L. A. Cnty. Dep't of Children & Family Servs. v. Priscilla S. (In re Ezequiel G.)
| Decision Date | 29 July 2022 |
| Docket Number | B314432 |
| Citation | 81 Cal.App.5th 984,297 Cal.Rptr.3d 685 |
| Parties | IN RE EZEQUIEL G., et al., Persons Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Priscilla S., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Robert McLaughlin, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Timothy M. O'Crowley, Deputy County Counsel for Plaintiff and Respondent.
This juvenile dependency appeal is one of many in an increasingly common posture. There is no evidence in the juvenile court record—which began in 2017 and concluded with the termination of parental rights in 2021—that the three children at issue in this case are Indian children within the meaning of the Indian Child Welfare Act (ICWA) ( 25 U.S.C. § 1900 et seq. ) and related state laws ( Welf. & Inst. Code, § 224 et seq. ).1 To the contrary, the parents affirmatively represented below that they do not have Indian ancestry, and no parent objected either to the adequacy of the ICWA inquiry conducted by the Los Angeles County Department of Children and Family Services (DCFS) or to the juvenile court's finding that ICWA did not apply. Further, the appealing parent, Priscilla S. (mother), does not suggest on appeal that any of the information provided about the children's ancestry was in error or that she has uncovered new information after parental rights were terminated suggesting that the children are Indian children. Nonetheless, mother asks us to reverse the final order terminating parental rights because there are members of the children's extended family of whom an ICWA inquiry was not made.
Until very recently, Courts of Appeal routinely affirmed orders in this posture. Recently, however, some appellate courts have begun returning matters to the juvenile court—even after parental rights have been terminated—because an ICWA inquiry was not made of extended family members referenced in the juvenile court record.2
These reversals unquestionably delay permanency for some of the most vulnerable children in our juvenile court system. Worse, we believe the approach to reviewing ICWA error that drives these reversals is not mandated by the relevant statutes and is ineffective in protecting the interests of the Indian communities and families for whose benefit ICWA was enacted. For these reasons, we decline to follow our fellow appellate courts that return cases to the juvenile courts after parental rights have been terminated on the mere showing that an ICWA inquiry was not made of some members of a child's extended family. Instead, as we discuss more fully below, we will review a juvenile court's ICWA findings under a hybrid substantial evidence/abuse of discretion standard, reviewing for substantial evidence whether there is reason to know a child is an Indian child, and for abuse of discretion a juvenile court's finding that an agency exercised due diligence and conducted a "proper and adequate" ICWA inquiry. Further, we will reverse only on a showing that any ICWA error was prejudicial. Applying this standard here, we conclude that there is substantial evidence in the record to support the juvenile court's finding that the children are not Indian children, and the juvenile court did not abuse its discretion by concluding that DCFS exercised due diligence and conducted an adequate ICWA inquiry. We further conclude that mother has not shown that any error was prejudicial. We therefore will affirm the orders terminating parental rights.
Mother has ten children: Nic., Ni., and Na., whose father is R.V.; No., De., Na., Ra., and Unique, whose father is Randy C.; and Dominic and Ezequiel, whose father is Ezequiel G., Sr. This appeal concerns Unique, Dominic, and Ezequiel only.
In July 2017, a petition was filed on behalf of Na., No., De., Na., Ra., Unique, and Dominic, alleging physical abuse of the children by Ezequiel Sr. and domestic violence between mother and Ezequiel Sr. The seven children were detained from their fathers in July, and from mother in September 2017. In November 2017, the court sustained allegations of the petition pursuant to section 300, subdivision (b) and ordered the children removed from the parents.
Ezequiel was born in December 2017, and DCFS filed a dependency petition on his behalf in February 2018. In February 2018, the court detained Ezequiel from Ezequiel Sr. and ordered him placed with mother under DCFS supervision.
The juvenile court returned Unique and Dominic to mother's custody in 2018. However, in March 2019, the children were detained again after DCFS received a report of further domestic violence between mother and Ezequiel Sr. Dominic and Ezequiel Jr. were placed with maternal uncle, Malik B.; later that year, Unique also was placed with Malik.
In December 2020, the juvenile court terminated mother's and Ezequiel Sr.’s reunification services with respect to Unique, Dominic, and Ezequiel and set a section 366.26 hearing. On August 17, 2021, the juvenile court terminated parental rights as to Unique, Dominic, and Ezequiel. Mother timely appealed.
Mother and Ezequiel Sr. were present at the July 2017 hearing concerning the detention of the older children, including Unique and Dominic. Both parents stated on the record that they did not have Indian ancestry as far as they knew, and mother filled out a Parental Notification of Indian Status (ICWA-020) form, in which she denied Indian ancestry. Randy was not present at the hearing, but the court stated there had been a finding in a prior DCFS case that he did not have Indian ancestry.3 The court therefore found that it had no reason to know the children were Indian children.
Randy appeared at an August 21, 2017 hearing. He denied Indian ancestry on an ICWA-020 form and orally on the record.
At the February 23, 2018 hearing regarding Ezequiel's detention, mother again stated that she did not have Indian ancestry, and the court found that it did not have reason to know that Ezequiel was an Indian child.
During subsequent contacts between mother and DCFS, mother consistently denied that she had any Indian ancestry. DCFS attempted to make further inquiry of Ezequiel Sr. and Randy Sr., but it was not able to make contact with either father.
Throughout the proceedings, DCFS was given contact information for and/or had contact with a variety of extended family members, including paternal grandmother Cynthia G., paternal aunt Kimberly G., paternal aunt Sara R., paternal cousin Sandy T., paternal uncle Christopher C. (Randy C.’s brother), paternal aunt Marina T., a paternal grandmother (Ezequiel Sr.’s mother), maternal cousin Manual P., maternal cousin Ralph P., and maternal uncle Malik. There is no indication in the record that an ICWA inquiry was made of any of these extended family members.
Mother contends DCFS failed to make an adequate ICWA inquiry because it did not inquire of maternal uncle Malik, maternal cousin Ralph, and paternal aunt Kimberly. Mother urges this failure to make an adequate ICWA inquiry requires a conditional reversal with directions. For reasons not apparent from the record, mother does not allege that DCFS erred by failing to make ICWA inquiries of any of the other extended family members identified above (or to any other extended family members whose names may appear in the record but who are not specifically identified in this opinion), or that DCFS's failure to do so supports a conditional reversal.
DCFS contends that because the parents denied Indian ancestry, the juvenile court properly found that ICWA did not apply. Alternatively, DCFS contends that any failure to contact extended family members was harmless error because the parents’ statements were sufficiently reliable to support the juvenile court's ICWA finding.
Congress passed ICWA in 1978 ( In re Isaiah W. (2016) 1 Cal.5th 1, 8, 203 Cal.Rptr.3d 633, 373 P.3d 444 ( Isaiah W. ); see 25 U.S.C. § 1902.)
California adopted conforming legislation in 2006 (Sen. Bill No. 678 (2005–2006 Reg. Sess.)), which was amended effective January 1, 2019 (Assem. Bill No. 3176 (2017–2018 Reg. Sess.)). As currently written, the law provides that the court and county welfare department have an affirmative and continuing duty to inquire whether a child for whom a petition may be filed is or may be an "Indian child" ( § 224.2, subd. (a) )—that is, an "unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe" ( 25 U.S.C. § 1903(4) ; § 224.1, subd. (a) [adopting federal definition]).
The state law duty to make an ICWA inquiry "begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child."
( § 224.2, subd. (a).) If a child is removed from parental custody, the county welfare department ( § 224.2, subd. (b).) Further, at the first...
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