Opinion
B326067
08-29-2023
In re AMBER B., a Person Coming Under Juvenile Court Law. v. SAVANNAH B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant Savannah B. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP05559, Jean M. Nelson, Judge. Affirmed with instructions.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant Savannah B.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
CHANEY, J.
In November 2022, the juvenile court terminated the parental rights of appellant Savannah B. (Mother) over her child, Amber B. On appeal, Mother contends only that the court erred in finding the Indian Child Welfare Act (ICWA) inapplicable when the Los Angeles County Department of Children and Family Services (DCFS) conducted an allegedly inadequate inquiry into the child's potential Indian heritage. We conclude that as part of DCFS's investigation, it was required to contact Indian tribes that could reasonably have been expected to have information regarding Amber's membership or eligibility and provide them with information sufficient to make a membership or eligibility determination. While DCFS contacted these tribes, it failed to provide them with potentially relevant information. Because we cannot conclude the omission of this information was harmless as a matter of law, we conditionally affirm the court's order and remand with directions for the juvenile court to order DCFS to properly fulfill its duties under Welfare and Institutions Code section 224.2.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our summary to the facts and procedural history relevant to the issues appellant raises on appeal.
A. DCFS Files a Petition
In September 2020, DCFS received a referral alleging Mother was using drugs and prostituting herself in a motel while Amber (born November 2013) was in the next room. Amber's maternal aunt, Bobbie W., allegedly watched her while Mother was prostituting herself. The referral also alleged Mother had overdosed on heroin three weeks prior. A Children's Social Worker (CSW) visited the motel where Mother and Amber were supposedly staying but could not locate them. The CSW was able to get a hold of Bobbie W., who stated she had not spoken with Mother for a month. After trading several phone calls, CSW and Mother were able to speak several days later. Mother agreed to meet with the CSW at the home of the maternal greatgrandmother, Lois S. Present at the meeting were Mother, Amber, Lois, and a maternal great-aunt, Rhonda R.
Amber informed the CSW that she lived with Mother at several motels before they moved into Lois's home. She related an incident in which she and Mother were in a motel room together and Mother "took some pills with water and became dizzy" and then passed out. One of Mother's friends called an ambulance for Mother. "Amber confirmed she had seen the pills since then . . . in [M]other's purse."
The CSW observed Mother had circular red sores on her face, neck, and arms. Mother denied the allegations of the referral, opining the report was made "out of retaliation" by a friend with whom Mother had a "big fight . . . a few years ago."
Mother confirmed Amber's statement that they had been staying at motels before moving in with the maternal great-grandmother, but said they had also stayed with Amber's "maternal aunt, Denise" in Bakersfield. Mother denied using methamphetamine but stated she smoked marijuana daily. Mother explained her recent hospitalization occurred because "she had accidentally taken some medication thinking that it was something else and woke up in the hospital." Contradicting Amber, Mother claimed she had been alone when she took the "medication," and that Amber had been staying with family.
A later check of hospital records confirmed Mother was admitted for an "opioid overdose." These records also stated that Mother had informed the hospital she lived in a motel with her daughter and "she remembers getting high with her daughter there by sniffing pills but thought the pills 'were meth.'" The records added that Mother admitted to using alcohol, methamphetamines, and marijuana, and she tested positive for amphetamines and cannabinoids.
When asked about Indian ancestry, Mother said Lois was "half Cherokee Indian." Lois "confirmed she had Cherokee ancestry, but no documentation or connection to a tribe." Maternal great-aunt Rhonda informed the CSW that Mother was a" 'drug baby'" whose mother (the maternal grandmother) died of an overdose.
DCFS's detention report contains summaries of several previous allegations against Mother, including one in which it was noted that "Maternal grandmother died when mother was 15 years old and in foster care" and that "Mother remained in foster care until she was 18 years old." The records did not reveal when Mother entered foster care.
In October 2020, DCFS filed a petition under section 300, subdivision (b)(1), on behalf of Amber, alleging that Mother's substance abuse rendered her incapable of providing regular care for Amber. The petition also noted that Mother (who was born in November 1991) had a related case, stating "Mo Crt [case number] dept 416, JT 10/08/08."
In her opening brief, Mother claims the case number references her "dependency case as a minor." DCFS does not dispute this. We therefore interpret the "JT" notation as "Jurisdiction Terminated on October 8, 2008."
