Opinion
B302180
08-19-2020
In re BREANA J. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.J., Defendant and Appellant.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sarah Vesecky, Senior 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. DK23759, 19LJJP00010A) APPEAL from orders of the Superior Court of Los Angeles County, Michael C. Kelley, Judge. Affirmed in part and dismissed in part. Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sarah Vesecky, Senior Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
T.J., mother of seven-year-old Breana J. and one-year-old Joy H., appeals from the juvenile court's orders terminating her parental rights. She contends the Los Angeles County Department of Children and Family Services did not comply with the inquiry requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Specifically, T.J. argues the Department did not adequately inquire whether, through her father, Breana may be an Indian child. Because T.J. has not demonstrated the juvenile court or the Department committed any violation of ICWA's requirements or any prejudicial violation of California's ICWA-related requirements as they relate to Breana, and because T.J. raises no issues concerning Joy, we affirm the order terminating T.J.'s parental rights to Breana and dismiss T.J.'s appeal from the order terminating her parental rights to Joy.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Petition and Previous Appeal Concerning Breana
In August 2017 the Department detained Breana from T.J. and filed a petition pursuant to Welfare and Institutions Code section 300, alleging T.J.'s inability to supervise or protect and provide regular care for Breana put the child at substantial risk of serious physical harm. The Department reported that T.J.'s husband, Darnell J., who was Breana's father, had died in 2015.
Undesignated statutory references are to the Welfare and Institutions Code.
At the detention hearing, T.J. submitted a Judicial Council form ICWA-020 on which she checked the box indicating she was "or may be a member of, or eligible for membership in, a federally recognized Indian tribe." Beneath the box she identified the tribe as "Cherokee through grandmother [G.H.] (deceased)" and stated her aunt, Laverne R., "may have more information." The juvenile court ordered the Department to "investigate the mother's claim of American-Indian ancestry" and to "give notice to the Secretary of the Interior, the Bureau of Indian Affairs, and the appropriate Indian tribes."
For the jurisdiction hearing, which took place over several days in December 2017 and January 2018, the Department reported that T.J.'s aunt, Laverne, and T.J.'s sister, L.W., denied T.J. had "American Indian Heritage." At the hearing, however, T.J. repeated her belief that she may "have Cherokee blood" because her deceased grandmother "was Cherokee." Citing the statements by Laverne and L.W., the juvenile court found it had no reason at that point to believe ICWA applied "to mother's side of the family," but ordered the Department "to continue its efforts in investigating notice to the appropriate tribe and the bureau as well as the Secretary of the Interior." The court sustained the petition and removed Breana from T.J.
In January 2018 T.J. appealed from the juvenile court's jurisdiction findings and disposition order, contending substantial evidence did not support them. This court concluded otherwise. (In re Breanna J. (Feb. 4, 2019, B289072) [nonpub. opn.].) But T.J. also contended the juvenile court and the Department had not complied with the inquiry and notice requirements of ICWA because the Department never sent the notices the juvenile court (at the jurisdiction hearing) ordered it to send to investigate the possibility that Breana was an Indian child through T.J.'s side of the family and because the Department did not make any inquiry regarding whether Breana might be an Indian child through Darnell's side of the family. (Ibid.) The Department conceded it failed in these ways to comply with the ICWA inquiry and notice requirements. (Ibid.) In our prior opinion we therefore conditionally affirmed the juvenile court's jurisdiction findings and disposition order and remanded for further proceedings to comply with the inquiry and notice provisions of ICWA and California law. (Ibid.)
While the appeal was pending, the juvenile court corrected the spelling of the child's name in the case to reflect her true and correct name, "Breana."
B. Proceedings in the Juvenile Court During the Pendency of the Previous Appeal
While T.J.'s appeal was pending, the Department updated the juvenile court on its continuing efforts to comply with ICWA. The Department reported it obtained Darnell's death certificate, which included his parents' names and his mother's birth state. In a last minute information for a six-month review hearing in October 2018, the Department reported T.J. was not cooperating with its attempts to question her further about her possible Indian ancestry. She refused to fill out any more ICWA-related forms or answer any questions about her Indian ancestry. In the meantime, L.W. had twice more denied her family had Indian ancestry. She stated that T.J. "heard from her boyfriend that if she has Indian ancestry her case will be heard in a different court[,] and for this reason, [she] is claiming Indian ancestry."
