Opinion
C092625
02-19-2021
In re L.T. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. C.B. et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. JD239837 & JD240477)
C.B. (mother) and S.T. (father), parents of the minors, appeal from the juvenile court's order terminating parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) The parents' sole contention on appeal is that the Sacramento County Department of Child, Family and Adult Services (Department) and the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) because the Department did not disclose any of the information it sent to or received from the relevant tribes and otherwise undertook insufficient ICWA inquiry, and the court therefore could not make an informed determination as to the applicability of the ICWA. We will affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Because the issue on appeal is limited to ICWA compliance, we dispense with a detailed recitation of the underlying facts and procedure. Proceedings Related to Minor L.T.
The newborn minor, L.T., came to the attention of the Department in April 2019, after mother and the minor tested positive for amphetamines at the time of delivery. At that time, the social worker asked mother if she or father had any known Indian ancestry, to which mother responded no. Several days later, the social worker attempted to communicate with father by text, their usual means of communication, to inquire whether he or the minor had any known Indian heritage. Father responded that he did not, but mother did. The social worker asked father to identify with which tribes mother might be affiliated, and which maternal relatives would have more information. Father responded that he would have to do more research and get back to the social worker at a later date.
On May 10, 2019, the Department filed a dependency petition on behalf of the one-month-old minor L.T. pursuant to section 300, subdivision (b) alleging failure to protect due to the parents' history of substance abuse. The petition noted that father had yet to respond with additional ICWA-related information.
Neither parent was present at the initial hearing on May 14, 2019. The court ordered the minor removed from the parents' care and custody but did not make any ICWA findings due to the parents' absence.
The May 2019 jurisdiction/disposition report stated the parents had failed to maintain contact with the Department or drug test as agreed. The Department concluded the ICWA did not apply.
At their first appearance in juvenile court on June 10, 2019, the parents filed their parental notification of Indian status forms. Father's form indicated father may have Indian heritage "(possibly; not to [sic] sure just what I've been told)" with the "Cherokee, and Blackfoot (possibly, not sure from who)" tribes and he was "unsure" of the band of Indian heritage. Father's form also indicated the minor may be a member of, or eligible for membership in, the "Cherokee, and Blackfoot (possibly, more likely Cherokee only)" tribes, and "possibly Eastern Cherokee (from mother not sure of band from my family)." Mother's form indicated mother may have Indian ancestry through the Cherokee tribe. Father filed a second form indicating he may have Indian ancestry but "I haven't done the research." The court continued the hearing. Thereafter, on July 8, 2019, the court appointed counsel for both parents and continued the hearing again.
The July 2019 first addendum report provided information obtained through interviews of the parents. Neither identified relatives with possible knowledge on the subject of Indian ancestry nor provided additional information about possible Indian heritage.
The August 2019 second addendum report stated the social worker met with the parents, both of whom denied having any knowledge of a relative who was registered or eligible for registration with an Indian tribe, and denied having knowledge of a relative who could provide information related to eligible relatives or the ICWA. The report stated further that the Department contacted three Cherokee tribes, two of which (the United Keetoowah Band of Cherokee Indians and the Cherokee Nation) responded that the minor was not eligible for registration with their respective tribe. The Eastern Band of Cherokee tribe requested that the Department provide information via certified mail. The Department did so on July 30, 2019, and had not received a response as of the filing of the report.
At the continued jurisdiction hearing on August 27, 2019, the court sustained the allegations in the petition, adjudged the minor a dependent of the juvenile court, and ordered that the minor remain in out-of-home placement while the parents participated in services. The court also found the Department complied with the ICWA notice requirements and the minor had not been identified as an Indian child pursuant to the ICWA requirements; however, "adequate due diligence regarding noticing have [sic] not yet been completed." The court set the matter for an ICWA compliance hearing on October 15, 2019.
The Department's ICWA compliance report, filed October 15, 2019, reiterated the United Keetoowah Band of Cherokee Indians and the Cherokee Nation had previously determined the minor was not eligible for registration in the respective tribes, and stated the Eastern Band of Cherokee Indians had yet to respond to the information sent by the Department on July 30, 2019.
At the ICWA compliance hearing on October 15, 2019, the court found as follows: "The Department has complied with ICWA notice requirements and the child has not been identified as an Indian child pursuant to ICWA requirements. The return receipts have either been received, the Department has completed their due diligent efforts to make contact with the identified Tribes and/or the Department has had direct contact with the Tribes. There is no other reason to believe the child is an Indian child under the ICWA and therefore, the ICWA is not applicable to the proceedings and no further notice by [the Department] is required absent new evidence or information."
According to the February 2020 permanency review report, both parents failed to engage in reunification services and failed to consistently visit the minor. The Department recommended the court terminate reunification services and set the matter for a section 366.26 hearing with adoption as the appropriate permanent plan. The report indicated the ICWA did not apply.
