In re S.S., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES v. E.S.
B314043
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. 19CCJP07836)
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane Kwon, Deputy County Counsel, for Plaintiff and Respondent.
E.S. (Mother) appeals from the juvenile court‘s order terminating her parental rights under
FACTUAL AND PROCEDURAL SUMMARY2
Shortly before midnight on December 3, 2019, a police officer observed Mother pushing a stroller with her four-month-old daughter, S.S., inside. It was raining and the temperature was below 50 degrees. The officer believed Mother was under the influence of a stimulant, “most likely methamphetamine.” The officer arrested Mother on suspicion of child endangerment and being under the influence of drugs. S.S. was placed in protective custody and taken to a hospital for examination.
Manual R. denied being S.S.‘s father and said he ended his relationship with Mother more than two years earlier. He said that Mother had previously told him that S.S.‘s father was in jail or prison, but she never told him the father‘s name.
On December 6, 2019, DCFS filed a juvenile dependency petition under
Mother did not appear at a detention hearing held on December 9, 2019. The court detained S.S. and placed her in DCFS custody. The court ordered monitored visitation for Mother if she contacted DCFS to request visits. The court deferred the “determination of ICWA status . . . for the parents[‘] appearance.”
DCFS placed S.S. in foster care with someone who remained her caregiver throughout the proceedings and whom the court subsequently granted de facto parent status and identified as the prospective adoptive parent.
On December 16, 2019, a social worker spoke with Mother by telephone. The social worker asked Mother about potential relatives who may be considered for placement, and Mother replied that “she did not have any relatives to provide at this time” and “she does not wish for [S.S.] to be placed with [S.S.‘s maternal grandmother].” She also “did not wish to provide the child‘s father‘s information.”
In a jurisdiction/disposition report filed on January 9, 2020, DCFS reported that Mother‘s whereabouts were unknown and she had not made herself available for an interview. A search for S.S.‘s father was “unsuccessful.” The report further noted Mother‘s denial
of Native American ancestry and stated that the ICWA “does not apply.”
On January 9, 2020, Mother was present in court for the first and only time in this case. She filed a parental notification of Indian status form (Judicial Council Forms, form ICWA-020) stating that she has “no Indian ancestry as far as I know.”
The court further found that S.S.‘s father is unknown. S.S.‘s father was never identified to DCFS or the court and his whereabouts remained unknown throughout the proceedings. DCFS‘s efforts to identify and locate him are detailed in a declaration of due diligence, which the court found to be complete.
DCFS filed an amended dependency petition on January 22, 2020, which added an allegation under
During the combined jurisdiction and disposition hearing on January 30, 2020, the court found the amended petition‘s allegations true, declared S.S. a dependent of the court, and removed her from Mother‘s custody. S.S. continued to be placed with her foster parent.
In April 2020, S.S.‘s maternal grandmother contacted DCFS to ask about visits with her. She also stated that she was interested in adopting S.S. “[V]irtual visits” (due to the COVID-19 pandemic) between maternal grandmother and S.S. were scheduled for once per week. Maternal grandmother participated in three of the eight visits scheduled in May, June, and July 2020. In a report filed in January 2021, a social worker stated that maternal grandmother‘s visits “remain[ed] inconsistent.”
At a hearing held on January 13, 2021, counsel for Mother asked that the court consider possible placement with maternal grandmother. The court did not respond to this request. At the conclusion of that hearing, the court terminated Mother‘s reunification services and set the matter for a hearing to be held pursuant to
In April 2021, the court granted S.S.‘s counsel‘s request that DCFS assess the maternal grandmother for possible placement of S.S. with her. In connection with the assessment, the maternal grandmother told a social worker that Mother had been living with her before S.S.‘s birth and thereafter until a few
In a report prepared for the
On July 14, 2021, the court held a hearing pursuant to
Mother filed a timely notice of appeal.
DISCUSSION
Mother contends that DCFS failed to satisfy its duty under California law to inquire whether S.S. is or may be an Indian child within the meaning of ICWA. DCFS argues that Mother has failed to demonstrate that any such failure was prejudicial and the court‘s order terminating parental rights should therefore be affirmed. We agree with DCFS.
“Under California law, the court and county child welfare department ‘have an affirmative and continuing duty to inquire whether a child,’ who is the subject of a juvenile dependency petition, ‘is or may be an Indian child.’ [Citations.] The child welfare department‘s initial duty of inquiry includes ‘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.’ (
Here, Mother informed a social worker at their first meeting that Mother‘s family had no “Native American ancestry.” At her first court appearance on
Mother contends that even if DCFS satisfied its duty of inquiry as to herself, social workers failed to also ask S.S.‘s maternal grandmother—an “extended family member[ ]“—about Indian ancestry. (
Even if DCFS failed to fulfill its duty of inquiry with respect to the maternal grandmother, Mother has failed to show that the failure is prejudicial.
Social workers have no duty under federal law to ask extended family members about possible tribal membership. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The error, if any, is an error of state law. (Ibid.; accord, In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.).) The usual test for prejudicial state law error is whether, “‘after an examination of the entire cause, including the evidence’ ” (People v. Watson (1956) 46 Cal.2d 818, 836), we are ” ‘of the opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Ibid.; see Benjamin M., supra, 70 Cal.App.5th at p. 742 [Watson standard applies to agency‘s failure to comply with initial duty of inquiry under California‘s ICWA-related law].) Although an appellant ordinarily has the burden of establishing prejudice (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 614), a parent‘s ability to make this showing based upon the record in failure-to-inquire cases can be problematic “when the record is inadequate because of the social services agency‘s failure to document its inquiries.” (A.C., supra, 65 Cal.App.5th at p. 1070.) Some courts have addressed this problem by requiring an appellant who asserts a
protective agency‘s failure to make an appropriate inquiry under ICWA and related law is prejudicial“].)
In Benjamin M., supra, 70 Cal.App.5th 735, our colleagues in the Fourth Appellate District recently rejected such a requirement. (Id. at p. 745.) The court considered various means of reviewing this issue and concluded “that in 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 meaningfully upon whether the child is an Indian child.” (Id. at p. 744.)
Applying Benjamin M.‘s test here, we note that the maternal grandmother is the only person Mother identifies as a person social workers should have asked about S.S.‘s Indian ancestry.4 We thus need only consider whether DCFS‘s failure to inquire of maternal grandmother was prejudicial under the Benjamin M. standard. We conclude that it was not. It is significant for the purposes of this analysis that the maternal grandmother expressed her desire to adopt S.S. and, with the aid of S.S.‘s counsel, maternal grandmother sought to have S.S. placed with her. Mother‘s counsel also requested that maternal grandmother be considered for placement. Under ICWA, when an Indian child is the subject of foster care or adoptive placement proceedings, “preference shall be given, in the absence of good cause to the contrary, to a placement with . . . [¶] . . . a member of the Indian child‘s extended family.” (
S.S. placed with her. The maternal grandmother, Mother‘s counsel, and S.S.‘s counsel, each of whom requested that the court consider placing S.S. with the maternal grandmother, would therefore have a strong incentive to bring to the court‘s attention any facts that suggest that S.S. is an Indian child. Their failure to do so implies that the maternal grandmother is unaware of such facts. Requiring that social workers now inquire of her as to her knowledge of such facts, therefore, is not “likely to bear meaningfully upon whether the child is an Indian child.”
DISPOSITION
The orders appealed from are affirmed.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.