Opinion
G059528
02-25-2021
In re L.M., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. MICHAEL R., Defendant and Appellant.
Marissa Coffey, 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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18DP1088) OPINION Appeal from an order of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed. Marissa Coffey, 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.
* * *
INTRODUCTION
Michael R. (Father) is the father of L.M., who was taken into protective custody in October 2018 at age 23 months. Father appeals from the order terminating parental rights to L.M. pursuant to Welfare and Institutions Code section 366.26 (undesignated code sections are to the Welfare and Institutions Code). Father does not contest the merits of the juvenile court's decision. Instead, he contends a limited reversal is required because the juvenile court and Orange County Social Services Agency (SSA) did not satisfy the inquiry and notice requirements of the Indian Child Welfare Act of 1978, 25 U.S.C. section 1901 et seq. (ICWA) and Welfare and Institutions Code section 224 et seq. We conclude SSA met its inquiry and notice obligations under ICWA and therefore affirm.
FACTS
An abridged statement of facts is presented because the appeal is limited to a single issue regarding compliance with ICWA.
L.M. was born to N.M. (Mother) and Father in November 2016. L.M. was taken into protective custody on October 13, 2018 due to allegations of physical abuse. L.M. was living with Mother and M.A., the maternal grandmother (maternal grandmother) when he was detained. L.M. had at least three dime size bruises on his face, a small circular scab on his right forearm, and a scab on his back that appeared to be getting infected. Piles of dirty clothing, plates of old food, trash, and other items were strewn about the house, which smelled of marijuana. One room of the house smelled of methamphetamine. Three dogs, including a Saint Bernard weighing over 150 pounds, were in the home. The single bathroom smelled moldy and was infested with mosquitos, flies, and other bugs.
According to the detention report, Father denied having American Indian ancestry and the social worker had not been able to question Mother about Indian ancestry. The juvenile dependency petition, filed on October 16, 2018, alleged serious physical harm (§ 300, subd. (a)), failure to protect (§ 300, subd. (b)(1)), and severe physical abuse (§ 300, subd. (e)). On the juvenile dependency petition, the box was checked to indicate L.M. "may have Indian ancestry." The day after the dependency petition was filed, Mother and Father each filed a Parental Notification of Indian Status form (form ICWA-020). On her form ICWA-020, Mother had marked the box indicating she "may have Indian ancestry" and handwrote "Cherokee or Apache" tribe. No other information about Indian ancestry was given. The form ICWA-020 signed by Father reported he had no Indian ancestry.
During the detention hearing on October 17, 2018, Mother confirmed that she had signed the form ICWA-020 indicating that she might have Indian ancestry. The juvenile court ordered Mother to provide the social worker with contact information for the maternal grandparents "so that we can investigate that I.C.W.A. issue." The court also ordered Mother to notify her attorney and the social worker if Mother ever changed her address.
The jurisdiction/disposition report, dated November 19, 2018, reported that the assigned social worker had been notified of Mother's possible Indian heritage and a referral had been submitted. However, the social worker had been unable to contact Mother to obtain more information regarding Indian ancestry "[d]ue to the mother's lack of involvement with this case."
On November 21, 2018, SSA mailed a Notice of Child Custody Proceeding for Indian Child, form ICWA-030 (ICWA Notice) to the Bureau of Indian Affairs (BIA), the Secretary of the Interior (SOI), and the following American Indian nations, tribes, and bands: (1) Apache Tribe of Oklahoma, (2) Fort Sill Apache Tribe of Oklahoma, (3) Jicarilla Apache Nation, (4) Mescalero Apache Tribe, (5) San Carlos Apache Tribe, (6) Tonto Apache Tribe of Arizona, (7) White Mountain Apache Tribe (8) Yavapai-Apache Nation, (9) Cherokee Nation of Oklahoma, (10) Eastern Band of Cherokee Indians, and (11) United Keetoowah Band of Cherokee Indians. The ICWA Notice provided names, date of births, and last known addresses for L.M., Mother, Father, and maternal grandmother, and identified Cherokee and Apache as the possible tribes or bands.
