Opinion
G062246
09-26-2023
In re J.V., a Person Coming Under the Juvenile Court Law. v. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.D., Defendant and Appellant.
Maryann M. Goode, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 22DP0984, Robert Gerard, Judge.
Maryann M. Goode, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
MOTOIKE, J.
Shortly after these child welfare proceedings commenced on behalf of J.V. (the Child), J.V.'s mother M.D. (Mother) reported to the Orange County Social Services Agency (the Agency) the family had Native American ancestry through the Blackfoot, Cherokee, and Chippewa tribes. Having reason to believe the Child was an Indian child, as defined by the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law, the Agency sent inquiry letters to relevant tribes pursuant to Welfare and Institutions Code section 224.2. After the maternal grandmother clarified the family's Native American ancestry was through the Pawnee tribe, the Canadian Blackfoot tribe, and an unknown tribe in Upstate New York, the Agency sent inquiry letters to the newly identified tribes and several tribes located in Upstate New York.
Because ICWA and Welfare and Institutions Code section 224.2 use the term "Indian," we will do the same for consistency. We recognize, however, other terms, such as "Native American" or "indigenous," are preferred by many. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.) All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
At the disposition hearing a few months later, the juvenile court found ICWA inapplicable. Mother challenges that finding primarily on the ground the Agency failed to share the names of the Child's great-great-grandparents in its inquiry contacts with relevant tribes. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The factual and procedural history is limited to provide context relevant to the single issue presented in this appeal.
I. THE PETITION
In August 2022, the Child, then seven years old, was taken into protective custody. Two days later, a child welfare petition was filed on the Child's behalf, alleging she came within section 300, subdivisions (b)(1) (failure to protect) and (j) (abuse of sibling). On the ICWA-010(A) form attached to the petition, the assigned social worker stated her initial inquiry of Mother and the Child's father O.V. (Father) regarding the Child's Indian status "gave [her] reason to believe the child is or may be an Indian child."
II. SUMMARY OF THE AGENCY'S ICWA INQUIRY EFFORTS
In the detention report, the assigned social worker stated Father and the Child denied having any Indian ancestry, but Mother "shared she may have Blackfoot American Indian ancestry; however, she is not a registered member of the tribe." Mother filed a form ICWA-020 entitled "Parental Notification of Indian Status," in which she stated, "I am or may be a member of, or eligible for membership in a federally recognized Indian tribe. [¶] Name of tribe(s) . . . Blackfoot, Cherokee, Chippewa." Father filed a form ICWA-020 indicating he had no Indian heritage.
At the detention hearing, after confirming Mother and Father had each completed and filed a form ICWA-020, the juvenile court ordered the Agency "to continue to comply with [section] 224.2 regarding further inquiry. Parents are ordered to provide [the Agency] with names and contact information of any relatives or interested parties who may know of possible ICWA heritage." The court deferred making any ICWA finding at that time.
The jurisdiction and disposition report and an addendum report included the following information on the Agency's further ICWA inquiry efforts. On August 8, 2022, a social worker interviewed Mother regarding her family's Indian ancestry. Mother again claimed Blackfoot, Cherokee, and Chippewa ancestry through the Child's maternal grandmother and the Child's late maternal great-grandmother, W.S.G. Mother reported she is not enrolled with any of the identified tribes and reported she did not know whether the maternal grandmother or W.S.G. was enrolled. Mother declined to provide contact information for the maternal grandmother, explaining Mother had been "'strained'" from her family and she did not want the maternal grandmother contacted.
Mother did not identify other family relatives who might be able to provide additional family information.
In the jurisdiction and disposition report, the Agency stated it had utilized the Bureau of Indian Affairs (BIA) and its resources for assistance in identifying the names and contact information of the tribes of which the Child may be a member or eligible for membership. The Agency thereafter identified the designated agents and contact information for over 25 tribes related to Blackfoot, Cherokee, and Chippewa ancestry. On or before August 22, 2022, a social worker sent an ICWA inquiry letter and a copy of Mother's family tree by certified mail and e-mail to the tribes' designated agents.
