Opinion
B321718
07-07-2023
In re E.C. et al., Persons Coming Under the Juvenile Court Law. v. T.C. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant T.C. Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant R.C. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 18CCJP08217 Craig S. Barnes, Judge. Affirmed.
John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant
T.C. Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant R.C.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
CURREY, Acting P. J.
INTRODUCTION
R.C. (mother) and T.C. (father) appeal from the orders terminating their parental rights with respect to their two children, E.C. and R.C., under Welfare and Institutions Code section 366.26. Their sole contention on appeal is that the Department of Children and Family Services (Department) failed to comply with the further inquiry requirement of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). Based on this argument, they assert we should vacate the juvenile court's findings that ICWA does not apply to the children, conditionally affirm the orders terminating their parental rights, and remand the case for further proceedings.
All undesignated statutory references are to the Welfare and Institutions Code.
For the reasons discussed below, we conclude substantial evidence supports the juvenile court's implied finding that the Department discharged its duty of further inquiry. Accordingly, we affirm.
BACKGROUND
Mother and father are the parents of E.C., born in December 2010, and R.C., born in August 2014. The family came to the Department's attention in October 2018, when it received a referral alleging the parents were neglecting the children.
On December 26, 2018, the Department filed a section 300 petition on the children's behalf, alleging they were at risk of harm due to the parents' drug abuse (counts b-1 and b-2). The ICWA- 010(A) forms attached to the petition stated mother informed the Department on November 2, 2018, that neither she nor the children had any Indian ancestry.
The Department interviewed maternal grandmother in January 2019. While family members had told her she had Blackfoot and Chumash ancestry, she stated she was not a registered tribe member. Maternal grandmother provided the Department with contact information for other maternal relatives. The Department attempted to reach maternal greataunt, Tina R., but was unable to leave a voicemail. The Department spoke to maternal great-aunt, Lenor R., who reported the family had "Mexican Indian[ ] not Native American" ancestry. Lenor R. claimed the family had ancestry with the Pima tribe, but no one was a registered tribe member.
In a February 2019 interview, mother told the Department her family had ancestry with the Tongva tribe (L.A. Basin) and Chumash tribe (Santa Barbara).
On February 11, 2019, the parents filled out and signed ICWA-020 forms. In his form, father stated he had no Indian ancestry as far as he knew. In her form, mother indicated she had Blackfoot ancestry through maternal grandmother, and Chumash and Tongva ancestry through maternal grandfather. At the detention hearing held the same day, the juvenile court received the parents' ICWA-020 forms and ordered the Department to investigate mother's Indian heritage.
At the February 2019 adjudication hearing, the juvenile court sustained the petition and assumed jurisdiction over the children pursuant to section 300, subdivision (b). After removing the children from both parents, the juvenile court ordered family reunification services for the parents, including parenting classes, counseling, alcohol and drug counseling, and random drug testing.
The juvenile court continued family reunification services between February 2019 and July 2021. In July 2021, the juvenile court terminated services and scheduled a section 366.26 hearing.
In December 2021, the Department reported it had interviewed maternal grandmother again regarding the family's Indian heritage. Maternal grandmother indicated she had no knowledge of American Indian or Native American heritage on her side of the family. She reported she had heard maternal grandfather's side of the family might have Blackfoot ancestry, but she knew they were not registered tribe members. Maternal grandfather was unable to speak to the Department because he was nonverbal due to a stroke. Maternal grandmother did not know anyone else the Department could contact to obtain additional information. The Department reported it would investigate the family's ICWA claims with the Blackfoot, Tongva, Chumash and Pima tribes and send notices to those tribes.
The Department sent ICWA notices to the Gabrielino-Tongva Indian tribe and the Bureau of Indian Affairs (BIA) on February 7, 2022. Subsequently, the Department filed the return receipts received from the tribe and the BIA with the juvenile court. The Department also filed a February 18, 2022 letter from the BIA indicating ICWA did not apply because the Gabrielino-Tongva Indian Tribe is not a federally recognized tribe. Additionally, the Department reported it received a letter from the Gabrielino-Tongva Indian tribe in March 2022 stating the children were not members of the tribe.
In April 2022, the Department sent ICWA notices to the Blackfoot, Chumash, Gila, and Pima tribes. In May 2022, the Department received a letter from the Santa Ynez Band of Chumash Indians stating the children were not eligible for enrollment. The Department also received signed return receipts from the Salt River Pima-Maricopa Indian Community, the Santa Ynez Band of Chumash Mission Indians, the Gila River Indian Community of the Gila River Indian Reservation, and the Blackfeet Tribe. In June 2022, the Department received a letter from the Gila River Indian tribe stating the children were not eligible for enrollment. The same month, the Department received a letter from the Salt River Pima-Mariposa Indian tribe stating the children were not enrolled or eligible for membership with the tribe. The Department filed all the foregoing return receipts and letters with the juvenile court. Also in June 2022, the Department tried to contact a representative of the Blackfoot tribe regarding the status of the children's ICWA determination, but was unable to leave a message because her voicemail was full. The Department followed up with an email to the representative but did not receive a response.
