Opinion
H051124 H051341
07-03-2024
In re M.B., et al., Persons Coming Under the Juvenile Court Law. v. M.G., et al., Defendants and Appellants. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, In re M.B., et al., Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. M.G., Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. Nos. 19JD025621, 19JD025622)
Greenwood, P. J.
In this second appeal regarding compliance with the Indian Children Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), appellants, father L.B. (Father) and mother M.G. (Mother), contend that respondent, Santa Clara County Department of Family and Children's Services (Department), again failed to conduct a proper inquiry and notify the relevant tribes as required under Welfare and Institutions Code section 224.2 (appeal No. H051124). Mother also separately appeals the juvenile court's denial of her post-appeal section 388 petition to vacate the order terminating her parental rights and grant her sole legal and sole physical custody of the children (appeal No. H051341). Mother contends the trial court erred by summarily denying her petition without an evidentiary hearing. For the reasons set forth below, we affirm both orders.
Unless otherwise specified, all undesignated statutory references are to the Welfare and Institutions Code.
On our own motion, we ordered the two appeals to be considered together for disposition.
I. Factual and Procedural Background
We granted Father's request to take judicial notice of the appellate record in the prior appeal, In re M.B. (May 18, 2022, H049593) [nonpub.opn.]. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
A. Original Juvenile Court Proceedings
Siblings M.B. (born 2013) and G.B. (born 2015) were removed from Mother and Father in 2019 following a referral by the family court while their confidential paternity case was pending. The basis for the removal was ongoing domestic violence between the parents in the presence of the children. The juvenile court placed the children with their maternal grandmother. Leading up to the 18-month review hearing, the Department's recommendation was to return the children to Mother and terminate Father's reunification services. However, based on another domestic violence incident between the parents, abduction of the children by Mother, and maternal grandmother's delay in reporting these issues, the Department instead filed a section 387 petition to remove the children from maternal grandmother and place them in foster care.
After contested hearings on the section 387 petition and the 18-month review, the juvenile court found that maternal grandmother was no longer an appropriate placement and placed the children in foster care pending investigation of other relative placements, including paternal grandfather and paternal aunt. The court also terminated reunification services for Mother and Father.
Almost a year after the 18-month review hearing, the juvenile court held the section 366.26 hearing. Throughout the proceedings, the parents had denied any Indian ancestry. At the detention hearings in 2019, Father and Mother testified that they did not have any Indian ancestry. Mother also signed a parental notification of Indian status, affirming she had no Indian ancestry. (See Judicial Council Forms, form ICWA-020.) At the section 366.26 hearing in 2021, the court inquired whether there was any different information relating to the children's Indian ancestry. Mother replied, "None of us are Native American." The court found there was no reason to know the minor children to be Indian children and, therefore, ICWA did not apply. The court placed the children back with maternal grandmother based on significant changes she made to ensure a safe home for the children since they were last removed from her care. The court then terminated the parental rights of Mother and Father in order to proceed with maternal grandmother's adoption of the children.
B. The Prior Appeal
After the section 366.26 hearing, Father appealed the order terminating his parental rights. Father argued that the juvenile court and the Department failed to comply with ICWA requirements by not inquiring about the children's Indian heritage with extended family members, such as the maternal grandmother, paternal grandfather, and paternal aunt. The Department conceded error. Mother did not appeal the order or join in Father's appeal.
In May 2022, we issued the unpublished opinion In re M.B., with the following disposition: "The October 13, 2021 order terminating parental rights is reversed pursuant to the stipulation of the parties. The matter is remanded to the trial court for the limited purpose of ensuring compliance with ICWA. If the court determines that the inquiry and notice requirements of ICWA have been met, and finds that the children are not Indian children, the court shall reinstate the October 13, 2021 order terminating L.B.'s parental rights. The remittitur shall issue forthwith."
C. Juvenile Court Proceedings After Remand 1. ICWA Hearings
Following remand, the children's adoption proceedings were placed on hold pending the outcome of the ICWA remand hearing. The Department made inquiries concerning Indian ancestry to maternal grandmother, maternal uncle and aunt, paternal grandfather and paternal great aunt (Father's maternal aunt). They all denied Indian ancestry, except for paternal great aunt who stated that paternal grandmother's side of the family may have Indian ancestry but were not members of any tribe to her knowledge. Father stated he was told the same information but did not know for certain as paternal grandmother passed away a few years ago.
