Opinion
E075626
03-26-2021
In re R.H. et. al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.B., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J285141 & J285142) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
D.B. (Mother) appeals from the juvenile court's jurisdictional/dispositional orders as to her two-year-old daughter R.H. and 11-year-old son U.C. Mother contends the San Bernardino County Children and Family Services (CFS) failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and, therefore, the matter must be remanded. We conclude CFS conducted sufficient inquiry under the circumstances and affirm the judgment.
The father of R.H. and the father of U.C. are not parties to this appeal.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of CFS on May 19, 2020, due to Mother's unresolved mental health and substance abuse issues. On this date, officers responded to Mother's residence after an anonymous caller reported to police dispatch that Mother was outside her apartment holding two butcher knives. When officers responded, they did not notice any knives but observed Mother screaming and standing outside of her second floor apartment. Mother was uncooperative and refused to allow the officers to check on her children. Mother was eventually arrested for being under the influence of methamphetamines, and the children were taken into protective custody. The whereabouts of R.H.'s father and U.C.'s father were unknown.
Mother had five prior child welfare referrals between September 2012 and February 2019, with four referrals "unfounded" and one "inconclusive." The maternal grandfather reported that Mother was bipolar and took medication for the disorder. He noted that Mother had been very combative towards him recently and denied knowledge of Mother using any illicit drugs. The maternal grandfather denied any Native American ancestry. CFS indicated that ICWA did not apply.
On May 21, 2020, petitions were filed on behalf of the children pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support).
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
The children were formally detained from parental custody at the May 22, 2020 detention hearing. Mother was provided with visitation and services pending the case plan. Mother was also ordered to submit to random drug testing and to fill out a Judicial Council ICWA-020 Parental Notification of Indian Status form (ICWA-020).
At a hearing on June 12, 2020, in response to the juvenile court's query of whether there was Native American ancestry, Mother responded, "No." The court then ordered Mother to fill out the parental notification form.
On June 12, 2020, Mother filled out a CFS "Parent: Family Find and ICWA Inquiry" form (inquiry form). In the section for relative placement, she listed the name, phone number, and address for a maternal great-uncle as her first choice and the name and phone number for an uncle as her second choice. In the section for additional family contact information, she listed the name and phone number for the maternal grandfather, an uncle, and an aunt. In response to the question of whether she had any Native American ancestry, Mother checked the box stating "unknown." In the section stating, "Contact information of relatives who know of Native American ancestry information," Mother noted the name and address for a maternal great-grandfather, D.B.
On this same date, Mother filled out the ICWA-020 form. She checked the box that stated, "I may have Indian ancestry," but did not note any Indian tribe. She also checked the box that specified, "One or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe," but failed to specify the name of the tribe, the name of the band, or the name and relationship of the ancestor.
CFS recommended that the allegations in the petitions be found true and that services be provided to Mother. In regard to ICWA, CFS again noted ICWA did not apply. On June 2, 2020, Mother informed the social worker that to her knowledge, neither she nor the children's fathers had Native American heritage. The children were placed in the home of the maternal great-uncle and his wife and were doing well. R.H.'s father was later located and interviewed. CFS provided Mother and R.H.'s father referrals for services. Mother tested positive for drugs on two different dates and was a no show on two other dates. The whereabouts of U.C.'s father continued to remain unknown.
The contested jurisdictional/dispositional hearing was held on August 31, 2020. The juvenile court found true the allegations in the petitions as amended, declared the children dependents of the court, and provided Mother and R.H.'s father with reunification services. The court also found that the children did not come under the provisions of the ICWA. This appeal followed.
III
DISCUSSION
Mother argues the matter must be remanded to allow CFS to conduct a further inquiry into the children's Indian ancestry because in the ICWA-020 form she had checked the boxes indicating she "may have Indian ancestry" and "one or more of" her ancestors "is or was a member of a federally recognized Indian tribe."
A. Legal Principles
ICWA was enacted "'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .' [Citation.]" (In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C. § 1902; In re Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.); In re A.M. (2020) 47 Cal.App.5th 303, 314 (A.M.).) Under ICWA, an "'Indian child'" is "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); see § 224.1, subd. (a) [adopting federal definition of "'Indian child'"]; In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.) ["[a]n 'Indian child' is defined in the same manner [under California law] as under federal law"].)