As stated in an addendum report, on September 8, 2022, a social worker received the following text message from Mother: "I spoke with my mother she says she is 73 [percent] Canadian Blackfoot from my grandfather. She let me know she will not go to New York to get her documents from a safety deposit box." Mother provided the maternal grandmother's name and telephone number.
That same day, the social worker called the maternal grandmother to inquire about her Indian ancestry. The maternal grandmother reported she "was 77 [percent] Blackfoot Canadian Indian Tribe" from her father W.J.G. (the maternal great-grandfather), who had passed away 13 years earlier. The maternal grandmother also reported her mother, W.S.G., who had passed away nine years earlier, was part of the "Ohani Indian Tribe" in Upstate New York. The social worker submitted an ICWA referral on behalf of Mother.
III. THE JURISDICTION HEARING
At the jurisdiction hearing on September 13, 2022, Mother and Father each pleaded nolo contendere to the allegations of the petition as amended by interlineation that day. The juvenile court found the allegations of the amended petition true, bringing the Child within the provisions of section 300, subdivisions (b)(1) and (j). The juvenile court granted the parents' request to bifurcate the disposition and continued the disposition hearing for 30 days.
As to ICWA, the juvenile court stated at the hearing: "And parents are, again, ordered -- we did this last time, but let me make it really clear. We need to get that list of paternal and maternal relatives to the social worker so they can fulfill their statutory obligations under ICWA. [¶] If you don't do that, it is only going to further delay the case. So I get to use my favorite word. If you haven't done it already, and you may have -- mom looks a little taken aback by the Court's order. Maybe you have done that already. That's perfectly fine if you have. [¶] If you haven't done it already, it would behoove you -- my favorite word on the planet -- it would behoove you to get it done immediately. And that is an order of the Court." The court's minute order reiterates its comments at the hearing: "Parents are re-ordered to submit names of paternal and maternal relative[s] to SSA for SSA to interview regarding ICWA."
IV. THE AGENCY CONTINUES ITS ICWA INQUIRY
The Agency's second addendum report dated October 13, 2022 stated the maternal grandmother, on September 21, 2022, reiterated her claim of Canadian Blackfoot ancestry through the Child's maternal great-grandfather W.J.G. She also claimed Indian ancestry through the maternal great-grandmother W.S.G. She stated she did not recall the name of the tribe linked to the maternal great-grandmother but reported the tribe was located in "Upstate New York by Rochester, Truxton, Union Hill Palmier area."
The maternal grandmother also reported for the first time the Child's maternal grandfather had Pawnee ancestry, but stated she had "'zero'" information about the maternal grandfather or any of his extended relatives who might be able to provide additional information. (Mother had previously denied Indian ancestry on the maternal grandfather's side of the family and was unable to provide any contact information for the maternal grandfather.) The maternal grandmother, however, provided the names of the Child's maternal great-grandparents on the child's maternal grandfather's side of the family, whom Mother reported were both deceased. Mother confirmed all she knows about her Indian ancestry is what she learned from the maternal grandmother.
On September 23, 2022, in light of the new information provided by the maternal grandmother, an assigned social worker again reviewed the BIA List of Designated Tribal Agents in the Federal Register. The social worker identified the designated agents and contact information for additional tribes and sent an ICWA inquiry letter and family tree to the following tribes: Pawnee Nation of Oklahoma (which immediately responded the Child is not eligible for membership), Tonawanda Band of Seneca, Tuscarora Nation, Saint Regis Mohawk Tribe, Seneca Nation of Indians, Shinnecock Indian Nation, Oneida Indian Nation, Onondaga Nation, and Cayuga Nation. (The Agency determined no Ohani tribe, initially mentioned by the maternal grandmother, appears in the Federal Register.)
The Agency received many responses to its inquiries from tribes confirming the Child was neither a member nor eligible for membership. The record does not show any tribe requested additional information regarding the Child.
V. THE DISPOSITION HEARING
At the contested disposition hearing in January 2023, the juvenile court declared the Child a dependent child of the Orange County Juvenile Court under section 360, subdivision (d), vested custody of the Child with the Agency's director, and ordered family reunification services for Mother and Father. The Agency's counsel requested the juvenile court make a finding ICWA did not apply, noting "far more than 60 days have passed" since notice was sent to the tribes. Counsel further stated: "Of course, the Agency will continue to make diligent inquiry of further family members as they become known."
