In re J.L. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. K.B., Defendant and Appellant.
No. D070826
Fourth Dist., Div. One
Apr. 5, 2017
9 Cal.App.5th 913
Steven B. Duke, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Mica Llerandi for Minors.
AARON, J.—
I.
INTRODUCTION
K.B. appeals a judgment terminating her parental rights to her two children, Jc.L. and Ja.L. K.B. contends that the juvenile court erred in terminating her parental rights because the court failed to comply with “the inquiry/noticе requirements” of the Indian Child Welfare Act of 1978 (ICWA) (
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Overview of the dependency2
In October 2014, when Jc.L. was four years old and Ja.L. was one year old, the San Diego County Health and Human Services Agency (Agency) filed dependency petitions pertaining to each child. At the detention hearing, the juvenile court declared the children dependents of the court and removed them from K.B.‘s custody. At the conclusion of a contested 12-month review
B. Facts related to K.B.‘S ICWA claim
On October 21, 2014, the day of the detention hearing, K.B. signed a form entitled “Parental Notification of Indian Status.” K.B. wrote the words “not sure” next to the following three statements on the form: “I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe“; “I may have Indian ancestry“; “One or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe.”3
On that same day, the children‘s father signed a “Parental Notification of Indian Status” form stating that he had no American Indian ancestry as far as he knew.
At the detention hearing, K.B.‘s counsel stated the following: “[K.B.] has submitted a form indicating that she is not sure if she has any American Indian heritage. I believe in the previous dependency there was a finding that ICWA did not apply. However, mother has indicated that she‘s repeatedly been told by family members that she might have some American Indian heritage. She does not have any more specific information to provide, but she indicates that she will research that information to the best of her ability and that if she is able to obtain any further information, that she needs to notify the social worker and the court immediately so that we can follow up on that.”
Later during the same hearing, the following colloquy occurred:
“The court: . . . [T]o clarify, the mother has received new information, but is it not available to her at this time [sic] to identify a federally recognized tribe?
“[K.B.‘s counsel]: It doesn‘t. And she doesn‘t know what relative that would be through. So it was apparently a very recent and somewhat general or vague reference that caused her to be interested in pursuing further information, but she‘s not been able to do so yet.”
“[K.B.]: I will.
“The court: We will have to reassess whether or not [ICWA] applies based on that.
“[K.B.]: Okay.”
At the January 14, 2015 disposition hearing, the court found that “[n]otice pursuant to the [ICWA] is not required because the Court knows the child is not an Indian child.” In its six-month and 12-month status reports, and in its section 366.26 report, the Agency noted that the trial court had found that ICWA did not apply on October 21, 2014.
At the seсtion 366.26 hearing at which the court terminated K.B.‘s parental rights, the court found, with respect to both children, “[n]otice pursuant to the [ICWA] is not required because the Court has reason to know the child is not an Indian child. Reasonable inquiry has been made to determine whether or not the child is or may be an Indian child.”
III.
DISCUSSION
The trial court properly determined that the Agency did not violate ICWA‘s inquiry and notice provisions
K.B. contends that the trial court committed reversible error in terminating her parental rights without requiring the Agency to comply with the inquiry and notice requirements of ICWA.4 We assume for purposes of this decision
A. Governing law
1. Overview of the relevant statutory scheme
“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 separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’ [Citation.] ICWA declared that ‘it is the policy of this Nation 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.] ¶ The minimum standards established by ICWA include the requirement of notice to Indian tribes in any involuntary proceeding in state court to place a child in foster care or to terminаte parental rights ‘where the court knows or has reason to know that an Indian child is involved.‘” (Isaiah W., supra, 1 Cal.5th at pp. 7-8, italics added.) Further, “courts and county welfare departments ‘have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any judicial wardship proceedings if the child is at risk of entering foster care or is in foster care.‘” (Id. at p. 9, italics added.)
