Filed 4/29/22 In re M.C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Browder A. Willis, III, Judge. Affirmed.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.

C.C. (Father) appeals from the juvenile court’s jurisdictional and dispositional order removing his two-year-old son, M.C., from his and R.R.’s (Mother)[1] custody. Father’s only contention on appeal is that the San Diego County Health and Human Services Agency (Agency) failed to comply with the inquiry requirements under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) and Welfare and Institutions Code section 224.2, subdivision (b).[2] We conclude that because the Agency failed to comply with its initial inquiry obligations, substantial evidence does not support the court’s finding that ICWA does not apply. However, we affirm on the basis that such error was harmless.

FACTUAL AND PROCEDURAL BACKGROUND[3]

In June 2021, the Agency petitioned the juvenile court under section 300, subdivision (b), on behalf of two-year-old M.C. The Agency alleged M.C. was exposed to a violent confrontation between Mother and Father, during which Father strangled Mother with an extension cord. The petition included a statement on Judicial Council form ICWA-010(A) that a social worker had asked both Mother and Father about M.C.’s Indian status, who both gave no reason for the social worker to believe M.C. may be an Indian child.

In its detention report, the Agency stated that both Mother and Father reported that to their knowledge, they did not have any Indian heritage. At the time, Father was living at paternal grandmother’s house. M.C. and Mother were residing with maternal grandmother. The Agency spoke with maternal grandmother and confirmed that she is a support for Mother but did not inquire about Indian heritage. Two maternal uncles, who were 17 years old at the time, were also assisting Mother. The Agency recommended that M.C. be detained and placed in the care of Mother on the condition that Father does not reside in the home.

At the detention hearing, the Agency informed the court that Father may have taken M.C. from Mother’s home that morning. The Agency was trying to confirm with maternal grandmother as it had not been able to contact Mother or Father. Minor’s counsel also did not know M.C.’s whereabouts. There was no appearance on behalf of Father because his potential appointed counsel had not yet spoken with Father. Mother’s counsel informed the court that Mother may have been arrested and sought a one-day continuance. The court issued a pickup and detain order to secure the safety of M.C. out of the home, and continued the detention hearing until the next morning.

In its addendum report for the continued detention hearing, the Agency reported that Mother had taken M.C. to Father’s home before the original detention hearing. An argument ensued and Mother pulled mace out of her pocket and “ ‘sprayed everywhere.’ ” Mother claimed she only used the mace because Father refused to give M.C. back to her. The Agency later reported the paternal aunt was present during this incident. Mother claimed paternal aunt took M.C. into another room before she used the mace. Nonetheless, Father took M.C. to Rady’s Children’s Hospital. After physicians examined M.C. and found no concerns resulting from the mace, the Agency took him into protective custody. The Agency changed its recommendation to request out-of-home detention from both Mother and Father, with supervised visits.

At the continued detention hearing, the court found the Agency made a prima facie showing under section 300 and ordered that M.C. be detained out-of-home from both Mother and Father. The Agency indicated maternal grandmother was already in the process of being assessed for placement. Father requested that paternal grandmother also be evaluated. Mother stated she has no Indian heritage and Father stated that he filled out the ICWA-020 Form in which he denied Indian heritage. Based on the information Mother and Father provided, the court found that ICWA did not apply to M.C. The minute order states “the court finds without prejudice that the Indian Child Welfare Act does not apply to this proceeding.”

In its jurisdiction and disposition report, the Agency stated it was in the process of evaluating maternal grandmother for placement but did not include any indication it had asked her about Indian heritage. The Agency also noted that if maternal grandmother was not approved for placement, Mother requested that her grandmother—i.e. maternal great-grandmother—be evaluated for placement. Regarding ICWA inquiries, the Agency reported Mother again denied any Indian ancestry and maintained she did not know “ ‘anything’ ” about her father—i.e. maternal grandfather.[4] The Agency recommended that the court find reasonable inquiry has been made to determine whether M.C. is or may be an Indian child.

At a pretrial hearing, the Agency informed the court that maternal grandmother was approved for placement. The court confirmed its prior finding that ICWA did not apply and set the matter for trial.

At the jurisdiction and disposition hearing, the court sustained the allegations of the petition under section 300, subdivision (b), and declared M.C. a dependent pursuant to section 360, subdivision (d). The court placed M.C. in the home of maternal grandmother and ordered reunification services for Mother and Father. The court’s minute order states that “[n]otice pursuant to the Indian Child Welfare Act is not required because the court knows the child is not an Indian child. Reasonable inquiry has been made to determine whether the child is or may be an Indian child.”

