Filed 10/31/22 In re B.A. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re B.A., a Person Coming Under B318626
the Juvenile Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN Los Angeles County
AND FAMILY SERVICES, Super. Ct. No. 18CCJP06007A
Plaintiff and Respondent,
v.
ANTOINETTE R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County. Marguerite Downing, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
___________________________
Mother Antoinette R. appeals the order terminating her
parental rights to her daughter, B.A. Mother’s sole claim of error
is that the Los Angeles County Department of Children and
Family Services (Department) made an inadequate initial inquiry
concerning B.A.’s ancestry for purposes of the Indian Child Welfare
Act (ICWA; 25 U.S.C. § 1901 et seq.). We affirm.
BACKGROUND
1. Overview of Proceedings
This dependency proceeding began four years ago, in 2018,
when B.A. was an infant. She was detained from her parents for a
litany of reasons, including ongoing Department cases concerning
three of her siblings and a half sibling.
B.A. was initially placed with her maternal grandmother.
She was later removed from maternal grandmother’s home and
placed in the care of a family friend who also had custody of B.A.’s
siblings.
The parents failed to reunify with B.A. and the court
terminated reunification services in July 2019. The family friend
caring for B.A. wanted to adopt her. However, he passed away
while the proceedings were pending, and B.A. and her siblings
were placed with a relative of the family friend, Ms. B. Ms. B
agreed to adopt B.A. After a series of delays to resolve
impediments to adoption, the court terminated parental rights and
ordered adoption by Ms. B. as B.A.’s permanent plan.
2. Facts Relevant to ICWA Inquiry
In September 2018, at the initial appearance hearing,
mother filed a parental notification of Indian status form
(ICWA-020) indicating “I have no Indian ancestry as far as
I know.”
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Father did not appear at the initial appearance hearing, and
the Department reported difficulty locating him. In an October
2018 report, the Department referred the court to prior findings of
no reason to know that B.A.’s full siblings are Indian children or
that two half siblings of B.A.’s—one maternal and one paternal—
are Indian children. In the proceeding concerning the paternal
half sibling, the Department noted that father had appeared and
denied Native American heritage.
Father was later located. In advance of a scheduled hearing
in October 2018, at which father personally appeared father filed a
form ICWA-020 indicating “I have no Indian ancestry as far as
I know.” On the record before it, the court found that it “ha[d] no
reason to know that the [ICWA] applies or that [B.A.] is an Indian
child.” By its minute order of the same date, the court admonished
parents to keep their attorneys and the court aware of any new
information relating to possible ICWA status.
According to a report the Department filed in October 2018,
mother reported she grew up in Los Angeles where she was raised,
together with a brother and two sisters, by her mother and
stepfather. When her family moved to Lancaster, she dropped out
of school and returned to Los Angeles to live with an aunt, but she
later returned to her mother’s house in Lancaster. Maternal
grandparents are now both deceased. Although it is unclear when
he died, we are directed to no record of contact between the
Department and mother’s stepfather. The maternal grandmother
died in 2019 while these proceedings were pending. The
Department had contact with the maternal grandmother prior to
her death but there is no record that it asked the maternal
grandmother about Indian heritage.
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Aside from his ICWA-20, father’s family history is
undeveloped in the record, apparently owing to difficulty in
locating father throughout the proceedings and obtaining
information from him.
We are directed to no evidence in the record that the
Department ever asked any extended family members about the
children’s possible Indian heritage.
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.) It is
incumbent upon a state court administering a proceeding where
child custody is at issue to inquire whether the subject child is an
Indian child. The scope of the duty on the court, as well as certain
participants in the proceeding, is defined by federal regulations
and related state law. (See, e.g., 25 C.F.R. § 23.107 (2022); Welf. &
Inst. Code, § 224.2; Cal. Rules of Court, rule 5.481.)
The duty of inquiry has three “phases.” Father claims error
with the first. This phase—the “initial inquiry”—applies in every
case. The initial inquiry requires the court and the Department to
ask certain persons related to the proceedings about the child’s
possible Indian ancestry. (See Welf. & Inst. Code, § 224.2, subds.
(a), (b), (c); In re D.F. (2020) 55 Cal.App.5th 558, 566.)
Where the “initial inquiry” gives “reason to believe” the child
is an Indian child, but there is insufficient information to make a
definitive determination, the second phase—“further inquiry”—
comes into play. (Welf. & Inst. Code, § 224.2, subd. (e)(2).)
Further inquiry requires more robust investigation into possible
Indian ancestry. (See ibid.; In re D.F., supra, 55 Cal.App.5th at
p. 566.) If further inquiry gives the juvenile court a “reason to
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know” a child is an Indian child, the third phase is triggered. This
phase requires that notice pursuant to ICWA be sent to the tribes
to facilitate their participation in the proceedings. (§ 224.3,
subd. (a)(1); In re D.F., at p. 568.)
“ ‘ “[W]e review the juvenile court’s ICWA findings under the
substantial evidence test, which requires us to determine if
reasonable, credible evidence of solid value supports the court’s
order. [Citations.] We must uphold the court’s orders and findings
if any substantial evidence, contradicted or uncontradicted,
supports them, and we resolve all conflicts in favor of
affirmance.” ’ ” (In re Josiah T. (2021) 71 Cal.App.5th 388, 401.)