At the section 366.26 hearing held in July 2022, the juvenile court found the Department had given proper notice to the tribes and there was no reason to believe ICWA applied to the children. The juvenile court subsequently terminated parental rights. The parents timely appealed.
DISCUSSION
1. Governing Principles
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 . . . must follow before removing an Indian child from his or her family." (In re Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.).) Both ICWA and the Welfare and Institutions Code define an "Indian child" 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); § 224.1, subds. (a) and (b) [incorporating federal definitions].)
Our state Legislature incorporated ICWA's requirements into California statutory law in 2006. (In re Abbigail A. (2016) 1 Cal.5th 83, 91.)
The juvenile court and the Department have "an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9, 11-12.) This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice. (In re Y.W. (2021) 70 Cal.App.5th 542, 552; accord, In re H.V. (2022) 75 Cal.App.5th 433, 437; In re Josiah T. (2021) 71 Cal.App.5th 388, 402.)
The duty to inquire whether a child is an Indian child begins with "the initial contact," i.e., when the referring party reports child abuse or neglect that jumpstarts the Department's investigation. (§ 224.2, subd. (a).) The Department's initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (Id. subd. (b).) Similarly, the juvenile court must inquire at each parent's first appearance whether he or she "knows or has reason to know that the child is an Indian child." (Id. subd. (c).) The juvenile court must also require each parent to complete Judicial Council form ICWA-020, Parental Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).) The parties are instructed to inform the court "if they subsequently receive information that provides reason to know the child is an Indian child." (25 C.F.R. § 23.107(a); § 224.2, subd. (c).)
A duty of further inquiry is imposed when the Department or the juvenile court has "reason to believe that an Indian child is involved" in the case. (§ 224.2, subd. (e); Austin J., supra, 47 Cal.App.5th at pp. 883; In re D.S. (2020) 46 Cal.App.5th 1041, 1049.) When the Department or the juvenile court has "reason to know" an Indian child is involved, formal ICWA notice is sent to the relevant tribes. (In re D.S., supra, at p. 1052.)
"A '"reason to know' exists 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 [he or she] is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[;] and [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d).)'" (In re J.S. (2021) 62 Cal.App.5th 678, 687.)
"Notice to a tribe 'must include enough information for the tribe to "conduct a meaningful review of its records to determine the child's eligibility for membership."' (In re D.S., supra, 46 Cal.App.5th at p. 1050; see In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576 ['[t]he purpose of the ICWA notice provisions is to enable the tribe or the [Bureau of Indian Affairs] to investigate and determine whether the child is in fact an Indian child'].) This includes providing 'identifying information for the child's biological parents, grandparents, and greatgrandparents, to the extent known.' (In re D.S., at p. 1050; see § 224.3, subd. (a)(5)(C).) 'A determination by an Indian tribe that a child is or is not a member of, or eligible for membership in, that tribe . . . shall be conclusive.' (§ 224.2, subd. (h).)" (In re J.S., supra, 62 Cal.App. 5th at p. 688.)
We review a juvenile court's ICWA findings for substantial evidence. (In re Josiah T., supra, 71 Cal.App.5th at p. 401; In re S.R. (2021) 64 Cal.App.5th 303, 312.)
2. Analysis
The parents argue insufficient evidence supports the juvenile court's finding that ICWA does not apply. They argue the Department failed to fulfill its duty of further inquiry because it did not provide the juvenile court with a detailed description of the information obtained from the parents, extended relatives, or the information provided to the tribes. The parents contend we need not determine whether the errors were prejudicial because they seek a conditional affirmance with remand only for ICWA compliance purposes.
Over the parents' objection, we granted the Department's motion to take additional evidence and judicial notice of the copies of the ICWA-030 notices sent to the BIA and the relevant tribes. In their reply brief, the parents make similar arguments to those in their opposition to the Department's request for judicial notice. To the extent the parents present additional arguments in their reply brief challenging the Department's failure to file the notices with the juvenile court, those arguments are not properly before us. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [in general, points raised for the first time in a reply brief will not be considered].)
In support of their contention, the parents cite In re I.F. (2022) 77 Cal.App.5th 152 (I.F.) and In re Dominick D. (2022) 82 Cal.App.5th 560 (Dominick D.). As discussed below, we conclude their argument is meritless because both cases are factually distinguishable from the present case.
