In re A.G. CA2/3

Filed 8/18/23 In re A.G. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
B326339
In re A.G., a Person Coming
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 21CCJP02652B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Jean Nelson, Judge. Affirmed.
Eliot Grossman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn Harrison, County Counsel, Kim Nemoy, Assistant
County Counsel, and Jessica Mitchell, Deputy County Counsel,
for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
S.G. (mother) appeals from a juvenile dependency court
order terminating her parental rights. Mother’s sole contention
is that the juvenile court erred in finding the Los Angeles County
Department of Children and Family Services (DCFS) conducted
an adequate inquiry to determine whether A.G. is or may be an
Indian child within the meaning of the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.). We affirm the juvenile court
order.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the limited issue mother raises on appeal, we
provide only a brief summary of the factual background. In May
2021, DCFS received a referral alleging mother displayed a
handgun while engaging in a physical altercation with another
woman. Mother’s two children were present.1 Law enforcement
subsequently found two firearms, methamphetamine, and drug
paraphernalia in mother’s home and within reach of the children.
DCFS filed a dependency petition based on the May 2021
incident.
In June 2021, DCFS detained seven-month-old A.G. and
placed him in the home of maternal cousin A.O. At an August
2021 hearing, mother submitted a parentage questionnaire
1 This appeal is limited to A.G. and does not concern his
sibling.
2
declaring she believed M.S. was A.G.’s father. M.S. died in
October 2020, shortly before A.G. was born. Mother declared in
the questionnaire that M.S. was not present at A.G.’s birth, he
did not sign the birth certificate, she and M.S. were not married
at the time of A.G.’s conception and birth, she and M.S. were not
living together at the time of A.G.’s conception and birth, and no
parentage test had been done.
In the jurisdiction and disposition report, M.S.’s mother,
Juana S., identified as the “paternal grandmother,” told a social
worker she met mother only after M.S. died. M.S. had told Juana
S. that mother was pregnant, but Juana S. did not meet mother
until after A.G. was born. Juana S. and her daughter had visits
with A.G. for “ ‘a couple of hours,’ ” but not overnight. Juana S.
believed M.S. was affiliating with gangs before he died, but she
“didn’t know of [his] whereabouts” and was unaware of his death
for a time because no one contacted her.
At the October 2021 adjudication and disposition hearing,
the juvenile court sustained a petition pursuant to Welfare and
Institutions Code section 300, subdivision (b),2 based on mother’s
possession of firearms and drugs in the home and within access of
A.G. DCFS asked the court to make a parentage finding,
explaining there was no basis to find M.S. was a presumed
father. The court found M.S. was an alleged father. The court
removed A.G. from mother.
At a January 2023 hearing pursuant to section 366.26, the
juvenile court terminated parental rights. M.S. remained an
alleged father. The court found the permanent plan of adoption
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise noted.
3
was appropriate and identified A.G.’s caretaker, maternal cousin
A.O., as the prospective adoptive parent. Mother filed a timely
appeal from the termination of her parental rights.
ICWA Background
An ICWA-010 Indian Child Inquiry form indicating the
social worker questioned mother about Indian ancestry was
attached to the initial dependency petition. According to the
form, mother’s interview provided “no reason to believe the child
is or may be an Indian child.”
The June 2021 detention report stated that ICWA did not
apply, citing mother’s May 2021 denial of Indian ancestry.
Mother was not present at the initial detention hearing. The
juvenile court stated that it had no reason to know A.G. was an
Indian child.
In July 2021, DCFS interviewed maternal cousin A.O., who
denied Indian ancestry for herself and mother’s family.
According to the jurisdiction and disposition report, in late July
2021, mother again denied any “ICWA ancestry.” DCFS also
asked alleged father M.S.’s mother, Juana S., about Indian
ancestry. She “denied any ICWA ancestry for [A.G.].” Mother
appeared at the August 2021 jurisdiction and disposition hearing.
She submitted an ICWA-020 Parental Notification of Indian
Status Form, again indicating A.G. did not have Indian ancestry.