At the October 2018 six-month review hearing under section 366.21, subdivision (e), the juvenile court terminated T.J.'s reunification services and set a hearing under section 366.26 to select and implement an alternative permanent plan for Breana. The court ordered the Department to continue "to follow up regarding ICWA investigation and update the court with regards to investigation of ICWA in its next report."
In December 2018 T.J. gave birth to Joy, whose alleged father was Q.H. In January 2019 the Department detained Joy and filed a section 300 petition alleging T.J.'s illicit substance use and mental and emotional problems put Joy at substantial risk of serious physical harm. The Department reported that, because T.J. was "uncooperative during the investigation," its social worker was "unable to ask regarding Native American Heritage." At the detention hearing T.J. submitted an ICWA-020 form on which she again indicated she may have Indian ancestry, specifically, "Cherokee through my father and mother."
C. Termination of T.J.'s Parental Rights to Breana
For Breana's section 366.26 hearing, initially scheduled for February 20, 2019, the Department reported contacting T.J. on February 5, 2019 to ask "if she had any information about any possible Indian Ancestry," at which time T.J. "denied having information regarding Ancestry." The Department advised the juvenile court it had "been unable to obtain any additional information that would indicate or suggest that [Breana] is an Indian child." The Department also asked the juvenile court to continue the hearing to allow the Department to further address ICWA and provide notice to T.J. The juvenile court continued the hearing to April 24, 2019, ordering "the Department to properly notice T.J. and "provide [an] update regarding ICWA investigation and interviews with paternal relatives."
In a status review report filed in early April 2019, the Department reported that on March 19, 2019 it called T.J. "to investigate about ICWA" and "left a message," but T.J. "did not respond." The Department also asked L.W. whether she knew any of Breana's paternal relatives, and she stated "she did not know anybody else besides the names she already provided." The Department further reported that on March 27 a social worker visited T.J. "to gather information regarding ICWA," but that T.J. "refused to answer questions regarding ICWA and attempted to call the police[,] stating [the Department's social worker] was harassing her."
For the section 366.26 hearing on April 24, 2019, the Department reported on its continuing efforts to follow up on T.J.'s claim of possible Indian ancestry. The Department also reported: "With regards to ICWA concerning the paternal relatives[,] . . . the Department has been unsuccessful with obtaining information regarding possible Indian Ancestry with the paternal relatives. A search of old Court reports and [the Child Welfare Services Case Management System] revealed no information that would assist the Department in obtaining current contact information for the paternal relatives. Additionally, the Department attempted to make contact with relatives associated with the father . . . via telephone. However, the Department's efforts were unsuccessful. Additionally, the Department questioned [L.W.] about contact information for paternal relatives. [L.W.] was unable to provide any information. [A Department social worker] attempted to obtain information from [T.J.], however she refused." The Department stated it sent notices to the Secretary of the Interior and the Bureau of Indian Affairs "with the information available to the Department," and it submitted copies of those notices. At the April 24, 2019 hearing the juvenile court ordered adoption as the permanent plan and continued the hearing to July, apparently at the Department's request, to allow the Department to complete its ICWA investigation.
In a last minute information for the continued section 366.26 hearing in July, the Department updated the court on its contact with T.J.'s relatives concerning her family's possible Indian ancestry. The Department also repeated its earlier report that it had not succeeded in obtaining information from any paternal relatives regarding possible Indian ancestry and that T.J. had refused to provide any such information. The juvenile court continued the hearing again, to October, "to complete [the] ICWA investigation."
In a last minute information for the continued section 366.26 hearing on October 23, 2019, the Department reported the results of its communications with T.J.'s relatives about their possible Indian ancestry: All either denied there was any or said they had no relevant information. The Department reported that it had sent notices to the Secretary of the Interior, the Bureau of Indian Affairs, and several Cherokee tribes and that so far two tribes had responded that Breana was not registered or eligible to register as a member. The Department also repeated, again, its report that it had not succeeded in obtaining information from any paternal relatives regarding possible Indian ancestry and that T.J. had refused to provide such information.
