Filed 7/13/22 In re K.C. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re K.C., a Person Coming B315767
Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No. 17CCJP01305)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
MARIA M.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, D. Brett Bianco, Judge. Affirmed.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
____________________________
Maria M., mother of now 1-year-old K.C., appeals from the
juvenile court’s order terminating her parental rights under
Welfare and Institutions Code, section 366.26.1 K.C.’s father,
Carlos C., is not a party to this appeal.
Mother’s sole contention on appeal is that the trial court
erred when it concluded that the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.) did not apply in this case based
on what mother argues was an insufficient initial inquiry of
extended family under section 224.2.
We conclude that any trial court error resulting from the
failure of the Los Angeles County Department of Children and
Family Services (DCFS) to inquire of extended family regarding
potential ICWA applicability was harmless. We will affirm the
trial court’s order.
BACKGROUND
Because mother’s only contention on appeal is that the trial
court erred when it concluded that ICWA did not apply based on
an insufficient initial inquiry regarding K.C.’s potential Indian
ancestry, we include here only facts related to that contention.
K.C. came to the attention of DCFS in January 2021 when
he tested positive for amphetamines at birth. Mother told
1Further undesignated statutory references are to the
Welfare and Institutions Code.
2
hospital staff and the DCFS social worker who first interviewed
her that she lived with K.C.’s maternal aunt, grandmother, and
great-grandmother. Mother and father did not live in the same
home, and father did not live with any relative. During her first
interview with DCFS, mother “denied having any American
Indian heritage.”
Mother has five other children, each of whom has been the
subject of DCFS and juvenile court intervention. Mother’s first,
second, and third children now live with the biological father of
the second and third children. Father is the biological father of
the mother’s fourth and fifth children and K.C., who is mother’s
sixth child. The juvenile court terminated the parents’ parental
rights as to mother’s fourth child in February 2019. The juvenile
court terminated parental rights as to mother’s fifth child in
early 2021. Although none of the other five children is a subject
of this appeal, the juvenile court took judicial notice of the
juvenile court case files related to the removal of each of the
previous five children from mother’s custody and the termination
of both parents’ parental rights as to mother’s fourth and fifth
children—K.C.’s siblings.
Based on K.C.’s positive toxicology screen at birth, DCFS
filed a dependency petition under section 300 on January 20,
2021, and attached an Indian Child Inquiry Attachment.
(Judicial Council Forms, form ICWA-010(A).) The social worker
who had interviewed mother at the hospital checked boxes on the
form next to language indicating that she had asked mother “and
on information and belief confirm that [mother] has completed
inquiry by asking the child, the child’s parents, and other
required and available persons about the child’s Indian status”
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and that the inquiry gave the social worker “no reason to believe
the child is or may be an Indian child.”
In advance of the January 25, 2021 detention hearing,
mother and father both electronically filed Parental Notification
of Indian Status forms. (Judicial Council Forms, form ICWA-
020.) Father checked a box indicating that he had no reason to
believe or know that K.C. was an Indian child.2 (Judicial Council
Forms, form ICWA-020 (rev. Mar. 25, 2020).) Mother checked a
box on an older version of the form next to the words “I have no
Indian ancestry as far as I know.” (Judicial Council Forms, form
ICWA-020 (rev. Jan. 1, 2008).)
At the detention hearing, the juvenile court concluded,
based on the parents’ denials of Indian ancestry, that it had no
reason to know that K.C. was an Indian child as defined by
ICWA. The juvenile court’s minute order states that the
“[p]arents are to keep the Department, their Attorney[,] and the
2 Judicial Council form ICWA-020 that father submitted
included checkboxes next to the following statements: (a) “I am
or may be a member of, or eligible for membership in, a federally
recognized Indian tribe”; (b) “The child is or may be a member of,
or eligible for membership in, a federally recognized Indian
tribe”; (c) “One or more of my parents, grandparents, or other
lineal ancestors is or was a member of a federally recognized
tribe”; (d) “I am a resident of or am domiciled on a reservation,
rancheria, Alaska Native village, or other tribal trust land”; (e)
“The child is a resident of or is domiciled on a reservation,
rancheria, Alaska Native village, or other tribal trust land”; (f)
“The child is or has been a ward of a tribal court”; (g) “Either
parent or the child possesses an Indian identification card
indicating membership or citizenship in an Indian tribe”; and (h)
“None of the above apply.” Father checked the box next to “None
of the above apply.”
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Court aware of any new information relating to possible ICWA
status.”
