Opinion
A167769
12-19-2023
In re J.F., et al., Persons Coming Under the Juvenile Court Law. v. T.F., et al., Defendants and Appellants ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Alameda County Super. Ct. Nos. JD03251801 & JD03252201)
Petrou, J.
These consolidated juvenile dependency proceedings concern J.F. And N.F. (collectively, the children), whose parents are T.F. (Father) and A.L (Mother) (collectively, parents). Parents separately appeal from March 7, 2023 orders (one as to each child) terminating their parental rights under Welfare &Institutions Code section 366.26. The court found the children were adoptable and that no exception under section 366.26, subdivision (c)(1)(B) applied to preclude terminating parental rights.
All statutory references are to the Welfare and Institutions Code. "Rule" references are to the California Rules of Court. We deem Father's notices of appeal from the orders terminating parental rights to be from the orders dated March 7, 2023. (Rule 8.100(a)(2) [notice of appeal is sufficient if it identifies the particular order being appealed].) We dismiss Father's appeals from orders filed on October 8, 2022, November 1, 2022, and November 8, 2022 (as to each child) as he presents no issues concerning those orders in his opening brief, thereby abandoning them. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 & fn. 8 [issues are abandoned when not presented in appellant's opening brief].)
Father and Mother do not challenge the termination of their parental rights. Father's sole contention on appeal, which Mother joins (rule 8.200(a)(5)), is that this court should reverse and remand for further proceedings under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et. seq.; ICWA) and related California law (§ 224) on the basis that the juvenile court and the Alameda County Social Services Agency (Agency) failed to make a proper further inquiry of paternal family members and the Seminole tribes concerning the children's potential Indian ancestry.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
We affirm.
Facts
Petitions, Adjudications, and Termination of Parental Rights
Mother and Father are the parents of J.F. (born 2019) and N.F (born 2020).
In June 2020, the Agency filed two section 300 petitions (one concerning each child) seeking to have the children declared dependents of the court based on allegations including Mother's ongoing substance abuse. The petitions were later amended to include allegations of Father's history of untreated substance abuse.
In July 2020, following a detention hearing, the juvenile court granted the Agency temporary custody of the children, and they were placed in the home of their paternal uncle. Since that time the children have lived with their paternal uncle, who wishes to adopt them if reunification fails.
In August 2020, the juvenile court held a combined jurisdiction and disposition hearing for both children. The court sustained the allegations in the children's respective amended petitions, adjudged the children dependents of the court, and directed the Agency to provide parents with reunification services according to case plans prepared for each parent.
At the February 2021 six-month review, the juvenile court continued reunification services and set a 12-month review hearing. At the 12-month review, held in December 2021, the court terminated reunification services and set a section 366.26 hearing date in April 2022 to determine the children's permanent plans. The section 366.26 hearing was continued several times and ultimately held over the course of five days spanning October 2022 to February 2023.
On March 7, 2023, the juvenile court issued the orders under review. The court found the children were adoptable, found the parents had failed to establish any exceptions to termination of their parental rights, and terminated parental rights.
ICWA-Inquiry Facts
Shortly after the Agency's intervention, on June 24, 2020, Mother and Father reported to the Agency case social worker (CSW) that the children had no Indian ancestry.
At the July 1, 2020 detention hearing, the juvenile court elevated Father to presumed status, and questioned both parents about the children's potential Indian ancestry. Mother responded the children had no Indian ancestry. Father testified he had Indian ancestry through the Seminole tribes. He "had the family tree," and enough "Native American blood" to receive "Native American money," but he had not followed through and declined to accept any money. The court found Father "likely has some ICWA involvement," and directed the Agency to send "notices." The court asked Father's counsel to help him fill out a ICWA-020 form, and return it so the Agency would have appropriate information to send to the tribes.
