L. A. Cnty. Dep't of Children & Family Servs. v. Angelica A. (In re Dezi C.)
| Citation | 79 Cal.App.5th 769,295 Cal.Rptr.3d 205 |
| Decision Date | 14 June 2022 |
| Docket Number | B317935 |
| Parties | IN RE DEZI C. et al., Persons Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Angelica A., Defendant and Appellant. |
| Court | California Court of Appeals |
Karen J. Dodd, Tustin, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
This juvenile dependency case presents what is unfortunately becoming a common scenario. Both parents of the two children at issue in this case repeatedly denied having any American Indian heritage. While the case was ongoing, the social services agency spoke with several of the parents’ relatives (including the parents’ parents, their siblings and the father's cousin), but never asked those relatives whether the children had any American Indian heritage. Nearly 30 months into the proceedings and on appeal from the termination of her parental rights, Angelica A. (mother) is for the first time objecting that the agency did not discharge its statutory duty to "inquire" of "extended family members" whether her children might be "Indian child[ren]" within the meaning of our state's broader version of the federal Indian Child Welfare Act (ICWA) ( 25 U.S.C. § 1900 et seq. ) ( Welf. & Inst. Code, § 224.2, subd. (b) ), and is seeking a remand for the agency to conduct a more comprehensive inquiry on this topic.1 There is no dispute that the agency did not properly discharge its statutory duty, and that there is therefore "ICWA error."
The question before us now is whether this error was harmless and, more to the point, how harmlessness is to be assessed where an agency has failed to conduct the statutorily required initial inquiry into a dependent child's American Indian heritage. So far, the courts have developed three different rules—at various points along a continuum—for assessing harmlessness. In our view, the proper rule lies at a different point on that continuum. We accordingly offer up a fourth rule: An agency's failure to discharge its statutory duty of initial inquiry is harmless unless the record contains information suggesting a reason to believe that the children at issue may be "Indian child[ren]," in which case further inquiry may lead to a different ICWA finding by the juvenile court. For these purposes, the "record" means not only the record of proceedings before the juvenile court but also any further proffer the appealing parent makes on appeal.
Because the record in this case contains the parents’ repeated denials of American Indian heritage, because the parents were raised by their biological relatives, and because there is nothing else in the record to suggest any reason to believe that the parents’ knowledge of their heritage is incorrect or that the children at issue might have American Indian heritage, we conclude that the agency's error in this case was harmless and affirm.
Mother and Luis C. (father) have two children—Dezi C. (born May 2016) and Joshua C. (born April 2018).
On November 6, 2019, mother and father got into a verbal fight. After father threatened to kill mother, mother struck father with a broomstick while father was holding then-toddler Joshua in his arms. This was not the first such incident between the parents.
Both mother and father also have longstanding issues with substance abuse. Mother has been using methamphetamine for more than seven years; father also uses.
On December 17, 2019, the Los Angeles Department of Children and Family Services (the Department) filed a petition asking the juvenile court to exert dependency jurisdiction over Dezi and Joshua on the basis of (1) mother's and father's history of domestic violence (rendering jurisdiction appropriate under subdivisions (a) and (b)(1) of section 300 ), and (2) mother's and father's drug abuse (rendering jurisdiction appropriate under subdivision (b)(1) of section 300 ).2
On February 19, 2020, the juvenile court held a combined jurisdictional and dispositional hearing. The court sustained the domestic violence and substance abuse allegations under subdivision (b)(1), struck the domestic violence allegation under subdivision (a), removed the children from the parents’ custody, and ordered the Department to provide both parents with family reunification services in accordance with a developed for each parent.
At a six-month review hearing on August 26, 2020, the juvenile court concluded that mother and father were not in compliance with their case plans, terminated reunification services, and set the matter for a permanency planning hearing under section 366.26.
On January 18, 2022, the juvenile court held the permanency planning hearing. After concluding that the children were adoptable and likely to be adopted by their paternal grandparents, the court terminated mother's and father's parental rights.
In December 2019, mother and father told a Department social worker that they had no American Indian heritage. The next day, mother and father filled out ICWA-020 forms, and checked the box indicating that they had no American Indian heritage "as far as [they knew]." At the hearing on whether to initially detain the children, mother and father told the juvenile court that they had no American Indian heritage.
