Filed 7/28/22 In re S.C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Nichelle L. Blackwell, Juvenile Court Referee. Affirmed.

Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

_______________________

Father B.C. appeals after the juvenile court terminated his parental rights to sons S.C. (born 2015) and Alexis C. (born 2016). He does not challenge the basis of the termination of his rights. His 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 and paternal extended family members whether the children had Indian ancestry 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 determining that ICWA did not apply without inquiring of available family members for whom it had contact information. However, we conclude the error was harmless because the court ultimately designated the children’s maternal grandmother as their prospective adoptive parent and there is no reason to believe further inquiry would have established that the minors were Indian children.

BACKGROUND

On August 28, 2019, DCFS filed a section 300 petition alleging the minors were at risk of physical harm because of their parents’ history of engaging in domestic violence in the children’s presence and Mother’s history of substance abuse and current use of methamphetamine. That same day the juvenile court detained the children, who were then released to their maternal grandparents. On October 10, 2019, DCFS filed a first amended petition which added allegations that Father had a substance abuse history and currently used marijuana and alcohol, and Mother knew or should have known of his substance abuse and failed to protect the children. The petition also newly alleged Mother had mental health issues which included cutting her forearm with a knife, and Father knew or should have known of Mother’s substance abuse and mental health problems and failed to protect the children.

On November 18, 2019, both parents pleaded no contest to the interlineated first amended petition. The juvenile court removed the children from the parents and ordered reunification services.

At the contested 18-month review hearing on February 26, 2021, the juvenile court declined to return the children to their parents because both parents had only partially complied with their case plans and the domestic violence between them had not abated. The court terminated reunification services for both parents.

On September 23, 2021, the juvenile court terminated Father’s and Mother’s parental rights, found by clear and convincing evidence that the children were adoptable and no exceptions to adoption applied, and designated the children’s maternal grandmother and step-grandfather as their prospective adoptive parents.

Father’s appeal followed.

ICWA PROCEEDINGS

At the initial detention hearing on August 29, 2019, Mother denied Indian ancestry for herself and Father and the court found no reason to know the minors were Indian children as defined by ICWA. In the jurisdiction/disposition report filed on October 11, 2019, Father personally reported no Indian ancestry and the juvenile court reiterated its finding that ICWA did not apply.

On August 13 and October 1, 2019, DCFS interviewed maternal grandmother Ana T., but the record is silent about whether DCFS asked her about possible Indian ancestry. At the initial detention hearing the children were placed with Ana T. and her husband Jose M. The children remained placed with them until parental rights were terminated on September 23, 2021. By then the children had been with Ana and Jose for over two years. Both children formed strong loving connections with these caregiver grandparents.

DCFS also interviewed paternal grandmother, Maria T. DCFS had contact information for three maternal aunts, maternal grandfather, and maternal step-grandmother as well. Again the record is silent whether these extended family members were asked about Indian ancestry.

DISCUSSION

Where, as here, the facts are undisputed, we independently determine whether ICWA’s requirements have been satisfied. (In re D.S. (2020) 46 Cal.App.5th 1041, 1051.

In enacting ICWA, Congress 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. (2020) 47 Cal.App.5th 870, 882–883.)

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.” 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); In re Y.W. (2021) 70 Cal.App.5th 542, 552.)

Here, the record suggests DCFS did not ask the parents’ extended family members about their Indian ancestry, despite having contact with maternal grandmother and step-grandfather, and paternal grandmother, and contact information for three maternal aunts, maternal grandfather, and maternal step-grandmother. This was a violation of California law. But was this error prejudicial? To obtain reversal of a trial court’s decision in California, appellant must show a miscarriage of justice. (Cal. Const., art. VI, § 13.) To decide whether a miscarriage of justice has occurred, we probe further into the concerns prompting the enactment of ICWA.

“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.)

Although DCFS did not fulfill its duties under section 224.2, we are hard pressed to find a miscarriage of justice. We consider ICWA’s placement preferences. Section 1915 of title 25 of the United States Code provides that in any adoptive placement of an Indian child under state law, “a preference shall be given, in the absence of good cause to the contrary, to a placement with [¶] (1) a member of the child’s extended family; [¶] (2) other members of the Indian child’s tribe; or [¶] (3) other Indian families.” (25 U.S.C. § 1915(a).)

Here, the juvenile court implemented the first preference by finding the children adoptable by their maternal grandmother, a sensible finding made in their best interest given the children’s strong attachment to her. From the very beginning of their placement with maternal grandmother Ana T., the boys “appeared comfortable and happy” with her. Indeed, in May 2020, DCFS noted, “The children have developed a strong bond with maternal grandmother and Mr. [M]” who indicated “they want what is best for the children and will be available to care for the children as long as it is needed.” Both boys “look to them for comfort, support whenever they get nervous or upset.” By February 26, 2021, the social worker “observed how the children feel safe and happy in their relative placement” and “[b]oth grandparents have provided a sense of security, comfort, and protection for [the boys].” The court’s proposed disposition belies a finding of prejudice as it is the first preferred placement ICWA would have mandated had the minors been Indian children and had their tribe intervened.

Another way to assess prejudice has been set forth in In re Dezi C. (2022) 79 Cal.App.5th 769, which we adopt as well. There, our colleagues in Division 2 held that where the parents were raised by their own biological relatives and where the record suggests no reason to believe that the parents’ knowledge of their own heritage is incorrect or that the children may have Indian heritage, no prejudice arises from DCFS’s failure to conduct a complete inquiry. Here, both parents were raised by and continued to have close contact with and the support of their biological families throughout these proceedings. The record does not suggest their denial of Indian heritage was at all ill-informed, unfounded, or incorrect. Nor is there other evidence to suggest the children may have Indian heritage.

By the time parental rights were terminated for these two boys, they had been living with their maternal grandmother and step-grandfather for over two years and each had formed a strong attachment to them. The minors’ adoption by maternal grandparents does not perpetuate the abuses ICWA was enacted to prevent. We find no miscarriage of justice here.

DISPOSITION

The trial court’s order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

I concur:

HARUTUNIAN, J.^*

WILEY, J., Dissenting.

This is my sixth dissent on this issue. I incorporate my earlier views (e.g., In re J.W. (July 19, 2022, B313447) __ Cal.App.5th __, __ [2022 WL 2816867 at pp. *4–*5] (dis. opn. of Wiley, J.)) and would find prejudice.

WILEY, 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.