Within the week following the detention hearing, the CSW met with Father, explained to him that the Agency would be sending ICWA notices, and asked him for information concerning his Indian ancestry. Father reported he had Indian ancestry through his mother (children's paternal grandmother), but he provided only her name. That same day, the CSW spoke with the children's paternal uncle (relative placement) concerning the children's potential Indian ancestry. The paternal uncle was "confused" by the inquiry because the family had no Indian ancestry. The CSW explained that when the Agency was made aware that a parent or child might have Indian ancestry, by law the Agency had to send notices. The paternal uncle replied that Father's report of Indian ancestry was" 'a lie.'" He explained that, years earlier, Father had heard that if he were registered with a tribe he could receive money from the tribe. He also stated that, as the oldest child in the family, he knew the family's lineage and there was no Indian ancestry.
About ten days thereafter, the CSW again spoke with Father who admitted that he had no Indian ancestry.
After speaking with Father and the paternal uncle, on that same day, the CSW sent ICWA 030-notices, by certified mail, return receipt requested, to the Sacramento Area Director of the Bureau of Indian Affairs (BIA), and the two federally-registered Seminole tribes: the Seminole Tribe of Florida and the Seminole Nation of Oklahoma. The notices included biographical information concerning the children and parents along with the paternal grandmother's full name and place of birth. The Agency received return receipts that the notices had been delivered to the BIA and the tribes. No written responses were received from the BIA or the Seminole Nation of Oklahoma. One month after sending the notices, the CSW called the tribal secretary for the Seminole Tribe of Florida and requested an update on the ICWA-030 notice. In response, the tribal secretary sent letters indicating the children did not meet the requirements for acceptance as citizens in the Florida tribe. There is no indication the CSW made a call to the Seminole Nation of Oklahoma.
"The term 'citizen' and 'citizenship' are synonymous with 'member' and 'membership' in the context of Tribal government." (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1009, fn. 4.)
At the August 2020 jurisdiction/disposition hearing, the juvenile court made a specific finding that ICWA did not apply based on the Agency's reports, the notices that had been sent and received by the BIA and the tribes, and the letters from the Seminole Tribe of Florida. The court's ICWA finding was reflected in its February 2021 minute order following the sixmonth review; the court stated its August 13 finding that ICWA did not apply "was still appropriate."
In November 2020, Father's counsel, on behalf of Father, filed a form ICWA-020 Parental Notification of Indian Status for each child, attesting that none of the listed criteria for knowing if a child was an Indian child applied to the children. Counsel signed the form under penalty of perjury that it was true and correct.
Following the conclusion of the section 366.26 hearing in March 2023, the juvenile court again found ICWA did not apply, stating the children were not Indian children, and no further notice was required under ICWA.
DISCUSSION
Parents contend the juvenile court's ICWA finding cannot be upheld because the juvenile court and the Agency failed to meet their obligations under ICWA and related California law by making a proper and adequate inquiry of paternal family members and the Seminole tribes. We disagree.
A. Applicable Law
ICWA establishes minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adopted homes. (In re Ezequiel G., supra, 81 Cal.App.5th at p. 988.) Following the enactment of new federal regulations in 2016, California made conforming amendments to its statutes, including portions of section 224, related to ICWA inquiry and notice requirements, which became effective January 1, 2019. (Assem. Bill No. 3176 (2017-2018 Reg. Sess.).)
State law currently provides both the juvenile court and the Agency have "an affirmative and continuing duty to inquire" whether a child for whom a petition may be filed is or may be an Indian child (§ 224.2, subd. (a)) "- that is, an '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])." (In re Ezequiel G., supra, 81 Cal.App.5th at p. 998.) This inquiry duty is divided into three phases: the duty of initial inquiry, the duty of further inquiry, and the duty to provide formal ICWA notices to pertinent tribes.
If a child is removed from parental custody, the Agency has an initial inquiry duty to ask certain persons, including parents and extended family members, "whether the child is, or may be, an Indian child." (§ 224.2, subd. (b).) Additionally, at the first appearance in court of the parents, the juvenile court has an initial inquiry duty to ask them whether they know or have reason to know that the child is an Indian child. (§ 224.2, subd. (c).)