SSA filed the ICWA Notice on December 4, 2018. The ICWA Notice included the following explanation of attempts to obtain information about possible Indian ancestry:
"On October 18, 2018 Social Worker Negrete requested all known contact information from the [Assistant Social Worker] Nancy Gonzalez for [Mother], or maternal relatives. As of October 30, 2018 . . . Gonzalez was unable to provide further contact information for [Mother], or maternal relatives.
"On October 18, 2018 [ICWA] Social Worker Octaviano Negrete mailed written correspondence to [Mother], and maternal grandmother, M[.A.], at their last known address, in efforts to gather further family information. Social Worker Negrete has not received a response as of this writing.
"On October 18, 25, and 31, 2018 [ICWA] Social Worker Octaviano Negrete attempted to contact [Mother], via telephone, regarding the family's Native American heritage. Social Worker Negrete was unable to make contact or leave a voicemail message."
In January 2019, the juvenile court sustained the dependency petition, found that Father was L.M.'s presumed father, declared L.M. to be a dependent child, and removed him from parental custody. Mother and Father were provided reunification services.
In the status review report dated July 8, 2019, SSA recommended that the juvenile court find that ICWA did not apply. Response letters had been received from the Apache Tribe of Oklahoma, the Mescalero Apache Tribe, the San Carlos Apache Tribe, the Tonto Apache Tribe of Arizona, the White Mountain Apache Tribe, the Cherokee Nation of Oklahoma, and the Eastern Band of Cherokee Indians. These letters were attached to the status review report. Each letter stated that L.M. was not an enrolled member of the nation or tribe and was not eligible to be an enrolled member. Responses had not been received from the Fort Sill Apache Tribe of Oklahoma, the Jicarilla Apache Nation, the Yavapai-Apache Nation, and United Keetoowah Band of Cherokee Indians. More than 60 days had passed since the dates, reflected on the green card receipts, on which ICWA Notice had been received by each nation, tribe, and band. Signed green receipts had been received from both Mother and Father.
On July 8, 2019, the juvenile court found that notice of hearing had been given to the Bureau of Indian Affairs and "all appropriate tribes" as required by ICWA. The court found that ICWA did not apply.
Mother and Father did not make progress in their case plans. Mother did not participate in reunification services, had only one in-person contact with the assigned social worker, and appeared only at the detention hearing. L.M. had been placed with a paternal aunt and her husband in Georgia. L.M. was healthy and happy in the care of paternal aunt, and had bonded with her, her husband, and their children. Paternal aunt and her husband were committed to adopting L.M.
The juvenile court, at SSA's recommendation, terminated Mother's reunification services in July 2019 following a contested six-month review hearing. Although the court found that Father had made no progress toward alleviating or mitigating the causes necessitating placement, the court continued Father's reunification services. Father's reunification services were terminated following a 12-month review hearing in December 2019. Following a hearing pursuant to section 366.26 on August 24, 2020, the court terminated parental rights, found that L.M. was likely to be adopted, and ordered adoption as the permanent plan of placement.
DISCUSSION
Father argues that SSA failed to make a good faith and affirmative effort to fulfill its duty to inquire of Mother or her relatives about her claim of Native American ancestry. As a consequence, Father argues, the ICWA Notice did not give the Indian nations, tribes, and bands notice that was sufficient to provide them a meaningful opportunity to determine whether L.M. was an Indian child or eligible for membership in the nation, tribe, or band. We conclude that SSA satisfied its duties of inquiry and notice.
Although Father has never claimed to have Indian ancestry, he has standing to raise the issue of ICWA compliance. (In re O.C. (2016) 5 Cal.App.5th 1173, 1180, fn. 5; In re B.R. (2009) 176 Cal.App.4th 773, 779.)
I.
