Opinion
E080189
08-17-2023
In re M.A., a Person Coming Under the Juvenile Court Law. v. J.M. et al., Defendants and Appellants. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant, J.M. Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant, M.W. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ2100410, Dorothy McLaughlin, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant, J.M.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant, M.W.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
J.M. (Father) and M.W. (Mother) appeal the juvenile court's order terminating their parental rights to their minor child, M.A., under Welfare and Institutions Code section 336.26. They argue Riverside County Department of Public Social Services (the Department) failed to discharge its duties under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) and related California law (collectively, ICWA), and thus the juvenile court erroneously found that ICWA did not apply. We affirm.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
Because the parents challenge only the juvenile court's finding that ICWA did not apply, we recite only the background relevant to that issue.
M.A. was born in July 2021. At the time, both parents were incarcerated. The Department therefore filed a section 300 petition alleging that M.A. came within the juvenile court's jurisdiction under section 300, subdivisions (b)(1) and (g). On the same day, M.A. was placed into protective custody based on exigent circumstances.
The juvenile court held a detention hearing about a week later. Counsel for the parents stated that Father might have Indian ancestry. Father's counsel suggested that the Department look into Father's prior child dependency case, which might have information about his Indian ancestry. The juvenile court ordered the Department to look into the matter for ICWA purposes, but ordered M.A. detained. Around the same time, both parents were released from incarceration.
Mother had denied any Indian heritage and has never suggested she has any, including on appeal. The parents' challenge to the juvenile court's ICWA findings concerns only Father.
Not long after, Father denied any tribal affiliation. The Department also learned from the records of Father's prior dependency case that the Cherokee Nation had denied that M.A.'s half-sibling (Father's child) was not a member or eligible to become a member of the tribe.
The Department later sent ICWA inquiry letters to the Eastern Band of Cherokee Indians of North Carolina, the United Keetoowah Band, and the Cherokee Nation of Oklahoma. All three tribes responded that Father and M.A. are not registered members of the tribe and are not eligible to become members.
At a hearing in September 2021, the juvenile court found the Department had performed an adequate inquiry into M.A.'s potential Indian ancestry and that she is not an Indian child. The court therefore found that ICWA did not apply, found the section 300 petition's allegations true, adjudged her a dependent of the juvenile court, and ordered her removed from her parents' care while providing them reunification services.
In its six-month status review report, filed in March 2022, the Department reported that both parents had recently been arrested and were incarcerated. Father later told the Department that he wanted a family friend, A.D., to be her legal guardian until he was able to care for her.
At a March 2022 hearing, Father's attorney told the juvenile court that Father had reached out to his second cousin, Cynthia, about caring for M.A., and that counsel had given her contact information to the social worker. Shortly after the hearing, however, the Department reported that Cynthia had not filed an application to start the process of becoming M.A.'s caregiver and had not contacted the Department, although she had been in touch with A.D.
In July 2022, the juvenile court again found that the Department had performed an adequate inquiry into M.A.'s status and noted that there was no new information that suggested she may be an Indian child. The court therefore again found that ICWA did not apply. The court then terminated reunification services for both parents.
At the section 366.26 hearing in November 2022, Father told the juvenile court, "I'm Cherokee-30 percent Cherokee. It's Oklahoma Eastern Band of Cherokee," and that the heritage is from his mother's side. The juvenile court responded that this was not new information because the Department had already looked into his potential Cherokee heritage and found none. The juvenile court therefore again found that M.A. is not an Indian child, so ICWA did not apply. The court then terminated the parents' parental rights and freed M.A. for adoption. The parents timely appealed.
III. DISCUSSION
Father, with Mother joining, argues the Department did not perform an adequate inquiry into his potential Indian heritage under ICWA and, in turn, the juvenile court erroneously found ICWA did not apply. We find no prejudicial error.
We reiterate that the parents do not contend the Department failed to inquiry sufficient into Mother's Indian heritage. The parents do not argue she may have Indian heritage, and nothing in the record suggests otherwise.
We reject the Department's argument that the parents forfeited their ICWA challenge. (See In re Isaiah W. (2016) 1 Cal.5th 1, 10.)
We first reject Mother's suggestion that the Department had to contact the 27 federally recognized tribes that have "Oklahoma" in their name. Although Father erroneously said at the section 366.26 hearing that he was "Oklahoma Eastern Band of Cherokee," a tribe which does not exist, any such tribe would be a Cherokee tribe, not an "Oklahoma" tribe. Thus, the only tribe Father ever suggested he is affiliated with is the Cherokee.
