Opinion
C092721
05-25-2021
In re T.L. et al, Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. L.M., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD240193, JD240194, JD240195, JD240196)
L.M. (mother), parent of the four minors, appeals from the juvenile court's order placing three of the minors in the care of their maternal grandmother and one minor in the care of her father. Mother's sole contention on appeal is that the Sacramento County Department of Child, Family and Adult Services (Department) and the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We will affirm the juvenile court's orders.
BACKGROUND
On October 9, 2019, juvenile dependency petitions were filed under Welfare and Institutions Code section 300 for mother's four children: T.L. (two years old), D.H. (five years old), L.P. (10 years old), and K.M. (12 years old). The petitions alleged there was substantial risk to the children due to mother's excessive discipline, alleging on October 1, 2019, mother punched L.P. and struck her with a belt, causing bruising. The detention report provided more background on the allegations and noted mother "denied having any Native American heritage."
Undesignated statutory references are to the Welfare and Institutions Code.
On October 16, 2019, the juvenile court ordered the children detained. Mother filed a parental notification of Indian status stating she "may have Indian ancestry" listing "Cherokee/Miwok" as the relevant tribes and that her mother "is or was a member" of "Cherokee/Miwok." The court found "[t]here is reason to believe the children may be Indian children" and ordered the Department to make further inquiries regarding possible Indian status of the children. The children's fathers indicated they had no Indian ancestry.
The Department's jurisdiction and disposition hearing report noted ICWA "may apply" because mother indicated she may have "Cherokee or Miwok tribal affiliation." The report also stated "[n]otice to the Tribes is pending."
On December 13, 2019, the Department provided further information on ICWA inquiry in an addendum to the jurisdiction and disposition report. Mother told the social worker she had Cherokee heritage and said the maternal grandmother "would be able to provide more information." The social worker met with the grandmother, who said she "believe[d]" the family has "Cherokee heritage" from the maternal great-great-grandmother who was "believe[d]" to be a "member or eligible for enrollment with a Cherokee tribe."
The social worker reviewed Bureau of Indian Affairs lists and contacted the State Department of Social Services, Office of Tribal Affairs to get contact information for the relevant Cherokee tribes. The social worker e-mailed the Eastern Band of Cherokee Indians, Cherokee Nation, and the United Keetoowah Band of Cherokee with the children's names, birthdates, the mother's name and birthday, the maternal grandmother's name and birthday, and the maternal great-great-grandmother's name. A representative from the Eastern Band of Cherokee Indians responded, requesting the information be sent by certified letter, which the social worker did. As of the date of the addendum, the social worker was waiting for a response from the three identified Cherokee Tribes. There was no further status update regarding the responses in the four subsequent report addenda.
The contested jurisdiction and disposition hearing started on August 11, 2020. Over several days, mother, the minors, the fathers, the maternal grandmother, the social worker, and other witnesses testified. The juvenile court took the matter under submission on August 25. On August 28, the court found by a preponderance of the evidence that the allegations in the petition were true, finding the excessive punishment was not a "one-time incident, but rather, it happened several times with the other children." The court also found by clear and convincing evidence there would be substantial risk of detriment if the children were to remain with the mother. It ordered K.M., D.H., and T.L. placed with their maternal grandmother and L.P. placed with her father and ordered reunification services for mother. The court set for February 2021 a permanency hearing (§ 366.21, subd. (e)) for K.M., D.H., and T.L., and a home review hearing (§ 366) for L.P.
The juvenile court made no mention of a finding under ICWA in its oral orders. The court's written orders adopted findings from the jurisdiction and disposition report, including that the children "maybe an Indian child [sic], and notice of the proceeding and the right of the tribe to intervene was provided as required by law. Proof of such notice was filed with the court."
Mother timely appealed.
DISCUSSION
Mother argues the Department failed to conduct the proper notice and inquiry procedures under ICWA because the social worker only interviewed the maternal grandmother, there had not been any response from the Cherokee tribes, and there is no indication the minors' possible Miwok ancestry was investigated. Mother also contends the court never made an adequate ICWA finding.
ICWA imposes certain inquiry and notice requirements if there is a "reason to know" or a "reason to believe" a child is an Indian child. There is a reason to know if any of the circumstances under section 224.2, subdivision (d) are met, generally where the court has direct and reliable knowledge the child is an Indian child (§ 224.2, subd. (d)(1)-(6)). A reason to know triggers a court's obligation to confirm whether the child is an Indian child and must treat the child as an Indian child until it determines otherwise. (§ 224.2, subds. (g), (g)(1).) The notice provisions of section 224.3 must also be complied with. (§ 224.3, subd. (a).)