In the disposition order, the juvenile court found ICWA does not apply and acknowledged in its minute order the Agency "has an affirmative and continuing duty of inquiry." Mother appealed; Father did not appeal.
DISCUSSION
I.
OVERVIEW OF ICWA INQUIRY REQUIREMENTS
"'ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation. [Citations.] Congress enacted ICWA to further the federal policy "'that, where possible, an Indian child should remain in the Indian community ....'"'" (In re A.R. (2022) 77 Cal.App.5th 197, 203.) "ICWA and governing federal regulations [citation] set minimal procedural protections for state courts to follow before removing Indian children and placing them in foster care or adoptive homes." (In re Rylei S. (2022) 81 Cal.App.5th 309, 316.)
The California Legislature has imposed an affirmative and continuing duty of inquiry on both the Agency and the juvenile court. (§ 224.2, subds. (a), (c); In re Y.W. (2021) 70 Cal.App.5th 542, 552.) "The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (a).)
There is "reason to believe" a child is an Indian child when the court or social worker "has information suggesting" the "parent of the child or the child" is a member of a tribe or eligible to be a member. (§224.2, subd. (e)(1).) "Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated in paragraphs (1) to (6), inclusive, of subdivision (d)." (Ibid., italics added.)
Subdivision (d) of section 242.2 provides: "There is reason to know a child involved in a proceeding is an Indian child 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." (Italics added.)
Section 224.2, subdivision (e)(2) requires "further inquiry regarding the possible Indian status of the child . . . as soon as practicable" when reason to believe exists, but the court or agency "does not have sufficient information to determine if there is reason to know the child is an Indian child." (Italics added.) This further inquiry includes but is not limited to interviewing parents and extended family members; contacting the BIA, the State Department of Social Services (the Department), "and any other person that may reasonably be expected to have information" regarding the tribes to which the child might be a member or eligible for membership; and contacting the tribes themselves "and any other person that may reasonably be expected to have information" about whether the child is a member or eligible for membership. (§ 224.2, subd. (e)(2)(A)-(C).)
"[T]he juvenile court 'has a responsibility to ascertain that [the Agency] has conducted an adequate investigation'" (In re D.F. (2020) 55 Cal.App.5th 558, 568) and must determine whether ICWA applies to the child's proceedings (In re Y.W., supra, 70 Cal.App.5th at p. 552). The court may conclude ICWA does not apply to the proceedings if it finds the Agency has satisfied its duty of inquiry and due diligence as required in section 224.2 and there is no reason to know the child is an Indian child. (§ 224.2, subd. (i)(2).)
II.
THE AGENCY'S FURTHER INQUIRY EFFORTS UNDER SECTION 224.2 WERE NOT DEFICIENT FOR ITS FAILURE TO SHARE THE NAMES OF THE CHILD'S GREAT-GREAT-GRANDPARENTS WITH RELEVANT TRIBES OR OTHERWISE
Mother does not argue the Agency (or the juvenile court) failed to properly conduct an initial inquiry regarding the applicability of ICWA. She does not identify any extended family member or other interested person whom she contends the Agency should have contacted but failed to contact in the course of its inquiry efforts. She does not dispute, based on the information it collected from its inquiry efforts, the Agency properly identified and contacted all relevant tribes in accordance with section 224.2, subdivision (e)(2)(B) and (C).
Mother's sole argument on appeal is limited. Mother argues the information the Agency shared with the tribes during its further inquiry efforts was deficient in violation of section 224.2, subdivision (e) because it failed to include the names of two of the Child's great-great-grandparents through whom the maternal grandmother claimed Indian ancestry. In the respondent's brief, County Counsel concedes the names of the two great-great-grandparents were not included in the information the Agency sent to the tribes.
The maternal grandmother reported to the social worker the great-greatgrandmother's name was "Ora Madeline" and she was linked to the Canadian Blackfoot tribe. ICWA only applies to tribes recognized by the United States federal government. (25 U.S.C. § 1903(8); In re Wanomi P. (1989) 216 Cal.App.3d 156, 166-168.) Canadian tribes are not covered by ICWA. (In re Wanomi P., at p. 170; see In re L.S. (2014) 230 Cal.App.4th 1183, 1198 [Blackfoot tribe of Canada "not entitled to notice of dependency proceeding"].) As the great-great-grandmother was linked solely to a Canadian tribe not federally recognized, the Agency's failure to forward her name in its inquiry contacts with tribes could not violate ICWA.
