Filed 5/31/22 In re P.C. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Tamara Hall, Judge. Affirmed.

Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.

_________________________

Following the juvenile court’s denial of a Welfare and Institutions Code section 388[1] petition concerning her daughter, P.C. (born Sept. 2015), P.S. (mother) filed the instant appeal, arguing that the juvenile court and Los Angeles County Department of Children and Family Services (DCFS) failed to comply with their initial duties of inquiry under the Indian Child Welfare Act (ICWA). It is undisputed that DCFS failed to ask mother’s extended family members, namely P.C.’s maternal grandmother and maternal aunt, about Indian ancestry. The issue before us is whether that failure was prejudicial.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Section 300 Petition

In November 2016, DCFS filed a section 300 petition on behalf of P.C. and her older half-brother, J.H.[2] based on mother’s substance abuse. The juvenile court subsequently sustained the petition and assumed jurisdiction over the children.

ICWA 020-Form

On November 18, 2016, mother filed a Parental Notification of Indian Status (ICWA-020) form indicating she had no Indian ancestry as far as she knew.

Investigation of P.C.’s Father’s Native American Heritage

On January 19, 2017, DCFS interviewed P.C.’s father, who reported that he was not sure about any American Indian heritage in his family but referred DCFS to P.C.’s paternal great-grandmother (paternal great-grandmother).

On January 26, 2017, DCFS interviewed paternal great- grandmother, who reported that P.C.’s paternal great-great-great grandmother was “‘supposed to be Cherokee.’” She said that she adopted her granddaughter 27 years ago and went through the ICWA process then without being able to determine if there was Native American heritage. She provided additional relative information to DCFS.

On February 2, 2017, DCFS mailed ICWA notice to the three Cherokee Tribes addressing the reported Cherokee heritage in P.C.’s paternal family. DCFS subsequently received return receipts from all recipients of the notice. DCFS submitted to the juvenile court copies of the ICWA notice and the returned green receipts. Mother’s name and information was included in the notice but not the names or information of her relatives.

On February 6, 2017, the United Keetoowah Band of Cherokee Indians in Oklahoma wrote a letter indicating it had conducted a search of its enrollment records and did not intend to intervene in the dependency case as P.C. did not meet the definition of an Indian child.

On March 13, 2017, the Cherokee Nation wrote a letter indicating P.C. was not an Indian child and it did not have standing to intervene.

Jurisdiction/Disposition Report

DCFS reported on its interview with P.C.’s maternal grandmother regarding the section 300 petition allegations. The maternal grandmother discussed conversations she had had with mother relating to the children.

Interim Review Report (Jan. 12, 2018)

DCFS reported that P.C. and J.H. had been placed in their maternal aunt’s home. DCFS indicated J.H. was not an Indian child or ICWA eligible and not associated with any tribe. Regarding P.C., DCFS reported that it had received return receipts from the three Cherokee Tribes, the Secretary of the Interior, and the Bureau of Indian Affairs, and that more than 60 days had passed since the return receipts were signed. DCFS requested that the court find the ICWA did not apply to P.C.

Progress Hearing (Jan. 12, 2018)

The juvenile court found that it did not have reason to know that P.C. was an Indian child. In fact, the juvenile court stated that it was making a “no ICWA finding.” No counsel objected. The juvenile court ordered that P.C. be released to mother’s custody upon receipt of mother’s clean drug test results.

Section 342 Petition

On March 21, 2018, DCFS filed a section 342 petition alleging that mother had failed to provide appropriate parental care and supervision, resulting in J.H. sexually abusing P.C. It further alleged that mother suffered from mental and emotional problems and that P.C.’s father abused marijuana.

Detention Report

In its report, DCFS noted that on January 12, 2018, the juvenile court had found that ICWA did not apply to the children.

Further Investigation into P.C.’s Father’s Native American Heritage

On March 23, 2018, P.C.’s father filed an ICWA-020 form, reiterating that he might have Indian ancestry.[3] He included P.C.’s paternal great-grandmother’s name and phone number on the form, and wrote that paternal great-grandmother “reports her Fa was chief.” He further told the juvenile court that he did not know what tribe might be involved.

At the March 23, 2018, arraignment hearing, the juvenile court and counsel discussed the fact that DCFS had previously interviewed paternal great-grandmother in 2017 and that she had reported Cherokee ancestry. The juvenile court noted that it had previously made a finding that ICWA did not apply after notice was sent to the Cherokee tribes.