The juvenile court found that it had no reason to know A.G. was
an Indian child as defined by ICWA, and ordered mother to keep
DCFS, her attorney, and the court informed of any new
information as to Indian status.
In September 2022, DCFS interviewed A.O. a second time,
and also interviewed A.O.’s mother, as to Indian ancestry. Both
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stated the family did not have any “American Indian heritage to
their knowledge.”
At the January 2023 permanency planning hearing, the
court found DCFS made a “reasonable and diligent inquiry”
under ICWA and ICWA did not apply.
DISCUSSION
Mother argues substantial evidence did not support the
juvenile court’s finding that ICWA did not apply because DCFS
failed to interview other maternal and paternal relatives about
possible Indian ancestry. We find no error and affirm the
juvenile court’s order.
I. Duty of Inquiry
Section 224.2 sets forth the duties of a county welfare
department and the juvenile court in determining whether a
child is or may be an Indian child. An “ ‘Indian child’ ” is “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); § 224.1, subd. (a).)
Section 224.2, subdivision (a), provides that both the court
and the Department have an “affirmative and continuing duty” to
inquire whether a child is or may be an Indian child, beginning
with the “initial contact,” which includes asking the party
reporting abuse or neglect if they have any information that the
child may be an Indian child. Under section 224.2,
subdivision (b), if a child is placed in the Department’s temporary
custody, the agency must inquire whether the child is or may be
an Indian child, by asking a nonexclusive group that includes the
child, the parents, and extended family members. An “ ‘extended
family member’ ” is an adult who is the “Indian child’s
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grandparent, aunt or uncle, brother or sister, brother-in-law or
sister-in-law, niece or nephew, first or second cousin or
stepparent,” or an individual as otherwise defined by an Indian
child’s tribe. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
Section 224.2, subdivision (i)(2), provides that if “the court
makes a finding that proper and adequate further inquiry and
due diligence as required in this section have been conducted and
there is no reason to know whether the child is an Indian child,
the court may make a finding that [ICWA] does not apply to the
proceedings, subject to reversal based on sufficiency of the
evidence.” “On appeal, we review the juvenile court’s ICWA
findings for substantial evidence.” (In re D.S. (2020)
46 Cal.App.5th 1041, 1051; In re Josiah T. (2021) 71 Cal.App.5th
388, 401.)
II. Substantial Evidence Supported the Juvenile Court’s
ICWA Finding
Mother contends section 224.2, subdivision (b), required
DCFS to interview several paternal relatives and that maternal
cousin A.O. and her mother, who were interviewed by DCFS,
should have been asked to identify other maternal family
members who could have been interviewed to determine whether
A.G. is an Indian child. We find no error.
A. ICWA does not apply to an alleged father
ICWA defines a “parent” as “any biological parent or
parents of an Indian child or any Indian person who has lawfully
adopted an Indian child, including adoptions under tribal law or
custom. It does not include the unwed father where paternity
has not been acknowledged or established.” (25 U.S.C.
6
§ 1903(9).)3 The federal statute does not define “acknowledged or
established.” Due to the lack of a federal definition, “courts have
resolved the issue under state law.” (In re Daniel M. (2003) 110
Cal.App.4th 703, 708 (Daniel M.).)
Under California law, “[a]n alleged father is a man who
may be the father of the child, but whose biological paternity has
not been established” by one of the various methods set forth by
statute. (In re Jayden G. (2023) 88 Cal.App.5th 301, 309; see
Fam. Code, §§ 7571, subd. (a) [voluntary declaration of
paternity], 7551 [blood testing], 7554, subd. (a) and 7555 [genetic
testing], 7636 [court judgment], 7611, subds. (a)–(d) [marrying or
attempting to marry mother; receiving child into the home and
holding out as biological], 7554, subd. (a) [admission during court
appearance accepted by court].) “An alleged father may or may
not have any biological connection to the child. . . . [A]bsent a
biological connection, the child cannot claim Indian heritage
through the alleged father.” (In re E.G. (2009) 170 Cal.App.4th
1530, 1533 (E.G.).) ICWA therefore does not apply to an alleged
father. (Ibid; Daniel M., supra, 110 Cal.App.4th at pp. 707–708.)