At a further hearing, Father stated he had taken a DNA test to investigate his ancestry and was awaiting the results. Father said he was working with "a woman from a tribe" to help him gather more information about his Indian ancestry, but he needed more time. The juvenile court granted the Department's request to continue the hearing so it could further investigate the issue.
The Department followed up with Father, who suggested that he had possible ties to the Cherokee, Apache, and Iroquois Indians, although he could not identify a specific tribe. The Department contacted the Bureau of Indian Affirms (BIA), the California Department of Social Services' Office of Tribal Affairs (CDSS), and 20 tribes, through telephone, email and certified letters.
The Department also asked Father for the contact information of the "woman from a tribe" (Kim Y.) mentioned at the previous hearing and another person Father claimed he was working with at the Cherokee Nation. When the Department contacted Kim Y., she was shocked and upset that Father used her as a reference and stated she wanted nothing to do with the case. The Department contacted the person Father mentioned at the Cherokee Nation but did not receive a response.
On the eve of the next scheduled hearing, Father stated he found a fourth cousin who had a possible association with the McIntosh Indians, a faction of the Creek Nation tribe. Given Father's new information, the court continued the hearing.
The Department contacted several Creek Nation tribes, BIA and CDSS to follow up on Father's new representations. The Department also received responses from the 20 or so tribes it had contacted the month before. The responding tribes all indicated that the children, Mother and Father were neither members of their tribe nor eligible for enrollment. The Department created a detailed spreadsheet to record the information it received. The spreadsheet included the contact information for each tribe, the date of contact and method the Department used to contact said tribe, the date of any response, and whether the children were members of that tribe or eligible for membership.
Father provided the Department with his DNA results indicating a 1.1 percent "Indigenous American" heritage. Father also provided the contact information for his fourth cousin and another relative with potential tribe affiliations. He identified a few more tribes that may be connected to his family lineage, one of which was the "Freedman tribe" of the Choctaw Nation, of which Father claimed his grandfather (his mother's father) may have been a member. Father also submitted applications for membership with the Muscogee (Creek) Nation, Choctaw Nation, and Chickasaw tribes.
The Department pursued Father's newly identified relatives. The fourth cousin stated she was not registered with any tribes and did not know if she was eligible. The other distant relative, Father's second cousin, stated she had Indian ancestry through a tribe that was not federally recognized. The Department also contacted the Muscogee (Creek) Nation, Choctaw Nation and Chickasaw tribes by phone and mail. A representative from the Choctaw Nation informed the Department that the children and Father were not members nor eligible for membership and that the tribe was not affiliated with the "Freedman tribe" as it was not a federally recognized tribe. The Department also received more responses from other tribes it had contacted, all stating that the children and parents were neither enrolled nor eligible for membership in the tribes. Due to Father's pending applications with the Muscogee (Creek) Nation and Chickasaw tribes, however, the Department requested and received further continuances of the hearing.
Thereafter, the Department received further responses and letters from tribes it had previously contacted, all reporting that neither the children, Mother, Father, nor paternal grandmother were enrolled members or eligible for enrollment. The Department updated its spreadsheet and submitted it to the juvenile court, along with letters and emails received from the tribes. As to Father's pending applications, the Muscogee (Creek) Nation tribe informed the Department and Father that his application had been mailed back to him because he did not provide sufficient information. Although the representative from the Chickasaw tribe could not, at that time, affirmatively state that Father's application had been denied, the representative informed the Department that it was not likely Father would meet the tribe's criteria for enrollment.
In May 2023, a year after our remand following Father's prior appeal, the juvenile court held the ICWA remand hearing. It admitted each of the Department's reports on its investigation, including the letters and emails from the various tribes, and the spreadsheet showing the results from each of the twenty or so tribes the Department contacted. Based on the information received, the juvenile court found that the Department conducted a proper, adequate, and diligent inquiry into the children's possible Indian heritage. It found that the Department's further inquiry did not result in a "reason to know" that the children were Indian children and ICWA, therefore, did not apply. The court reinstated the October 2021 order terminating parental rights.
