San Diego Cnty. Health & Human Servs. Agency v. J.V. (In re Y.M.)

• Docket Number: D080349
• Decision Date: 02 September 2022
• Citation: 82 Cal.App.5th 901,299 Cal.Rptr.3d 118
• Parties: IN RE Y.M., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. J.V., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

82 Cal.App.5th 901

299 Cal.Rptr.3d 118

IN RE Y.M., a Person Coming Under the Juvenile Court Law.

San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v.J.V., Defendant and Appellant.

D080349

Court of Appeal, Fourth District, Division 1, California.

Filed September 2, 2022

Suzanne Davidson, Glendale, under appointment by the Court of Appeal, for Defendant and Appellant.

Claudia Silva, Acting County Counsel, San Diego, Caitlin E. Rae, Chief Deputy, Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.

McCONNELL, P. J.

J.V. (Father) appeals from a Welfare and Institutions Code section 366.26¹ order terminating his parental rights to his now three-year-old daughter, Y.M. His sole contention is that the San Diego County Health and Human Services Agency (the Agency) did not comply with its initial duty to inquire regarding Y.M.'s possible Indian ancestry under section 224.2, subdivision (b), which implements in part the federal Indian Child Welfare Act ( 25 U.S.C. § 1901 et seq. ) (ICWA). The Agency concedes that it did not comply with its section 224.2, subdivision (b) duty of initial inquiry, but argues its error was harmless. In this opinion, we discuss the various standards of prejudice that have been applied by appellate courts in such cases and adopt the standard set forth in In re Benjamin M. (2021) 70 Cal.App.5th 735, 285 Cal.Rptr.3d 682 ( Benjamin M. ). Applying that standard to the record in this case, we conclude the Agency's section 224.2, subdivision (b) initial inquiry error was not prejudicial. Accordingly, we affirm the section 366.26 order.

FACTUAL AND PROCEDURAL BACKGROUND²

In October 2019, the Agency filed a section 300, subdivision (b)(1) dependency petition for Y.M., alleging that she was at substantial risk of serious physical harm due to drug abuse by her mother, K.M. (Mother), and domestic violence between Mother and Father in Y.M.'s presence. In its detention hearing report, the Agency stated that Mother had denied any Indian ancestry and recommended that the juvenile court find that ICWA did not apply to Y.M.'s case. At the detention hearing, Mother's counsel represented that Mother did not claim any Indian ancestry. Mother also filed a form (Form ICWA-020), declaring that she had no known Indian ancestry. The juvenile court found that the Agency had made reasonable inquiry regarding whether Y.M. was, or may be, an Indian child and then found, without prejudice, that ICWA did not apply to her case. The court found that the Agency made a prima facie showing in support of its petition and detained Y.M. in the home of a nonrelative extended family member (NREFM).

In its November jurisdiction and disposition report, the Agency stated that Mother had informed its social worker that she had no Indian ancestry.³ The Agency had been unable to locate and inquire of Father regarding any Indian ancestry. However, in its April 2020 addendum report, the Agency stated that its social worker had met with Father in March and he had denied any Indian ancestry.

At the contested jurisdiction and disposition hearing in July 2020, the juvenile court found the allegations in the petition to be true, declared Y.M. to be a dependent of the court, and placed her with the NREFM. Although Mother, Father, and the paternal grandmother appeared telephonically at the hearing, there is no indication that the court asked them about any Indian ancestry.

In its six-month review hearing report in January 2021, the Agency stated that Father lived with the paternal grandmother and a paternal uncle. Also, the Agency reported that the paternal grandfather had requested placement of Y.M. and was participating in its resource family approval (RFA) process.

In its addendum report in May, the Agency stated that the paternal grandfather was being assessed for placement of Y.M. and was participating in supervised visits with her. In its June addendum report, the Agency stated that the paternal grandfather and his wife had not responded to its requests for information in the RFA approval process and that their placement application would be closed if they did not respond within 30 days.