On February 11, 2020, the court terminated the parents' reunification services and set the matter for a section 366.26 hearing. The Department confirmed that the parents had not responded to the social worker's attempts to contact them. Counsel for L.T. stated, "I was hoping that we would have had more information about any potential relatives or - not for placement necessarily, but also just for contact with the biological family. Maybe they were siblings or cousins that the children would want to know. As children grow up they often want to know a little bit about their biological family. I was hoping the de facto is present today to be able to get that information to assess with familial contact in the future when [L.T.] grows up, should the Court follow recommendations today. But, hopefully, the Department will be able to do that in the future. But the caregivers here indicated that when the parents found out that they were committed to permanency, the parents did not provide any of the relative contact information to the Department." Proceedings Related to Minor I.T.
In March 2020, the Department filed a dependency petition on behalf of the minor's newborn sibling, I.T., pursuant to section 300, subdivision (b), alleging mother's substance abuse problem from which she failed and/or refused to rehabilitate impaired her judgment and ability to provide care, protection, and supervision for the newborn minor who tested positive for methamphetamine at birth. It was further alleged, pursuant to section 300, subdivision (j), that I.T.'s sibling, L.T., had been adjudged a dependent of the juvenile court due in part to the parents' substance abuse issues, and the parents failed to participate in court-ordered reunification services resulting in termination of those services. The petition indicated the social worker's inquiry of the parents as to potential Indian ancestry gave the social worker reason to believe I.T. is or may be an Indian child.
The detention report stated that, on March 2, 2020, both parents denied having Indian ancestry. The report noted mother's previous statement, in June 2019, that she was affiliated with the Cherokee tribe, as well as the juvenile court's October 15, 2019, finding that mother had no Cherokee affiliation based on the Cherokee tribes' responses or lack thereof to the Department's ICWA inquiry.
On March 5, 2020, mother filed a parental notification of Indian status stating she may have Indian ancestry through the Cherokee tribe(s). The form provided no additional information and no information different from that previously provided by mother in June 2019. Father also filed a parental notification of Indian status stating he had no known Indian ancestry.
Both parents were present at the initial hearing on March 5, 2020. The court ordered I.T. removed from the parents' care and custody and ordered the Department to provide reunification services and visitation to the parents. With regard to the ICWA, the court found: "There is no reason to know [I.T.] is an Indian child. However, based on the information provided by mother there is reason to believe the child may be an Indian child. [The Department] shall therefore make further inquiry regarding the possible Indian status of the child. Notice shall be provided as required by law if there is a reason to know the child is an Indian child. [¶] The mother shall cooperate with [the Department] in providing necessary information for required noticing." The court further ordered the parents to "disclose to the social worker the names, residences and any known identifying information of any maternal or paternal relative of the child."
In its jurisdiction/disposition report, the Department recommended the court sustain the petition as to I.T. and bypass the parents for reunification services pursuant to section 361.5, subdivision (b)(10) and (13). The report stated the ICWA did not apply.
The section 366.26 report as to L.T. was filed on May 28, 2020. The Department recommended the court terminate parental rights and free L.T. for adoption. The report stated the ICWA did not apply as to L.T. After being continued multiple times, the contested section 366.26 hearing was set for August 21, 2020, to be held jointly with the contested jurisdiction/disposition hearing as to I.T. In the meantime, the Department filed a first addendum report as to I.T. According to the report, the social worker's repeated attempts to contact and meet with the parents between April and July 2020 were unsuccessful, though the parents were speaking by telephone with I.T.'s caregiver and participating in video visits with I.T.
On August 11, 2020, each parent filed a petition pursuant to section 388 seeking to return L.T. to their care and reinstate reunification services.
The Department filed an addendum report as to L.T. stating the parents' visits with L.T. were cancelled on seven occasions during February and March 2020 due to the parents' failure to confirm their visit by the required time. Due to the coronavirus disease 2019 (COVID-19) pandemic, in-person visits were changed to virtual visits in March 2020. L.T. was doing well in the home he had been living in for over one year, and the Department continued to recommend termination of parental rights.
The joint jurisdiction/disposition hearing for I.T., section 366.26 hearing for L.T., and the hearing on the parents' section 388 petitions commenced on August 21, 2020, and was completed on August 26, 2020. After hearing testimony from the parents and two social workers, the court denied the parents' section 388 petitions. With regard to the jurisdiction/disposition hearing as to I.T., the court sustained the allegations in the petition, adjudged I.T. a dependent of the juvenile court, ordered out-of-home placement, and bypassed the parents for reunification services pursuant to section 361.5, subdivision (b)(10) and (13). The court found I.T. was not an Indian child. With regard to the section 366.26 hearing as to L.T., the court found the beneficial parental relationship exception did not apply and terminated parental rights, freeing L.T. for adoption.
