In re H.G. CA2/8

Filed 6/7/23 In re H.G. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
In re H.G., A Person Coming B322211
Under the Juvenile Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN (Los Angeles County
AND FAMILY SERVICES, Super. Ct. No. 18CCJP06109A)
Plaintiff and Respondent,
v.
L.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Marguerite D. Downing, Judge. Affirmed.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
L.G. (mother) appeals from the juvenile court’s order
terminating parental rights over her child, H.G., under Welfare
and Institutions Code1 section 366.26. Mother argues the
juvenile court erred in failing to apply the beneficial parental
relationship exception to the termination of her parental rights
(§ 366.26, subd. (c)(1)(B)(i)). Mother also asserts the juvenile
court erred in finding the Indian Child Welfare Act of 1978
(ICWA; 25 U.S.C. § 1901 et seq.) inapplicable because the Los
Angeles County Department of Children and Family Services
(Department) failed to inquire with maternal aunt and maternal
uncle about possible Indian ancestry. Finding no prejudicial
error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Dependency Petition
Mother and an unknown father are the parents of H.G., a
girl born August 2018. Mother also has three older children who
were the subject of prior dependency proceedings. The three
older children received permanent placement services and were
adopted in 2017 after mother failed to reunify with them.
The current matter came to the Department’s attention in
September 2018 when probation officers went to a residence in
search of a juvenile offender. Mother and then-three-week-old
H.G. were present in the home along with several other
individuals, including a man on parole for a child sex offense and
a man in possession of a loaded firearm. Although a number of
baby supplies were found in the room occupied by mother and
1 Unless otherwise stated, all further statutory references
are to the Welfare and Institutions Code.
2
H.G., mother denied that she and the newborn resided in the
home or were related to anyone who lived there. On
September 19, 2018, H.G. was placed in temporary shelter care.
On September 21, 2018, the Department filed a dependency
petition on behalf of H.G. under section 300, subdivisions (a), (b),
and (j). The petition alleged that H.G. was at substantial risk of
serious harm based on mother’s conduct in creating a detrimental
and endangering home environment for the child, mother’s prior
physical abuse of the child’s older half siblings, and mother’s
history of mental and emotional problems. At a September 24,
2018 detention hearing, the juvenile court detained H.G. from
mother. The matter was set for a jurisdictional hearing.
2. Jurisdictional and Dispositional Hearing
A combined jurisdictional and dispositional hearing was
held on October 31, 2018. Mother pled no contest to an amended
section 300 petition that alleged one subdivision (b) count based
on her history of mental and emotional problems, and one
subdivision (j) count based on her prior physical abuse of H.G.’s
half siblings. All remaining counts were dismissed. The juvenile
court sustained the petition as amended, declared H.G. a
dependent of the court under section 300, subdivisions (b) and (j),
and removed the child from parental custody. Mother was
granted family reunification services, including drug and alcohol
services, anger management, parenting education, a mental
health evaluation, and individual counseling to address case
issues. The court also ordered monitored visitation between
mother and H.G.
3. Status Review Hearings
On December 1, 2018, at the age of three months, H.G. was
placed in the foster home of Mr. and Mrs. M. In an April 2019
3
status review report, the Department stated that H.G. was well-
loved in her foster home. Mr. and Mrs. M. were meeting the
child’s needs and were bonded to her. Mother had been attending
monitored visitation with H.G. twice per week. She was engaged
with the child, brought her gifts and combed her hair, and
inquired about her doctor’s appointments. Mother had not,
however, been compliant with her court-ordered services. She
tested positive for methamphetamines in March 2019, and
missed a number of other on-demand drug tests. Although
mother consistently attended individual counseling, she was
dismissed from her anger management and parenting programs
after she became verbally and physically aggressive with the
program facilitator. She started attending new programs in
anger management and parenting, but had not submitted to a
mental health evaluation or enrolled in a drug treatment
program.
At a six-month review hearing held on May 1, 2019, the
juvenile court found that continued jurisdiction was necessary.
The court also found that mother was in partial compliance with
her case plan, and ordered her to continue participating in
reunification services, including a full drug treatment program.
The matter was set for a 12-month review hearing.
In an October 2019 status review report, the Department
stated that H.G. continued to receive appropriate care in her
foster home and was meeting her developmental milestones.