Reason to believe exists when there is some indication the child may be an Indian child but there is no direct knowledge establishing reason to know. (In re M.W. (2020) 49 Cal.App.5th 1034, 1044-1045.) A reason to believe triggers the inquiry provisions under section 224.2, subdivision (e) which requires: (1) interviewing parents and extended family; (2) contacting the Bureau of Indian Affairs and the State Department of Social Services to help identify contact information "of the tribes in which the child may be a member" and "contacting the tribes and any other person that may reasonably be expected to have information regarding the child's membership status or eligibility"; and (3) "[c]ontacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility." (§ 224.2, subd. (e); In re D.S. (2020) 46 Cal.App.5th 1041, 1052-1053.)
In this case, there was never any direct or reliable information establishing a reason to know the minors were Indian children; mother does not contend otherwise. There was, however, a reason to believe, as mother claimed possible Cherokee or Miwok heritage. As the juvenile court found, this was enough to establish a reason to believe the minors may have Cherokee or Miwok heritage. (See In re D.F. (2020) 55 Cal.App.5th 558, 544 [finding the mother's statement she "may have Indian ancestry" created a reason to believe].)
We have discussed above the requirements where a reason to believe is established; we see no evidence here that the Department has failed to satisfy these requirements thus far. The social worker followed up with mother after she claimed possible heritage, and mother said she may have Cherokee heritage but that the maternal grandmother would know more. The social worker then spoke with the grandmother who said she "believe[d]" the maternal great-great-grandmother was a member of a Cherokee tribe. Interviewing the maternal grandmother here was enough because she was "the only family member with any information" regarding possible familial heritage. (In re M.W., supra, 49 Cal.App.5th at p. 1045.) The social worker was not obligated to interview every extended family member. (See In re D.S., supra, 46 Cal.App.5th at p. 1053 [finding an interview with an aunt satisfied the first step of § 224.2, subd. (e)].)
The record references the great-great grandmother in the past tense and mother does not claim that the great-great grandmother should have been interviewed, thus we assume there is no dispute but that she was deceased and thus unavailable for an interview.
The record indicates the Department is in the process of completing the remaining steps of the inquiry into the children's possible Cherokee heritage. The social worker contacted the required government agencies for information on Cherokee tribes and then contacted these tribes via email, which is permissible under section 224.2, subdivision (e). One tribe wrote back requiring certified mail, and the social worker sent a certified letter to this tribe. Mother concedes the Department's inquiry "was not yet completed because the last information contained in the record indicates that [the Department] was still waiting for the [Cherokee] tribes to respond." She also concedes that the court "did not make a specific finding regarding the applicability of the ICWA." Mother's concessions confirm that her contention of error is premature. Since the Department has not concluded its inquiry into possible Cherokee heritage, mother cannot establish error and any opinion we could give on the final steps of the inquiry would be premature and advisory. (See People v. Buza (2018) 4 Cal.5th 658, 693 ["We . . . abide by . . . a ' "cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more" ' "]; cf. Safai v. Safai (2008) 164 Cal.App.4th 233, 242-243 ["The Trustees have advanced no particular reason why this court should rule on those objections in the first instance, when there is nothing to indicate that the trial court will not fulfill its duty at some future time"]; Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171 [ripeness doctrine generally prevents courts from issuing purely advisory opinions on matters before the controversy between the parties has become sufficiently "definite and concrete"].)
We note it is also unnecessary to wait indefinitely for the tribes to respond if the juvenile court finds they were given a sufficient opportunity. (In re M.W., supra, 49 Cal.App.5th at 1047 ["the two tribes were given nearly two months within which to provide a determinative response to the Department's ICWA inquiry, a time period we find reasonable in the context of a dependency proceeding"].)
We reject mother's contention that the Department failed to comply with ICWA by failing to send notice to any Miwok tribes. Based on the information provided by mother and the maternal grandmother, no further inquiry into possible Miwok heritage was necessary. The second and third steps of the reason to believe inquiry require collecting information and contacting "the tribes and any other person that may reasonably be expected to have information regarding the child's membership." (§ 224.2, subds. (e)(2)(B), (C), italics added.) The grandmother was identified by mother as the family member named by mother to know the most about any possible Indian heritage, and she did not say the family had Miwok heritage. The Department "is not required to 'cast about' for information or pursue unproductive investigative leads." (In re D.S., supra, 46 Cal.App.5th at p. 1053.)
Because inquiry into the minors' possible Indian heritage is still ongoing it is possible further information regarding Miwok heritage may surface. Again, as mother acknowledges, the Department is still in the inquiry stage. We assume that, should additional information be obtained that provides a reason to believe the minors may have Miwok heritage, the Department will follow up with any necessary inquiry and notice prior to the juvenile court making its ICWA determination. But to the extent the court did make a ruling that notice to Miwok tribes was not necessary when it adopted the finding "notice of the proceeding and the right of the tribe to intervene was provided as required by law," we find this ruling is supported by substantial evidence at this stage of the proceedings.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Hull, J.