Opinion
B309011
07-20-2021
In re J.W., a Person Coming Under the Juvenile Court Law LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.W. et al., Defendants and Appellants.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant J.W. Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant L.M. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles Court No. 20CCJP04741A, D. Zeke Zeidler, Judge. Conditionally affirmed and remanded with directions.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant J.W.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant L.M.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
J.W. and L.M., father and mother of now nearly one-year-old J.W., appeal from the juvenile court's jurisdiction and disposition orders contending that the juvenile court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with their duties under the federal Indian Child Welfare Act (ICWA) and related state statutes and court rules. We conditionally affirm the court's jurisdiction and disposition orders but remand for the limited purpose of ensuring compliance with ICWA's inquiry and notice requirements.
Because the sole issue father and mother raise on appeal concerns the juvenile court's and the Department's compliance with ICWA and related state statutes and court rules, we limit our recitation of facts to those relevant to that compliance issue except as is necessary for context.
On October 30, 2020, the juvenile court sustained an amended petition filed by the Department pursuant to Welfare and Institutions Code section 300.
All further statutory references are to the Welfare and Institutions Code.
On August 6, 2020, father “confirmed” to the Department that he has Native American ancestry and that he is “linked” with the Blackfoot and Cherokee tribes. He planned to register with the tribes.
“[T]here is frequently confusion between the Blackfeet tribe, which is federally recognized, and the related Blackfoot tribe, which is found in Canada and thus not entitled to notice of dependency proceedings. When Blackfoot heritage is claimed, part of the [Department]'s duty of inquiry is to clarify whether the parent is actually claiming Blackfoot or Blackfeet heritage so that it can discharge its additional duty to notice the relevant tribes.” (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
On September 14, 2020, father filed a Parental Notification of Indian Status stating he may have Indian ancestry with the Cherokee tribe. At the September 14, 2020, detention hearing, the juvenile court observed that father had indicated that he may be of “the Cherokee nation.” The court asked father if his family had a tribal number or was enrolled in a tribe. Father responded, “Not my immediate family, but I have family that has investigated and came back Blackfoot-Cherokee.”
The juvenile court asked father if he knew the state where his Indian relatives were born or in which they lived. Father responded, “Louisiana and Cherokee and the aunt is Canadian.” Through his attorney, father stated that he did not have a living relative who knew about his Native American heritage. His aunt, who knew, had passed away. The court stated, “Okay. Then we will have to have the Department at least notify the Bureau of Indian Affairs and the Secretary of the Interior of possible Cherokee eligibility.” It ordered the Department to investigate father's claim of Indian ancestry.
On September 18, 2020, mother filed a Parental Notification of Indian Status stating that she had no Indian ancestry. At the September 18, 2020, arraignment hearing, the juvenile court found that it did not have reason to know that ICWA applied to mother. It ordered the Department to continue its ICWA investigation as to father, and to prepare by September 25, 2020, a Last Minute Information for the Court in which it addressed the results of its ICWA investigation and the notices to the three federally recognized Cherokee tribes and the Blackfeet tribe.
At the September 22, 2020, trial setting hearing, the juvenile court ordered the Department to address its ICWA investigation and notices in its jurisdiction report.
In an Interim Review Report, filed on October 6, 2020, the Department stated that ICWA did or may apply. At the October 9, 2020, receipt of report hearing, the juvenile court ordered the Department to provide a Last Minute Information for the Court at least two days prior to the October 20, 2020, hearing that included the ICWA return receipts, responses from the tribes, and a description of the Department's efforts to contact the outstanding tribes.
In its Jurisdiction/Disposition Report, filed on October 7, 2020, the Department reported on mother's and father's ICWA statuses. As to mother, on September 30, 2020, maternal aunt A.M. informed a dependency investigator that in the past week her family discovered that they may have Puerto Rican Taino Tribe heritage. Maternal aunt provided family members' biographical information. The dependency investigator noted that the Taino tribe was not federally recognized.
As to father, on September 29, 2020, paternal aunt L.W. told the dependency investigator that her family may have Cherokee and Blackfeet heritage, but she did not have any “information.” She stated that paternal uncle M.U. had “all of the information” and gave the dependency investigator his telephone number. Paternal aunt L.W. provided paternal grandmother's name, date and place of birth, and date and place of death; and paternal grandfather's name and place and date of birth. She stated that paternal grandfather suffered from dementia. She did not know paternal great-grandmother's date of birth or death or, apparently, her name. She provided paternal great-grandfather's name, but did not know his date of birth or death.