At the contested combined six-month and 12-month review hearing conducted on two days in June and July, the paternal grandmother testified that she wanted to visit with Y.M., but believed she was not allowed to do so. She had asked Father to speak with the Agency social worker about arranging visits for her.⁴ The juvenile court terminated reunification services for Mother and Father and set a section 366.26 hearing to select and implement a permanent plan for Y.M.

In its initial section 366.36 report in November, the Agency noted that the juvenile court had previously found that ICWA did not apply to Y.M.'s case at the October 2019 detention hearing. The Agency recommended that the court again find that ICWA did not apply to Y.M.'s case.

At the section 366.26 hearing on March 9, 2022, the juvenile court adopted the Agency's recommended findings. In particular, the court found, without prejudice, that ICWA did not apply to Y.M.'s case. The court terminated the parental rights of Mother and Father, selected a permanent plan of adoption for Y.M., and designated her current caregivers as her prospective adoptive parents. The court then set a postpermanency planning hearing for September 7. Father timely filed a notice of appeal, challenging the March 9 order.

DISCUSSION

IICWA Inquiry Duties

Congress enacted ICWA to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement. ( In re Isaiah W. (2016) 1 Cal.5th 1, 7, 203 Cal.Rptr.3d 633, 373 P.3d 444 ( Isaiah W. ).) ICWA provides: "In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe" of the pending proceedings and their right to intervene.

( 25 U.S.C. § 1912(a) ; see also, Isaiah W. , at p. 8, 203 Cal.Rptr.3d 633, 373 P.3d 444.) California law also requires such notice. ( § 224.3, subd. (a) ["If a court [or] a social worker ... knows or has reason to know ... that an Indian child is involved, notice pursuant to [ICWA] shall be provided for hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement ...."].) Both ICWA and California law define an "Indian child" as a child who is either a member of an Indian tribe or 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, subds. (a), (b).)

Sections 224.2 and 224.3 set forth California's current ICWA inquiry and notice requirements for juvenile dependency cases. Under sections 224.2 and 224.3, the Agency and the juvenile court are generally obligated to: (1) conduct an initial inquiry regarding whether there is a reason to believe the child is an Indian child; (2) if there is, then further inquire whether there is a reason to know the child is an Indian child; and (3) if there is, then provide ICWA notice to allow the Indian tribe to make a determination regarding the child's tribal membership. (See In re D.S. (2020) 46 Cal.App.5th 1041, 1048-1052, 259 Cal.Rptr.3d 903 ; In re Austin J. (2020) 47 Cal.App.5th 870, 882-885, 261 Cal.Rptr.3d 297.)

Section 224.2, subdivision (a) imposes on the juvenile court and the Agency "an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 ... has been filed, is or may be an Indian child[.]" (Italics added.) Section 224.2, subdivision (b) establishes the Agency's duty of initial inquiry, providing:

"If a child is placed into the temporary custody of [the Agency] ..., [the Agency] ... has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking 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 and where the child, the parents, or Indian custodian is domiciled."⁵ (Italics added.)

Section 224.2, subdivision (e) imposes a duty of further inquiry, providing:

"If the court [or] social worker ... has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is a reason to know that the child is an Indian child, the court [or] social worker ... shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable."

Before the juvenile court can find that ICWA does not apply to a child's case, it must make a finding that "due diligence as required in this section [has] been conducted." ( § 224.2, subd. (i)(2).)

We review a juvenile court's findings that the Agency has made reasonable inquiries regarding a child's possible Indian ancestry under ICWA and that the Agency has complied with ICWA's notice requirements, or that no such notice is required, for substantial evidence. ( In re Charlotte V. (2016) 6 Cal.App.5th 51, 57, 210 Cal.Rptr.3d 650.)

IINoncompliance with Section 224.2, Subdivision (b) Duty of Initial Inquiry

Father contends, and the Agency agrees, that substantial evidence does not support the juvenile court's finding that ICWA does not apply to Y.M.'s case and, in particular, that substantial evidence does not support its implied finding under section 224.2, subdivision (i)(2) that Agency complied with its duty of initial inquiry under section 224.2, subdivision (b). We agree.

Father asserts, and the Agency acknowledges, that the Agency's initial ICWA inquiry was deficient because it failed to ask Y.M.'s extended family members, including her...