Here, when asked to make a paternity finding, the juvenile
court found M.S. was only an alleged father. Mother did not
argue this finding was error in her opening brief, and we note the
trial court’s finding was supported by substantial evidence. (In re
H.R. (2016) 245 Cal.App.4th 1277, 1284.) Although mother
indicated she believed M.S. was A.G.’s father, no parentage
testing had been done, she and M.S. were not married at the time
of A.G.’s conception and birth, she and M.S. were not living
together at the time of A.G.’s conception and birth, M.S.’s name
3 Section 224.1, subdivision (c) adopts this federal definition.
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was not on A.G.’s birth certificate, and M.S. had no opportunity
to hold A.G. out as his child due to his death prior to A.G.’s birth.
While M.S.’s mother said she was A.G.’s grandmother and had
visits with him, she told DCFS she was aware of mother’s
pregnancy but had not met mother before M.S. died and A.G. was
born, she had been unaware of M.S.’s whereabouts prior to his
death, and she had very little information about mother. The
juvenile court’s finding that M.S. was an alleged father was a
judicial determination that biological paternity was not
acknowledged or established.
The E.G. court recognized that under ICWA, “[u]ntil
biological paternity is established, an alleged father’s claims of
Indian heritage do not trigger” ICWA’s requirements. (E.G.,
supra, 170 Cal.App.4th at p. 1533, italics added.) Mother
attempts to distinguish E.G. on the basis that it concerned ICWA
notice, a different step of the process in determining whether
ICWA applies. This distinction is immaterial for our purposes.
The critical issue in E.G., as here, was whether the provisions of
ICWA apply when the child could only potentially be deemed an
Indian child because of the connection to an alleged father.
(Ibid.) As in E.G., M.S.’s biological paternity was not established,
thus he was not a “parent” within the meaning of ICWA, and the
relationship between A.G. and M.S.’s relatives was
undetermined. In the absence of a biological relationship
between A.G. and M.S., M.S.’s relatives could offer no
information as to whether A.G. is or may be an Indian child. (See
In re S.H. (2022) 82 Cal.App.5th 166, 171 [until alleged father’s
biological paternity determined, any information he provided
regarding possible Native American ancestry not relevant to
proceedings regarding ICWA inquiry].)
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Moreover, even if the juvenile court had an obligation
under ICWA to ask M.S.’s family members whether A.G. is or
may be an Indian child, we would conclude that the inquiry here
was sufficient for the court to make an ICWA finding. An Indian
child is one who is a member of an Indian tribe, or the biological
child of a member of an Indian tribe, and who is eligible for
membership. (25 U.S.C. § 1903(4); § 224.1, subd. (a).) The record
reflects that DCFS questioned M.S.’s mother about the family’s
Indian ancestry. Juana S. lived with her husband, M.S.’s father,
and their two adult sons. The record indicates Juana S. was a
reliable source who would know if M.S. was a member of an
Indian tribe, or whether A.G. is or may be an Indian child by
virtue of the family’s heritage or tribal membership. Juana S.
denied the family had any Indian ancestry. Under these
circumstances, the trial court could reasonably conclude that, to
the extent any inquiry of M.S.’s family members was required,
DCFS’s inquiry was adequate. (In re Ezequiel G. (2022) 81
Cal.App.5th 984, 1009 (Ezequiel G.) [focus of court’s analysis is on
whether the agency’s inquiry has yielded reliable information
about child’s possible tribal affiliation, not on the number of
individuals interviewed].)4
B. Inquiry of mother and maternal relatives
Mother denied Indian ancestry twice. The record indicates
the denial was reliable. Mother had extensive contact with
4 In Ezequiel G., supra, 81 Cal.App.5th at pages 1005, 1008,
a panel of this court concluded the juvenile court’s determination
of whether the agency has conducted a proper and adequate
further inquiry and due diligence is subject to review for abuse of
discretion. Using either a substantial evidence or abuse of
discretion standard, we would find the trial court properly
concluded DCFS satisfied its inquiry obligations in this case.
