Opinion
B300132
04-27-2020
In re C.M., Jr., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.M., Sr., Defendant and Appellant.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK22600) APPEAL from an order of the Superior Court of Los Angeles County, Martha Matthews, Judge. Affirmed. Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
C.M., Sr. (Father) appeals from an order terminating his parental rights over his son, C.M., Jr. (C.M.). The sole issue we are asked to decide is whether the Los Angeles County Department of Children and Family Services (the Department) complied with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law.
C.M.'s mother (Mother) did not appeal from the juvenile court's order.
I. BACKGROUND
A. The Department's Initial ICWA Inquiry and Notice
In April 2017, the Department filed a dependency petition alleging C.M. was at substantial risk of serious physical harm after Father was arrested for child endangerment when law enforcement found him passed out in a running automobile with C.M. inside. The detention report the Department filed with the petition stated Father refused to answer questions about his Native American ancestry and the paternal grandmother said the family had no known Native American ancestry.
The petition was later amended to add a domestic violence allegation, with Mother as the aggressor. Father pled no contest to the petition (with clarification that he was non-offending as to the domestic violence allegation) and the juvenile court sustained it.
At the detention hearing, however, Father told the juvenile court he might be a member of the Cherokee or Choctaw tribes (through the paternal grandmother) or the Apache tribe (through the paternal grandfather). Father also claimed Mother might have Indian ancestry. The court ordered the Department to provide ICWA notice to the Secretary of the Interior, the Bureau of Indian Affairs (BIA), and the tribes identified by Father.
The Department used the customary Judicial Council form to send notice to the Secretary of the Interior, the BIA, and 15 Indian tribes. The notice contained: (1) Father's name, address, birthdate, and birthplace; (2) Mother's name; (3) the name, address, birthdate, and birthplace of Father's mother and father; (4) the name, address, birthdate, and birthplace of one of Father's grandmothers; (5) the name, birthdate, and birthplace of Father's other grandmother; (6) the name, birthdate, and birthplace of one of Father's grandfathers; and (7) the name and birthdate of Father's other grandfather. The notices did not contain any information regarding Mother's possible Native American ancestry (besides her name) because the Department had not been able to locate Mother.
By October 2017, six months after the detention hearing, the Department had received confirmation that all the ICWA notices it sent out had been received and 13 of the 15 tribes had sent response letters, each advising C.M. was either not registered with the tribe or not eligible to be registered. The Department recommended the court find ICWA did not apply.
The juvenile court did not adopt the Department's recommendation. Instead, after learning a maternal aunt and maternal cousin were willing to help locate Mother, the juvenile court ordered the Department to contact the maternal aunt to obtain information regarding the maternal family's Indian heritage. The court further directed the Department to re-notice the Secretary of the Interior, the BIA, and all relevant tribes following investigation of Mother's family history.
B. The Department's First Amended ICWA Notice
The Department had difficulty making contact with the maternal aunt but it acquired information about Mother's family history from other maternal relatives. The Department then sent new, amended ICWA notices to all the relevant parties that included the following additional information that was not included on its initial ICWA notices: (1) Mother's date of birth and her former and current addresses; (2) Father's former addresses; (3) the name, address, birthdate, and birthplace of Mother's mother; (4) the name of Mother's grandfather; (5) the name and birthdate of one of Mother's grandmothers; and (6) the names of two deceased relatives of Mother.
In response to this amended ICWA notice, several tribes (each of whom had previously responded to the initial ICWA notice) restated C.M. was either not registered with the tribe or not eligible to be registered. None of the tribes requested additional information.
C. The Department's Second Amended ICWA Notice
In late October 2017, after receiving additional information from C.M.'s maternal relatives—including the maternal aunt the Department had by then been able to reach—the court ordered the Department to send out yet another updated ICWA notice, which the Department did in November 2017.
The second amended ICWA notice contained all of the information from the two prior notices, as well as the following supplementary information: (1) Mother's birthplace; (2) the birthplace of Mother's biological father; (3) the first name of one of Mother's biological grandfathers; and (4) the names, birthdate, and birthplaces of two additional deceased relatives. After the second amended notice was served, several tribes (each of whom had previously responded to the initial notice and some of whom had also responded to the first amended notice) responded and stated C.M. was either not enrolled with the tribe or not eligible to be enrolled. As before, none of the tribes requested any additional information.
In December 2017, the juvenile court found that the tribes had been properly noticed. Then, the following month, after being advised that the Department had not received any further responses to the ICWA notices, the juvenile court found it did not have reason to know C.M. was an Indian child.
Father did not then appeal the juvenile court's ICWA determination. He is still entitled, however, to challenge that determination in an appeal from a subsequent parental rights termination order. (In re Isaiah W. (2016) 1 Cal.5th 1, 9-15 (Isaiah W.); In re K.R. (2018) 20 Cal.App.5th 701, 706 (K.R.).)
A year and a half later, the juvenile court held the parental rights termination hearing. The court found C.M. to be adoptable, terminated parental rights, and designated the maternal aunt as the prospective adoptive parent.