Mother was visiting H.G. on a consistent basis and was
appropriate with the child during the visits. At times, however,
mother was verbally aggressive with the staff who monitored the
visits and displayed anger in H.G.’s presence. With respect to
her case plan, mother had completed her anger management and
4
parenting programs, submitted to a mental health evaluation,
and made progress in her individual counseling. She also was
attending a substance abuse treatment program and submitting
to random drug testing in that program. Although mother was
compliant with her case plan, the Department recommended she
continue participating in reunification services given her ongoing
anger issues and need for additional counseling.
At a 12-month review hearing held on October 30, 2019, the
juvenile court again found that continued jurisdiction was
necessary. The court also found that mother consistently visited
H.G., and had made significant progress in resolving the issues
that led to the child’s removal. The court ordered mother to
continue participating in reunification services, and set the
matter for an 18-month permanency review hearing.
In its March 2020 status review report, the Department
stated that H.G. was developing appropriately and was well-
adjusted in her foster home. Mother maintained regular
visitation with H.G., and during the visits, she brought the child
healthy foods and age-appropriate toys, games, videos, and
music. She also continued to attend individual counseling and a
substance abuse program. However, her attendance in the
substance abuse program had been poor, and she tested positive
for marijuana in January 2020. The Department recommended
the 18-month review hearing be continued to allow for further
assessment of mother’s compliance with her case plan.
Due to the COVID-19 pandemic, the 18-month review
hearing was delayed for about a year. During this period, mother
was generally compliant with her court-ordered services, but had
not begun participating in a substance abuse aftercare program.
She was having in-person visits with H.G. twice a week, and
5
FaceTime calls with the child daily. Mother and H.G. were
happy to spend time together, and H.G.’s caregiver observed that
the child was comfortable with mother and bonded to her. Given
mother’s progress, the Department decided in January 2021 to
liberalize her visits to unmonitored. In February 2021, however,
mother missed two consecutive drug tests and then had a positive
test for cocaine. She also tested positive for marijuana a few
weeks later. In March 2021, the Department recommended that
mother’s reunification services be terminated.
On April 14, 2021, the juvenile court held the 18-month
permanency review hearing. The court found that mother’s
progress in addressing the causes that necessitated H.G.’s
removal had not been substantial, and that the child could not be
safely returned to her care. The court terminated mother’s
reunification services and set the matter for a section 366.26
permanency planning hearing.
4. Section 366.26 Permanency Planning Hearing
The section 366.26 hearing originally was set for August
2021, but had to be continued several times for paternity testing
to determine H.G.’s biological father. Over the course of the
proceedings, mother identified three different men as the alleged
father of H.G. All three men, however, refused to claim paternity
over the child, and agreed to submit to a DNA test. The results of
the DNA tests ultimately showed that none of the men identified
by mother was H.G.’s biological father.
In its September 2021 section 366.26 report, the
Department stated that H.G.’s long-term foster parents, Mr. and
Mrs. M., were committed to adopting the child and providing her
with a permanent home. They had been providing H.G. with
excellent care and a nurturing home environment since her
6
placement with them in December 2018. They expressed that
they loved H.G. very much, and wanted to adopt her to ensure
she was raised in a safe and stable home. While H.G. was too
young to make a meaningful statement, she was observed to be
comfortable in her foster parents’ care. She showed a strong
attachment to Mr. and Mrs. M., was affectionate toward them,
and frequently sought them out for comfort and affection.
As of October 2021, mother was attending monitored
visitation with H.G. twice per week for four hours per visit.
During the visits, mother engaged well with H.G., and interacted
with her at an age-appropriate level. Mother played with the
child, practiced counting with her, and sang educational songs to
her. H.G. was excited to see mother at the start of each visit and
did not want the visits to end. Both mother and H.G. readily
displayed affection toward one another, and the child referred to
mother as “mommy.” While the visits generally went well, there
had been one incident where mother verbally threatened the
monitor for refusing to extend a visit.
In a February 2022 supplemental report, the Department
stated that H.G. remained stable in the home of Mr. and Mrs. M.
She was bonded with her foster parents, displayed a secure
attachment to them, and continued to thrive emotionally and
physically in their care. Mother had regular contact with H.G.
through in-person and virtual visits. Mother continued to be
appropriate with H.G., and they were observed to have a healthy
parent-child bond.