On September 29, October 1, and October 5, 2020, the dependency investigator tried, unsuccessfully, to contact paternal uncle M.U. by telephone. Each time she left a message, but he did not return her calls. The dependency investigator asked paternal aunt L.W. to give paternal uncle M.C. the dependency investigator's contact information and she agreed. The dependency investigator stated that the Department would continue to attempt to interview paternal uncle about the child's possible Indian ancestry.
The dependency investigator stated that father had not been interviewed as he had not made himself available. She stated she would continue to attempt to interview father about ICWA.
On October 8, 2020, the Department mailed notices to the Cherokee and Blackfeet tribes with “the information obtained so far.”
In a Last Minute Information for the Court, filed on October 15, 2020, the Department reported that on October 8, 2020, it mailed ICWA notices to the “Bureau of Indian Affairs Federal Office Building, Secretary of the Interior, the Blackfeet Tribe of Montana, Cherokee Nation, Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee.” It stated that it would forward receipts and response letters when received.
Further, on October 15, 2020, a social worker attempted to telephone the Blackfeet Tribe of Montana. The tribe did not answer, and an automated message stated that the mailbox was full and there was no room to leave a message.
The same day, the social worker telephoned the Cherokee Nation. She was advised to speak with Traci Willie in the Cherokee Nation's eligibility department as ICWA notices were transferred there. Willie reported the eligibility department had not received the ICWA notice and explained that it might take an additional couple of weeks to receive it. When received, a receipt would be sent back. Willie advised the social worker to call back in a couple of weeks if nothing was received.
Also on October 15, 2020, the social worker telephoned the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians in Oklahoma. The social worker left a message with and provided her contact information to both tribes.
At the October 20, 2020, jurisdiction hearing, the juvenile court noted that the Department stated in its Last Minute Information for the Court that it had not received any responses to its ICWA notices. At the stipulation of the parents, and for a reason not related to the ICWA issue, the court continued the jurisdiction hearing to October 30, 2020.
In its Interim Review Report, filed on October 26, 2020, the Department stated that it received a signed receipt from the Bureau of Indian Affairs, which it attached to the report. On October 26, 2020, the dependency investigator attempted to telephone the Blackfeet Tribe of Montana and was unable to leave a message. The same day, she left a message with Willie of the Cherokee Nation to confirm that notice was received. She also left messages with the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians in Oklahoma and left her contact information.
At the October 30, 2020, jurisdiction hearing, the juvenile court reviewed the Department's ICWA investigation. It noted that the only return receipt received so far was from the Bureau of Indian Affairs and that notice was unnecessary as the identities of the relevant tribes were known. After considering the evidence and the parties' arguments, the court sustained the section 300 petition. It continued the disposition hearing to November 16, 2020, and ordered the Department to file a Last Minute Information for the Court at least three days before the hearing that was to include the ICWA return receipts and responses from the tribes.
At the November 16, 2020, disposition hearing, the juvenile court noted that the Department had not filed a “progress report” addressing the “ICWA items.” It proceeded with the disposition hearing, removing the child from the parents' custody, ordering the Department to provide father with reunification services, and denying mother reunification services. It then set the matter for a progress hearing on January 15, 2021, and ordered the Department to file a progress report one week before the hearing that was to include the ICWA return receipts, responses from the tribes, and efforts to contact the outstanding tribes.
III. DISCUSSION
A. The ICWA Inquiry Duties
Father and mother argue that the juvenile court and the Department failed to discharge their initial inquiry duties and the Department failed to discharge its further inquiry duty under ICWA. The court and the Department met their initial inquiry duties, but the Department did not meet its duty of further inquiry.
Mother briefly raises the ICWA issues on her own (see In re A.W. (2019) 38 Cal.App.5th 655, 663 [“It is well established that a non-Indian parent has standing to assert an ICWA notice violation on appeal”]), but also joins father's appeal.
1. Legal Principles and Standard of Review
Pursuant to ICWA, “[i]n 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... 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 its right to intervene. (25 U.S.C. § 1912(a); In re Isaiah W. (2016) 1 Cal.5th 1, 8.) “As the Supreme Court recently explained, notice to Indian tribes is central to effectuating ICWA's purpose, enabling a tribe to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the matter. (In re Isaiah W., supra, 1 Cal.5th at pp. 8[-]9.)” (In re Michael V. (2016) 3 Cal.App.5th 225, 232.)