An ICWA-010(A) form was filed with the petition, stating the CSW had asked both Mother and Amber's maternal greatgrandmother about Amber's Indian status, and based on those inquiries, the CSW had "reason to believe the child is or may be an Indian child." Mother filed an ICWA-020 form, signed only by her counsel, stating that maternal great-grandmother Lois was a member of the Apache tribe.
At the detention hearing, the court ordered DCFS to investigate Amber's potential Indian heritage. The court found a prima facie case to detain the child, but ordered Amber released to Mother, under the condition that Mother drug test weekly and permit DCFS to conduct unannounced visits.
B. Mother Flees; DCFS Investigates Indian Heritage
In mid-November 2020, DCFS was unable to speak with Mother or visit Amber. In late November, Lois informed DCFS that Mother and Amber had left to Northern California in midNovember. Mother missed all five of her scheduled drug tests from mid-November to early December.
In December 2020, a dependency investigator called Lois several times to ask about her potential Indian ancestry but could not reach her. Maternal great-aunt Rhonda said she had no information as to Indian ancestry and was unsure if Lois had such ancestry. Maternal aunt Bobbie also lacked any information. Mother did not make herself available to be interviewed.
DCFS sent an ICWA-030 form to the Bureau of Indian Affairs, the Secretary of the Interior, Apache Tribe of Oklahoma, Cherokee Nation, Eastern Band of Cherokee Indians, Fort Sill Apache Tribe of Oklahoma, Jicarilla Apache Nation, Mescatero Apache Tribe, San Carlos Apache Tribe, Tonto Apache Tribe, United Keetoowah Band of Cherokee Indians in Oklahoma, White Mountain Apache Tribe, and Yavapai-Apache Nation. The forms provided the names of Amber, Mother, Amber's alleged father, Amber's maternal grandmother, and Lois. However, they lacked Mother's former address; the maternal grandmother's former address, place of birth, and place and date of death; Lois's former address, place of birth, and whether she was deceased; and the names of the maternal grandfather, the other maternal great-grandmother, and both maternal great-grandfathers.
C. The Court Removes Amber from Mother
In December 2020, DCFS filed an ex parte application under section 385, requesting the court vacate its previous order releasing Amber to Mother, and ordering Amber detained in foster care. The court granted the request, issuing a protective custody order for Amber, and an arrest warrant for Mother.
In February 2021, Mother agreed to surrender to law enforcement and permit Amber's detention. Amber was taken into protective custody and placed with a maternal cousin, Briana R. In March 2021, the court recalled the previously issued warrants, ordered monitored visitation for Mother, and referred Mother to drug testing.
While it does not appear that DCFS initially asked Briana R. about Indian heritage, the record shows that such an inquiry was made in July 2022, and Briana stated she was unaware of any Indian heritage in the family.
Mother continued not to drug test or enroll in any recommended programs, and she evaded DCFS's efforts to meet with her. She also did not visit Amber. In May 2021, the court continued the adjudication hearing to June 2021, finding notice had been improper. The court also ordered DCFS to provide an update as to "the basis for an ICWA finding."
Between May and June 2021, Mother still failed to drug test, but began visiting Amber once or twice a month, and had minimal telephone contact with her. In the June 2021 adjudication hearing, the court sustained the petition but continued the disposition hearing "pending ICWA." In June 2021, DCFS again sent out ICWA-030 forms to the same tribes as before, with the same information missing.
In August 2021, DCFS informed the court it had received responses from the Yavapai-Apache Nation, the San Carlos Apache Tribe, and the Tonto Apache Tribe, all stating Amber was neither a member nor eligible to be one. Both the Yavapai-Apache Nation and the Tonto Apache Tribe stated their determinations were "[b]ased on the information" provided by DCFS. At the August 2021 disposition hearing, the court found DCFS had completed its ICWA investigation and there was no reason to know Amber was an Indian child. It therefore found ICWA inapplicable. The court ordered Amber removed from Mother and ordered Mother to enroll in a parenting class and a drug program with weekly testing. Mother was permitted monitored visits.
