Filed 3/23/22 In re A.W. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.W., A Person Coming B312991
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20CCJP02218A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DIONDRIA D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, D. Brett Bianco, Judge. Affirmed.
Caitlin Christian, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel, for Plaintiff and Respondent.
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Mother Diondria D. appeals the order terminating her
parental rights to A.W., arguing the Los Angeles County
Department of Children and Family Services (Department) did
not comply with the Indian Child Welfare Act (ICWA; 25 U.S.C.
§ 1901 et seq.), because it made an inadequate inquiry about
A.W.’s possible Indian ancestry and the notices sent to the tribes
were inadequate. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has a long history of substance abuse, mental
illness, child neglect, and exposing her children to physical abuse,
sexual abuse, and domestic violence. She has an extensive child
welfare history arising from these issues and has failed to reunify
with A.W.’s five older siblings. (See Diondria D. v. Superior
Court (Apr. 23, 2021, B307971) [nonpub. opn.].) Infant A.W. was
removed from mother and father J.W. because of the
Department’s concerns of neglect based on mother’s extensive
child welfare history, mother’s positive marijuana test, and
father’s positive alcohol test.
The April 20, 2020 petition concerning A.W. states that
ICWA does not apply. The detention report reflects that mother
and father denied any Indian ancestry on March 9, 2020.
In the dependency case concerning A.W.’s full-blooded
sibling, T.W., mother appealed the sufficiency of the
Department’s ICWA inquiry. Division Seven of this court
conditionally affirmed the order terminating mother’s parental
rights to T.W., and remanded with instructions for further ICWA
compliance. (In re T.W. (Aug. 14, 2019, B295013) [nonpub. opn.].)
Further investigation did not yield any useful information
indicating that T.W. was an Indian child. The Department
conducted internet searches and was able to find contact
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information for maternal grandfather and one maternal uncle.
However, the people who answered the Department’s calls denied
any relationship to mother. Further information could not be
obtained from mother because her whereabouts were unknown.
(We grant the Department’s request that we take judicial notice
of these records.) Notices to the Cherokee tribes were sent and
two tribes responded that T.W. was not eligible for membership,
and another tribe did not respond. On February 11, 2020, the
juvenile court found that ICWA did not apply, and reinstated the
order terminating mother’s parental rights.
Notwithstanding compliance with ICWA in the case
concerning T.W., and that mother and father denied any Indian
ancestry on March 9, 2020, on April 22, 2020 (one day before the
detention hearing) mother filed a parental notification of Indian
status form (ICWA-020) stating “[o]ne or more of my parents,
grandparents, or other lineal ancestors is or was a member of a
federally recognized tribe,” identifying the Cherokee tribe, and
maternal great-grandmother, Evelyn G., as the tribal member.
Father’s ICWA-020 form stated that he had no known Indian
ancestry.
At the April 23, 2020 detention hearing, the court found
there was no reason to know that ICWA applied, but ordered
mother and father to keep the Department and court aware of
any new information relating to any possible Indian ancestry.
The Department’s jurisdiction/disposition report noted that
mother has three brothers, and that maternal grandfather was
still living. Two of her brothers lived in Sacramento, and the
other brother’s whereabouts were unknown. Mother did not
provide any further information about her brothers or maternal
grandfather to the Department.
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At a July 27, 2020 hearing, the juvenile court revisited the
ICWA findings, and asked the Department to investigate A.W.’s
possible Indian ancestry. Mother told the court she was not a
registered or enrolled member of a tribe, and did not know
whether she was eligible for membership in a tribe. The court
found that without additional information, ICWA did not apply,
but ordered the Department to address ICWA in its next report.
The Department interviewed mother on July 28, 2020.
Mother said she had Indian ancestry in the Cherokee tribe
through maternal great-grandmother; however, maternal great-
grandmother died when mother was young. Mother did not know
her date of birth. Maternal grandmother was also deceased.
Mother reported there were no other family members who would
have information about their Indian ancestry. Neither maternal
grandmother nor maternal great-grandmother was registered
with the tribe. Mother “really did not want to pursue this any
longer.”
On July 28, 2020, the Department sent notice to the
Eastern Band of Cherokee Indians, the Cherokee Nation, the
United Keetowah Band of Cherokee Indians, the Bureau of
Indian Affairs, and the Secretary of the Interior. The notices
included maternal grandmother’s name and date of birth. The
notices also included maternal great-grandmother’s name, but no
other identifying information.
