In re DARIAN R. et al, Persons Coming Under the Juvenile Court Law.
B314783
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Filed 2/24/22
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. 19CCJP04446)
APPEAL from an order of the Superior Court of Los Angeles County, Debra R. Archuleta, Judge. Affirmed.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
The Indian Child Welfare Act of 1978 (
Maria V. (mother) appeals from an order terminating her parental rights over her three children, who all have the same father. The sole basis of her appeal is thаt the Los Angeles County Department of Children and Family Services (DCFS) failed to interview her extended family members about their Indian ancestry. DCFS agrees this was error, but contends the error was not prejudicial. We agree.
As detailed below, the record does not support mother‘s argument that readily obtainable information would have shed meaningful light on whether the children are Indian children.
BACKGROUND
Mother and father have three children: Darian, Hailey, and Bonnie. From September 2015 to October 2016, the family participated in family maintenance services. It is undisputed that in the context of that prior dependency case, the juvenile court found that ICWA did not apply.
In the current dependency proceeding, mother and father admitted being addicted to methamphetamine, and using methamphetamine every day. Father acknowledged that he was unable to care for the children.2 Father said he stayed away from the children when he was “out on thе street” because he was “using drugs.”
Mother minimally participated in the current dependency proceedings. She initially visited the children but then stopped. Mother did not attend her scheduled drug tests and frequently
1. Petition
In July 2019, DCFS filed a petition involving Darian (then 11), Hailey (then 8), and Bonnie (then 2). As subsequently sustained, DCFS alleged mother has a history of drug use and currently abused methamphetamine, rendering her incapable of caring for her children. DCFS further alleged mother had mental and emotional problems, including bipolar disorder, depression, anxiety, and self-mutilating behaviors, rendering her incapable of caring for the children. With respect to father, the petition alleged that he had an 18-year history of drug use and currently used methamphetamine, rendering him incapable of caring for the children. The petition alleged father had bipolar disorder and depression, rendering him incapable of caring for the children.
2. DCFS reports
In its detention report, DCFS stated: “The Indian Child Welfare Act does not apply. Mother denied that she or the children have American Indian ancestry.” Mother never retracted her denial that neither she nor the children have Indian ancestry.
DCFS interviewed father for the detention report, but the report does not indicate the social workers asked father about whether he had Indian ancestry. The detention report indicated a social worker interviewed maternal aunt and had contact with maternal grandfather, but the detention report does not indicate
The jurisdiction report echoed the detention report stating, “The Indian Child Welfare Act does not apply. Per the 7/16/19 Detention Report, mother denied Indian Ancestry” when questioned by a social worker.
On January 22, 2020, a social worker interviewed father and father denied any Indian ancestry.
On July 2, 2020, a social worker interviewed paternal aunt. Paternal aunt denied any Indian anсestry.
In a status review report dated October 6, 2020, DCFS indicated: “The Indian Child Welfare Act does not apply.” Both mother and father denied having Indian ancestry.
On June 1, 2021, DCFS again reported that ICWA did not apply.
3. Parental notification of no Indian ancestry
On November 1, 2019, father filed parental notification of Indian status indicating, “I have no Indian ancestry as far as I know.”
Mother filed her parental notification of Indian status on October 6, 2020. Like father, mother checked a box stating, “I have no Indian ancestry as far as I know.”
At a hearing on September 3, 2019, the juvenile court concluded ICWA did not apply. The juvenile court relied in part on the undisputed fact that in a 2015 dependenсy case, the juvenile court found ICWA did not apply as to Darian and Hailey.
The juvenile court‘s November 1, 2019 minute order states: “The Court does not have a reason to know that this is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the [Bureau of Indian Affairs]. Parents are to keep the Depаrtment, their Attorney and the Court aware of any new information relating to possible ICWA status.”
On October 6, 2020, the juvenile court reiterated, “This does not appear to be a case governed by the Indian Child Welfare Act.”
On August 6, 2021, the juvenile court terminated mother and father‘s parental rights. Neither was present at the hеaring. Mother timely appealed from the order terminating her parental rights.