If the initial inquiry of the Agency or the juvenile court provides" 'reason to believe' that an Indian child is involved in [the] proceeding - that is, if the court or social worker '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' - then the court or social worker 'shall make further inquiry' regarding the child's possible Indian status as soon as practicable. (§ 224.2, subd. (e).)" (In re Ezequiel G., supra, 81 Cal.App.5th at p. 999.) The statute does not specifically define what constitutes a "reason to believe" a child may be an Indian child. But the "further inquiry" is to include, but is not limited to, all of the following: "(A) Interviewing the parents . . . and extended family members to gather information required in paragraph (5) of subdivision (a) of section 224.3. [¶] (B) Contacting the Bureau of Indian Affairs . . . for assistance in identifying the names and contact information of tribes [and in] . . . contacting the tribes and any other person that may reasonably be expected to have information regarding the child's membership status or eligibility. [¶] (C) Contacting 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. Contact with a tribe shall, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent . . . [and] 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." (§ 224.2, subd. (e)(2)(A),(B),(C).)
The required information includes, among other things: The name, birth date, and birthplace of the Indian child, if known; the name of the Indian tribe in which the child is a member, or may be eligible for membership, if known; all names known of the Indian child's biological parents, grandparents, and great-grandparents, including maiden, married, and former names or aliases, and current and former addresses, dates and places of birth, dates and places of death; tribal enrollment information of other direct lineal ancestors of the child; and any other identifying information, if known. (§ 224.3, subd. (a)(5)(A),(B),(C).)
The juvenile court may find ICWA does not apply to a proceeding if it determines "proper and adequate further inquiry" and "due diligence" have been conducted as required by section 224, and "there is no reason to know whether the child is an Indian child," "subject to reversal based on the sufficiency of evidence." (§ 224.2, subd. (i)(2).)
We agree with those courts that have held the juvenile court's finding that ICWA does not apply is evaluated for both substantial evidence and abuse of discretion. (In re Ezequiel G., supra, 81 Cal.App.5th at pp. 10041005; see In re K.H. (2022) 84 Cal.App.5th 566, 589 [adopting review standard in In re Ezequiel G.]; In re E.C. (2022) 85 Cal.App.5th 123, 143 [same].) This hybrid standard of review "better reflects the need for the juvenile court to engage in a balancing of factors and to exercise sound discretion in making the relevant determinations." (In re K.H., at p. 589.)
Whether there is reason to know the child is an Indian child "is fundamentally a factual determination," reviewed for substantial evidence. (In re Ezequiel G., supra, 81 Cal.App.5th at p. 1004, citing In re Caden C. (2021) 11 Cal.5th 614, 639-640 [factual determinations reviewed for substantial evidence].) The juvenile court is required to determine, based on the evidence, whether the child meets any one of six statutory criteria showing the child is or may be an Indian child. "If none of these six factors is met, the court must make a finding that there is no reason to know the child is an Indian child." (In re Ezequiel G., at p. 1004.)
The six enumerated factors are: (1) the court has been advised that the child is an Indian child; (2) the child's or parent's residence is on a reservation; (3) any participant in the proceeding informs the court of information indicating the child is an Indian child; (4) the child gives the court reason to know that the child is an Indian child; (5) the child is or has been a ward of a tribal court; or (6) either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).)
Whether an adequate further inquiry and due diligence have been conducted is reviewed for abuse of discretion. (In re Ezequiel G., supra, 81 Cal.App.5th at p. 1004.) "Deciding whether an inquiry was 'adequate' and an agency acted with appropriate diligence requires more of a court than simply applying a statutory checklist to undisputed facts. Instead, it requires the court to 'engage in a delicate balance' [citation], to assess whether an ICWA inquiry was appropriate and sufficient in light of the facts of a particular case.... [T]he statute directs the juvenile court to perform a quintessentially discretionary function, and . . . our review should be for abuse of discretion." (In re Ezequiel G., at pp. 1004-1005, quoting In re Caden C., supra, 11 Cal.5th at p. 640.)
