Opinion
B300903
05-22-2020
In re A.S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.S. et al., Defendants and Appellants.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant D.S. Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant D.E. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Peter Ferrera, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DK23718A) APPEAL from orders of the Superior Court of Los Angeles County, Steven E. Ipson, Commissioner. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant D.S. Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant D.E. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
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D.S. (Mother) and D.E. (Father) appeal from juvenile court termination findings and orders concerning A.S. (Daughter). They say the juvenile court erred because the Department of Children and Family Services (Department) and court did not comply with the inquiry provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (the Act) and related California law.
Father's statements did not trigger further inquiry under the Act. He affirmed he did not have American Indian ancestry. One time he equivocated that Daughter's paternal grandfather might have American Indian ancestry, but then Father said he was not sure and he did not think there was actually any ancestry. We affirm.
Code references are to the Welfare and Institutions Code unless otherwise indicated.
I
Daughter was born in June 2017 and tested positive for amphetamines and methamphetamine.
On June 26, 2017, a Department social worker interviewed Mother and Father. The parents used methamphetamine "3 to 5 days" before Daughter's birth. Mother also used the drug after Daughter's birth. Both parents said they had no known American Indian ancestry.
The Department filed a petition on behalf of Daughter under section 300, subdivision (b)(1) on June 30, 2017. The petition said Daughter was at risk due to her parents' drug use, Mother's untreated mental and emotional problems, and Daughter's exposure to drugs.
That same day, Mother and Father appeared in juvenile court. Father signed a Parental Notification of Indian Status form (Indian Status form). He marked an "x" next to "I have no Indian ancestry as far as I know." Mother completed the same form and indicated she, too, had no American Indian ancestry to her knowledge. Both parents left blank all other options on the form, including, "[t]he child is or may be a member of, or eligible for membership in, a federally recognized Indian tribe." At the detention hearing, the court noted neither parent claimed American Indian ancestry. It found no reason to know Daughter was an Indian child under the Act. The court ordered Daughter temporarily removed from her parents' custody.
A Department investigator spoke with Mother and Father again about American Indian ancestry on August 3, 2017. Mother affirmed neither she nor Father had American Indian ancestry. Father, "initially stated that there might be American Indian Ancestry through the [paternal grandfather] however when this [department investigator] asked for the [paternal grandfather's] information and other relative information he stated that he isn't even sure if there is any ancestry and that if there is it isn't measurable. Father stated that he would contact the [paternal grandfather] and ask him about it but doesn't think they actually have any ancestry."
There is no information in the appellate record about whether Father contacted paternal grandfather. There is no information about whether the Department or court inquired further about the Father's statement.
On October 5, 2017, the court sustained jurisdiction under section 300, subdivision (b), removed Daughter from her parents' custody, placed her in the Department's custody, and ordered family reunification services.
At a six-month review hearing on October 12, 2018, the court found the Act inapplicable. It found Mother and Father made minimal progress with their reunification services plan and ordered services terminated.
The final hearing in the case was on September 18, 2019. The court stated: "[n]either parent has indicated Indian ancestry; and therefore, the Indian Child Welfare Act is not applicable. Any disagreement with what I've said so far? All right; hearing none, those are the findings of the court." The court found Daughter adoptable and terminated Mother and Father's parental rights.
II
Mother and Father say the juvenile court and the Department did not properly investigate Daughter's potential American Indian ancestry under the Act and the court thus erred in its September 18, 2019 findings and orders. They are incorrect.
We review a court's findings under the Act for substantial evidence. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.)
The court expressly found the Act did not apply. The finding implies the court and Department satisfied their duty of inquiry. There is sufficient evidence to support the court's finding.
We begin with background about the Act. The Act reflects a congressional determination to protect American Indian children and to promote the stability of Indian tribes and families. (25 U.S.C. § 1902; In re Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin).) To that end, the Act established unique standards for the removal and placement of American Indian children. (25 U.S.C. § 1901 et seq.)
Central to the protections of the Act are procedural rules to determine whether an Indian child is involved. To be an Indian child, the child must be either 1) a member of a tribe or 2) a biological child of a member and eligible for membership. (25 U.S.C. § 1903(4); § 224.1, subd. (a); In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520 (Jeremiah) ["if the child is not a tribe member, and the mother and the biological father are not tribe members, the child simply is not an Indian child"].)
Federal regulations implementing the Act require state courts to ask participants in child custody proceedings whether the participant knows or has reason to know the child is an Indian child. (25 C.F.R. § 23.107(a).) The court must also tell the parties to inform the court if the parties receive information that gives them reason to know the child is an Indian child. (Ibid.)
State law may provide a higher level of protection. (25 U.S.C. § 1921.) Under California law, the juvenile court and the Department have an "affirmative and continuing duty" to inquire whether a child who is the subject of a juvenile dependency petition is or may be an Indian child. (§ 224.2, subd. (a), former § 224.3, subd. (a).)
State law lays out requirements for initial inquiry and further inquiry. (Austin, supra, 47 Cal.App.5th at p. 883.)
Initial inquiry includes the following. The Department must "ask[] 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).) At a participant's first appearance at dependency proceedings, the court must ask whether the participant knows or has reason to know the child is an Indian child. (§ 224.2, subd. (c).)