At the October 23, 2019 hearing the Department asked the juvenile court to continue the hearing again because three days remained in the statutory period for the tribes to respond to the notices the Department had sent. The court stated that it had reviewed the Department's filings, that "it does appear that the Department has done a great deal of work in order to investigate whether there's potential Indian ancestry," and that it would be prudent to continue the matter again for a short period. The court continued the hearing for two weeks.
When the section 366.26 hearing resumed on November 7, 2019, the juvenile court found ICWA did not apply to Breana. The court found the Department had "made extensive efforts to interview relatives of mother to determine if there is any Indian ancestry on her side of the family." The court also stated the Department's reports reflected that, "with respect to the paternal side of the family, the Department made extensive efforts to locate and interview relatives" and that "those efforts were without success." The court specifically mentioned that the Department had "searched old court records for relatives" and "requested information from [T.J.], who refused to provide any information." The court asked whether there was any objection to admitting the Department's reports into evidence, and counsel for T.J. answered no. The court asked whether anyone wanted to be heard on the Department's recommendation to terminate parental rights. Counsel for T.J. answered, "Yes, Your Honor. I'm objecting to termination of my client's parental rights. Submitted." The court terminated T.J.'s parental rights to Breana and transferred the care and custody of Breana to the Department for adoptive planning and placement. T.J. timely appealed.
D. Termination of T.J.'s Parental Rights to Joy
Meanwhile, in March 2019 the juvenile court sustained a first amended petition concerning Joy, found Q.H. was not her biological, presumed, or alleged father, and found ICWA did not apply to Joy. In May 2019 the court declared Joy a dependent of the court, removed her from T.J., and ordered Joy suitably placed. The court also denied reunification services for T.J. under section 361.5, subdivision (b), and set a hearing to select and implement an alternative permanent plan for Joy under section 366.26.
The juvenile court held the section 366.26 hearing for Joy in October 2019, at which time the court terminated T.J.'s parental rights and transferred custody and control of Joy to the Department for adoptive planning and placement. T.J. timely appealed.
DISCUSSION
As an initial matter, although T.J. has appealed from both the order terminating her parental rights to Joy and the order terminating her parental rights to Breana, T.J. raises no issues concerning the former. We therefore dismiss T.J.'s appeal from the order terminating her parental rights to Joy. (See In re Sade C. (1996) 13 Cal.4th 952, 994; In re J.F. (2019) 39 Cal.App.5th 70, 79.)
T.J. challenges the order terminating her parental rights to Breana on the ground the Department, according to T.J., "failed to make meaningful efforts to inquire regarding Darnell's ancestors to determine if Breana might be an Indian child." T.J. has not demonstrated, however, the Department or the juvenile court failed to comply with any applicable duty to inquire. Nor has she demonstrated (or even suggested), as she must for a violation of state law, that the specific purported failure she complains of was prejudicial.
T.J. does not raise any ICWA inquiry or notice issues relating to her report that she may have Indian ancestry. And in her reply brief she concedes that no further "notice is required unless the inquiry regarding [Darnell] on remand in the instant case reveals 'reason to know' that Breana is an Indian child"—a possibility foreclosed by our conclusion that remand is not required.
A. Applicable Law and Standard of Review
"ICWA established minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes." (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) "ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal regulations implementing ICWA, however, require that state courts 'ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.' [Citation.] The court must also 'instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.'" (In re Austin J. (2020) 47 Cal.App.5th 870, 882-883 (Austin J.); see 25 C.F.R. § 23.107(a).)
In addition, "ICWA provides that states may provide 'a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under' ICWA. (25 U.S.C. § 1921.) Under California law, the court and county child welfare 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); see . . . Cal. Rules of Court, rule 5.481(a).) The child welfare department's initial duty of inquiry includes 'asking 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).)" (Austin J., supra, 47 Cal.App.5th at p. 883.)
T.J. and the Department agree the current versions of California's ICWA-related inquiry and notice statutes, which became effective January 1, 2019, apply here. (See In re D.S., supra, 46 Cal.App.5th at p. 1048 [discussing the statutory amendments that became effective January 1, 2019].)
