Filed 3/30/22 In re A.R. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.R., A Person Coming B314282
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 21CCJP02557A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Pete R. Navarro, Juvenile Court Referee. Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant
County Counsel, and Stephen Watson, Deputy County Counsel, for
Plaintiff and Respondent.
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Father E.R. appeals the juvenile court’s jurisdictional and
dispositional order concerning his son, A.R., arguing the Los Angeles
County Department of Children and Family Services (Department)
made an inadequate inquiry under the Indian Child Welfare Act
(ICWA; 25 U.S.C. § 1901 et seq.). We affirm.
BACKGROUND AND DISCUSSION
On May 27, 2021, A.R. was detained from mother and father
and placed with maternal uncle and his wife. The record does not
show that maternal uncle was asked whether his family had Indian
ancestry. At the detention hearing on June 2, 2021, mother and
father filed parental notification of Indian status forms (ICWA–020)
denying that they, A.R., or any lineal ancestor “is” or “may” be eligible
for tribal membership. The court did not ask mother and father, who
were present at the hearing, whether there was any reason to know
A.R. was an Indian child. A Department report shows that mother
and father again denied any Indian ancestry on June 30, 2021.
At the combined jurisdictional and dispositional hearing, the
court declared A.R. a dependent and removed him from mother and
father. While this appeal was pending, the court returned A.R. to his
parents’ custody. (We take judicial notice of the January 19, 2022
order on our own motion, and grant father’s request that we take
judicial notice of another order that A.R. remained a dependent of the
court.)
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.) Welfare and
Institutions Code 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 a child
is placed into the temporary custody of a county welfare department[,
the department] has a duty to inquire whether that child is an Indian
child[, including] asking the child, parents, . . . extended family
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members, [and] others” whether the child is or may be an Indian
child. (Id., subd. (b).) Moreover, “[a]t the first appearance in court of
each party, the court shall ask each participant present in the hearing
whether the participant knows or has reason to know that the child is
an Indian child.” (Id., subd. (c).) Further inquiry is required if there
is a reason to believe a child may be an Indian child. (Id., subd. (e).)
The adequacy of the ICWA inquiry is reviewed for sufficiency of the
evidence, and the harmless error rule applies on appeal. (In re S.B.
(2005) 130 Cal.App.4th 1148, 1160–1162.)
Father claims the Department and juvenile court made an
inadequate inquiry because maternal uncle was not asked about any
possible Indian ancestry, and the court never asked the parents if
there was a reason to believe A.R. was an Indian child, relying instead
on the parents’ ICWA forms. Any alleged error was necessarily
harmless. Mother and father denied Indian ancestry. There is no
reason to believe that if the court had posed the question differently
than it was phrased on the ICWA form, or if inquiry had been made of
maternal uncle, there would have been reason to know A.R. has
Indian heritage. A.R. has been returned to the custody of his parents.
Nevertheless, to ensure the finality of these proceedings, the juvenile
court should direct the Department to ask maternal uncle about any
possible Indian ancestry, and make any further inquiry that is
required.
DISPOSITION
The jurisdictional and dispositional order 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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