Filed 7/28/22 In re A.S. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County, Robin R. Kesler, Juvenile Court Referee. Affirmed.

Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.

_______________________

Mother Ashley S. appeals after the juvenile court terminated her parental rights to son A.S. (born 2019). She does not challenge the juvenile court’s decision to terminate her rights. Following up on her claim of Mayan heritage through Mexican ancestors, Mother’s sole contention is that the Los Angeles Department of Children and Family Services (DCFS) did not comply with its initial duty of inquiry under Welfare and Institutions Code section 224.2, subdivision (b)[1] in that DCFS failed to ask maternal extended family members whether A.S. is an “Indian child” within the meaning of section 1903 of the federal Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)

We find DCFS erred in failing to question extended family members despite having contact information for those same family members. However, we conclude the error was harmless because, crediting Mother’s assertion, we find ICWA inapplicable to Mayan ancestry.

BACKGROUND

In 2019, after being sexually assaulted, 15-year-old Ashley S. gave birth to A.S. Days after A.S.’s birth, DCFS filed a section 300 petition alleging he was at substantial risk of harm due to Mother’s history of engaging in violent and assaultive behavior, including attacking staff members at her group home. DCFS attached form ICWA-010(A) to the petition, which simply stated inquiry had been made and A.S. had no known Indian ancestry.

At the initial detention hearing, Mother completed form ICWA-020 stating she may have Indian ancestry because of “Mayan heritage through Mexican ancestors.” The juvenile court found Mayan heritage was not a basis to apply ICWA because Mayan is not a federally recognized tribe. The court concluded there was no reason to believe A.S. is an Indian child “as defined under ICWA.”

On February 7, 2019, DCFS filed an amended petition adding allegations that the minor’s alleged father had sexually abused mother and was convicted of statutory rape. By February 28, 2019, DCFS had contact information for maternal grandmother and maternal great aunt, but did not ask them about possible Native American heritage.

At the adjudication and disposition hearings in June and July 2019, the juvenile court found true the allegation that Mother had a history of engaging in physical violence and repeatedly left her own dependency placement without permission. The court struck Father from the petition entirely as he denied parentage of A.S. It found A.S. a dependent of the court, removed him from Mother, and ordered reunification services for Mother as outlined in her case plan.

In August 2019 Mother was arrested and incarcerated on charges of robbery and murder. Sixteen months later, on December 3, 2020, the juvenile court terminated Mother’s reunification services and set a permanency placement hearing.

By June 2021 A.S. had been in the same foster placement for over two years. Mother reported she wanted A.S.’s caregiver to adopt him. On December 16, 2021, the court found A.S. adoptable and determined mother and A.S. did not have a beneficial parental relationship. The court terminated Mother’s parental rights and designated A.S.’s foster mother as his prospective adoptive parent.

This appeal followed.

DISCUSSION

“Congress enacted ICWA in 1978 in response to ‘rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) In enacting these provisions, “ ‘Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians.’ ” (Id. at p. 9.)

The concern about separating Indian children from their Indian families, heritage and culture was the topic of extensive Congressional hearings when ICWA was enacted. As one commentator wrote, the “ ‘wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today.’ ” (Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance (2002) 51 Emory L.J. 587, 601, cited in In re A.C. (2022) 75 Cal.App.5th 1009, 1014.) “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.)

In enacting ICWA, Congress then found “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” (25 U.S.C. § 1901(4).) ICWA reflects the intent of Congress “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” (25 U.S.C. § 1902.) The court is obligated to ask each “participant” in the proceedings whether they have reason to believe the child is an Indian child and to instruct the parties to inform the court if they subsequently receive information that provides a reason to know the child is an Indian child. (In re Austin J., supra, 47 Cal.App.5th at pp. 882–883.)

An Indian child to whom ICWA applies is defined under federal and California law as an unmarried child who “is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); § 224.1, subds. (a) and (b).) ICWA defines an Indian tribe “so as to include only federally recognized Indian tribes.” (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338, citing 25 US.C. § 1903(8); In re K.P. (2009) 175 Cal.App.4th 1, 5 [“ICWA applies only to federally recognized tribes”].)

The United States government officially recognizes 574 Indian tribes in the contiguous 48 states and Alaska. (USA.gov, Federally Recognized Indian Tribes and Resources for Native Americans <https://www.usa.gov/tribes> [as of July 27, 2022], archived at <https://perma.cc/AL4Q-KJ6Y>.) By its terms ICWA applies only to these recognized tribes. (Ibid.; Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 86 Fed.Reg. 7554 (Jan. 29, 2021).)

ICWA authorizes states to provide even more protection than the federal statute provides. In 2006, the California legislature enacted parallel statutes to affirm ICWA’s purposes and mandate compliance with ICWA in all Indian child custody proceedings. (In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.) In California, the child protection agency is obligated to ask “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.” (§ 224.2, subd. (b).) The child protection agency, in this case DCFS, must complete the Indian Child Inquiry Attachment form ICWA-010(A) and attach it to the petition. (Cal. Rules of Court, rule 5.481(a)(1).

Here DCFS did not fulfill its duties under section 224.2. DCFS did not ask Mother’s extended family members about Indian ancestry, despite having contact information for maternal grandmother and maternal great aunt. This was a violation of California law. But the next question is whether the error was prejudicial. A prerequisite to reversal of a trial court’s decision in California is showing a miscarriage of justice. (Cal. Const., art. VI, § 13.)

We are hard pressed to find prejudice. Mother claimed only Mayan ancestry through her Mexican heritage. Mayan is not a federally recognized tribe so ICWA does not apply to A.S. Nor does A.S.’s proposed adoption perpetuate the abusive separation of American Indian families that ICWA was enacted to prevent. And, as set out above, the abuse Congress wanted to rectify when it enacted ICWA occurred at the hands of United States federal and state government entities. ICWA does not purport to remedy abuses that may have been inflicted on Indian tribes in Mexico.

In finding ICWA inapplicable, we credit Mother’s claim of Mayan ancestry, as did the juvenile court. We do not adopt the position that DCFS’s failure to inquire completely is reversible per se, regardless of what the parents may have told DCFS. Applying the fourth rule of assessing prejudice set forth in In re Dezi C., we find nothing in the record indicating Mother’s claim was ill-informed, unfounded, or incorrect. (In re Dezi C. (2022) 79 Cal.App.5th 769 [holding that a finding of prejudice may be made when a parent’s knowledge of their ancestry is ill-informed, unfounded, or incorrect or the record otherwise indicates possible Indian heritage].) Although Mother had been sporadically in the foster care system since the age of 10, she also maintained substantial contact with her maternal relatives, including her own mother and her maternal aunt, who acted as her legal guardian for a time. Mother’s familiarity with and continuous contacts with her own biological family distinguish this case from In re A.C. (2022) 75 Cal.App.5th 1009 where the mother was isolated from her biological family at a young age.

ICWA applies only to federally recognized tribes. Because Mayan is not one of those tribes and Mother’s claim of Mayan heritage does not appear ill-informed, unfounded or incorrect, we find the trial court did not err prejudicially in finding ICWA inapplicable to A.S.

A.S. has now spent his entire life of three years in the same foster placement. He is entitled to the security and stability of the adoptive home that is waiting for him, a disposition with which appellant concurs. We find no miscarriage of justice.

DISPOSITION

The trial court’s order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

I concur:

GRIMES, J.

HARUTUNIAN, J.^*

[1] Undesignated statutory references are to the Welfare and Institutions Code.

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.