II. DISCUSSION
Father maintains the Department's investigation into C.M.'s Native American ancestry was inadequate and the resulting notices incomplete because some information—mainly addresses and any aliases—for various family members was "missing" from the ICWA notices. We reject the argument. ICWA noncompliance is not shown merely by the absence of information in certain of the many preprinted boxes on an ICWA notice form or by speculation that some extended family members may not have been interviewed. The test is instead whether the Department's inquiry was adequate and whether the sum total of information in the resulting ICWA notices was enough to enable the recipients to conduct a meaningful review of records concerning tribal enrollment or eligibility for enrollment.
There is substantial evidence supporting the juvenile court's finding that the Department's inquiry and notices were sufficient. The record shows the Department, prompted by the juvenile court, made diligent efforts to locate and interview extended family members regarding C.M.'s family history and then disclosed all available information to the pertinent tribes (and Federal officials) in three increasingly detailed ICWA notices. Father identifies nothing in the record that suggests further inquiry by the Department, or inclusion of the rather tangential family history information that did not appear on the ICWA notices, are reasonably likely to have influenced the ICWA determinations made.
A. The Duty to Investigate and Provide Notice Under ICWA
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see Isaiah W., supra, 1 Cal.5th at 7-8; In re Elizabeth M. (2018) 19 Cal.App.5th 768, 784 (Elizabeth M.).)
To comply with ICWA, the juvenile court and the Department "have an affirmative and continuing duty to inquire whether" a child who is the subject of a section 300 dependency petition "is or may be an Indian child . . . ." (§ 224.2, subd. (a); see also Cal. Rules of Court, rule 5.481(a).) Where there is reason to know an Indian child is involved in a dependency proceeding, the Department must discharge this duty of inquiry "'by interviewing the parents, Indian custodian, and extended family members' . . . 'to gather information,'" including the identities of tribes in which the child could be a member or eligible for membership, as well as biographical and contact information for the child and his or her biological parents, grandparents, and great-grandparents. (§ 224.3, subd. (a)(5); § 224.2, subd. (c); Cal. Rules of Court, rule 5.481(a)(4)(A); In re N.G. (2018) 27 Cal.App.5th 474, 481 (N.G.); K.R., supra, 20 Cal.App.5th at 709.) At the same time, however, the Department is not required to exhaust every conceivable avenue of investigation, no matter how time consuming or likely to be fruitful. (In re C.Y. (2012) 208 Cal.App.4th 34, 39 ["neither the court nor [the Department] is required to conduct a comprehensive investigation into the minor's Indian status"], italics added; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413 ["the obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry"]; In re Levi U. (2000) 78 Cal.App.4th 191, 199 [agency has no duty to "cast about" for information].)
The Legislature amended several sections of the Welfare and Institutions Code related to ICWA, effective January 1, 2019. (Assem. Bill No. 3176 (2017-2018 Reg. Sess.).) Among the amendments, section 224.2 was revised and recast as section 224.3, and section 224.3 was revised and recast as section 224.2. (Assem. Bill No. 3176, §§ 4-7.) Although the juvenile court determined ICWA did not apply prior to the effective date of the amendments, it terminated Father's parental rights after the effective date of the amendments. Our statutory references are to the code sections as currently numbered.
Once an appropriate inquiry is made, the Department is required to notify the BIA and all tribes in which the child could conceivably be a member or eligible for membership. When providing such notice, the Department must convey the family history information required by ICWA and related California law, including identifying information the Department has obtained about the child and his or her biological relatives. (§ 224.3, subds. (a) & (b).)
Even though ICWA notice requirements are strictly construed (In re Karla C. (2003) 113 Cal.App.4th 166, 174), reviewing courts have held "[t]he purpose of the ICWA notice provisions is to enable the tribe or the BIA to investigate and determine whether the child is in fact an Indian child. [Citation.] Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership. [Citations.]" (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576 (Cheyanne F.); see also In re I.W. (2009) 180 Cal.App.4th 1517, 1531 ["'[T]echnical compliance with [ICWA's] notice requirements may not be required where there has been substantial compliance.' [Citation.]"].)
We review a challenge to a juvenile court's ICWA inquiry and notice findings using the substantial evidence standard of review. (N.G., supra, 27 Cal.App.5th at 484.)
B. Substantial Evidence Supports the Juvenile Court's Finding That the Department Complied with Its Inquiry and Notice Obligations
We have no trouble concluding on this record that the juvenile court ensured the Department satisfied its ICWA inquiry obligations. The Department made repeated attempts to contact family members concerning ICWA issues and ultimately contacted multiple individuals on the maternal and paternal sides of the family. The Department also sent three ICWA notices, each more detailed than the former, which reflect the Department's continued inquiry efforts and the juvenile court's diligent oversight of ICWA issues. The record here thus stands in stark contrast to prior cases in which courts have held a child services agency's ICWA efforts were insufficient. (See, e.g., K.R., supra, 20 Cal.App.5th at 709 [duty of inquiry not satisfied where record contained no evidence agency attempted to contact other known family members]; Elizabeth M., supra, 19 Cal.App.5th at 779 [ICWA finding unsound because social services agency did not comply with court order to interview the father and conduct an ICWA investigation concerning his Indian ancestry].)
