Opinion
B300068
02-04-2020
In re JOSHUA C. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JONATHAN C., Defendant and Appellant.
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK14685) APPEAL from orders of the Superior Court of Los Angeles County, Steven E. Ipson, Commissioner. Affirmed. Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel for Plaintiff and Respondent.
Jonathan C. (Father) appeals from the dependency court's order terminating his parental rights under Welfare and Institutions Code section 366.26 to his children J.C. (born in 2012) and Je.C. (born in 2015). Without contesting the merits of the order, Father contends reversal is warranted because the court and the Department of Children and Family Services (DCFS) failed to satisfy their respective duties to investigate whether his children had Native American Indian ancestry and they thus failed to comply with the Indian Child Welfare Act (ICWA). As we shall explain, the court did not err in finding that the ICWA did not apply. The parents failed to provide sufficient information to DCFS to investigate the claims, and the relatives that DCFS located denied Native American Indian ancestry. Consequently, the court did not err in concluding that the ICWA did not apply, and, accordingly, we affirm.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Because the failure to comply with the ICWA is the sole basis for the appeal, we discuss only the facts pertinent to the ICWA claim.
In late January 2016, DCFS filed a section 300 dependency petition on behalf of J.C., Je.C. and their older siblings under subdivision (b) alleging that the parents engaged in violent altercations, that Father had a criminal history, and that the children's mother, P.S. (the mother), failed to protect them.
The children's older siblings and mother are not parties to this appeal.
At the outset of DCFS's investigation, the mother reported that she had no Native American Indian ancestry. At an arraignment hearing in January 2016, Father reported that he might have Cherokee heritage, and the court ordered DCFS to investigate. In April 2016, the dependency investigator mailed the notice of child custody proceedings for Indian child form (ICWA-030) to Father to obtain information about his family and the Cherokee tribe, but Father never returned that form. The children were detained from the parents.
On March 14, 2016, an unsigned parental notification of Indian status form (ICWA-020) was filed that indicated "[o]ne or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe"; on the form the name of relative is listed as "don't know name." The ICWA-020 form also did not identify which parent had filed the form.
In the 2016 jurisdiction and disposition report, DCFS reported Father was interviewed in March 2016 and did not provide additional information regarding relatives who would have the ICWA information. Father reported that his parents were deceased, and he had siblings who lived out of the state.
The mother continued to deny Native American Indian ancestry at her court appearance in March 2016, and again confirmed she had no Native American Indian ancestry when questioned again in April 2016.
The children were declared dependents of the court and removed from their parents' custody. The court ordered family reunification services for the parents and allowed them monitored visitation with the children.
On September 23, 2016, Father informed DCFS that he had no further information regarding his Native American Indian heritage, and there were no family members that could provide this information. Father opined that he did not have any Native American Indian ancestry.
At a review hearing in October 2018, the juvenile court found that ICWA did not apply. The court terminated reunification services and scheduled the matter for a selection and implementation hearing.
At the section 366.26 hearing on May 1, 2019, both parents appeared in the juvenile court but neither raised any issue related to the ICWA. The court continued the hearing to July 2019. At the continued section 366.26 hearing on July 9, 2019, the mother appeared and filed an ICWA-020 form stating she may have Native American Indian ancestry, but that the tribe was unknown. The court questioned the mother about her ancestry. The mother reported that her sister, the children's maternal aunt, C.R., and her adoptive maternal grandmother, R.J., might have information regarding her family's Native American Indian ancestry, including contact information for a maternal uncle whom the mother suspected might be a registered member of a tribe. The mother conceded that no one in the family had identified the tribe. But the mother also disclosed that the maternal side of her family originated from Memphis, Tennessee and suspected that her family could "probably" be members of a Cherokee tribe.
The mother reported that R.J., her adoptive grandmother, was also biologically related to the mother as an aunt on her maternal side.
The court continued the section 366.26 hearing and ordered DCFS to investigate the mother's claim of Native American Indian heritage and submit a supplemental report. The juvenile court also ordered DCFS to update its investigation of Father's previous claim of Native American Indian heritage.
DCFS's supplemental report disclosed that investigators interviewed the maternal aunt, C.R., who stated she was unaware of the maternal family having any Native American Indian heritage. DCFS also contacted the maternal great aunt, who stated there was no Native American Indian heritage on the maternal side of the family.
The record contains no information that DCFS contacted the other maternal relative that the mother had identified as having additional information, R.J., nor does it appear that DCFS was given the contact information for the maternal uncle.
DCFS reported that Father indicated that the only relative who may have more information about possible Native American Indian heritage in his family was his aunt. Father stated he would provide contact information for the aunt to DCFS.
At the section 366.26 hearing on August 12, 2019, DCFS reported that as of the hearing, Father had not yet provided DCFS with contact information for his aunt; although he stated he had reached out to her on Facebook, she had not responded to him. DCFS and the children's counsel requested the juvenile court proceed with the hearing and terminate parental rights; Father objected and requested DCFS conduct further investigation under the ICWA. Counsel for the mother submitted on the ICWA issue. The juvenile court found that the ICWA did not apply. After the hearing, the court found that the children were adoptable and terminated parental rights.
