In re D.M.
Filed 9/18/12 In re D.M. CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re D.M., Jr., et al.,
Persons
Coming Under the Juvenile Court Law.
B239632
(Los Angeles County
Super. Ct. No. CK65341)
LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
D.M.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Timothy Saito, Judge.
Remanded with directions.
Frank H. Free, under appointment by
the Court of Appeal, for Defendant and Appellant.
John F. Krattli, Acting County
Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec,
Deputy County Counsel, for Plaintiff and Respondent.
Father D.M. (Father) appeals from the
juvenile court’s order terminating his parental rights to his son D. and
daughter L. pursuant to Welfare and Institutions Code section 366.26.[1] The children’s mother (Mother) is not a party
to this appeal. Father’s sole contention
is that the court failed to make an adequate inquiry into whether the Indian Child Welfare Act (ICWA) applies
to him. We conclude that the court
erred, and that because Father has made an offer of proof of Indian heritage on
appeal, the error requires limited remand to make proper inquiry and comply
with the notice of provisions of ICWA if Indian heritage is indicated.
BACKGROUND
Because the sole issue relates to the
adequacy of the court’s ICWA inquiry, we only briefly summarize the proceedings
leading to termination of parental rights.
In October 2006 the Los Angeles
Department of Children (DCFS) filed a section 300 petition regarding D. and L.
alleging, among other things. that Mother and Father had a history of domestic
violence that put the children at risk.
The children were detained, and in January 2007 the court sustained the
petition as amended, finding that the children were at risk: (1) under section 300, subdivision (b)(1),
based Mother and Father’s history of domestic
violence, including an incident in which Father shot live ammunition into a
home in which the children were present; and (2) under section 300, subdivision
(b)(2), based on Mother exposing the children to violent altercations with a
male companion.
The court placed the children with
Mother and, as relevant to Father, ordered reunification services, domestic
violence counseling, parent education and
monitored visits. The case remained
pending for more than five years.
In August 2007, following Mother’s
inconsistent residency and her allowing Father unmonitored visits with the
children, the court sustained a section 387 petition alleging that for a month
Mother failed to make the children available to DCFS for visits. The court terminated placement with
Mother. Father continued to receive reunification services until they were
terminated in May 2008. Although his
visitation was consistent, he failed to comply with the case plan. Thereafter, through April 2009 Father had at
best sporadic visits with the children.
As of November 2008, Father was
incarcerated in Nevada.
By September 2009 he was out of custody, but because of his Nevada parole, he had difficulty
maintaining regular visitation with the children. Although Father later had more regular
visits, by December 2010 he was again incarcerated and his visits ceased until
March 2011, when he was released.
Thereafter, again his visits were sporadic.
In August 2011 Father filed a section
388 petition seeking to reinstate reunification services and have unmonitored
visits with the children. He reported
that he was enrolled in parenting and anger management classes and was employed
and had a suitable home in Las Vegas.
Ultimately, the hearing on Father’s petition and the section 366.26
hearing were held in proceedings in November and December 2011 and January
2012. Father was present with counsel
(Mother was absent), called witnesses, and testified. The court denied Father’s petition and
terminated his and Mother’s parental rights, finding (among other things) that
inconsistent visitation and lack of visits led to the conclusion that the benefit
to the children of maintaining a parent-child relationship with Father and
Mother did not outweigh the benefit of adoption. Father timely filed a notice of appeal from
the orders denying his section 388 petition and terminating his parental
rights.
DISCUSSION
Father contends that the juvenile
court failed to adequately inquire into his possible Indian heritage under
ICWA, in that the court did not obtain the required ICWA-020 form from him
(though it did from Mother, who denied Indian heritage), and did not make any
oral inquiry of him in court. DCFS does
not dispute that the court erred, but argues that the error is not
prejudicial. Reluctantly, despite the
delay that will be caused in final resolution of the case, we cannot say the
court’s error is harmless.
ICWA provides that when a state court
“knows or has reason to know that an Indian child is involved” in a juvenile
dependency proceeding, the court must give the child’s tribe notice of the
pending proceedings and its right to intervene.
(25 U.S.C. § 1912(a); In re
S.B. (2005) 130 Cal.App.4th 1148, 1157.)
California law imposes a higher burden.
Section 224.3, subdivision (a) imposes “an affirmative and continuing
duty to inquire” whether a child involved in a dependency proceeding “may be an
Indian child.” California Rules of
Court, rule 5.481(a) also imposes “an affirmative and continuing duty [on the
court and other officials] to inquire whether a child is or may be an Indian
child.” In addition, rule 5.481(a)(2)
requires the court “[a]t the first appearance by a parent” to order the parent
to complete Form ICWA-020. On this form,
the parent must declare under penalty of perjury whether the child or the
parent has Indian ancestry and whether the child or the parent is a member of
an Indian tribe or could be eligible for membership in an Indian tribe.
A court’s failure to inquire about
Indian heritage is subject to harmless error analysis. A limited reversal for compliance is not
required if it is not reasonably probable that a different result would have
been reached in the absence of the error.