While investigating the allegations in this case, the Department's social workers spoke to father's parents (the paternal grandparents), mother's parents (the maternal grandparents), father's siblings, mother's siblings, and one of father's cousins. The social workers did not ask any of these individuals whether mother, father, or the children had any American Indian heritage.
The juvenile court found "[no] reason to know that this is an Indian child, as defined under ICWA."
Mother filed this timely appeal from the termination of her parental rights.
Mother argues that the order terminating her parental rights must be reversed because the Department failed to comply with its duty under ICWA and related California provisions to initially inquire of "extended family members" regarding Dezi's and Joshua's possible American Indian heritage.3 It is undisputed that the Department's initial inquiry was deficient: As discussed more fully below, 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 ( § 224.2, subd. (b) ); here, the Department spoke with several members of mother's and father's extended families, but did not question them about the children's possible heritage. The question thus becomes: Did the Department's defective initial inquiry in this case render invalid the juvenile court's subsequent finding that ICWA does not apply (and thus render invalid the court's concomitant order terminating mother's parental rights)?
"[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 ICWA finding. ( In re A.M. (2020) 47 Cal.App.5th 303, 314, 260 Cal.Rptr.3d 412 ( A.M. ).) 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 must assess whether it is reasonably probable that the juvenile court would have made the same ICWA finding had the inquiry been done properly. ( People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 ( Watson ).) If so, the error is harmless and we should affirm; otherwise, we must send it back for the Department to conduct a more comprehensive inquiry.
At this point in time, the California courts have staked out three different rules for assessing whether a defective initial inquiry is harmless. These rules exist along a "continuum." ( In re A.C. (2022) 75 Cal.App.5th 1009, 1011, 291 Cal.Rptr.3d 197 ( A.C. 2022 ).) The rule at one end of this continuum is one that mandates reversal: If the Department's initial inquiry is deficient, that defect necessarily infects the juvenile court's ICWA finding and reversal is automatic and required (the "automatic reversal rule"). ( In re J.C. (2022) 77 Cal.App.5th 70, 80-82, 292 Cal.Rptr.3d 222 ( J.C. ); In re Antonio R. (2022) 76 Cal.App.5th 421, 432-437, 291 Cal.Rptr.3d 520 ( Antonio R. ); In re A.R. (2022) 77 Cal.App.5th 197, 205, 292 Cal.Rptr.3d 234 ( A.R. ); In re H.V. (2022) 75 Cal.App.5th 433, 438, 290 Cal.Rptr.3d 464 ; In re Y.W. (2021) 70 Cal.App.5th 542, 556, 285 Cal.Rptr.3d 498 ; accord, In re N.G. (2018) 27 Cal.App.5th 474, 484-485, 238 Cal.Rptr.3d 304 ( N.G. ); In re K.R. (2018) 20 Cal.App.5th 701, 708-709, 229 Cal.Rptr.3d 451.) Under this test, reversal is required no matter how "slim" the odds are that further inquiry on remand might lead to a different ICWA finding by the juvenile court. ( Antonio R. , at p. 435, 291 Cal.Rptr.3d 520.) The rule at the other end of the continuum is one that presumptively favors affirmance: If the Department's initial inquiry is deficient, that defect will be treated as harmless unless the parent comes forward with a proffer on appeal as to why further inquiry would lead to a different ICWA finding (the "presumptive affirmance rule"). ( In re A.C. (2021) 65 Cal.App.5th 1060, 1065, 1071, 280 Cal.Rptr.3d 526 ( A.C. 2021 ); accord, In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431, 49 Cal.Rptr.3d 951 ( Rebecca R. ).) The third rule lies in...
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Kern Cnty. Dep't of Human Servs. v. M.H. (In re K.H.)
...ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding." ( In re Dezi C. (2022) 79 Cal.App.5th 769, 779–782, 295 Cal.Rptr.3d 205 ( Dezi C. ), review granted Sept. 21, 2022, S275578.) Recently, the California Supreme Court granted review in Dezi C......
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