Filed 5/16/22 In re B.L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.

Konrad S. Lee, by appointment of the Court of Appeal, for Defendant and Appellant, A.L.

Paul A. Swiller, by appointment of the Court of Appeal, for Defendant and Appellant, K.S.

Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

B.L. was detained and removed from his parents, K.S. (Mother) and A.L. (Father), shortly after birth. The juvenile court terminated Mother’s and Father’s parental rights after a contested hearing pursuant to Welfare and Institutions Code[1] section 366.26. Mother and Father appeal from this order, arguing that the matter must be conditionally reversed and remanded to permit further inquiry into B.L.’s Native American ancestry as required under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related provisions of the Welfare and Institutions Code.

The only ground for reversal raised by Mother and Father on appeal is that CFS failed to document whether it was successful in interviewing B.L.’s paternal grandmother to obtain relevant ICWA information. We conclude that substantial evidence in the record supports the trial court’s implied finding that CFS fulfilled its duties under ICWA and the related state statutes. We further conclude that, even if the trial court erred, the facts of this case do not suggest prejudice warranting reversal.

II. FACTS AND PROCEDURAL HISTORY[2]

B.L. was detained by CFS after testing positive for amphetamines at the time of his birth. According to the detention report, at the time of detention, Father represented to a social worker that he might have Native American ancestry and told the social worker that he would contact his mother (paternal grandmother) in order to obtain more information. That same day, the social worker received a telephone call[3] from Father’s sister (paternal aunt) who represented that (1) she and the paternal grandmother lived in Oregon; (2) the paternal grandmother had previously received results from a DNA test suggesting the paternal grandmother was “24% American Indian,” but that the test did not identify any tribes; (3) the paternal aunt was interested in accepting B.L. for placement; and (4) the paternal aunt would attempt to contact paternal relatives to obtain more information. The social worker explained that the paternal aunt could not be considered for placement because she lived out of state but requested the paternal aunt follow up with family members to obtain more information regarding B.L.’s potential Native American ancestry.

The juvenile court held a detention hearing on December 6, 2019. At the time, Father completed a “Parental Notification of Indian Status” form and checked a box indicating that B.L. “may” be a member or be eligible for membership in a federally recognized Indian tribe but provided no further information. He also completed an ICWA inquiry form, but he did not identify any family members with knowledge of Native American ancestry.[4] However, at the time of the hearing, Father testified that he believed he had Native American ancestry based upon information provided by his mother (paternal grandmother). A paternal great-grandfather also appeared at the hearing and testified that he was not blood related to the paternal grandmother but that the paternal grandmother had Native American ancestry related to the “Morongo” tribe. Neither Father nor the paternal great-grandfather could provide specific identifying information for the paternal grandmother at the time of the hearing. The juvenile court ordered all parties present to cooperate with CFS to obtain additional information from relatives.

On January 6, 2020, CFS filed a joint jurisdictional and dispositional report. According to the report, a social worker followed up with the paternal great-grandfather regarding B.L.’s potential Native American ancestry and was told that B.L. might also have “Cherokee” heritage. The social worker again requested the paternal great- grandfather follow up with relatives to see if he could obtain any further information. The report recommended that the juvenile court make a finding that B.L. “may come under the provisions of [ICWA].”

On January 7, 2020, CFS filed an ICWA declaration of due diligence. The declaration indicated that formal ICWA notices had been sent to the Federal Bureau of Indian Affairs (BIA), as well to three federally recognized Cherokee tribes. The notice included the names, addresses, and birth information for Mother, Father, B.L.’s paternal grandmother, and B.L.’s paternal great-grandparents.[5] The notices also included aliases for some of these individuals and, where applicable, the dates and places of death for deceased individuals. However, the juvenile court observed that the paternal grandmother’s name had been misspelled and that notice had not been sent to the Morongo Band of Mission Indians (Morongo tribe). As a result, the juvenile court continued the hearing to permit CFS to correct these mistakes.