Mother and Father each filed a timely notice of appeal of the May 2023 orders related to the court's ICWA findings.
2. Mother's Section 388 Petition
After the ICWA remand hearing, Mother filed a section 388 petition requesting the juvenile court to vacate the orders terminating her parental rights and placing the children for adoption, to restore sole legal and physical custody to her, and to order attorney's fees and costs in the amount of $10,000. Mother claimed there was a change of circumstances because she had full-time employment and stable housing. The Department opposed Mother's petition contending that, according to the parties' stipulation and this court's disposition from the prior appeal, the issue on remand was limited solely to the question of ICWA compliance and, thus, there was no legal basis to support Mother's requests at that stage in the proceedings. Father and the children, through counsel, each opposed Mother's petition on the same ground.
In July 2023, after arguments from counsel, the juvenile court denied Mother's section 388 petition. The court concluded that there was "no legal pathway" for Mother's section 388 petition because the matter remanded was limited to the issue of ICWA compliance. Mother timely appealed the July 2023 order denying her section 388 petition.
II. Discussion
A. ICWA Compliance (Appeal No. H051124)
Mother and Father contend the May 2023 orders related to the court's ICWA findings should be reversed because (1) the Department failed to conduct a proper investigation of Father's maternal relatives, (2) Father's enrollment applications with the Muscogee (Creek) Nation and Chickasaw tribe were still pending, and (3) the Department failed to formally notice the relevant tribes. The Department asserts that the findings and orders are supported by substantial evidence, and formal notice was not necessary.
1. The Duties to Inquire and to Provide Notice
Congress enacted ICWA to establish minimum standards for state courts to follow before removing Indian children from their families and placing them in adoptive homes. (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) In turn, California enacted and amended legislation to conform to federal regulation, which included establishing requirements in dependency proceedings involving Indian children. (Ibid.) An "Indian child" is defined under ICWA and California law 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); § 224.1, subd. (a).)
Under the relevant California provisions (§§ 224.2, subds. (a)-(e), 224.3), the juvenile court and county welfare departments have three distinct duties in dependency proceedings: (1) a duty to inquire whether the child may be an Indian child; (2) a duty of further inquiry if that initial inquiry creates a "reason to believe" the child is an Indian child; and (3) a duty to provide formal notice if that further inquiry results in a "reason to know" the child is an Indian child. (In re D.S., supra, 46 Cal.App.5th at p. 1052.)
There is a "reason to believe" the child may be an Indian child whenever "information suggest[s] that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (§ 224.2, subd. (e)(1).) If so, a duty of further inquiry arises. (Id., subd. (e).) The duty of further inquiry requires the Department to interview parents and extended family members, contact the BIA and CDSS to identify names and contact information of the tribes in which the child may be a member or eligible for membership, and contact the tribe(s) and any other person that "may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility." (Id., subd. (e)(2); see also In re Ezequiel G. (2022) 81 Cal.App.5th 984, 999 (Ezequiel G.).)
If further inquiry results in a "reason to know" the child is an Indian child, the third duty to provide formal notice to the pertinent tribes arises. (§§ 224.2, subds. (d) &(f), 224.3.) "There is 'reason to know' a child is an Indian child if any one of six statutory criteria is met-i.e., if the court is advised that the child 'is an Indian child,' the child's or parent's residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (Ezequiel G., supra, 81 Cal.App.5th at p. 999; see also § 224.2, subd. (d); Cal. Rules of Court, rule 5.481(b).)
However, "[i]f the juvenile court finds that 'proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child,' the court may make a finding that ICWA does not apply to the proceedings, 'subject to reversal based on sufficiency of the evidence.' [Citation]." (Ezequiel G., supra, 81 Cal.App.5th at p. 999; see also § 224.2, subd. (i)(2).)
