In re CHARLES W., JR., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CHARLES W., SR., Defendant and Appellant.
D078574
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 6/17/21 Certified for Publication 7/9/21 (order attached)
(Super. Ct. No. J519864A-C)
Law Office of Marissa Coffey, LLC, and Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of County Counsel,
Charles W. Sr. (Father) appeals from a jurisdictional/dispositional hearing regarding his children Charles W. Jr. (Jr.), S.W., and R.W. Father challenges the juvenile court‘s finding that thе Indian Child Welfare Act (ICWA) does not apply, claiming there was insufficient inquiry of the mother‘s ancestry. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prior Dependency Case
The children‘s parents have a history of substance abuse. In 2018, then one-year-old Jr. and infant S.W. became juvenile dependents (
Current Dependency Case
Several months later in late September, R.W. was born to Mother and Father. Baby R.W. is a full sibling to Jr. and S.W.
On December 2, police officers responded to the hotel room where thе family was living and seized a large quantity of illicit drugs, which were accessible to the three young children. Both parents were arrested on drug-related charges, and they admitted to using drugs. Mother told the assigned social worker she had Yaqui and Aztec heritage but she “already went through the Court process,” and the court had found ICWA did not apply.
On December 4, the Agency filed dependency petitions (
Along with a host of othеr relevant information, the Agency‘s detention report includes Mother‘s comment regarding the court‘s prior ICWA process and a note that “on January 22, 2019, the [c]ourt found that ICWA did not apply on behalf of children [Jr.] and [S.W.].”
At the December 8 detention hearing, Mother and the children‘s whereabouts were unknown. Father was in custody and represented at the hearing by counsel, who waived Father‘s presence. The court issued a “pick up and detain order” as to Mother and the children. In addition, the court deferred making an ICWA finding based on Mother‘s report of Native American ancеstry. The court remarked that it had conducted a search in the federal register and Aztec was not a federally recognized Indian tribe for ICWA purposes, but the Yaqui tribe was federally recognized. Accordingly, the court directed the Agency to investigate and make further inquiry on the matter and ordered the parents to complete the “Parental Notification of Indian Status” form.
Around December 22, Mother and the children were located, and the Agency requested a special hearing for appointment of Mother‘s and minors’ counsel.
ICWA Finding
The special hearing was held on December 28, and all parties attended the hearing remotely due to COVID-19 protocols. Mother was present throughout the hearing, telephonically. The court confirmed the appointment of counsel (Thomas Kisiel) for her. In addition, there was a discussion about ICWA apрlicability.
At the outset, Mother‘s counsel informed the court, “An ICWA-020 form for these children was previously filed with the court. There are no changes on behalf of the mother now, and she indicates she has no Native American ancestry.”
A minute later, minors’ counsel commented, “The only thing I have in my notеs from the December 8th hearing is that it was put on the record that
Moments later, the Agency‘s counsel asked for an ICWA finding, “given Mother‘s not claiming Native American ancestry.” There were no objections. Throughout the hearing, Mother did not contest counsel‘s representations regarding her heritage. The court went on to “reconfirm ICWA does not apply at this time based on the information provided to the court and the reaffirmation of no Native American ancestry as stated and will be provided on the 020 form by Mother‘s counsel, Mr. Kisiel.”
Jurisdiction and Disposition
The Agency‘s subsequently filed jurisdiction and dispositiоn report states that on “12/28/2020, the Court found that ICWA did not apply on behalf of the children[.]” The record contains no further discussion of ICWA. Following a contested jurisdiction/disposition hearing in which the Agency‘s reports were received in evidence without objections, the court assumed depеndency jurisdiction over the children and removed them from parental custody. The court‘s written dispositional order indicates a finding “without prejudice that the [ICWA] does not apply to this proceeding.”
Father‘s appeal followed.
DISCUSSION
Father contends the juvenile court and the Agency did not make a sufficient inquiry into the childrеn‘s possible Indian ancestry through Mother before the court found ICWA does not apply.3 We disagree.
“Congress enacted ICWA in 1978 in response to ‘rising concern in the mid-1970‘s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separаtion of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) ICWA established minimum standards that courts are required to follow in involuntary proceedings to place a child in foster care or to terminate parеntal rights to ensure Indian tribes receive notice “where the
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 biologicаl child of a member of an Indian tribe[.]” (
Following changes to the federal regulations concerning ICWA compliance, California made conforming amendments to its statutory scheme regarding ICWA, effective in 2019. (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).) In D.S., the court explained that the resulting clarification of law, found in part in
At the first step, “[s]ection 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department, such as the Agency, the duty to inquire ‘includes, but is not limited to, 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.’ ” (D.S., supra, 46 Cal.App.5th at pp. 1048-1049.)
