Debra L. Losnick, Judge. Dismissed in part and
affirmed in part.
Robert McLaughlin, under appointment by the Court of
Appeal, for Defendant and Appellant Carlos V.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant Y.E.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Appellants Carlos V. (father) and Y.E. (mother) appeal
from the juvenile court’s order terminating their parental rights
over their two children, Carlos V., Jr., (born Jan. 2015) and D.V.
(born Nov. 2016).1 Mother purports to appeal from the order
terminating her parental rights over her two older children,
Andres C., Jr., (born Jun. 2007) and Angel C. (born Aug. 2008).
Both parents allege that the Los Angeles County
Department of Children and Family Services (DCFS) and the
juvenile court failed to comply with their initial inquiry duties
under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.
§ 1901 et seq.) and related California law with respect to their
shared children.
DCFS contends that it fully complied with ICWA with
respect to Carlos V., Jr., and D.V. It also urges us to dismiss the
appeal as to Andres C., Jr., and Angel C., as mother makes no
claim of error regarding them.
We agree with the latter contention, but find that DCFS
and the juvenile court did err by failing to make any attempt to
ask four known extended relatives about Carlos V., Jr., and
1 Father also appeals from the juvenile court’s order denying
his petition to reinstate reunification services.
2
D.V.’s potential Indian ancestry. However, under the standard
we articulated in In re Dezi C. (2022) 79 Cal.App.5th 769(Dezi C.), review granted September 21, 2022, S275578, we find
that any inquiry errors are not prejudicial. Accordingly, we
dismiss the appeal as to Andres C., Jr., and Angel C., and affirm
as to Carlos V., Jr., and D.V.
FACTS AND PROCEDURAL BACKGROUND2
On December 7, 2017, DCFS opened an investigation into
the family after father and mother reportedly got into a physical
altercation.
Neither parent appeared before the juvenile court until a
year later. On December 31, 2018, father filed an ICWA-020
form stating that he might have Indian ancestry, and
subsequently claimed that his “paternal great-great
grandmother” was Apache. He identified his brother (paternal
uncle) and sister (paternal aunt) as potential sources of
information about his family. On January 2, 2019, mother made
her first appearance, filed an ICWA-020 form stating that she
had Indian ancestry, and claimed that her grandmother
(maternal great-grandmother) was “Apache.” The juvenile court
ordered DCFS to investigate both parents’ claims.
When DCFS followed up with mother, she informed it that
maternal great-grandmother had died in January 2017. Mother
claimed that maternal great-grandmother was “a registered
Apache Indian,” but admitted that mother “did not know the
actual tribe.”
DCFS was able to interview paternal aunt and paternal
uncle. Both initially denied having any additional information
2 Because ICWA error is the only issue raised in this appeal,
our summary focuses on facts related to ICWA compliance.
3
about their alleged Indian ancestry. Paternal uncle later
informed DCFS that father had probably been thinking of a DNA
test that had revealed “that [paternal uncle] was 35% Native
American,” but added that “[t]here was no actual registry” and
attributed the DNA result to the family’s Mexican heritage.
After gathering all this information disclosures, DCFS
mailed ICWA-030 notices to “all Apache nations.” The tribes
subsequently responded, indicating that the family did not have
Apache heritage.
On May 15, 2019, the juvenile court found that it had no
reason to know that Carlos V., Jr., and D.V. were Indian children
and determined that ICWA did not apply.
On January 9, 2020, the juvenile court terminated father’s
reunification services, but further permanency proceedings were
delayed.3 On August 31, 2021, father filed a Welfare and
Institution Code section 3884 petition to request reinstatement of
his reunification services.
On March 4, 2022, the juvenile court denied father’s section
388 petition. Three days later, it held a contested section 366.26
hearing. After hearing argument from mother and father, the
court found all four children adoptable and terminated father and
mother’s parental rights.
3 The juvenile court had previously bypassed reunification
services for mother, as her parental rights over her two oldest
children (who are not a part of this appeal) had been terminated
in a prior proceeding and mother had not made reasonable efforts
to treat the problems that led to those children’s removal.
4 All further statutory references are to the Welfare and
Institution Code unless otherwise indicated.
4
Mother and father timely appealed.
DISCUSSION
I. ICWA
Father’s sole argument on appeal is that both DCFS and
the juvenile court failed to satisfy the duty of initial inquiry
under ICWA as to his two children with mother, Carlos V., Jr.,
and D.V. Mother joins in his arguments.
A. Relevant Law
“ICWA was enacted to curtail ‘the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement’ [citation], and ‘to
promote the stability and security of Indian tribes and families by
establishing . . . standards that a state court . . . must follow
before removing an Indian child from his or her family’
[citations].”5 (In re Dezi C., supra, 79 Cal.App.5th at p. 780.)
Under California law enacted to implement ICWA, DCFS
and the juvenile court have “three distinct duties . . . in
dependency proceedings.” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.) The first is the initial duty of inquiry, which DCFS
“discharges . . . chiefly by ‘asking’ family members ‘whether the
child is, or may be, an Indian child.’ ([§ 224.2], subd. (b).).”