In a last minute information for the court filed in July
2022, the Department reported that Mr. and Mrs. M. remained
committed to adopting H.G. Since the child’s placement in their
care, Mr. and Mrs. M. had provided her with a loving, stable, and
7
nurturing environment. H.G. was fully acclimated to her foster
parents’ home and was comfortable in their presence. She looked
to Mr. and Mrs. M. in times of need, displayed affection toward
them, and referred to them as “mommy” and “daddy.” While
recognizing that mother had maintained regular contact with
H.G. through monitored visitation, the Department stated that
the child was bonded with her foster family and that they desired
to provide her with permanency through adoption. The
Department recommended that parental rights over H.G. be
terminated and the child be freed for adoption.
On July 11, 2022, the juvenile court held the section 366.26
hearing. In addition to admitting the reports filed by the
Department, the juvenile court heard the testimony of mother.
Mother testified that she attended in-person visits with H.G.
three times a week, and called the child and her caregiver daily.
During the calls, mother would ask the caregiver about H.G.’s
behavior and medical appointments. The in-person visits
generally took place at a park where mother would push H.G. on
the swings, engage in water play with her, and watch her play
with other children. H.G. was affectionate with mother, and
would express that she wanted to go with mother at the end of
their visits.
Mother’s counsel asked the juvenile court not to terminate
parental rights over H.G. based on the statutorily recognized
exception for a beneficial parental relationship. In discussing the
three-factor test set forth in In re Caden C. (2021) 11 Cal.5th 614(Caden C.), counsel argued that mother had maintained regular
visitation with H.G., that mother and H.G. shared a positive,
emotional attachment, and that terminating the attachment
would be detrimental to H.G. Counsel for H.G. and counsel for
8
the Department both requested the court terminate parental
rights. H.G.’s counsel acknowledged that mother and H.G. had a
positive relationship, but asserted that the child had been with
her current caregivers for three years, and that her bond with
mother did not outweigh the bond she shared with her
prospective adoptive family. The Department’s counsel argued
that, while mother and H.G. had developed a bond during their
visits, the current caregivers were the ones who provided H.G.
with a consistent parent-child relationship and were able to meet
her needs in a way that mother never could.
The juvenile court found by clear and convincing evidence
that H.G. was adoptable, and that no exception to the
termination of parental rights applied. Addressing the beneficial
parental relationship exception, the court stated: “The court has
reviewed the reports and . . . taken into consideration Caden C.
[¶] The court concedes that now the mother’s visits are regular
and they are positive, but there is no evidence that terminating
the parental bond would be detrimental to [H.G.] . . . . [¶] . . .
[¶] [S]he was detained within 30 days of her birth. [¶] . . . [¶]
. . . And she was placed with the caretakers two months later.
[¶] She has resided with them for three years. [¶] So the court
has not been provided with any evidence that terminating the
parental bond would be detrimental to this child, who has been
raised in the home of the caretakers. [¶] The court finds . . .
there is no exception [to] adoption that applies in th[is] case.”
The court terminated parental rights over H.G. and ordered
adoption as her permanent plan.
9
5. ICWA Inquiry and Findings
When the Department met with mother in September 2018,
she denied Indian2 ancestry. At that time, the Department also
spoke with a maternal aunt, S.S., who reported that mother
resided with her. There is no indication that the Department
inquired of maternal aunt if H.G. is or might be an Indian child.
At the September 24, 2018 detention hearing, mother
submitted a parental notification of Indian status (ICWA–020)
form in which she checked the box indicating she did not have
Indian ancestry as far as she knew. Based on mother’s response
in her ICWA–020 form, the juvenile court found it had no reason
to know that ICWA applied or that H.G. was an Indian child.
At the detention hearing, mother identified a maternal
uncle, D.G., as a potential caretaker for H.G. The juvenile court
ordered the Department to assess him for this purpose. The
Department had contact with maternal uncle in October 2018,
but there is no indication the Department asked him whether
H.G. had any Indian ancestry.
We are directed to no record of contact between the
Department and extended family members of H.G. other than
maternal aunt and maternal uncle. The record reflects that no
other such family members were available to the Department.
According to the October 2018 jurisdictional and dispositional
report, mother told the Department that she was raised in the
“foster care system.” Her mother was in prison, and she did not
know her father. She had one brother and three sisters. The
report on mother’s mental health evaluation noted that she and
2 In this opinion, we use “Indian” as defined in section 1903
of title 25 of the United States Code.