(In re A.B. (2008) 164
Cal.App.4th 832, 838; In re H.B. (2008)
161 Cal.App.4th 115, 120; cf. In re J.N. (2006)
138 Cal.App.4th 450, 461.) But it has
been held that where the record fails to show Indian heritage, yet on appeal a
parent makes an offer of proof that he or she has Indian heritage, the juvenile
court’s error in not complying with its duty of inquiry is prejudicial and
requires a limited remand. (
1359, 1389-1390 [“Given the offer of proof and assertions by [mother] of her
Indian heritage, . . . without reversal of the judgment, we must make a limited
remand with directions to the trial court to effectuate proper inquiry and
comply with the notice provisions of the ICWA if Indian heritage is
indicated”]; see In re Rebecca R. (2006)
143 Cal.App.4th 1426, 1431 [no miscarriage of justice shown by lack of ICWA
inquiry in the absence of parent’s showing “in . . . briefing or otherwise”
some “offer of proof or other affirmative representation that, had he been
asked, he would have been able to proffer some Indian connection sufficient to
invoke the ICWA”].)
Here, the record does not show that
the court had Father complete the ICWA-020 or that the court orally inquired of
him whether he had Indian ancestry. As
DCFS points out in its harmless error argument, the following facts are
true. First, in a
Jurisdiction/Disposition Report dated September 4, 2007, under the heading
“INDIAN CHILD WELFARE ACT STATUS,” DCFS reported that on August 29, 2007 the
social worker “interviewed the father in regards to American Indian ancestry. .
. . [T]he father stated that there was
no Indian heritage in his family.”
Second, Father did not challenge the accuracy of this report or the
court’s finding in its December 4, 2006 minute order that ICWA did not apply to
Father. Third, Father was present with
counsel at the December 5, 2006 proceeding at which the court questioned Mother
about whether she had Indian heritage.
Mother explained that she had thought that her grandmother was of
American Indian heritage, but then the grandmother told her that she was not,
but rather was of West Indian and French heritage. The court made the finding that ICWA did not
apply to Mother. Despite being present
for this discussion concerning Mother, neither Father nor his counsel spoke up
to assert that Father had American Indian heritage or to raise any issue about
inquiry of Father about his heritage.
Fourth, from August 29, 2007 forward through the termination of parental
rights in January 2012, the DCFS reports consistently stated that ICWA did not
apply. At no time in the lower court did
Father challenge that assertion.
However, in connection with his reply
brief on appeal, Father filed a motion to take additional evidence pursuant to
Code of Civil Procedure section 909. The
additional evidence is an unsworn letter dated June 19, 2012 that Father wrote
to appellate counsel in which he states that his paternal great grandmother is
“100% Cherokee Indian” and that his brother “lives on the reservation in
Oklahoma.” While we will not grant
Father’s motion to take additional evidence, the offer of proof made in his
letter requires that we make a limited remand.
“Code of Civil Procedure section 909
allows appellate courts to ‘accept evidence in dependency cases “to expedite
just and final resolution for the benefit of the children involved.’” (In re
Carrie M. (2001) 90 Cal.App.4th 530, 535.)
That right, however, should be exercised sparingly. (Zeth
S. [2003] 31 Cal.4th [396,] 405.)
‘“Absent exceptional circumstances, no such findings [based on the
receipt of evidence outside the record on appeal pursuant to section 909]
should be made. [Citation.]”’ (
A.B., supra, 164 Cal.App.4th at p. 843.)
Here, no exceptional circumstances are
presented so as to justify making
Father’s letter part of the record on appeal. It is for the trial court, not this court, to
make appropriate inquiry, and making Father’s letter a formal part of the
record on appeal would serve no purpose, especially considering that it raises
a conflict in the evidence – the DCFS report of September 4, 2007 states that
Father claimed no Indian heritage, but now Father claims such heritage. (See In
re Noreen G., supra, 181 Cal.App.4th at p. 1388 [appellate court declined
to take additional evidence regarding Indian heritage where parent and DCFS
proffered conflicting evidence].)
However, although we deny the motion to take additional evidence on
appeal, “[g]iven the offer of proof and assertions by [Father] of [his] Indian
heritage, . . . without reversal of the judgment we must make a limited remand
with directions to the trial court to effectuate proper inquiry and comply with
the notice provisions of the ICWA if Indian heritage is indicated.” (Id. at
p. 1389-1390; cf. In re H.B., supra,
161 Cal.App.4th at p. 122 [“Absent any affirmative representation of Indian
ancestry, either in the dependency court or on appeal, [parent’s] statement to
the social worker denying such ancestry and her failure to indicate any of her
children may have Indian ancestry throughout the Department’s lengthy
involvement with this family fully support the conclusion any error by the
juvenile court was harmless”].) Given
the delay already incurred in this case, we reach this conclusion reluctantly,
for it is difficult to see how such delay will benefit the children. However, given Father’s assertion of Indian heritage on appeal, we
are compelled to grant a limited remand.
We deny Father’s motion to
take additional evidence on appeal. We
decline to reverse the judgment that terminated parental rights. Instead, we order a limited remand with
directions to the trial court to effectuate proper inquiry, and to comply with
the notice provisions of the ICWA if Indian heritage is indicated. If, after proper inquiry and notice a tribe
determines the minors are Indian children, the parents may petition the court
to invalidate the termination of parental rights upon a showing that such
action violated the provisions of ICWA.
If the minors are not found to be Indian children, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
undesignated section references are to the Welfare and Institutions Code.