DISCUSSION
The parents contend the court's ICWA findings must be reversed because the Department failed to comply with the ICWA's inquiry and notice requirements. They argue the Department failed to provide evidence of what it sent to the Eastern Band of Cherokee Indians in response to the tribe's request for additional information.
The Department argues the parents' claim of Indian ancestry was insufficient to constitute a "reason to believe" the minor was an Indian child within the meaning of the ICWA and, in any event, all efforts of further inquiry and notice were sufficient under the ICWA.
As we shall explain, there is sufficient evidence the Department met its duty of inquiry and notice under the ICWA.
I
Applicable Law
"Indian Child"
"The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. [Citation.]" (In re K.M. (2009) 172 Cal.App.4th 115, 118-119; § 224.2, subd. (c).) An " 'Indian child' " for purposes of the ICWA is defined in the same manner as under federal law, i.e., "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, subd. (a); In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).)
"Reason to Know"
Section 224.2, subdivision (d) provides that a juvenile court has 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." (§ 224.2, subd. (d)(1)-(6).)
When the juvenile court knows or has reason to know that a child involved in a dependency proceeding is an Indian child, the ICWA requires that notice of the proceedings be given to any federally recognized Indian tribe of which the child might be a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 989.) "At that point, the social worker is required, as soon as practicable, to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility." (In re Michael V. (2016) 3 Cal.App.5th 225, 233; see Cal. Rules of Court, rule 5.481(a)(4)(A).)
"If there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an Indian child, the court shall confirm, by way of a report, declaration, or testimony included in the record that the agency or other party used due diligence to identify and work with all of the tribes of which there is reason to know the child may be a member, or eligible for membership, to verify whether the child is in fact a member or whether a biological parent is a member and the child is eligible for membership." (§ 224.2, subd. (g), italics added.)
"Reason to Believe"
If the "court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court, social worker, or probation officer shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (§ 224.2, subd. (e), italics added.) "There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe. 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" as set forth in section 224.2, subdivision (d). (§ 224.2, subd. (e)(1), italics added.)
When there is "reason to believe" the child is an Indian child, further inquiry is necessary to help determine whether there is "reason to know" the child is an Indian child, including: "(A) Interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.3[;] [¶] (B) Contacting the Bureau of Indian Affairs 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, and contacting the tribes and any other person that may reasonably be expected to have information regarding the child's membership status or eligibility[;] [¶] (C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility. Contact with a tribe shall, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of notices under the [ICWA]. Contact with a tribe shall include sharing 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).)
"The juvenile court may alternatively make a finding that ICWA does not apply because the Agency's further inquiry and due diligence was 'proper and adequate' but no 'reason to know' whether the child is an Indian child was discovered. (§ 224.2, subds. (i)(2), (g).) Even if the court makes this finding, the Agency and the court have a continuing duty under ICWA, and the court 'shall reverse its determination if it subsequently receives information providing reason to believe that the child is an Indian child and order the social worker or probation officer to conduct further inquiry.' (§ 224.2, subd. (i)(2).)" (D.S., supra, 46 Cal.App.5th at p. 1050.)
II
Analysis
We review the juvenile court's ICWA findings for substantial evidence. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; accord, D.S., supra, 46 Cal.App.5th at p. 1051.)
Here, there is substantial evidence in the record that the Department complied with its duties of inquiry and notice as required by the ICWA. At the inception of the dependency proceedings in early April 2019, the Department asked both parents if they had any known Indian ancestry. Mother said she did not. Father said he did not but mother did. When pressed for more information, father said he would have to do more research and get back to the social worker. By May 10, 2019, father had yet to provide more information. One month later, the parents filed parental notification of Indian status forms. Father's form indicated he may have Indian heritage through the Cherokee and Blackfoot tribes based on what "I've been told" but he could not identify who provided that information or through which parent the possible tribal affiliation flowed. Mother's form indicated she may have Indian ancestry through the Cherokee tribe but provided no additional information.
Based on the initial information, the social worker met with the parents, both of whom denied having any knowledge of a relative who was registered or eligible for registration with an Indian tribe or of any relative who could provide any additional information in that regard. Armed with minimal information, the social worker then contacted the United Keetoowah Band of Cherokee Indians, the Cherokee Nation, and the Eastern Band of Cherokee Indians to make inquiry. The first two tribes responded that the minor L.T. (I.T. was not yet born) was not eligible for registration with their respective tribes, and the latter requested that the Department provide information via certified mail. The Department submitted information to the Eastern Band of Cherokee Indians via certified mail but did not receive any further response from the tribe.
The parents argue the Department failed to comply with its duty under section 224.3, subdivision (c), to file its ICWA notices, return receipts, and written requests/responses it received from the tribes and thus the juvenile court could not make an informed determination as to whether sufficient notice was provided. We reject the parents' arguments.