D. The Court Terminates Reunification Services
In August 2021, Mother enrolled in an inpatient drug treatment program but was dropped from the program after four days. Mother also continuously avoided meeting with DCFS, deceiving it about her whereabouts and cancelling previously agreed-upon meetings. On one occasion when a CSW was able to track Mother down in September 2021, she admitted she had been using methamphetamines and marijuana. When the CSW arrived unannounced at a meeting between Mother and Amber at a park, Mother admitted she was struggling to stay sober. She continued to miss her drug tests. At the January 2022 six-month review hearing, the court found Mother's progress to be minimal. Mother still failed to drug test and, in March 2022, admitted she would test positive for methamphetamine and marijuana were she to do so.
In early April 2022, Amber was moved from Briana's house and placed with foster parents. After her placement, Amber no longer wanted to visit or communicate with Mother. The foster mother reported Amber was upset that Mother did not keep her promise to follow court orders and find housing for Amber to return home. Amber also expressed fear that the court would return her to Mother, and she would need to live with her in motels again.
Also in early April 2022, Mother entered a drug treatment program. She tested positive for THC, MDMA, amphetamines, and methamphetamines on the day of admission, but tested negative eight days later. Nevertheless, at the April 2022 12- month review hearing, the court found Mother's progress on her case plan had been minimal and terminated reunification services.
E. The Court Terminates Mother's Parental Rights
Amber thrived in her foster home. Both she and her foster parents expressed interest in adoption, and Amber continued refusing to visit or communicate with Mother.
In August 2022, Mother filed a section 388 petition asking the court to reinstate reunification services because she had completed an inpatient drug program, was participating in sober living and outpatient services as well as a 12-step program, was drug testing, and was participating in individual counseling and parenting classes. The court denied the petition without a hearing.
In October 2022, the court set adoption as Amber's permanent plan. In November 2022, Mother filed another section 388 petition, substantively identical to her previous petition. The court again denied the petition. The court also terminated Mother's parental rights. Mother timely appealed.
DISCUSSION
After DCFS temporarily takes a child into custody, it must "ask[] 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." (§ 224.2, subd. (b).)
"There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (§ 224.2, subd. (e)(1).) "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 or DCFS "shall make further inquiry regarding the possible Indian status of the child," including: (A) interviewing the parents and extended family members; (B) contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying and contacting tribes; and (C) contacting the Indian tribes "that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility." (§ 224.2, subd. (e)(2).) When contacting the tribe, DCFS must share "information identified by the tribe as necessary for the tribe to make a membership or eligibility determination." (§ 224.2, subd. (e)(2)(C).)
Mother contends the court erred in finding ICWA inapplicable because DCFS's inquiry was inadequate. Specifically, Mother argues DCFS failed to: (a) ask the maternal aunt, Denise, about Amber's potential Indian heritage; (b) investigate Mother's own dependency case files for the identities of extended family members to interview about Amber's potential Indian heritage; (c) conduct further investigation due to Mother's involvement in the foster care system as a minor and due to the conflicting information DCFS received regarding Lois's Indian heritage; and (d) send accurate notices to the Indian tribes of which Amber was potentially a member. When an appellant requests relief due to an inadequate ICWA inquiry, we remand "if 'the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child'" that DCFS failed to obtain. (In re Darian R. (2022) 75 Cal.App.5th 502, 509, citing In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.)
As discussed in detail below, we conclude that DCFS's failure to interview Denise or investigate Mother's own dependency case files do not constitute prejudicial error per se, and that neither Mother's time in foster care nor the conflicting information DCFS received required further investigation. However, we also conclude that DCFS was required to contact the Indian tribes to which Amber was potentially a member and provide them with sufficient information to make a membership or eligibility determination. Because the record is insufficient to determine what information the tribes required, we cannot say that the omissions in DCFS's notices were harmless as a matter of law. We therefore remand for DCFS to correct these omissions.
A. Maternal Aunt Denise
Denise's existence was referenced only briefly in DCFS's initial detention report, when Mother explained that prior to staying with Lois, Mother had stayed with a "maternal aunt, Denise." Nothing suggests DCFS had Denise's full name or contact information. No one claimed Denise possessed any information about Amber's potential Indian heritage, and DCFS had no other reason to contact Denise. We thus find no prejudicial error in DCFS's failure to ask Denise about Amber's potential Indian heritage because whatever information she may have possessed did not constitute readily available information likely to bear meaningfully on the question of whether Amber was an Indian child. (See In re A.M. (2020) 47 Cal.App.5th 303, 323 [social workers not required" 'to cast about'" for investigative leads to satisfy duty of inquiry].)
