In re Austin J.
Mother contends: (1) The juvenile court lacked jurisdiction over the subject matter of this action under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (
FACTUAL AND PROCEDURAL BACKGROUND2
In March 2016, Leslie‘s children were living with him when a San Bernardino County juvenile court declared them dependents of the court and removed them from Leslie. In October 2016, the
In November 2016, Mother allegedly left Leslie‘s children with Edward‘s parents in Robeson County, North Carolina. In December 2016, the Robeson County Department of Social Services (DSS) detained Leslie‘s children from Mother and placed them in foster care.
On May 31, 2017, a North Carolina juvenile court declared Leslie‘s children to be dependents under North Carolina law, placed them in the custody of the Robeson County DSS for placement in foster care, and approved a plan of reunification with Mother. After Mother and Edward completed classes, the children were returned to Mother.
In May 2018, Bladen County, North Carolina DSS opened a new investigation involving Mother. A social worker from Bladen County requested that the Robeson County DSS complete a home visit at a certain location and, if the family is there, “to initiate the case.” (Underlining omitted.) A North Carolina social worker later told a DCFS social worker that they had “lost contact with the family due to relocating to California.”
In October 2018, Mother moved to a home in Palmdale, California and enrolled in a domestic violence education group in Lancaster.
In February 2019, DCFS began an investigation concerning the family based on a referral alleging general neglect of one of Mother‘s children. In early May 2019, social workers determined that the children were “at risk of suffering emotional or physical harm.”
At a detention hearing held on May 7, 2019, Mother and Edward were present and Leslie was not. The court detained the seven children from Mother and ordered Leslie‘s children placed in DCFS‘s custody. The court released Edward‘s children to him under DCFS supervision.
At the continued detention hearing held the next day, Edward did not appear, and the court detained his children from him, as well as from Mother. The court asked Mother if she had “any Native American Indian ancestry.” She responded, “I was told that my mother had Cherokee,” and said her “family in Little Rock,
On the same day, Mother filed a parental notification of Indian status (California Judicial Council form ICWA-020 (Jan. 1, 2008)) stating that the child “may have Indian ancestry“; namely, Cherokee, through her grandmother, who is deceased. The form provided checkboxes to indicate: “I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe“; “[t]he child is or may be a member of, or eligible for membership in, a federally recognized Indian tribe“; and “[o]ne or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized [Indian] tribe.” Mother left the checkboxes blank.
Two days after the detention hearing, a social worker called Mother. Mother told the social worker that “she may have [a] connection to the Cherokee or other tribes as well as having Creole heritage.” She said that “she did not know if she was registered with any tribe.” The possible Cherokee heritage was on her mother‘s side of the family through her maternal grandmother and maternal grandfather. Mother told the social worker that her maternal aunt might have additional information.
The social worker spoke with Mother‘s maternal aunt by telephone the same day. The maternal aunt reported that her mother (i.e., Mother‘s maternal grandmother) “may have had Cherokee heritage,” and she was not aware of other possible tribal heritage. She said that Mother‘s maternal grandfather “possibly had heritage but that she did not know what tribe.” She did not know if anyone in the family had attended an Indian school, lived on a reservation or been treated at an Indian clinic.
At a jurisdiction hearing on May 30, 2019, Leslie appeared in court for the first time. The court asked him if he had “any Native American ancestry.” He said he did not. The court then stated that it “finds that ICWA does not apply to [Leslie].” On the same day, Leslie filed a parental notification of Indian status (California Judicial Council form ICWA-020 (Jan. 1, 2008)), stating: “I have no Indian ancestry as far as I know.” He also left unmarked other checkboxes on the form that would, if marked, indicate that he or his children are members of, or eligible for membership in, an Indian tribe. The court did not make any further inquiries or findings concerning ICWA.
In its minute order issued after the May 30 hearing, the court stated that, as to each of Leslie‘s children, the court “does not have a reason to know that this is an Indian child, as defined under ICWA, and does not order notice to any tribe or the [Bureau of Indian Affairs (BIA)]. Parents are to keep [DCFS], their [a]ttorney and the [c]ourt aware of any new information relating to possible ICWA status.” The court did not make a similar finding or order as to Edward‘s children.
Edward appeared for a detention hearing on July 2, 2019. It does not appear from our record that the court asked him about Indian tribal membership or eligibility, or that the court ever made
On July 23, 2019, DCFS filed a first amended petition concerning Leslie‘s children. The next day, DCFS filed a second amended petition concerning Edward‘s children. California Judicial Council forms ICWA-010(A) are attached to these petitions and signed by a social worker, but are otherwise unmarked. The court sustained the petitions and declared the seven children to be dependents under section 300, subdivisions (a) and (b)(1). The court then removed the children from the parents and placed them in DCFS‘s custody with directions to place them in foster care.
Mother filed a timely notice of appeal.
After appellate briefing was completed, Mother requested judicial notice of juvenile court minute orders concerning the seven children.4 The minute orders indicate that, at a review hearing held on January 22, 2020, the juvenile court ordered that Leslie‘s children be placed with Mother and that Edward‘s children be placed with him and Mother. We granted Mother‘s unopposed request.
