Opinion
B326641
09-29-2023
In re J.W., a Person Coming Under the Juvenile Court Law. v. J.W., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP04741A, Daniel Zeke Zeidler, Judge. Affirmed.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
J.W. (father) appeals from an order terminating parental rights pursuant to Welfare and Institutions Code section 366.26.Father's sole argument on appeal is that the Los Angeles County Department of Children and Family Services (Department) failed to conduct adequate further inquiry into the child's Indian ancestry pursuant to section 224.2, subdivision (e). This is the third time we have been asked to consider the adequacy of the Department's inquiry efforts under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related state law. We affirm.
Further statutory references are to the Welfare and Institutions Code.
II. BACKGROUND
The following is taken primarily from our prior opinion. (J.W. v. Superior Court (July 14, 2022, B316616) [nonpub. opn.].)
1. August 6, 2020, to November 16, 2020
On September 9, 2020, the Department filed a petition on behalf of the then one-month-old child pursuant to section 300.
"The petition was preceded by an investigation by the Department, during which father 'confirmed' to the Department on August 6, 2020, that he has Indian ancestry and is 'linked' with the Blackfoot and Cherokee tribes. He planned to register with the tribes. Father subsequently filed a Parental Notification of Indian Status stating he may have Indian ancestry with the Cherokee tribe.
"On September 29, 2020, paternal aunt L.W. told the dependency investigator that her family may have Cherokee and Blackfeet heritage, but she did not have any 'information.' She stated that paternal uncle M.U. had 'all of the information' and gave the dependency investigator his telephone number. Paternal aunt L.W. provided paternal grandmother's name, date and place of birth, and date and place of death, and paternal grandfather's name and place and date of birth. She stated that paternal grandfather suffered from dementia. She did not know paternal great-grandmother's date of birth or death or, apparently, her name. She provided paternal great-grandfather's name, but did not know his date of birth or death.
"On September 29, October 1, and October 5, 2020, the dependency investigator tried, unsuccessfully, to contact paternal uncle M.U. by telephone. She left a message each time, but he did not return her calls.
"The dependency investigator stated that father had not been interviewed as he had not made himself available. She stated she would continue to attempt to interview father about ICWA.
"On October 8, 2020, the Department mailed notices to the Cherokee and Blackfeet tribes with 'the information obtained so far.'
"In a Last Minute Information for the Court, filed on October 15, 2020, the Department reported that on October 8, 2020, it mailed ICWA notices to the 'Bureau of Indian Affairs Federal Office Building, Secretary of the Interior, the Blackfeet Tribe of Montana, Cherokee Nation, Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee.'
"By the October 30, 2020, jurisdiction hearing, the only return receipt received was from the Bureau of Indian Affairs. After considering the evidence and the parties' arguments, the juvenile court sustained the section 300 petition and continued the disposition hearing to November 16, 2020.
"At the November 16, 2020, disposition hearing, the juvenile court removed the child from the parents' custody, ordered the Department to provide father with reunification services, and denied mother reunification services. It then set the matter for a progress hearing on January 15, 2021, and ordered the Department to file a progress report one week before the hearing that was to include the ICWA return receipts, responses from the tribes, and efforts to contact the outstanding tribes. Mother and father appealed from the jurisdictional findings and disposition order." (J.W. v. Superior Court, supra, B316616.)
2. Tribal Responses to ICWA Notices
"On January 4, 2021, while the parents' appeal was pending, the Department filed an Interim Review Report regarding further correspondence with the Blackfeet and Cherokee tribes. The Blackfeet Tribe of Montana responded in writing that the tribe was not able to find the child on the tribal rolls, the tribe's blood quantum requirement for enrollment is '1/4 Blackfeet blood,' and the child is not eligible for enrollment with the tribe. The Eastern Band of Cherokee Indians responded that it had reviewed the tribe's registry and the child was not a tribal member or eligible for membership based on the information provided by the Department.
"In a Last Minute Information filed on February 19, 2021, the Department reported it had also received a written response from the United Keetoowah Band of Cherokee Indians, which indicated it had reviewed the tribe's registry, the tribe's blood quantum requirement for enrollment is '1/4 . . . Keetoowah (Cherokee) blood,' and the child was not a tribal member or eligible for membership in the tribe based on the information provided.
"On April 19, 2021, the Department reported that a representative of the Cherokee Nation, which had previously indicated it was 'extremely back logged' in processing ICWA notices, had told a social worker over the telephone that the tribe would likely provide a response within the next 30 days. A month later, the Cherokee Nation informed the Department in writing that the child 'could POSSIBLY be connected to the Cherokee Nation' but an accurate determination could not be made without information about L.W. and M.U.'s relationships to the child, or their middle names and/or dates of birth." (J.W. v. Superior Court, supra, B316616.)
