Opinion
B310435
09-28-2021
In re D.N., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.V., et al, Defendants and Appellants.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant D.V. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant O.N. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County No. 18CCJP00028 of Los Angeles, Marguerite D. Downing, Judge. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant D.V.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant O.N.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
D.V. (mother) and O.N. (father) appeal from the juvenile court's order terminating their parental rights to D.N. (the child). According to the parents, both the court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with their inquiry duties under the federal Indian Child Welfare Act (ICWA) and related state statutes and court rules. We affirm.
Title 25 United States Code section 1901, et seq.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Termination of Parental Rights
On January 2, 2018, the Department filed a Welfare and Institutions Code section 300 petition alleging that father had a history of illicit drug use and was a current user of methamphetamine, which rendered him incapable of caring for the child. The Department also alleged that mother knew of father's drug use and failed to protect the child from it and that mother had a history of illicit drug use and was a current user of marijuana who had been under the influence while the child was in her care.
All further statutory references are to the Welfare and Institutions Code.
On February 22, 2018, the juvenile court sustained the petition, as amended, as to both mother and father. Following several continuances of the section 366.26 hearing, the court held a hearing on January 27, 2021, and terminated the parental rights of both mother and father.
On January 27, 2021, mother and father filed their separate notices of appeal.
B. ICWA Proceedings
In December 2017, both mother and father informed the Department that there was no known Indian ancestry in either of their families and that ICWA did not apply.
At the January 3, 2018, detention hearing, mother's counsel informed the juvenile court that mother had indicated on a judicial council form that she may have Indian ancestry, but that she did not “show the tribe.” When the court inquired whether mother knew someone who might know “the tribes, ” mother's counsel responded, “No, Your Honor.” The court then asked, “[W]e don't have any way to contact anybody?” At that point, the Department's counsel volunteered that the Department would notify “the Bureau” and the court responded, “I guess just notify the Bureau. All right.” The court also indicated that it would inquire about father's Indian ancestry when he was next scheduled to appear.
On January 3, 2018, mother checked a box on an ICWA-020 form that stated, “I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe.” In response to a question that asked her to name the tribe, she responded, “Possibly. Don't know name of the tribe.”
In the minute order for the January 3, 2018, hearing, the juvenile court stated: “The [c]ourt is informed that there may be some [u]nknown Native American/Indian heritage in... mother's background. The Department... is ordered to investigate said claim. The determination of ICWA status is deferred for father's appearance.
In a February 5, 2018, jurisdiction/disposition report, the Department explained that on January 24, 2018, mother reported that “there [was] possible Native American heritage in her family, but she did not know any specifics.” Then, on January 30, 2018, a social worker contacted maternal grandmother, who “reported there was some possible Native American heritage in her family, but she did not know [the] specific tribe names or associations. She stated that she would do some research and update the Department with any further information.”
On February 22, 2018, father filed a “Parental Notification of Indian Status” form indicating that he had “no Indian ancestry as far as [he knew].” At the jurisdiction/disposition hearing held that same day, the juvenile court stated the following regarding ICWA: “Let's see, [mother's counsel], as to your client, I don't believe we have any additional information with respect to ICWA. [¶] Your client had a question at detention, but since then, ... we have received no additional information. [¶] So the court has no reason to know that [ICWA] applies or that [the child] is an Indian child.”
The Department explained: “Mother, at detention, did say that she believed she did have some heritage, but was not able to provide any specifics about the tribe. [¶] The Department used due diligence to follow up with the [maternal] grandmother to see if she had any additional information. [¶] She [said] she did not. [¶] That is referenced on page two of the [jurisdiction/disposition] report. [¶] So at this time I think the court is correct in saying there is not enough information to find that ICWA could apply. [¶] However, if... mother or [maternal] grandmother obtains any additional information, the Department is to follow up.”
The minute order for the February 22, 2018, hearing provided, among other things: “The [c]ourt does not have a reason to know that this is an Indian [c]hild, as defined under ICWA, and does not order notice to any tribe or the [Bureau of Indian Affairs]. Parents are to keep the Department, their [a]ttorney[s, ] and the [c]ourt aware of any new information relating to possible ICWA status.”
III. DISCUSSION
A. Inquiry Duties Under ICWA
Pursuant to ICWA, “[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking... termination of parental rights to[ ] an Indian child shall notify the parent or Indian custodian and the Indian child's tribe” of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); In re Isaiah W. (2016) 1 Cal.5th 1, 8.) “As the Supreme Court recently explained, notice to Indian tribes is central to effectuating ICWA's purpose, enabling a tribe to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the matter. (In re Isaiah W., supra, 1 Cal.5th at pp. 8[-]9.)” (In re Michael V. (2016) 3 Cal.App.5th 225, 232.)