"California law also requires 'further inquiry regarding the possible Indian status of the child' when 'the court, social worker, or probation officer has reason to believe that an Indian child is involved [or, under Cal. Rules of Court, rule 5.481(a)(4), "may be involved"] in a proceeding. . . .' (§ 224.2, subd. (e).) The Legislature, which added the 'reason to believe' threshold for making a further inquiry in 2018, did not define the phrase. When that threshold is reached, the requisite 'further inquiry' 'includes: (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and State Department of Social Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that might have information regarding the child's membership or eligibility in a tribe.'" (Austin J., supra, 47 Cal.App.5th at p. 883; see In re D.S., supra, 46 Cal.App.5th at p. 1049 ["The sharing of information with tribes at this inquiry stage is distinct from formal ICWA notice, which requires a 'reason to know'—rather than a 'reason to believe'—that the child is an Indian child."].)
"In addition to the inquiry that is required in every dependency case from the outset and the 'further inquiry' required under California law when there is a 'reason to believe' an Indian child is [or may be] involved, a third step—notice to Indian tribes—is required under ICWA and California law if and when 'the court knows or has reason to know that an Indian child is involved.'" (Austin J., supra, 47 Cal.App.5th at pp. 883-884; see 25 U.S.C. § 1912(a); § 224.3, subd. (a); Cal. Rules of Court, rule 5.481(b)(1).) Thus, an initial "duty of inquiry applies to every 'child for whom a petition under Section 300, 601, or 602 may be or has been filed' (§ 224.2, subd. (a))," the "duty of further inquiry applies when there is a 'reason to believe that an Indian child is involved [or, under Cal. Rules of Court, rule 5.481(a)(4), "may be involved"] in a proceeding' (§ 224.2, subd. (e))," and "the duty to provide notice to Indian tribes applies only when one knows or has a 'reason to know . . . an Indian child is involved.'" (Austin J., at p. 884.)
Where, as here, the juvenile court finds that ICWA does not apply to a child, "[t]he finding implies that . . . social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry. We review a court's ICWA findings for substantial evidence. [Citations.] 'We must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance.'" (Austin J., supra, 47 Cal.App.5th at p. 885.) The appellant "'has the burden to show that the evidence was not sufficient to support the findings and orders.'" (Ibid.)
Finally, "it is essential to distinguish between violation of notice requirements imposed by ICWA itself and the federal regulations implementing it, on the one hand, and violations of state standards for inquiry and notice that are higher than those mandated by ICWA, on the other hand. As to the former, 'ordinarily failure in the juvenile court to secure compliance with [ICWA's] notice provisions is prejudicial error.' [Citations.] Any failure to comply with a higher state standard, however, 'must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.'" (In re Breanna S. (2017) 8 Cal.App.5th 636, 653, fn. omitted; see In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
B. T.J. Has Not Demonstrated Any Violation of ICWA or Prejudicial Violation of State ICWA-related Inquiry Requirements
The duty to inquire requires the child protective agency "to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status." (In re K.R. (2018) 20 Cal.App.5th 701, 709; accord, In re Michael V. (2016) 3 Cal.App.5th 225, 235-236; see In re D.S., supra, 46 Cal.App.5th at p. 1053 ["The [child protective agency] is not required to 'cast about' for information or pursue unproductive investigative leads."].) Contrary to T.J.'s contention, substantial evidence supports the juvenile court's implied finding the Department complied with its duty to make a meaningful effort to locate and interview Breana's extended family members on her father's side of the family. Specifically, the Department attempted to reach Darnell's relatives by phone, searched court records and a child welfare database for current information about Darnell's relatives, asked L.W. for any additional information about relatives on Darnell's side of the family, and repeatedly tried to ask T.J. for such information, all without success.
T.J. argues "[t]here is no evidence the Department attempted to contact and make inquiries of" two paternal relatives who appear in the record, J.A. and B.H. The Department's reports reflect that these two people resided in T.J.'s home when the Department first investigated the referral concerning Breana and that on that occasion T.J. told the Department's social worker that J.A. and B.H. were, respectively, Darnell's uncle and aunt. Citing section 224.2, subdivision (b), and California Rules of Court, rule 5.481(a)(1), T.J. contends the Department's duty of "initial inquiry" required it to attempt to interview J.A. and B.H. because they were "extended family members."
