Filed 9/6/22 In re S.B. CA2/3
See dissenting opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
In re S.B., a Person Coming B316419
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 18CCJP01713E
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Martha A. Matthews, Judge. Affirmed.
Christine E. Johnson, under appointment by the Court
of Appeal, for Defendant and Appellant.
Tarkian & Associates and Arezoo Pichvai for Plaintiff
and Respondent.
_________________________
Mother J.B. appeals from the juvenile court’s order
terminating her parental rights to her child, S.B. She contends
the juvenile court and the Los Angeles County Department of
Children and Family Services (Department) failed to comply with
their duties of initial inquiry under state law (Welf. & Inst. Code,
§ 224 et seq.) implementing the Indian Child Welfare Act of 1978
(ICWA) (25 U.S.C. § 1901 et seq.).1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother gave birth to S.B. on July 31, 2020. About a week
later, the Department received a referral expressing concern that
mother was not compliant with an open dependency case related
to mother and father’s other children, N.B. and K.B. As to those
children, the juvenile court sustained a section 300 petition in
June 2018 after mother tested positive for methamphetamine
at K.B.’s birth. The court removed the children from mother’s
custody and released them to father. The court terminated
jurisdiction over the children and granted father sole physical
custody in September 2019.
The Department detained N.B. and K.B. in April 2020
after father purposely cut his arm with a knife. In June 2020,
the court removed the children from their parents’ custody and
placed them with paternal grandparents. The record does not
disclose whether mother was present at the detention hearing.
The social worker assigned to N.B. and K.B.’s case, however,
1 Undesignated statutory references are to the Welfare and
Institutions Code. Because ICWA uses the term “Indian,” we do
the same for consistency. (In re Benjamin M. (2021) 70
Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
2
said she was not able to locate mother until sometime around
August 2020.
As to S.B., the Department filed a section 300 petition
alleging father has a history of violent and assaultive behavior,
substance abuse, and mental and emotional problems. It
further alleged mother has a history of substance abuse. The
Department attached to the petition an ICWA Inquiry form
indicating mother denied the child has Indian ancestry.
During the Department’s investigation of S.B.’s case,
mother disclosed that she had been living with maternal
grandmother while pregnant with S.B., but she had recently
moved to Los Angeles to enroll in a drug treatment program.
According to mother, a court removed her from maternal
grandmother’s custody when she was in sixth grade and placed
her with maternal grandfather. Mother said that, although
she recently had been living with maternal grandmother, she
had a closer relationship with maternal grandfather.
The court conducted a detention hearing for S.B. on
August 21, 2020. The same day, mother filed a Judicial
Council form ICWA-020, Parental Notification of Indian Status
(ICWA-020 form) indicating she has no reason to know S.B. is
an Indian child. The form also states mother had not previously
filed an ICWA-020 form with the court. Mother did not sign
the form; instead, someone (presumably her counsel) wrote on
the signature block, “Authorized to sign by parent.”
Mother appeared at the detention hearing by phone. The
court started the hearing by telling mother that it would review
some paperwork with her. The court then noted, “Mother has
filled out a form indicating that she does not have any American
Indian ancestry. Father has previously filled out a similar form
3
in the siblings’ case, so at this time, based on information from
both mother and father, the court will find that the Indian Child
Welfare Act does not apply.” The court detained S.B. and
released her to maternal uncle.
The court’s minute order from the detention hearing states:
“The Court does not have reason to know that this is an Indian
Child, as defined under ICWA, and does not order notice to any
tribe or the BIA. Parents are to keep the Department, their
Attorney, and the Court aware of any new information relating
to possible ICWA status. ICWA-020, the Parental Notification
of Indian Status is signed and filed. [¶] ICWA 020 Form is filed
by [mother] this date.”
The Department addressed ICWA in an October 2020
jurisdiction and disposition report. It represented that, “[p]er
[the] Detention Report,” mother denied Indian ancestry and
signed an Indian Ancestry Questionnaire. The Department also
represented that, in connection with the siblings’ case, paternal
grandmother denied that father has Indian ancestry and did not
believe that mother has Indian ancestry. There is no indication
that the Department asked mother’s relatives about ICWA,
despite being in contact with maternal grandmother and
maternal uncle.
Mother pleaded no contest to an amended petition, which
the court sustained at an October 7, 2020 jurisdiction hearing.