According to the delivered service log submitted to the juvenile court, CFS made numerous attempts over the course of several months to contact the Morongo tribe in order to inquire regarding B.L.’s potential tribal membership. During this time, a social worker also called the paternal aunt and the paternal grandmother and left messages for them. However, the service log did not detail the content of the messages. Further, while the service log detailed that the social worker eventually spoke with the paternal aunt, it did not detail whether the social worker was ever successful speaking directly with the paternal grandmother.

On September 4, 2020, CFS filed an “Additional Information to the Court” form regarding ICWA compliance. CFS represented that it had revised its ICWA notice to correct the identifying information for the paternal grandmother. CFS further represented that a social worker had spoken directly with a representative from the Morongo tribe and directly transmitted a copy of the revised ICWA notice to that tribal entity. In response, the Morongo tribe sent formal written correspondence acknowledging receipt of the notice and representing that it had determined that B.L. was not eligible for membership in the tribe.

On October 8, 2020, CFS filed a second ICWA declaration of due diligence. The declaration included a copy of the revised ICWA notice, which included the identifying information for B.L.’s parents, B.L.’s paternal grandparents, and all of B.L.’s paternal great-grandparents. CFS represented that the revised notice had been sent to all three of the previously noticed Cherokee tribes as well as the BIA. CFS attached the written responses from all three Cherokee tribes, representing that they had determined that B.L. was not eligible for membership in their tribes.

On October 13, 2020, the juvenile court held the contested dispositional and jurisdictional hearing. With respect to ICWA, the juvenile court found that ICWA may apply and that CFS had initiated the appropriate noticing procedures.

On April 8, 2021, CFS filed a “Final ICWA Declaration of Due Diligence.” The declaration confirmed that the Cherokee tribal entities had received the revised ICWA notices, and all three had declined to intervene after determining that B.L. was not eligible for membership in their tribes. Finally, the declaration noted that 65 days had passed since the revised notice was served on the BIA, and no response had been received from the BIA.

On April 13, 2021, the juvenile court held a six-month review hearing. With respect to ICWA, the juvenile court found that ICWA did not apply and that no further notices were required. The juvenile court’s findings were entered into the minutes on April 13, and also reflected in a formal written order filed June 28.

On November 15, 2021, the juvenile court held a hearing pursuant to section 366.26 and ordered Mother’s and Father’s parental rights terminated. ICWA inquiry or notice was not raised as a contested issue at the time of this hearing.

III. DISCUSSION

On appeal, both Mother and Father claim that the juvenile court’s order terminating their parental rights must be conditionally reversed and remanded to permit additional ICWA compliance. Specifically, they contend the juvenile court could not have found that CFS fulfilled its duty of further inquiry in the absence of a documented interview with the paternal grandmother. As we explain, substantial evidence in the record supports the juvenile court’s implied finding that CFS fulfilled its duty of further inquiry. Further, in the specific context of this case, we would also find no prejudice warranting reversal, even if the trial court erred in its finding.

A. Legal Background and Standard of Review

“Congress enacted ICWA in 1978 to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement, usually in non-Indian homes. [Citation.] ICWA established minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.)

The Welfare and Institutions Code “creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department’s] initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. [Citation.] Second, if that initial inquiry creates a ‘reason to believe’ the child is an Indian child, then the [Department] ‘shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.’ [Citation.] Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply.” (In re D.S., supra, 46 Cal.App.5th at p. 1052; § 224.2)

Following the inquiry stages, the juvenile court may make a finding that ICWA does not apply because the Department’s inquiry and due diligence was “ ‘proper and adequate’ but no ‘reason to know’ whether the child is an Indian child was discovered.” (In re D.S., supra, 46 Cal.App.5th at p. 1049.) However, the duty to inquire is “ ‘an affirmative and continuing duty,’ ” and the juvenile court “ ‘shall reverse its determination if it subsequently receives information providing reason to believe that the child is an Indian child and order the social worker or probation officer to conduct further inquiry.’ ” (Ibid.; In re K.R. (2018) 20 Cal.App.5th 701, 706 [“[T]he juvenile court has a continuing duty to conduct an inquiry when it has received information that a dependent child might be an Indian child, as defined by ICWA . . . .”].)