But "[u]nder both ICWA and California law, '"extended family members"' include the child's 'grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.'" (In re D.S., supra, 46 Cal.App.5th at p. 1053; see 25 U.S.C. § 1903(2); § 224.1, subd. (c).) The term "extended family members" does not include a child's great-uncle or great-aunt—J.A.'s and B.H.'s purported relation to Breana. (See In re D.S., at p. 1053 [duty to inquire of extended family members "does not include great-grandparents"].) The Department's duty to inquire of Breana's extended family members thus did not require it to make any inquiry of J.A. or B.H.
Section 224.2, subdivision (e), and California Rules of Court, rule 5.481(a)(4), which concern the duty of "further inquiry" triggered when the Department has reason to believe the child involved is or may be an Indian child, do require the Department, under those circumstances, to contact "any . . . person" who may reasonably be expected to have information regarding the child's membership or eligibility for membership in an Indian tribe. We hesitate, however, to conclude the Department failed to satisfy its duty of inquiry here because, even if the Department had a duty to attempt to contact J.A. and B.H. as persons who could reasonably be expected to have relevant information, we cannot presume from this record the Department did not do so. The Department reported it unsuccessfully attempted to call and obtain current contact information for "relatives associated with" Darnell and tried in vain to obtain any helpful information about "paternal relatives" generally. In the absence of evidence to the contrary—citing none, T.J. merely states "[i]t is unknown whether the [Department] tried to talk to them"—we presume the Department's efforts included unsuccessful attempts to contact J.A. and B.H. (assuming the Department had a duty to contact them). (See In re J.F., supra, 39 Cal.App.5th at p. 79 ["The juvenile court's orders are 'presumed to be correct, and it is appellant's burden to affirmatively show error.'"]; see also Evid. Code, § 664 ["It is presumed that official duty has been regularly performed."]; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 ["[t]here are no inconsistencies in the evidence to rebut the presumption that [the child protective agency] properly carried out its duties"].)
Quoting In re K.R., supra, 20 Cal.App.5th 701, T.J. argues that the Department "'cannot omit from its reports any discussion of its efforts to locate and interview family members who might have pertinent information and then claim that the sufficiency of its efforts cannot be challenged on appeal because the record is silent.'" (Id. at p. 709.) But the Department did not omit from its reports any discussion of its efforts to locate and interview Darnell's relatives. It submitted several reports describing those efforts. Which distinguishes this case from In re K.R., where the juvenile court remanded for compliance with ICWA's inquiry requirements because "the record [was] silent as to [the child protective agency's] investigative efforts," and the juvenile court "did not inquire as to what efforts [the agency] had made." (Id. at pp. 708-709.) The Department's reports here were not "silent." They described in detail the Department's efforts to investigate whether Breana is or may be an Indian child, and they included, in particular, a description of efforts to locate paternal relatives that were by no means cursory. (See In re D.S., supra, 46 Cal.App.5th at p. 1054 ["Although the [child protective agency] could have documented some of its efforts in more detail, it provided sufficient information to support the court's findings."].)
In any event, even assuming the Department violated its duty of inquiry by not attempting to contact J.A. and B.H., T.J. has not even asserted—let alone demonstrated, as she must when complaining of a violation of state standards of inquiry that are higher than those mandated by ICWA (In re Breanna S., supra, 8 Cal.App.5th at p. 653)—that there is a reasonable probability she would achieve a more favorable result were the Department to attempt to contact J.A. or B.H. She does not suggest that it is reasonably probable Breana has any Indian ancestry through Darnell or that J.A. or B.H. know anything about whether Breana is or may be an Indian child.
T.J. does not suggest the juvenile court failed to comply with its duty under the federal regulations implementing ICWA to ask each participant in the proceeding whether he or she had reason to know Breana was an Indian child and instruct them to inform the court if they subsequently received information providing a reason to know.
DISPOSITION
The juvenile court's order terminating T.J.'s parental rights to Breana is affirmed. T.J.'s appeal from the juvenile court's order terminating her parental rights to Joy is dismissed.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.