Standard of Review
When the facts are undisputed, the appellate court independently reviews whether the requirements of ICWA have been satisfied. (In re A.M. (2020) 47 Cal.App.5th 303, 314 (A.M.).) The appellate court reviews the juvenile court's ICWA findings under the substantial evidence test and determines whether the juvenile court's order is supported by "reasonable, credible evidence of solid value." (Ibid.) The juvenile court's orders and findings must be upheld if any substantial evidence, contradicted or uncontradicted, supports them, and all conflicts in the evidence must be resolved in favor of affirmance. (Ibid.)
II.
ICWA Duties of Inquiry and Notice
A. ICWA Generally
"ICWA reflects 'a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court . . . must follow before removing an Indian child from his or her family.' [Citations.] Both ICWA and the Welfare and Institutions Code define 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.'" (In re D.F. (2020) 55 Cal.App.5th 558, 565, fn. omitted (D.F.).)
The duties imposed by ICWA on the juvenile court and a county welfare agency can be separated into three phases: (1) a duty to inquire, (2) a duty of further inquiry, and (3) a duty to provide ICWA notice. (D.F., supra, 55 Cal.App.5th at pp. 556-567.) If, after fulfilling the duty of inquiry and the duty of further inquiry, the court or the county welfare agency "knows or has reason to know . . . that an Indian child is involved" in the dependency proceedings, then notice pursuant to ICWA must be given. (§ 224.3, subd. (a).) B. ICWA Duties
1. Duty of Inquiry
The juvenile court and the county welfare department (here, SSA) have an "affirmative and continuing duty to inquire" whether a child who is the subject of a dependency petition is or "may be" an Indian child. (§ 224.2, subd. (a).) The duty to inquire begins with the "initial contact" and, at that stage, includes "asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (Ibid.) When the child is placed in temporary custody, the county welfare department has a duty to inquire whether the child may be an Indian child. (Id., subd. (b).)
"Inquiry includes, but is not limited to, 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).) The juvenile court has a duty at the first appearance of each parent to ask whether he or she "knows or has reason to know that the child is an Indian child." (Id., subd. (c).) The court must instruct the parties to inform the court if any of them later receives "information that provides reason to know the child is an Indian child." (Ibid.) The court must also require each parent to complete a form ICWA-020. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
2. Duty of Further Inquiry
In addition to initial duty of inquiry, a duty of further inquiry arises if the court or social worker "has reason to believe that an Indian child is involved in a proceeding." (§ 224.2, subd. (e).) This duty of further inquiry includes (1) interviewing parents and extended family members to gather certain information, (2) contacting the BIA and State Department of Social Services for assistance in identifying the tribes in which the child might be a member or be eligible for membership, and (3) "[c]ontacting the tribe or tribes and any other person [who] may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility." (Id., subd. (e)(1)-(3); see Cal. Rules of Court, rule 5.481(a)(4) [same requirements].) Contact with a tribe at a minimum must include "telephone, facsimile, or electronic mail contact to each tribe's designated agent" and "information identified by the tribe as necessary for the tribe to make a membership or eligibility determination." (§ 224.2, subd. (e)(3).)
This information includes (1) all known names of the Indian child, biological parents, grandparents, and great-grandparents, including maiden, married, and former names or aliases; (2) their current and former addresses; (3) their birth dates and places of birth and death; (4) tribal enrollment information of other direct lineal ancestors of the child; and (5) any other identifying information. (§ 224.3, subd. (a)(5).)
3. Duty to Provide ICWA Notice
Once the court or social worker "knows or has reason to know . . . that an Indian child is involved" in the dependency proceedings, California law requires notice pursuant to ICWA be given to the parent, legal guardian, Indian custodian, and the child's tribe. (§ 224.3, subd. (a); see Cal. Rules of Court, rule 5.481(c)(1) [notice is required "[i]f it is known or there is reason to know [that] an Indian child is involved in a proceeding listed in rule 5.480"].) "Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement, as described in paragraph (1) of subdivision (d) of Section 224.1, unless it is determined that [ICWA] does not apply to the case in accordance with Section 224.2." (§ 224.3, subd. (b).) ICWA requires the same notice under the same circumstances. (25 U.S.C. § 1912(a).)
