Filed 12/8/22 In re D.D. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re D.D. et al., Persons Coming B319941
Under the Juvenile Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN Los Angeles County
AND FAMILY SERVICES, Super. Ct. No. 18CCJP02204A-B
Plaintiff and Respondent,
v.
M.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Debra R. Archuleta, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
**********
Father M.D. appeals the juvenile court’s order terminating
his parental rights to his sons D.D. and L.D. Their mother, J.D.,
is not a party to this appeal. Father’s sole contention on appeal is
that the trial court erred in finding the Indian Child Welfare Act
(ICWA; 25 U.S.C. § 1901 et seq.) did not apply because the Los
Angeles County Department of Children and Family Services
(Department) made an inadequate initial inquiry concerning the
boys’ relevant ancestry by failing to inquire with extended family
members with whom the Department had contact. We affirm.
BACKGROUND
1. Overview of Proceedings
This dependency proceeding began in 2018, nearly
five years ago, when the boys were aged seven and four. At the
time of the petition, the boys lived in and out of motels with
father and his girlfriend. Father had been caring for the boys for
nearly two years after a 2016 referral to the Department based
on mother’s neglect was resolved by father taking the children
from mother’s home and agreeing to pursue custody in family
court.
In July 2018, the juvenile court ordered the boys removed
under Welfare and Institutions Code section 300, subdivisions (a)
and (b)(1). The court also ordered reunification services.
Removal was based on allegations that father was failing to
provide for the boys’ basic needs; that father and the girlfriend
were using drugs while caring for the boys; and that father and
the girlfriend had engaged in domestic violence in the boys’
presence. Father appealed this order and we affirmed. (In re
L.D. (Apr. 30, 2019, B291401) [nonpub. opn.].)
In September 2019, the juvenile court terminated
reunification services and scheduled a permanency planning
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hearing. Shortly thereafter, the boys were placed with their
maternal grandparents in Washington state.
The maternal grandparents were approved for adoption in
2020. At a hearing in January 2021, the court terminated
parental rights and ordered adoption by the grandparents as the
boys’ permanent plan. The court had authorized father to testify
at the hearing in support of his claimed parental bond exception
but father’s testimony was inaudible due to a poor phone
connection. Father appealed this order and we reversed. (In re
L.D. (July 7, 2021, B309852) [nonpub. opn.].) The juvenile court
reinstated parents’ parental rights in September 2021.
The juvenile court again ordered adoption by maternal
grandparents as the boys’ permanent plan in January 2022. At a
hearing in February 2022, with mother’s consent but over
father’s objection, it again ordered parental rights terminated. It
is from this order that father now appeals.
2. Facts Relevant to ICWA Inquiry
The Department attached ICWA-010(A) forms to the
petition indicating it had made Indian child inquiries and that
the boys had no known Indian ancestry. The forms did not
identify the person or persons with whom the Department had
inquired.
In May 2018, mother appeared in the juvenile court and
filed an ICWA-020 form indicating that she had no Indian
ancestry as far as she knew. The court asked mother if she had
any reason to believe father had Indian ancestry and she
responded, “No.” On this basis, the court found the ICWA
inapplicable but admonished parents to keep counsel, the
Department, and the court apprised of any new information
relating to Indian ancestry.
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At a hearing later the same month, father appeared and
filed an ICWA-020 form indicating that he had no Indian
ancestry as far as he knew. The juvenile court noted father’s
denial of Indian ancestry and continued to find the ICWA
inapplicable. It also reiterated its admonishment to disclose any
new information relating to Indian ancestry. We are directed to
no evidence that further information was ever provided pursuant
to this admonishment.
Over the course of the proceedings, the Department also
had contact with many of the boys’ extended family members. It
had contact with the maternal grandparents, with whom the
children were ultimately placed. It interviewed maternal
great-aunt. It interviewed father’s cousin on his father’s side. It
met with paternal grandmother. It met with paternal aunt
(father’s maternal half sister). And it evaluated paternal
relatives in Arizona for potential placement and had contact
information for other paternal relatives in Arizona. We are
directed to no evidence in the record that the Department ever
asked any extended family members about the boys’ 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.
