Filed 7/13/22 In re Nathalie G. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re NATHALIE G., a Person B316146
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 19CCJP07740)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
BRENDA M. et al.,
Defendants and
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Stacy Wiese, Judge. Affirmed.
Amy Z. Tobin, under appointment by the Court of Appeal,
for Defendant and Appellant Brenda M.
Karen B. Stalter, under appointment by the Court of
Appeal, for Defendant and Appellant Edilson Z.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Raquel Ramirez, Deputy County
Counsel, for Plaintiff and Respondent.
******
Appellants Brenda M. (mother) and Edilson Z. (father)
appeal from orders terminating parental rights over their
daughter Nathalie (born 2019) and freeing Nathalie for adoption.
The sole contention the parents raise in this appeal is that the
orders must be reversed because a proper inquiry under the
Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.;
ICWA) was not undertaken.
We affirm the juvenile court’s orders.
BACKGROUND
Detention and Welfare and Institutions Code1 section 300
petition
On November 26, 2019, the juvenile court issued an order
authorizing the Los Angeles County Department of Children and
Family Services (the Department) to remove Nathalie from the
parents based on allegations of domestic violence and substance
abuse. The Department could not place Nathalie with the
maternal grandmother because of the maternal grandmother’s
admitted criminal history. Father provided no information for
1 All further statutory references are to the Welfare and
Institutions Code, unless stated otherwise.
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possible placement with paternal relatives, and Nathalie was
placed in the same foster home where she remains today.
The Department filed a section 300 petition on December 3,
2019, alleging the parents had a history of engaging in violent
altercations in Nathalie’s presence, and both parents had
histories of substance abuse and were current users of
amphetamine, methamphetamine, and marijuana. An Indian
child inquiry attachment ICWA-010A form that accompanied the
section 300 petition indicated that ICWA inquiries were made
and that Nathalie had no known Indian ancestry. The form does
not specify, however, those with whom the ICWA inquiries were
made. The Department’s detention report stated that ICWA did
not apply.
Both parents, the maternal grandmother, and the paternal
grandfather were present at the December 4, 2019 detention
hearing at which the juvenile court found father to be Nathalie’s
presumed father. Both parents submitted a Parental Notification
of Indian Status form, form ICWA-020, indicating they had no
Indian ancestry to their knowledge. At the hearing, the juvenile
court stated, “[B]oth parents indicate they have no Native
American Heritage as far as they know. On that basis I find
there is no reason to know the child is an Indian child within the
meaning of ICWA, and I find that ICWA does not apply.” The
minute order indicates the parents filed ICWA-020 forms, the
court found no reason to know Nathalie is an Indian child, and no
ICWA notices were ordered. The minute order further states the
“[p]arents are to keep the Department, their Attorney, and the
Court aware of any new information relating to possible ICWA
status.”
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Father’s attorney asked the Department to assess the
paternal grandfather and paternal great aunt for placement and
to monitor father’s visits with Nathalie. Mother’s attorney also
asked that the Department assess any available relatives to
monitor her visits with Nathalie. The juvenile court ordered
Nathalie detained from mother and father and accorded both
parents separate monitored visits. The court ordered the
Department to assess the paternal grandfather and paternal
great aunt for placement and visitation monitoring.
Contested adjudication and disposition hearing
The Department reported in February 2020 that mother
was born and raised by the maternal grandparents in Los
Angeles, California. Mother was placed in foster care as a child
because of the maternal grandparents’ alcohol abuse and
domestic violence.
Father was born and raised by the paternal grandparents
in Guatemala. He emigrated to the United States when he was
in the third grade. He met mother in 2017, had Nathalie in 2019,
and separated from mother in November 2019 but continued to
live with her.
The Department attempted to place Nathalie in the
paternal grandfather’s home in May 2020 but could not do so
because mother and father were residing in the home. The
Department also contacted the paternal great aunt for
placement, but the great aunt said she did not have room in her
one-bedroom apartment for Nathalie.
At the February 3, 2020 combined adjudication and
disposition hearing, the juvenile court sustained the allegations
of the section 300 petition. The court granted mother
reunification services but denied services to father because his
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whereabouts were unknown. Mother’s counsel asked that the
Department assess the paternal grandfather for placement, and
the juvenile court ordered the Department to assess all
appropriate relatives for placement.
Review proceedings and termination of reunification
services
In March 2021, the Department reported that mother was
not in compliance with her court-ordered programs and continued
to test positive for methamphetamine. Mother attended three
visits with Nathalie between September 2020 and March 2021.
The juvenile court terminated mother’s reunification services on
March 22, 2021.
Section 366.26 proceedings
In August 2021, the Department reported that mother was
in an inpatient treatment program and father was incarcerated.
The maternal grandmother informed the Department that
mother was pregnant and was scheduled to give birth later that
month.
The Department further reported that the paternal
grandfather had been assessed as not suitable for placement
because of his criminal history and because he shared a residence
with the parents. The maternal grandparents had also been
assessed and not approved for placement because of their
criminal and child welfare histories. At the request of father’s
attorney, the juvenile court ordered the Department to assess the
paternal grandmother and to facilitate her visits with Nathalie.
Mother gave birth to a baby boy in August 2021. The
infant was detained in the same foster home with Nathalie.
In October 2021, the Department reported that it had
contacted the paternal grandmother, who had been residing in
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the United States since June 2021. The paternal grandmother
said that she did not have appropriate housing to have Nathalie
placed with her, but she wanted to begin visits with Nathalie.
Mother made a video appearance at the November 1, 2021
section 366.26 hearing. Father was present in custody. The
juvenile court denied mother’s section 388 petition for additional
reunification services. The court then found Nathalie was
adoptable and that no exception to terminating parental rights
applied. The court terminated both parents’ parental rights.