(Ibid.) “This includes inquiring of not only the child’s parents,
but also others, including but not limited to, ‘extended family
members.’ (Ibid.) For its part, the juvenile court is required, ‘[a]t
the first appearance’ in a dependency case, to ‘ask each
5 An “‘Indian child’ means 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 tribe and is the
biological child of a member of an Indian tribe[.]” (25 U.S.C.
§ 1903(4); see also § 224.1, subd. (a) [adopting federal definition].)
5
participant’ ‘present’ ‘whether the participant knows or has
reason to know that the child is an Indian child.’ ([§ 224.2,]
subd. (c).)” (In re Dezi C., supra, 79 Cal.App.5th at p. 780; see
also Cal. Rules of Court, rule 5.481(a)(1)-(2).) The second duty—
the duty of further inquiry—is triggered if there is “reason to
believe that an Indian child is involved” (§ 224.2, subd. (e)), while
the third duty—to notify the relevant tribes—is triggered if there
is “reason to know . . . that an Indian child is involved” (§ 224.3,
subd. (a)).
Over the past few years, a spate of appellate courts has
weighed in on the consequence to orders terminating parental
rights when a social services agency fails to conduct the required
initial ICWA inquiry, resulting in “a continuum of tests for
prejudice stemming from error in following California statutes
implementing ICWA.” (In re A.C. (2022) 75 Cal.App.5th 1009,
1011; see also In re Dezi C., supra, 79 Cal.App.5th at pp. 777–
778.) Our Division has adopted the following rule: “[A]n agency’s
failure to conduct a proper initial inquiry into a dependent child’s
American Indian heritage is harmless unless the record contains
information suggesting a reason to believe that the child may be
an ‘Indian child’ within the meaning of ICWA, such that the
absence of further inquiry was prejudicial to the juvenile court’s
ICWA finding. For this purpose, the ‘record’ includes both the
record of proceedings in the juvenile court and any proffer the
appealing parent makes on appeal.” (In re Dezi C., supra, at
p. 779.)
B. Standard of Review
“We review claims of inadequate inquiry into a child’s
Indian ancestry for substantial evidence. [Citation.]” (In re H.V.
(2022) 75 Cal.App.5th 433, 438.) “Where, as here, there is no
6
doubt that the Department’s inquiry was erroneous, our
examination as to whether substantial evidence supports the
juvenile court’s ICWA finding ends up turning on whether that
error by the Department was harmless—in other words, 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.” (In re Dezi C., supra, 79 Cal.App.5th at p. 777.)
C. Analysis
This appeal presents two fundamental questions: (1) did
DCFS and the juvenile court commit error under ICWA, and (2) if
so, was that error prejudicial? We address each of these
questions in turn.
1. Error
Father and mother argue that DCFS erred by failing to
locate and/or interview seven of their known, extended family
members about the families’ potential Indian heritage—namely,
Carlos V., Jr., and D.V.’s paternal great-grandparents, a second
paternal aunt, maternal grandparents, maternal great-
grandfather, and maternal aunt.6 DCFS concedes that they did
not interview any of these family members, but argues that these
omissions do not constitute error under ICWA.
As outlined above, ICWA requires social services agencies
to ask a child’s available extended family members whether the
child is or may be an Indian child. (§ 224.2, subd. (b).) Under
ICWA, absent conflicting law or custom of an Indian child’s tribe,
6 Father initially identified four additional relatives with
whom DCFS failed to inquire, but conceded in his reply brief that
those four relatives are either unrelated to his children, deceased,
or unavailable.
7
an “‘extended family member’” is defined as “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.”7 (25 U.S.C. § 1903(2); see also In re Rylei S. (2022)
81 Cal.App.5th 309, 318.) Accordingly, DCFS was obligated to
inquire of four out of seven of the relatives father identifies: the
children’s maternal grandparents, second paternal aunt, and
maternal aunt.
Although a dependency investigator interviewed Carlos V.,
Jr., and D.V.’s paternal aunt and uncle, nothing in the record,
including the jurisdiction/disposition report prepared by DCFS,
which summarized its ICWA-inquiry efforts, indicates that DCFS
fully satisfied its ICWA obligation by contacting (or attempting to
contact) the children’s maternal grandparents, second paternal
aunt, or maternal aunt, despite having their names, birth dates,
and/or telephone numbers. Under the plain language of ICWA
and its implementing statutes, these failures were error.
DCFS contends that it effectively cured any inquiry error
by sending notices to all Apache tribes based on both parent’s
attestations of Apache ancestry. It argues that “the point of the
inquiry statutes” is “to gather information on whether to send—
and if so, to fill out” notices to any affected tribes, and that
sending proper notices effectively overwrites any prior inquiry
error.
We cannot wholly agree with this proposition, for while
“proper notice to Indian tribes is central to effectuating ICWA’s
purpose,” it is equally true that “adequate[ly] investigat[ing] . . . a
family member’s belief [that] a child may have Indian ancestry is
7 Section 224.1, subdivision (c), adopts this federal definition
of “‘extended family member.’”