DISCUSSION
A. Applicable Law
“ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family.” (In re Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.).)
Federal law defines “‘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 in an Indian
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.” (
At the outset of a dependency case, the child welfare agency and the juvenile court have a statutory initial duty to inquire into whether a child is, or may be an Indian child.4 “The child welfare department‘s initial duty оf inquiry includes ‘asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party
“The juvenile court must ask the particiрants in a dependency proceeding upon each party‘s first appearance ‘whether the participant knows or has reason to know that the child is an Indian child’ (
“The minimum standards established by ICWA include the requirement of notice to Indian tribes in any involuntary proceeding in state court to place a child in foster care or to terminate рarental rights ‘where the court knows or has reason to know that an Indian child is involved.’ [Citation.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 8.) Notice requirements help determine whether a child is an Indian child and ensure that a tribe is “aware of its right to intervene in or, where appropriate, exercise jurisdiction over a child custody proceeding invоlving an Indian child.” (Ibid.)
We first observe mother does not argue the juvenile court erred in failing to question her or father about potential Indian ancestry. We also note the social workers interviewed mother and father, and both denied any Indian ancestry. Thus, there is no asserted error as to initial ICWA inquiry as to father and mother.
Mother, however, does argue DCFS and the juvenile court failed to interview her extended family members—specifically maternal grandfather and maternal aunt—about the children‘s potential Indian ancestry. Mother alsо argues DCFS and the court should have interviewed paternal aunt about her Indian ancestry. Starting with the latter challenge, the record reveals that in fact, a social worker asked paternal aunt about her Indian ancestry, and paternal aunt denied having any. Mother‘s argument to the contrary is not well-founded.
To the extent mother argues the juvenile court (as opposed to DCFS) should have asked her extended family members or paternal aunt about Indian ancestry, the argument lacks merit because
C. Mother Fails to Demonstrate Prejudice from DCFS‘s Failure to Interview Mother‘s Extended Family Members
The parties rely on Benjamin M. for the definition of prejudice when considering DCFS‘s failure to interview extended family members about their Indian ancestry. According to Benjamin M., the failure to ask extended family members about Indian ancestry would be prejudicial if “the recоrd indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.) Continued inquiry is required “where the probability of obtaining meaningful information is reasonable in the context of ICWA.” (Ibid.) Benjamin M. reasoned that relying just on the parents for information about Indian ancestry doеs not take into account that the parents themselves may have scant information about their ancestry, and one does not always know “what information an initial inquiry, properly conducted might reveal.” (Id. at pp. 742-743.)
In Benjamin M., the juvenile court conditionally reversed an order terminating a mother‘s parental rights; her children did nоt all have the same father. On appeal, she contended the juvenile court erred in finding ICWA did not apply to one of her children because the child welfare agency did not interview the brother
Applying Benjamin M.‘s definition of prejudice here, we conclude the record does not demonstrate that failing to ask maternal aunt and grandfather about the children‘s Indian ancestry was prejudicial. Mother does nоt contest that in 2015, the juvenile court found ICWA did not apply to Darian and Hailey. It is undisputed that Bonnie, Darian and Hailey have the same parents and thus, the same ancestry. This case substantially differs from Benjamin M. where the mother was challenging the social services agency‘s failure to interview a paternal relative whom the mother may not have known. Here, mother at various times lived with the relatives she claims DCFS failed to interview. In further contrast to Benjamin M., it is undisputed that 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.
In addition, since November 2019, mother has bеen under court order to continue providing information relevant to ICWA. Although mother cites In re Y.W. (2021) 70 Cal.App.5th 542, 554, for the proposition that a parent may not know about any relationship to a tribe, mother does not show the relevance of that proposition here. In Y.W., mother was adopted at age two by unrelatеd adoptive parents from whom she was estranged, and
In sum, the record shows no prejudice flowing from DCFS‘s failure to interview maternal grandfather and maternal aunt.
DISPOSITION
The order terminating mother‘s parental rights is affirmed.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.