In re E.S. CA3 ( 2022 )

Filed 2/14/22 In re E.S. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re E.S., a Person Coming Under the Juvenile Court C093770
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD240889)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
J.S.,
Defendant and Appellant.
J.S., the minor’s mother, appeals from the juvenile court’s orders exercising
dependency jurisdiction and removing the minor from her custody. She argues the
Sacramento County Department of Child, Family and Adult Services (the Department)
failed to comply with the requirements of the Indian Child Welfare Act (the ICWA)
because the Department did not adequately inquire into mother’s claim of possible
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Choctaw heritage. (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224.2.)1 We will
affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
We will limit our discussion of the facts to those relevant to the issue on appeal.
In October 2020, the Department filed a petition under section 300 alleging mother had a
substance abuse problem that made her incapable of providing care to the then 14-year-
old minor, who was particularly vulnerable because of a diagnosis of autism spectrum
disorder. The petition also noted the Department had conducted an inquiry and
determined minor’s parents, grandparents, or great-grandparents were members of the
Choctaw tribe.
The Department filed a detention report, which included information about
minor’s Native American heritage. Father denied any Native American heritage, but
mother stated she had Native American heritage with the Choctaw tribe through the
maternal grandmother. On October 8, 2020, mother told a social worker the maternal
aunt might have more information but then became upset with the social worker and did
not provide contact information for the aunt or any other Native American heritage
information. On October 9, 2020, a social worker left a message with the Bureau of
Indian Affairs (the BIA) to gain more information on minor’s heritage and notified the
BIA of the detention hearing.
On October 14, 2020, father filed an ICWA-020 form indicating he had no Native
American ancestry. The same day, mother filed an ICWA-020 form and checked the box
stating, “I am or may be a member of, or eligible for membership in, a federally
recognized Indian tribe.” Mother wrote “Choctaw heritage” in the blank under the box.
On the same day, the juvenile court held a detention hearing and asked about the Native
1 Undesignated statutory references are to the Welfare and Institutions Code.
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American heritage. Mother indicated she had two sisters who were enrolled in the
Choctaw tribe and the court found there was reason to believe minor was an Indian child.
The court directed the Department to “complete a due diligence regarding the Indian
ancestry.”
In November 2020, the Department filed a jurisdiction/disposition report. In the
report, mother stated she had Native American heritage with the Choctaw tribe through
the maternal grandmother, but mother had never enrolled with the tribe. Mother stated
the minor had Indian heritage, although neither her residence nor the minor’s residence
were on an Indian reservation or in a predominantly Indian community. The Department
reported it used the BIA to identify the names and contact information for relevant tribes,
and contacted those tribes. In particular, a social worker attempted to contact the
Choctaw tribe on October 29 and October 30, 2020, by phone, and spoke with the BIA,
which directed the social worker to call back on November 2 to obtain enrollment
information. Later in November 2020, the Department filed the first addendum to the
jurisdiction/disposition report.
In December 2020, the Department filed the second addendum to the
jurisdiction/disposition report. A social worker contacted the BIA on December 2 and 7,
and left voicemail messages both times. A social worker also left a voicemail message
with the Mississippi Band of Choctaw Indians on December 7.
On December 9, 2020, a social worker e-mailed the Choctaw Nation of Oklahoma
and provided minor’s name and date of birth, as well as the names of the maternal
grandparents, their roll numbers, and dates of birth. The next day, a representative from
the Choctaw Nation of Oklahoma replied by e-mail, saying she did not find minor or
mother “in their system.” She did find the maternal grandparents each had a “Certificate
of Degree of Indian Blood” indicating they were Choctaw, but they were never enrolled
as members of the tribe. The representative also indicated mother and minor “should be
eligible to enroll to the Choctaw Tribe and become members,” and she sent the social
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worker the required application for membership. The social worker forwarded the
information and application materials to mother.
On February 5, 2021, the juvenile court held the contested jurisdiction/disposition
hearing. At the hearing, the court observed that minor “may be eligible for enrollment
but is not currently enrolled. And because of that, the Choctaw tribe does not presently
recognize him as a member of the tribe. There apparently are forms that can be
completed to enroll [minor], but that has not been done yet. [¶] So as things currently
stand, I believe the record would reflect that presently [minor] is not a Native American
child as that term is defined by the federal statute. He may become one if the papers get
submitted and if the tribe accepts him for enrollment. But as we stand now, I believe the
Court could find that he’s not a Native American child such that we would not have to do
further inquiry or noticing unless new and different information came before the Court.”