10
her brother (maternal uncle) spent most of their childhood in and
out of foster homes and did not know their biological parents.
The report further stated that a foster parent who cared for
mother from ages two through 12 was “the closest person [she]
had to a mother.” When the Department asked maternal uncle
whether he knew of other relatives who might be willing to accept
placement of H.G., maternal uncle responded no. No contact was
made between the Department and the other two maternal
aunts, and there is no indication that these maternal aunts were
available to the Department.
At the October 31, 2018 jurisdictional and dispositional
hearing, the juvenile court again found it had no reason to know
ICWA applied or that H.G. was an Indian child. At the
subsequent review hearings and the section 366.26 hearing, the
court did not make any ICWA-related findings.
Mother timely appealed from the order at the section
366.36 hearing terminating her parental rights.
DISCUSSION
1. Beneficial Parental Relationship Exception
On appeal, mother contends the juvenile court erred in
finding that the beneficial parental relationship exception did not
apply to the termination of her parental rights. In particular, she
claims that the court failed to comply with the principles
articulated in Caden C., supra, 11 Cal.5th 614, and that the
evidence showed H.G. shared a substantial, positive, emotional
attachment with mother that would be detrimental to sever. We
conclude the juvenile court did not err in finding the exception
inapplicable.
11
a. Governing law.
At a hearing under section 366.26, the juvenile court must
select and implement a permanent plan for a dependent child,
with the express purpose of providing the child a “stable,
permanent” home. (Id., subd. (b).) Where there is no probability
of reunification with a parent, adoption is the preferred
permanent plan. (Id., subd. (b)(1).) For the court to implement
adoption as the permanent plan, it must find, by clear and
convincing evidence, that the child is likely to be adopted if
parental rights are terminated. (Id., subd. (c)(1).) Then, in the
absence of evidence that a relative guardianship should be
considered, or that the termination of parental rights would be
detrimental to the child under one of the enumerated exceptions,
the court “shall terminate parental rights.” (Id., subd. (c)(1)(B)(i)-
(vi).) These “ ‘statutory exceptions merely permit the court, in
exceptional circumstances [citation], to choose an option other
than the norm, which remains adoption.’ ” (Caden C., supra,
11 Cal.5th at p. 631.)
Under section 366.26, subdivision (c)(1)(B)(i), the beneficial
parental relationship exception applies when the juvenile court
determines that the termination of parental rights would be
detrimental to the child because “[t]he parents have maintained
regular visitation and contact with the child and the child would
benefit from continuing the relationship.” (Ibid.) In Caden C.,
the California Supreme Court held that a “parent asserting the
parental benefit exception must show, by a preponderance of the
evidence, three things. The parent must show regular visitation
and contact with the child, taking into account the extent of
visitation permitted. Moreover, the parent must show that the
child has a substantial, positive, emotional attachment to the
12
parent—the kind of attachment implying that the child would
benefit from continuing the relationship. And the parent must
show that terminating that attachment would be detrimental to
the child even when balanced against the countervailing benefit
of a new adoptive home.” (Caden C., supra, 11 Cal.5th at p. 636.)
We review the juvenile court’s findings as to the first two
elements—whether the parent has maintained regular visitation
with the child and whether the child has a beneficial relationship
with the parent—for substantial evidence. (Caden C., supra,
11 Cal.5th at pp. 639–640.) We review the third element—
whether termination of parental rights would be detrimental to
the child due to the child’s relationship with the parent—for
abuse of discretion. (Id. at p. 640.) The reviewing court will find
an abuse of discretion “only when ‘ “ ‘the [juvenile] court has
exceeded the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination.’ ” ’ ” (Id. at p. 641.)
b. The juvenile court did not err in finding the
beneficial parental relationship exception
inapplicable.
Mother argues the juvenile court’s application of the
beneficial parental relationship exception did not comply with
Caden C., supra, 11 Cal.5th 614, because the court failed to
conduct a fact-specific inquiry of H.G.’s relationship with mother
and whether severing that relationship would be detrimental to
H.G. Mother asserts the court instead made a cursory finding
that, because H.G. had lived with her caregivers for three years
and there was no evidence that terminating the parental bond
would be detrimental to her, the exception did not apply. This
argument lacks merit.