A juvenile court’s finding that ICWA does not apply includes an implicit finding that social workers fulfilled their duty of inquiry. (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) “[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.” (In re A.M. (2020) 47 Cal.App.5th 303, 314; In re Austin J., at p. 885 [An implicit finding that social workers fulfilled their duty of inquiry is reviewed for substantial evidence.].)

B. The Juvenile Court’s ICWA Finding Is Supported by Substantial Evidence

Here, shortly after B.L.’s detention, CFS recommended the juvenile court make a finding that ICWA “may” apply, and the juvenile court eventually made such a finding. Thus, the record shows that both CFS and the juvenile court acknowledged there was a “reason to believe” B.L. might be an Indian child within the meaning of ICWA, and the obligation to conduct an interview with extended family members would fall under section 224.2’s duty of further inquiry.[6] (§ 224.2, subd. (e); In re A.M. (2020) 47 Cal.App.5th 303, 316 [“ ‘[f]urther inquiry includes interviewing the . . . extended family members’ ”].)

The duty of further inquiry still involves an obligation to interview extended family members. (§ 224.2, subd. (e); In re A.M., supra, 47 Cal.App.5th at p. 317 [“ [f]urther inquiry includes ‘nterviewing the . . . extended family members’ ”].) However, this duty “is ‘not an absolute duty to ascertain or refute Native American ancestry’ ” but rather a duty to make “a good faith effort to gather information about the [child’s tribal] membership status or eligibility.” ([i]In re D.F. (2020) 55 Cal.App.5th 558, 570; see In re J.S. (2021) 62 Cal.App.5th 678, 690 [same]; see also In re K.R. (2018) 20 Cal.App.5th 701, 709 [duty of inquiry involves making “a meaningful effort to locate and interview extended family members”].) The statutory purpose of conducting any interview is to “gather the information required in [section 224.3, subdivision (a)(5)].” (§ 224.2, subd. (e)(2)(A).)[7]

Thus, contrary to Mother and Father’s argument on appeal, the absence of a documented interview with an extended family member does not per se preclude a finding that CFS fulfilled its duty of further inquiry. The statutory scheme does not mandate conducting interviews simply for the sake of conducting interviews, but for the purpose of obtaining specific types of information. As a result, what constitutes a sufficient, reasonable, and good faith effort will necessarily differ with the facts of each case.[8]

In this case, the record shows that CFS attempted to directly contact the paternal grandmother on at least one occasion. The record also shows that both Father and the paternal aunt agreed to assist the social workers in contacting family members to obtain relevant ICWA information and that Father specifically represented he would contact the paternal grandmother to obtain such information. Thus, CFS documented specific efforts taken to obtain information from the paternal grandmother.[9] More importantly, the record shows that CFS actually obtained almost all of the information that family interviews are intended to produce. The ICWA notices prepared by CFS included the names, addresses, dates of birth, and places of birth for B.L.’s biological parents, paternal grandmother, and paternal great-grandparents. The notices also included known aliases and, where applicable, dates and places of death for deceased individuals. On appeal, neither parent challenges the accuracy of this information.

Thus, the record in this case documents specific steps taken by CFS to obtain relevant ICWA information and further shows that CFS was actually successful in obtaining that information. This was substantial evidence upon which the trial court could reasonably conclude that CFS fulfilled its duty of further inquiry. While CFS did not specifically detail which of its efforts led to the production of any specific information, where the record shows CFS took concrete steps to contact the paternal grandmother and actually obtained the very information that an inquiry with the paternal grandmother would reasonably be expected to produce, it is reasonable for the juvenile court to infer that at least one of CFS’s attempts ultimately proved successful. Substantial evidence includes all reasonable inferences that can be drawn from the evidence (In re R.T. (2017) 3 Cal.5th 622, 633; In re J.S. (2021) 62 Cal.App.5th 678, 685) and, “[w]e must uphold the court’s orders and findings if any substantial evidence, contradicted or uncontradicted, supports them . . . .” (In re A.M., supra, 47 Cal.App.5th at p. 314.)