Father filed a timely notice of appeal challenging only the court’s ICWA finding. In his opening brief, Father argued the ICWA inquiry was inadequate because the Agency asked only Father and Mother about Indian heritage, but failed to ask extended family members, who were available or potentially available to the Agency, about this topic. Specifically, Father identified maternal grandmother, paternal grandmother, maternal grandfather, paternal aunt, and maternal great-grandmother as individuals who should have been contacted.[5]

Following the filing of Father’s opening brief, the Agency asked the maternal grandmother and paternal grandmother about Indian heritage and both confirmed that their respective families have no Indian ancestry. At the Agency’s request, the court held a special hearing to address the new ICWA inquiries. The court found the Agency exercised all reasonable and diligent efforts to inquire of both sides of M.C.’s family regarding potential Indian ancestry, and both sides of the family indicated “with no uncertain terms” that they have no Indian ancestry. As such, the court again found that ICWA did not apply.

Thereafter, the Agency filed a motion to augment the record on appeal to include the Agency’s addendum report, and a request for judicial notice of the reporter’s transcript and the minute order regarding the special hearing. We granted the Agency’s requests and deemed all three documents as part of the record. The Agency also moved to dismiss Father’s appeal on the basis it was moot, but did not file a respondent’s brief.

In its motion to dismiss, the Agency maintained that because the maternal and paternal grandmothers had denied Indian heritage at the special hearing and the record did not show it had contact information for any other “ ‘extended family member[s],’ ” the ICWA inquiry obligations had been satisfied. In Father’s written response, he acknowledged the Agency’s motion to dismiss “would seem to be well-taken on this record and this record alone,” but did not concede the matter. We requested supplemental briefing concerning the meaning of “ ‘extended family member[s]’ ” as defined by ICWA and directed the parties to address paternal aunt and maternal uncles in particular. The parties agreed these letter briefs would be deemed the respondent’s brief and the appellant’s reply brief.

In supplemental briefing, Father asserted the Agency erred in failing to ask the paternal aunt and maternal uncles about M.C.’s potential Indian ancestry. But, he did not contest Agency’s contention that Mother does not know anything about her biological father (the maternal grandfather) and did not repeat earlier assertions that paternal grandfather lives in San Diego. The Agency asserted Father did not meet his burden on appeal to show the paternal aunt was available to the Agency for inquiry and the maternal uncles do not qualify as “ ‘extended family member[s]’ ” under ICWA.[6] Alternatively, the Agency argued any error was harmless.

At the six-month review hearing (and after the appeal was fully briefed) the juvenile court placed M.C. back with Mother, finding that such placement would not be detrimental to M.C. The court also found that “the conditions still exist which justify initial assumption of jurisdiction under Section 300, and/or conditions are likely to exist if supervision is withdrawn,” and ordered that M.C is continued as a dependent child. On April 6, 2022, the Agency filed a request for judicial notice of the minute order for the review hearing and we now grant the unopposed motion. The Agency also filed a second motion to dismiss Father’s appeal as moot, arguing M.C.’s placement with Mother renders ICWA inapplicable. Father disagrees.[7]

DISCUSSION

On appeal, Father argues the Agency failed to satisfy its duty under California law to inquire whether M.C. is or may be an Indian child within the meaning of ICWA. We agree. As detailed below, the Agency failed to comply with its initial inquiry obligation because it did not ask paternal aunt about M.C.’s potential Indian ancestry even though she qualified as an “ ‘extended family member’ ” and was available to the Agency. Thus, substantial evidence does not support the juvenile court’s findings that the Agency complied with its inquiry obligations and that ICWA does not apply.[8] However, because the error was harmless, we affirm the court’s order.[9]

1. Applicable Law

Congress enacted ICWA to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Under California law adopted pursuant to ICWA, the juvenile court and Agency have an “affirmative and continuing duty to inquire” whether a child “is or may be an Indian child.” (§ 224.2, subd. (a); see Isaiah W., at p. 9.)

As outlined by this court in In re D.S. (2020) 46 Cal.App.5th 1041, 1052 (D.S.), “section 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency’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. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a ‘reason to believe’ the child is an Indian child, then the Agency ‘shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.’ (Id., subd. (e), italics added.) 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.”

During the first stage of initial inquiry, “[s]ection 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department, such as the Agency, the duty to inquire ‘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.’ ” (D.S., supra, 46 Cal.App.5th at pp. 1048-1049.)

ICWA defines “ ‘extended family member’ ” by “the law or custom of the Indian child’s tribe” or, absent such law or custom, as “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.” (25 U.S.C. § 1903(2); § 224.1, subd. (c) [“ ‘extended family member’ . . . defined as provided in [§] 1903” of ICWA].)

“On appeal, we review the juvenile court’s ICWA findings for substantial evidence.” (D.S., supra, 46 Cal.App.5th at p. 1051.) However, where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied. (Ibid.)

2. Analysis

Father does not contend there was a reason to believe, or a reason to know that M.C. was an Indian child. Thus, the only issue is whether the Agency complied with its initial inquiry obligations, specifically, the requirement under section 224.2, subdivision (b), that the Agency ask extended family members about M.C.’s potential Indian ancestry.

Father asserts the Agency “was in contact with the maternal and paternal grandmothers and, possibly the maternal grandfather,” “had access to a paternal aunt,” “had contact information for a maternal great-grandmother,” and also did not ask maternal uncles about M.C.’s potential Indian ancestry.

