Opinion
D083166
04-10-2024
In re D.P., a Person Coming Under the Juvenile Court Law. v. T.P., Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Claudia G. Silva, County Counsel, Lisa Maldonado, Chief Deputy County Counsel, Evangelina Woo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J520829A, Michael P. Pulos, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa Maldonado, Chief Deputy County Counsel, Evangelina Woo, Deputy County Counsel, for Plaintiff and Respondent.
BUCHANAN, ACTING P. J.
This is the second appeal of a juvenile court order in this matter involving minor child, D.P. In a prior appeal, we affirmed an order placing D.P. with her de facto parents A.G. and K.P. (In re D.P. (2023) 92 Cal.App.5th 1282.) D.P.'s father, T.P. (Father), was not a party to the prior appeal.
Father now appeals the juvenile court's order terminating his parental rights to D.P. under Welfare and Institutions Code section 366.26. The sole issue on appeal is whether the San Diego County Health and Human Services Agency (Agency) conducted an adequate initial inquiry under section 224.2, subdivision (b) into D.P.'s possible status as an "Indian child," as defined by the Indian Child Welfare Act. (ICWA; 25 U.S.C. § 1901 et seq.) Father argues that the Agency's ICWA inquiry and notice efforts were deficient.
Undesignated statutory references are to the Welfare and Institutions Code.
The court also terminated D.P.'s mother's (Mother) parental rights. Because she did not appeal this order, however, we discuss her only as needed.
We disagree with Father and conclude the juvenile court did not abuse its discretion under In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1004-1008 (Ezequiel G.). Because the Agency's inquiry yielded reliable information giving no reason to believe D.P. may have been an Indian child, the juvenile court did not abuse its discretion in finding that the Agency's ICWA inquiry was sufficient. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because Father's only contention on appeal concerns ICWA, we limit our factual background accordingly. A more detailed factual and procedural history can be found in our prior opinion. (In re D.P., supra, 92 Cal.App.5th at pp. 1285-1291.)
In August 2021, the Agency petitioned the juvenile court under section 300, subdivision (b)(1) on behalf of D.P., alleging that she was at substantial risk of serious physical harm because of her parents' drug abuse. When D.P. was born, her meconium tested positive for methamphetamine and marijuana. Mother used methamphetamine and marijuana during pregnancy and Father used and sold methamphetamine. D.P.'s parents were transient, not interested in a substance abuse program, and did not have sufficient supplies for D.P.
Attached to the Agency's petition was an ICWA-010(A) form that showed the ICWA inquiry conducted with Father and Mother gave no reason to believe that D.P. was or may have been an Indian child.
According to the Agency's detention report, the social worker interviewed Mother and Father in August 2021. Mother denied having any Indian ancestry and stated that she identified as white. She reported that D.P.'s maternal grandmother and maternal great-grandparents were deceased. Father told the social worker he was "connected to the Cherokee tribe." He denied being a member of a tribe, living on a reservation, or receiving tribal benefits. He reported that D.P.'s paternal grandmother lived in Kansas, but he could not provide contact information for her.
Neither parent appeared at the August 2021 detention hearing. The juvenile court found there was reason to believe D.P. may be an Indian child, ordered further inquiry, and deferred the ICWA finding.
Later in August 2021, another social worker interviewed Father, and he denied Indian heritage. He was asked again in September 2021, and he denied belonging to a tribe or being a registered member of a tribe. The Agency received records from the parents' cases for their two older children in Michigan, which included findings made in December 2019 that ICWA did not apply to D.P.'s siblings.
In November 2021, the parents appeared telephonically for a special hearing. Mother denied Indian ancestry on the record. Father's counsel stated that Father previously claimed Indian ancestry, could possibly have it, but had no new or additional information. The juvenile court deferred the ICWA finding.
The following week, the parents again appeared telephonically. Mother denied Indian ancestry again. Father believed he had Indian ancestry, but stated he had no proof at the time. The juvenile court deferred the ICWA finding again.
Neither parent could be reached for the contested jurisdiction and disposition hearing in January 2022. The juvenile court found ICWA did not apply without prejudice.
In the report filed for the six-month review hearing in July 2022, the social worker informed the juvenile court the parents had not had any contact with the Agency. Neither parent had visited with D.P. The paternal uncle denied Indian ancestry, but stated the paternal grandmother "may know something different." The paternal grandmother said she was "part of the Eastern Band of Cherokee [Indians]." She stated "they do not document so there is no record of her family as part of the tribe." At the six-month contested review hearing, the juvenile court again found ICWA did not apply without prejudice.
In November 2022, the paternal uncle filed a section 388 petition requesting placement. A December 2022 addendum report indicated the Agency was in the process of completing further ICWA inquiry. An addendum report filed two weeks later stated the Agency sent an informal letter to the Cherokee Nation in December 2022 and was awaiting a response. In March 2023, the social worker received a letter from the Cherokee Nation indicating D.P. was not an Indian child within the meaning of ICWA.
In June 2023, D.P.'s adult half-sibling filed a section 388 petition requesting placement. Her paperwork indicated there was no "American Indian/Alaskan Native Heritage."