3. First ICWA Appeal and Limited Remand
"On appeal from the juvenile court's jurisdictional findings and disposition order, we concluded that while the court and the Department met their initial inquiry duties, the Department did not meet its duty of further inquiry under ICWA.
"Specifically, we noted the Department failed to interview the following individuals concerning father's claimed Indian ancestry: father; paternal aunts G.U. and Kay; and paternal uncle M.U. We also concluded that the Department's interview of paternal aunt L.W. was incomplete. L.W. confirmed father's claim of possible Cherokee and Blackfeet heritage and provided biographical information for paternal grandmother and grandfather and paternal great-grandfather, but the Department did not obtain or include those relatives' current or former addresses.
"In an opinion filed July 20, 2021, we conditionally affirmed the juvenile court's jurisdiction and disposition orders and remanded the matter with directions to the juvenile court to order the Department to make further inquiry into [f]ather's Cherokee and Blackfeet ancestry and, if necessary, to provide notice to any tribe. (In re J.W. (July 20, 2021, B309011) [nonpub. opn.], pp. 16-17.) Remittitur issued on September 23, 2021." (J.W. v. Superior Court, supra, B316616.)
4. Further Inquiry After Remand on First ICWA Appeal
"On August 3, 2021, a social worker spoke to father again about his Indian ancestry. Father reported paternal greatgrandparents were 'Cherokee and Blackfoot.' When the social worker asked for their identifying information, father said he would call back with that information. On April 10, 2021, the social worker asked father for the information again, but father refused to provide it, became hostile, and said, '"'Why should I help you with your job?'"' On September 23, 2021, father again said he had given the Department the information he knew and added that 'relatives that know have passed away.'
"The Department also contacted paternal aunt L.W. again. L.W. said paternal great-grandfather Robert Underwood had 'Cherokee heritage,' although she did not know if he was a tribal member. L.W. also provided paternal grandmother's name, Leona W., and birth date and month, but she did not know the years of her birth or death. In a subsequent conversation, L.W. also provided the social worker with her full name and birth date and paternal uncle M.U.'s full name and telephone number. A month later, L.W. gave a different last name for paternal great[-]grandfather, 'Moore,' and said he had Cherokee ancestry and once lived on a reservation before 'he left.' L.W. did not have any other identifying information for paternal great-grandfather. She provided a last known address on Ezmirlian Street in Compton, California for paternal grandmother Leona W.
"A social worker called paternal aunt G.U. on September 11, 13 and 22, 2021, and tried to leave messages, but her voicemail was full.
"On September 1, 2021, a social worker spoke with paternal uncle M.U., who said the family had Indian ancestry but he did not know their tribal affiliation. He later said he knew about the Indian ancestry through paternal great-grandmother, Amanda Lee. M.U. did not know Amanda Lee's date of birth or paternal grandmother Leona W.'s date of death. He was, however, able to provide Leona W.'s date of birth.
"On September 3, 2021, the Department informed the Cherokee Nation in writing of L.W. and M.U.'s birth dates. The Cherokee Nation's eligibility unit replied via e-mail that L.W. and M.U. were not registered as tribal members and that the child was not an 'Indian child' of the Cherokee Nation." (J.W. v. Superior Court, supra, B316616.)
5. Twelve-Month Review Hearing and Writ Petition
"The juvenile court held a 12-month review hearing on October 28, 2021. Neither parent was present. The court found 'the ICWA investigation and notice [were] complete' and that there was no reason to know the child was an 'Indian child' as defined by ICWA. No party objected to the findings. The court then terminated father's family reunification services and set the matter for a hearing pursuant to section 366.26.
"Mother and father each filed notices of intent to file a writ petition. On March 21, 2022, father filed a petition for extraordinary writ, arguing that the juvenile court erred when it terminated reunification services and setting the matter for a [section] 366.26 hearing because the Department did not fully comply with its ICWA-related further inquiry and notice duties by failing to '[s]hare [n]ew [r]elative [i]dentifying [i]nformation [w]ith the [t]ribes.' Mother filed a joinder to the petition." (J.W. v. Superior Court, supra, B316616.) Father complained that the new relative information "was not shared with the Cherokee Nation."