At the subsequent disposition hearing, the court declared S.B.
a dependent, removed her from her parents’ custody, and ordered
family reunification services. The Department placed the child
with a nonrelative.
On May 7, 2021, the court terminated reunification services
after finding mother and father had not made substantial
4
progress in their case plans. Mother did not appear at the
subsequent permanency planning hearing. The court again
found no reason to believe ICWA applies, explaining that “[a]s
to the older two children in which [father] appeared and has
counsel, [father] stated that he does not have American Indian
ancestry. . . . I can find based on the information available in
the related older children’s cases and based on information
from mother that there is no reason to believe that the Indian
Child Welfare Act applies as to the child [S.B.].” The court then
terminated mother’s and father’s parental rights and ordered
a permanent plan of adoption.
Mother timely appealed.
DISCUSSION
Mother urges us to reverse the order terminating her
parental rights because the court and the Department failed
to comply with their initial inquiry duties under state law
implementing ICWA. The Department asserts the court
complied with its duties and, in any event, the Department’s
noncompliance was harmless.
1. Applicable law and standard of review
Congress enacted ICWA “ ‘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 for the removal of Indian children from their
families and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7–8; see 25 U.S.C. § 1902.)
Both ICWA and state law define an “ ‘Indian child’ ” as “any
unmarried person who is under age eighteen and is either
(a) a member of an Indian tribe or (b) is eligible for membership
5
in an Indian tribe and is the biological child of a member
of an Indian tribe.” (25 U.S.C. § 1903(4); § 224.1, subd. (a)
[adopting federal definition].)
“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.”
(Benjamin M., supra, 70 Cal.App.5th at p. 741.)
As of January 1, 2019, state law implementing ICWA
requires juvenile courts to ask all participants in a dependency
case whether they know or have reason to know the child is
an Indian child and to instruct the parties to inform the court
“if they subsequently receive information that provides reason
to know the child is an Indian child.” (§ 224.2, subd. (c); see Cal.
Rules of Court, rule 5.481(a)(2).) The California Rules of Court
also require juvenile courts to order the parents to complete an
ICWA-020 form. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Further, whenever the Department takes a child into its
temporary custody, California law requires it to ask “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.” (§ 224.2, subd. (b).) Extended family members
include adults who are the 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(2);
§ 224.1, subd. (c) [adopting federal definition].)
If the initial inquiry gives the juvenile court or the
Department a “reason to believe that an Indian child is involved,”
then their duty to “make further inquiry regarding the possible
6
Indian status of the child” is triggered. (§ 224.2, subd. (e);
Benjamin M., supra, 70 Cal.App.5th at p. 742.) And, once
there is a “reason to know” an Indian child is involved, formal
notice under ICWA must be given to the children’s “parents or
legal guardian, Indian custodian, if any, and the child’s tribe.”
(§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(c)(1); 25 U.S.C.
§ 1912(a).)
We review the juvenile court’s ICWA findings for
substantial evidence. (In re D.F. (2020) 55 Cal.App.5th 558, 565;
In re D.S. (2020) 46 Cal.App.5th 1041, 1051.)
2. The juvenile court’s failure to comply with its inquiry
duty was harmless
Mother urges us to reverse the order terminating her
parental rights because the juvenile court failed to comply
with its inquiry obligations under section 224.2, subdivision (c).
Specifically, she contends the court failed to ask her whether she
“knows or has reason to know that the child is an Indian child,”
and failed to instruct her to “inform the court if [she]
subsequently receive[s] information that provides reason
to know the child is an Indian child.” (§ 224.2, subd. (c).) The
Department suggests the court was not required to question
or admonish mother in S.B.’s case because it presumably had
already done so in connection with the siblings’ case, and
although not reflected in the reporter’s transcript, the minute
order from the detention hearing admonished mother to keep
it updated with information related to ICWA.
We need not decide whether the trial court erred because
even if it did so, any error was harmless. (See Cal. Const.,
art. VI, § 13 [error must result in “miscarriage of justice” to be
set aside].) The record indicates Mother repeatedly denied
7
having reason to know S.B. is an Indian child, first to a DCFS
social worker and later on the ICWA-020 form she filed with
the court.2 Although the court did not directly question mother
about S.B.’s Indian status at the detention hearing, it did discuss
the issue with her. At the start of the hearing, the court told
mother it needed to review some paperwork with her. The court
then referred to mother’s ICWA-020 form and noted it indicated
“that [mother] does not have any American Indian ancestry.”