Section 224.2, subdivision (d) identifies six criteria to determine whether the court or the social worker knows or has reason to know that an Indian child is involved. Subdivision (d) of section 224.2 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[es] an identification card indicating membership or citizenship in an Indian tribe." (See also Cal. Rules of Court, rule 5.481(b)(1).) Federal regulations use the same six criteria to determine whether there was a reason to know the child is an Indian child. (25 C.F.R. § 23.107(c) (2020).)
The required ICWA notice must include sufficient information for the Indian nation, tribe, or band to conduct a meaningful review of its records and determine whether the child is an Indian child and, if so, whether to intervene in the dependency proceeding. (D.F., supra, 55 Cal.App.5th at p. 568.) "The required information includes the names, birth dates, birthplaces, and tribal enrollment information of the parents and other direct lineal ancestors of the child, such as grandparents." (Ibid., citing § 224.3, subd. (a)(5)(C).)
III.
The Juvenile Court and SSA Satisfied Their ICWA
Inquiry and Notice Obligations
A. Initial Inquiry
On her form ICWA-020, Mother marked the box to indicate that she "may have" Indian ancestry and handwrote Cherokee or Apache tribe. At the detention hearing, Mother confirmed she had signed the form. The juvenile court ordered Mother to provide the social worker with maternal grandparents' contact information so that SSA could investigate Indian ancestry. By doing so, the court concluded, in effect, that the information provided in Mother's form ICWA-020 had triggered the duty of further inquiry. Father argues SSA failed to satisfy this duty of further inquiry and, as a consequence, the ICWA Notices was insufficient.
Citing In re Austin J. (2020) 47 Cal.App.5th 870 (Austin J.), SSA argues that Mother's statement on the form ICWA-020 that she may have Indian ancestry did not trigger a duty of further inquiry. In Austin J., the Court of Appeal concluded that statements by the mother, both orally and on her form ICWA-020, that she may have Cherokee ancestry, and similar statements by the maternal aunt, did not trigger the duty of further inquiry. (Id. at p. 888-889.) The court held: "[T]he fact disclosed through the social worker's initial inquiry regarding the possibility that the children are Indian children—that Mother may have Cherokee ancestry—is insufficient by itself to provide a reason to believe that either the children or their parents are members of, or eligible for membership in, an Indian tribe. Therefore, the statute imposed no duty to make further inquiry." (Id. at p. 889.)
In In re T.G. (2020) 58 Cal.App.5th 275 (T.G.) the Court of Appeal disagreed with Austin J.'s conclusion that a mere possibility of Indian ancestry was not enough to trigger the duty of further inquiry. (T.G., supra, at p. 294.) The T.G. court concluded the phrase "reason to believe" must be interpreted broadly such that a parent's affirmative statement of Indian ancestry alone constitutes a reason to believe an Indian child may be involved and triggers the duty of further inquiry. (Id. at pp. 294-297.)
We need not weigh in on the conflict between Austin J. and T.G. because the juvenile court directed SSA to conduct an ICWA inquiry and, we conclude, SSA satisfied its duty of further inquiry. B. Further Inquiry and Notice
SSA conducted a sufficient ICWA inquiry. Mother's form ICWA-020 provided no facts to support Mother's claim of possible Indian ancestry. Father reported having no known Indian ancestry. SSA was not able to interview Mother and extended family members (§ 224.2, subd. (e)(1)) because further inquiry had been stymied by Mother's failure to communicate with the social worker, appear in court, or make her whereabouts known. Mother never complied with the juvenile court's order to provide the social worker with contact information for the maternal grandparents. On October 18, 2018, soon after the detention hearing, social worker Negrete mailed letters to Mother and maternal grandmother at their last known address in order to gather family information. He never received a response. On October 18, 25, and 31, 2018, Negrete tried to contact Mother by telephone to discuss her Native American heritage, but the calls were not answered and Negrete was unable to leave a voicemail message.