We issued an order to show cause and conditionally granted the petition. Citing section 224.2, subdivision (e)(2)(C), we concluded that the Department's further inquiry with the Cherokee Nation was inadequate and prejudicial: "In light of new information provided by L.W. that paternal greatgrandfather once lived on a reservation, we agree that paternal great-grandfather's last name was information that should have been shared with the Cherokee Nation as part of the Department's further inquiry duties. Although the Cherokee Nation had responded the child is not an 'Indian child' in relation to the tribe, the response specifies that '[a]ny incorrect or omitted information could invalidate this determination.' The October 2020 notice to the Cherokee Nation included paternal grandfather's name, but the last name used was 'Underwood' and not 'Moore.' In addition, while the Department informed the Cherokee Nation by letter on September 3, 2021, of paternal aunt L.W. and paternal uncle M.U.'s respective dates of birth, it failed to include paternal great-grandmother's name, paternal grandmother's last known address, or information that paternal great[-]grandfather may have had a different last name, Moore." (J.W. v. Superior Court, supra, B316616.) We noted that "[p]arents do not contend additional relative information should have been shared with any tribe other than the Cherokee Nation as part of the Department's further inquiry efforts." (Ibid.)
Under section 224.2, subdivision (e)(2)(C), the Department's further inquiry duties include "[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)(2)(C).) "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]. Contact with a tribe 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." (Ibid.)
6. Conditional Grant of Petition
On July 14, 2022, we remanded with directions for the juvenile court to order the Department to comply with ICWA by, among other things, "conduct[ing] further inquiry concerning father's Cherokee ancestry by providing additional information to the Cherokee Nation, including (1) paternal great-grandmother's name, Amanda Lee; (2) paternal grandmother's last known address on Ezmirlian Street in Compton, California; and (3) paternal great-grandfather's last name, 'Moore.'" (J.W. v. Superior Court, supra, B316616.) We ordered the juvenile court to hold a hearing to review the adequacy of the Department's investigation. (Ibid.) If the court determined the investigation was adequate and there was no reason to know the child is an Indian child, the order setting the section 366.26 hearing was to be reinstated. (Ibid.) No party sought review of this disposition.
B. Current Appeal
In August 2022, the Department sent a letter to the Cherokee Nation informing it of paternal great-grandmother's full name, paternal grandmother's full name and last known address, and paternal great-grandfather's full name.
In September 2022, the Cherokee Nation responded by letter requesting additional information to "verify Cherokee heritage," specifically, paternal great-grandmother and greatgrandfather's middle names and complete birth dates.
In September 2022, the Department contacted paternal family members in order to obtain the information requested by the Cherokee Nation. Paternal aunt L.W. provided the birth dates for paternal great-grandmother and great-grandfather, and informed the Department that neither had a middle name. The Department shared this information with the Cherokee Nation.
In late September 2022, the Cherokee Nation responded by letter, stating that based on its examination of tribal records, it concluded that the child is not an Indian child in relation to the Cherokee Nation as defined under ICWA, and the Cherokee Nation therefore would not intervene in the proceedings.
On October 13, 2022, the juvenile court held a progress hearing. The court noted this court's remand instructions and the Department's correspondence with the Cherokee Nation. The court ordered the Department to provide the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians with the additional information that the Department provided to the Cherokee Nation, and to document its correspondence with those two tribes.
In November 2022, the Department sent by certified mail a Notice of Child Custody Proceeding for Indian Child (ICWA-030) form to the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians, and the Bureau of Indian Affairs. The ICWA-030 form included: the child's name, birth date, and birthplace; the parents' respective full names, birth dates, and current addresses; paternal grandmother's full name, last known address, and birth date; paternal great-grandmother's full name and birth date; and paternal great-grandfather's full name and birth date.
In December 2022, the Eastern Band of Cherokee Indians responded by letter, indicating that, based on the information provided, the child was not enrolled in the tribe and thus was not an Indian child in relation to the tribe. The Department also called and left a voicemail message for the United Keetoowah Band of Cherokee Indians, which did not respond.
On January 3, 2023, the juvenile court held another progress hearing. The parents were present with their counsel. The court reviewed the Department's correspondence with the two tribes and ordered the Department to report on its efforts to interview father in connection with its ICWA inquiry.
In January 2023, the Department attempted to contact father by sending e-mails and leaving voicemail messages for him. Father did not respond.
On January 19, 2023, the juvenile court held a progress hearing and a hearing pursuant to section 366.26. The court reviewed the Department's further inquiry conduct, and asked if the parties had any objection to the court finding that the Department had fulfilled its inquiry duties under ICWA and California law. The parties did not object. The court found no reason to know the child was an Indian child based on the reported information and ICWA did not apply. The court terminated the parents' parental rights to the child.
Father timely appealed.
