Opinion
B329926
04-22-2024
In re M.J. et al., Persons Coming Under the Juvenile Court Law. v. K.A., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 23CCJP00531A-B. Lisa A. Brackelmanns, Referee. Dismissed in part and affirmed in part.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Senior Deputy County Counsel, for Plaintiff and Respondent.
GRIMES, J.
Mother, K.A., appeals the juvenile court's dispositional orders for two of her daughters, M.J. and K.J., based on a claim of noncompliance with the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). We dismiss the appeal as to M.J. because, as an 18-year-old, there is no possibility of a finding that she is an Indian child. We affirm as to K.J.
We use the term "Indian" as it is defined in section 1903 of title 25 of the United States Code.
BACKGROUND
We limit our recitation of the facts to those essential to the determination of this appeal.
The juvenile court most recently declared M.J. and K.J. juvenile dependents in 2023 following a referral that mother physically abused K.J. and put her other children at risk of harm. M.J. turned 18 in July 2023. M.J. and K.J. were subjects of two prior dependency proceedings, commenced in 2009 and 2014, respectively. No Indian heritage was found as to the girls in either of those proceedings.
In the present case, the juvenile court and the Los Angeles County Department of Children and Family Services (Department) each inquired whether M.J. and K.J. might be Indian children. Between them, they asked mother, father, and extended family members on both sides of the family.
Only father, paternal grandmother, and maternal grandmother reported possible Indian ancestry. Father claimed some association with the Cherokee tribe in "Oklahoma?". Paternal grandmother reported two paternal great-greatgrandparents were each half Cherokee. Maternal grandmother, despite initially denying Indian ancestry, claimed Indian ancestry on her mother's side, "[m]aybe" Cherokee.
In March 2023, the Department mailed form ICWA-030 notices of the juvenile court proceedings to the Secretary of the Interior, the Bureau of Indian Affairs, and three Cherokee tribes: the United Keetoowah Band of Cherokee Indians in Oklahoma, the Eastern Band of Cherokee Indians, and the Cherokee Nation. The notices included the names of the children, parents, maternal grandmother, maternal grandfather, and paternal grandmother. They did not include birthdates or middle names for any of the grandparents.
All three tribes responded to the notices. The United Keetoowah Band of Cherokee Indians in Oklahoma disclaimed any interest in the proceeding without request for further information. The Eastern Band of Cherokee Indians did the same.
The Cherokee Nation, however, responded the children "could POSSIBLY be connected to the Cherokee Nation through the maternal grandmother and maternal grandfather, but without a middle name and/or date of birth for [those individuals], an accurate determination cannot be made." The letter invited submission of additional information to ICWAEligCherokeeNation@cherokee.org.
Here is where the parties' telling of the facts materially differ. According to mother, the Department "inexplicably failed to ask [maternal grandmother] for her middle name and date of birth, and [the Department] failed to provide any updated information to the Cherokee Nation." But as the Department points out, the record shows that, immediately after the Cherokee Nation requested this information, the Department "emailed ICWAEligCherokeeNation@cherokee.org the additional information requested and requested an update regarding the determination of tribal eligibility." Mother did not file a reply brief to explain how her recitation of the facts can be reconciled with the record. We are not directed to any evidence the Cherokee Nation responded to the Department's supplemental submission.
At the dispositional hearing in June 2023, with the benefit of a report that the three Cherokee tribes had each received notice of and disclaimed any interest in the case, the juvenile court concluded that the ICWA did not apply. The juvenile court further ordered the children removed from mother.
Mother timely appealed the juvenile court's findings and orders.
DISCUSSION
1. Appeal Dismissed as to M.J.
M.J. is now 18 years old. Accordingly, there is no possibility she could be determined to be an Indian child on remand if the juvenile court's orders as to her were reversed. (25 U.S.C. § 1903(4) [only a person under 18 years of age can be an "Indian child"]; In re Melissa R. (2009) 177 Cal.App.4th 24, 34.) With no possibility of effective relief, the appeal as to M.J. is moot. (See In re D.P. (2023) 14 Cal.5th 266, 276.).
2. Order Affirmed as to K.J.
In involuntary state court proceedings concerning child custody, such as these dependency proceedings, ICWA requires notice to the relevant Indian tribe "where the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a).) It is incumbent upon the court administering such a proceeding to inquire whether the subject child is an Indian child. The scope of the duty on the court, as well as certain participants in the proceeding (including county welfare departments, like the Department), is defined by federal regulations and related state law. (See, e.g., 25 C.F.R. § 23.107 (2024); Welf. &Inst. Code, § 224.2; Cal. Rules of Court, rule 5.481.)
There are"' "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. ([Welf. &Inst. Code,] § 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." '" (In re H.V. (2022) 75 Cal.App.5th 433, 437.)
A juvenile court's finding that the ICWA does not apply implies that (a) neither the county welfare department nor the court had a reason to know or believe the child was an Indian child; and (b) the county welfare department fulfilled its duty of inquiry. (In re Josiah T. (2021) 71 Cal.App.5th 388, 401.) We review such findings for substantial evidence. (Ibid.)
Mother claims the juvenile court erred in finding the ICWA did not apply because the Department did not fulfill its duty of further inquiry. Specifically, she contends the Department failed to comply with the mandate of Welfare and Institutions Code section 224, subdivision (e)(2)(C) that it "shar[e] information identified by the tribe as necessary for the tribe to make a membership or eligibility determination . . . ." Mother's contention rests on the premise that the Department failed to provide the Cherokee Nation with information that the tribe requested-the middle names and dates of birth of maternal grandparents. But there is substantial evidence, in the form of a Department report, that the Department did provide this information. In simply ignoring this evidence, mother fails to carry her burden on appeal to show error.
We further note this appeal was taken in the early stages of the case. The order appealed was the juvenile court's dispositional order. "[A]n ICWA appeal at the jurisdiction and disposition stage" is premature "where there will necessarily be further dependency proceedings in the juvenile court (at which continuing ICWA duties apply)" and a basis for later appeal if for some reason the Department fails to fulfill its continuing duty of inquiry. (See In re Baby Girl M. (2022) 83 Cal.App.5th 635, 638.)
The juvenile court remains obligated to change its finding of no reason to know K.J. is an Indian child if new information comes to light. (In re S.H. (2022) 82 Cal.App.5th 166, 176.) The Department acknowledges that it has an ongoing duty to comply with the ICWA. We expect the Department will comply with its ongoing obligations and the court will revisit its ICWA finding if new evidence subjects it to doubt. And, we encourage mother- and all parties-to address any perceived deficiencies in the inquiry with the juvenile court to avoid the burden and expense of unnecessary appeals.
DISPOSITION
The appeal as to M.J. is dismissed. The juvenile court's findings and orders as to K.J. are affirmed.
WE CONCUR: STRATTON, P. J., WILEY, J.