Mother’s and Father’s reliance on cases such as In re Y.W. (2021) 70 Cal.App.5th 542; In re Benjamin M. (2021) 70 Cal.App.5th 735; and In re N.G. (2018) 27 Cal.App.5th 474 are unavailing. All of these cases are distinguishable because they address situations in which social workers failed to document their efforts to obtain information they admittedly did not possess. (In re Y.W., at p. 548 [ICWA notices stated “ ‘unknown’ ” with respect to the identifying information for child’s biological relatives]; In re Benjamin M., at p. 744 [CFS conceded it “failed to obtain information that appears to have been both readily available and potentially meaningful.”]; In re N.G., at p. 484 [burden fell on agency to show adequate investigative efforts because record did not show that given ICWA notices “included all known identifying information”].) None of these cases involved a situation in which social workers actually obtained the relevant ICWA information that investigative efforts are intended to produce but simply failed to specify which of their efforts led to the discovery of that information.

Where the record affirmatively shows that CFS made efforts to contact the paternal grandmother[10] and actually obtained the relevant ICWA information that an inquiry with the paternal grandmother would reasonably be expected to produce, it is reasonable for the juvenile court to infer that at least one of CFS’s efforts proved successful. Where reasonable inferences in support of the juvenile court’s findings can be drawn from the evidence in the record, substantial evidence supports those findings and reversal is not warranted.

C. The Record Does Not Establish Prejudice Warranting Reversal

Even assuming the juvenile court erred in its implied finding that CFS fulfilled its duty of further inquiry, we would conclude that the record in this case does not suggest prejudice warranting reversal.

Initially, we acknowledge that the standard of prejudice requiring reversal in cases involving an allegedly deficient ICWA inquiry remains unsettled. (See In re Antonio R. (2022) 76 Cal.App.5th 421, 433 [“Courts of Appeal are divided as to whether a parent must make an affirmative showing of prejudice to support reversal . . . . ”].) Traditionally, the failure to comply with a state statutory requirement regarding ICWA inquiry “must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.” (In re A.C. (2021) 65 Cal.App.5th 1060, 1069; In re A.M., supra, 47 Cal.App.5th at p. 318.) However, this court recently articulated a standard of prejudice in In re Benjamin M., supra, 70 Cal.App.5th 735 intended to reflect a “flexible, case-by-case approach that a harmless error analysis usually entails.” (Id. at p. 745.) We explained that, under this standard, reversal is required “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 this standard here, even if CFS should have conducted a documented interview with the paternal grandmother, the record in this case does not suggest there was any readily obtainable information likely to bear meaningfully upon whether B.L. was an Indian child. Of the information identified in section 224.3, subdivision (a)(5), the only readily obtainable information the paternal grandmother could have been expected to provide would have been the identifying information for herself and the paternal great-grandparents.[11] However, CFS’s ICWA notices already included complete identifying information for all of B.L.’s biological parents, paternal grandmother, and paternal great-grandparents and, as we have already noted, neither parent claims this information was inaccurate on appeal. Thus, the record does not suggest there was any readily obtainable information still unknown to CFS.

Further, after being provided with the complete identifying information for B.L.’s biological parents, paternal grandmother, and paternal great-grandparents, each of the identified tribes affirmatively concluded that B.L. was not a member and was not eligible for membership in their tribes. Generally, where a tribe disclaims an interest in the proceedings even after being given complete identifying information for a dependent child’s biological parents, grandparents and great-grandparents, there is no reason to suspect additional information would be meaningful. (See In re J.M. (2012) 206 Cal.app.4th 375, 381 [Where a tribe was provided information of parents, grandparents, and great-grandparents and determined the children were not eligible for membership, reversal was not required absent some explanation as to why the tribe “might have reached a different conclusion if it had known the names of [other relatives].”].) Thus, the record also does not suggest that any additional information from the paternal grandmother would bear meaningfully on whether B.L. was an Indian child.