III. DISCUSSION
Father contends that the Department failed to comply with its duties under section 224.2, subdivision (e) because it did not conduct an adequate further inquiry regarding the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians. Specifically, father contends the Department should have "informal[ly]" contacted these two tribes pursuant to section 224.2, subdivision (e)(2)(C) prior to mailing the second ICWA notices to them in November 2022. He also contends that the Department's sending of a second ICWA notice to these two tribes was an inadequate substitute for its obligation to comply with its duty of further inquiry because the second notice did not include certain information that had been included in the first ICWA notice.
"'A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to as "waiver," applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings.' (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222 . . . .)" (In re C.M. (2017) 15 Cal.App.5th 376, 385.)
"The generally accepted rule in dependency cases is that the forfeiture doctrine does not bar consideration of ICWA notice issues on appeal." (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) However, "[w]hen a case is remanded to the juvenile court for the purpose of curing ICWA notice defects and the parent is represented by counsel at the postremand compliance hearing and counsel raises no objection to new ICWA notices, an exception to the general rule against forfeiture may apply." (In re Z.W. (2011) 194 Cal.App.4th 54, 64; see also In re Amber F. (2007) 150 Cal.App.4th 1152, 1156; In re X.V. (2005) 132 Cal.App.4th 794, 804.)
It is unclear to what extent these ICWA notice cases apply. After our Legislature amended the state's ICWA-related statutes in 2018, the standard for ICWA notice substantially changed. (See In re Austin J. (2020) 47 Cal.App.5th 870, 884-885 ["reason to know" child is Indian child, and duty to give notice to tribe, applicable only under six circumstances stated in § 224.2, subd. (d)].) "There are two separate ICWA requirements which are sometimes conflated: the obligation to give notice to a tribe, and the obligation to conduct further inquiry to determine whether notice is necessary. Notice to a tribe is required, under federal and state law, when the court knows or has reason to know the child is an Indian child. ([In re] Elizabeth M. [(2018)] 19 Cal.App.5th [768,] 784.) In contrast . . ., the department was to make further inquiry if it 'knows or has reason to know or believe that an Indian child is or may be involved' in the case. (Cal. Rules of Court, rule 5.481(a)(4), italics added.)" (In re A.M. (2020) 47 Cal.App.5th 303, 315; see also In re Austin J., supra, 47 Cal.App.5th at p. 885 ["[Prior] [c]ases relying on [reason to know] language are no longer controlling or persuasive on this point"].) This case involves further inquiry, not notice. For purposes of our appeal, we will assume In re Alice M., In re Z.W., In re Amber F., and In re X.V. are applicable to the ICWA inquiry context.
Based on the particular procedural history of this case, we conclude that the forfeiture doctrine applies to bar father's argument on appeal. Here, father had the opportunity, during the first ICWA appeal, to challenge the Department's purported failure to informally contact the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians prior to the Department's initial notice to these tribes in October 2020. He did not do so. Then, father had another opportunity to argue that the Department should have informally contacted these tribes when he filed his writ petition but chose instead to challenge only the Department's compliance with its duty of further inquiry with respect to the Cherokee Nation. Indeed, we explicitly noted in our opinion granting father's writ petition that the parents did not contend that the Department needed to provide the new relative information to any tribe other than the Cherokee Nation, and our disposition accordingly reflected the limited nature of father's petition. We did not find that the Department failed in its duty of further inquiry with respect to its contact with the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians. (J.W. v. Superior Court, supra, B316616.) And father did not raise any challenge to our opinion in a petition for rehearing. (Cal. Rules of Court, rule 8.268.) Finally, at several hearings following remand, father's counsel made no objection to the further inquiry sent by the Department. (In re Z.W., supra, 194 Cal.App.4th at p. 64.)
Father cites In re Alice M., supra, 161 Cal.App.4th 1189 in support of his contrary argument that he has not forfeited his argument on appeal. In that case, the court observed that "this appeal presents only the first challenge to ICWA notice; in [our] prior appeal, we found that the Department had failed even to inquire of Indian ancestry ...." (Id. at p. 1196.) By contrast, this is father's third challenge to the Department's compliance with its inquiry duties and the second in which father challenges the Department's compliance with the duty of further inquiry pursuant to section 224.2, subdivision (e)(2)(C). Accordingly, In re Alice M. is distinguishable.
Further, even if we were to consider the merits of father's argument, we would reject it. Here, substantial evidence supports the juvenile court's finding that the Department complied with its duty of further inquiry because, by the time of the section 366.26 hearing, the Department had provided, either in the first or second ICWA notices, all the information regarding the child's ancestry about which it was aware.
IV. DISPOSITION
The order terminating father's parental rights is affirmed.
We concur: RUBIN, P. J. MOOR, J.