Neither mother nor her counsel corrected the court or in any way
suggested her form was incomplete or inaccurate. Given mother’s
silence and prior denials, it is not reasonably probable that,
had the court questioned her directly, she would have indicated
that she knew or had reason to know S.B. is an Indian child.
Under these circumstances, the court’s failure to ask mother
about S.B.’s Indian status was harmless.
The same is true of the court’s failure to admonish mother
to inform the court if she subsequently received information that
provides reason to know the child is an Indian child. Mother’s
ICWA-020 form instructed her—among other things—to notify
all the attorneys on the case and file another form if she received
new relevant information.3 Mother does not contend that she
2 Although mother did not personally sign the form, she does
not deny that she authorized someone (presumably her counsel)
to sign the form on her behalf. Nor does she contend that any
information in the form is inaccurate.
3 The form instructs that “[i]f you get new information that
would change your answers, you must let your attorney, all the
attorneys on the case, and the social worker or probation officer,
or the court investigator know immediately and an updated form
must be filed with the court.”
8
was unaware of this instruction. Nor does she contend that
she received new information that she would have disclosed to
the court, but for its failure to admonish her under section 224.2,
subdivision (c). Accordingly, any error was harmless and does
not warrant reversal.
3. The Department’s failure to comply with its inquiry
duty was harmless
Mother alternatively contends reversal is warranted
because the Department failed to ask the initial reporter,
maternal grandmother, and maternal uncle whether S.B. is,
or may be, an Indian child, as required under section 224.2,
subdivision (b). The Department implicitly concedes the errors,
but argues they were harmless. We agree with the Department
that any error was harmless. (See Cal. Const., art. VI, § 13
[error must result in “miscarriage of justice” to be set aside].)
The court in In re Dezi C. (2022) 79 Cal.App.5th 769
(Dezi C.) recently summarized the “ ‘continuum’ ” of rules
developed by California courts for “assessing whether a defective
initial inquiry is harmless.” (Id. at p. 777.) At one end of the
continuum, the Department’s defective initial inquiry requires
reversal in essentially every case, even if it is unlikely further
inquiry might lead to a different ICWA finding on remand.
(Ibid.) At the other end, the defect is treated as harmless unless
the parent makes a proffer on appeal as to why further inquiry
would lead to a different ICWA finding. (Ibid.) Somewhere
in between the two extremes is the rule stated in Benjamin M.,
supra, 70 Cal.App.5th at p. 744, that a defective initial inquiry
requires reversal if “readily obtainable information that was
likely to bear meaningfully upon whether the child is an Indian
child” existed. (See Dezi C., at p. 778.)
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Unsatisfied with all of these rules, the court in Dezi C.
announced a fourth standard: the failure to conduct a proper
initial ICWA inquiry is harmless “unless the record contains
information suggesting a reason to believe that the child may
be an ‘Indian child’ within the meaning of ICWA, such that the
absence of further inquiry was prejudicial to the juvenile court’s
ICWA finding.” (Dezi C., supra, 79 Cal.App.5th at pp. 778–779.)
The Dezi C. court explained that “a reviewing court would have
‘reason to believe’ further inquiry might lead to a different result
if the record indicates that someone reported possible American
Indian heritage and the agency never followed up on that
information; if the record indicates that the agency never
inquired into one of the two parents’ heritage at all [citation];
or if the record indicates that one or both of the parents is
adopted and hence their self-reporting of ‘no heritage’ may
not be fully informed [citation].” (Id. at p. 779.)
We reject the extreme ends of the continuum. As the
M.M. court recently explained while rejecting the automatic
reversal rule, there are “serious costs if courts delay finalizing
permanency for a child in every case where extended family
was not questioned, on the remote chance those relatives
might have information which is inconsistent with the parents’
disclaimer of Indian ancestry.” (In re M.M. (2022) 81 Cal.App.5th
61, 71 (M.M.).) We also agree with the Dezi C. court that a
rule requiring the parent to make a proffer on appeal “embraces
finality at the expense of the tribe’s interest in ascertaining
accurate determinations of the Indian status of dependent
children,” and “does too little to incentivize agencies to conduct
proper inquiries . . . .” (Dezi C., supra, 79 Cal.App.5th at p. 785;
see Benjamin M., supra, 70 Cal.App.5th at pp. 743–744
10
[requiring a parent to make a proffer on appeal is inconsistent
with the ICWA statutory scheme].) We need not decide between
the remaining standards because, under either one, the
Department’s failures in this case were harmless.