In 2006, our state Legislature “incorporated ICWA‘s requirements into California statutory law.” (In re W.B. (2012) 55 Cal.4th 30, 52.) “ICWA‘s many procedural requirements for juvenile dependency and delinquency cases are found in sections 224 through 224.6.” (Ibid.)
Section 224.3 outlines the scope of a trial court‘s and a county welfare department‘s6 duty of inquiry under ICWA.
“The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following:
“(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 provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child‘s biological parents, grandparents, or great-grandparents are or were a member of a tribe.
“(2) The residence or domicile of the child, the child‘s parents, or Indian custodian is in a predominantly Indian community.
“(3) The child or the child‘s family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service.”7
Section 224.2 outlines specific notice requirements that apply “[i]f the court, a social worker, or probation officer knows or has reason tо know that an Indian child is involved.”
3. Relevant case law
In In re Hunter W. (2011) 200 Cal.App.4th 1454, 1465 (Hunter W.), a mother in a dependency proceeding contended that the trial court erred in “finding that the ICWA did not apply . . . and by not requiring [a county welfare department] to make an adequate inquiry into Hunter‘s [the dependent child] possible Indian ancestry.” The Hunter W. court described the facts pertaining to mother‘s ICWA claim as follows: “On July 1, 2009, mother signed [a] form indicating that she may have Indian ancestry through her father, William B., and her paternal grandmother, Annie Mae B. Mother indicated that her paternal grandmother died in Chicago, Illinois, and that her father was born, and currently resides, in Chicago. She did not provide any contact information for her father. On July 2, 2009, the court addressed mother‘s claim of Indian heritage. Mother stated that she was not registered with any tribe. She last had contact with her father ‘probably a year ago’ and was not sure that he was her biological father. She did not know his address, phone number, or date of birth.” (Hunter W., supra, at p. 1467.)
In In re O.K. (2003) 106 Cal.App.4th 152, 155 (O.K.), at a section 366.26 hearing, the juvenile court stated, “There are references concerning the [ICWA], but there doesn‘t appear that there is a parent who is either enrolled or eligible for enrollment . . . .” The court then inquired, “‘[I]s that correct?‘” (O.K., supra, at p. 155.) On appeal, the O.K. court noted that the dependent children‘s grandmother, who was present at the hearing, replied that the children‘s father might have American Indian ancestry: “The paternal grandmother, who was present at the hearing, replied, ‘I‘m not understanding that too well, but the boy the young man may have Indian in him. I don‘t know my family history that much, but where were [sic] from it is that section so I don‘t know about checking that.’ The paternal grandmother said she was not an enrolled member, she did not know whether she or the father was eligible for membership and she was not able to identify a particular tribe or nation.” (Ibid.)
Notwithstanding these statements, the juvenile court found that “there was no reason to believe the children were Indian children.” (O.K., supra, 106 Cal.App.4th at p. 155.)
On appeal, “[a]ppellants claim[ed] that the information provided by the paternal grandmother was sufficient to give the juvenile court reason to
In In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1516 (Jeremiah G.), the court reaffirmed the holding in O.K., stating: “We publish this opinion to emphasize, again, what we thought that our court made clear in . . . O.K.[, supra, 106 Cal.App.4th 152]. 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 suggеst the minor has Indian ancestry.”
The Jeremiah G. court stated further that a father‘s “assertion that there was a ‘possibility’ the great-grandfather of the minor‘s father ‘was Indian,’ without more, was too vague and speculative to require ICWA notice to the Bureau of Indian Affairs.” (Jeremiah G., supra, 172 Cal.App.4th at p. 1516.)
In In re J.D. (2010) 189 Cal.App.4th 118, 125, the dependent children‘s paternal grandmother told a child welfare agency, “I can‘t say what tribe it is and I don‘t have any living relatives to provide any additional information. I was a little kid when my grandmother told me about our Native American ancestry but I just don‘t know which tribe it was.” Notwithstanding this stаtement, the trial court found that “it had no reason to know that [the dependent child] would fall under ICWA.” (Id. at p. 123.) In affirming the trial court, the J.D. court concluded that the information from the grandmother was “too vague, attenuated and speculative to give the dependency court any reason to believe the children might be Indian children.” (Id. at p. 125.)