As a preliminary matter, the parents' reliance on the requirements set forth in section 224.3 is misplaced because that provision applies only when there is a reason to know. Here, the information provided by the parents regarding possible Indian ancestry created, at best, a reason to believe the minor may be an Indian child. As set forth, ante, a reason to believe triggers the agency's duty to make further inquiry as soon as practicable. (§ 224.2, subd. (e).) That is, the agency must interview the parents and extended family members to gather information, contact the Bureau of Indian Affairs (BIA) for assistance in identifying tribes to notice, and contact the tribes regarding the minor's possible membership or eligibility status and to share 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).) The Department made further inquiry by interviewing the parents, who denied any knowledge of a relative who was registered or eligible for registration in a tribe or any knowledge of a relative who could provide additional information at all.
Father argues the Department failed to interview "any of the relatives listed by the mother," and cites to a page in the record that reflects the L.T.'s birth certificate, but we have found nothing in the record to suggest the parents provided the name or names of any maternal or paternal relatives, let alone the name of a relative with some purported tribal affiliation. By the parents' own admission, there was no one else to interview who could shed light on the issue of Indian ancestry. As the parents properly acknowledge, the Department was not required to "cast about" for information or pursue unproductive investigative leads. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.) With regard to potential relatives, there was no need for further inquiry where, as here, the parents "failed to provide any information requiring followup." (In re S.B. (2005) 130 Cal.App.4th 1148, 1161; accord, In re C.Y. (2012) 208 Cal.App.4th 34, 42 & In re A.M. (2020) 47 Cal.App.5th 303, 323.)
The Department also conducted further inquiry by contacting three Cherokee tribes. As a result of that contact, two of the tribes responded that the minor was not eligible for registration with the tribe. "A determination by an Indian tribe that a child is or is not a member of, or eligible for membership in, that tribe . . . shall be conclusive." (§ 224.2, subd. (h).) One tribe requested that the Department "provide information via certified mail," which the Department did, as set forth in its report. Contrary to the parents' assertion, section 224.2 does not identify a particular manner by which the Department must inform the juvenile court of its inquiry efforts when there is only reason to believe the minor may be an Indian child. (In re M.W. (2020) 49 Cal.App.5th 1034, 1046.) Section 224.2, subdivision (e) "does not require that the Department report its inquiry efforts to the juvenile court in the form of a declaration or in any particular form at all." (M.W., at p. 1046.) The Department may demonstrate its efforts and due diligence via reports, declaration, or testimony. (Ibid.; see § 224.2, subd. (g).) Here, the Department provided sufficient evidence of its due diligence inquiry via its reports filed with the juvenile court. Based on the information provided in the reports, the court determined on October 15, 2019, that the Department complied with the ICWA notice requirements and there was "no other reason to believe the [minor] is an Indian child under the ICWA."
Mother notes, in passing and without further analysis, that at the initial hearing as to I.T. on March 5, 2020, the court found there was reason to believe the minor I.T. may be an Indian child "based on the information provided by the mother," instructed the Department to make further inquiry, and instructed mother to cooperate with the Department in providing necessary information for required noticing. The court's finding was in response to the parental notification of Indian status forms filed by the parents for the March 5, 2020, hearing. The forms indicated father had no known Indian ancestry and mother may have Cherokee Indian ancestry. The forms contained no new information regarding either parent's possible Indian ancestry. In its detention report, the Department confirmed that the same information was provided by the parents in the "previous open dependency case [as to L.T.]" and the juvenile court "determined the mother has no affiliation to the Cherokee tribe based on the tribes' responses to the Department's inquiries."
Father argues he initially stated, in his first parental notification of Indian status, that he may have Indian ancestry through the "Blackfoot" tribe. As this court has previously held, "there is frequently confusion between the Blackfeet tribe, which is federally recognized, and the related Blackfoot tribe, which is found in Canada and thus not entitled to notice of dependency proceedings." (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.) We further held that, "[w]hen Blackfoot heritage is claimed, part of the Agency's duty of inquiry is to clarify whether the parent is actually claiming Blackfoot or Blackfeet heritage so that it can discharge its additional duty to notice the relevant tribes." (Ibid.) Here, father could not identify the relative or other individual who "told" him of that possibility and there was no way to clarify whether he meant "Blackfoot" or "Blackfeet." In any event, father later confirmed he had no known Indian ancestry.
Based on the very limited information provided by the parents to the Department, there was no reason to know the minors were Indian children within the meaning of the ICWA. The Department made proper inquiry based on what was, at best, a reason to believe the minors were Indian children. As set forth in Departmental reports, the Cherokee tribes either responded the minors were not registered or eligible for membership or did not respond after receiving information from the Department. We conclude that there was sufficient evidence that the juvenile court and the Department met their duty of inquiry under the ICWA.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
HULL, J.