“ICWA defines 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); see § 224.1, subd. (a).) The trial court and [Department] have an affirmative and continuing duty in every dependency proceeding to determine whether ICWA applies. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a);[Fn. omitted.] Isaiah W., supra, 1 Cal.5th at pp. 10-11.) In cases ‘where the court knows or has reason to know that an Indian child is involved,' ICWA requires the [Department], or other party seeking adoption or foster care placement, to notify ‘the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.' (25 U.S.C. § 1912(a); see Isaiah W., supra, [1 Cal.5th] at p. 5.)
“Following changes to the federal regulations concerning ICWA compliance, California made conforming amendments to its statutory scheme regarding ICWA, effective in 2019. (In re D.S. (2020) 46 Cal.App.5th 1041, 1048... (D.S.).) In D.S., the court explained that the resulting clarification of law, found in part in section 224.2, ‘creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department]'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. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a “reason to believe” the child is an Indian child, then the [Department] “shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” (Id., subd. (e), italics added.) 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. [Citations.]' (D.S., supra, [46 Cal.App.5th] at p. 1052.)
“At the first step, ‘[s]ection 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department, such as the [Department], the duty to inquire “includes, but is not limited to, 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.”' (D.S., supra, 46 Cal.App.5th at pp. 1048-1049.)
The child's maternal great-great aunt and uncle are not “extended family members” within the meaning of section 224.2. (25 U.S.C. § 1903(2).) And, there is insufficient evidence in our record to suggest that they were “others who [had] an interest” in the child as that term is used in section 224.2, subdivision (b). Current section 224.2, subdivision (b), effective September 18, 2020, provides: “If a child is placed into the temporary custody of a county welfare department pursuant to [s]ection 306... the county welfare department... has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, 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.”
“There is a ‘reason to believe' a child is an Indian child whenever 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.' (§ 224.2, subd. (e)(1); see also § 224.2, subd. (d)(1)-(6); In re T.G. (2020) 58 Cal.App.5th 275, 290... [further inquiry required when there is a ‘reason to believe' child is Indian].)” (In re Charles W. (2021) 66 Cal.App.5th 483, 489-490.)
“However, neither the court nor [the Department] is required to conduct a comprehensive investigation into the minor's Indian status. (In re S.B. (2005) 130 Cal.App.4th 1148, 1161...; In re Levi U. [(2000)] 78 Cal.App.4th [191, ] 199 [no duty to ‘cast about' for information].)” (In re C.Y. (2012) 208 Cal.App.4th 34, 39.)
We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
B. Analysis
The parents contend that the Department failed to fulfill its further inquiry duties under section 224.2, subdivisions (e)(2)(A) and (e)(2)(C) because it did not adequately interview mother, maternal grandmother, and other extended family members, all of whom, the parents maintain, were “readily available.” According to the parents, due to the Department's failure to fulfill its duty of further inquiry, the evidence was insufficient to support the juvenile court's finding that there was “‘no reason to know [the child] was an Indian child as defined under the ICWA.'”
In the jurisdiction/disposition report, the Department confirmed that, during an interview with mother concerning ICWA, she indicated that it was possible she may have Indian ancestry, but that “she did not know the specifics.” The Department then interviewed maternal grandmother-presumably based on information provided by mother-who also indicated that she might have Indian ancestry, but could not provide specifics. Although she volunteered to conduct further research and to contact the Department with any additional information she obtained, she apparently did not subsequently provide the Department with the names of other extended family members who might have such information.
At the subsequent jurisdiction/disposition hearing, the juvenile court stated that “no additional information” had been provided to the Department on mother's possible Indian ancestry. And, the Department confirmed that it had followed up with maternal grandmother, but that no additional information had been provided. The Department also confirmed that it would submit to the court any further information it received on the ICWA issue, if and when it was provided. The court therefore concluded, based on the available information, that there was no reason to believe the child was an Indian child and ordered the Department to follow up on any additional information that may be provided.
We conclude that, under the facts of this case, the Department satisfied its duty of further inquiry by interviewing mother and maternal grandmother, neither of whom provided any additional information that would have warranted or facilitated further inquiry. (In re Levi U., supra, 78 Cal.App.4th at pp. 198-199 [“Although in the first instance it is the duty of the juvenile court to attempt to ascertain the identity of one's claimed tribal affiliation, if appellant had additional information suggesting the minor was a member of a particular tribe, or if she had evidence indicating the minor was eligible for membership in one such tribe, then appellant should have tendered that information to the court”].) The Department's interviews of mother and maternal grandmother are substantial evidence of a “meaningful inquiry” under ICWA. (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 788; In re. C.Y., supra, 208 Cal.App.4th at p. 41 [finding social services department “must inquire as to possible Indian ancestry and act on any information it receives, but it has no duty to conduct an extensive independent investigation for information”].) We also conclude that sufficient evidence therefore supported the court's conclusion that there was no reason to believe the child was an Indian child.
IV. DISPOSITION
The order terminating parental rights is affirmed.
We concur: RUBIN, P. J., MOOR, J.