2. Standard of Review
This court has previously held that we review a juvenile court's ICWA findings for substantial evidence, and if the facts are undisputed, we independently review whether ICWA's requirements have been satisfied. (In re I.F. (2022) 77 Cal.App.5th 152, 162-163.) Other California appellate courts have reviewed alleged errors concerning ICWA findings under a hybrid substantial evidence and abuse of discretion standard. (Ezequiel G., supra, 81 Cal.App.5th at pp. 1004-1008; accord In re K.H. (2022) 84 Cal.App.5th 566, 589.) Under this hybrid standard of review, the juvenile court's findings on whether there is "reason to know" that a child is an Indian child- being "fundamentally a factual determination"-are reviewed for substantial evidence. (Ezequiel G., at p. 1004.) However, the court's findings on whether a "proper and further inquiry and due diligence" has been conducted-being a "quintessentially discretionary function"-are reviewed for an abuse of discretion. (Id. at p. 1004-1005.)
3. No Error in the Trial Court's ICWA Findings
On remand, having been informed that Father's mother may have Indian ancestry, there was a "reason to believe" that the children may be Indian children. Thus, the questions here are whether the second duty of "further inquiry" was met and whether the third duty of formal notice was triggered. Whether we apply the substantial evidence standard of review or the hybrid standard of review articulated in Ezequiel G., we find no error in the juvenile court's ICWA findings and order.
We need not decide whether Ezequiel G.'s hybrid standard of review is correct or how that affects the language under section 224.2, subdivision (i)(2), which states: "If the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that the federal [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence." (Italics added.)
Here, the Department conducted an extensive investigation on remand. It interviewed the paternal grandfather, paternal aunt (Father's maternal aunt), as well as Father's distant cousins with alleged Indian ancestry. None of Father's relatives confirmed any membership or eligibility for membership in a federally recognized Indian tribe. The Department also contacted the BIA, CDSS, and 26 tribes to further inquire into whether the children were members of or eligible for membership in any Indian tribe. The Department maintained a detailed 4-page spreadsheet to document and update the information it received from the tribes. Over eight months, none of the investigations led to any indication that the children were Indian children, had membership or eligibility for membership in any Indian tribe. "[The Department's] inquiry obligation is 'not an absolute duty to ascertain or refute Native American ancestry.' [Citation.]" (In re D. F. (2020) 55 Cal.App.5th 558, 570 [the Department's contacts with the BIA and 30 tribes were substantial evidence to support the Department meeting its duty of further inquiry].)
Based on ample evidence of the Department's diligence, we are not persuaded by the parents' assertion that the Department failed to conduct a proper investigation. "If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.]" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Further, Mother and Father have not shown the juvenile court's findings to be arbitrary, capricious, or whimsical. (See Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 957.) On the contrary, the record indicates that the juvenile court weighed the need to gather information about Father's ancestry and carefully considered the information it received when making its findings. Thus, we conclude that the juvenile court's findings and orders related to ICWA are supported by substantial evidence, and under the Ezequiel G. hybrid standard of review, we also conclude that Mother and Father have not shown an abuse of discretion.
Mother did not and has not claimed any Indian ancestry in her side of the family. The parents' arguments on appeal pertain solely to Father's alleged Indian ancestry.
Next, Mother and Father argue the juvenile court erred because Father's enrollment applications were still "pending" at the time the court concluded ICWA did not apply. The record shows that, while Father may not have received a rejection letter per se, each of the tribes informed Father and the Department that his applications were either insufficient to establish eligibility or that Father was not likely to meet the tribe's criteria for enrollment without establishing a blood relative with ties to the tribe. "The [Department] is not required to 'cast about' for information or pursue unproductive investigative leads. [Citation]" (In re D.S., supra, 46 Cal.App.5th at p. 1053.) Substantial evidence supports an implied finding that Father's pending applications were unproductive investigative leads that the Department was not required to pursue.