This appeal followed.
DISCUSSION
Mother and father both contend the order terminating
parental rights must be reversed because the Department and
the juvenile court failed to ask the reporting party, the maternal
grandparents, and the paternal grandparents whether Nathalie
is or may be an Indian child under ICWA. The record does not
show that the Department fulfilled its statutory duty of initial
inquiry by asking these persons about Nathalie’s possible Indian
status. The failure to do so was error. We conclude, however,
that the error was not prejudicial, given the parents’ disclaimer
of any knowledge of Indian ancestry and the absence of any
indication in the record that would provide a reason to believe
that Nathalie is an Indian child. (In re Dezi C. (2022) 79
Cal.App.5th 769.)
I. Applicable law
ICWA and related California statutes reflect the
Legislature’s intent “to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
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for the removal of Indian children from their families.” (25
U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706,
fn. 3.) An “Indian child” is defined as any unmarried person
under the age of 18 who is either a member of an Indian tribe or
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); Welf.
& Inst. Code, § 224.1, subds. (a), (b).)
“Because it typically is not self-evident whether a child is
an Indian child, both federal and state law mandate certain
inquiries to be made in each case. These requirements are
sometimes collectively referred to as the duty of initial inquiry.”
(In re Benjamin M. (2021) 70 Cal.App.5th 735, 741.) “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.”
(§ 224.2, subd. (a).) The court and child welfare department
“have an affirmative and continuing duty” to inquire whether a
child for whom a petition under section 300 may be or has been
filed may be an Indian child. (§ 224.2, subd. (a).)
Under California law, the child welfare department’s initial
duty of inquiry includes, but is not limited to, “asking the child,
parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
reporting child abuse or neglect, whether the child is, or may be,
an Indian child and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b).) Under ICWA, the
term “extended family member” is “defined by the law or custom
of the Indian child’s tribe or, in the absence of such law or
custom, shall be a person who has reached the age of eighteen
and who is the Indian child’s grandparent, aunt or uncle, brother
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or sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent.” (25 U.S.C. § 1903(2).)
The juvenile court must also inquire at each participant’s
first appearance in court whether the participant knows or has
reason to know that the child is an Indian child. (§ 224.2, subd.
(c).) In addition, the juvenile court must instruct the parties to
inform the court if they subsequently receive information that
provides reason to know the child is an Indian child. (Ibid.)
If the “initial inquiry creates a ‘reason to believe’ the child
is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make
that inquiry as soon as practicable.’ ([§ 224.2], subd. (e), italics
added.) [I]f that further inquiry results in a reason to know the
child is an Indian child, then the formal notice requirements of
section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to
inquire at the first appearance whether anyone ‘knows or has
reason to know that the child is an Indian child’]; id., subd. (d)
[defining circumstances that establish a ‘reason to know’ a child
is an Indian child]; § 224.3 [ICWA notice is required if there is a
‘reason to know’ a child is an Indian child as defined under
§ 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.)
Neither the duty of further inquiry nor the ICWA notice
provisions are at issue here because no one contends there is
reason to know Nathalie is an Indian child.
II. No prejudicial error
The parents’ ICWA challenge is based on the Department’s
failure to ask the reporting party and extended family members
(the maternal and paternal grandparents) about potential tribal
membership. The juvenile court’s alleged dereliction of its duty is
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the failure to ensure a proper inquiry by the Department. The
statutory duty to ask extended family members about a child’s
possible Indian heritage is imposed by California law on child
welfare agencies only. (§ 224.2, subd. (b).) Federal law imposes
no such duty. (In re S.S. (2022) 75 Cal.App.5th 575, 581; In re
A.C. (2021) 65 Cal.App.5th 1060, 1069.) The failure to inquire of
extended family members accordingly is an error under state law
only. Under California law, we may not reverse unless we find
that error was prejudicial. (Cal. Const., art. VI, § 13; In re
Benjamin M., supra, 70 Cal.App.5th at p. 742.)
In determining whether the failure to conduct a proper
ICWA inquiry was prejudicial, our division recently held that
reversal is warranted only when the record indicates there was a
“reason to believe” that the child is an Indian child. (In re
Dezi C., supra, 79 Cal.App.5th 769.)
While appellate courts have adopted different standards,
we, for the reasons set forth in In re Dezi C., have adopted the
reason to believe standard.
The record in this case reveals no reason to believe that the
child was an Indian child, and neither parent asserts that such
information exists. Both parents filed ICWA-020 forms stating
they had no Indian ancestry to their knowledge. Both parents,
along with the paternal grandfather and maternal grandmother,
appeared at the detention hearing at which the juvenile court
found, based on the parents’ representations, that it had no
reason to know that ICWA applied. At that hearing, the juvenile
court asked whether any party wished to present additional
evidence or to be heard as to detention or visitation. Both
parents were in contact with paternal and maternal extended
family members. Mother and Nathalie moved in to the maternal
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grandmother’s home at the outset of the case. Both parents lived
in the paternal grandfather’s home at one point during the case.
Neither parent brought to the Department’s or the juvenile
court’s attention any additional information relevant to ICWA.
The record also shows that father was born and raised by
the paternal grandparents in Guatemala and that he emigrated
to the United States as a young child. The paternal grandmother
had been in the United States only since June 2021. Given these
facts, as well as father’s denial of any Indian ancestry, there is no
indication that there was any reason to believe Nathalie is an
Indian child.
On the record presented here, we cannot conclude that the
Department’s failure to ask the maternal and paternal
grandparents about Nathalie’s Indian ancestry was prejudicial
error.
DISPOSITION
The orders terminating parental rights and freeing
Nathalie for adoption are affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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