In re Y.M., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.V., Defendant and Appellant.
D080349
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
September 2, 2022
CERTIFIED FOR PUBLICATION. (Super. Ct. No. J517208D)
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.
Claudia Silva, Acting County Counsel, Caitlin E. Rae, Chief Deputy, Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
J.V. (Father) appeals from a
FACTUAL AND PROCEDURAL BACKGROUND2
In October 2019, the Agency filed a
In its November jurisdiction and disposition report, the Agency stated that Mother had informed its social worker that she had no Indian ancestry.3 The Agency had been unable to locate and inquire of Father regarding any Indian ancestry. However, in its April 2020 addendum report, the Agency stated that its social worker had met with Father in March and he had denied any Indian ancestry.
At the contested jurisdiction and disposition hearing in July 2020, the juvenile court found the allegations in the petition to be true, declared Y.M. to be a dependent of the court, and placed her with the NREFM. Although Mother, Father, and the paternal grandmother appeared telephonically at the hearing, there is no indication that the court asked them about any Indian ancestry.
In its six-month review hearing report in January 2021, the Agency stated that Father lived with the paternal grandmother and a paternal uncle. Also, the Agency reported that the paternal grandfather had requested placement of Y.M. and was participating in its resource family approval (RFA) process.
At the contested combined six-month and 12-month review hearing conducted on two days in June and July, the paternal grandmother testified that she wanted to visit with Y.M., but believed she was not allowed to do so. She had asked Father to speak with the Agency social worker about arranging visits for her.4 The juvenile court terminated reunification services for Mother and Father and set a
In its initial section 366.36 report in November, the Agency noted that the juvenile court had previously found that ICWA did not apply to Y.M.‘s case at the October 2019 detention hearing. The Agency recommended that the court again find that ICWA did not apply to Y.M.‘s case.
At the
DISCUSSION
I
ICWA Inquiry Duties
Congress enacted ICWA to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement. (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) ICWA provides: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child‘s tribe” of the pending proceedings and their right to intervene.
“If a child is placed into the temporary custody of [the Agency]..., [the Agency]... has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, 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.”5 (Italics added.)
“If the court [or] social worker . . . has reason to believe that an Indian child
is involved in a proceeding, but does not have sufficient information to determine that there is a reason to know that the child is an Indian child, the court [or] social worker shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.”
Before the juvenile court can find that ICWA does not apply to a child‘s case, it must make a finding that “due diligence as required in this section [has] been conducted.” (
We review a juvenile court‘s findings that the Agency has made reasonable inquiries regarding a child‘s possible Indian ancestry under ICWA and that the Agency has complied with ICWA‘s notice requirements, or that no such notice is required, for substantial evidence. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)
II
Noncompliance with Section 224.2, Subdivision (b) Duty of Initial Inquiry
Father contends, and the Agency agrees, that substantial evidence does not support the juvenile court‘s finding that ICWA does not apply to Y.M.‘s case and, in particular, that substantial evidence does not support its implied finding under
Father asserts, and the Agency acknowledges, that the Agency‘s initial ICWA inquiry was deficient because it failed to ask Y.M.‘s extended family members, including her paternal grandmother and paternal grandfather, about the possibility of her Indian ancestry, despite the fact that the Agency had spoken with them on multiple occasions. The Agency‘s duty to make an initial inquiry into Y.M.‘s possible Indian ancestry applies to “extended family members,” which includes the paternal grandmother and paternal grandfather. (
III
Harmless Error
Father contends that the juvenile court‘s findings that the Agency complied with
A
At the outset, we note that the error asserted by Father on appeal is one of state law error only (i.e., a violation of
1. Reversible per se standard. Father asserts that we should adopt, and apply to this case, the reversible per se standard set forth in In re Y.W. (2021) 70 Cal.App.5th 542 (Y.W.). In that case, the court concluded that the agency did not comply with its
However, we reject the application of a reversible per se standard for
2. Presumptive affirmance standard. On the other end of the prejudice spectrum of cases is the strain of cases that concludes
We, like the Agency, disagree with the application of the presumptive affirmance standard of prejudice in
Second, as noted in Y.W., the presumptive affirmance standard “unreasonabl[y] . . . require[s] a parent to make an affirmative representation of Indian ancestry where the [agency‘s] failure to conduct an adequate inquiry deprived the parent of the very knowledge needed to make such a claim.” (Y.W., supra, 70 Cal.App.5th at p. 556.) Likewise, Benjamin M. stated: “[I]n any case where information about Indian ancestry is unknown, the probability of such ancestry is reasonable enough to require the agency and court to pursue it. Requiring a parent to prove that the missing information would have demonstrated ‘reason to believe’ would effectively impose a duty on that parent to search for evidence that the Legislature has imposed on only the agency. A parent challenging ICWA compliance cannot always easily obtain the missing information, even when that missing information is about a parent‘s possible Indian ancestry.” (Benjamin M., supra, 70 Cal.App.5th at p. 743, fn. omitted.)