8
essential to ensuring a tribe entitled to ICWA notice will receive
it.” (In re T.G. (2020) 58 Cal.App.5th 275, 289.) It is possible
that inquiring with the children’s second paternal aunt or
maternal relatives could have revealed that their parents were
mistaken about the identity of the tribe with which the family
had been affiliated, or that the family had been affiliated with
another tribe equally entitled to notice. Accordingly, sending
notice to the tribes first indicated by the parents cannot
completely negate the error caused by DCFS’s failure to satisfy
its duty of initial inquiry.8
DCFS appears to imply that sending this matter back to
the juvenile court for further ICWA compliance would be
fruitless, arguing that granting a remand on this record would
“provide zero insight into whether the children are Indian, and
instead would needlessly delay permanency.” But the likelihood
that further proceedings would yield a different result is a
question of prejudice, not of error. (In re J.S. (2011)
196 Cal.App.4th 1069, 1078 [“Reversal is justified ‘only when the
court . . . is of the “opinion” that it is reasonably probable that a
result more favorable to the appealing party would have been
reached in the absence of the error’”]; see also In re Dezi C.,
supra, 79 Cal.App.5th at p. 777 [when evaluating whether an
inquiry error was harmless, “we must assess whether it is
8 Because the duties of initial and further inquiry
significantly overlap, including with regard to the duty to
interview extended family members regarding suspected Indian
ancestry, thorough compliance with the duty of further inquiry
arguably negates prior errors of initial inquiry; however, DCFS
does not argue that it complied with either of the inquiry duties.
9
reasonably probable that the juvenile court would have made the
same ICWA finding had the inquiry been done properly”].)
We now turn to that issue.
2. Prejudice
Applying the “‘reason to believe’ rule” that we adopted in
Dezi C., supra, 79 Cal.App.5th at page 779, we conclude that the
juvenile court and DCFS’s failure to make the requisite inquiries
of extended family members was harmless because the record
does not suggest a reason to believe that Carlos V., Jr., and D.V.
are Indian children within the meaning of ICWA.9
Father argues that his and mother’s claims to Apache
ancestry both provided a reason to believe that the children are
Indian children. However, after DCFS sent notice to “all Apache
nations”, the tribes confirmed that the family does not have
Apache ancestry. And neither mother nor father made any
proffer, either below or on appeal, that their families have any
other source of potential Indian heritage. (See Dezi C., supra,
79 Cal.App.5th at pp. 779, fn. 4, 786.)
Our analysis is underscored by ICWA itself, which
narrowly defines “Indian child” to include only a child who is
herself or whose parent is a current member of a federally
recognized Indian tribe. (§ 224.1, subd. (b).) We doubt that the
extended relatives, if asked, would have been able to provide any
different information about whether Carlos V., Jr., and D.V.,
their mother, or their father were current tribal members of any
9 Father encourages us to set aside the “reason to believe”
rule and to instead adopt one of the more stringent prejudice
tests promulgated by our colleagues in other divisions. For the
reasons set forth in In re Dezi C., supra, 79 Cal.App.5th at
pages 782–786, we decline to do so.
10
other tribe—particularly in the absence of any contrary
suggestion from the parents, either before the juvenile court or on
appeal. (See In re A.C., supra, 75 Cal.App.5th at p. 1023 (dis.
opn. of Crandall, J.) [“Because such basic information is often
known or easily discoverable by each respective parent, there is
limited utility in remanding such matters for ‘extended family
member’ inquiry”].)
Accordingly, we conclude that “it is reasonably probable
that the juvenile court would have made the same ICWA finding”
even if it and DCFS had conducted proper initial inquiries with
Carlos V., Jr., and D.V.’s extended relatives. (In re Dezi C.,
supra, 79 Cal.App.5th at p. 777.)
II. Dismissal
As we noted above, mother also purports to appeal from the
juvenile court’s order terminating her parental rights over her
two older children, Andres C., Jr., and Angel C.
However, while mother joins in father’s argument
regarding her two youngest children, she does not challenge the
juvenile court’s orders with respect to her older children. “An
appealed-from judgment or order is presumed correct. [Citation.]
Hence, the appellant must make a challenge. In so doing, [she]
must raise claims of reversible error or other defect [citation], and
‘present argument and authority on each point made’ [citations].
If [she] does not, [she] may, in the court’s discretion, be deemed to
have abandoned his appeal. [Citation.]” (In re Sade C. (1996) 13
Cal.4th 952, 994.)
Accordingly, we find that mother has abandoned her appeal
with respect to Andres C., Jr., and Angel C., and dismiss the
appeal as to them.
11
DISPOSITION
The appeal is dismissed as to Andres C., Jr., and Angel C.
The juvenile court’s orders are affirmed as to Carlos V., Jr., and
D.V.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
_________________________, P. J.
LUI
_________________________, J.
HOFFSTADT
12