L. A. Cnty. Dep't of Children & Family Servs. v. Jessica L. (In re Makayla L.)

Decision Date27 September 2022
Docket NumberB314988
PartiesIn re MAKAYLA L., a Person Coming Under Juvenile Court Law. v. JESSICA L., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
CourtCalifornia Court of Appeals

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. 19CCJP01337 Jean M. Nelson, Judge. Affirmed.

Jesse McGowan, under appointment by the Court of Appeal, for Appellant.

Office of the County Counsel, Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County

Counsel and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.

MANELLA, P. J.

INTRODUCTION

Mother Jessica L. appeals the termination of her parental rights to her daughter Makayla L. (born December 2018), contending only that the court erred in finding the Indian Child Welfare Act (25 U.S.C., § 1901 et seq., ICWA) inapplicable, despite an inadequate investigation by the Los Angeles County Department of Children and Family Services (DCFS). Because both Mother and Makayla's father (who is not a party to the appeal) asserted they had no Indian heritage and nothing in the record suggests that Makayla is an Indian child, we hold any error in the court's ICWA finding was harmless and therefore affirm.

STATEMENT OF RELEVANT FACTS
A. DCFS Files a Petition

In February 2019, DCFS filed a petition on behalf of two-month-old Makayla under Welfare and Institutions Code section 300, subdivisions (a), (b)(1), and (j), alleging she was endangered by Mother's and Father's domestic violence, Mother's substance abuse, and Mother's mental and emotional problems. The petition also alleged Mother's substance abuse and mental and emotional problems had already caused three of her other children to receive permanent placement services. The petition attached an ICWA-010(A) form noting that an "Indian child inquiry [was] made," that both parents denied having any Indian ancestry, and that therefore "[t]he child has no known Indian ancestry." Mother also filed an ICWA-020 form, checking the box next to "I have no Indian ancestry as far as I know."

At the detention hearing, the court ordered Makayla to remain detained. It noted Mother's statement that she had no Indian ancestry and confirmed with Mother that, to her knowledge, Father had no such ancestry either. The court found it had no reason to know Makayla was an Indian child but nevertheless ordered DCFS to investigate. Though the record reveals DCFS spoke with several extended family members, there is no evidence that it conducted any further investigation regarding Makayla's potential Indian heritage.

In April 2019, Father was arraigned and entered a general denial. He filed an ICWA-020 form, checking the box next to "I have no Indian ancestry as far as I know."

B. Termination of Parental Rights

In May 2019, Mother and Father both pled no contest to an amended petition. The court ordered Makayla removed from them.

In August 2019, Mother was arrested by the United States Customs Service for importing a controlled substance. DCFS learned from the Department of Homeland Security that Father had arranged the transaction resulting in her arrest.

The initial judicial review hearing was continued for various reasons until August 2020. At that hearing, the court terminated both parents' family reunification services, finding they had made insufficient progress in their case plan.

In February 2021, the court terminated Mother's and Father's parental rights to Makayla and elected the permanent plan of adoption. After Mother belatedly appealed on August 30, 2021, she made a motion requesting we accept her late notice of appeal because her trial counsel had erroneously informed her that a timely notice had been filed. We granted the motion. Mother's notice of appeal stated she was appealing "Termination of Parental Rights" and made no mention of ICWA. Nevertheless, the sole contention in her appellate brief is that the court failed to ensure compliance with the duty of initial inquiry under ICWA.

DISCUSSION

Despite the parents' denial of Indian ancestry, DCFS had a duty to ask Makayla's extended family members about any potential Indian heritage. (In re Dezi C. (2022) 79 Cal.App.5th 769, 776 ["the initial duty of inquiry mandated by California's version of ICWA obligates the Department to question 'extended family members' about a child's possible American Indian heritage"] review granted Sept. 21, 2022, S275578.) Though the record contains no indication that DCFS made any such inquiry, the court found ICWA inapplicable. Mother contends DCFS's failure to make a sufficient inquiry requires reversal.

"Where as here, there is no doubt that the Department's inquiry was erroneous, our examination as to whether substantial evidence supports the juvenile court's ICWA finding ends up turning on whether that error by the Department was harmless-in other words, we...

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