Opinion
2d Juv. B326581
09-18-2023
In re S.L. et al., Persons Coming Under the Juvenile Court Law. v. DAVID L. et al., Defendants and Appellants. SANTA BARBARA COUNTY CHILD PROTECTIVE SERVICES, Plaintiff and Respondent,
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant, mother, M.G. Law Offices of Karen B. Stalter and Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant, father, David L. Rachel Van Mullem, County Counsel, Lisa A. Rothstein, Snr. Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Nos.: 21JV00236, 21JV00237, 21JV00238, 21JV0023 Gustavo Lavayen, Judge
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant, mother, M.G.
Law Offices of Karen B. Stalter and Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant, father, David L.
Rachel Van Mullem, County Counsel, Lisa A. Rothstein, Snr. Deputy County Counsel, for Plaintiff and Respondent.
YEGAN, Acting P. J.
David L. (father) appeals the juvenile court's orders terminating his parental rights to his four minor children and selecting adoption as the permanent plan. (Welf. &Inst. Code, § 366.26.) Mother separately appealed the juvenile court's orders. Father's opening brief joins in mother's arguments. Mother and father's sole contention on appeal is that the Santa Barbara County Child Welfare Services ("CWS") and the juvenile court did not comply with the initial duty to inquire whether the children are Indian children pursuant to the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C., § 1901 et seq.) and related California law. We affirm.
All further undesignated statutory references are to the Welfare and Institutions Code.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
Facts and Procedural History
Mother and father have four children: S.L. (born April 2014), J.L. (born December 2015), D.L. (born December 2019), and A.L. (born May 2021).
In May 2021, CWS received a referral after mother and A.L. tested positive for methamphetamines at A.L.'s birth. It was also reported that CWS had received a referral the year prior after mother tested positive for methamphetamine, opiates, and THC at the time of D.L.'s birth. During an interview with a CWS social worker, mother admitted that she smoked marijuana and hash during her pregnancy with A.L. and had not received any prenatal care. Mother denied any recent methamphetamine use. She also denied father used any illicit drugs and stated he only smoked marijuana. Father refused to drug test.
Mother agreed to a safety plan, whereby she would arrange for a substance abuse assessment, consent to random drug testing, and maternal grandmother would supervise the children in the home. Father also agreed to the plan. However, over the next few weeks, mother and father failed to test, did not follow through with their substance abuse assessments, and admitted to using drugs. They also reported they were not getting along and "fighting."
In June 2021, all four children were detained pursuant to a protective custody warrant and placed in shelter care. Maternal grandfather and his wife were subsequently approved for emergency placement.
CWS filed section 300 petitions for all four children, containing allegations related to mother and father's unaddressed substance abuse issues, including parents' selfreport of methamphetamine use for the past three years, ongoing domestic violence, and both parents' criminal history that reflected a pattern of substance abuse, which put the children at risk of harm. The petitions each included an ICWA-010(A) form stating that neither parent provided the CWS social worker with any reason to believe the children were or may be Indian children. Both parents submitted ICWA-020 forms stating that none of the enumerated indicators of Indian status applied.
In July 2021, mother and father denied any Indian ancestry on the record, and the juvenile court made a finding that ICWA did not apply.
CWS prepared a jurisdiction and disposition report, which included the agency's social study/family assessment (Cal. Rules of Court, rule 5.690). As part of that study, father stated that he has four siblings that he is in contact with who all live in Oxnard. CWS made calls to several relatives regarding placement of the children, including two of father's siblings (paternal aunts), as well as maternal aunt, and maternal cousin. The report indicates that "[a]ll calls were to no avail and voicemails were left for each family member." There is no indication that CWS had any contact information for two of father's siblings who are "unnamed" in the record.
At the jurisdiction and disposition hearing, the juvenile court found the allegations of the amended petition to be true, ordered the children removed from parents' custody and placed with maternal grandfather, ordered reunification services for both parents, and reiterated its finding that ICWA did not apply.
By the 12-month review hearing, the juvenile court terminated reunification services for mother and father and set the matter for a permanency planning hearing pursuant to section 366.26.
In December 2022, at the initial section 366.26 hearing, maternal grandmother was present in the courtroom. County counsel made inquiry of maternal grandmother on the record, who denied having any Indian ancestry.