As to the Department’s failure to question the initial
reporter, there is little doubt that further inquiry would have
been futile. As mother concedes, given the nature of the report—
that mother was not in compliance with an open case concerning
her other children—it is near certain that the reporter was a
Department social worker. If so, we may presume the reporter
understood the importance of ICWA and would have voluntarily
disclosed relevant information in her possession if she had any.
Accordingly, it is neither “reasonably probable” that the
Department’s inquiry error “affected the correctness (that is,
the outcome) of the juvenile court’s ICWA finding” (Dezi C.,
supra, 79 Cal.App.5th at p. 781), nor is it likely further inquiry
of the initial reporter would have produced information that
“would likely have shed meaningful light” on S.B.’s Indian status
(Benjamin M., supra, 70 Cal.App.5th at p. 744).
The same is true of the Department’s failure to question
maternal grandmother and maternal uncle about S.B.’s Indian
status. As noted above, mother repeatedly and unequivocally
denied having any reason to know S.B. is an Indian child.
Nothing in the record casts doubt on the veracity of mother’s
representations or suggests maternal relatives could provide
the Department with additional meaningful information about
S.B.’s Indian status. Mother was raised by, and remained in
contact with, her biological parents, from whom she presumably
learned about her ancestry and any tribal membership; mother
offers no reason why maternal grandmother would have withheld
11
that information from her. Nor does she suggest any reason why
her sibling (maternal uncle) might possess information relevant
to his niece’s Indian status that the child’s own mother does not.
Under these circumstances, the Department’s failure to inquire
of maternal grandmother and maternal uncle was harmless
under both the Dezi C. and Benjamin M. standards. (See M.M.,
supra, 81 Cal.App.5th at p. 72 [holding the Department’s failure
to question extended family members about the child’s Indian
status was harmless under both standards where the parents
unequivocally denied knowledge of any Indian ancestry].)
Mother’s reliance on In re H.V. (2022) 75 Cal.App.5th 433,
In re Y.W. (2021) 70 Cal.App.5th 542, and Benjamin M., supra,
70 Cal.App.5th 735, is misplaced. The court in H.V. essentially
applied an automatic reversal rule, which we reject for the
reasons discussed above. (See H.V., at p. 438.) The other cases
—Y.W. and Benjamin M.—are distinguishable on their facts.
In Y.W., the mother had been adopted as a toddler, and the
Department never attempted to contact her biological parents
to confirm whether her denial of Indian ancestry was accurate.
(Y.W., at pp. 548–550.) In Benjamin M., the father never
appeared in court or denied having reason to know his child
is an Indian child. (Benjamin M., at p. 740.) Here, in contrast,
mother was raised by her biological parents, appeared in court,
and repeatedly denied having any reason to know S.B. is an
Indian child.
It bears repeating that ICWA’s definition of “ ‘Indian
child’ ” is extremely narrow: an unmarried person under age
eighteen who either (a) is “a member of an Indian tribe” or (b)
“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); see
12
also § 224.1, subds. (a), (b).) Tribal membership, moreover,
typically requires an affirmative act by the enrollee or the
enrollee’s parents. (See U.S. Dept. of the Interior, Bureau
of Indian Affairs, Indian Child Welfare Act Proceedings,
81 Fed.Reg. 38783 (June 14, 2016); U.S. Dept. of the Interior,
Bureau of Indian Affairs, Guidelines for Implementing the Indian
Child Welfare Act (Dec. 2016) p. 10.) Given these requirements,
a parent will generally be in the best position to know whether
a minor is an Indian child. We have no reason to doubt that is
true in this case.
DISPOSITION
We affirm the juvenile court’s order terminating mother’s
parental rights.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
I concur:
EDMON, P. J.
13
LAVIN, J., Dissenting:
For the reasons set forth in my dissent in In re Ezequiel G.
(2022) 81 Cal.App.5th 984, 1015–1025, I would conditionally
affirm the order and remand for further proceedings.
LAVIN, J.