A. Subject Matter Jurisdiction Under the UCCJEA
Mother contends the juvenile court lacked subject matter jurisdiction over the case under the UCCJEA because North Carolina had continuing exclusive jurisdiction over the children and any issues regarding their custody and care. We disagree.
The UCCJEA “specifies the circumstances in which California courts have jurisdiction to make an ‘initial child custody determination.’ ” (In re C.W. (2019) 33 Cal.App.5th 835, 860.) Under the UCCJEA, “a court of this state has jurisdiction to make an initial child custody determination” if, among other grounds, “[t]his state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding.” (
Here, Mother had been living in California since at least October 2018, and she does not dispute that her children lived with her in California for at least six consecutive months before DCFS filed its petition on May 7, 2019. California is thus the children‘s home state for purposes of the UCCJEA and California courts have jurisdiction to make an initial child custody determination. (
Mother argues, however, that “North Carolina seemingly had exclusive continuing jurisdiction under the UCCJEA,” and “the record makes evident there were open dependency cases in North Carolina concerning the four oldest boys.” Even if we assume
In April 2019, during DCFS‘s investigation regarding the children, Edward informed a social worker about the North Carolina dependency proceedings and reported that “he and the mother completed classes to regain custody.” The DCFS social worker contacted a North Carolina social worker who provided the case history for the children. Based upon this contact and history, the DCFS social worker included in her report to the juvenile court that the “children were returned to the mother with counseling services in place for the children.” The North Carolina social worker also informed the DCFS social worker that Mother was subsequently “involved in a new investigation” in May 2018 that could have led to the “initiat[ion]” of a case. The North Carolina agency, however, lost contact with Mother after she moved to California. This evidence demonstrates that there was no pending dependency case in North Carolina when the California case began. Rather, North Carolina authorities had returned the children to Mother, contemplated initiating a new investigation and a new case, but ultimately never did so because Mother and children relocated to California.
Mother relies on
Based on the record before us, we conclude the juvenile court had subject matter jurisdiction under the UCCJEA when DCFS filed its petition.
B. Indian Child Welfare Act
Mother contends that DCFS and the court did not comply with their duties of inquiry and notice under ICWA. We conclude that the duties under ICWA were not met with respect to Edward‘s side of the family, but were met with respect to Mother‘s and Leslie‘s side of the family.5
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (
If an Indian child is removed from a foster care home, a subsequent placement must be in accordance with ICWA, unless the child is returned to the parent. (
Central to the protections ICWA provides is the determination that an Indian child is involved. For purposes of ICWA, an “Indian child” is an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (
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. (In re H.B. (2008) 161 Cal.App.4th 115, 120.) Federal regulations implementing ICWA, however, require that state courts “ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.” (
ICWA provides that states may provide “a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under” ICWA. (
California law also requires “further inquiry regarding the possible Indian status of the child” when “the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding.” (
In addition to the inquiry that is required in every dependency case from the outset and the “further inquiry” required under California law when there is a “reason to believe” an Indian child is involved, a third step—notice to Indian tribes—is required under ICWA and California law if and when “the court knows or has reason to know that an Indian child is involved.” (
The duty to provide notice is narrower than the duty of inquiry. Although the duty of inquiry applies to every “child for whom a petition under Section 300, 601, or 602 may be or has been filed” (
In 2018, the Legislature enacted changes to the state‘s ICWA-related statutes for the purpose of conforming state law to recent changes in federal ICWA regulations. (See Stats. 2018, ch. 833, pp. 5342―5402; In re A.M. (Mar. 5, 2020, E073805) __ Cal.App.5th __ [2020 WL 1631230] (A.M.); Assem. Com. on
This definition, which is substantially identical to the definition adopted in 2016 by the BIA (
In defining the “reason to know” standard as a reason to know that a child ”is an Indian child,” the BIA expressly denied requests for more inclusive language, such as, “is or could be an Indian child” or “may be an Indian child.” (81 Fed.Reg. 38804, italics added.) In rejecting the broader phrases, the BIA pointed to concerns that such language would cause “undue delay, especially when a parent has only a vague notion of a distant [t]ribal ancestor.” (Ibid.; see also Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020) Disposition Hearing, § 2.125[1], p. 2-419 [ICWA “does not apply to the many children involved in juvenile dependency proceedings who merely have some vague, distant, or possible Indian heritage“].) Indeed, tribal ancestry is not among the criteria for having a reason to know the child is an Indian child. (
2. Standards of Review
As to each of the children, the court found that ICWA does not apply. The finding implies that notice to a tribe was not required because 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. We review a court‘s ICWA findings for substantial evidence. (In re D.S., supra, __ Cal.App.5th __ [2020 WL 1430104 at *4]; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) “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., supra, __ Cal.App.5th __ [2020 WL 1631230 at *5].) Mother, as the appellant, “has the burden to show that the evidence was not sufficient to support the findings and orders.” (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.)