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§ 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 S.S. (2022) 75 Cal.App.5th 575, 581; In re
D.F. (2020) 55 Cal.App.5th 558, 566.) The state law initial
inquiry requirements exceed those imposed by federal law, which
merely require the court to “ask each participant in an emergency
or voluntary or involuntary child-custody proceeding whether the
participant knows or has reason to know that the child is an
Indian child” and instruct the parties to inform the court if they
subsequently receive information that provides reason to know
the child is an Indian child. (25 C.F.R. § 23.107(a) (2022).)
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 court a “reason to 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. (Welf. & Inst.
Code, § 224.3, subd. (a)(1); In re D.F., supra, 55 Cal.App.5th at
p. 568.)
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A juvenile court’s finding that ICWA does not apply in a
proceeding implies that (a) neither the Department nor the court
had a reason to know or believe the subject child is an Indian
child; and (b) the Department fulfilled its duty of inquiry. (In re
Josiah T. (2021) 71 Cal.App.5th 388, 401.)
“ ‘ “[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., supra, 71 Cal.App.5th at
p. 401.)
Father’s claim of error is that the juvenile court found the
ICWA inapplicable even though the Department had contact with
extended family members from both sides of the boys’ family yet
failed to ask them about Indian ancestry. We agree that the
Department failed in its initial inquiry obligation imposed by
California law to ask “extended family members” whether the
boys are, or may be, Indian children. (Welf. & Inst. Code, § 224.2,
subd. (b).) The Department apparently only asked parents about
Indian heritage. The court also asked parents about Indian
heritage and admonished them to keep counsel, the court, and
the Department updated with any relevant new information.
While these steps satisfied the lower federal initial inquiry
requirements, in the absence of any evidence the Department
complied with its section 224.2, subdivision (b) duty to inquire of
extended family members with whom it had contact, the 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
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showed Department had contact with maternal aunt and
maternal grandfather but failed to inquire of them regarding
Indian ancestry].)
However, because the court’s error is one of state law, 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.)
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 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.)
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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
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 the boys have Indian ancestry. Mother
and father both denied knowledge of any Indian ancestry in
signed, written submissions to the juvenile court. They both
reiterated their lack of knowledge of Indian ancestry in person on
the record and neither provided additional information to the
court about Indian ancestry in the more than four years since
being admonished to do so. 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 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.
Further, we are offered no reason in the record to believe
that the other extended family members with whom the
Department communicated would have better information about
parents’ ancestry than parents did. Mother had robust recent
contact with her parents, including a period in which maternal
grandparents lived with both parents and the boys. Father also
has a history of close contact with his family members that the
Department encountered. Paternal grandmother and paternal
aunt attended some of father’s visits with the boys and father
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was raised for several years by his cousin and cousin’s mother
(paternal grandfather’s sister).
Finally, no one has suggested any reason to believe the
boys might have Indian ancestry. Certainly, father has made no
offer of proof that they are Indian children. Instead, both parents
represented under penalty of perjury that they have no
information that the boys may have Indian heritage.
Additionally, maternal grandparents were born and raised in the
Philippines, further diminishing the likelihood that there is any
Indian heritage to be discovered.
Given the absence of any evidence or claim that the boys
might have Indian ancestry, father’s “unvarnished contention
that additional interviews of [relatives] would have meaningfully
elucidated [the boys’] Indian ancestry” does not support a finding
of prejudice. (In re Darian R., supra, 75 Cal.App.5th at p. 510.)
DISPOSITION
The juvenile court’s order terminating parental rights is
affirmed.
GRIMES, J.
I CONCUR:
STRATTON, P. J.
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WILEY, J., Dissenting.
With wonder and dismay, I file my 13th dissent on this
issue.
WILEY, J.
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