13
In issuing its ruling, the juvenile court indicated that it had
reviewed the Department’s reports and considered Caden C. As
to the first element, the court found that mother had maintained
regular visitation with H.G. As to the second element, while the
court did not make any express findings as to whether H.G.
would benefit from continuing the relationship, it did note that
mother’s visits with the child were “positive” and that there was
a “parental bond.” As to the third element, the court explained
that H.G. was detained from mother when she was less than one
month old, was placed with her caregivers two months later, and
had lived with the caregivers for three years. The court then
stated that it had “not been provided with any evidence that
terminating the parental bond would be detrimental” to H.G. On
that basis, the court found the beneficial parental relationship
exception did not apply.
Although it would have been a better practice for the
juvenile court to make express findings as to each of the three
elements of the Caden C. analysis for purposes of appellate
review, such findings were not required. As the Sixth District
explained, “we infer from section 366.26, subdivision (c)(1)(D)—
under which the juvenile court is required to ‘state its reasons in
writing or on the record’ when it makes a finding that
termination of parental rights would be detrimental to the
child—that the court is not required to make findings when it
concludes that parental rights termination would not be
detrimental.” (In re A.L. (2022) 73 Cal.App.5th 1131, 1156.) The
California Rules of Court also do not impose any requirement
that the juvenile court make findings on the record when
deciding that the termination of parental rights would not be
detrimental to the child. (See Cal. Rules of Court, rule 5.725(d).)
14
Here, the juvenile court stated on the record that, after
considering the evidence and the decision in Caden C., there was
no evidence that terminating the parental bond would be
detrimental to H.G. It is therefore evident that the court found
mother did not meet her burden of establishing the third element
of the Caden C. analysis—whether termination of parental rights
would be detrimental to the child. Mother has not shown the
court misapplied the law by failing to articulate more fact-specific
findings in announcing its ruling. (In re A.L., at p. 1156
[appellate court presumes juvenile court knows and correctly
applies the law].)
Mother also asserts the juvenile court erred in finding the
beneficial parental relationship exception did not apply because
the evidence demonstrated that H.G. had a substantial, positive,
emotional attachment to mother, and that it would be
detrimental to sever that bond. This claim likewise fails. Even
assuming that mother established the first and second elements
of the beneficial parental relationship exception, we conclude the
juvenile court did not abuse its discretion in finding mother failed
to establish the third element.
In evaluating the third element—whether termination of
parental rights would be detrimental to the child—the juvenile
court must determine whether “the benefit of placement in a new,
adoptive home outweigh[s] ‘the harm [the child] would experience
from the loss of [a] significant, positive, emotional relationship’ ”
with the parent. (Caden C., supra, 11 Cal.5th at p. 633.) “The
court makes the assessment by weighing the harm of losing the
relationship against the benefits of placement in a new, adoptive
home.” (Id. at p. 640.) “ ‘If severing the natural parent/child
relationship would deprive the child of a substantial, positive
15
emotional attachment such that,’ even considering the benefits of
a new adoptive home, termination would ‘harm[]’ the child, the
court should not terminate parental rights.” (Id. at p. 633.)
Although the evidence showed that mother and H.G. had
developed a positive emotional attachment over the course of
their monitored visits, the juvenile court reasonably could find
that the benefits H.G. would derive from a permanent, adoptive
home outweighed any harm she would experience from the loss of
that bond. At the time of the section 366.26 hearing, H.G. was
almost four years old. She was detained from mother when she
was only three weeks old, and was placed with her prospective
adoptive parents, Mr. and Mrs. M., at the age of three months.
H.G. had thus spent the vast majority of her life in the care of
Mr. and Mrs. M., who were committed to providing her with a
permanent, adoptive home.
The evidence further demonstrated that H.G. was closely
bonded with her prospective adoptive family and was thriving in
their care. Mr. and Mrs. M. had provided H.G. with a loving,
nurturing, and stable home for three and a half years and she
child was comfortable in their home. H.G. referred to Mr. and
Mrs. M. as “daddy” and “mommy,” frequently sought them out for
comfort and affection, and relied on them to meet all of her needs.