B. Application
In this case, K.B. indicated on a “Parental Notification of Indian Status” form that she was “not sure” whether she had Indian ancestry, and her
Thus, K.B. did not know whether she had American Indian heritage of any kind, did not know the names of the relatives who might have had such heritage, and had heard only a “general or vague” reference to possible heritage. Such “‘family lore‘” (Hunter W., supra, 200 Cal.App.4th at p. 1469) of possible American Indian heritage does not trigger a social worker‘s duty to conduct a “further inquiry” (
In her opening brief, K.B. relies principally on this court‘s decision in In re Damian C. (2009) 178 Cal.App.4th 192 (Damian C.). In Damian C., this court described the possible American Indian ancestry of the family as follows: “[Mother] submitted a ‘Parental Notification of Indian Status,’ . . . form . . . stating she may have Indian ancestry as follows: ‘Pasqua Yaqui—enrollment is currently closed’ and ‘M[aternal] G[rand] F[ather] Felipe Manuel C[.] is descended from tribe.’ [¶] The social worker reported the Agency‘s ICWA noticing specialist subsequently interviewed the maternal grandfather, Manuel C., and asked the same questions the social wоrker had asked earlier.11 Manuel C. answered ‘no’ to each question. He stated he had heard his father, Felipe C., was either Yaqui or Navajo Indian, but later was informed the family did not have Indian heritage. He said he did
In vacating the trial court‘s determination that ICWA did not apply, the Damian C. court concluded that the county welfare department had reason to know that the dependent minor was an American Indian child. (Damian C., supra, 178 Cal.App.4th at p. 199.) The Damian C. court reasoned that the minor‘s mother had idеntified both a specific relative and a specific tribe through which such ancestry might flow, and the mother‘s grandfather stated that he had “heard his father . . . was Yaqui or Navajo.” (Ibid.) In contrast, as noted previously, K.B. was unable to identify a specific tribe or any relative through which American Indian ancestry in her family might flow, and there is no other evidence in the record of such ancestry. In short, the record of Indian ancestry in this case is much closer to that in Hunter W. than it is to that in Damian C.
K.B. also argues that the Agency “abdicate[d] its responsibility by placing the burden on [her] to provide further information.” We disagree. For the reasons discussed above, the Agency‘s duty to pursue “further inquiry” under
Finally, in her reply brief, K.B. cites In re Andrew S. (2016) 2 Cal.App.5th 536 (Andrew S.) as supporting her contention that the
In his opening brief on appeal, the presumed father “argued his statement to the social worker that he may have Indian ancestry was sufficient to trigger ICWA‘s notice requirement.” (Andrew S., supra, 2 Cal.App.5th at p. 546.) However, the presumed father later withdrew this claim “in light of the parties’ agreement as to [a different] error in the juvenile court‘s jurisdiction finding and removal order.” (Id. at p. 547.) The Andrew S. court accepted the presumed father‘s withdrawal of the ICWA notice claim “but direct[ed] the juvenile court on remand to reconsider its decision that ICWA does not apply in this case.” (Id. at p. 547.) The Andrew S. court further stated: “[T]he burden of developing . . . information [pertaining to the presumed father‘s American Indian ancestry] is not properly placed on [the presumed father] alone.
To the extent that the Andrew S. court intended to suggest that the father‘s statement that he “might have Indian ancestry on his father‘s side” (Andrew S., supra, 2 Cal.App.5th at p. 540) was sufficient to trigger the county welfare
Accordingly, we conclude that the trial court properly determined that the Agency did not violate ICWA‘s inquiry and nоtice provisions.
IV.
DISPOSITION
The judgment terminating K.B.‘s parental rights is affirmed.
Huffman, Acting P. J., and O‘Rourke, J., concurred.