In re A.E. CA4/2

Opinion

Filed 8/14/23 In re A.E. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.E., et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E080566

Plaintiff and Respondent, (Super.Ct.Nos. J288458, J288459, J288460) v. OPINION K.D.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Affirmed.

Vincent Uberti and Michele A. Cella, under appointment by the Court of Appeal,

for Defendant and Appellant.

Tom Bunton, County Counsel, Joseph R. Barrell, and Jessica L. Morgan, Deputy

County Counsel for Plaintiff and Respondent.

1 In this appeal following the termination of parental rights, defendant and appellant

K.D. (mother) contends only that the county welfare department failed to comply with

California law implementing the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et 1 seq.; ICWA). Relying on Welfare and Institutions Code, section 224.2, subdivision (b),

she argues that the department failed to discharge its duty of initial inquiry because it did 2 not ask several extended family members whether the children have any Indian ancestry.

The department, relying on In re Robert F. (2023) 90 Cal.App.5th 492, review granted

July 26, 2023, S279743 (Robert F.), argues that it had no duty to ask extended family

members about possible Indian ancestry. In the alternative, the department argues that

any error was harmless under Benjamin M., supra, 70 Cal.App.5th at p. 735.

Pending further instruction from our Supreme Court, we reject the department’s

arguments based on Robert F. because we disagree with that case’s interpretation of the

relevant statutes. We find the analysis of In re Delila D. (2023) 93 Cal.App.5th 953,

(Delila D.) more persuasive. Nevertheless, reversal is not warranted here, as the record

does not indicate that there was “readily obtainable information that was likely to bear

meaningfully upon whether the child is an Indian child.” (Benjamin M., supra, 70

Cal.App.5th at p. 744.) On that basis, we affirm the order terminating parental rights.

1 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).) 2 Undesignated statutory references are to the Welfare and Institutions Code.

2 FACTS

On March 5, 2021, plaintiff and respondent San Bernardino County Department of

Children and Family Services (CFS) obtained a protective custody warrant to temporarily

detain the children A.E. (born Jan. 2021), L.E. (born April 2017), and B.M. (born

October 2012) from their parents. (See § 340, subd. (b) [allowing protective custody

warrant to issue before a section 300 petition has been filed].) CFS filed juvenile

dependency petitions four days later, alleging the children came within section 300,

subdivisions (b) (failure to protect) and (j) (abuse of a sibling).

The children’s presumed father, S.E., is not party to this appeal, though he

participated in the dependency proceedings. According to mother, S.E. is not the

biological father of B.M.; CFS was unable to locate the biological father, despite its

attempts. Also, an older half-sibling of A.E., L.E., and B.M. is not at issue here; she was

placed with her father, and her case was closed with custody orders.

The juvenile court sustained the section 300 petitions and declared A.E., L.E., and

B.M. dependents of the court. The court found that ICWA did not apply.

During the dependency, mother and father repeatedly denied they had any Indian

ancestry. According to mother, B.M.’s biological father is from India and has no Native

American ancestry. CFS also asked several other family members about Indian ancestry,

including two maternal aunts, a maternal uncle, the maternal grandparents, the paternal

grandmother, a paternal great aunt, and a paternal aunt, and they all denied any Indian

ancestry. The paternal grandfather has been out of contact with paternal grandmother and

3 father since father was a small child. According to paternal grandmother, both father and

paternal grandfather were born in Panama.

The record mentions two extended relatives that CFS did not contact. A paternal

uncle, with whom father had lived for a short time, is listed as part of father’s support

network, and a third maternal aunt, with whom mother was not “close” is noted. The

parties dispute whether these two extended family members were readily available to be

asked about Indian ancestry.

Reunification efforts failed. On November 29, 2022, the juvenile court terminated

parental rights and ordered adoption as the children’s permanent plans.

DISCUSSION

Relying on Robert F., CFS contends that it had no duty to contact the paternal

uncle and maternal aunt that mother identified as omitted from CFS’s ICWA inquiry.

There is no dispute that this conclusion would follow from Robert F.’s reasoning. We

are not persuaded, however, that its reasoning is correct.

Under California law, the juvenile court and county child welfare department have

“an affirmative and continuing duty to inquire” whether a child subject to a section 300

petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th

558, 566 (D.F.).) “This continuing duty can be divided into three phases: the initial duty

to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.”

(D.F., at p. 566.) Only the first of these phases is at issue in this appeal.