While H.G. clearly enjoyed spending time with mother and
engaging in playtime together during their monitored visits,
mother was never able to sustain more liberalized visitation with
H.G. over the course of the four-year proceedings. Given that
H.G. was only in mother’s care for a few weeks following her
birth, there is no evidence that they ever developed the kind of
beneficial parent-child relationship that would outweigh “ ‘the
security and the sense of belonging that a new family would
16
confer.’ ” (Caden C., supra, 11 Cal.5th at p. 633; In re A.L., supra,
73 Cal.App.5th at p. 1159 [juvenile court did not abuse its
discretion in finding the benefits the child derived from the
father’s consistent, positive visits did not outweigh the benefits
the child would receive from a permanent adoptive home].)
Based on the totality of the evidence before it, the juvenile
court reasonably could find that mother failed to establish her
relationship with H.G. was “so important to the child that the
security and stability of a new home wouldn’t outweigh its loss.”
(Caden C., supra, 11 Cal.5th at p. 633.) The juvenile court
accordingly did not err in finding that the beneficial parental
relationship exception inapplicable.
2. ICWA Inquiry
Mother also challenges the order terminating her parental
rights on the ground that the juvenile court and the Department
failed to comply with the inquiry requirements of ICWA and
related California law. Mother contends the court erred in
finding ICWA inapplicable because the Department did not
conduct a proper initial inquiry into whether H.G. is or may be an
Indian child. We agree there was error but conclude it was not
prejudicial and therefore affirm without conditions.
a. The juvenile court erred in finding ICWA
inapplicable on the record before it.
In involuntary state court proceedings concerning child
custody, such as these dependency proceedings, ICWA requires
notice to the relevant Indian tribe “where the court knows or has
reason to know that an Indian child is involved.” (25 U.S.C.
§ 1912(a).) It is incumbent upon the court administering such a
proceeding to inquire whether the subject child is an Indian child.
The scope of the duty on the court, as well as certain participants
17
in the proceeding, is defined by federal regulations and related
state law. (See, e.g., 25 C.F.R. § 23.107 (2023); Welf. & Inst.
Code, § 224.2; Cal. Rules of Court, rule 5.481.)
The duty of inquiry has three “phases.” Mother claims
error concerning the first. This phase—the “initial inquiry”—
applies in every case. In broad terms, the initial inquiry requires
the juvenile court and the Department to ask certain persons
related to the proceedings about the child’s possible Indian
ancestry. (See § 224.2, subds. (a), (b), (c); In re S.S. (2022)
75 Cal.App.5th 575, 581; In re D.F. (2020) 55 Cal.App.5th 558,
566.) As relevant to mother’s appeal, section 224.2,
subdivision (b) requires a county welfare department, like the
Department, to ask, among others, the child’s “extended family
members” about “whether the child is, or may be, an Indian
child.” (Ibid.) The requirement was added by amendment in
2018 and became effective in 2019. (Stats. 2018, ch. 833, § 5; In
re S.S. (2023) 90 Cal.App.5th 694, 697.) Extended family
members include adults who are the 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); § 224.1, subd. (c).)
A juvenile court’s finding that ICWA does not apply in a
proceeding implies that (a) neither the Department nor the court
had a reason to know or believe the subject child is an Indian
child; and (b) the Department fulfilled its duty of inquiry. (In re
Josiah T. (2021) 71 Cal.App.5th 388, 401.)
Mother claims error based on the Department’s failure to
inquire with maternal aunt and uncle—the extended family
members with whom the Department had contact—about
possible Indian ancestry. Mother is correct that the juvenile
18
court erred in finding ICWA inapplicable where the record
showed contact between the Department and maternal aunt and
uncle, but no record that they were asked about possible Indian
ancestry. (See, e.g., In re Darian R. (2022) 75 Cal.App.5th 502,
509 [finding error where Department had contact with the
maternal aunt and maternal grandfather but failed to inquire of
them regarding Indian ancestry].)
b. No prejudice resulting from the juvenile court’s
ICWA finding is shown.
Because the juvenile court’s ICWA error was one of state
law, it is reversible only if shown to be prejudicial. (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.),
citing Cal. Const., art. VI, § 13.)
Mother argues the prejudice analysis does not apply
because she requests not reversal of the order terminating her
parental rights but a conditional affirmance subject to vacatur of
the juvenile court’s ICWA finding and remand for further inquiry
into whether H.G. has Indian heritage. We disagree that the
form of mother’s request allows her to evade the burden of
showing prejudice. The constitutional requirement that an
appellant show prejudice from a claimed error is “grounded in the
need for finality of judgments and conservation of judicial
resources . . . .” (People v. Vasquez (2006) 39 Cal.4th 47, 70.)
