Opinion
F082892
09-27-2021
In re S.A., a Person Coming Under the Juvenile Court Law. v. T.A., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. No. JD141063-00 Marcos R. Camacho, Judge.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
In this juvenile dependency case, T.A. (mother) appeals the juvenile court's order terminating her parental rights (Welf. & Inst. Code, § 366.26), arguing it must be reversed because the juvenile court failed to make express findings as to whether the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) applied to the proceedings. Finding no reversible error, we affirm.
All further undesignated statutory references are to the Welfare and Institutions Code.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
In June 2020, the Kern County Department of Human Services (department) filed a petition on behalf of two-day-old S.A. alleging she came within the juvenile court's jurisdiction under section 300, subdivisions (b) and (j) due to the parents' domestic violence and abuse of siblings as evidenced by then pending dependency proceedings involving S.A.'s siblings. The petition alleged the parents engaged in domestic violence incidents in April and May 2018, and petitions were filed on behalf of four of S.A.'s siblings on May 30, 2018. The petition further alleged that in July 2018, mother tested positive for amphetamines at the time of another of S.A.'s sibling's birth, and a petition was filed on behalf of S.A.'s baby sibling on July 10, 2018. The parents' family reunification services were terminated as to all S.A.'s siblings in February 2020, and the parents were still in a relationship. The siblings' case was set for a section 366.26 hearing on August 4, 2020.
The department reported that in the siblings' case, the juvenile court made a finding that ICWA did not apply on July 17, 2018, “as to [] father, ” and on August 31, 2018, “as to [] mother.”
On June 22, 2020, mother executed a PARENTAL NOTIFICATION OF INDIAN STATUS (ICWA-020) form indicating her relative, Janet Glass, was a member of a Cherokee tribe located in Oklahoma. That same day, in open court, mother identified Glass as her maternal cousin. Counsel for the department indicated the court had made a finding ICWA did not apply to the siblings' case in August 2018 and asked mother if she had acquired new information since that finding was made. Mother replied she “just came to the understanding that … I wasn't registered under our roll number.” She indicated Glass would have information regarding the roll number. Mother did not have Glass's contact information but indicated her mother would. Mother provided her mother's name on the record and stated that her mother lived in Sacramento. Mother did not know her mother's phone number but stated her daughter might.
The department thereafter attempted to obtain the “family roll number' from mother, but mother was unable to provide it.
On September 8, 2020, the department sent a NOTICE OF CHILD CUSTODY PROCEEDING FOR INDIAN CHILD (ICWA-030) form to three Cherokee tribes. Two of the tribes responded that S.A. was not an Indian child within the meaning of ICWA.
On October 29, 2020, the juvenile court declared father to be the presumed father of S.A. The court found all allegations in the petition true and set the matter for a contested dispositional hearing.
The disposition report set forth the personal histories of each parent. Father's history indicated he had no known American Indian or Alaskan Eskimo ancestry. It was recommended reunification services not be provided to either parent because the bypass provision set forth in section 361.5, subdivision (b)(10) applied in that the court had ordered termination of reunification services for S.A.'s siblings and the parents had not subsequently made a reasonable effort to treat the problems that led to the removal of those siblings.
On November 4, 2020, the department sent another ICWA-030 form to the tribe that did not respond to the first inquiry.
At the disposition hearing on February 5, 2021, the juvenile court adjudged S.A. a dependent of the court and removed her from mother's custody. Reunification services were not ordered to either parent because the court determined the bypass provision applied.
In this court in T.A. v. Superior Court (May 24, 2021, F082362 [nonpub. opn.]), mother filed a petition for extraordinary writ review contending the court erred in denying her reunification services. This court denied mother's petition and issued a written opinion concluding the court's dispositional findings and orders were supported by sufficient evidence.
The department's section 366.26 report indicated the department had sent ICWA inquiries to three tribes based on mother's disclosures, and all three tribes had found S.A. was not eligible for membership. The report indicated the responses had been filed with the court. The report also reiterated that as to the siblings' case, ICWA was found not to apply in July and August 2018. Under the family background section of the report, the department stated father had no known Native American ancestry.
On June 4, 2021, the juvenile court terminated parental rights and ordered adoption as S.A.'s permanent plan. The court never made any findings on the record as to whether ICWA applied to the proceedings.
During the course of the proceedings, father's participation was limited. The department had some contact with father though they never reported whether they asked him if he had any updated information regarding S.A.'s status as an Indian child. He also attended some visitation with S.A. He never, however, appeared in court.
DISCUSSION
Mother contends the juvenile court erred by terminating parental rights without making an express finding about whether ICWA applied to the proceedings. We conclude the court made an implicit finding that ICWA did not apply, and such finding was supported by the evidence.
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) Congress adopted ICWA in response to rising concerns “over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” (Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.)