We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
2. Inquiry
“The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under [s]ection 300, 601, or 602 may be or has been filed, is or may be an Indian child. The 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.” (§ 224.2, subd. (a).) “If the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court, social worker, or probation officer shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e).)
a. Initial inquiry
The parents contend the Department failed its initial inquiry duty under section 224.2, subdivision (b) because it failed to make sufficient efforts to interview paternal aunts G.U. or Kay (whose last name does not appear in the record) or paternal uncle M.U.
Under section 224.2, subdivision (b), “[i]nquiry 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.”
They also contend, without explanation, that the juvenile court generally failed its initial inquiry duty. The parents' failure to make any argument concerning the court's contended general failure has forfeited the issue on appeal. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [“Appellate briefs must provide argument and legal authority for the positions taken. ‘When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived...'”]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”].)
The purpose of the initial inquiry duty is to begin the process of determining whether a child who is or may be the subject of a section 300 petition “is or may be an Indian child.” (§224, subd. (a).) Although the Department did not fully satisfy its initial inquiry duty under section 224.2, subdivision (b), it accomplished the initial inquiry duty's purpose in its August 6, 2020, contact with father during which father stated he has Native American ancestry, he is “linked” with the Blackfoot and Cherokee tribes, and he planned to register with the tribes. The juvenile court satisfied its initial inquiry duty at the detention hearing when it asked about father's claimed Indian ancestry and ordered the Department to investigate father's claim of Indian ancestry.
b. Further inquiry
The parents contend the Department failed its further inquiry duties under section 224.2, subdivisions (e)(2)(A) and (e)(2)(C) because it failed to interview father after his initial claim of Indian ancestry, to interview paternal aunt G.U. about the child's possible Indian ancestry, or to make adequate efforts to contact paternal uncle M.U. or the relevant Indian tribes about the child's possible Indian ancestry.
Because we hold the Department's further inquiry efforts with respect to father and his extended family members were inadequate, we need not decide whether its inquiry efforts with respect to the relevant tribes also were inadequate.
Under section 224.2, subdivision (e)(2)(A), when there is reason for the Department to believe, but insufficient information to know, a child is an Indian child, the Department is required to inquire further including interviewing the parents and extended family members to gather the information required in section 224.3, subdivision (a)(5). The information required in section 224.3, subdivision (a)(5)(C) is: “All names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known.”
The Department knew as early as August 6, 2020, that father claimed Indian ancestry. On September 14, 2020, the juvenile court ordered the Department to investigate father's claim and to provide notice to the three federally recognized Cherokee tribes and the Blackfeet tribe. (In re N.G. (2018) 27 Cal.App.5th 474, 481 [an initial report that children might have Blackfeet, Navajo, or Cherokee ancestry triggered the duty to inquire further].)
The record shows the following paternal family members whom the Department could have contacted concerning father's claimed Indian ancestry: father; paternal aunts G.U., L.W., and Kay; and paternal uncle M.U. The record does not show that the Department spoke to father about his claimed Indian ancestry after his August 6, 2020, claim of Indian ancestry and before the November 16, 2020, disposition hearing. According to the Department's October 7, 2020, Jurisdiction/Disposition Report, father had not made himself available to be interviewed. The record reflects, however, that after father's claim of Indian ancestry on August 6, 2020, the Department interviewed him on September 1, 2, 3, and 6, 2020, without asking him about his claimed Indian ancestry. The report also stated that the Department would continue to attempt to interview father about his claimed Indian ancestry. Implicit in the Department's statement that it would continue to attempt to interview father was its recognition that its efforts thus far were insufficient. The record does not, however, reveal any subsequent attempts to interview father.
In the social worker's August 6, 2020, interview of father, father identified paternal aunt Kay as part of his support system. Paternal aunt Kay worked for Kaiser Permanente in Long Beach. The record does not reflect that the social worker asked father for contact information for paternal aunt Kay or that she interviewed or attempted to interview paternal aunt Kay. Although the parents claim the Department's inquiry efforts with respect paternal aunt Kay were deficient in their initial inquiry argument, they do not make the same claim in their further inquiry argument.
A social worker spoke with paternal aunt G.U. on August 6, 2020. It appears from the Detention Report that this conversation preceded the interview in which father claimed Indian ancestry. The record does not reflect that the Department asked paternal aunt G.U. about father's claimed Indian ancestry in subsequent interviews.