In its jurisdiction and disposition report, DCFS indicated
that mother had been born and raised in Los Angeles, though she
lived for some time as an adolescent in Mexico with her mother
and stepfather. Father migrated to the United States at age 10
from El Salvador with his parents, where father said he was
“raised by both his maternal and paternal grandparents.”
There is no indication in the record that DCFS ever
interviewed any member of either parent’s extended family or
that any extended family member ever attended any of the
juvenile court’s hearings in this matter.
The juvenile court terminated the parents’ parental rights
at a hearing on October 18, 2021, and identified adoption as
K.C.’s permanent plan.
Mother filed a timely notice of appeal.
DISCUSSION
Mother contends the trial court committed prejudicial error
when it relied on DCFS’s insufficient initial ICWA inquiry to
conclude that ICWA does not apply to this juvenile proceeding.
DCFS argues that any error was harmless.
Under ICWA, an “Indian child” is an unmarried person
under 18 years of age who is (1) a member of a federally
recognized Indian tribe or (2) is eligible for membership in a
federally recognized tribe and is the biological child of a member
of a federally recognized tribe. (25 U.S.C. § 1903, subds. (4) & (8);
see § 224.1, subd. (a).)
DCFS and the juvenile court “have an affirmative and
continuing duty to inquire whether a child” involved in
dependency proceedings “is or may be an Indian child.” (§ 224.2,
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subd. (a).) When DCFS detains a child and places that child in
foster care, its duty to inquire “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 or sister, brother-in-law or sister-in-law, niece or
nephew, first or second cousin or stepparent.” (25 U.S.C. § 1903,
subd. (2).)
“At 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” (§ 224.2, subd. (c)) and order the parents to
complete the Judicial Council’s Parental Notification of Indian
Status form. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Mother contends DCFS should have inquired of the
maternal grandmother, the maternal great-grandmother, a
paternal aunt, and potentially two maternal aunts in addition to
the inquiry it performed.
We agree with DCFS that any error occasioned by DCFS’s
insufficient inquiry was harmless.
“[I]n ICWA cases, a court must reverse where the record
demonstrates that the agency has not only failed in its duty of
initial inquiry, but where the record indicates that there was
readily obtainable information that was likely to bear
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meaningfully upon whether the child is an Indian child.” (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 744 (Benjamin M.).)
In In re Darian R. (2022) 75 Cal.App.5th 502 (Darian R.),
we found no prejudice under circumstances similar to this case.
There, we observed that “mother at various times lived with the
relatives she claims DCFS failed to interview” and “the juvenile
court had already found in 2015 that ICWA did not apply to two
of the children when all three children have the same parents.”
(Id. at p. 510.)
Here, mother acknowledges that interviewing father’s
relatives was unlikely to lead to any additional information. In
her opening brief, mother states: “Admittedly, father said he was
raised in El Salvador until he was ten[ ]years[ ]old, so it was
likely there was no Native American Indian ancestry in the
paternal family . . . .”
Additionally, as in Darian R., mother lives with all but one
of the maternal relatives that she argues DCFS should have
interviewed. (See 75 Cal.App.5th at p. 509.) And as in Darian
R., mother “was under court order to continue to provide
information relevant to ICWA.” (Id. at p. 510.)
Finally, again as in Darian R., both parents had been
parties to earlier dependency proceedings that had resulted in
termination of parental rights to two of the child’s full biological
siblings and removal of three more of the child’s half siblings
from mother. (See 75 Cal.App.5th at p. 510.) The juvenile court
took judicial notice of the files from those matters.
We conclude, as we did in Darian R., that “[t]he record
simply does not support mother’s unvarnished contention that
additional interviews of mother’s [relatives] would have
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meaningfully elucidated the children’s Indian ancestry.” (75
Cal.App.5th at p. 510.)
Even if we were to conclude that additional interviews
might have yielded “information that was likely to bear
meaningfully upon whether [K.C.] is an Indian child,” the record
does not indicate that any additional information was “readily
obtainable.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
DCFS social workers tried repeatedly to contact mother and
father regarding visitation, parents’ enrollment in services, and
scheduling statutorily-required meetings to discuss K.C., but
both parents’ cell phone numbers were disconnected. And
although father referenced a paternal aunt in a DCFS interview,
he declined to provide DCFS with her name or telephone number.
Any error occasioned by DCFS’s failure to conduct the
initial inquiry required by section 224.2 was harmless.
(Benjamin M., supra, 70 Cal.App.5th at p. 744.)
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J. MORI, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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