ICWA applies to various child custody proceedings involving Indian children, including, as pertinent here, proceedings relating to the termination of parental rights. (See 25 U.S.C. §§ 1903(1) & (4), 1911, 1912.) For purposes of ICWA, “Indian child” is defined as “any 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); see § 224.1, subd. (a) [adopting federal definitions].) When ICWA applies, it imposes specific requirements on child custody proceedings in a state court.
Where a juvenile court has not made an express finding ICWA does not apply, “the record must reflect that the court considered the issue” and has at least implicitly so found. (In re Asia L. (2003) 107 Cal.App.4th 498, 506; see In re E.W. (2009) 170 Cal.App.4th 396, 403‒405.)
We conclude the court here considered the issue and made an implicit finding ICWA did not apply to the proceedings. The department reported on ICWA in nearly every report filed with the court. The department also filed the ICWA-030 forms it sent out and the responses it received from the tribes. The court stated on the record it had read and considered all reports and admitted them into evidence. The court terminated parental rights without consideration of the heightened ICWA standards. From the foregoing, we conclude the juvenile court made an implicit finding ICWA did not apply to the proceedings.
We further conclude sufficient evidence supported the implicit finding, and that it is clear from this record “an explicit ruling would conform to the implicit one.” (In re E.W., supra, 170 Cal.App.4th at p. 405.)
As to mother, the court made an inquiry of her on the record based upon her disclosures on the ICWA-020 form. When she indicated she had additional information she had received since the ICWA finding in the siblings' case, the department attempted to obtain that information, inquired of three tribes by providing the information they obtained, and all three tribes responded S.A. was not an Indian child within the meaning of ICWA. These responses were filed with the court as well as summarized in the reports, and the court admitted the reports into evidence. Mother does not contend the department did not satisfy any of its inquiry and notice duties under ICWA as to her assertions indicating S.A. may have been an Indian child. The juvenile court reasonably relied on the responses received from the tribes in determining there was no basis to find S.A. was an Indian child based on mother's ancestry.
As to father, though father did not execute an ICWA-020 form and never appeared in court in the present case, the court had made a previous finding as to ICWA in the siblings' case, which mother concedes gave the department “no reason to believe [S.A.] was an Indian child.” Further, the disposition and section 366.26 reports in the present case indicated father claimed no American Indian, Alaskan Eskimo, or Native American ancestry. Father was represented by counsel at all times throughout the proceedings and made no objection to those representations in the reports. There was no evidence S.A. was or might be an Indian child based on father's ancestry.
For the first time in her reply brief, mother asserts that, in addition to the court failing to make express findings as to whether ICWA applied, any implied or implicit finding was not supported by the evidence because the department conducted inadequate inquiry by failing to ask father whether S.A. is or may be an Indian child pursuant to section 224.2, subdivision (b). To the extent the department made any error with regard to its duty of inquiry under ICWA, we conclude any error is harmless under the particular facts of this case.
Section 224.2, subdivision (b) reads: “If a child is placed into the temporary custody of a county welfare department[, ] … the … department has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, [and others] whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.”
“Deficiencies in ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child.” (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.)
Here, the father made no claim of Native American ancestry in a related and recent child custody proceeding, and despite being in contact with the department, made no indication he had any additional information as to his ancestry or S.A.'s status as an Indian child. We acknowledge the department has an affirmative and continuing duty to inquire as to whether a child is an Indian child. We find instructive, however, that in a single case, where the department inquires into a child's status as an Indian child, and the parents provide no information requiring follow up, the department has no further duty of inquiry. (In re S.B. (2005) 130 Cal.App.4th 1148, 1161.) While technically the case involving S.A. was a separate case from that of her siblings, it was closely related as it arose from the same allegations and overlapped in time. We have no trouble presuming under the particular circumstances of the present case, that had father had any new information regarding ICWA, he would have informed the department of such. (See In re A.M. (2020) 47 Cal.App.5th 303, 323 [“ICWA does not obligate the court or [child welfare agency] ‘to cast about' for investigative leads. [Citation.] … This includes circumstances where parents ‘fail[] to provide any information requiring followup.' ”].)
While it is not, as a rule, appropriate to conclude a previous ICWA finding as to a child's siblings excuses the department of any ICWA inquiry duties, we conclude under the facts of this case where father recently claimed no Native American ancestry and there is no suggestion on the record father had any new information regarding S.A.'s status as an Indian child, it is unlikely remand would have any effect on the determination of whether S.A. was an Indian child. Rather, the record shows remand would be a waste of time and judicial resources further delaying permanency for S.A.
For the foregoing reasons, we find no reversible error.
DISPOSITION
The court's June 4, 2021 order terminating parental rights is affirmed.
[*] Before Peña, Acting P. J., Meehan, J. and DeSantos, J.