The dependency investigator interviewed paternal aunt L.W. on September 29, 2020. Paternal aunt L.W. confirmed father's claim of possible Cherokee and Blackfeet heritage and provided biographical information for paternal grandmother and grandfather and paternal great-grandfather. That information was incomplete and did not include those relatives' current or former addresses. Paternal aunt L.W. was unable to provide any information about paternal great-grandmother.
In the same interview, paternal aunt L.W. told the dependency investigator that paternal uncle M.U. had “all of the information” concerning the family's Cherokee and Blackfeet heritage, and gave her his telephone number. That day, the dependency investigator tried to contact paternal uncle M.U. by telephone. She tried again on October 1 and October 5, 2020. Each time, she left a message and did not receive a return call. The dependency investigator asked paternal aunt L.W. to give paternal uncle M.U. the dependency investigator's contact information and she agreed. The record does not reflect when the dependency investigator made that request or that the Department attempted to contact paternal uncle M.U. during the six weeks between the dependency investigator's October 5, 2020, call and the November 16, 2020, disposition hearing.
The Department's further inquiry of father's Indian ancestry was inadequate and prejudicial. (See In re N.G., supra, 27 Cal.App.5th at p. 484 [“In the absence of an appellate record affirmatively showing the court's and the [Department]'s efforts to comply with ICWA's inquiry and notice requirements, we will not, as a general rule, conclude that substantial evidence supports the court's finding that proper and adequate ICWA notices were given or that ICWA did not apply. Instead, as a general rule, we will find the appellant's claims of ICWA error prejudicial and reversible”].) Accordingly, we conditionally affirm the jurisdiction and disposition orders and remand the matter with directions to the juvenile court to order the Department to make further inquiry and, if necessary, to provide notice to the tribes.
B. The Jurisdiction and Disposition Hearings
The parents argue that the juvenile court should not have held the jurisdiction and disposition hearings before confirming receipt of the ICWA notices by the parents, tribes, Bureau of Indian Affairs, and Secretary of the Interior at least 10 days prior to those hearings.
“No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary [of the Interior]....” (25 U.S.C. § 1912(a); see also Cal. Rules of Court, rule 5.482(a)(1) .) “Foster care placement” means “any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.” (25 U.S.C. § 1903(1)(i); see also § 224.1, subd. (d)(1)(A) .)
All further rules references are to the California Rules of Court. Rule 5.482(a)(1) provides: “If it is known or there is reason to know a child is an Indian child, a court hearing that may result in a foster care placement, termination of parental rights, preadoptive placement, or adoptive placement must not proceed until at least 10 days after the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs has received notice, except as stated in sections (a)(2) and (3).” Rule 5.482 sections (a)(2) and (3) do not apply here.
Section 224.1, subdivision (d)(1)(A) provides: “Foster care placement... includes removal of an Indian child from their parent, parents, or Indian custodian for placement in a foster home, institution, or the home of a guardian or conservator, in which the parent or Indian custodian may not have the child returned upon demand, but in which parental rights have not been terminated. Foster care placement does not include an emergency placement of an Indian child pursuant to [s]ection 309, as long as the emergency proceeding requirements set forth in [s]ection 319 are met.”
The parents correctly state that the Department did not file in the juvenile court return receipts for the ICWA notices to the Indian tribes prior to the October 30, 2020, jurisdiction hearing or the November 16, 2020, disposition hearing at which the juvenile court removed the child from their custody. (§ 224.3, subd. (c).) Where a court fails to comply with the inquiry and notice requirements applicable to Indian child custody proceedings, and the parents raise no further substantive challenge to the jurisdiction and disposition order, we will affirm the jurisdiction and disposition orders and remand the matter with directions to the juvenile court to ensure notice compliance as set forth in the disposition below. (See Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 268-269.)
IV. DISPOSITION
The jurisdiction and disposition orders are conditionally affirmed and the matter is remanded with directions to the juvenile court to order the Department to make further inquiry concerning father's Cherokee and Blackfeet ancestry and, if necessary, to provide notice to any tribe. If, after proper inquiry and notice, an Indian tribe asserts that the child is an Indian child, the jurisdiction and disposition orders are reversed and the court shall proceed in conformity with the provisions of ICWA and the relevant law, including the 10-day notice provision in 25 U.S.C. section 1912(a) and rule 5.482(a)(1). If no Indian tribe asserts that the child is an Indian child after proper inquiry and notice, the jurisdiction and disposition orders are unconditionally affirmed.
We concur: RUBIN, P. J., MOOR, J.