Opinion
B305212
08-25-2020
In re B.E., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.E., et al., Defendants and Appellants.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant J.E. Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant D.G. Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17LJJP00140) APPEAL from an order of the Superior Court of Los Angeles County, Michael C. Kelley, Judge. Affirmed. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant J.E. Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant D.G. Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
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J.E. (Father) and D.G. (Mother) (collectively, the parents) appeal from juvenile court orders terminating their parental rights concerning their two children, B.E. and C.E. (collectively, the children). The parents contend that the juvenile court and social workers failed to comply with their duties of inquiry and notice under sections 224.2 and 224.3 of the Welfare and Institutions Code. We reject these arguments and affirm the court's orders.
Further statutory references are to the Welfare and Institutions Code, unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
The parents raise issues concerning the court's and social workers' compliance with California laws related to the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) only, and do not challenge the merits of the juvenile court's orders. We limit our factual summary accordingly.
On October 24, 2017, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition on behalf of the children under section 300. Among other allegations, DCFS alleged under section 300, subdivision (b)(1) that Mother neglected C.E.'s medical needs, including failing to obtain prescribed medication for the child's bronchitis, thereby endangering C.E.'s health and safety. The next day, social workers detained the children from the parents and placed them in foster care. At that time, B.E. was 14 months old and C.E. was one month old.
At an initial detention hearing held on October 30, 2017, Mother filed a parental notification of Indian status form (Judicial Council form ICWA-020 (Jan. 1, 2008)), stating that she has "no Indian ancestry as far as [she] know[s]." All other checkboxes on the form were left blank. Based on that form, the court found that it has no reason to believe that ICWA applies to Mother's side of the family. The court also made findings to support detention of the children from the parents.
On November 2, 2017, Father made his initial appearance and filed a parental notification of Indian status form, stating that he "may have Indian ancestry"—"Cherokee through [Father's] mother's mother." In response to the court's questions, Father provided his mother's name, C.C. (the paternal grandmother), and her address and telephone number. Other than the paternal grandmother, Father stated he was unaware of anyone who might have knowledge about his possible Indian ancestry. The court then informed Father, "if you can think of anyone else who may know about your American Indian ancestry it's really important that you let [DCFS], the social worker who calls you, know their name and contact information if you have it." Father responded, "Okay."
In response to further questions from the court, Father said that neither he nor his mother is registered with an Indian tribe. When asked if the children were registered with a tribe, Father responded, "Not that I know of." At that point, Mother spoke up to clarify, telling the court, "no." When asked if his grandmother was registered with a tribe, Father responded, "I think she was but I'm not so sure."
Counsel for Father also informed the court and counsel that a deceased grandmother or great grandmother on Father's mother's side, named Vi.G., "would be part of [Father's] maternal lineage."
The court directed DCFS "to investigate Father's American Indian ancestry," including contacting the paternal grandmother. The court also directed DCFS to "notify the appropriate tribes as well as the Secretary of [the] Interior and the Bureau of Indian Affairs."
On November 9, 2017, a DCFS adoption assistant contacted the paternal grandmother to inquire about Indian ancestry. The paternal grandmother told the assistant, "if their family had [Indian] ancestry[,] it was a long time ago and [she] didn't think that was significant enough to have meaning." She also told the social worker that there was no Indian ancestry on Father's paternal side of the family.
On November 15, 2017, the adoption assistant contacted the paternal grandmother again. She said that she was caring for someone with dementia 24 hours a day and "did not have time to go over it." The paternal grandmother repeated that "if they had any [Indian] ancestry it was so long ago that it was not significant."
The following day, the adoption assistant spoke by telephone with Father. Father told the assistant "that he had ancestry through his mother's mother['s] side of the family[, and] that his great grandmother's name was [Vi.]G." He did not know her place or date of birth. He believed she died in Palmdale, California, but did not know the year. Father believed his grandfather's name was Ve.G., and that he lived and died "in the mountains." He told the assistant that he did not know if anyone in his family had lived on a reservation, gone to an Indian school, or been treated at an Indian clinic. Father agreed to contact his siblings to see if he could get more information.
On December 6, 2017, the adoption assistant called the parents to ask Father again about his Indian ancestry. Mother answered the telephone and told the social worker that she and Father had spoken with Father's siblings over Thanksgiving and "they could not recall anything and no new information had been gathered."
The next day, DCFS sent notices of the jurisdictional hearing, by certified mail return receipt requested to, among others, the "Cherokee Nation" in Oklahoma, the "United Keetoowah Bank of Cherokee Indians" in Oklahoma, the "Eastern Band of Cherokee Indians" in North Carolina, Bureau of Indian Affairs (BIA) offices in Oklahoma and Tennessee, and the Secretary of the Interior.
