In re Dominic F. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.B., Defendant and Appellant.
B302482 (Los Angeles County Super. Ct. No. 19LJJP00406A–C)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Filed 9/30/20
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from findings and orders of the Superior Court of Los Angeles County, Steven E. Ipson, Referee. Affirmed.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
M.B. (Mother) challenges the juvenile court’s jurisdictional findings and dispositional orders made October 16, 2019. On appeal, she does not contest the merits of the court’s adjudication; instead, her sole contention is that reversal is warranted because the juvenile court and Department of Children and Family Services (DCFS) failed to satisfy the formal notice requirements under the Indian Child Welfare Act of 1978 (ICWA) (
We find the juvenile court did not err in finding that ICWA does not apply, and accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because the failure to comply with the formal notice requirements of ICWA is the sole basis for Mother’s appeal, we recite only those facts pertinent to her claim.
At the detention hearings on June 18 and 19, 2019, the juvenile court ordered the minors removed from both parents’ care and placed with DCFS. The juvenile court reviewed the Parental Notification of Indian Status (Judicial Council form ICWA-020) filed by each parent. The juvenile court stated Father indicated he has “no Indian ancestry” in his ICWA-020 form. Mother had marked the checkbox indicating she “may have Indian ancestry” and handwrote “unknown tribe name from New Mexico” on her ICWA-020 form.2 The juvenile court instructed DCFS: “To the extent the Department can begin an investigation for that understanding, I ask that you look into it. But all it says is ‘unknown tribe.’”
In the jurisdiction/disposition report filed July 8, 2019, DCFS apprised the court of its “ICWA updates.” The social worker (SW) had contacted maternal grandfather. He reported “his family believed they were of [N]ative American descent, but that it was never proven.” He said his “family was out of New York” so “it could be from that area.”
The SW next contacted maternal grandmother (MGM), who said her mother did not have Native American heritage and was of Irish and Welsh descent. However, MGM said her paternal grandmother—i.e., the minors’ maternal great-great grandmother (MGG-GM)—was “part [N]ative American.” MGM recalled MGG-GM was born in New Mexico.
The SW contacted Mother. Mother said her great grandmother (again, the same MGG-GM) was adopted, and asserted she was “full native” although “nothing had been checked before she passed [away].” Mother mentioned her sister—i.e., maternal aunt (MA)—has children who “receiv[ed] benefits” but was unsure if it was through MA’s husband—who is not biologically related to the children subject to this appeal. Mother stated her male cousin also believed he had Cherokee heritage from his own father, but that he similarly was “unrelated” to Mother’s side of the family.
The SW looked up a list of federally-recognized tribes in the areas Mother and her relatives had mentioned—New Mexico and New York—and sent
On August 6, 2019, DCFS informed the court it received ICWA response letters from 11 tribes, indicating the children were not enrolled members and are not eligible for enrollment as members of their respective tribes; copies of the response letters DCFS received were provided to the court.
On August 16, 2019, DCFS informed the court it received ICWA response letters from four more tribes, and provided copies thereof, all indicating the children were neither members nor eligible for membership in their respective tribes.
And on October 11, 2019, DCFS provided the court with the response letters it received from nine more tribes, again all indicating the children were neither members nor eligible for membership.
At the October 16, 2019 jurisdictional and disposition hearing, DCFS informed the court it had been “over 60 days” since it received responses from the tribes indicating the children are neither tribal members nor eligible for membership. DCFS requested the court find ICWA did not apply to the three children. The juvenile court agreed and found ICWA did not apply. The court then sustained two allegations in the petition pursuant to
The minors were declared dependent children of the court under
Mother timely filed a notice of appeal.
DISCUSSION
The sole issue raised by Mother on appeal is whether the juvenile court complied with ICWA’s formal notice requirements, which become applicable once a court has determined there is “reason to know” the subject minors are Indian children. Mother argues although DCFS “impressively investigated” Mother’s claim of possible Native American ancestry, its “fail[ure] to file the actual notices it sent to the tribes with the juvenile court” precluded the court
DCFS disagrees and argues the vague statements about possible Indian heritage from Mother and maternal grandparents did not rise to the level of information indicating that the children are Indian children, and thus, did not trigger the formal notice provisions of ICWA.
We agree with DCFS. Based on the record, recent changes to the law and case precedent, we find no error by the juvenile court and we conclude substantial evidence supports its finding that ICWA does not apply.