B. Mother's Dependency Case Files
Mother contends DCFS erred in not examining Mother's dependency case files "to ascertain the identity of her extended family members, and in particular her father, the maternal grandfather, to contact and question these maternal relatives about the minor's potential Indian ancestry." We disagree that DCFS was required to examine Mother's dependency case files for this purpose.
In none of the inquiries made regarding Amber's potential Indian heritage did anyone suggest that Amber had any potential connection to an Indian tribe except through Lois. Nor did anyone suggest that other extended family members might have more information on the subject. Again, DCFS is not required to" 'cast about'" for leads. (In re A.M., supra, 47 Cal.App.5th at p. 323.)
C. Further Investigation
Citing In re A.C. (2022) 75 Cal.App.5th 1009 and In re Y.W. (2021) 70 Cal.App.5th 542, Mother argues that because she was a" 'drug baby'" who "grew up in foster care," "she likely did [not] know about her family heritage," and DCFS had a duty to "flesh out" Amber's Indian heritage. We find both cases inapposite.
While the record indicates Mother was in foster care at the age of 15, it does not reflect when she entered foster care. The notation on DCFS's petition indicated that in Mother's related case-presumably a case in which she was the dependent-jurisdiction was terminated in October 2008, seven weeks before Mother turned 17 years old.
In A.C., the mother denied Indian ancestry but "DCFS nevertheless concluded for unidentified reasons that ICWA 'may apply.'" (In re A.C., supra, 75 Cal.App.5th at p. 1013.) Although the children in A.C. were placed with various maternal relatives, DCFS never asked those relatives about the children's potential Indian heritage. (Ibid.) We held that DCFS's inadequate inquiry was prejudicial, especially because the mother "was the product of foster care and thus may not have known her cultural heritage." (Id. at pp. 1015-1016.) Similarly, in Y.W., our colleagues in Division Seven noted that DCFS could not rely only on a parent's denial of Indian ancestry because "[s]uch a rule ignores the reality that parents may not know their possible relationship with or connection to an Indian tribe." (In re Y.W., supra, 70 Cal.App.5th at p. 554.)
Here, however, DCFS did not rely solely on Mother's statements regarding Indian heritage. Instead, it interviewed both the family member she claimed had Indian heritage (Lois) and inquired of the other relatives with whom it came into contact.
Moreover, the inquiries revealed that, rather than lacking knowledge due to her time in foster care, Mother was the only maternal relative who knew that Lois potentially had Indian heritage.
Acknowledging that DCFS did more than rely on Mother's statements, Mother also contends the conflicting information DCFS received warranted further investigation, relying on In re Gabriel G. (2012) 206 Cal.App.4th 1160. Gabriel G. is distinguishable. There, a father filed a form stating that the paternal grandfather was a member of a Cherokee tribe. (Id. at p. 1163.) However, six months later, DCFS reported to the court that it had interviewed the father, and the father had stated he had no Indian heritage. (Id. at p. 1164.) The appellate court held that, under such circumstances, DCFS had a duty of further inquiry. (Id. at p. 1167.) The appellate court noted there was no record DCFS interviewed "anyone besides father, such as the paternal grandmother" and faulted the juvenile court for failing to ask the father about potential Indian heritage when he appeared at a hearing. (Id. at p. 1168.)
Here, however, DCFS did ask others about Lois's alleged Indian ancestry. Not only did DCFS ask Rhonda, Bobbie, and Briana, DCFS asked Lois herself. Additionally, DCFS communicated with the potential Cherokee and Apache tribes of which Lois could have been a member. Under the circumstances, such an investigation would have sufficed had DCFS provided the necessary information to the tribes it contacted. We address that shortcoming in the next section.
D. ICWA Notices
In June 2021, DCFS sent ICWA-030 forms to various Cherokee and Apache tribes. Mother contends these forms were inadequate and violated section 224.3, subdivision (a)(5) and 25 Code of Federal Regulations part 23.111(d) (2016), because they lacked Mother's former address; the maternal grandmother's former address, place of birth, and place and date of death; Lois's former address, place of birth, and whether she was deceased; and the names of the maternal grandfather, the other maternal great-grandmother, and both maternal great-grandfathers.