In a jurisdiction/disposition report filed in December 2017 and an addendum report filed in March 2018, DCFS informed the court of the adoption assistant's conversations with Father and the paternal grandmother.
In January 2018, DCFS filed an amended petition under section 300, adding an allegation under section 300, subdivision (b)(1), that Father has a history of illicit drug use and is a frequent user of methamphetamine, which endangers the children's health and safety. DCFS subsequently amended the petition to include an additional allegation under section 300, subdivision (b)(1) that the parents allowed the children to have contact with family members who have a history of drug abuse. The amended petition includes forms signed by a social worker stating that each child "is or may be a member of or eligible for membership in a tribe." The forms state that Father was questioned and "states that he is Cherokee."
On August 2, 2018, the court held a jurisdictional hearing and found true the allegations under section 300, subdivision (b)(1) that are described above.
On August 14, 2018, the court held a dispositional hearing and declared the children to be dependents of the court, removed them from parental custody, and ordered family reunification services for the parents. The court found that it did not have a reason to know that the children were Indian children and did not order DCFS to give notice to any tribe or the BIA.
On September 19, 2019, the court terminated reunification services and scheduled a permanency planning hearing to be held pursuant to section 366.26.
At the permanency planning hearing held on January 17, 2020, the court terminated the parents' parental rights.
Counsel for Mother has requested that we direct the record be redacted to omit certain information within the record on appeal. We decline the request because the confidentiality of juvenile court records and their disclosure are governed by sections 825 through 832 and rule 5.552 of the California Rules of Court, which do not permit the requested redactions. --------
DISCUSSION
A. Legal Background
ICWA establishes "minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family." (In re Austin J. (2020) 47 Cal.App.5th 870, 881.) Although ICWA does not require any inquiry to determine whether a child is an Indian child, California law imposes duties on county welfare departments and courts to make prescribed initial inquiries in every dependency case (§ 224.2, subds. (a)-(c); In re Isaiah W. (2016) 1 Cal.5th 1, 14), and to make a "further inquiry" when a court or social worker has a "reason to believe" a child is an Indian child (§ 224.2, subd. (e)). If a social worker or the court have a "reason to know" the child is an Indian child, notice of certain proceedings must be given to "the child's tribe," among others. (§ 224.3, subd. (a).)
"Central to the protections ICWA provides is the determination that an Indian child is involved." (In re Austin J., supra, 47 Cal.App.5th at p. 882.) An "Indian child," for purposes of ICWA, "is an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe." (Ibid., citing 25 U.S.C. § 1903(4) & (8); see also § 224.1, subd. (a).) By defining Indian children in this way, "ICWA focuses on [tribal] 'membership' rather than racial origins." (In re B.R. (2009) 176 Cal.App.4th 773, 783.) Indeed, regardless of a child's race or ancestry, "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." (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.)
The "further inquiry" concerning a child's Indian status that is required under California law is triggered when the court or social worker "has reason to believe that an Indian child is involved in a proceeding." (§ 224.2, subd. (e).) Although a reason to believe a child is an Indian child does not require the certitude or factual support necessary to establish a reason to know a child is an Indian child, the social worker or court must, at a minimum, be aware of facts that could support a reasonable inference that the child, or at least one of the child's biological parents, is a member of an Indian tribe. (In re Austin J., supra, 47 Cal.App.5th at p. 888.) Because tribal membership depends ultimately upon "the child's political affiliation with a federally recognized Indian Tribe" (81 Fed.Reg. 38801-38802), being informed that the child may have Indian ancestry, without more, does not support the requisite inference. (In re Austin J., supra, 47 Cal.App.5th at p. 888.)
The further inquiry required when there is a reason to believe a child is an Indian child includes (1) interviewing the parents and "extended family members" to obtain information pertinent to providing notice of the proceedings to the child's Indian tribe, (2) contacting the BIA and the State Department of Social Services "for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in," and (3) contacting pertinent Indian "tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizen status, or eligibility." (§ 224.2, subds. (e)(1)-(3).)
If a further inquiry provides social workers or the court with a "reason to know" the child is an Indian child, notice of certain hearings must be provided to "the child's tribe," among others. (§ 224.3, subd. (a).) A person has such a reason to know "under any of the following circumstances: [¶] (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family informs the court that the child is an Indian child. [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village. [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child. [¶] (4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child. [¶] (5) The court is informed that the child is or has been a ward of a tribal court. [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d).)
B. Analysis
Here, the parents contend that the court and social workers failed to fulfill their duty to make further inquiries regarding the children's possible Indian status. DCFS asserts that the social workers and court did not have a duty to make such further inquiries because they did not have a reason to believe the children were Indian children. We agree with DCFS.