On September 3, 2020, the Department received certified
return receipts that notice was delivered to all three Cherokee
tribes, which were filed with the court on September 16, 2020.
The Department did not receive any responses from the tribes.
At the September 24, 2020 disposition hearing, the juvenile
court declared A.W. a dependent, removed her from parental
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custody, bypassed reunification services, and set a Welfare and
Institutions Code section 366.26 hearing to select and implement
a permanent plan. (All further references are to this code, unless
otherwise indicated.) We denied mother’s writ petition
challenging this order. (Diondria D. v. Superior Court, supra,
B307971.) Therefore, on May 20, 2021, the juvenile court
terminated mother’s parental rights. Mother timely appealed.
While this appeal was pending, the Department filed a
report indicating it had received a response from the Cherokee
Nation that A.W. was not an Indian child.
DISCUSSION
Congress enacted ICWA “ ‘to protect the best interests of
Indian children and to promote the stability and security of
Indian tribes and families.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1,
8.) ICWA requires notice to Indian tribes “in any involuntary
proceeding in state court to place a child in foster care or to
terminate parental rights ‘where the court knows or has reason
to know that an Indian child is involved.’ ” (In re Isaiah W., at
p. 8.)
Section 224.2 imposes on the juvenile court and the
Department “an affirmative and continuing duty to inquire
whether a child . . . is or may be an Indian child . . . .” (Id.,
subd. (a).) If there is “reason to believe [that an Indian child is]
involved in a proceeding,” further inquiry regarding the possible
Indian status of the child “shall” be made, including
“[i]nterviewing . . . extended family members” to obtain the
necessary information to notice the tribes. (Id., subd. (e)(1) & (2);
see also Cal. Rules of Court, rule 5.481(a).)
If there is reason to believe a child might be an Indian
child, the Department must provide notice to the Indian tribes.
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Notice to the tribes must contain sufficient information to allow
the tribe to conduct a meaningful review of its records to
determine the child’s eligibility for membership. (In re
Jennifer A. (2002) 103 Cal.App.4th 692, 705.) Section 224.3
requires the notices to include “[a]ll names known of the Indian
child’s biological parents, grandparents, and great-grandparents,
or Indian custodians, including maiden, married, and former
names or aliases, as well as their current and former addresses,
birth dates, place of birth and death, tribal enrollment of other
direct lineal ancestors of the child, and any other identifying
information, if known.” (Id., subd. (a)(5)(C).)
The adequacy of the ICWA inquiry is reviewed for
sufficiency of the evidence. (In re S.B. (2005) 130 Cal.App.4th
1148, 1160-1161.) The harmless error rule applies to ICWA
inquiry challenges. (In re S.B., at p. 1162.) Notice errors are also
subject to harmless error analysis. (In re D.N. (2013)
218 Cal.App.4th 1246, 1251.)
Mother contends the Department’s notices were not sent to
the correct designated tribal agents (although she does not
contend the addresses were incorrect), the notices were missing
identifying information about mother’s relatives which the
Department could have obtained had it better investigated A.W.’s
possible Indian ancestry by contacting other maternal relatives,
and the Department made no further efforts to ask extended
family members about A.W.’s possible Indian ancestry, such as
trying again to locate maternal uncles.
We find any purported error to be necessarily harmless.
The return receipts confirmed the tribes received the
Department’s notices, so any purported error in stating the tribal
agent’s name was immaterial and irrelevant. There is no reason
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to believe that further inquiry would result in any more
information about A.W.’s alleged heritage or confirmation that
she is an Indian child. (In re Christopher I. (2003)
106 Cal.App.4th 533, 567.) Mother admitted the only people with
information about A.W.’s possible Indian ancestry were deceased.
Moreover, the inquiry and findings as to T.W., just months before
this dependency case, plainly show that ICWA does not apply.
(In re A.B. (2008) 164 Cal.App.4th 832, 842; see also In re E.W.
(2009) 170 Cal.App.4th 396, 400-402 [the Department’s failure to
comply with ICWA was harmless based on prior ICWA efforts as
to the child’s sibling because “there [wa]s no reason to believe
that providing separate notice regarding [this child] ‘would have
produced different results concerning [this child’s] Indian
heritage.”].)
DISPOSITION
The order terminating mother’s parental rights to A.W. is
affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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