Father's argument that reversal is required because "it does not appear" the Department made an attempt to interview either the paternal grandfather or the maternal grandmother is unpersuasive for two reasons. First, the argument is predicated on impermissible speculation about what the Department did not do. As one court observed in similar circumstances, if Father had objected to the extent of the Department's inquiry in the juvenile court, the Department "could have introduced additional evidence to show that it had made an adequate inquiry. However, [Father] did not raise the issue below and [the Department] now lacks that opportunity. At this point, [Father] must take the record as [he] finds it." (In re Charlotte V. (2016) 6 Cal.App.5th 51, 58.) There is nothing in the record that indicates the grandparents were not interviewed. Second, even if Father is right in supposing these two grandparents were not questioned by the Department about ICWA issues, that "does not necessarily mean the [D]epartment failed to make an adequate inquiry for Indian heritage information." (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995 (Gerardo A.).) There is no requirement in ICWA or related California law that a child services agency interview each and every known family member, and here, the contacts the Department made and the interviews it completed are substantial evidence of a "meaningful inquiry" (Elizabeth M., supra, 19 Cal.App.5th at 788).
The record additionally shows the Department's inquiry, as ultimately supplemented at the juvenile court's urging, uncovered sufficient information that was included in the ICWA notices and allowed the notice recipients to undertake a reliable review of their records. The possibility of C.M.'s status as an Indian child was based primarily on Father's assertion at the detention hearing that he might be a member of one of the Cherokee and/or Choctaw tribes through a paternal grandmother or the Apache tribe through a paternal grandfather. The initial ICWA notice provided considerable information about C.M.'s paternal relatives. All of the tribes received the initial notice and 13 tribes responded that C.M. was not an Indian child for purposes of ICWA. Several of those 13 tribes reconfirmed their original determination after receiving one or both of the amended notices.
This is not a case where the Department failed to send out any ICWA notices (In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1168), failed to serve all relevant tribes (In re Gerardo A., supra, 119 Cal.App.4th at 995), omitted information known to the social worker and the Department from the ICWA notices (In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455; In re A.G. (2012) 204 Cal.App.4th 1390, 1397), failed to reply to a tribe's repeated requests for more information (In re S.M. (2004) 118 Cal.App.4th 1108, 1118), or knowingly failed to update an initial ICWA notice after receiving new information about a child's ancestors (In re I.B. (2015) 239 Cal.App.4th 367, 377). Rather, this is a case where the Department's investigation yielded information sufficient to complete many of the preprinted identifying information fields on the ICWA notice forms.
Father complains, however, about some of the form fields that were not completed. He concedes the names of C.M.'s parents, grandparents, and all but one of the great-grandparents were included on the notices (one of the other great-grandparents was listed with a first name only). Most of his complaints instead concern the absence of alias names (he seems to assume everyone named would have an alias) or current and former addresses; he also highlights a couple uncompleted birthdates and birthplaces (for grandparents and great-grandparents) and the aforementioned absence of a name for one of the great-grandparents.
Father also complains that for each family member listed on the notice the same four tribes (Apache, Cherokee, Blackfeet, and Choctaw) were listed as possible sources of tribal enrollment. That the Department may have been overinclusive in designating potential tribal membership sources, however, is fairly regarded as a feature not a bug. Father also notes the notices stated "unknown" in fields asking whether two listed grandparents were still living even though the Department knew them to be alive. But the names of these two grandparents and their birthdates were included on the notices (along with other identifying information) and we fail to see how the mistaken "unknown" notation might have undermined any determinations made by the ICWA notice recipients.
Father's nitpicking of the ICWA notices does not warrant reversal. A fully completed ICWA-030 form is a worthy goal but it is not the sine qua non of proper ICWA notice. Federal regulations provide that "as much information as is known regarding the child's direct lineal ancestors should be provided." (25 C.F.R. § 23.111, subd. (e), italics added.) Similarly, under state law, notice must include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, . . . and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C), italics added.) There is no basis in the record here to conclude the Department, which conducted a meaningful ICWA inquiry, provided anything less than all known and "potentially relevant" information on the ICWA notices. (In re E.H. (2018) 26 Cal.App.5th 1058, 1073.)
Moreover, contrary to Father's assertion that "crucial information" was missing from the ICWA notices, the absence of what are mainly former addresses and aliases does not, in our view, qualify as crucial. When viewed as a whole and not in isolated bits, the names, birthdates, and other information included in the ICWA notices is substantial evidence that compels rejection of Father's challenge to the notices' sufficiency. (Cheyanne F., supra, 164 Cal.App.4th at 576 ["Notice given under ICWA must . . . contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership"].)
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J. We concur:
MOOR, J.
KIM, J.