"As listed in the Federal Register, the three federally 'recognized' Cherokee Tribes are the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians of North Carolina, and the United Keetoowah Band of Cherokee Indians of Oklahoma." (In re C.D. (2003) 110 Cal.App.4th 214, 226, fn. omitted.) The Department contacted all three tribes, and all three said Father and M.A. are not tribal members and are not eligible to become members. That determination is dispositive and binding on us. (See In re K.P. (2015) 242 Cal.App.4th 1063, 1074.)
We next reject the parents' argument that the Department erred because it did not contact the Bureau of Indian Affairs (BIA) or the State Department of Social Services, as required by section 224.2, subdivision (e)(2)(B). The parents misunderstand that provision. If the Department has reason to believe a child is an Indian child, the provision directs the Department to contact "the [BIA] and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in ...." The only tribes the Department had reason to believe M.A. may be associated with are the three federally recognized Cherokee tribes, and the Department successfully contacted them. The Department had no reason to contact the BIA or State Department of Social Services "for assistance in identifying the names and contact information of the tribes in which [M.A.] may be a member."
We also reject Father's argument that the Department's notices to the tribes were deficient under section 224.3 because they "omitted pertinent information such as familymember birthdates and birthplaces." That statute applies only if the Department "knows or has reason to know . . . that an Indian child is involved" in dependency proceedings after the initial and further ICWA inquiry imposed by section 224.2. (§ 224.3, subd. (a).) "[I]f 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 D.S. (2020) 46 Cal.App.5th 1041, 1052.) The Department had no reason to suspect, much less know that M.A. is an Indian child, so section 224.3's formal notice requirements were never triggered. (See ibid.)
The parents' main argument is that the Department failed to contact A.D., Cynthia, and the paternal grandmother to ask about M.A.'s potential Indian heritage. We find no prejudicial error.
The Department argued in its respondent's brief that it had no duty to "conduct an inquiry of extended relatives based on section 224.2, subdivision (b), throughout the entire length of the dependency" under the concurring opinion in In re Adrian L. (2022) 86 Cal.App.5th 342, 354-374 (conc. op. of Kelley, J.). At oral argument, the Department acknowledged this court had recently rejected that opinion's analysis. (In re Delila D. (2013) 93 Cal.App.5th 953.) In any event, there was no prejudicial error for the reasons explained below.
The Department and the juvenile court "have an affirmative and continuing duty to inquire whether a child for whom a [section 300] petition . . . has been filed, is or may be an Indian child." (§ 224.2, subd. (a).) This 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." An "extended family member" is "the Indian 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." (25 U.S.C. § 1903(2), emphasis added; § 224.1, subd. (c) [adopting federal definition].) We review for substantial evidence the juvenile court's finding that there was a sufficient ICWA inquiry, as well as its finding that ICWA did not apply. (In re A.M. (2020) 47 Cal.App.5th 303, 314.)
Cynthia is Father's second cousin, not M.A.'s. A.D. is a Father's family friend, not a relative. Cynthia and A.D. are therefore not "extended family members" under ICWA, so the Department had no duty to contact either of them to ask about M.A.'s Indian heritage.
That leaves the paternal grandmother. Because she is an "extended family member" under ICWA, the Department had to contact her to discuss M.A.'s potential Indian heritage. (See § 224.1, subd. (c).) We assume without deciding that the Department erred in failing to contact her. (See In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.)
The error, however, was harmless. We will not reverse because of an ICWA inquiry error unless "the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (In re Benjamin M., supra, 70 Cal.App.5th at p. 744, italics added.) The paternal grandmother's whereabouts were unknown throughout the dependency proceedings because she was homeless. Although the Department learned that she may be living somewhere unhoused in Corona, she had no known phone number. Nothing in the record that suggests the Department could have contacted her, and the parents do not explain how the Department could have possibly contacted or located her. In other words, any information the paternal grandmother may have had about M.A.'s Indian heritage was not "readily obtainable." (Ibid.) The Department's failure to contact her to ask about M.A.'s Indian heritage was therefore harmless. (See ibid.)
IV. DISPOSITION
The juvenile court's order terminating parental rights is affirmed.
We concur: RAMIREZ P. J., McKINSTER, J.