A. Standard of Review
“[W]here the facts are undisputed, we independently determine whether ICWA’s requirements have been satisfied.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1051 (D.S.); accord, In re A.M. (2020) 47 Cal.App.5th 303, 314 (A.M.).) 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, In re Austin J. (2020) 47 Cal.App.5th 870, 885 (Austin J.).) The appellant—in this case, Mother—has the burden to show the evidence was not sufficient to support the ICWA finding. (Austin J., at p. 885.)
B. Applicable Law
ICWA4 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 . . . must follow before removing an Indian child from his or her family.” (Austin J., supra, 47 Cal.App.5th at pp. 881–882.) Both ICWA and the Welfare and Institutions Code define 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 biological child of a member of an Indian tribe.” (
1. Initial Duty to Inquire
The duty to inquire whether a child is an Indian child begins with “the initial contact,” i.e., when the referring party reports child abuse or neglect that jumpstarts DCFS investigation. (
2. Duty of Further Inquiry
As discussed in two recent cases, Austin J., supra, 47 Cal.App.5th at pages 883–884 and D.S., supra, 46 Cal.App.5th at pages 1048–1049, a duty of further inquiry is imposed when DCFS or the juvenile court has “reason to believe that an Indian child is involved” in the proceedings. (
Further inquiry as to the possible Indian status of the child includes: 1) interviewing the parents and extended family members to gather required information6; 2) contacting the Bureau of Indian Affairs and State Department of Social Services for assistance in identifying the tribes in which the
(
3. Duty to Provide ICWA Notice
“The sharing of information with tribes at [the further] inquiry stage is distinct from formal ICWA notice, which requires a ‘reason to know’—rather than a ‘reason to believe’—that the child is an Indian child.” (D.S., supra, 46 Cal.App.5th at p. 1049.) While “reason to believe” is not defined, fortunately the term “reason to know” is defined by ICWA and its related California statute.
Under ICWA, the juvenile court has “reason to know” a child is an Indian child if one of six circumstances is present: “(1) Any participant in the proceeding . . . informs the court that the child is an Indian child; [¶] (2) Any participant in the proceeding . . . informs the court that it has discovered information indicating that the child is an Indian child; [¶] (3) The child . . . gives the court reason to know he or she is an Indian child; [¶] (4) The court is informed that the domicile or residence of the child, [or] the child’s parent . . . is on a reservation or in an Alaska Native village; [¶] (5) The court is informed that the child is or has been a ward of a Tribal court; or [¶] (6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe.” (
Effective January 1, 2019, Assembly Bill No. 3176 (2017-2018 Reg. Sess.) amended the definition in
Once DCFS or the juvenile court has a reason to know an Indian child is involved, notice pursuant to ICWA must be sent to the pertinent tribe(s) via registered or certified mail. (
It is this “notice requirement, which . . . enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding.” (Isaiah W., supra, 1 Cal.5th at p. 5.) Thus, the juvenile court “has a responsibility to ascertain that [DCFS] has conducted an adequate investigation and cannot simply sign off on the notice as legally adequate without doing so.” (In re K.R. (2018) 20 Cal.App.5th 701, 709.)
C. Analysis8
As the facts before us are not disputed, we independently determine whether ICWA’s requirements were met. To do so, we first must determine whether—as a result of their initial inquiry— DCFS or the juvenile court had “reason to believe” the children were Indian children, requiring further inquiry of possible Indian heritage. If further inquiry was required, we then determine whether DCFS and the juvenile court had “reason to know” the children were Indian children, necessitating formal notice to pertinent tribes. We review the record for substantial evidence in support of the juvenile court’s finding that ICWA did not apply.
1. Initial Inquiry
DCFS argues Mother’s statement that she “may” have Indian ancestry, at most, suggested a mere possibility of Indian ancestry. DCFS contends the duty of further inquiry was not triggered.
We disagree. Based on representations by Mother that she may have Indian heritage from a tribe in New Mexico, the court correctly ordered DCFS to further inquire into Mother’s claim and investigate the allegation.