Mother is requesting further proceedings in the juvenile
court that threaten to delay the finality of H.G.’s permanent plan.
This case is therefore unlike mother’s cited authorities which
involved ICWA appeals in earlier stages of the dependency
proceedings where the appellate decision merely confirmed the
county welfare department’s continuing obligation to conduct a
full inquiry during the ongoing proceedings. (See In re S.H.
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(2022) 82 Cal.App.5th 166, 178 [affirming jurisdictional and
dispositional orders despite lack of ICWA compliance where “the
court, counsel, and the [county welfare department] [we]re aware
of incomplete ICWA inquiry”]; In re Dominick D. (2022)
82 Cal.App.5th 560, 567 [affirming jurisdictional and
dispositional findings and orders but vacating ICWA finding and
directing compliance with county welfare department’s inquiry
obligations].) Here, mother’s parental rights have been
terminated and adoption has been selected as H.G.’s permanent
plan. Considerations of finality take on heightened importance
at this stage, rendering mother’s authorities excusing prejudice
inapplicable. (See In re S.H., at p. 178 [noting “[a] more difficult
question would be presented were this an appeal from an order
terminating parental rights”].)
Courts are divided on what showing of prejudice warrants
reversal for initial inquiry errors. “Some courts have addressed
this problem by requiring an appellant who asserts a breach of
the duty of inquiry to, at a minimum, make an offer of proof or
other affirmative assertion of Indian heritage on appeal.” (In re
S.S., supra, 75 Cal.App.5th at pp. 581–582, citing cases.) Others
have excused such a showing, effectively treating failure to
inquire as error per se. (See, e.g., In re Y.W. (2021)
70 Cal.App.5th 542, 556; In re J.C. (2022) 77 Cal.App.5th 70, 80.)
The Fourth Appellate District in Benjamin M., supra,
70 Cal.App.5th 735, took a third approach, concluding that “a
court must reverse where the record demonstrates that the
agency has not only failed in its duty of initial inquiry, but where
the record indicates that there was readily obtainable
information that was likely to bear meaningfully upon whether
the child is an Indian child.” (Id. at p. 744.) Our court has taken
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a fourth approach, concluding initial inquiry errors require
reversal only when the record of proceedings in the court or a
proffer of evidence made on appeal suggests a reason to believe
that the child may be an Indian child. (In re Dezi C. (2022)
79 Cal.App.5th 769, 779, review granted Sept. 21, 2022,
S275578.)
We have previously rejected the error per se line of cases.
(In re M.M. (2022) 81 Cal.App.5th 61, 71, review granted Oct. 12,
2022, S276099.) Under any of the other three lines of cases, the
court’s error here was harmless.
On the record before us, there is no reason to believe there
is readily obtainable information that is likely to bear
meaningfully on whether H.G. has Indian ancestry under the
Benjamin M. analysis. In Benjamin M., like here, the mother
denied Indian ancestry. (Benjamin M., supra, 70 Cal.App.5th at
p. 740.) Thus, the Benjamin M. court was concerned only with
the possibility of Indian ancestry on Benjamin’s paternal side.
Like here, Benjamin’s father did not participate in the
proceedings before the juvenile court. But unlike here, the
identity of Benjamin’s father was known. The Benjamin M. court
concluded that the “missing” information from the paternal side
of Benjamin’s family was readily available because the county
welfare department had made, or could have made, contact with
one or more paternal uncles. If asked, a sibling of father “would
likely have shed meaningful light on whether there is reason to
believe Benjamin is an Indian child.” (Id. at p. 744.) Here, the
side of the family tree about which information is entirely
“missing” is not known. Although the parties attempted to
establish paternity in the juvenile court, their efforts were
unsuccessful. As a result, H.G.’s biological paternal extended
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family members are unknown and her case is unlike
Benjamin M.
Further, we are offered no reason in the record to believe
that maternal aunt and uncle would have better information
about H.G.’s ancestry than mother did. Mother lived with
maternal aunt, reducing the likelihood that maternal aunt would
have knowledge relevant to the ICWA inquiry that had not been
shared with mother. (See In re Ezequiel G. (2022) 81 Cal.App.5th
984, 1015 [“All of the parents appear to have been in contact with
their extended families, and thus the possibility that they might
unknowingly be members of a tribe appears trivially small”].)
