In re S.S. CA2/3 ( 2022 )

Filed 6/7/22 In re S.S. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re S.S., a Person Coming B314691
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 19CCJP07259A
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Tracy J.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Daniel Zeke Zeidler, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Sally Son, Deputy County Counsel,
for Plaintiff and Respondent.
_________________________
Mother Tracy J. appeals from the juvenile court’s order
terminating her parental rights to her daughter S.S. (born
November 2019). Mother contends the order must be reversed
because the Los Angeles County Department of Children and
Family Services (Department) failed to comply with its duty of
initial inquiry under state law (Welf. & Inst. Code, § 224 et seq.)
implementing the Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.) when it did not ask certain extended
family members if the child had Indian heritage.1 We conclude
substantial evidence supports the juvenile court’s finding that
ICWA does not apply and affirm.
BACKGROUND
1. Proceedings leading to termination of parental rights
In November 2019, shortly after her birth, the Department
detained S.S. due to immediate concerns about mother’s mental
health stability, and her unresolved substance abuse issues.
In an earlier dependency case in San Bernardino County, mother
also had failed to reunify with S.S.’s older full- or half-sibling
J.S., who had been removed from her care for similar reasons.
Tina W., mother’s former foster mother and apparently mother’s
aunt (maternal great aunt),2 was granted legal guardianship
of J.S.
1 Undesignated statutory references are to the Welfare
and Institutions Code. Because ICWA uses the term “Indian,”
we do the same for consistency, although we recognize other
terms are preferred. (In re Benjamin M. (2021) 70 Cal.App.5th
735, 739, fn. 1 (Benjamin M.).)
2 Mother referred to Tina W. as her children’s maternal
grandmother. As we discuss, the Department and its
2
During its initial investigation, a Department social worker
interviewed Tina W. and maternal aunt Tashae W., who lived
in Texas. Both had concerns about mother’s mental health.
Maternal grandmother, mother’s biological mother, was
diagnosed with paranoid schizophrenia—she was unable to
care for her children. As a result, mother was “in the system”
at a young age.
On November 12, 2019, the Department filed an initial
dependency petition on behalf of S.S. followed by a first amended
petition on December 18, 2019, after mother named Peter S.
as S.S.’s father. As to mother’s conduct, the first amended
petition alleges her history of illicit drug abuse, current
methamphetamine use, and her mental and emotional problems
—including delusional behavior and a diagnosis of bipolar
disorder—rendered her incapable of providing regular care
for and endangered S.S. The petition also alleges mother and
Peter S.’s failure to reunify with S.S.’s sibling, J.S., placed S.S.
at risk of harm.3 On November 13, 2019, the court removed
S.S.—who remained in foster care—from parents and ordered
monitored visitation.
San Bernardino counterpart referred to her as the maternal
great aunt.
3 The juvenile court found Peter S. was the alleged father.
In conversations with social workers, mother referred to Peter S.
as S.S.’s father, her own father, and her grandfather. Mother
generally was incoherent during those discussions. Peter S.
denied paternity and did not participate in the dependency
proceedings. He is not a party to this appeal.
3
The Department’s December 16, 2019 jurisdiction/
disposition report described the dependency case involving
J.S. and attached a copy of the September 2013 jurisdiction/
disposition report and April 2015 section 366.26 report from
that case. Peter S. is named as J.S.’s alleged father. The
San Bernardino County Children and Family Services agency
(SBCFS) refers to Tina W. as the maternal great aunt in its
section 366.26 report, as does the Department in its reports.
In December 2019, a dependency investigator interviewed
mother in person about the petition’s allegations. Mother was
incoherent and “displayed disorganized thoughts,” including
delusions about being related to royalty and celebrities. The
investigator also spoke by telephone with Tina W., Tashae W.,
and Latia T.
Tashae W. wanted to care for S.S. She traveled to
California from Texas for visits with her niece.
On January 29, 2020, the juvenile court sustained the
first amended petition, amended by interlineation, under
section 300, subdivisions (b) and (j), as to mother and Peter S.
and declared S.S. a dependent of the court. The court
removed S.S. from both parents. The court also denied mother
reunification services based on her failure to make reasonable
efforts to resolve the issues that led to J.S.’s removal and the
termination of her reunification services in his case. The court
ordered the Department to initiate an ICPC 4 request with
4 ICPC stands for the Interstate Compact on the Placement
of Children.