On November 20, 2018, the assigned social worker made a telephone call to Mother to schedule an investigative interview but was unable to leave a voicemail. On January 3, 2019, the assigned social worker called Mother on the telephone number she had given L.M.'s caretaker. An "unknown female" answered and told the social worker she had the wrong number. The social worker tried to call Mother on another number on file but received no answer.
On November 7, 2018, the assigned social worker received a telephone call from maternal grandmother and an in-person meeting was scheduled for November 15, 2018. The appellate record does not indicate whether this meeting was held. On January 3, 2019, the assigned social worker left a voicemail message for maternal grandmother regarding visitation. Maternal grandmother did not return the call.
Father acknowledges that throughout the dependency proceedings Mother did not make herself "readily available" to the social worker. In fact, there is only one reported instance in which Mother had personal contact with the assigned social worker. On November 7, 2018, Mother contacted the assigned social worker and scheduled an investigative interview for November 9 at 3:00 p.m. Mother arrived three hours early, at noon, on November 9. The social worker, who was out of the office conducting an interview, drove back to the office and spoke with Mother in the reception area. The social worker, having other obligations, could not meet with Mother at that time and gave her the choice of waiting or rescheduling. Mother, who had been acting aggressively, left the building abruptly without rescheduling or providing any information. SSA cannot be faulted for not interviewing Mother about Indian ancestry during that brief encounter.
Mother's only court appearance was at the detention hearing on October 17, 2018. On December 4, 2018, Mother signed a promise to appear in court on January 10, 2019, but she did not appear on that date or ever afterwards. Mother did not apprise the court—or her own counsel—of her whereabouts. During a hearing on August 20, 2020, Mother's counsel stated he had not had contact with Mother "either by mail, telephonically, or through e-mail" since December 4, 2018. Mother had not responded to her counsel's correspondence or voice mail messages. The juvenile court could not have inquired further of Mother about Indian ancestry if she made no court appearance after the detention hearing.
SSA could not have made contact with Mother's father (maternal grandfather) because Mother never complied with the juvenile court's order to provide SSA with his contact information. When Mother was interviewed at her home on October 13, 2018, she reported that maternal grandfather, his girlfriend, and maternal grandmother lived in the same home. But maternal grandmother stated that she thought maternal grandfather and his girlfriend had moved out. The detention report states "[i]t is still unclear who lives in the home."
Because SSA had visited Mother's home several times between August and October 2018, Father faults SSA for not sending a social worker to the home to speak to Mother or her relatives about Indian ancestry. SSA's visits before October 13, 2018 were welfare checks, and the last visit to the home, on October 13, was to detain L.M. Welfare checks and detention are urgent matters that can only be conducted by visiting the child's home. Once L.M. was removed from the home, it would be unreasonable to expect a busy social worker to visit the home as part of an ICWA inquiry, which can be conducted by mail, telephone, or other mode of communication. It was sufficient that the social worker had tried many times to contact Mother by telephone and to contact Mother and maternal grandmother by mail.
Father contends that SSA should have asked him about L.M.'s possible Indian ancestry because he "could have provided a wealth of information about Mother's relatives." He has never explained what information he has, other than having been contacted by a maternal aunt named "Dawn." The fact that Father might communicate with Mother's relatives through social media does not mean he could or would have provided social media account information for them, and an SSA report from May 26, 2020 reported that Father had blocked Mother on Facebook. Father does not explain how, in the event of reversal with a limited remand, he would provide any additional information showing that L.M. is an Indian child. (See In re Miracle M. (2008) 160 Cal.App.4th 834, 847.)
Father argues the ICWA Notice should have provided more information about him and his family members. Father received the ICWA Notice but until this appeal never voiced any complaint about its contents. It is not reasonable to expect SSA, as part of an ICWA inquiry, to expend time and effort researching and providing information about relatives of a parent who claims no Indian ancestry.