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maternal relatives. Starting in 2005, mother was raised by her
mother and her grandmother. Mother lived with the maternal
grandmother until she passed away in January 2021. The record
does not indicate mother was raised without a connection to her
biological family members. There is no evidence her repeated
denials of any Indian ancestry might not be “fully informed.” (In
re Dezi C. (2022) 79 Cal.App.5th 769, 779, review granted
Sept. 21, 2022, S275578 (Dezi C.); cf. In re Y.W. (2021) 70
Cal.App.5th 542, 548 [mother was adopted and had no
information about biological relatives].)
DCFS also interviewed two maternal “extended family
members,” cousin A.O. and A.O.’s mother. Cousin A.O. was
asked about Indian ancestry both for herself and the entire
family, and she denied it on two occasions. A.O.’s mother also
denied Indian ancestry for the family. A.O. lived with several
maternal relatives who were not interviewed about whether A.G.
is or may be an Indian child.5 However, A.O.’s proximity to other
5 In her opening brief, mother contends DCFS’s inquiry was
inadequate because it did not ask A.O. or A.O.’s mother “for the
identity and contact information of other relatives with possible
knowledge of Native American ancestry.” Mother cites no legal
authority for the proposition that an ICWA inquiry is inadequate
if the agency interviews multiple available extended relatives,
those relatives unequivocally deny the family has any Indian
ancestry, but the agency does not document whether it asked
those relatives to identify other family members who might have
information about Indian ancestry the interviewed relatives do
not believe exists. Indeed, courts have held the agency is not
required to “ ‘cast about’ for investigative leads. [Citation.]” (In
re A.M. (2020) 47 Cal.App.5th 303, 323.) In her reply brief,
however, mother appears to argue that DCFS’s inquiry was
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maternal relatives suggests that A.O. would be well positioned to
provide information about the entire family. Any information
that might render A.G. an Indian child through mother’s family
would presumably be shared knowledge of mother, maternal
cousin A.O., A.O.’s mother, and the relatives A.O. interacted with
in her household. Nothing in the record suggests the maternal
relatives who were not interviewed would have information that
mother, A.O., and A.O.’s mother did not provide. (Ezequiel G.,
supra, 81 Cal.App.5th at p. 1009; In re Darian R. (2022) 75
Cal.App.5th 502, 510 [parents and paternal aunt denied Indian
ancestry; record did not support “unvarnished contention”
additional interviews of maternal grandfather and aunt would
have “meaningfully elucidated the children’s Indian ancestry”].)
Substantial evidence supports the juvenile court’s finding that
DCFS conducted a proper and adequate initial inquiry in this
case. (In re E.W. (2023) 91 Cal.App.5th 314, 323 [substantial
evidence supported initial inquiry finding where mother
repeatedly denied Indian ancestry and agency interviewed
maternal aunt and paternal grandmother but did not interview
other available relatives].)
Moreover, even if the trial court erred in finding DCFS
complied with its duty of inquiry without conducting interviews
of additional relatives, we would find the error harmless. The
record contains no information suggesting a reason to believe
A.G. may be an “ ‘ “Indian child” ’ ” within the meaning of ICWA,
such that the absence of further inquiry was prejudicial to the
inadequate because it failed to interview a maternal great-aunt, a
maternal great-great-aunt, a maternal great-uncle, a maternal
great-great-uncle, and two other maternal cousins, all of whom
were known to the agency.
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juvenile court’s finding. (Ezequiel G., supra, 81 Cal.App.5th at
p. 1014; Dezi C., supra, 79 Cal.App.5th at p. 779.) Nor does the
record establish that an inquiry of additional relatives would
have yielded any information likely to bear meaningfully on the
court’s ICWA determination. (In re Benjamin M. (2021) 70
Cal.App.5th 735, 744.)
Under these circumstances, we find any error in DCFS’s
failure to interview additional extended relatives is harmless and
does not warrant reversal.
DISPOSITION
The juvenile court order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
EGERTON, J.
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