Ultimately, the juvenile court found that it had no reason to know that ICWA applied and that its previous findings regarding ICWA remained.

Adjudication Hearing of the Section 342 Petition (May 3, 2018)

P.C.’s maternal grandmother was present in court at the May 3, 2018, hearing.

The juvenile court subsequently sustained an amended version of the section 342 petition. The children were released to mother’s custody under continued court supervision.

Section 387 Petition

On November 9, 2018, DCFS filed a section 387 petition based on mother’s failure to comply with court-ordered services and her testing positive for methamphetamine. The juvenile court ordered the children detained from mother’s custody. The corresponding detention report restated the juvenile court’s previous findings with respect to ICWA. P.C. was placed in her maternal aunt’s home.

At the hearing, the juvenile court sustained the section 387 petition, removed the children from parental custody, and scheduled a section 366.26 hearing to select and implement a permanent plan for the children.

Mother’s Section 388 Petition

On January 13, 2021, mother filed a section 388 petition with respect to P.C., requesting that the juvenile court reinstate her family reunification services.

Interim Review Report (Mar. 17, 2021)

In its interim review report, DCFS reiterated the juvenile court’s previous finding that ICWA did not apply. It recommended that mother’s section 388 petition be denied. P.C. remained placed in the home of her maternal aunt, who expressed an interest in adoption.

Trial Court Order Denying Mother’s Section 388 Petition

On June 3, 2021, the juvenile court denied mother’s section 388 petition.

Notice of Appeal

Mother’s timely appeal from the June 3, 2021, order ensued.

DISCUSSION

I. Relevant ICWA Law

“[The] 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, 881–882; see also 25 U.S.C. § 1902.)

Under California law, DCFS and the juvenile court “have an affirmative and continuing duty to inquire” into whether a dependent child “is or may be an Indian child.” (§ 224.2, subd. (a); see also In re Benjamin M. (2021) 70 Cal.App.5th 735, 741–742.) This duty includes DCFS asking the parents and extended family members whether the child is or may be an Indian child (§ 224.2, subd. (b); see also Cal. Rules of Court, rule 5.481(a)(1)), and the juvenile court inquiring at each party’s first appearance in the proceedings whether he or she knows or has reason to know that the child is an Indian child (§ 224.2, subd. (c); see also Cal. Rules of Court, rule 5.481(a)(2)). Further inquiry and notice to the tribes may be required only if there is “reason to believe” or “reason to know” that the child is an Indian child based upon this initial inquiry. (§ 224.2, subds. (d), (e), & (f); 25 C.F.R. § 23.107(c) (2019).)

A spate of appellate courts has recently weighed in on the consequence of a social services agency’s failure to conduct the required ICWA inquiry, resulting in “a continuum of tests for prejudice stemming from error in following California statutes implementing ICWA.” (In re A.C. (2022) 75 Cal.App.5th 1009, 1011.) On one end of this continuum, some courts appear to have concluded that an ICWA inquiry error is per se prejudicial, holding that an appealing parent need not demonstrate that the error prejudiced the proceeding. (See, e.g., In re H.V. (2022) 75 Cal.App.5th 433, 438; In re Y.W. (2021) 70 Cal.App.5th 542, 556; In re K.R. (2018) 20 Cal.App.5th 701, 708.) A second group of courts holds that a parent appealing from an ICWA inquiry violation does need to demonstrate prejudicial error, but places the bar for prejudice so low that an inquiry error will, “in most circumstances,” be deemed “prejudicial and reversible.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 435; see also In re Benjamin M., supra, 70 Cal.App.5th at p. 744.) However, this approach admits that “[t]here are cases where . . . it s obvious that additional information would not [be] meaningful to the inquiry,” including, for example, when “the evidence already uncovered in the initial inquiry [i]s sufficient for a reliable determination.” ([i]Id. at p. 743.)