In evaluating for abuse of discretion, our focus is not primarily on the evidence but the application of a legal standard. (In re Ezequiel G., supra, 81 Cal.App.5th at p. 1008.) We determine whether the juvenile court has made an arbitrary, capricious, or patently absurd determination. (Ibid.) "But '" '[w]hen two or more inferences can reasonably be deduced from the facts, [we have] no authority to substitute [our] decision for that of the [juvenile] court.'" '" (Id. at pp. 1008-1009.) We may overturn the juvenile court's ruling only if under all the evidence, viewed most favorably in support of the court's action, no judge could reasonably have made the ruling. (Id. at p. 1009.)
B. Analysis
As noted, the juvenile court's finding that ICWA did not apply in this case is predicated on two elements: (1) there was no reason to know the children were Indian children; and (2) there was an adequate inquiry and due diligence conducted to determine if the children might be Indian children.
The first element is not at issue on this appeal as parents make no argument challenging the juvenile court's implied finding that there was no reason to know the children were Indian children. Nonetheless, no such argument would be sustainable. Because there was no evidence that the children met any one of the six criteria showing they were or might be an Indian child (§ 224.2, subd. (d) ), the court was required to find there was no reason to know the children were Indian children. (In re Ezequiel G., supra, 81 Cal.App.5th at p. 1004.)
See fn. 6, ante.
As to the second element, the record reflects that both the juvenile court and the Agency met their respective duties of inquiry and due diligence.
The juvenile court met its duty of initial inquiry by asking the parents at their first appearance at the detention hearing whether the children were Indian children. Father's claim of Indian ancestry in the Seminole tribe prompted the court to ask the Agency to make further inquiry by sending notices to the tribes and directing Father's counsel to assist him in completing an ICWA-020 form to provide the Agency with information regarding the children's potential Indian ancestry.
The Agency met its duty of further inquiry and due diligence by the following: (1) questioning the children's paternal relatives, namely Father and the paternal uncle (§ 224.2, subd. (e)(2)(A)); (2) sending an ICWA-030 notice to the BIA (§ 224.2, subd. (e)(2)(B)); and (3) sending an ICWA-030 notice to each federally-registered Seminole tribe and making telephone contact with the tribal secretary of one Seminole tribe (§ 224.2, subd. (e)(2)(C)).
Parents contend the Agency's further inquiry was inadequate insofar as the Agency did not ask Father or the paternal uncle for the names or contact information of other paternal "relatives generally referred to the record" and because there is no evidence the Agency asked the paternal uncle for the date of birth and the date and place of death for the paternal grandmother (to then be included in the ICWA-030 notices sent to the tribes). We disagree.
In evaluating a juvenile court's ICWA finding for abuse of discretion, the key question is whether the Agency's further inquiry "has yielded reliable information about a child's possible tribal affiliation," and not on the number of individuals interviewed during the process. (In re Ezequiel G., supra, 81 Cal.App.5th at p. 1009.) Because the statute does not specify how many extended family members must be interviewed, an agency" 'has no way to reliably know when to say when - i.e., to predict how many interviews of extended family members and others will be enough to satisfy a court that it has discharged its continuing duty to investigate whether a minor could be an Indian child.'" (Id. at p. 1007, quoting In re H.V. (2022) 75 Cal.App.5th 433, 440-441 (dis. opn. by Baker, J.).) Hence, it was for the "juvenile court, not this court," to decide whether the Agency had done enough to meet its duty of further inquiry by interviewing Father and the paternal uncle. (In re Ezequiel G., supra, 81 Cal.App.5th at p. 1008; id. at p. 1010 ["a juvenile court may find an ICWA inquiry was adequate even if an agency has not interviewed some available family members"].)