The court and Department social workers must make "further inquiry," if the court or Department has "reason to believe" an Indian child is involved. (§ 224.2, subd. (e).) The law lays out a number of steps the court and Department must take as "further inquiry." (Ibid.) The Legislature amended this law effective January 1, 2019. The provision was formerly at section 224.3, subdivision (c). Rather than "reason to believe," the standard for further inquiry had been "knows or has reason to know" an Indian child is involved. The Legislature did not define "reason to believe" in the amended statute.
The parties do not discuss whether the statute requiring "knows or has reason to know" or the newer "reason to believe" statute applies to this case. The Department quotes in its brief the new section 224.2, subdivision (e), which uses the "reason to believe" standard. Mother and Father do not discuss the standard or the change in the law. They appeal the termination orders and findings from September 18, 2019. Father's statement at issue in the case was from 2017.
Mother and Father say, by not inquiring further after Father made his August 3, 2017 statement, the Department and court failed in their continuing duty of inquiry, under section 224.2, subdivision (a), formerly section 224.3, subdivision (a), and in their duty to make further inquiry under section 224.2, subdivision (e), 224.2, formerly section 224.3, subdivision (c).
The "reason to believe" standard seems to require a lower level of certainty than the "knows or has reason to know" standard. (Austin, supra, 47 Cal.App.5th at p. 888.) We need not decide which standard applies because, even under the lower "reason to believe" standard, Father's one equivocating statement from August 3, 2017 did not require further inquiry.
The only record of Father's statement is the Department investigator's description, which neither parent disputes. We repeat the Department's description with our own emphasis: Father "initially stated that there might be American Indian Ancestry through the [paternal grandfather] however when this [department investigator] asked for the [paternal grandfather's] information and other relative information he stated that he isn't even sure if there is any ancestry and that if there is it isn't measurable. Father stated that he would contact the [paternal grandfather] and ask him about it but doesn't think they actually have any ancestry."
Father's statement did not provide reason to believe Daughter was an Indian child. Daughter would be an Indian child only if she were a tribe member or if one of her parents were a tribe member. (25 U.S.C. § 1903(4); § 224.1, subd. (a); Jeremiah, supra, 172 Cal.App.4th at p. 1520.) Father's statement did not provide a reason to believe he or Daughter were members of a tribe. Father said there might be American Indian ancestry. He immediately contradicted his already-uncertain statement.
Before the August 3, 2017 conversation, Father affirmatively said he had no known American Indian ancestry. He said so in an interview with the Department and gave the same information through the Indian Status form. Father also remained silent at the June 30, 2017 hearing when the court said neither parent claimed American Indian ancestry. His August 3 conversation thus merely affirmed what he already said: he did not think he had American Indian ancestry.
Father was also silent when the court discussed American Indian ancestry during two hearings after August 3, 2017. The court specifically said the parents had no American Indian ancestry and asked whether there was any disagreement. This provides further support there was no reason to believe Daughter was an Indian child.
Father correctly points out new information may trigger an inquiry and the duty of inquiry falls on the Department and the court, not on the parent. Father's statement did not suggest he uncovered some new information. He merely said he might have ancestry and punctuated that with an assertion he did not think he actually had any ancestry. This did not trigger any further inquiry.
In the recent case Austin, supra, 47 Cal.App.5th at pp. 888-889, the Second District, Division One, found a mother's statements about the possibility of Cherokee ancestry insufficient to create reason to believe the mother's children were Indian children. The mother in Austin indicated each of her children may have Indian ancestry on Indian Status forms. (Id. at pp. 887-888.) The mother reported she had been "told that [her] mother had Cherokee" and she thought she had Cherokee ancestry through her maternal grandparents. (Id. at p. 878.) The court explained logic and reason must connect facts with a resulting belief a child is an Indian child under the Act. (Id. at p. 888.) "'[V]ague, attenuated, and speculative'" information about a tribal connection does not provide reason to believe a child might be an Indian child. (Ibid.; In re. J.D. (2010) 189 Cal.App.4th 118, 125.)
As in Austin, Father did not suggest he or Daughter were members of a tribe. His single statement was vaguer and more speculative than was the statement in Austin. Father did not list any tribe. He negated his speculation in varied ways.
Mother and Father point to In re Michael V. (2016) 3 Cal.App.5th 225 (Michael), but the parent in that case presented more certain information. The mother, Kristina, reported she may have Indian ancestry on the Indian Status form. (Id. at p. 230.) Kristina was involved in juvenile court proceedings herself as a child. A social worker said Kristina's mother, who was absent from Kristina's life, was "full-blood Indian" and a member of two tribes. (Ibid.) Unlike in Michael, Father never suggested any member of his family was a tribal member or "full-blood Indian." Rather, in Father's statement he thought he might have ancestry through the paternal grandfather, Father said he did not think he actually had any ancestry.
Father's statement was insufficient by itself to provide a reason to believe he or Daughter were members of, or eligible for membership in, an Indian tribe. The statute imposed no duty to make further inquiry.
DISPOSITION
We affirm.
WILEY, J. WE CONCUR:
GRIMES, Acting P. J.
STRATTON, J.