Filed 5/13/22 In re J.H. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.H. et al., Persons Coming B315480
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 19CCJP01201E & F)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Robin R. Kesler, Juvenile Court Referee. Affirmed.
Christine E. Johnson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant
County Counsel, and Kelly Emling, Deputy County Counsel, for
Plaintiff and Respondent.
**********
Mother J.P. appeals the juvenile court’s order terminating her
parental rights to children J.H. and A.H., raising only one claim of
error, that 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
Mother’s six children were detained after concerns of neglect
were reported by the children’s school, and the Department’s
investigation revealed domestic violence between mother and father,
and other serious safety issues.
The petition states the children have no known Indian ancestry,
and that mother and father denied any Indian ancestry during an
interview on January 10, 2019. The detention report confirms that
both mother and father denied that they or the children have any
Indian heritage.
At the February 25, 2019 detention hearing, mother and father
filed parental notification of Indian status forms (ICWA–020)
indicating “I have no Indian ancestry as far as I know.” Paternal
relatives were present at the detention hearing, including paternal
grandmother, paternal grandfather, and paternal great-aunt. The
juvenile court stated on the record “there is no reason to know this is a
case involving the Indian Child Welfare Act as to either parent,” and
no relative present at the hearing spoke up to say anything to the
contrary. The minute order from the hearing recites that the
“[p]arents are to keep the Department, their Attorney and the Court
aware of any new information relating to possible ICWA status.” A
similar admonition is recited on the ICWA–020 forms. At no time did
any of the children’s relatives notify the Department or the court of
any possible Indian heritage.
The Department’s reports refer to numerous relatives whom the
parents mentioned during interviews with the Department, including
maternal grandmother, maternal grandfather, and eight maternal
2
aunts and uncles. Of these relatives, the Department had contact
with maternal grandfather D.P. and one maternal aunt, R.H. The
reports also mention paternal grandmother, paternal grandfather,
three paternal aunts, two paternal great-aunts, cousins, and some
other “relatives” of unspecified relationship. Many of these relatives
were unnamed, and the record does not reflect whether any relatives
who were interviewed were asked about possible Indian ancestry.
However, it is clear that mother and father were in contact with a
great number of family members during the dependency, and neither
parent reported that they had reason to believe a relative had Indian
ancestry.
On September 7, 2021, the juvenile court terminated mother’s
and father’s parental rights to J.H. and A.H. This timely appeal
followed.
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.) 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).) “The duty
to inquire begins with the initial contact, including, but not limited to,
asking the party reporting child abuse or neglect whether the party
has any information that the child may be an Indian child.” (Ibid.) “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 members, [and] others” whether the child is or may be an
Indian child. (Id., subd. (b).)
The adequacy of the ICWA inquiry is reviewed for sufficiency of
the evidence. (In re S.B. (2005) 130 Cal.App.4th 1148, 1160–1162.)
However, the standard for determining whether an ICWA error
3
requires reversal is unsettled. (See In re S.S. (2022) 75 Cal.App.5th
575, 581–582 [“[s]ome courts [require] an appellant who asserts a
breach of the duty of inquiry to . . . make an offer of proof or other
affirmative assertion of Indian heritage on appeal”]; In re Y.W. (2021)
70 Cal.App.5th 542, 556 [rejecting that parents must demonstrate
prejudice or make an offer of proof of Indian ancestry to demonstrate
reversable ICWA error]; In re Benjamin M. (2021) 70 Cal.App.5th 735,
744 [articulating yet a different test for prejudice where a “court must
reverse where the record demonstrates that the agency . . . failed in its
duty of initial inquiry [and] where the record indicates that there was
readily obtainable information that was likely to bear meaningfully
upon whether the child is an Indian child”].)
Mother argues the Department made an inadequate initial
inquiry because it did not ask the initial reporter or the numerous
relatives identified in the Department’s reports about possible Indian
ancestry, and therefore the juvenile court’s finding that ICWA did not
apply is not supported by substantial evidence. She also argues that
she is not required to demonstrate prejudice, relying on In re Y.W.,
supra. Alternatively, she argues “it is likely that ‘there was readily
obtainable information that was likely to bear meaningfully upon
whether the [children were] Indian child[ren].’ ” (In re Benjamin M.,
supra, 70 Cal.App.5th at p. 744.) She recites no facts to support this
contention. At no point has mother ever asserted any fact that might
suggest the mandated reporter from the children’s school or any
relative might have any information that her children may have
Indian ancestry.
This case is nothing like In re. Y.W., where the mother, who was
adopted, denied she had any Indian ancestry, but also denied having
any information about her biological relatives. Mother’s adoptive
mother stated she also had no information about any possible Indian
ancestry but said she had the names and/or contact information for
biological relatives. The Department failed to follow up with
4
biological relatives, and the Court of Appeal remanded for further
ICWA compliance. (In re Y.W., supra, 70 Cal.App.5th 542.) Here, the
record does not give any indication that mother’s or father’s denial of
Indian ancestry was uninformed or unreliable, especially where many
maternal and paternal relatives were identified by the parents in the
Department’s reports.
This case is also nothing like In re Benjamin M., where the court
found prejudicial error where one parent was not available to report or
deny Indian ancestry, and the Department never inquired of the
missing parent’s available relatives. (In re Benjamin M., supra,
70 Cal.App.5th at pp. 744–745.) Here, both parents were available
and unequivocally denied any Indian ancestry.
Lastly, we do not find the analysis in In re H.V. (2022)
75 Cal.App.5th 433 persuasive, where the court conditionally affirmed
and remanded for further ICWA inquiry when there was no indication
whatsoever that the mother’s denial of Indian ancestry was
inaccurate.
We therefore reject mother’s “unvarnished contention that
additional interviews of [relatives] would have meaningfully
elucidated the children’s Indian ancestry.” (In re Darian R. (2022)
75 Cal.App.5th 502, 510.)1
1 The dissent argues we cannot determine if the error is harmless
because we do not know what extended family members would say.
But we do have reason to believe we know what they would say
because the children’s parents have certified they have no information
that Indian heritage exists in their lineage. And harmless error does
not equate with absolute certainty. Courts routinely hold that failing
to admit certain evidence was harmless error, even though the
possibility exists that the evidence might strike a particular juror
differently than the reviewing court. The only way to know for sure is
to retry every case where there is error. That approach itself results
in frequent needless harm, delay and expense, which is why the
harmless error doctrine ultimately results in a just outcome.
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DISPOSITION
The order terminating parental rights is affirmed.
GRIMES, Acting P. J.
I CONCUR:
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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WILEY, J., Dissenting.
The Department communicated with maternal relatives but did
not ask about Indian heritage. The law requires this step. I do not
know whether the Department’s error was harmless because I do not
know what these people would have said. It is undesirable to suggest
the less the Department investigates, the more harmless its error.
Appellants must not bring appeals like this solely for delay. The
Department, however, can eliminate or reduce delay by complying
with its statutory obligations.
WILEY, J.
1