The court encouraged mother to pursue enrollment in the tribe, and concluded “the
Department has made the appropriate inquiries. It has determined that [minor] is not
currently enrolled, nor are his parents enrolled. And the tribe has said that he is,
therefore, not a member of the tribe. So our finding today is based on that record and that
evidence. It is, as I said, subject to change, so we will revisit that if the circumstances
change.” The court ultimately sustained the allegations in the petition, removed mother’s
physical custody of minor, and ordered reunification services. Mother filed a notice of
appeal on March 15, 2021.
During briefing of this case, we granted a request to augment the record to include
documents filed in the underlying proceedings in August 2021. On August 26, 2021, the
Department filed an ICWA compliance report which indicates a social worker spoke by
telephone on August 25, 2021, with a representative at the Jena Band of Choctaw and
confirmed there was no record of minor or mother in their database, and that enrollment
was a prerequisite for membership in the tribe. Also on August 25, 2021, a social worker
attempted to contact the Mississippi Band of Choctaw by telephone, and left a voicemail
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asking for information about minor and mother. The Department noted it was trying to
obtain funding to pay for the mother’s birth certificate to include in minor’s tribal
enrollment application.
On August 31, 2021, the Department filed an addendum to the ICWA compliance
report. On July 26, 2021, a social worker spoke with a representative from the Choctaw
Nation of Oklahoma about mother’s tribal enrollment application. Mother had submitted
an incomplete application, and the representative told the social worker that mother’s and
minor’s birth certificates would need to be on file to enroll minor. The Department
requested and was waiting for minor’s birth certificate and funding to obtain mother’s
birth certificate.
A social worker had also attempted to contact the Mississippi Band of Choctaw on
August 12, 2021, by telephone. The social worker reported that the line rang without an
option to leave a voicemail. The Department found an enrollment checklist providing
another phone number for the tribe, so on August 19, 2021, the social worker attempted
to call both the original number and the alternative contact number. Both lines rang
without any option to leave a voicemail. The following week, a social worker called the
alternative contact number again and this time was able to leave a voicemail, but no
response had been received by the time of the report.
On August 31, 2021, the juvenile court determined the Department had complied
with its ICWA requirements and had “either had direct contact with the identified Tribes
or . . . received a written, a verbal or no response.” Thus, minor was not an Indian child
under the ICWA “absent new evidence or information.”
DISCUSSION
Mother contends the court’s ICWA findings must be reversed because the
Department failed to comply with the ICWA’s inquiry requirements. In particular,
mother argues the Department failed to contact minor’s extended family members and the
Jena Band of Choctaw Indians, and the court’s finding that mother and minor “were not
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members of the Choctaw tribe” was not supported by substantial evidence. We find no
merit in mother’s arguments.
“The juvenile court and social services agencies have an affirmative duty to
inquire at the outset of the proceedings whether a child who is subject to the proceedings
is, or may be, an Indian child. [Citation.]” (In re K.M. (2009) 172 Cal.App.4th 115, 118-
119; § 224.2, subd. (c).) The ICWA defines an “ ‘Indian child’ ” as a child who “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); In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).)
“[S]ection 224.2 creates three distinct duties regarding [the] ICWA in dependency
proceedings. First, from the Agency’s initial contact with a minor and his [or her] family,
the statute imposes a duty of inquiry to ask all involved persons whether the child may be
an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a ‘reason
to believe’ the child is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make that inquiry as soon as
practicable.’ (Id., subd. (e) . . . .) Third, if that further inquiry results in a reason to know
the child is an Indian child, then the formal notice requirements of section 224.3 apply.”
(D.S., supra, 46 Cal.App.5th at p. 1052, original italics.)
Once a court or social worker has a reason to believe a child is an Indian child,
section 224.2, subdivision (e) explains the “further inquiry regarding the possible Indian
status of the child” includes, but is not limited to: (1) interviewing the parents, Indian
custodian, and extended family members to gather the information required in paragraph
(5) of subdivision (a) of Section 224.3;2 (2) contacting the BIA and the State Department
2 Section 224.3, subdivision (a)(5)(A)-(C) includes the name, birth date and
birthplace of the Indian child, if known; the name of the Indian tribe; and the names and
other identifying information of the Indian child’s biological parents, grandparents, and
great-grandparents, if known.