At the opposite end of the continuum, a third group of courts “concludes that [an ICWA inquiry] error does not warrant reversal unless a ‘miscarriage of justice’ is demonstrated to have occurred as a consequence of the failure to inquire about Native American heritage. [Citation.] These cases would allow a parent to make an offer of proof on appeal, showing there is reason to believe Native American heritage exists. [Citations.] In the absence of such an affirmative showing, this line of cases concludes the judgment should be affirmed.” (In re A.R. (2022) 77 Cal.App.5th 197, 205; In re A.C. (2021) 65 Cal.App.5th 1060, 1069 [In order to demonstrate prejudice, “a parent asserting failure to inquire must show—at a minimum—that if asked, he or she would, in good faith have claimed some kind of Indian ancestry. ‘Where the record below fails to demonstrate and the parents have made no offer of proof or other affirmative assertion of Indian heritage on appeal, a miscarriage of justice has not been established and reversal is not required. [Citations.]’ [Citations.]”]; but see In re S.S. (2022) 75 Cal.App.5th 575, 582 [no offer of proof on appeal is required]; In re Darian R. (2022) 75 Cal.App.5th 502, 509–510 [failure to inquire of extended family members was harmless based upon readily obtainable information].) This approach recognizes the “limited utility” of remanding dependency cases for further ICWA inquiry without some assertion that a remand will produce a different result, particularly when the child’s parents have already denied that they and their children are current members of an Indian tribe and where no party raised any ICWA concerns in the juvenile court. (In re A.C., supra, 75 Cal.App.5th at p. 1023 (dis. opn. of Crandall, J.).)

“We review claims of inadequate inquiry into a child’s Indian ancestry for substantial evidence. [Citation.]” (In re H.V., supra, 75 Cal.App.5th at p. 438.) Where the facts are undisputed, we must independently determine whether ICWA’s requirements have been satisfied. (In re D.S. (2020) 46 Cal.App.5th 1041, 1051.)

II. Analysis

Although we do not adopt a rule of per se prejudice, we conclude that there was no reversible error under either of the other two standards. DCFS’s failure to interview P.C.’s maternal grandmother and maternal aunt was harmless error as the appellate record does not contain any readily obtainable information that is likely to bear meaningfully on whether P.C. has Indian ancestry.

As set forth above, DCFS conducted a thorough investigation into father’s potential Native American heritage. Regarding mother, at the onset of these proceedings, she submitted her ICWA-020 form, indicating she had no Indian ancestry as far as she knew. Although the form admonished mother to provide any new information on the topic to the juvenile court, mother remained silent. (In re A.C., supra, 75 Cal.App.5th at p. 1021 (dis. opn. of Crandall, J.).)

Furthermore, P.C. had been placed with her maternal aunt, who expressed an interest in adopting her. Thus, she had an incentive to bring facts about any Indian heritage to the juvenile court’s attention. (In re S.S., supra, 75 Cal.App.5th at p. 582.)

“To carry the point one step further, [mother] has made no claim, either in the juvenile court or on this appeal that, had the juvenile court or [DCFS] continued to ask [her] about [P.C.’s] Indian status, or made inquiries of [P.C.’s] extended family members about [P.C.’s] Indian status, they would have discovered information triggering the need for further ICWA inquiry or notice.” (In re A.C., supra, 75 Cal.App.5th at p. 1021 (dis. opn. of Crandall, J.).) Thus, we reject her assertion that “[t]he maternal aunt and maternal grandmother could have supplied additional information related to the applicability of the [ICWA] but none of them were asked.”

Under these circumstances, we conclude that DCFS’s failure to conduct a further inquiry of P.C.’s maternal grandmother and maternal aunt was not prejudicial.

In re Y.W., supra, 70 Cal.App.5th 542, upon which mother relies, is readily distinguishable. In that case, although the mother denied having any Indian heritage, the Court of Appeal conditionally affirmed the juvenile court’s order terminating parental rights and remanded the matter with directions because DCFS did not attempt to reach available maternal biological relatives. (Id. at p. 556.) But in In re Y.W., the mother had been adopted through a child-welfare agency in North Carolina when she was two years old. (Ibid.) The mother’s adoption as a young child by a couple not biologically related to her, and her minimal contact with biological relatives, made it less likely she was aware of any Indian ancestry. (Id. at pp. 548–549.)

In contrast, mother here was not adopted, and she was in regular contact with her biological relatives, including P.C.’s maternal aunt and maternal grandmother. Mother could have asked these relatives about potential Indian ancestry. (In re Darian R., supra, 75 Cal.App.5th at p. 510.)

DISPOSITION

The juvenile court’s order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] J.H. is part of the dependency proceedings below, but is not the subject of this appeal. Neither child’s father is a party to this appeal.

[3] The juvenile court’s March 23, 2018, minute order acknowledges receipt of P.C.’s father’s ICWA-020 form.