3. Duty to Give Notice to Indian Tribes
Mother contends that DCFS was required to provide notice to Cherokee tribes because social workers and the court had “reason to know an Indian child [was] involved.” She does not address the revised criteria for evaluating whether the court had a reason to know a child is an Indian child (
We can summarily reject four of the six statutory reason-to-know criteria. There is no evidence that any of the children or their parents resided “on a reservation or in an Alaska Native village“; none of the children said anything about having Indian ancestry; there is no evidence that any of the children were or had been “a ward of a tribal court“; and no one informed the court that either a parent or any of the children “possess an identification card indicating membership or citizenship in an Indian tribe.” (
Two of the criteria merit more discussion. Subdivisions (d)(1) and (d)(3) of section 224.2 provide that the requisite “reason to know” exists when “[a] person having an interest in the child . . . or a member of the child‘s extended family informs the court that
As noted above, an “Indian child” is an unmarried individual under age 18 years, who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (
Mother informed the court that she had been “told that [her] mother had Cherokee [ancestry]” and, in her parental notifications of Indian status form, stated that her children “may have [Cherokee] Indian ancestry” through her grandmother. She later told a social worker that “she may have [a] connection to the Cherokee or other tribes as well as having Creole heritage,” but “she did not know if she was registered with any tribe.” Mother‘s maternal aunt provided similar statements: Mother‘s maternal grandmother “may have had Cherokee heritage,” and Mother‘s maternal grandfather “possibly had heritage but that she did not know what tribe.” Both the grandmother and grandfather are deceased. At most, these statements merely suggest the possibility that the children may have Cherokee ancestry; Indian ancestry, however, is not among the statutory criteria for determining whether there is a reason to know a child is an Indian child. The
4. Duty of Initial Inquiry with Respect to Edward‘s Children
The record in this case does not reveal that the court made any explicit findings that it or DCFS satisfied their duties of inquiry under ICWA or state law with respect to Edward‘s children. To the extent the court‘s rulings imply such a finding, there is no substantial evidence to support it. Indeed, it does not appear from our record that the court or any social worker ever asked Edward any questions relevant to determining whether his children were Indian children. Nor was Edward directed to fill out a parental notification of Indian status form as required (
5. Duties of Initial and Further Inquiry with Respect to Leslie‘s Children
As to each of Leslie‘s children, the court expressly found that ICWA does not apply. The finding implies that the duty of inquiry under California‘s ICWA-related law had been satisfied. There is sufficient evidence to support the court‘s finding.
Based upon Leslie‘s in-court statement and his parental notification of Indian status declaration indicating that he and his children have no Indian ancestry and are neither members nor eligible for membership in an Indian tribe, there was no “reason to believe” that any of his children are Indian children based on his parentage. (
Whether statements by Mother and her maternal aunt established a reason to believe that her children are Indian children is a closer question. Although, as explained above, the evidence provided no reason to know that any of the children are Indian children under the criteria in section 224.2, subdivision (d), a belief that a child is an Indian child presumably requires a lesser degree of certitude or factual support than knowing a child
Mother‘s statement that she “may have Indian ancestry” and had been “told that [her] mother had Cherokee [ancestry],” and the similar statement by Mother‘s aunt that she “may have had Cherokee heritage,” are insufficient to support a reason to believe the children are Indian children as defined in ICWA. At most, they suggest a mere possibility of Indian ancestry. Indian ancestry, heritage, or blood quantum, however, is not the test; being an Indian child requires that the child be either a member of a tribe or a biological child of a member. (
Even if we assume that the possibility of Indian ancestry may suggest the possibility of Indian tribal membership, that bare suggestion is insufficient by itself to establish a reason to believe a child is an Indian child. In the recent changes to California‘s ICWA-related law, the Legislature removed the language, “information suggesting the child is a member of a tribe or eligible for membership in a tribe,” from the list of circumstances that provided one with a “reason to know” a child is an Indian child. Significantly, it did not add that language to a definition of the newly created “reason to believe” standard for further inquiry. We will not infer its incorporation into that standard.
In short, the 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.
The recent decision in A.M., supra, __ Cal.App.5th __ [2020 WL 1631230] is distinguishable. In that case, the mother indicated
We also reject Mother‘s reliance on In re N.G. (2018) 27 Cal.App.5th 474 (N.G.). In that case, the dependent child‘s father told social workers that, in addition to information suggesting an ancestral tribal connection, there were ” ‘paternal cousins’ ” who were “registered members of ‘the Cherokee tribe.’ ” (Id. at p. 478.) The Court of Appeal held that such information “plainly suggested [the child] may be eligible for membership in a federally recognized Cherokee tribe, and required the social worker to ” ‘make further inquiry.’ ” (Id. at p. 482.) The information that relatives of the dependent child were members of a tribe, and not
DISPOSITION
The juvenile court‘s jurisdiction and disposition orders are affirmed.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
WEINGART, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Notes
For ease of reference, we will refer to the four older children as Leslie‘s children and the three younger children as Edward‘s children. We intend no disrespect to Mother, who is the mother of all seven children.
Mother also has at least two other children, who are living with other relatives and not subjects of the underlying dependency proceedings.