The juvenile court held a contested hearing regarding D.P.'s placement in August 2023. The paternal uncle testified that D.P. should be placed with him for various reasons, including having access to everything he knew about the family, including "our Native American heritage." The court inquired further, and he explained "it was such a very, very small claim. We're talking like eight generations ago. We do not belong to any tribes. There is none of that." When the court asked if he could name any tribes the family was connected to, he stated, "I believe from-I don't have any evidence to show this, I just have oral histories that would say that the Cherokee tribe was one that many- and I did tell the social workers this." County counsel interjected and reminded the juvenile court the Cherokee Nation responded that D.P. was not eligible. The juvenile court inquired about the other two federally recognized Cherokee tribes, and county counsel acknowledged the paternal grandmother claimed ancestry through the Eastern Band of Cherokee Indians and stated the Agency would follow up.
The other two federally recognized Cherokee tribes are the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians in Oklahoma. (See Indian Child Welfare Act; Designated Tribal Agents for Service of Notice, 89 Fed.Reg. No. 40, 14679 (February 28, 2024).)
An Agency employee spoke to the paternal uncle again in September 2023. When asked if he was aware of anyone in his family having Native American ancestry, he said, "YES." When asked which members of his family he stated, "[a]ll of them." He stated the paternal grandmother believed they were affiliated with the Cherokee Nation. D.P.'s father was the paternal uncle's half-brother, and their common relative was the paternal grandmother. The paternal uncle believed his Indian ancestry came from his maternal side and referred the Agency to his wife and the paternal grandmother for more information.
The paternal uncle's wife told the Agency that the paternal half-uncle "may have Native card from maternal side of the family." She believed the paternal grandmother and the paternal uncle may have additional information about Indian ancestry.
The paternal grandmother reiterated she had heritage through the Eastern Band in Kentucky. She was not documented, and the tribe did not have knowledge of her. She told the Agency," '[t]hey don't do tribal affiliation over here like they do in California'" and stated she and her family had no true affiliation with the tribe. She explained that she provided this same information to the Agency a year ago and there was no new information. She reported that her son, the paternal half-uncle, was the only member of the family who could be documented. She explained that the paternal half-uncle was D.P.'s half-brother, and they did not share a father. The paternal half-uncle's ancestry was on his father's side. Lastly, when asked about the United Keetoowah Band of Cherokee Indians in Oklahoma, she stated the family had no affiliation with that tribe.
The Agency interviewed the paternal great-grandmother, and she denied Indian ancestry. When told the paternal grandmother claimed ancestry, the paternal great-grandmother reported she had no further information regarding the paternal grandmother's previous statements and no one in the family had Indian ancestry.
The half-sister to D.P. denied Indian ancestry. She stated D.P.'s other half-sister was unable to provide a statement regarding Indian ancestry because of her special needs. She provided the name and phone number of her father for further information, and he confirmed D.P.'s other half-sister had special needs and could not give a statement regarding Indian ancestry. D.P.'s half-sister's father further stated the only person in his family with knowledge about possible Indian ancestry was not related to D.P.
The adoptive parent to D.P.'s full biological siblings stated the siblings did not have Indian ancestry.
In September 2023, the social worker called the Eastern Band of Cherokee Indians and left voicemail messages and sent a certified letter. The Agency sent further letters to the Eastern Band of Cherokee Indians and to the Cherokee Nation in October 2023. Both tribes responded that D.P. was not a member of their tribe nor eligible for membership.
At the contested section 366.26 hearing in November 2023, the juvenile court stated, "I am in receipt of the letters that were submitted by the Agency to the tribes, as well as the responses from the tribes indicating that [D.P.] is not an Indian child as defined by the Indian Child Welfare Act." The court found without prejudice that ICWA did not apply, terminated parental rights, and ordered adoption as the permanent plan.
Father appeals that order but challenges only the juvenile court's finding that ICWA does not apply.
Notably, Father did not appeal from the juvenile court's earlier orders in January 2022 and July 2022, in which the court found that ICWA did not apply. Ordinarily, "California follows a 'one shot' rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited." (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8.) However, because the duty of inquiry under ICWA is a continuing one, the one-shot rule does not apply here. (See § 224.2, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 6 (Isaiah W.) ["Because ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, we hold that the parent may challenge a finding of ICWA's inapplicability in an appeal from the subsequent [termination of parental rights] order, even if she did not raise such challenge in an appeal from the initial [detention] order"].)
DISCUSSION
Congress enacted ICWA to address concerns regarding the separation of Indian children from their tribes through adoption or foster care placement with non-Indian families. (Isaiah W., supra, 1 Cal.5th at p. 7.) Under California law adopted pursuant to ICWA, the juvenile court and Agency have an "affirmative and continuing duty to inquire" whether a child "is or may be an Indian child." (§ 224.2, subd. (a); see Isaiah W., at p. 9.)
"[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings." (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) First, the Agency's duty of initial inquiry "includ[es], but [is] 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).) "Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the Agency 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) Third, if 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., supra, 46 Cal.App.5th at p. 1052.)