We dispose of Father’s challenge regarding maternal grandmother and paternal grandmother because as the initial request for judicial notice and motion to augment shows, the Agency asked the maternal and paternal grandmothers about their Indian ancestry, and they both denied such heritage. The record also shows the Agency did not have access to maternal grandfather where Mother did not know her biological father’s whereabouts.

The Agency’s failure to ask maternal great-grandmother was not a violation of section 224.2, section (b), because the applicable definition of “ ‘extended family member’ ” does not include a great grandparent. (See 25 U.S.C. § 1903(2); § 224.1, subd. (c) [“ ‘extended family member’ . . . defined as provided in [§] 1903” of ICWA].) Similarly, the Agency was not obligated to ask maternal uncles because they were 17 years old and “ ‘extended family member[s]’ ” are only those who have reached the age of 18. (See 25 U.S.C. § 1903(2).) Paternal aunt, on the other hand, does qualify as an “ ‘extended family member.’ ” (Ibid.) Additionally, paternal aunt was available to the Agency because she was present during the mace incident at the home where Father was living at the time. Thus, the Agency failed to comply with its initial inquiry obligation when it did not make any effort to ask her about M.C.’s potential Indian ancestry.

Because the failure here concerns the Agency’s duty of initial inquiry under section 224.2, subdivision (b), only state law is involved. Therefore, we may not reverse unless the error was prejudicial. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.).) That is, any error “ ‘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.M. (2020) 47 Cal.App.5th 303, 318.) This district recently set forth a standard for applying the prejudicial error requirement 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. . . . Under this approach, we require continued inquiry where the probability of obtaining meaningful information is reasonable in the context of ICWA.” (Benjamin M., at p. 744.)

In Benjamin M., the Court of Appeal conditionally reversed the juvenile court’s order because the agency failed to obtain information that was readily available and “potentially meaningful.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.) There, the agency was not able to locate the father and did not obtain any information about Indian ancestry from the minor’s paternal side. (Id. at p. 740.) While the agency had access to the father’s brother, it failed to ask him about potential Indian ancestry. (Id. at p. 744.) The court reasoned that “Father’s brother’s knowledge of his own Indian status would be suggestive of Father’s status. While we cannot know how Father’s brother would answer the inquiry, his answer is likely to bear meaningfully on the determination at issue about his brother.” (Id. at pp. 744-745.)

Here, any information the Agency may have obtained from an inquiry of paternal aunt was not likely to bear meaningfully on whether M.C. is an Indian child. Unlike in Benjamin M., the Agency asked members from both sides of M.C.’s family—Mother, Father, maternal grandmother, and paternal grandmother—who each unequivocally denied any Indian ancestry. Additionally, there is nothing in the record to suggest that there may be Indian ancestry, and no reason to doubt the parents’ and grandmothers’ denials. (Cf. In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016 [finding prejudicial error where agency relied only on denials by mother and father even though maternal and paternal extended family members were available for inquiry, mother was a product of foster care and may not have known her cultural heritage, and one detention report indicated the minor may be an Indian child].) In light of these unequivocal and uncontradicted denials of Indian ancestry, it is not likely that the Agency would have obtained information that would have borne meaningfully on the issue by asking paternal aunt. The Agency’s failure to make that inquiry is therefore harmless.

DISPOSITION

The Agency’s first and second motions to dismiss are denied. The juvenile court’s order is affirmed. We direct the juvenile court to ensure that the ICWA-020 Parental Notification of Indian Status forms for Father and Mother are filed.

HALLER, Acting P. J.

WE CONCUR:

O’ROURKE, J.

DO, J.

[1] Mother is not a party to this appeal.

[2] All further section references are to the Welfare and Institutions Code, unless otherwise indicated.

[3] In light of the limited scope of this appeal, we provide an abbreviated summary of the dependency proceedings focused on the facts relevant to the issue on appeal.

[4] Mother’s stepfather raised her since she was one year old.

[5] In his opening brief, Father stated “both of his parents reside in San Diego County.” However, the citation he relies on refers to Mother’s mother and stepfather residing in San Diego. We have found no information in the record regarding the paternal grandfather.

[6] After reviewing the supplemental briefing, we determine the motion to dismiss lacks merit and deny it.

[7] We find it unnecessary to resolve the mootness issue. We exercise our discretion to resolve the merits of the appeal (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404) and deny the Agency’s second motion to dismiss.

[8] The juvenile court’s finding that ICWA was inapplicable implied that the Agency fulfilled its inquiry duty. (See In re Austin J. (2020) 47 Cal.App.5th 870, 885 [a finding that “ICWA does not apply” implies social workers and court “did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry”].)

[9] In our request for supplemental briefing, we directed Father and the Agency to address the fact that the ICWA-020 Parental Notification of Indian Status forms for Father and Mother were missing from the appellate record. In response, neither Father nor the Agency provided any indication that those forms had been filed with the juvenile court. We direct the juvenile court to ensure that such forms are filed.