Father timely appealed.
DISCUSSION
Father argues that the court and DCFS erred by failing to fulfill their respective duties under the ICWA to investigate the Native American Indian heritage of both parents and that the error warrants reversal.
Father has standing to assert an ICWA notice violation on appeal as to the mother. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 339 [holding non-Indian parent may be aggrieved for purposes of standing to assert ICWA error on appeal]; see also 25 U.S.C. § 1914; Cal. Rules of Court, rule 5.486(a) [termination of parental rights may be challenged on the ground of lack of ICWA notice by the dependent child, a parent, or American Native Indian custodian from whose custody the child was removed].)
The ICWA was enacted "to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children 'in foster or adoptive homes which will reflect the unique values of Indian culture.' " (In re Levi U. (2000) 78 Cal.App.4th 191, 195; see 25 U.S.C. § 1902.) Under the ICWA, DCFS and the court have "an affirmative and continuing duty to inquire whether a child [in a section 300 proceeding] is or may be an Indian child." (§ 224.2, subd. (a).) If the court or DCFS has reason to know that a Native American Indian child is involved, the social worker is required to make further inquiry regarding the possible Native American Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Native American Indian custodian, and extended family members to gather the information required to be provided in the ICWA notice. (See In re C.Y. (2012) 208 Cal.App.4th 34, 39; § 224.2, subd. (e)(1).)
Neither the court nor DCFS, however, is required to conduct a comprehensive independent investigation into a child's Native American Indian status. (In re S.B. (2005) 130 Cal.App.4th 1148, 1161.) "In a juvenile dependency proceeding, a claim that a parent, and thus the child, 'may' have Native American heritage is insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information that would reasonably suggest the [child] has Indian ancestry." (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1516.) A claim that a parent may have Native American Indian ancestry, by itself, is "too vague and speculative to give the juvenile court any reason to believe the [children] might be Indian children." (In re O.K. (2003) 106 Cal.App.4th 152, 157; see also In re Hunter W. (2011) 200 Cal.App.4th 1454, 1468; In re J.D. (2010) 189 Cal.App.4th 118, 125; In re Aaron R. (2005) 130 Cal.App.4th 697, 707-708.) And " 'if there is insufficient reason to believe a child is an Indian child, notice need not be given.' " (In re Jeremiah G., supra, 172 Cal.App.4th at p. 1520.)
Here, Father complains that after he and the mother indicated that they "may" have Native American Indian heritage, DCFS failed to follow up with their relatives to investigate. This contention rings hollow.
Concerning Father's complaint that DCFS failed to contact his siblings and his paternal aunt, the record discloses that when asked to identify all relatives who might have information about his Native American Indian heritage, Father initially reported that any relatives who might have the information were deceased. During the section 366.26 proceedings, however, he stated that his paternal aunt was the only relative that "might" have the relevant information. Father never suggested that his siblings could provide insight on the matter. Consequently, DCFS cannot be faulted for failing to contact them. Likewise, DCFS did not err in failing to contact Father's paternal aunt because Father failed to provide DCFS with her name or contact information. The duty of inquiry under the ICWA does not require DCFS or the court to make inquiries of individuals whom the parent has not offered as possible sources of knowledge or for whom the parent has not provided contact information. (See, e.g., In re Levi U., supra, 78 Cal.App.4th at p. 199 [no duty to "cast about" for information].)
This case is similar to the insufficient information a parent provided for ICWA purposes in In re Hunter W., supra, 200 Cal.App.4th at p. 1468. There the parent claimed Native American Indian heritage but she "could not identify the particular tribe or nation and did not know of any relative who was a member of a tribe." (Ibid.) She also did not provide "contact information" for relatives "who could reveal more information." (Ibid.) The court held the information the parent provided was "too speculative to trigger ICWA." (Ibid.) "[T]he parent could not even identify the tribe the family may have had connections to." (Ibid.)
With respect to DCFS's efforts to investigate the mother's claim that she might have Native American Indian heritage, that she raised during the section 366.26 proceedings, the record discloses that DCFS contacted her maternal relatives. Both relatives contacted, including one that the mother claimed would have relevant information, stated that the mother's maternal family did not have Native American Indian heritage. Based on the information provided by the maternal relatives that dispelled the mother's speculation about their Native American Indian ancestry, DCFS had no reason to track down the mother's adoptive grandmother (and even less reason to contact a maternal uncle) to make further inquiries. "[T]he court ha[s] no obligation to make a further or additional inquiry in the absence of any evidence supporting a reasonable inference that the child might have Indian heritage." (In re Aaron R., supra, 130 Cal.App.4th at p. 708.) Speculation alone does not suffice to warrant notice under the ICWA. (In re J.D., supra, 189 Cal.App.4th at p. 125.)
Consequently, we conclude Father has not shown grounds for reversal.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur.
CHANEY, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.