We review the juvenile court's ICWA findings for substantial evidence. (In re D.S. (2020) 46 Cal.App.5th 1041, 1051.) But where, as here, the facts are undisputed, "we independently determine whether ICWA's requirements have been satisfied." (Ibid.; accord, In re A.M. (2020) 47 Cal.App.5th 303, 314.)
The evidence concerning the possibility that the children are Indian children consists of: (1) Father's statement on his parental notification of Indian status form that he "may have Indian ancestry," specifically, "Cherokee through [Father's] mother's mother"; (2) Father's statements to the court, together with Mother's clarification, that neither he, the children, nor his mother are registered members of an Indian tribe; (3) Father's statement that he "think[s]," but he was "not so sure," that his maternal grandmother was registered with a tribe; (4) the paternal grandmother's statement that, if the family had Indian ancestry, "it was a long time ago" and was not "significant enough to have meaning"; and (5) Father's statement to the adoption assistant that "he had ancestry through his mother's mother['s] side of the family."
We addressed a similar factual situation in In re Austin J. In that case, the child's mother stated on her parental notification of Indian status form that she "may have Indian ancestry" and she informed that court that she had been " 'told that [her] mother had Cherokee' " ancestry. (In re Austin J., supra, 47 Cal.App.5th at p. 878.) The mother's aunt also informed a social worker that the mother's maternal grandmother " 'may have had Cherokee heritage.' " (Ibid.) These statements, we held, "are insufficient to support a reason to believe the children are Indian children as defined in ICWA. At most, they suggest a mere possibility of Indian ancestry. . . . Indian ancestry, without more, does not provide a reason to believe that a child is a member of a tribe or is the biological child of a member." (Id. at pp. 888-889.)
As in In re Austin J., the evidence in this case indicates the "mere possibility of Indian ancestry." (In re Austin J., supra, 47 Cal.App.5th at p. 888.) Although Father said he "think[s]," but "was not so sure," that his maternal great grandmother was registered with a Cherokee tribe, this thought " 'is too vague, attenuated and speculative' [to] support a 'reason to believe the children might be Indian children.' [Citation.]" (Ibid., quoting In re J.D. (2010) 189 Cal.App.4th 118, 125; see generally Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020) Disposition Hearing, § 2.125[1], p. 2-419 [ICWA "does not apply to the many children involved in juvenile dependency proceedings who merely have some vague, distant, or possible Indian heritage"].) This conclusion is strengthened by Father's and Mother's responses to the court's inquiries, which established that, regardless of possible Indian ancestry or Father's speculation about his grandmother, neither Mother, Father, the children, nor the paternal grandmother are registered with an Indian tribe. Based on these statements and the absence of other evidence indicating the children's or a parent's tribal membership, there was no reason to believe that the children are Indian children.
In his opening brief, Father states that he "specifically stated his maternal grandmother was Cherokee." and that he made a "statement on December 1, 2017, that the children may be members of or eligible for membership in a Cherokee tribe." These assertions misstate the record. In his parental notification of Indian status form, Father stated only that he "may have Indian ancestry," specifically, Cherokee through his maternal grandmother. When asked at his initial appearance in court whether his maternal grandmother was registered with a tribe, Father answered: "That I know of I think she was but I'm not so sure." At most, Father was equivocal regarding his maternal grandmother's Indian ancestry and possible membership in a Cherokee tribe. For his purported statement that the children may be members of or eligible for membership in a Cherokee tribe, Father cites only to forms filled out by a social worker, not to any statement made by Father.
Father relies on In re D.S., supra, 46 Cal.App.5th 1041. In that case, social workers had information that the child had an ancestor who "was 'affiliated with the Sioux and Blackfeet tribes.' " (Id. at p. 1046.) As a result of that and other information, the parties did not dispute on appeal that the information "regarding possible tribal affiliation [was] sufficient to establish a reason to believe [the child] is an Indian child." (Id. at p. 1052.) The "sole contested issue [was] the adequacy of the [a]gency's further inquiry." (Ibid.) The court, therefore, did not consider whether the "reason to believe" requirement had been met.
Next, the parents contend that DCFS and the court had a reason to know the children were Indian children and, therefore, a duty to provide notice, in the manner prescribed by statute, to the children's Indian tribes, among others. Although DCFS sent notices to three Cherokee tribes, among others, the parents contend that notices include material errors that rendered them ineffective.
For the same reasons set forth above regarding the absence of a reason to believe the children were Indian children, there was no reason to know they were Indian children. (See In re Austin J., supra, 47 Cal.App.5th at p. 888; see also In re A.M., supra, 47 Cal.App.5th at p. 311 [the mother's statement that she " 'may have Blackfoot Tribe ancestry' " did not indicate a reason to know that the children are Indian children].) Because there was no reason to know that the children are Indian children, DCFS was not required to provide notice to any tribe, and any errors in the notices it sent were necessarily harmless.
DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
BENDIX, J.