As the parents note, in Dominick D., the Department failed to discharge its duty of initial inquiry when it failed to interview multiple maternal relatives. (Dominick D., supra, 82 Cal.App.5th at p. 567.) There, the record showed "no indication" the Department attempted to locate or contact maternal relatives or ask them about the child's Indian ancestry. (Id. at p. 565.) Here, the record shows the Department contacted the several maternal relatives for whom it had contact information.
The parent in I.F. argued the Department failed to fulfill its duty of further inquiry. (I.F., supra, 77 Cal.App.5th at pp. 156157.) Even though there was no record of the Department's efforts to gather maternal great-grandfather's biographical information or provide his information to the BIA or the relevant tribes, the juvenile court found the Department conducted a diligent inquiry into the child's Indian ancestry and found ICWA did not apply. (Id. at pp. 160, 166, fn. 4.) On appeal, the Department argued the duty of further inquiry was not triggered. (Id. at p. 165.) Here, by contrast, the Department concedes the duty of further inquiry was triggered. Moreover, the Department argues the record demonstrates it undertook sufficient efforts to inquire about the children's possible Indian ancestry. We agree with the Department.
"'"[F]urther inquiry" "includes: (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and State Department of Social Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that might have information regarding the child's membership or eligibility in a tribe."' [Citations.] 'Contact with a tribe shall, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of notices under' ICWA and '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.'" (In re J.S., supra, 62 Cal.App.5th at pp. 686-687.)
As noted above, the Department spoke with multiple maternal relatives and sent notices to the relevant tribes and the BIA. The ICWA notices sent to the Gabrielino (Tongva) Band of Mission Indians, the Gabrielino-Tongva Indian Tribe, and the Sacramento Area Director of the BIA include: mother's name, current and former address, birth date and birth state, tribe names, and information indicating mother did not know if the family was registered; maternal grandmother's name, address, birth date, and information indicating maternal grandmother denied any Native American ancestry; maternal grandfather's name, address, birth date, tribe names, and information indicating he stated he was not registered; maternal greatgrandmother's name, birth date, tribe names, year of death, and information indicating she was not a registered tribe member; maternal great-grandfather's name, birth date, tribe names, year of death, and information indicating he was not registered.
The ICWA notices sent to the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana, the Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation in California, the Salt River Pima-Maricopa Indian Community of the Salt River Reservation in Arizona, and the Gila River Indian Community of the Gila River Indian Reservation in Arizona include: mother's name, current and former address, birth date, tribe names, and information indicating maternal grandmother said the family may have had Blackfoot, Chumash and Pima ancestry, but was unsure what side of the family, and that they were not registered members of any tribes; maternal grandmother's name, address, birth date, and tribe names; maternal grandfather's name, address, birth date, and information indicating maternal grandmother reported maternal grandfather was nonverbal due to a stroke and that he did not have any Native American or Indian ancestry on his side of the family; maternal great-grandmother's name, birth date, tribe names, year and place of death; maternal great-grandfather's name, birth date, tribe names, year of death; and information indicating the Department contacted the parents in April 2022 for additional information regarding family members, but their telephone number was disconnected.
The record shows the Department received copies of the signed domestic return receipts from the Gabrielino-Tongva Indian Tribe and the Sacramento Area Director of the BIA. The Department also received a letter from the Co-Chair of the Gabrielino-Tongva Indian Tribe stating the children are not members of the tribe and that the Gabrielino-Tongva Indian Tribe is not a federally recognized tribe. Moreover, the Department received letters and signed domestic return receipts from the Santa Ynez Band of Chumash Indian Tribe, the Gila River Indian Tribe and the Salt River Pima-Mariposa Indian Tribe. The letters indicated the children were ineligible for enrollment. The Department provided copies of the foregoing letters and signed domestic return receipts to the juvenile court along with signed domestic return receipts from the Blackfeet Tribe and the BIA.
In sum, the juvenile court's finding that the Department completed its duty of further inquiry is supported by the evidence. Similarly, substantial evidence supports the juvenile court's conclusion that there is no reason to know that ICWA applies. Before finding ICWA inapplicable, the court found the Department conducted a "proper and adequate further inquiry" and exercised "due diligence to identify and work with" all of the pertinent tribes. (§ 224.2, subds. (i)(2), (g).) For reasons we have discussed ante, we conclude the court made an appropriate finding based on this record and the circumstances before it.
Because we find the Department fulfilled its ICWA duties, we do not address the parents' argument that we need not conduct a harmless error analysis.
DISPOSITION
The orders terminating parental rights are affirmed.
We concur: COLLINS, J. DAUM, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.