Here, Father challenges the sufficiency of the Agency's initial inquiry. His primary argument on appeal is that the Agency failed to inquire of the paternal relatives before the January 2022 disposition hearing. He asserts: "The Agency did not inquire of any extended family members until about a year after [F]ather said he was connected to the Cherokee tribe." In other words, Father claims that the Agency's delay (as opposed to failure) in inquiring with extended family members is reversible error. However, Father cites no authority to support his argument that mere delay in conducting an otherwise adequate ICWA inquiry constitutes reversible error, and we have found none. The ICWA finding Father is appealing is the one accompanying the order terminating his parental rights, not some prior order, so the question we must focus on is whether there was compliance with ICWA at that point in time.
On this record, we conclude that the Agency's ICWA inquiry was adequate and the juvenile court did not abuse its discretion under Ezequiel G., supra, 81 Cal.App.5th at pp. 1004-1008. In Ezequiel G., the Court of Appeal adopted an abuse of discretion standard for reviewing the adequacy of the Agency's ICWA inquiry. In so doing, the court explained that, "[d]eciding whether an inquiry was 'adequate' and an agency acted with appropriate diligence requires more of a court than simply applying a statutory checklist to undisputed facts. Instead, it requires the court to 'engage in a delicate balancing' [citation], to assess whether an ICWA inquiry was appropriate and sufficient in light of the facts of a particular case. In short, the statute directs the juvenile court to perform a quintessentially discretionary function, and thus . . . our review should be for abuse of discretion." (Id. at pp. 1004-1005.)
Notably, section 224.2, subdivision (b) does not "specify how many extended family members the [A]gency must interview." (Ezequiel G., supra, 81 Cal.App.5th at p. 1007.) And "given the statute's expansive language and the vagaries of the extended family information parents are willing or able to provide, determining compliance with ICWA requires a significant exercise of discretion." (Id. at p. 1006.) Accordingly, "the focus of the court's analysis should not be on the number of individuals interviewed, but on whether the [A]gency's ICWA inquiry has yielded reliable information about a child's possible tribe affiliation." (Id. at p. 1009, italics added.)
The Agency's ICWA inquiry here did so. The Agency conducted ICWA inquiry with both parents, the paternal great-grandmother, paternal grandmother, paternal uncle and adult half-sibling, which showed there was no reason to believe D.P. may have been an Indian child. Father contends that the Agency erred by failing to inquire of paternal uncle Eric G. But Eric G. is Father's half-brother, they do not share a father, and Eric G.'s Indian ancestry is on his father's side. The Agency "is not required to 'cast about' for information or pursue unproductive investigative leads." (In re D.S., supra, 46 Cal.App.5th at p. 1053.) Finally, the Agency provided the information obtained from paternal grandmother to the Eastern Band of Cherokee Indians and to the Cherokee Nation and learned that D.P. was not, in fact, an enrolled member or eligible for membership. (See Ezequiel G., supra, 81 Cal.App.5th at p. 1009 ["[A]n Indian child is one with a tribal affiliation, not merely Indian ancestry"] (italics added).)
Contrary to Father's assertion, the record does not indicate that there was other "readily obtainable information that was likely to bear meaningfully upon whether [D.P.] is an Indian child." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.) We thus reject Father's argument that the Agency should have conducted further ICWA inquiry. There was simply no reason for the Agency to seek additional information from Eric G. about D.P.'s possible Native American ancestry given the information received directly from her parents, paternal grandmother, and other extended family members.
Although not specifically challenged by Father, we further conclude there is no evidence before us indicating a "reason to know" D.P. is an Indian child under ICWA. Father does not contend there is evidence that D.P. met any of the six statutory criteria required to qualify as an Indian child under section 224.2, subdivision (d). (See Ezequiel G., supra, 81 Cal.App.5th at p. 1004 [where none of these six factors exists, "the court must make a finding that there is no reason to know the child is an Indian child"].)
In his opening brief, Father also argued that there was "inadequate ICWA notice" because the letters that the Agency sent to tribes contained "no other identifying information other than the name of paternal grandmother and paternal uncle ...." In making this argument, Father cited to redacted copies of the letter in the appellate record. As Father concedes in his reply brief, however, the Agency subsequently "filed a motion . . . to correct the [appellate] record by including the [unredacted] version of the letter" that was sent to the tribes and contained the appropriate identifying information. Therefore, Father's argument regarding inadequate notice is without merit.
Moreover, "ICWA notice is required only if after initial and further inquiries there is 'reason to know' that an Indian child is involved in the proceeding." (In re Q.M. (2022) 79 Cal.App.5th 1068, 1084, citing § 224.2, subd. (f).) Because there was no "reason to know" that D.P. is an Indian child, "ICWA notice was not required. Any insufficiencies in the notices sent, therefore, were legally irrelevant." (Ibid.)
In short, because the Agency's inquiry yielded reliable information that D.P. did not have Indian ancestry, we conclude the juvenile court did not abuse its discretion by finding that the Agency conducted a sufficient ICWA inquiry. Therefore, we affirm.
DISPOSITION
The November 16, 2023 order is affirmed.
WE CONCUR: KELETY, J. RUBIN, J.