4
the State of Texas to assess Tashae W. for S.S.’s placement.
In December 2020, S.S. was placed with Tashae W. in Texas.5
On July 12, 2021, the court convened a section 366.26
hearing. Mother appeared by telephone. The court found
S.S. was adoptable and no exception to adoption applied, and
terminated parental rights. The court ordered the Department
to initiate an adoptive home study for Tashae W. in Texas.
2. Facts relating to ICWA
On November 7, 2019, a Department social worker signed
an Indian Child Inquiry Attachment form, checking the box,
“The child has no known Indian ancestry.”6 The Department’s
November 12, 2019 detention report also states ICWA does
not apply.
On November 13, 2019, the day of the detention hearing,
mother signed under penalty of perjury and filed a Parental
Notification of Indian Status form (ICWA-020) and checked the
box, “I have no Indian ancestry as far as I know.” The juvenile
court acknowledged mother—who was present at the hearing—
had filled out the ICWA-020 form, indicating she had no Indian
ancestry to her knowledge. Mother’s sister, maternal aunt
Latia T., also attended the hearing. The court asked her if she
knew of “any American Indian blood or ancestry,” including
United States or Canadian tribes. After she responded, “No,”
5 S.S.’s foster caregiver also had wanted to adopt her.
6 The social worker, however, did not indicate whether
she had made an Indian child inquiry—neither the box “made”
nor “not made” following “Indian child inquiry” is checked.
5
the court found it had no reason to know or to believe S.S. is
an Indian child, and ICWA does not apply.
The court’s November 13, 2019 minute order states, “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 BIA. Parents are to keep the Department, their
Attorney and the Court aware of any new information relating
to possible ICWA status. ICWA-020 . . . is signed and filed.”
The Department’s December 2019 jurisdiction/disposition
report states that, on November 13, 2019, the court found no
reason to know S.S. is an Indian child, as defined under ICWA.
The attached 2013 jurisdiction report relating to S.S.’s sibling
or half-sibling J.S. states ICWA “does or may apply” and lists
“Creole” as the possible tribe. The 2015 section 366.26 report
for J.S. states ICWA “does not apply.”
The Department repeated the juvenile court’s
November 13, 2019 finding that it had no reason to know S.S.
is an Indian child in a supplemental jurisdiction/disposition
report and in its March 2020 section 366.26 report. The juvenile
court did not revisit ICWA after making its November 13, 2019
finding. At the July 2021 section 366.26 hearing, the juvenile
court clarified it would be “considering the entire contents of
the court file.”
DISCUSSION
Mother contends the order terminating her parental rights
must be conditionally reversed because the Department did
not question her relatives, with whom it had contact, about
S.S.’s possible Indian ancestry as required under section 224.2,
subdivision (b). The Department, in turn, contends mother failed
to show any purported inquiry error was prejudicial, as further
6
inquiry of additional relatives would not have “borne any
meaningful information as to S.S.’s Indian ancestry.”
1. Applicable law and standard of review
Congress enacted ICWA “ ‘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.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 8; see 25 U.S.C. § 1902.)
Both ICWA and state law 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, subd. (a)
[adopting federal definition].)
“Because it typically is not self-evident whether a child
is an Indian child, both federal and state law mandate certain
inquiries to be made in each case. These requirements are
sometimes collectively referred to as the duty of initial inquiry.”
(Benjamin M., supra, 70 Cal.App.5th at p. 741.) Federal
regulations implementing ICWA require courts to ask
participants in a dependency case whether they know or
have reason to know the child is an Indian child and to instruct
the parties to inform the court “ ‘if they subsequently receive
information that provides reason to know the child is an
Indian child.’ ” (Ibid.)
California law, however, “more broadly imposes” on
the Department and the juvenile court, “(but not parents),
an ‘affirmative and continuing duty to inquire’ whether a child
7
in the dependency proceeding ‘is, or may be, an Indian child.’ ”
(Benjamin M., supra, 70 Cal.App.5th at pp. 741–742, quoting
§ 224.2, subd. (a).) That duty to inquire “begins with the initial
contact . . . and obligates the juvenile court and child protective
agencies to ask all relevant involved individuals whether the
child may be an Indian child.” (In re T.G. (2020) 58 Cal.App.5th
275, 290, citing § 224.2, subds. (a)–(c).)