The maternal grandmother also reported her father W.J.G. (the maternal great-grandfather) was part of an unknown tribe from Upstate New York. She later reported her grandfather (the great-great-grandfather) named "John Smith" was affiliated with an unknown tribe located in Upstate New York. The Agency sent an inquiry letter and a family tree to tribes located in Upstate New York.
Mother contends section 224.2, subdivision (e) requires the Agency to include the great-great-grandfather's name in its inquiry communications to the tribes. As discussed ante, section 224.2, subdivision (e)(2)(C) requires the Agency to engage in further inquiry which includes "[c]ontact with a tribe" whereby it "shar[es] information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case" when there is a reason to believe a child is an Indian child. As explained in In re J.S. (2021) 62 Cal.App.5th 678, 687, "'[t]he 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.'"
If an inquiry conducted under section 224.2 produces a reason to know an Indian child is involved, notice must be provided to the relevant tribes under section 224.3, subdivision (a). (§224.2, subd. (f).) Such notice must include, as relevant to this appeal, "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C).)
Here, the Agency's inquiry efforts did not establish a "reason to know" the Child was an Indian child as defined in subdivision (d) of section 224.2; Mother does not contend otherwise. Thus, the requirement the Agency provide formal notice to tribes was never triggered. Instead, it was required to contact relevant tribes and "shar[e] information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case." (§ 224.2, subd. (e)(2)(C).)
The record shows, aside from the names of the two great-greatgrandparents at issue here, the Agency sent all information it had regarding the Child's possible Indian heritage to the relevant tribes. Nothing in the record suggests any of the tribes requested or needed additional information to make a membership or eligibility determination. Mother does not explain how the names of the two great-greatgrandparents would be relevant, much less necessary for such a membership or eligibility determination in light of ICWA's definition of an Indian child as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4); § 224.1, subds. (a), (b) [incorporating definition of Indian child as set forth in 25 U.S.C. § 1903.) Thus, the omission of the great-greatgrandparents' names did not render the Agency's further inquiry and due diligence efforts deficient.
Mother also argues the Agency's further inquiry efforts were deficient because it did not send "updated information" to the Cherokee or Chippewa tribes reflecting the information it received from the maternal grandmother about her family's Indian ancestry through the Canadian Blackfoot tribe or through an unknown tribe in Upstate New York. She further argues the social worker did not "explain what happened to the family's original claim to the Cherokee or Chippewa tribes."
The record shows after Mother suggested a family connection to the Cherokee and Chippewa tribes, the Agency sent inquiry letters to all relevant tribes. Nothing suggests the content of those inquiry letters was insufficient for the Cherokee and Chippewa tribes to make tribal membership and/or eligibility determinations about the Child.
Mother also informed the social worker her knowledge of possible Indian ancestry was entirely based on the maternal grandmother's knowledge on the subject. The maternal grandmother never suggested Indian heritage through the Cherokee or Chippewa tribes. The maternal grandmother later gave additional information about the maternal great-grandparents and the record shows the Agency sent inquiry letters to relevant tribes implicated by the maternal grandmother's supplemental information (e.g., tribes in Upstate New York); neither the Cherokee nor the Chippewa tribes are from Upstate New York. There is no basis for Mother's suggestion the information the maternal grandmother provided about her parents' affiliation with the Canadian Blackfoot tribe or with an unknown tribe in Upstate New York would have been relevant to the Cherokee and Chippewa tribes' determination of the Child's tribal membership or eligibility.
Mother does not identify a single tribe the Agency failed to contact or provide information sufficient to determine the Child's tribal membership or eligibility. Substantial evidence shows after the Agency exercised due diligence in conducting a proper and adequate further inquiry regarding the Child's Indian status, there was no reason to know the Child is an Indian child. Therefore, the juvenile court properly found at the disposition hearing ICWA does not apply to these proceedings.
DISPOSITION
The disposition order is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., GOETHALS, J.