Under our recently articulated standard of prejudice in In re Benjamin M., supra, 70 Cal.App.5th 735 reversal is not required absent some indication in the record that there is readily obtainable information that is likely to bear meaningfully upon whether the dependent child is an Indian child. The record in this case simply does not suggest information of this nature exists and, as such, parents have not suffered prejudice warranting reversal. For these same reasons, we would conclude that any alleged error in this case would be harmless, even if we applied the traditional standard of prejudice.

IV. DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

CODRINGTON

Acting P. J.

SLOUGH

J.

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

[2] Because both parents identify only the purported failure to interview the paternal grandmother as the sole ground for concluding CFS failed to comply with its duty under ICWA, we summarize only the facts relevant to CFS’s inquiries regarding B.L.’s potential Native American ancestry through paternal relatives.

[3] The call with the paternal aunt was summarized in the detention report and later detailed in a delivered service log submitted to the juvenile court at a six month review hearing. CFS requested that the delivered service log be admitted into evidence; however, the record does not indicate how the juvenile court ruled on that request. Nevertheless, no parties objected to CFS’s request to admit the service log into evidence; the service log is marked as an exhibit in the clerk’s transcript; both Father and CFS have referred to the service log on appeal as if it were admitted into evidence; and Mother did not contest CFS’s or Father’s reliance on the service log in reply but instead joined in Father’s arguments.

[4] Father’s ICWA inquiry form identified the paternal grandmother as a preferred relative placement for B.L. but provided only an incomplete address and phone number for the paternal grandmother. With respect to Native American ancestry, Father checked the box for “unknown” and did not identify any relatives as persons with knowledge of potential Native American ancestry.

[5] The notice also included identifying information for paternal grandfather, but no address. However, paternal grandfather’s father was the great-grandfather who personally appeared at the detention hearing and testified that B.L.’s potential Native American ancestry was through paternal grandmother and not his son.

[6] We disagree with Mother and Father’s characterization of this case as one involving CFS’s duty of initial inquiry under the statute. Once the juvenile court or child protective agency has a reason to believe a child may be an Indian child, the duty of further inquiry is triggered. (§ 224.2, subd. (e); In re T.G. (2020) 58 Cal.App.5th 275, 292 [Once “preliminary responses . . . provided reason to believe Indian children might be involved in [the] dependency proceedings,” it “triggered the Department’s duty to make further inquiry . . . .”].) If any initial inquiries provide a reason to believe a dependent child may be an Indian child, it will trigger the duty of further inquiry regardless of whether other initial inquiries remain outstanding or incomplete.

[7] This information generally includes: “All known names of the Indian child, biological parents, grandparents, and great-grandparents, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information.” (In re Dominic F., supra, 55 Cal.App.5th at p. 566, fn. 6; § 224.3, subd. (a)(5).)

[8] For example, in some cases a parent or single family member may be able to provide all of the information identified in section 224.3, subdivision (a)(5). In such a case, a reasonable good faith effort would not necessarily require continued interviews with extended family members simply to obtain the same information from multiple sources. In other cases, efforts by social workers might also be found lacking, despite interviewing all known family members, where the record suggests they failed to inquire of an unrelated individual known to have specific information relevant to a dependent child’s status as an Indian child.

[9] Nothing in the statute suggests that a reasonable effort will always require direct contact with every known family member. There are numerous scenarios in which a good faith effort may involve obtaining information through a cooperative family member, such as where language barriers preclude a direct interview, or where multiple family members live in a single residence and one of those family members acts as the primary point of contact.

[10] While it is certainly preferable for CFS to attempt to contact the specific relative at issue on more than one occasion, such failure does not preclude a finding that substantial evidence supports the juvenile court’s finding of ICWA compliance where the necessary information is otherwise obtained.

[11] While tribal enrollment information of direct lineal ancestors of the child is also listed as potentially relevant information in section 224.3, subdivision (a)(5), social workers had already been informed by the paternal aunt that the paternal grandmother discovered her potential native American ancestry through a DNA test, which did not provide any specific tribal information. Accordingly, the record does not suggest such information would have been readily obtainable from the paternal grandmother, even if an interview had been conducted.