This is similar to the circumstances in D.S., where after reviewing the ICWA-020 form submitted by D.S.’s aunt, stating she may have Indian ancestry with the Blackfoot tribe in Delaware, the court ordered DCFS to further inquire. (D.S., supra, 46 Cal.App.5th at pp. 1046, 1054.) Based on representations that D.S.’s father may have Indian heritage, the court ordered DCFS “to investigate the allegation.” (
While Mother in the case before us did not identify a specific tribe, she did specify it was a tribe from New Mexico, and similar to the aunt’s ICWA-020 form in D.S., stated she may have Indian ancestry in her respective ICWA-020. We find this information is specific enough to trigger the duty of further inquiry. The initial inquiry conducted by the juvenile court here created a “reason to believe” the children possibly are Indian children. This explains why the juvenile court ordered DCFS to “look into it” and start an investigation, similar to what the juvenile court did in D.S. (D.S., supra, 46 Cal.App.5th at p. 1046.)
2. Duty of Further Inquiry
DCFS proceeded to conduct a further inquiry.
As discussed ante, pursuant to
Here, DCFS interviewed Mother, maternal grandfather, maternal grandmother, and
DCFS learned that maternal grandfather’s family “believed they were of [N]ative American descent,” possibly from New York, “but that it was never proven.” DCFS also learned that MGG-GM, born in New Mexico, was “part [N]ative American.”
DCFS contacted the Bureau of Indian Affairs (in accordance with
DCFS’s repeated efforts to gather information concerning the children’s maternal ancestry constitutes substantial evidence that DCFS met its duty of further inquiry.
3. Duty to Provide Formal ICWA Notice
This is the only phase where Mother argues the juvenile court erred. Note DCFS is “not required to ‘cast about’ for information or pursue unproductive investigative leads.” (D.S., supra, 46 Cal.App.5th at p. 1053.) “There are two separate ICWA requirements which are sometimes conflated: the obligation to give notice to a tribe, and the obligation to conduct further inquiry to determine whether notice is necessary. Notice to a tribe is required, under federal and state law, when the court knows or has reason to know the child is an Indian child.” (A.M., supra, 47 Cal.App.5th at p. 315.)
Here, we conclude the juvenile court and DCFS’s further investigation did not yield results that pushed their reason to believe the children are Indian children, to reason to know the children are Indian children. The juvenile court may find ICWA does not apply following “proper and adequate
We believe that is exactly what happened here. DCFS conducted its further inquiry and apprised the court of its progress. DCFS detailed the information gathered from its interviews with Mother and maternal relatives in the reports and Last Minute Informations filed with the court. DCFS additionally provided the court with copies of the responses it received from 24 tribes indicating the children are not Indian children. Having learned of no new information—either from Mother, her relatives, or the relevant tribes—that would give DCFS a “reason to know” the children are Indian children, DCFS informed the juvenile court during adjudication that it had been “over 60 days” since it received letters from the tribes indicating the children are not members. At most, after further inquiry, the court was left with the same nonspecific information it was provided at the initial appearance—only a suggestion that the children may have Indian ancestry.
A suggestion of Indian ancestry is not sufficient under ICWA or related California law to trigger the notice requirement. (Austin J., supra, 47 Cal.App.5th at pp. 886–887; A.M., supra, 47 Cal.App.5th at p. 322.) As our colleagues from Division One explained on similar facts in Austin J.: “At most, these statements merely suggest the possibility 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 statements, therefore, do not constitute information that a child ‘is an Indian child’ or information indicating that the child is an Indian child, as is now required under both California and federal law.” (Austin J., at p. 887, italics added.)
The reviewing court in A.M. similarly found: “[T]he only specific information Mother provided was a statement that she was told and believed that she may have Indian ancestry with the Blackfeet and Cherokee tribes but was not registered.” (A.M., supra, 47 Cal.App.5th at p. 322.) It further found: “At most, Mother had provided information indicating she may have Indian heritage. Although it would follow that the children might also have some Indian heritage, the information Mother provided . . . did not rise to the level of ‘information indicating that the child[ren] [are] . . . Indian child[ren].’” (
Based on the foregoing, because DCFS was not required to provide formal notice to the pertinent tribes, we do not reach Mother’s argument that the ICWA notices may have lacked necessary information.
DISPOSITION
The October 16, 2019 findings and orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
Notes
a) “I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe.”
b) “The child is or may be a member of, or eligible for membership in, a federally recognized Indian tribe.”
c) “I have no Indian ancestry as far as I know.”
d) “One or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe.”
Mother left these checkboxes blank.