On this record, we cannot say the juvenile court abused its discretion in implicitly finding the Agency had made sufficient further inquiry of the children's paternal relatives to determine if the children were or might be Indian children. The CSW asked both Father and the paternal uncle about the children's potential Indian ancestry. The paternal uncle, as the oldest family member with knowledge of the family lineage, denied any Indian ancestry and offered a plausible explanation for Father's claim of Indian ancestry. Following this denial of Indian ancestry, the CSW again questioned Father who then admitted he had no Indian ancestry, and his counsel later filed (on his behalf) the ICWA-020 notice attesting that the children had no Indian ancestry. The juvenile court rationally found the paternal uncle was a reliable source for determining whether the children or Father might have Indian ancestry, and rationally found Father's contradictory statements unreliable. (See In re Ezequiel G., supra, 81 Cal.App.5th at p. 1012 ["inquiry of extended family members will be necessary" where parents "give answers that are deemed unreliable by the juvenile court"].) Whether the paternal uncle's information was sufficiently reliable to demonstrate the Agency had made an adequate further inquiry of paternal relatives was an issue" 'peculiarly'" for the juvenile court. (In re Marriage of G. (2017) 11 Cal.App.5th 773, 781.) And, we see no abuse of discretion in its implied ruling that the Agency met its obligation of further inquiry of paternal relatives as required under section 224.2, subdivision (e)(2)(A).
We also find unavailing the parents' contention that the Agency failed in its duty of further inquiry by not asking the paternal uncle about certain biographical information omitted from the ICWA-030 notices mailed to the Seminole tribes. Having determined there was a reason to believe the children might be Indian children, the Agency's further inquiry obligation included contacting pertinent tribes and providing information "identified by the tribe as necessary for the tribe to make a membership or eligibility determination." (§ 224.2, subd. (e)(2)(C).) In the ICWA-030 notices mailed to the Seminole tribes, the Agency provided the biographical information for the children, Mother, and Father, along with the full name and birth place of the paternal grandmother. After receiving the ICWA-030 notices, the Seminole Nation of Oklahoma did not respond; and the letter received from the Seminole Tribe of Florida did not indicate it lacked sufficient information to determine the children's tribal citizenship or eligibility for citizenship. Accordingly, the juvenile court could find the Agency meet its obligation of further inquiry of the Seminole tribes as required under section 224.2, subdivision (e)(2)(C).
We see no reason to reverse based on the related argument that the ICWA-030 notices sent to the Seminole tribes were inadequate to permit them to determine eligibility for tribal membership because they lacked certain necessary information required in formal notices pursuant to section 224.3, subdivision (a)(5). The Agency is required to give formal ICWA notice to the tribes only if after initial and further inquiries there is a "reason to know" that an Indian child is involved in the proceeding. (§ 224.2, subd. (f).) "[T]here is 'reason to know' a child is an Indian child if any one of six statutory criteria is met - e.g., if the court is advised that the child is a member or eligible for membership in an Indian tribe, the child's or parent's residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe. (Id., subd. (d).) Here, none of these statutory criteria was met, and thus ICWA notice was not required. Any insufficiencies in the [ICWA-030 notices sent in this case], therefore, were legally irrelevant." (In re Q.M. (2022) 79 Cal.App.5th 1068, 1084; see In re D.F. (2020) 55 Cal.App.5th 558, 572 [where formal ICWA notice to tribes is not required, the court need not address any deficiencies in notices sent to the tribes].)
In sum, we conclude parents have failed to demonstrate the juvenile court's finding that ICWA did not apply in this case was in error. In light of our decision, we do not address their claim of prejudice.
Disposition
The appeals of the orders, filed on October 8, 2022, November 1, 2022, and November 8, 2022, are dismissed. The juvenile court's March 7, 2023, Judicial Council form orders (one as to each child) are affirmed.
WE CONCUR: Fujisaki, Acting P.J., Rodriguez, J.