The information available to SSA after its further inquiry did not meet any of the statutory reason-to-know criteria of section 224.2, subdivision (d), and, therefore, the duty to give formal ICWA notice under section 224.3 never arose. Nonetheless, SSA sent ICWA Notice to the BIA, the SOI, eight Apache nations and tribes, one Cherokee nation, and two Cherokee bands. The ICWA Notice provided the information known to SSA—the names, date of births, and last known addresses for L.M., Mother, Father, and maternal grandmother. Signed green receipts were received from both Mother and Father; neither ever commented on the ICWA Notice. By the time of the status review report dated July 8, 2019, seven letters had been received in response to the ICWA Notice; each letter stated that L.M. was not an enrolled member of the nation or tribe and was not eligible to be an enrolled member. Responses had not been received from two Nations, one tribe, and one band, but more than 60 days had passed since the dates on which ICWA Notice had been received by each nation, tribe, and band.
The ICWA Notice can be viewed either as SSA's contact with the BIA, SOI, and Apache and Cherokee nations, tribes, and bands in satisfaction of the duty of further inquiry (§ 224.2, subd. (e)(2) & (3)) or as formal ICWA notice (§ 224.3, subds. (a), (b)). In either case, the SSA satisfied its duties under ICWA. C. Case Law
1. A.M.
Our conclusion that SSA satisfied its duty of further inquiry is supported by A.M., supra, 47 Cal.App.5th at page 303. In A.M., the mother initially said she was of Indian ancestry but denied that she or her two detained children were registered with a tribe. (Id. at p. 309.) At the detention hearing both the mother and the father of one child, J.T., "indicated having no American Indian ancestry." But on the form ICWA-020, the mother checked the box indicating that she was or may be a member of, or eligible for membership in, an Indian tribe and identified the tribe as "unknown." (Ibid.) The mother also checked the box indicating that at least one parent, grandparent, or lineal ancestor was a member of a tribe and wrote "MGF" and "MGA" next to the box. (Ibid.) The father of the other child, A.M., filed a form ICWA-020 on which he stated he had no known Indian ancestry. (Ibid.)
When ordering the children removed, the juvenile court found ICWA may apply. (A.M., supra, 47 Cal.App.5th at p. 309.) The child welfare agency filed ICWA-030 notices for each child. In the notices, the agency included information regarding the mother, both fathers, the maternal grandfather, and the maternal grandmother, but not for any other ancestor. (Ibid.) For name of tribe for the mother, the notices stated "'Bureau of Indian Affairs, No Tribe Specified.'" (Ibid.) Likewise, no tribe was specified for the maternal grandparents. (Ibid.) The BIA responded by stating it had insufficient information to determine tribal affiliation. (Id. at p. 310.)
The mother later told a social worker that she had tribal affiliation with the Blackfoot and Cherokee tribes, and, although not registered with those tribes, she planned to do so "'on the day of contact.'" (A.M., supra, 47 Cal.App.5th at p. 310.) The agency tried to help the mother in obtaining tribal contact information so that she could register with them, but was unable to find any information. (Ibid.)
At the jurisdiction/disposition hearing, the juvenile court found that the agency had conducted a sufficient ICWA inquiry and that ICWA might apply. (A.M., supra, 47 Cal.App.5th at p. 311.) The mother again reported that she might have Blackfoot tribe ancestry but was not registered. (Ibid.) The social worker pointed out that it had been over six months since the mother first reported affiliation with the Blackfoot tribe but she had made no attempt to follow up on that information. (Id. at pp. 311-312.) The social worker recommended that the court find that ICWA did not apply, and ICWA notice was not sent. (Id. at pp. 312.) The juvenile court found that ICWA did not apply and, later, terminated parental rights. (Id. at p 313.)