By defining Indian children in this way, "ICWA focuses on [tribal] 'membership' rather than racial origins." (In re B.R. (2009) 176 Cal.App.4th 773, 783.) Indeed, regardless of a child's race or ancestry, "if the child is not a tribe member, and the mother and the biological father are not tribe members, the child simply is not an Indian child." (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.) It is up to the tribe to decide whether a child is an Indian child under ICWA. (Isaiah W., supra, 1 Cal.5th at p. 15.)
The duties imposed by ICWA on the juvenile court and a county welfare agency can be separated into three phases: (1) a duty to inquire, (2) a duty of further inquiry, and (3) a duty to provide ICWA notice. (In re D.F. (2020) 55 Cal.App.5th 558, 565-567.) Although ICWA does not require any inquiry to determine whether a child is an Indian child, California law imposes duties on county welfare departments and courts to make prescribed initial inquiries in every dependency case (§ 224.2, subds. (a)-(c); Isaiah W., supra, 1 Cal.5th at p. 14), and to make a "further inquiry" when a court or social worker has a "reason to believe" a child is an Indian child (§ 224.2, subd. (e)). (See In re H.B. (2008) 161 Cal.App.4th 115, 120 [ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child.].)
The child welfare agency's initial duty of inquiry includes "asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) The juvenile court must ask the participants in a dependency proceeding upon each party's first appearance "whether the participant knows or has reason to know that the child is an Indian child" (§ 224.2, subd. (c)), and "[o]rder the parent . . . to complete Parental Notification of Indian Status ([California Judicial Council] form ICWA-020)." (Cal. Rules of Court, rule 5.481(a)(2)(C), italics omitted.)
The further inquiry required when there is a reason to believe a child is an Indian child includes (1) interviewing the parents and "extended family members" to obtain information pertinent to providing notice of the proceedings to the child's Indian tribe, (2) contacting the BIA 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 (3) contacting pertinent Indian "tribes and any other person that may reasonably be expected to have information regarding the child's membership status or eligibility." (§ 224.2, subd. (e)(1)-(3).)
When the juvenile court issued the order here, the term "reason to believe" was not statutorily defined. The Legislature has since amended section 224.2, subdivision (e), to provide: "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 [that a child is an Indian child] enumerated in paragraphs (1) to (6), inclusive, of subdivision (d)." (§ 224.2, subd. (e)(1); see Stats. 2020, ch. 104, § 15, eff. Sept. 18, 2020.)
The grounds giving rise to a "reason to know" that a child is an Indian child, in turn, are as follows: "(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).)
If a further inquiry provides social workers or the court with a "reason to know" the child is an Indian child, notice of certain hearings must be provided to "the child's tribe," among others. (§ 224.3, subd. (a).) California law similarly requires notice to the Indian tribe and the parent, legal guardian, or Indian custodian if the court or the Department "knows or has reason to know" the proceeding concerns an Indian child. (§ 224.3, subd. (a); see In re Breanna S. (2017) 8 Cal.App.5th 636, 649.)
"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.)
B. Standards of Review
"[W]here the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied." (D.S., supra, 46 Cal.App.5th at p. 1051; accord, A.M., supra, 47 Cal.App.5th at p. 314.) "However, we review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court's order. [Citations.] We must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance." (A.M., at p. 314; accord, Austin J., supra, 47 Cal.App.5th at p. 885.) The parent who is appealing "'has the burden to show that the evidence was not sufficient to support the findings and orders.'" (Austin J., at p. 885.) Where, as here, the juvenile court finds ICWA does not apply to a child, "[t]he finding implies that . . . social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry." (Ibid.)
C. Analysis
Mother is effectively arguing that CFS and juvenile court did not properly discharge the second ICWA duty—that is, the duty to conduct further inquiry. By statute, however, that duty applies only if there is a "reason to believe" (as to the duty of further inquiry) that the children at issue are Indian children. (§ 224.2, subd. (e).) We conclude that substantial evidence supports a finding that there is no reason to believe that the children are Indian children.
First, when the juvenile court made an express finding that ICWA did not apply, Mother had informed CFS and the court that she had no Native American ancestry. The maternal grandfather also denied any Native American ancestry. Based on this information, CFS and the court had no "reason to believe an Indian child was involved" and, therefore, the duty of further inquiry and, by extension, the duty to notify were not triggered.
