Opinion
D081286
03-20-2023
In re C.B., a Person Coming Under the Juvenile Court Law. v. E.A., Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant. Claudia G. Silva, County Counsel and Lisa M. Maldonado, Chief Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. J520642 Michael P. Pulos, Judge. Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant.
Claudia G. Silva, County Counsel and Lisa M. Maldonado, Chief Deputy County Counsel for Plaintiff and Respondent.
IRION, J.
E.A. (Mother) appeals the order terminating her parental rights to her daughter, C.B. Mother's sole contention is that the San Diego County Health and Human Services Agency (Agency) failed adequately to inquire into C.B.'s Native American ancestry as required by the federal Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and Welfare and Institutions Code section 224.2. We disagree and affirm.
W.B. (Father) is not a party to this appeal.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2021, Father was found unconscious and under the influence of controlled substances in a vehicle. C.B. was unsecured in the backseat with a dirty diaper and "dirty hair." Father was arrested, and C.B.'s maternal grandmother took custody of her. Around the same time, Mother was being kicked out of a hotel, using opioids, and leaving C.B. with a stranger.
C.B. came to the Agency's attention through the child abuse hotline after Father's arrest. The Agency filed a juvenile dependency petition under section 300, alleging Father and Mother were engaging in substance abuse, unable to care for and protect C.B., and putting her at a substantial risk of harm.
At the detention hearing on January 26, 2021, the juvenile court sustained the allegations of the petition and detained C.B. in her maternal grandmother's care. The court ordered the Agency to investigate "whether [C.B.] is an Indian child."
The following month, the Agency spoke with Father, who denied any known Native American ancestry on his side of the family and did not think C.B. had any known Native American ancestry on Mother's side. When asked about his relatives, Father stated "he did not want [the Agency] to call them or have them involved in the case."
The court also ordered the parents to submit ICWA-020's to the social worker. The record does not indicate whether they did so. Mother does not raise any issue regarding the forms on appeal.
In its jurisdiction/disposition report, the Agency stated it had made several unsuccessful attempts to speak with Mother about the case and the family's Native American ancestry. She appeared at the jurisdiction/disposition hearing in April 2021 and, when asked by the court, denied any Native American ancestry.
The Agency also reached out to C.B.'s other relatives to inquire about their Native American ancestry. It called the paternal grandmother on four occasions from May through July 2022, but she did not answer. The Agency left her voicemails but never received a return call.
In June and July 2022, the Agency spoke to the maternal grandmother, maternal step-grandfather, and maternal aunt and asked each the following questions:
1. Are you aware of anyone in the family having Native American ancestry?
2. Has anyone in the family ever lived on a reservation?
3. Has anyone in the family ever received any financial, medical, or educational assistance from a tribe?
4. Does anyone in the family speak a Native American language?
5. Is anyone in the family an enrolled member of a tribe?
6. Is there anyone in the family who might have more information about Native American ancestry in the family?
The maternal step-grandfather answered "no" to all six questions. The maternal grandmother and maternal aunt answered "no" to questions 2 through 5. In response to questions 1 and 6, the maternal grandmother said there may be Native American ancestry in the family, but did not know "any other information [or] any idea of what tribe." She stated the maternal great-grandfather might have had more information, but he had died. The maternal grandmother specifically denied knowing anyone else with information on Native American ancestry. The maternal aunt also said there may be Native American ancestry through the maternal grandmother's family, but denied knowing anything more or anyone else who might have more information.
At the section 366.26 hearing on October 7, 2022, the court found ICWA inapplicable and terminated all parental rights. Mother appealed.
DISCUSSION
Mother contends the Agency failed to discharge its inquiry obligations under ICWA. She complains the Agency's initial inquiry was deficient because the paternal grandmother and other paternal relatives were not asked about their Native American ancestry. Mother further claims the Agency's further inquiry was deficient because the Agency never reached out to other maternal relatives, the Bureau of Indian Affairs (BIA), or tribes. We disagree. As we shall explain, the Agency made reasonable and good faith efforts to inquire into C.B.'s possible Native American ancestry and uncovered no viable leads that would justify any further inquiry.
We begin by setting out the Agency's inquiry obligations under ICWA and the state implementing statute. In response to concerns regarding the separation of Native American children from their tribes through adoption or foster care placement (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.)), Congress gave tribes the "right to intervene in or exercise jurisdiction over a dependency proceeding involving the Indian child" (In re I.F. (2022) 77 Cal.App.5th 152, 160). To enable this right, California law charges courts and county welfare departments with three" 'affirmative and continuing'" duties. (§ 224.2, subd. (a); see In re T.G. (2020) 58 Cal.App.5th 275, 290 (T.G.); Isaiah W., at p. 9; In re D.S. (2020) 46 Cal.App.5th 1041, 1052 (D.S.).)
An" 'Indian child'" is "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 definition].)
"First, from the Agency'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." (D.S., supra, 46 Cal.App.5th at p. 1052.) "If [the] child is placed into the temporary custody of a county welfare department pursuant to Section 306 or county probation department pursuant to Section 307," this duty includes "asking 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 and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).)
The record does not definitively show whether or not C.B. was "delivered by a peace officer" into the Agency's "temporary custody." (§ 306, subd. (a)(1).) If she was not, then the Agency's duty to question extended family members imposed by section 224.2, subdivision (b) arguably was not triggered. (See In re Adrian L. (2022) 86 Cal.App.5th 342, 355-359 (conc. opn. of Kelley, J.).) Because the record is not clear on the matter and the parties have not raised the issue, we assume without deciding that the Agency took "temporary custody" of C.B. and therefore had a duty to question extended family members about her Native American ancestry.
"Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the Agency 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.'" (D.S., supra, 46 Cal.App.5th at p. 1052.) This further inquiry includes, but is not limited to: (1) interviewing the parents and extended family members; (2) contacting the BIA and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be or eligible to be a member; and (3) contacting the tribes or any persons that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility. (§ 224.2, subd. (e)(1)-(2).)
"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." (D.S., supra, 46 Cal.App.5th at p. 1052, italics added.)
We review for substantial evidence the juvenile court's findings that the Agency satisfied its inquiry obligations. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.) We find such evidence here as to both the initial inquiry and the further inquiry.
As to the initial inquiry, Mother faults the Agency for "never ask[ing] the paternal grandmother about [the family's] Indian ancestry." An agency is only obligated to make "a good faith effort to gather information about the children's membership status or eligibility." (In re D.F. (2020) 55 Cal.App.5th 558, 570.) Here, the Agency telephoned the paternal grandmother on four different days over a two-month period and left her several voicemails, but she never called back. A good faith effort does not mean perpetually inquiring of a person who "refuse[s] to talk" to the Agency. (In re A.M. (2020) 47 Cal.App.5th 303, 323 (A.M.))
Mother also faults the Agency for not requesting "contact information for additional paternal relatives that may have information regarding Indian ancestry." Father, however, stated early on that he did not want his relatives to be involved in the case and unequivocally denied any known Native American ancestry on his side of the family. Further, the paternal grandmother refused to return any of the Agency's calls. Thus, Mother "has not demonstrated there was a viable lead that would require [the Agency] 'to make a meaningful effort to locate and interview [additional paternal relatives] to obtain whatever information they may have as to the child's possible Indian status.'" (A.M., supra, 47 Cal.App.5th at p. 323).
We are not persuaded to reach a different conclusion by the cases Mother cites in which appellate courts determined the child welfare agency's initial ICWA inquiry was inadequate. In In re Antonio R. (2022) 76 Cal.App.5th 421, 436, the agency easily could have asked maternal relatives who were "later present in the courtroom" about their Native American ancestry, but did not. In In re Elizabeth M. (2018) 19 Cal.App.5th 768, 778, 787-788, the agency never attempted to contact other relatives to investigate the mother's claim she was part Red Tail Indian. In In re Y.W. (2021) 70 Cal.App.5th 542, 552-553, the social worker never followed up on a potentially viable lead to locate the mother's biological parents and ask them about their Native American ancestry. In In re J.C. (2022) 77 Cal.App.5th 70, 78-79, the agency failed to ask family members with whom it had contact about Native American ancestry. Unlike these cases, where the agency failed to initiate contact with potentially viable leads, in this case, the Agency interviewed the Father and tried to interview his mother, but she did not respond. Since Father unequivocally denied any Native American ancestry and did not want the Agency to contact his relatives, the Agency had no obligation "to 'cast about' for information or pursue unproductive investigative leads." (D.S., supra, 46 Cal.App.5th at p. 1053.)
Mother next contends the Agency did not satisfy its duty of further inquiry under ICWA because, after the maternal grandmother and aunt reported they might have Native American ancestors, "[t]he Agency did not inquire of any additional maternal relatives, contact the Bureau of Indian Affairs, or any specific tribes." The record shows, however, that the Agency did contact extended family members-namely, C.B.'s maternal grandmother, maternal step-grandfather, and maternal aunt-about their Native American ancestry. None of them could identify a specific Indian tribe from which they might have descended or anyone alive who might have additional information about the family's Native American ancestry. The Agency thus had no reason to believe other maternal relatives might have any useful information. Because the Agency had no "further basis on which to predicate the belief [C.B.] is an Indian under the Act, [it] was not required to make further inquiry." (In re Levi U. (2000) 78 Cal.App.4th 191, 198; see D.S., supra, 46 Cal.App.5th at p. 1053 [Agency need not" 'cast about' for information or pursue unproductive investigative leads"].) And because none of the contacts the Agency pursued "yield[ed] information from which a specific tribal affiliation could be deduced," it had no duty to contact the BIA or any tribes. (In re Kenneth D. (2022) 82 Cal.App.5th 1027, 1033.)
The cases on which Mother relies for her claim the Agency conducted inadequate further inquiry, namely, In re S.R. (2021) 64 Cal.App.5th 303 and T.G., supra, 58 Cal.App.5th 275, are distinguishable. In S.R., the agency failed to contact the maternal grandfather, whom the mother had identified as a member of the Yaqui tribe of Arizona and still alive. (S.R., at p. 315.) In T.G., the agency did not interview the maternal grandmother, who identified Cherokee ancestry on her side of the family, and the aunt, whom the mother suggested had Native American heritage. (T.G., at pp. 283-284.) Here, by contrast, the Agency interviewed several of C.B.'s maternal relatives-all denied any specific tribal affiliation or knowing anyone else alive who might have useful information about their Native American ancestry. The Agency's" 'obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry.'" (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.)
Finally, Mother contends the Agency's purported failure to adequately inquire into C.B.'s Native American ancestry was prejudicial. We need not address the issue of prejudice, however, because "Mother has not demonstrated error, and reversal is not warranted under the circumstances of this case." (A.M., supra, 47 Cal.App.5th at p. 323.)
DISPOSITION
The juvenile court's order is affirmed.
WE CONCUR: MCCONNELL, P. J. BUCHANAN, J.