The Court of Appeal rejected the mother's argument that the child welfare agency had failed to comply with ICWA's inquiry and notice requirements. (A.M., supra, 47 Cal.App.5th at pp. 307, 314.) The notice requirement had not been triggered because the information presented to the child welfare agency and the juvenile court did not satisfy any of the statutory reason-to-know criteria of section 224.2, subdivision (d). However, the information provided by the mother was sufficient to trigger the duty of further inquiry, which at a minimum should have included interviews with the mother's extended family members. (A.M., supra, at p. 322.)
The Court of Appeal concluded that the child welfare agency's inquiry was appropriate and complied with section 224.2 because the mother had not provided any investigative leads. (A.M., supra, 47 Cal.App.5th at p. 323.) Both maternal grandparents were deceased, the mother had been in legal guardianship from age 18 months to 11 years, she did not provide the agency with any information about any maternal relative for Indian ancestry, and no maternal relative appeared at any hearing. (Ibid.) In order to satisfy the duty of further inquiry, ICWA does not require the court or the child welfare agency "'to cast about' for investigative leads" and "[t]here is no need for further inquiry if no one has offered information that would give the court or [the agency] reason to believe that a child might be an Indian child." (Ibid.) The child welfare agency had requested more ICWA information from the mother, but she was unable to provide new or additional information. (Ibid.)
In this case, Mother, though claiming possible Indian ancestry on her form ICWA-020, failed to provide SSA with any new or additional information to support that claim. Mother failed to comply with the juvenile court's order to supply SSA with maternal grandmother's contact information and never communicated with SSA except for the one instance in which she arrived three hours early to an appointment and left abruptly without rescheduling. Mother only appeared at the detention hearing, and neither maternal grandmother nor any other maternal relative appeared at any hearing. SSA nevertheless sent form ICWA-030 notices to Apache and Cherokee nations, tribes and bands. SSA was not required to "'cast about'" for leads (A.M., supra, 47 Cal.App.5th at p. 323) and was diligent in pursuing the few investigative leads it had.
2. D.F.
Also supporting our decision is D.F., supra, 55 Cal.App.5th 562. In D.F., both the mother and the father filed a form ICWA-020 at or before the detention hearing. (Id. at p. 563.) Father indicated no Indian ancestry on his form. Mother marked the box indicating she may have Indian ancestry and handwrote "'unknown tribe name from New Mexico.'" (Ibid.) The juvenile court instructed the agency to begin an investigation. (Ibid.) The social worker contacted the maternal grandfather, who reported that his family had a yet unproven belief they were of Native American descent, and that his family was from New York. (Id. at pp. 563, 570.) The social worker next contacted the maternal grandmother, who said her mother did not have Native American heritage but her paternal grandmother (the child's maternal great-great grandmother) was part Native American. The maternal grandmother recalled that the children's maternal great-great grandmother was born in New Mexico. (Id. at p. 563.)
The social worker then contacted the mother, who said her great-grandmother (the children's maternal great-great grandmother) was adopted and asserted she was "'full native'" although "'nothing had been checked before she passed [away].'" (D.F., supra, 55 Cal.App.5th at p. 563.) The mother mentioned that her sister (the children's maternal aunt) had children who "'receiv[ed] benefits.'" The mother was unsure if the benefits were through the maternal aunt's husband, who was not biologically related to the children. (Ibid.) The mother stated that a male cousin also believed he had Cherokee heritage from his own father, but that he was unrelated to the mother's side of the family. (Ibid.)
Even though the mother and maternal grandparents had provided scant, vague information about Indian ancestry, the social worker sent ICWA notices by certified mail to 21 Indian tribes in New Mexico, nine Indian tribes in New York, and the BIA. (D.F., supra, 55 Cal.App.5th at pp. 563-564.) The child welfare agency later informed the court it had received ICWA response letters from 11 tribes: All responded that the children were not enrolled members and were not eligible for enrollment as members of their respective tribes. (Id. at p. 564.) Ten days later, the agency informed the court that it had received ICWA response letters from four more tribes; all responded that the children were neither members nor eligible for membership in their respective tribes. About seven weeks after that, the agency provided the court with the response letters it received from nine more tribes, all of which responded that the children were neither members nor eligible for membership. (Id. at p. 564.) Five days later, at the jurisdiction/disposition hearing, the juvenile court, at the agency's request, found that ICWA did not apply and declared the children to be dependent children. (Id. at p. 564.)