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of Social Services for assistance in identifying the names and contact information of the
tribes in which the child may be a member, or eligible for membership in; and (3)
contacting the tribe or tribes and any other person that may reasonably be expected to
have information regarding the child’s membership, citizenship status, or eligibility.
(§ 224.2, subd. (e)(2)(A)-(C).)
“The juvenile court may alternatively make a finding that [the] ICWA does not
apply because the Agency’s further inquiry and due diligence was ‘proper and adequate’
but no ‘reason to know’ whether the child is an Indian child was discovered. (§ 224.2,
subds. (i)(2), (g).) Even if the court makes this finding, the Agency and the court have a
continuing duty under [the] ICWA, and the court ‘shall reverse its determination if it
subsequently receives information providing reason to believe that the child is an Indian
child and order the social worker or probation officer to conduct further inquiry.’
(§ 224.2, subd. (i)(2).)” (D.S., supra, 46 Cal.App.5th at p. 1050, original italics.)
Section 224.2, subdivision (d) provides that a juvenile court has reason to know a
child involved in a proceeding is an Indian child under any of the following
circumstances: “(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 informs the court that the child is an Indian
child[;] [¶] (2) The residence or domicile of the child, the child’s parents, or Indian
custodian is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in
the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs
the court that it has discovered information indicating that the child is an Indian child[;]
[¶] (4) The child who is the subject of the proceeding gives the court reason to know that
the child is an Indian child[;] [¶] (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
possess an identification card indicating membership or citizenship in an Indian tribe.”
(§ 224.2, subd. (d)(1)-(6).)
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We review the juvenile court’s ICWA findings for substantial evidence. (In re
Hunter W. (2011) 200 Cal.App.4th 1454, 1467; D.S., supra, 46 Cal.App.5th at p. 1051.)
Here, when the case first began, mother stated she had Choctaw ancestry through
the maternal grandmother, which the juvenile court confirmed at the detention hearing.
The court determined there was reason to believe the minor was an Indian child and
directed the Department to conduct an inquiry. Mother told the Department the maternal
aunt might have more information on her Native American heritage but did not give the
maternal aunt’s contact information to the Department. The Department then contacted
the BIA to obtain the relevant tribal contact information.
The Department contacted three separate Choctaw tribes. On December 10, 2020,
a social worker contacted the Choctaw Nation of Oklahoma via e-mail, and a
representative confirmed the maternal grandparents each had a certificate of degree of
Indian blood showing they were Choctaw, although they “were never enrolled as
[members] with the Tribe.” Thus, the representative explained, mother and minor
“should be eligible to enroll to the Choctaw Tribe and become members.” The
representative provided the application materials for enrollment to the social worker, who
forwarded them to mother. By July 2021, mother had attempted to apply for
membership, but was unsuccessful because she did not enclose her or minor’s birth
certificates, which were also required for the minor to obtain membership. The
Department was assisting mother in obtaining both birth certificates.
On December 7, 2020, a social worker left a voicemail message asking for
information from the Mississippi Band of Choctaw Indians. Later, on August 12, 2021, a
social worker attempted to call the band again, but the line rang without an option to
leave a voicemail. This happened again the following week, with two separate contact
numbers the social worker used. The week after that, the social worker was able to leave
a voicemail, but did not receive any response.
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The last tribe the Department contacted was the Jena Band of Choctaw. On
August 25, 2021, a social worker spoke with a representative, who confirmed neither
minor nor mother was in their tribal database. The representative also confirmed
enrollment was a prerequisite for membership in the tribe. Contrary to mother’s
argument, the Department thus did, in fact, contact the Jena Band of Choctaw. 3
Mother contends the Department’s inquiry efforts were inadequate because the
Department never contacted her extended family members, including the maternal
grandparents or aunts. The Department did attempt to get contact information for
mother’s relatives, but mother did not provide the information and she later stated she
had “no contact” with the maternal aunts. The Department was not required to “ ‘cast
about’ ” for information or pursue unproductive investigative leads. (D.S., supra, 46
Cal.App.5th at p. 1053; see In re S.B. (2005) 130 Cal.App.4th 1148, 1161; In re C.Y.