In January 2023, CWS filed an ICWA addendum report, which included an ICWA matrix documenting the agency's inquiries as to each parent, maternal grandfather, and maternal grandmother, all of whom disclaimed any Indian ancestry. Maternal grandmother stated that she and maternal grandfather were both from Mexico, so there was no Indian ancestry on either side of their family. CWS attempted to contact maternal second cousin, Gracie M., who did not respond. Both paternal grandparents were noted to be deceased. CWS subsequently filed a second addendum report, documenting its contact with maternal uncle, who also denied any Indian ancestry in the family.
ICWA Inquiry
Mother and father contend the orders terminating their parental rights should be conditionally reversed or conditionally affirmed and the matter remanded to the juvenile court because CWS did not comply with its duty of initial inquiry.
We review the juvenile court's ICWA findings for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
ICWA defines an "'Indian child'" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4) &(8); § 224.1, subd. (a).) The juvenile court and the county welfare department have an affirmative and continuing duty to inquire whether a child subject to dependency proceedings is or may be an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a).)
"'The continuing duty to inquire whether a child is or may be an Indian child "can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice."'" (In re Antonio R. (2022) 76 Cal.App.5th 421, 429 (Antonio R.).)
The duty to inquire begins with the initial contact and obligates the juvenile court and the county welfare department to ask the child, parents, extended family members, and others who have an interest in the child, whether the child is, or may be, an Indian child. (§ 224.2, subds. (a)-(c).)
Citing In re Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743, CWS contends it had no duty to inquire of extended family members about any Indian ancestry because the children were detained under a protective custody warrant pursuant to section 340, not section 306, which is the prerequisite to the section 224.2, subdivision (b) extended family member inquiry requirement. (See Robert F., at pp. 497, 500, 504, citing In re Adrian L. (2022) 86 Cal.App.5th 342 (conc. opn. of Kelley, J.); In re Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023, S280572.) Alternatively, CWS contends if extended family inquiry applies, it satisfied the requirement in this case.
We need not address whether CWS's reliance on Robert F. is proper because we agree CWS satisfied the initial inquiry requirement and any absence of inquiry was harmless.
Here, both mother and father repeatedly denied having any Indian ancestry when asked by CWS. Each parent completed the ICWA-020 form and checked the box indicating that none of the enumerated indicators of Indian status applied. There was no objection when the juvenile court found that ICWA did not apply, or at any time thereafter when it reiterated its finding. CWS also interviewed every available extended family member, all of whom denied any Indian ancestry.
Nevertheless, mother and father contend CWS's inquiry was inadequate because there were "additional, known extended family members of whom CWS had an obligation to inquire," including: paternal aunts, Sandra A. and Mercedes A., two of father's "unnamed siblings," as well as maternal aunt, Jessica V., maternal cousin, Irene S., and maternal second cousin, Gracie M.
As we have indicated, "'[t]he duty to inquire begins with initial contact (§ 224.2, subd. (a)) and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child. (§ 224.2, subds. (a)-(c).'" (Antonio R., supra, 76 Cal.App.5th at p. 429.)
There is no evidence CWS ever had contact with these extended family members. To be sure, CWS attempted to contact several extended family members, including maternal second cousin, Gracie M., as indicated in the ICWA matrix. But she did not return CWS's call. CWS also attempted to contact two of father's siblings (paternal aunts), maternal aunt, and maternal cousin, to discuss placement of the children. The agency left voicemails for each family member, but none of those family members returned CWS's calls. Mother acknowledges that CWS made "relative placement calls," but contends "there is no indication CWS made any effort to inquire into the children's Indian ancestry with any of these relatives."
We reject mother's contention. The law requires a child services agency to make a "meaningful effort" to locate and interview extended family members. It is not required to "cast about" for information or pursue unproductive investigative leads. (See In re K.R. (2018) 20 Cal.App.5th 701, 709; In re Levi U. (2000) 78 Cal.App.4th 191, 199.)
Furthermore, nothing in the record gives us reason to doubt the accuracy of father's denial of Indian ancestry. Nor is there anything in the record to suggest that father's four siblings, or maternal aunt and maternal cousin, had any information that was either "readily obtainable" or would "shed meaningful light" on the children's Indian status such that the absence of inquiry was prejudicial. (See Benjamin M., supra, 70 Cal.App.5th at pp. 742, 744.)
No remand is warranted. We recognize that any investigation could always be more robust. However, we will not "set aside" the juvenile court's judgment unless it "has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Here, it has not.
Disposition
The judgment (orders terminating parental rights and selecting adoption as the permanent plan) is affirmed.
We concur: BALTODANO, J., CODY, J.