4 In every dependency proceeding, the department has an initial duty to inquire into

whether a child is an Indian child. (In re J.S. (2021) 62 Cal.App.5th 678, 686.) “The

department’s ‘duty to inquire 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.’” (Robert F., supra, 90 Cal.App.5th at p. 499; see

§ 224, subd. (a); Cal. Rules of Court, rule 5.481, subd. (a) (rule 5.481).) “In addition,

‘[f]ederal regulations require state courts to ask each participant “at the commencement”

of a child custody proceeding “whether the participant knows or has reason to know that

the child is an Indian child.”’” (Robert F., at pp. 499-500; see 25 C.F.R. § 23.107(a)

(2022).) As well, state law requires the court to inquire “‘“[a]t the first appearance in

court of each party”’” by asking “‘“each participant present in the hearing whether the

participant knows or has reason to know that the child is an Indian child.” (§ 224.2, subd.

(c).)’” (Robert F., at p. 500.)

“[U]nder subdivision (b) of section 224.2, ‘[i]f a child is placed into the temporary

custody of a county welfare department pursuant to Section 306,’ the department’s

obligation includes asking the ‘extended family members’ about the child’s Indian 3 status.” (Robert F., supra, 90 Cal.App.5th p. 500.) This language was added by

Assembly Bill No. 3176 (2017-2018 Reg. Sess.), which made various ICWA related

3 Section 224.2, subdivision (b), also applies when a child is placed in the temporary custody of a county probation department pursuant to section 307. But then it is the county probation department’s duty of inquiry, and not the county welfare department’s. (See § 224.2, subd. (b).)

5 changes to the Welfare and Institutions Code, effective January 1, 2019. (Stats. 2018, ch.

833 (A.B. 3176), § 5.) Similar language appears in rule 5.481 of the California Rules of

Court, which the Judicial Council revised to implement section 224.2, subdivision (b):

“The party seeking a foster-care placement, . . . termination of parental rights,

preadoptive placement, or adoption must ask the child, if the child is old enough, and the

parents, Indian custodian, or legal guardians, extended family members, others who have

an interest in the child, and where applicable the party reporting child abuse or neglect,

whether the child is or may be an Indian child . . . .” (rule 5.481 (italics added).)

Following the concurring opinion in In re Adrian L. (2022) 86 Cal.App.5th 342,

357-358 (Adrian L.), Robert F. equates the phrase “‘placed into the temporary custody of

a county welfare department pursuant to Section 306’” with exercise of the department’s

authority under section 306, subdivision (a)(2) “to take children into temporary custody

‘without a warrant’ in certain circumstances.” (Robert F., supra, 90 Cal.App.5th at p.

497; see Adrian L., supra, 86 Cal.App.5th at pp. 357-358 (conc. opn. of Kelley, J.).)

According to Robert F. and the Adrian L. concurrence, “[a] department that takes a child

into protective custody pursuant to a warrant does so under section 340, not section 306.”

(Robert F., at p. 497.) After briefing in this case was completed, In re Ja.O. (2023) 91

Cal.App.5th 672, 680-681, review granted July 26, 2023, S280572 (Ja.O.), adopted the

same reading of section 224.2, subdivision (b).

Recently, however, Delila D. declined to follow Robert F., finding its holding

“contrary to both the letter and spirit of [A.B. 3176].” (Delila D., supra, 93 Cal.App.5th

6 at p. 962.) Instead, Delila D. concluded “there is only one duty of initial inquiry, and that

duty encompasses available extended family members no matter how the child is initially

removed from home.” (Ibid.) Under Delila D.’s analysis of section 224.2, subdivisions

(a) and (b), together with rule 5.481, social workers have “a duty of initial inquiry that

begins at first contact, lasts throughout the proceeding, and includes ‘but is not limited to’

the reporting party, the child’s parents and extended family members, and others who

have an interest in the child, as those individuals become available during the case.” (Id.

at p. 966.)

This conflict in authority is currently under review by our Supreme Court, with In

re Ja.O. as the lead case. We find Delila D.’s thoughtful discussion of the statutory

language and legislative history persuasive, and adopt its reasoning and conclusions

pending our Supreme Court’s resolution of the conflict.

Applying Delila D. to this case, CFS’s initial duty of inquiry—including the duty

to inquire of extended family members who become available—was triggered when a

social worker received the children from the peace officer who executed the detention

warrant and CFS then maintained the children in temporary custody, as authorized by

section 306, subdivision (a)(1). We decline to follow the reasoning of Ja.O., Robert F. or

the Adrian L. concurrence that would lead to a different result.

