Opinion
B321675
02-27-2023
In re I.A., a Person Coming Under the Juvenile Court Law. v. J.A., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County No. 19CCJP06996C of Los Angeles, Linda Sun, Judge. Affirmed.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
J.A. (father) appeals from the juvenile court's order terminating parental rights to his son, I.A. (the child), seeking reversal and remand for compliance with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related California statutes (Welf. &Inst. Code, § 224 et seq.). We affirm.
All further statutory references are to the Welfare and Institutions Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue on appeal is whether the juvenile court and the Los Angeles County Department of Children and Family Services (the Department) complied with the formal notice requirements of ICWA and related California law, we limit our recitation of facts to those relevant to that compliance issue, except as otherwise necessary for context.
A. Jurisdiction and Termination of Parental Rights
In October 2019, Department filed a petition under section 300 on behalf of the child, his sibling, and his half sibling (the children), alleging, among other counts, that the children's mother (mother) had a history of substance abuse and was a current abuser of alcohol, which interfered with her ability to care for and supervise the children; and father had failed to protect his children from the risk of such abuse.
On October 30, 2019, the juvenile court detained the child and ordered services for father. In January 2020, the court sustained the counts in the petition alleging mother's drug and alcohol abuse and father's failure to protect. The court ordered the Department to provide father with reunification services.
In May 2021, the juvenile court terminated reunification services and set a section 366.26 permanency planning hearing.
In November 2021, the juvenile court ordered adoption as the permanent plan for the child. And, on June 20, 2022, the juvenile court terminated mother and father's parental rights to the child and freed him for adoption. Father filed a timely notice of appeal from the order terminating parental rights.
B. ICWA Proceedings
In the October 2019 section 300 petition, a social worker stated that she had asked about the child's Indian ancestry and, on the attached ICWA-010(A) form, declared that the child had no Indian ancestry. In the detention report, the social worker advised that she had interviewed mother on October 9, 2019, who denied that the children had any Native American ancestry. In the two ICWA-020 forms attached to the detention report, both mother and father declared that they had no Indian ancestry as far as they knew. And, at the October 30, 2019, detention hearing, the juvenile court acknowledged receipt of the parents' ICWA-020 forms and, based on their written responses, found that it had no reason to know that the children were Indian children.
In the June 3, 2022, section 366.26, report, a social worker recounted that, during an August 2021 home visit, the prospective legal guardian, Mrs. M., disclosed that her husband, the child's maternal grandfather, "may have some Native American Heritage from the Yuki [and] Apache tribe[s]."
On August 20, 2021, the social worker spoke to mother's first cousin who explained that "it ha[d] been spoken about in their family that there [was] Yuki tribe heritage but no one [was] registered." According to the cousin, the child's maternal greatgrandmother had that heritage, but she was "not registered with any tribe."
On August 24, 2021, the social worker spoke to the child's maternal great-grandmother, S.M., who stated, "'I don't know too much about it, I think my brother mentioned Yuki, and I think they came from Wimax Arizona, but we never questioned too much, [and] I don't know anything about my grandparents [or] where they came from.[']" According to S.M., her mother, who was deceased, had never mentioned anything about having Native American heritage and was not registered as a tribe member. And, all of S.M.'s siblings who might have knowledge were deceased and she did not know anything about her maternal grandmother or any relatives on her father's side.
On June 3, 2022, the social worker spoke to the child's maternal grandfather by telephone and was told that "they had Yuki heritage through his mother's side and Apache [heritage] through his father's [side]," but that "was always something that was said in his family" without any proof. According to the maternal grandfather, he was not enrolled in any tribe and no one in his family was enrolled.
That same day, the social worker spoke to the child's caregiver who reported that father did not have any Native American heritage. Father's mother was from Puerto Vallarta, Mexico, and his father was from Bolivia.
At the June 20, 2022, section 366.26 hearing, father objected to the termination of his parental rights to the child.
III. DISCUSSION
A. Duty to Give Notice
Father challenges only the juvenile court's failure to give formal notice to Indian tribes of the pendency of this proceeding under ICWA and related California law. We therefore limit our review to that issue and the applicable law defining when such notice is mandated.
"'[S]ection 224.2 "creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department]'s initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the [Department] 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. [Citations.]" [Citation.]'" (In re H.V. (2022) 75 Cal.App.5th 433, 437.)
"The duty to provide notice is narrower than the duty of inquiry. Although the duty of inquiry applies to every 'child for whom a petition under [s]ection 300, 601, or 602 may be or has been filed' (§ 224.2, subd. (a)), and the duty of further inquiry applies when there is a 'reason to believe that an Indian child is involved in a proceeding' (§ 224.2, subd. (e)), the duty to provide notice to Indian tribes applies only when one knows or has a 'reason to know . . . an Indian child is involved,' .... (§ 224.2, subd. (a).)
"In 2018, the Legislature enacted changes to the state's ICWA-related statutes for the purpose of conforming state law to recent changes in federal ICWA regulations. [Citations.] The changes included a redefinition of the 'reason to know' requirement that triggers the duty to give notice of the proceedings to Indian tribes. Section 224.2, subdivision (d) now provides: 'There is reason to know a child involved in a proceeding is an Indian child under any of the following circumstances: [¶] (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family informs the court that the child is an Indian child. [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village. [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child. [¶] (4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child. [¶] (5) The court is informed that the child is or has been a ward of a tribal court. [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe.' (See also Cal. Rules of Court, rule 5.481(b).)" (In re Austin J. (2020) 47 Cal.App.5th 870, 884, superseded by statute on other grounds as stated in In re E.C. (2022) 85 Cal.App.5th 123, 147.)
"For purposes of ICWA, an 'Indian child' is an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. [Citations.] Being an 'Indian child' is thus not necessarily determined by the child's race, ancestry, or 'blood quantum,' but depends rather 'on the child's political affiliation with a federally recognized Indian Tribe.' [Citations.]" (In re Austin J., supra, 47 Cal.App.5th at p. 882.)
When, as here, the facts are undisputed, we review independently whether the requirements of ICWA have been satisfied. (In re A.M. (2020) 47 Cal.App.5th 303, 314.)
B. Analysis
There is nothing in the record to suggest that any of the six circumstances identified in section 224.2, subdivision (d), applied to this case such that the juvenile court had reason to know the child was an Indian child. No one with an interest in the child informed the court that the child was an Indian child, that is, either a member, or the child of a member, of a federally recognized tribe. In addition, it is undisputed that: the child did not reside on an Indian reservation; no participant in the proceeding, court officer, Indian tribe, Indian organization or agency provided the court or the Department with information that the child was an Indian child; the child did not give the court reason to know he was an Indian child; the court was not provided information that the child was or had been a ward of a tribal court; and the court was not informed that father, mother, or the child possessed an identification card indicating tribal membership.
At best, the Department provided the juvenile court with information that members on both sides of mother's extended family may have Indian ancestry, but there was no information that any of those extended family members was a registered tribe member. The court therefore did not err in concluding that it had no reason to know the child was an Indian child or in failing to give notice to Indian tribes.
IV. DISPOSITION
The order terminating father's parental rights is affirmed.
I concur: RUBIN, P. J.
BAKER, J., Concurring
I join all but Part III.A of the opinion for the court.