The Department was required as part of its initial inquiry to
ask extended family members “whether the child is, or may be, an
Indian child . . . .” (Welf. & Inst. Code, § 224.2, subd. (b);
In re S.S. (2022) 75 Cal.App.5th 575, 581.) Although the
Department asked the parents about Indian heritage, it failed to
inquire of extended family members with whom the Department
had contact.
In the absence of any evidence the Department complied
with its Welfare and Institutions Code section 224.2,
subdivision (b), duty to inquire of extended family members, the
juvenile court’s finding that ICWA does not apply is error. (See
In re Darian R. (2022) 75 Cal.App.5th 502, 509 [finding error
where evidence showed Department had contact with maternal
aunt and maternal grandfather but failed to inquire of them
regarding Indian ancestry].)
However, we can reverse only if the error was prejudicial.
(In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.),
citing Cal. Const., art. VI, § 13.)
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Courts are divided on what showing of prejudice warrants
reversal for initial inquiry errors. “Some courts have addressed
this problem by requiring an appellant who asserts a breach of the
duty of inquiry to, at a minimum, make an offer of proof or other
affirmative assertion of Indian heritage on appeal.” (In re S.S.,
supra, 75 Cal.App.5th at pp. 581–582, citing cases.) Others have
excused such a showing, effectively treating failure to inquire as
error per se. (See, e.g., In re Y.W. (2021) 70 Cal.App.5th 542, 556;
In re J.C. (2022) 77 Cal.App.5th 70, 80.) The Fourth Appellate
District in Benjamin M., supra, 70 Cal.App.5th 735, took a third
approach, concluding that “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
meaningfully upon whether the child is an Indian child.” (Id. at
p. 744.) Our court recently took a fourth approach, concluding
initial inquiry errors require reversal only when the record of
proceedings in the juvenile court or a proffer of evidence made on
appeal suggests a reason to believe that the child may be an Indian
child. (In re Dezi C. (2022) 79 Cal.App.5th 769, 779, review
granted Sept. 21, 2022, S275578.)
We have previously rejected the error per se line of cases.
(In re M.M. (2022) 81 Cal.App.5th 61, 71, review granted Oct. 12,
2022, S276099.) Under any of the other three lines of cases, the
juvenile court’s error here was harmless.
On the record before us, there is no reason to believe there is
readily available information that is likely to bear meaningfully on
whether B.A. has Indian ancestry. Mother and father appeared
and unequivocally denied knowledge of any Indian ancestry. Prior
proceedings involving other children of both parents (and each
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parent) have resulted in findings of no reason to know their
children have Indian ancestry. Nothing in the record concerning
the parents’ background indicates there is reason to believe B.A.
has Indian ancestry.
In her opening brief, mother only argued that “[a]n inquiry of
[B.A.’s] maternal grandmother would have been easy and was
likely to bear meaningfully upon whether [B.A.] was an Indian
child.” But mother failed to acknowledge that maternal
grandmother is now deceased. For the first time in her reply brief,
mother argued the Department might have also inquired with
mother’s siblings and aunt or father’s brothers, who were known to
the family friend that initially sought to adopt her. But there is no
record that these people were available to the Department during
the proceedings, and the record reflects that DCFS had a difficult
time maintaining contact with the parents so as to ask if they had
any contact information for any of these extended family members.
Indeed, as mother concedes, father “made himself unavailable to
the department” and the family friend who may have had
information as to the whereabouts of father’s brothers is now
deceased. Further, the record contains no basis to conclude the
parents’ respective siblings or mother’s aunt would have more
information about parents’ heritage than they do.
Nor has anyone so much as suggested there is reason to
believe B.A. might have Indian ancestry. Certainly, mother has
made no offer of proof that she is an Indian child. Instead, mother
and father both certified they have no information B.A. may have
Indian heritage. As such, this case is unlike Benjamin M. There,
the father was entirely absent from the proceedings and no person
from the father’s side of the family had been asked about Indian
ancestry. With information about ancestry on the father’s side
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completely “missing,” inquiry with a person sharing the father’s
ancestry “would likely have shed meaningful light on whether
there [wa]s reason to believe Benjamin [wa]s an Indian child.”
(Benjamin M., supra, 70 Cal.App.5th at p. 744.) No such facts are
present here.
Given the absence of any evidence or claim that B.A. might
have Indian ancestry, mother’s “unvarnished contention that
additional interviews of [relatives] would have meaningfully
elucidated [B.A.’s] Indian ancestry” does not support a finding of
prejudice. (In re Darian R., supra, 75 Cal.App.5th at p. 510.)
DISPOSITION
The order terminating parental rights is affirmed.
GRIMES, J.
I CONCUR:
STRATTON, P. J.
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WILEY, J., Dissenting.
I agree with Justice Lavin’s analysis. (In re Ezequiel G.
(2022) 81 Cal.App.5th 984, 1015–1025 (dis. opn. of Lavin, J.).)
I adhere to the views I have stated in my previous 10 dissents on
this issue.
WILEY, J.
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