Second, Mother's later representation in the ICWA-020 form that she "may have Indian ancestry" and that "[o]ne or more of" her ancestors "is or was a member of a federally recognized tribe" did not trigger any continuing duty of further inquiry. To begin, Mother's statement that she may have Native American "ancestry" was insufficient by itself to trigger further investigation. First, Mother failed to identify any tribe, band, or the name and relationship of the ancestor with the supposed Indian ancestry. Second, "Indian ancestry, without more, does not provide a reason to believe," and thus does not provide a "'reason to know,'" "that a child is a member of a tribe or is the biological child of a member." (Austin J., supra, 47 Cal.App.5th at pp. 888-889; but see In re T.G. (2020) 58 Cal.App.5th 275, 294 (T.G.) [bare statement of Indian ancestry can sometimes trigger a duty to inquire further].) Here, there was nothing more.
Although a reason to believe a child is an Indian child does not require the certitude or factual support necessary to establish a reason to know a child is an Indian child, the social worker or court must, at a minimum, be aware of facts that could support a reasonable inference that the child, or at least one of the child's biological parents, is a member of an Indian tribe. (Austin J., supra, 47 Cal.App.5th at p. 888.) Because tribal membership depends ultimately upon "'the child's political affiliation with a federally recognized Indian Tribe'" (81 Fed.Reg. 38801-38802 (June 14, 2016)), being informed that the child may have Indian ancestry, without more, does not support the requisite inference. (Austin J., at p. 888.)
Further, even if Mother's claim of possible Indian heritage did trigger a duty to investigate, CFS discharged that duty. ICWA does not obligate CFS or the court "to cast about" for information or pursue unproductive investigative leads. (In re Levi U. (2000) 78 Cal.App.4th 191, 199 (Levi U.), superseded on other grounds by statute as stated in In re B.E. (2020) 46 Cal.App.5th 932, 940.) As a result, CFS and the court satisfied their duties here where Mother "failed to provide any information requiring followup" (In re S.B. (2005) 130 Cal.App.4th 1148, 1161; In re C.Y. (2012) 208 Cal.App.4th 34, 42), and the only person Mother identified as having additional information was the children's great-grandfather. (See In re Hunter W. (2011) 200 Cal.App.4th 1454, 1468 [parent's inability to identify tribe and failure to provide contact information to substantiate unsupported belief insufficient to trigger ICWA duty of further inquiry; family lore alone insufficient].) Only when there is a viable lead does CFS have "the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status." (In re K.R. (2018) 20 Cal.App.5th 701, 709; cf. T.G., supra, 58 Cal.App.5th at p. 292 [mother's identification of specific tribe on ICWA form and at detention hearing "unquestionably provided reason to believe Indian children might be involved"].) There was no viable lead in this case and, therefore, CFS's duty to conduct further inquiry and to notify were not triggered. (See D.S., supra, 46 Cal.App.5th at p. 1050.)
In addition, as part of its duty to inquire about a child's Indian ancestry pursuant to section 224.2, subdivision (e)(1), the agency must interview extended family members. Under both ICWA and California law, "'extended family members'" includes the child's "grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2); § 224.1, subd. (c).) "It does not include great-grandparents." (D.S., supra, 46 Cal.App.5th at p. 1053.) CFS therefore complied with this obligation by interviewing the maternal grandparent, the person who qualified as an "extended family member" within the meaning of ICWA.
The agency has a further obligation under section 224.2, subdivision (e)(2), to contact "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." (§ 224.2, subd. (e)(2)(C), italics added.) Although the children's great-grandfather may fall within this category, CFS reasonably could conclude based on its communications with Mother and the maternal grandfather that no further inquiry was needed because there was no further information of value to obtain from this third party.
Austin J., supra, 47 Cal.App.5th 870 is instructive. In Austin J., the Court of Appeal concluded that statements by the mother, both orally and on her ICWA-020 form, that she may have Cherokee ancestry, and similar statements by the maternal aunt, did not trigger the duty of further inquiry. (Id. at p. 888-889.) The court held: "[T]he fact disclosed through the social worker's initial inquiry regarding the possibility that the children are Indian children—that Mother may have Cherokee ancestry—is insufficient by itself to provide a reason to believe that either the children or their parents are members of, or eligible for membership in, an Indian tribe. Therefore, the statute imposed no duty to make further inquiry." (Id. at p. 889.)
Here, Mother twice claimed that she had no Native American ancestry. The maternal grandfather also denied any Native American ancestry. Even after Mother checked the box indicating she may have Indian ancestry in her ICWA-020 form, she failed to provide a name of a tribe, band, or the name and relationship of the person with the purported Indian ancestry. As previously noted, CFS is not required to "cast about" for information or investigative leads. (Levi U., supra, 78 Cal.App.4th at p. 199.)
Based on this record, there was substantial evidence supporting the juvenile court's conclusion that ICWA did not apply.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. FIELDS
J.