Our next questions, then, are whether CFS satisfied that expanded duty of inquiry

or, in the alternative, if any error in doing so was harmless. We need only answer the

second of these questions, as we find any arguable error harmless.

7 There are multiple approaches to assessing harmlessness in the ICWA context, and

the issue is currently under review by our Supreme Court. (See In re Dezi C. (2022) 79

Cal.App.5th 769, 777-782, review granted Sept. 21, 2022, S275578).) We will apply the

approach we described in Benjamin M., supra, 70 Cal.App.5th at p. 739. That is, we will

find prejudice when an agency “fail[s] to investigate readily obtainable information

tending to shed meaningful light on whether a child is an Indian child.” (Ibid.) Even

where the agency has erred, however, it may be that, “considering the entire record, it

was obvious that additional information would not have been meaningful to the inquiry.”

(Id. at p. 743) “This might occur where the evidence already uncovered in the initial

inquiry was sufficient for a reliable determination.” (Ibid.)

CFS did not contact two extended relatives of the children, a paternal uncle and a

maternal aunt. The parties dispute whether CFS reasonably could have contacted those

relatives, such that any information they may have should be considered readily

obtainable. CFS notes that, although father lived briefly with the paternal uncle, and the

paternal uncle was listed as part of father’s support system, the record does not reflect a

current address or telephone for the paternal uncle. The maternal aunt is mentioned by

mother as the only one of her siblings with whom she is not “close,” and whom she does

not see often. Again, the record does not reflect that a current address or telephone for

that maternal aunt was available. But mother notes that the record also does not

affirmatively reflect that CFS made any effort to obtain the contact information of either

of these relatives.

8 Assuming that CFS readily could have and should have obtained these relatives’

contact information, we must determine whether there was any probability of obtaining

meaningful information from them. (Benjamin M., supra, 70 Cal.App.5th at p. 743.) In

our view, there was not. CFS asked an array of relatives on both the maternal and

paternal side of the family about Indian ancestry. Mother, two maternal aunts, a maternal

uncle, and both maternal grandparents all denied any Indian ancestry. Father, a paternal

aunt, paternal grandmother, and a paternal great aunt all denied any Indian ancestry.

Paternal grandfather was unavailable to interview, but information about him from

paternal grandmother—that he was born in Panama, like father—tends to confirm those

denials of Indian ancestry by the paternal relatives.

CFS’s investigation did not quite exclude the possibility of Indian ancestry, for

example, by uncovering information that affirmatively shows the children were

disqualified from tribal membership. (Cf. In re J.M. (2012) 206 Cal.App.4th 375, 382

[tribe’s membership criteria showed children disqualified from membership “irrespective

of their great-great grandparents’ possible membership in the tribe”].) Nevertheless, the

department made a substantial inquiry here, covering quite a few relatives from both

sides of the family. Taken in the context of the entire record, the substantial inquiry that

the department conducted was sufficient to make it obvious that the two relatives not

contacted had no meaningful information to provide. It is certainly plausible that a parent

may not know of his or her own ancestry, while a sibling of that parent is better informed.

(See Benjamin M., supra, 70 Cal.App.5th at pp. 744-745 [finding prejudicial error in

9 failure to inquire of father’s brother].) The absence of inquiry of a single relative could,

in some circumstances, be necessary to shed meaningful light on whether a child is an

Indian child. Absent unusual circumstances, however, it is not plausible that one sibling

of a parent (the child’s aunt or uncle) would have meaningful information about Indian

ancestry that multiple other siblings, as well as their parents (the child’s grandparents)

and other relatives from that older generation (the child’s great aunts and uncles) do not

have. (See In re Rylei S. (2022) 81 Cal.App.5th 309, 325 [discussing hypothetical where

agency “interviews the maternal grandfather; several, but not all of his four siblings, and

the maternal grandfather’s surviving parent, none of whom indicates the family has any

Indian ancestry,” and concluding that the “failure to interview the grandfather’s

remaining siblings would certainly be harmless absent some additional unusual

circumstance”].)

We find any arguable error by CFS in failing to contact, or attempt to contact,

extended relatives of the children was harmless under the standard in Benjamin M.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J.

We concur:

RAMIREZ P. J. McKINSTER J.