L. A. Cnty. Dep't of Children & Family Servs. v. M.B. (In re Dominic F.)

• Decision Date: 30 September 2020
• Docket Number: B302482
• Citation: 269 Cal.Rptr.3d 535,55 Cal.App.5th 558
• Court: California Court of Appeals Court of Appeals
• Parties: 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.

55 Cal.App.5th 558

269 Cal.Rptr.3d 535

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

Court of Appeal, Second District, Division 8, California.

Filed September 30, 2020

Cristina Gabrielidis, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.

STRATTON, J.

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) ( 25 U.S.C. § 1901 et seq. ) and related California law ( Welf. & Inst. Code,¹ § 224 et seq. ).

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.

On June 17, 2019, DCFS filed a petition on behalf of minors D.F., G.F., and B.F., pursuant to section 300, subdivisions (a) and (b)(1).

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 ICWA notices³ via certified mail to 21 tribes in New Mexico, nine tribes in New York, and the Bureau of Indian Affairs.

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 section 300, subdivision (b) and dismissed the remaining allegations.

The minors were declared dependent children of the court under section 300, subdivision (b); were ordered removed from the home, custody, and care of Mother and Father; and were placed with DCFS. Mother and Father were allowed monitored visitation, and DCFS was given discretion to liberalize.

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 from determining whether proper notice under ICWA was given. She contends the court thus erred by concluding ICWA did not apply as it had "not review[ed] the content of the notices" and "had insufficient information to reach that conclusion."

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, 259 Cal.Rptr.3d 903 ( D.S. ); accord, In re A.M. (2020) 47 Cal.App.5th 303, 314, 260 Cal.Rptr.3d 412 ( 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, 260 Cal.Rptr.3d 412 ; accord, In re Austin J. (2020) 47 Cal.App.5th 870, 885, 261 Cal.Rptr.3d 297 ( 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, 261 Cal.Rptr.3d 297.)

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, 261 Cal.Rptr.3d 297.) 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." ( 25 U.S.C. § 1903(4) ; § 224.1, subds. (a) and (b) [incorporating federal definitions].)

The juvenile court and DCFS have "an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 ... may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W . (2016) 1 Cal.5th 1, 9, 11–12, 203 Cal.Rptr.3d 633, 373 P.3d 444 ( Isaiah W. ).) This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice. Although we discuss all three phases, it is only the last phase, the duty to provide formal ICWA notice, that is at issue here.

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. (§ 224.2, subd. (a).) DCFS's initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (Id. , subd. (b).) Similarly, the juvenile court must inquire at each parent's first appearance whether he or she "knows or has reason to know that the child is an Indian child." (Id. , subd. (c).). The juvenile court must also require each parent to complete Judicial Council form ICWA-020, Parental Notification of Indian Status. ( Cal. Rules of Court,⁵ rule 5.481(a)(2)(C).) The parties are instructed to inform the court "if they subsequently receive information that provides reason to know the child is an Indian child." ( 25 C.F.R. § 23.107(a) ; § 224.2, subd. (c).)

2. Duty of Further Inquiry

As discussed in two recent cases, Austin J. , supra , 47 Cal.App.5th at pages 883–884, 261 Cal.Rptr.3d 297 and D.S. , supra , 46 Cal.App.5th at...