Under the statute, when the Department takes a child into
its temporary custody, its duty of initial inquiry “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.” (§ 224.2,
subd. (b); Benjamin M., supra, 70 Cal.App.5th at p. 742; see also
In re Darian R. (2022) 75 Cal.App.5th 502, 507.)7 The juvenile
court, in turn, at a party’s first appearance, must ask “each
participant present in the hearing whether the participant
knows or has reason to know that the child is an Indian child”
(§ 224.2, subd. (c)) and require each party to complete
an ICWA-020 form (Cal. Rules of Court, 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) (2020);
§ 224.2, subd. (c).)” (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
7 Extended family members include adults who are the
child’s “grandparent, aunt or uncle, brother or sister, brother-
in-law or sister-in-law, niece or nephew, first or second cousin,
or stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c) [adopting
federal definition].)
8
If that initial inquiry gives the juvenile court or
Department a “reason to believe that an Indian child is involved,”
then their duty to “make further inquiry regarding the possible
Indian status of the child” is triggered. (§ 224.2, subd. (e);
Benjamin M., supra, 70 Cal.App.5th at p. 742.) And, once
there is a “reason to know” an Indian child is involved, formal
notice under ICWA must be given to the child’s “parents or
legal guardian, Indian custodian, if any, and the child’s tribe.”
(§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(c)(1); 25 U.S.C.
§ 1912(a).)8
“ ‘ “[W]e 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.” ’ ” (In re Josiah T. (2021) 71 Cal.App.5th
388, 401 (Josiah T.).)
2. Substantial evidence supports the court’s finding
Mother challenges the sufficiency of the Department’s
initial inquiry under section 224.2, subdivision (b) as to maternal
extended family members only. She concedes ICWA did not
apply to Peter S., who was only the alleged father and denied
paternity, and the Department thus was not obligated to question
him or his relatives about S.S.’s Indian status. (See 25 U.S.C.
§ 1903(9) [under ICWA “ ‘parent’ . . . does not include the unwed
8 Neither the duty of further inquiry nor formal ICWA notice
requirements are at issue.
9
father where paternity has not been acknowledged or
established”]; In re Daniel M. (2003) 110 Cal.App.4th 703,
708–709 [alleged father who had not established he was
a parent under ICWA had no standing to challenge alleged
ICWA notice violations]; In re D.A. (2012) 204 Cal.App.4th 811,
826–827 [name on birth certificate alone does not establish
voluntary declaration of paternity].)
Rather—citing In re Y.W. (2021) 70 Cal.App.5th 542, 554
(Y.W.), Benjamin M., supra, 70 Cal.App.5th at p. 744, and
Josiah T., supra, 71 Cal.App.5th at p. 403—mother argues
that, at a minimum, to fulfill its duty of initial inquiry, the
Department was required to ask maternal aunt/prospective
adoptive parent Tashae W. and maternal great aunt Tina W.
about S.S.’s Indian status. Mother argues this is especially true
given her significant mental health issues.
As mother notes, the Department interviewed both
Tashae W. and Tina W., but nothing in the record indicates
a social worker questioned either of them about possible Indian
ancestry. The Department’s discharge of its initial duty of
inquiry may have been imperfect in this regard, but we cannot
say, on this record, that it was so inadequate as to invalidate
the juvenile court’s finding ICWA did not apply. Rather, the
evidence uncovered by the Department during its initial inquiry
was sufficient to support the juvenile court’s finding that it
had no reason to know S.S. is an Indian child.
First, mother denied Indian ancestry in her signed
ICWA-020 form, and the juvenile court acknowledged that denial
on the record in mother’s and her counsel’s presence. And,
although mother appears to have serious mental health issues,
her sister Latia T.—an extended family member under ICWA—
10
confirmed on the record that the family had no “American Indian
blood or ancestry” to her knowledge. True, there is no record
that the Department itself asked Latia about S.S.’s Indian status,
but there would be no reason for it to do so given her unequivocal
denial to the court.