We reject as irrelevant Mother's argument that the forms violated section 224.3 or 25 Code of Federal Regulations part 23.111 (2016). Those sections apply only when the court "knows or has reason to know" that an Indian child is involved. (§ 224.3, subd. (a) ["If the court, a social worker, or probation officer knows or has reason to know, as described in subdivision (d) of Section 224.2, that an Indian child is involved, notice pursuant to Section 1912 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) shall be provided . . ."]; 25 C.F.R. § 23.111(a) (2016) ["When a court knows or has reason to know that the subject of an involuntary foster-care-placement or termination-of-parental-rights proceeding is an Indian child, the court must ensure that: [¶] (1) The party seeking placement promptly sends notice of each such child-custody proceeding (including, but not limited to, any foster-care placement or any termination of parental or custodial rights) in accordance with this section"].) As Mother concedes, the court had no reason to know that Amber was an Indian child. Therefore, the ICWA-030 forms sent to the tribes did not need to comply with section 224.3 or 25 Code of Federal Regulations part 23.111 (2016).
However, while there was no reason to know Amber was an Indian child, there was reason to believe she was. "There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (§ 224.2, subd. (e)(1).) DCFS admitted there was "reason to believe" Amber was an Indian child in its petition. If there is reason to believe the child is an Indian child but there is insufficient information to know, the court or DCFS "shall make further inquiry regarding the possible Indian status of the child," including contacting the tribes "that may reasonably be expected to have information regarding the child's membership status, or eligibility." (§ 224.2, subd. (e)(2)(C).) "Contact with a tribe shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case." (Ibid.)
DCFS does not deny the ICWA-030 forms it sent to the Cherokee and Apache tribes lacked the information Mother complains is missing. Nor does it deny that at least some of the missing information was known to it (such as whether Lois was deceased). DCFS does not claim that other missing information (such as Mother's former address or the name of the maternal grandfather) was not readily available to it, either by interviewing Mother or individuals with whom it was already in contact, or by reviewing Mother's dependency case files. DCFS argues only that the omissions are irrelevant because it was never required to provide notice to the tribes in the first place, as there was no reason to know that Amber was an Indian child.
DCFS's argument misses the mark. We agree that if notice is unnecessary under section 224.3-because there is no reason to know the child is an Indian child-then it is irrelevant if the ICWA-030 forms omitted information required by that section. (See In re Q.M. (2022) 79 Cal.App.5th 1068, 1084 [when ICWA notices not required, "[a]ny insufficiencies in the notices sent . . . were legally irrelevant"].) Here, however, DCFS was required to contact the relevant Indian tribes under section 224.2, and to share "information identified by the tribe as necessary for the tribe to make a membership or eligibility determination." (§ 224.2, subd. (e)(2)(C).) While nothing in the record directly elucidates what information has been identified by each tribe as necessary to make an eligibility determination, DCFS chose to carry out its obligation under section 224.2, subdivision (e)(2)(C), by sending ICWA-030 forms to the tribes. That form contains spaces to list the information the parties agree is missing. It is therefore reasonable to conclude that this information is needed by the tribes to make the necessary determinations. At least two of the tribes that responded to DCFS stated that their determination was based on the information DCFS provided. Thus, on this record, we cannot say that the omission of this information did not materially affect any of the tribes' ability to make a membership or eligibility determination, and we cannot deem the omission harmless.
DISPOSITION
The court's order is conditionally affirmed. On remand, the court is to direct DCFS to satisfy its obligations under section 224.2, subdivision (e)(2)(C), to contact the tribes that may reasonably be expected to have information on Amber's membership or eligibility. DCFS shall provide those tribes with the information identified by them as necessary to make a membership or eligibility determination, to the extent such information is known or is readily obtainable by DCFS (e.g., through interviews with Mother, interviews with extended family members believed to have relevant information and for whom contact information can be obtained, and a search of Mother's previous dependency case files). DCFS shall thereafter inform the juvenile court of its findings and actions, and the court shall determine whether the ICWA inquiry requirements have been satisfied and whether Amber is an Indian child. If the court finds she is an Indian child, it shall proceed in conformity with ICWA and related California law. Mother shall be notified of all hearings related to this remand and shall have the right to appear and be represented by counsel.
We concur: BENDIX, Acting P. J., WEINGART, J.