(2012) 208 Cal.App.4th 34, 42; In re A.M. (2020) 47 Cal.App.5th 303, 323.) And, in any
case, the Department was able to obtain the relevant information, including the maternal
grandparents’ names, birth dates, and enrollment numbers, on its own and confirmed that
information with the Choctaw Nation of Oklahoma. Because the point of contacting
extended family members is to gather such information, we see no prejudice in failing to
interview the maternal relatives. (§ 224.3, subd. (a)(5) [describing the relevant
information to obtain in a section 224.2, subdivision (e)(2)(A) inquiry].)
3 Mother’s opening brief was filed on June 14, 2021, before the Department spoke
with the tribal representative, and before the record was augmented with this information.
Even assuming the Department initially erred in failing to contact the Jena Band of
Choctaw, its later efforts established mother and minor’s lack of membership in that
tribe, and any error was thus harmless. (In re A.B. (2008) 164 Cal.App.4th 832, 843;
Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 867.) Likewise, the juvenile
court’s conclusion the Department had conducted a sufficient factual inquiry even absent
the contact was, at worst, premature, and not prejudicial.
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Finally, mother argues the juvenile court erred when it found she and minor were
not tribal members because the court misconstrued the social worker’s statements
regarding her e-mails with the Choctaw Nation of Oklahoma, which never provided
“confirmation in writing . . . indicating enrollment . . . was a prerequisite for membership
under tribal law.” Mother also appears to take issue with the fact that the Department did
not attach a copy of the e-mail it received from the Choctaw Nation of Oklahoma to the
report. First, however, “section 224.2, subdivision (e) does not require that the
Department report its inquiry efforts to the juvenile court in the form of a declaration or
in any particular form at all.” (In re M.W. (2020) 49 Cal.App.5th 1034, 1046.) The
Department may demonstrate its efforts and due diligence via reports, declaration, or
testimony. (Ibid.; see § 224.2, subd. (g).)
Second, the e-mail responses were sufficient evidence to conclude both that the
minor was not currently enrolled in the tribe and that enrollment in the tribe was required
for membership. In the initial e-mail, a tribal representative told the Department that
although minor was not in their system, he would “be eligible to enroll [in] the Choctaw
Tribe and become [a] member[ ].” To do so, he “would have to complete the attached
application and provide required documents.” These written statements indicate that
minor would need to complete an enrollment application before becoming a member of
the tribe.
Moreover, in a later report, the Department inquired with the tribe about mother’s
enrollment application and was told it was missing key documents. A social worker
asked if minor “could be enrolled in the tribe without the mother being enrolled,” and
was told the tribe would still need to have mother’s birth certificate on file. The tribal
representative explained that “once the mother and child are enrolled, . . . the tribe will
intervene as a third party however will likely not request to take jurisdiction and will
reserve that right.” Because intervention would only be permitted once the minor was
determined to be an Indian child, and the minor would only be an Indian child once he or
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mother became a member of a tribe, the representative’s statement supported the
conclusion that membership was contingent on the successful completion of the
enrollment applications. (25 U.S.C. § 1903(4); §§ 224.1, subd. (a), 224.4.) Thus, it was
appropriate for the juvenile court to conclude minor was not yet a member of the tribe
and the ICWA did not apply. (See § 224.2, subd. (h); In re K.P. (2015) 242 Cal.App.4th
1063, 1072.)
We note that the “juvenile court has an affirmative and continuing duty in all
dependency proceedings to inquire into a child’s Indian status” (In re Isaiah W. (2016)
1 Cal.5th 1, 14), and minor’s status as a non-Indian child may change in the future. (Id.
at pp. 11-12.) The Department has been working with the Choctaw Nation of Oklahoma
to facilitate mother and minor’s enrollment applications, and the juvenile court left open
the possibility the ICWA may apply if it receives “new evidence or information.” We
encourage the Department and juvenile court to remain mindful of their continuing
responsibilities under the ICWA, and our opinion should not be read to preclude or limit
any tribe’s rights or remedies for the remainder of the case.
DISPOSITION
The orders of the juvenile court are affirmed.
KRAUSE , J.
We concur:
RAYE , P. J.
HULL , J.
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