There is a “reason to believe” a child is an Indian child whenever the court or sоcial worker has “information suggesting that either the parent of
We review a juvenile court‘s ICWA findings for substantial evidence. (D.S., supra, 46 Cal.App.5th at p. 1051; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.)
In this case, we conclude the juvenile court and the Agency made an adequate inquiry under ICWA. The inquiry yielded no reason to believe the children were members of or eligible for membership in an Indian tribe. In its initial investigation and report, the Agency learned that in January 2019, the juvenile court found ICWA did not apply to the two older children. This prior finding is undisputed and unchallenged. Baby R.W. is a full sibling of the two older children, i.e., all three children share the same ancestry. If ICWA did not apply to the two older children, then it would not apply to the baby. Nevertheless, because there was an outstanding claim of Mother‘s potential Indian anсestry at the detention hearing, the juvenile court deferred making an ICWA finding and ordered further investigation.
At the next hearing on December 28, in Mother‘s presence, her counsel denied Mother had Native American ancestry. Counsel was aware of the court‘s prior finding and represented thаt Mother had no changes and no Native American ancestry. Even after minors’ counsel raised the issue of Mother‘s claim to Yaqui and Aztec ancestry, counsel reiterated he had spoken to his client that very morning and Mother “has no Native American ancestry.” Minors’ counsel, serving as guardian ad litem for the children, was satisfied with this inquiry. Father has consistently denied Indian heritage. Thus, the court had no reason to believe the children were Indian.
In contesting the juvenile court‘s finding, Father argues that Mr. Kisiel‘s statements were made in Mother‘s absence. Father is mistaken, as he concedes in his reply brief. Indeed, Mother was present throughout the December 28th hearing, and she was in apparent agreement with her counsel‘s representation of “no Native American ancestry.” Counsel is an officer of the court and a practitioner in juvenile dependency mаtters; there is no reason to believe he misreported Mother‘s ancestry or misunderstood the implications of his report. Furthermore, the court reasonably relied on a prior finding involving the same family. Substantial evidence supports the finding that ICWA does not apply.
Father points out that the Agency‘s initial field worksheet denotes a Sioux tribal affiliation. He acknowledges there is “no explanation” in the
no one mentioned a Sioux affiliation. Given Mother‘s (and Father‘s) denial of Native American ancestry, which postdated the field worksheet, the Sioux denotation was too “vague, attenuated and speculative to give the dependency court any reason tо believe the children might be Indian children.” (In re J.D. (2010) 189 Cal.App.4th 118, 125.)
Father argues on reply that the juvenile court was under a duty to directly interview Mother about her ancestry. In the face of counsel‘s unequivocal denial, twice, of Mother‘s Indian heritage in her presence, we are hard pressed to find that the court was required to disregard counsel‘s representations and directly question Mother. This is especially true in light of a prior court finding that ICWA did not apply. The court reasonably inquired of Mother‘s counsel, who disclaimed his client‘s Indian heritage. (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1521 [no reason to believe children were Indiаn where, at jurisdictional/dispositional hearing and upon inquiry from the court, “father‘s counsel clarified that although father had initially claimed he might have Indian ancestry, he had retracted that claim and did not have any Indian heritage“].)
The record does not contain Mother‘s complеted Parental Notification of Indian Status form (ICWA-020) despite the court‘s order to submit one, possibly due to pandemic-related hardships and/or virtually conducted hearings. The form should be completed. (
pursue unproductive investigative leads.” (D.S., supra, 46 Cal.App.5th at p. 1053.)
In sum, the juvenile court and the Agency made an adequate inquiry into the children‘s possible Indian ancestry, relying on a prior court finding that ICWA did not apply and the parents’ representations that they had no change in information and no Native American ancestry. We perceive no error by the juvenilе court in fulfilling its duty of inquiry or in finding that ICWA does not apply.
DISPOSITION
The court‘s findings and orders are affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
In re CHARLES W., JR., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CHARLES W., SR., Defendant and Appellant.
D078574
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 7/9/21
CERTIFIED FOR PUBLICATION
(Super. Ct. No. J519864A-C) ORDER CERTIFYING OPINION FOR PUBLICATION
THE COURT:
The opinion in this case filed June 17, 2021, was not certified for publication. It appearing the opinion meets the standards for publication specified in
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in
ORDERED that the words “Not to Be Published in the Official Reports” appearing on page 1 of said opinion be deleted and the opinion herein be published in the Official Reports.
McCONNELL, P. J.
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