The Court of Appeal affirmed the juvenile court's jurisdictional findings, including the finding that ICWA did not apply. (D.F., supra, 55 Cal.App.5th at p. 562.) The court concluded that the mother's statements on the form ICWA-020 that the mother "may" have Indian ancestry triggered the agency's duty of further inquiry. (Id. at p. 569.) The child welfare agency's "repeated efforts to gather information concerning the children's maternal ancestry" satisfied the duty of further inquiry. (Id. at p. 570.) Interviews with the mother and maternal relatives and the responses received from 24 tribes provided no new information that would have "pushed [the agency's] reason to believe the children are Indian children, to reason to know the children are Indian children." (Ibid.) The child welfare agency was not required to give formal ICWA notice because "[a]t most, after further inquiry, the court was left with the same nonspecific information it was provided at the initial appearance—only a suggestion that the children may have Indian ancestry." (Id. at p. 571.)
Here, SSA tried to contact Mother and maternal grandmother, but they did not respond to letters and telephone calls. SSA, as did its counterpart in D.F., sent ICWA Notice to the BIA, the SOI, and pertinent Indian nations, tribes, and bands, despite having received the scantest of information from Mother on her form ICWA-020. The responses from the Indian nations, tribes, and bands did not give reason to know L.M. was an Indian child. At most, the juvenile court was left with "only a suggestion that [L.M.] may have Indian ancestry." (D.F., supra, 55 Cal.App.5th at p. 571.
3. T.G.
Father argues T.G., supra, 58 Cal.App.5th at page 275 is on point. We disagree. In T.G., the juvenile court ordered the child welfare agency to conduct further ICWA inquiry due to statements made by the mother on her form ICWA-020, and statements made by the mother and the maternal grandmother at the detention hearing, that the mother may have Cherokee Indian ancestry. (Id. at pp. 283-284.) The court also ordered the child welfare agency to send notice to the BIA, the SOI, the Cherokee Nation, and any other tribe identified by the mother. (Id. at p. 285.) The child welfare agency did not try to interview extended family members or make any effort to develop additional information and never sent the ordered notice. (Id. at pp. 285, 286.)
In T.G., the Court of Appeal held that the child welfare agency had failed to conduct a sufficient ICWA inquiry and reversed an order creating a guardianship. (T.G., supra, 58 Cal.App.5th at pp. 280-281.) The mother's form ICWA-020 and the mother's and the maternal grandmother's statements at the detention hearing provided reason to believe that Indian children might be involved in the detention proceedings and were sufficient to trigger the duty of further inquiry. (Id. at p. 292.) The juvenile court had fulfilled its initial duty at the detention hearing by asking the mother about possible Indian ancestry but had failed to ensure that the agency complied with its duty of further inquiry. (Id. at p. 293.) The Court of Appeal stated that, on remand, the juvenile court must direct the agency "to make a meaningful and thorough inquiry" regarding the children's possible Indian ancestry, and this inquiry must include interviews with extended family members and others who might have relevant information. (Id. at p. 297.)
There are two significant differences between T.G. and the case at hand. First, in T.G. the child welfare agency did not even try to contact family members about possible Indian ancestry, while here SSA tried to contact Mother and maternal grandmother to obtain more family history but they never responded to SSA's telephone calls and letters, Mother had only one personal contact with the social worker, and Mother never made a court appearance after the detention hearing. Second, in this case, SSA did send ICWA Notice to the BIA, the SOI, and 11 Apache and Cherokee nations, tribes and bands.
DISPOSITION
The order terminating parental rights is affirmed.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.