Finally, Mother and Father claim the court's order should be reversed because the Department failed to send formal notices to the tribes when there was a "reason to know" the children were Indian children. This argument assumes, without citation to the record, that the evidence in this case established a "reason to know" the children were Indian children. It did not. Nothing in the record shows the parties or children meeting any of the six statutorily defined circumstances where a "reason to know" could be established (i.e., the court is informed that the children are, in fact, Indian children; residence on a reservation; children are/were wards of a tribal court; identification card indicating membership or citizenship in an Indian tribe). (Ezequiel G., supra, 81 Cal.App.5th at p. 999; see also § 224.2, subd. (d); Cal. Rules of Court, rule 5.481(b).) While the information in this case suggested that Father may have some unknown Indian ancestry, it did not provide a reason to know that Father or the children are, in fact, members or are eligible to become members of a federally recognized Indian tribe. Indian ancestry, without more, is not by itself a reason to believe that a child is a member of a tribe and therefore does not trigger the duty to provide formal notice to the tribe. (In re A.M. (2020) 47 Cal.App.5th 303, 321-322 [statements and "family lore" indicating Indian heritage require further inquiry but not notice]; In re P.H., Jr. (2024) 98 Cal.App.5th 992, 997 [same].)
In summary, whether under substantial evidence or abuse of discretion standard, the trial court did not err in finding that the Department's further inquiry on remand complied with ICWA requirements. The court's finding that there was no "reason to know" is supported by substantial evidence and, therefore, formal notice was not required in this case. Accordingly, we affirm the trial court's ICWA findings and orders.
B. The Juvenile Court Properly Dismissed Mother's Section 388 Petition (Appeal No. H051341)
Mother separately challenges the court's dismissal of her post-appeal section 388 petition. Mother asserts the trial court erred by dismissing her petition without an evidentiary hearing. Mother contends the law required the juvenile court to hear her petition because she made prima facie showings of changed circumstances and that modification would promote the children's best interests. The Department contends the trial court correctly denied the section 388 petition because it was outside the scope of the limited remand to address only ICWA compliance.
Section 388 authorizes the juvenile court to modify its orders when there is new evidence or a change of circumstances showing that modification would be in the child's best interests. (In re Malick T. (2022) 73 Cal.App.5th 1109, 1122.) The petition is generally made before the termination of parental rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 308-309; In re Kimberly F. (1997) 56 Cal.App.4th 519, 528 [Section 388 is "really is an 'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights."] (italics omitted).)
Here, the question is whether the juvenile court was authorized to entertain Mother's section 388 petition on a limited remand for ICWA notice compliance. In re Terrance B. (2006) 144 Cal.App.4th 965 (Terrance B.), is dispositive of Mother's challenge on appeal. In that case, the mother appealed a judgment terminating her parental rights, contending, among other things, the juvenile court's failure to comply with ICWA requirements. (Id. at p. 969.) The appellate court issued a limited reversal of the judgment and remanded the matter to the juvenile court with directions for ICWA compliance. (Id. at p. 970.) After issuance of the remittitur, the mother filed a section 388 petition, claiming a change of circumstances warranting a new hearing to consider her new evidence and modify placement of the minor child. (Ibid.) The juvenile court denied the mother's section 388 petition without a hearing, concluding that the remand was limited to only addressing ICWA notice. (Ibid.) The appellate court affirmed, concluding that "[t]he remittitur issued in [the mother's] prior appeal reversed the judgment terminating parental rights for the sole purpose of revesting jurisdiction in the juvenile court . . . to ensur[e] proper ICWA notice.... The remittitur defined the scope of the juvenile court's jurisdiction by ordering the court to reinstate the judgment terminating parental rights, thereby foreclosing the right to a new selection and implementation hearing, if ICWA did not apply.... Because the juvenile court's duty was to enter judgment in conformity with our remittitur, it properly declined to hear [the mother's] section 388 modification petition." (Id. at pp. 972-973.)
We are persuaded by the reasoning in Terrance B., and apply it here. As in that case, this court reversed the judgment terminating parental rights and remanded the case for the limited purpose of ICWA compliance. Our disposition in Father's prior appeal similarly limited the scope of the juvenile court's post-appeal jurisdiction to the issue of ICWA compliance, and directed that court to reinstate the order terminating parental rights if it found that ICWA did not apply. Accordingly, once it found that ICWA did not apply, the juvenile court properly reinstated its prior orders and dismissed Mother's section 388 petition in conformity with our remittitur.
III. DISPOSITION
The May 15, 2023 order on ICWA compliance is affirmed. The July 10, 2023 order dismissing the section 388 petition is affirmed.
WE CONCUR: Bamattre-Manoukian, J. Wilson, J.