More importantly, the presumptive affirmance standard limits its consideration of prejudice to a showing or representation made by the appellant (e.g., a parent), and, in so doing, disregards the fact that parents are not the only parties with an interest in a child‘s dependency proceedings. Specifically, Indian tribes that have no notice of the proceedings may also have an interest in the proceedings. (Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 52 [ICWA “‘recognizes that the tribe has an interest in the child which is distinct from but on parity with the interest of the parents.‘“].) Two main purposes of ICWA‘s requirement of notice to Indian tribes where a court knows, or has reason to know, a child is an Indian child are: (1) to “facilitate a determination of whether the child is an Indian child under ICWA,” which determination can only be made by the Indian tribe itself; and (2) to “ensure[] that an Indian tribe is aware of its right to intervene in or, where appropriate, exercise jurisdiction over a child custody proceeding involving an Indian child.” (Isaiah W., supra, 1 Cal.5th at p. 8.) “[T]he right at issue in the ICWA contest is as much an Indian tribe‘s right to ‘a determination’ of a child‘s Indian status as it is a right of any sort of favorable outcome for the litigants
3. Dezi C.‘s modified presumptive affirmance (or “reason to believe“) standard. The Agency asserts that the most appropriate standard of prejudice for
However, in our view, the Dezi C. standard suffers from the same deficiencies as the presumptive affirmance standard does as discussed above. Specifically, as discussed above, the Dezi C. standard disregards: (1) the rule that on appeal we generally do not consider matters not contained in the trial court record (see, e.g., Zeth S., supra, 31 Cal.4th at p. 400); (2) the fact that a parent may not necessarily know about any Indian ancestry and, absent an agency‘s compliance with its
“[I]n 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. . . . In such cases, courts have generally avoided applying broad, rigid reversal rules and instead focused on whether the missing information was readily obtainable and whether such information would have shed meaningful light on the inquiry that the agency had a duty to make.” (Benjamin M., supra, 70 Cal.App.5th at p. 744, italics added.)
In the circumstances of that case, the father never appeared in the juvenile court and was never asked whether he had reason to believe the child was an Indian child. (Benjamin M., supra, 70 Cal.App.5th at p. 744.) Furthermore, the agency did not ask extended family members, such as the father‘s brother and sister-in-law, whether the child had Indian ancestry. (Ibid.) Benjamin M. concluded that the missing information was both readily obtainable and would likely have shed meaningful light on the question of whether there was reason to believe the child was an Indian child and therefore conditionally reversed the order and remanded for ICWA compliance. (Id. at pp. 744, 746.)
Although the Benjamin M. standard of prejudice is somewhat amorphous, we nevertheless believe that its standard of prejudice is the closest of the four main strains of prejudice standards, discussed above, to achieving a proper balance of our State constitutional requirement of a miscarriage of justice for reversal and the imposition of appropriate consequences on appeal, in consideration of the rights of parents and Indian tribes, when an agency fails to comply with its
B
Applying the Benjamin M. standard of prejudice to the juvenile court record in this case, we conclude Father has not carried his burden on appeal
As Father asserts and the Agency concedes, the Agency clearly failed to comply with its
Importantly, Father lived with the paternal grandmother during the dependency proceedings and therefore presumably could have asked her at any time whether she knew of any possible Indian ancestry. At the contested combined six-month and 12-month review hearing, the paternal grandmother testified that she and Father had a good relationship and everything was going well in the home they shared. Given his close and regular proximity to the paternal grandmother, we presume Father had a motive to ask, and could have easily asked, her about any possible Indian ancestry that may have afforded him additional rights or protection under ICWA. Therefore, we cannot simply adopt Father‘s conclusory assertion that if the Agency had asked the paternal grandmother about any Indian ancestry, she would have provided information that was likely to bear meaningfully on the question of whether there was reason to believe Y.M. was, or may be, an Indian child. (Cf. Darian R., supra, 75 Cal.App.5th at p. 510 [because mother lived with maternal grandfather and maternal aunt, mother did not meet her burden on appeal to show that agency‘s inquiry of those extended family members “would have meaningfully elucidated the children‘s Indian ancestry“].)
Also, because during the dependency proceedings the paternal grandfather had sought placement of Y.M., he presumably would have had a strong
Accordingly, given Mother‘s and Father‘s denials of any Indian ancestry and our conclusion above that had the Agency asked the paternal grandmother and paternal grandfather about any possible Indian ancestry their information was not likely to bear meaningfully on the question of whether there was reason to believe Y.M was, or may be, an Indian child, we conclude the Agency‘s failure to comply with its
Father‘s conclusory arguments to the contrary do not persuade us to reach a different result. Likewise, none of the cases cited by Father are factually apposite to this case or otherwise persuade us to reach a contrary conclusion. (See, e.g., Benjamin M., supra, 70 Cal.App.5th at p. 745 [because father never appeared and was not asked by agency about any Indian ancestry, information that agency could have readily obtained from paternal relatives was likely to bear meaningfully on whether child was Indian child].)
Father simply speculates that the paternal grandmother and paternal grandfather would have provided the Agency with information that was likely to bear meaningfully on the question of whether there was reason to believe Y.M was, or may be, an Indian child. By so arguing, he has not carried his burden on appeal to show prejudicial error.
DISPOSITION
The March 9, 2022 order is affirmed.
McCONNELL, P. J.
WE CONCUR:
HALLER, J.
BUCHANAN, J.