Second, the Department had information from its
counterpart in San Bernardino—included in its own jurisdiction/
disposition report to the court here—that ICWA did not apply
to S.S.’s maternal half-sibling, or possibly full sibling, J.S.
The court’s order finding ICWA did not apply in that case is
not part of the record, but the Department and the court here
reasonably could infer the court in fact made that finding.
SBCFS’s jurisdiction/disposition report reveals that, at the
beginning of J.S.’s case, there was some indication he might have
a connection to the Creole tribe. SBCFS apparently investigated
that connection as it recommended the court find: (1) J.S.
“may come under the provisions of [ICWA],” and (2) “Noticing
requirements under ICWA have been initiated.” By the time
it prepared its section 366.26 report—about 18 months later—
SBCFS had concluded ICWA in fact did not apply to J.S.
Finally, the juvenile court in J.S.’s case ultimately granted
Tina W. legal guardianship of J.S.—as SBCFS had recommended
in that same report.
J.S. and S.S. undisputedly share the same ancestry,
at least through mother. As only mother’s ancestry is at issue,
if ICWA did not apply to J.S., it would not apply to S.S. Mother
does not dispute that ICWA did not apply to J.S.,9 and there is
9 Indeed, mother does not mention this earlier finding in her
appellate briefing.
11
no evidence in the record that she, or anyone else, challenged
Tina W.’s legal guardianship of J.S. under ICWA.
In the cases on which mother relies, in contrast, there was
some uncertainty or unknown facet about the parent’s ancestry
that extended family members presumably could clear up. In
Y.W., the mother had been adopted as a toddler, but the social
worker did not follow up on a lead to contact mother’s biological
parents. (Y.W., supra, 70 Cal.App.5th at pp. 552–553). In
Benjamin M., the father had never appeared in court, and
thus had never been asked about his Indian status, but the
social worker did not ask the father’s extended family members
about his possible Indian ancestry. (Benjamin M., supra,
70 Cal.App.5th at pp. 744–745.) Similarly, in Josiah T.,
the Department did not know whether father (who did not
participate) had any Indian ancestry, yet it did not ask available
paternal relatives about Indian ancestry until 18 months to
two years after filing its petition, and those relatives disclosed
possible Cherokee and Choctaw heritage. (Josiah T., supra,
71 Cal.App.5th at pp. 393–394, 397–401, 403.)
Nevertheless, mother argues that, because the Department
did not inquire of all available maternal extended relatives, we
must conclude substantial evidence does not support the court’s
finding ICWA did not apply. In her reply, mother relies on
a line of cases, in addition to those cited above, concluding
the Department erred by failing to inquire of extended family
members as required under section 224.2, subdivision (b), despite
parents’ denials of Indian ancestry. (E.g., In re H.V. (2022)
75 Cal.App.5th 433, 436, 438 [Department failed to discharge
its “first-step inquiry duty,” even though mother denied Indian
ancestry, when it did not ask extended family members it had
12
contacted about child’s possible Indian ancestry]; In re Antonio R.
(2022) 76 Cal.App.5th 421, 431 [argument substantial evidence
supported no-ICWA finding in form of parents’ and paternal
great grandmother’s denials of Indian ancestry “ignores the
express obligation that section 224.2, subdivision (b), imposes
on the Department to inquire of a child’s extended family
members—regardless of whether the parents deny Indian
ancestry”].)
We do not agree that substantial evidence cannot support
a finding ICWA does not apply in every instance where the
Department has not asked every available extended family
member about Indian ancestry. Here, SBCFS’s earlier conclusion
that ICWA did not apply to J.S., combined with both mother’s
and her sister’s denials of Indian ancestry, is substantial
evidence to support the juvenile court’s finding that there
is no reason to know S.S. is an Indian child, and ICWA thus
does not apply. (See In re Charles W. (2021) 66 Cal.App.5th 483,
490–491 [substantial evidence supported finding ICWA did not
apply where a prior finding that ICWA did not apply to siblings
was undisputed, and parents denied Indian ancestry, even if
Department did not ask extended family members about Indian
ancestry].) In light of our conclusion, we need not address the
parties’ arguments concerning whether any purported inquiry
error was prejudicial.
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DISPOSITION
We affirm the juvenile court’s order terminating parental
rights.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
KIM, J. *
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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