Similarly, maternal uncle, whose childhood, like mother’s, was
spent in the foster system, was unlikely to have more or different
information about Indian ancestry than mother did.
This is especially true given mother’s history with the
Department. Although prior dependency cases for mother’s other
children commenced prior to amendments to section 224.2
requiring inquiry with extended family members, Indian ancestry
was nonetheless at issue in those cases. Given the repeated
significance of the issue to her parental rights, we expect mother
would have asked her relatives with whom she had contact about
Indian heritage. But after multiple prior dependency cases,
mother still “ha[s] no Indian ancestry as far as [she] know[s].”
Finally, no one has suggested any reason to believe H.G.
might have Indian ancestry. Certainly, mother has made no offer
of proof that H.G. is an Indian child. Given the absence of any
evidence or claim that H.G. might have Indian ancestry, mother’s
“unvarnished contention that additional interviews of [maternal
aunt and uncle] would have meaningfully elucidated [H.G.’s]
Indian ancestry” does not support a finding of prejudice. (In re
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Darian R., supra, 75 Cal.App.5th at p. 510.)
DISPOSITION
The juvenile court’s section 366.26 order terminating
parental rights over H.G. is affirmed.
GRIMES, J.
I CONCUR:
STRATTON, P. J.
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VIRAMONTES, J., Concurring and Dissenting.
I concur in the majority view that there was no error in the
juvenile court’s finding that the beneficial parental relationship
exception did not apply. I also concur in the majority’s conclusion
that the juvenile court’s finding that the Indian Child Welfare
Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply was
error.
I write separately because I dissent from the majority view
that the ICWA error was harmless. I believe that the approach
adopted by the Fifth District Court of Appeal in In re K.H. (2022)
84 Cal.App.5th 566 (K.H.) is the correct one in evaluating
whether an inquiry error is prejudicial. “ ‘ICWA compliance
presents a unique situation’ ” because its purpose, and the
purpose of the California statutes that implement it, “ ‘is to
provide notice to the tribe sufficient to allow it to determine
whether the child is an Indian child, and whether the tribe
wishes to intervene in the proceedings.’ ” (Id. at p. 608.)
Accordingly, in assessing whether an inquiry error is prejudicial,
“the relevant injury under ICWA is not tied to whether the
appealing parent can demonstrate to the juvenile court or a
reviewing court a likelihood of success on the merits of whether a
child is an Indian child. The relevant rights under ICWA belong
to Indian tribes and they have a statutory right to receive notice
where an Indian child may be involved so that they may make
that determination. It necessarily follows that the prejudice to
those rights lies in the failure to gather and record the very
information the juvenile court needs to ensure accuracy in
determining whether further inquiry or notice is required, and
whether ICWA does or does not apply.” (Id. at p. 591.) Where
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there has not been an adequate inquiry, “the error is prejudicial
because neither the agency nor the court gathered information
sufficient to ensure a reliable finding that ICWA does not apply
and remanding for an adequate inquiry in the first instance is the
only meaningful way to safeguard the rights at issue.” (Ibid.)
Applying the approach articulated in K.H., I conclude that
the juvenile court’s ICWA error was prejudicial. Here, the Los
Angeles County Department of Children and Family Services
(DCFS) was in contact with both the maternal aunt and the
maternal uncle, but failed to inquire of either of these extended
family members. This left the juvenile court without sufficient
evidence upon which to find the inquiry was proper, adequate,
and duly diligent. As in K.H., the error was prejudicial because
“the inquiry fell well short of that required to gather the
information needed to meaningfully safeguard the rights of the
tribes, as intended under ICWA and California law.” (K.H.,
supra, 84 Cal.App.5th at p. 620.) I also note, as does K.H., that
this does not constitute a per se reversal rule. (Id. at p. 618.)
There could be instances where the record shows that certain
inquiry errors were harmless because a party refused to
cooperate, DCFS did not have adequate contact information, or
DCFS’s inquiry included sufficient extended family members to
safeguard the rights of the tribes. Under these facts, however,
the error was prejudicial, and remand for an adequate inquiry in
the first instance is required.
VIRAMONTES, J.
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