In re Michael M. CA2/5 ( 2021 )

Filed 9/22/21 In re Michael M. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re MICHAEL M., a Person B309987
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 18CCJP00192)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
G.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore.
Affirmed.
Patricia K. Saucier, under appointment by the Court of
Appeal, for Defendant and Appellant.
Amir Pichvai for Respondent.
________________________________
G.C. (mother) appeals from the order terminating her parental
rights to two of her children, M.M. and P.M., under Welfare and
Institutions Code section 366.26.1 Mother’s sole contention on appeal
is that the Los Angeles County Department of Children and Family
Services (the Department) and the juvenile court failed to comply with
the inquiry and notice provisions of the Indian Child Welfare Act of
1978 (25 U.S.C. § 1901 et seq.; ICWA). We affirm the order
terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Daniel M. (father) are M.M. and P.M.’s biological
parents. Both parents have additional children with different
partners, but because mother’s appeal is based on her claim to Indian
ancestry, we only discuss mother’s children. Because the sole issue
raised in mother’s appeal is ICWA compliance, we focus primarily on
the facts and procedural background relevant to that issue.
1 Further statutory references are to the Welfare and
Institutions Code unless stated otherwise.
2
Prior Dependency Proceedings
In June 2016, the dependency court terminated mother’s parental
rights as to her four oldest children. The dependency proceedings for
mother’s three oldest children began in 2011. Mother filed a Judicial
Council form titled “Parental Notification of Indian Status (ICWA-
020)” on June 11, 2011, indicating that she had Indian ancestry, and
possibly “Cherokee.” Mother told the social worker her father had told
her of Cherokee Indian ancestry on his side of the family, but all of her
grandparents had passed away. There is nothing in the record
providing any additional information, but in August 2011, the court
found that ICWA did not apply based on mother’s claim of Cherokee
ancestry. In 2013, dependency proceedings began for mother’s fourth
child. The Department’s reports stated mother denied any Indian
ancestry, but the record does not include an ICWA-020 form for
mother’s fourth child.
Soon after M.M.’s birth in July 2016, the Department sought
dependency jurisdiction. Mother and father filed ICWA-020 forms
denying any Indian ancestry, and the court found M.M. was not an
Indian child. By October 2016, the court had released M.M. to
mother’s custody and dismissed the petition, over the Department’s
objections.
Current Dependency Case
The Department again filed a dependency petition as to
M.M. in January 2018, based on the parents’ domestic violence
and substance abuse, and mother’s prior dependency with respect
to his older half-siblings. At the detention hearing, mother
claimed she had Indian ancestry, but explained she had no proof
3
and no information to support the claim. In response to the
juvenile court’s questions about the name of the tribe, mother
responded she could not pronounce or spell it, but it started with
“AW.” The court stated, “I want the Department to try to follow
up with the mother to see if there’s some federally recognized
tribe”; however, the court also found on the current record no
reason to believe that M.M. was an Indian child. The minute
order from the detention hearing states that mother and father
each submitted an ICWA-020 form, but the completed forms do
not appear in the appellate record. There is nothing in the
Department’s subsequent reports to indicate the Department
asked mother or anyone else for additional information about
mother’s claim of Indian ancestry. In April 2018, the court
sustained the petition allegations and ordered reunification
services.
In May 2018, the Department filed a dependency petition
as to newborn P.M., based on the parents’ domestic violence and
substance abuse, and mother’s prior dependencies. Mother filed
an ICWA-020 form stating she believed she had Indian ancestry,
but she did not provide the name of any tribe. On June 22, 2018,
the court found ICWA did not apply.2
The court terminated mother’s reunification services in
September 2020. At a section 366.26 hearing on January 19,
2021, the court terminated parental rights as to M.M. and P.M.
Mother filed a notice of appeal the next day.
2 Father’s ICWA-020 form was not filed until July 20, 2018.
He denied any Indian ancestry, and the court found P.M. was not
an Indian child.
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DISCUSSION
Standard of Review
On undisputed facts, we make an independent
determination about whether ICWA’s requirements have been
satisfied. (In re D.F. (2020) 55 Cal.App.5th 558, 565 (D.F.).) We
review the juvenile court’s ICWA findings for substantial
evidence, and the appellant bears the burden of showing
insufficient evidence to support the ICWA finding. (Ibid.)
ICWA Inquiry and Notice Requirements
“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.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).)
“In California, . . . persistent noncompliance with ICWA led the
Legislature in 2006 to ‘incorporate[ ] ICWA’s requirements into
California statutory law.’ [Citations.]” (In re Abbigail A. (2016) 1
Cal.5th 83, 91; see also In re Breanna S. (2017) 8 Cal.App.5th
636, 650 [California law “incorporates and enhances ICWA’s
requirements”].) Both ICWA and California law define an
“Indian child” as a child who is either a member of an Indian
tribe or is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe. (25 U.S.C.
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§ 1903(4); § 224.1, subds. (a) & (b); see also In re Elizabeth M.
(2018) 19 Cal.App.5th 768, 783 (Elizabeth M.).)
The court and the Department have an affirmative and
continuing duty under ICWA and related California law to
inquire whether a child who is the subject of a dependency
proceeding is or may be an Indian child. (Isaiah W., supra, 1
Cal.5th at pp. 7–8.) The scope of the duty of inquiry is defined in
regulations promulgated under ICWA (see 25 C.F.R. § 23.107 et
seq. (2020)), California statutes, and rules of court. (In re T.G.
(2020) 58 Cal.App.5th 275, 290–291.) Here, we apply the federal
and state statutes in effect in January 2021, when the section
366.26 hearing took place. (In re A.M. (2020) 47 Cal.App.5th 303,
321.)
The Department’s initial duty of inquiry at the beginning of
a child welfare proceeding includes “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).) The court must inquire at each
party’s first appearance, whether any participant in the
proceeding “knows or has reason to know that the child is an
Indian child.” (§ 224.2, subd. (c).) Part of the initial inquiry
includes requiring each party to complete the ICWA-020 form.
(Cal. Rules of Court, rule 5.481(a)(2)(C).)
When there is “reason to believe that an Indian child is
involved in a proceeding,” further inquiry is required. (§224.2,
subd. (e); In re T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.)
Effective September 18, 2020, section 224.2, subdivision (e)(1),
explains that “reason to believe” exists “whenever the court,
social worker, or probation officer has information suggesting
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that either the parent of the child or the child is a member or
may be eligible for membership in an Indian tribe.”3
Application
Mother contends the Department failed to comply with its
duties of initial inquiry and further inquiry, and that the juvenile
court failed to ensure compliance with ICWA after mother
3 Further inquiry includes interviewing parents and
extended family members to obtain information such as the
names of the child’s “biological parents, grandparents, and great-
grandparents, . . . as well as their current and former addresses,
birth dates, places of birth and death, tribal enrollment
information of other direct lineal ancestors of the child, and any
other identifying information, if known.” (§ 224.2, subd. (e)(2)(A);
224.3, subd. (a)(5)(C); Cal. Rules of Court, rule 5.481(a)(4)(A); see
also Elizabeth M., supra, 19 Cal.App.5th at p. 786 [if a parent has
raised the possibility of Indian ancestry, the agency has
“affirmative obligation to interview family members and others
who could be expected to have relevant information concerning
the child’s status”].) Further inquiry also includes contacting the
Bureau of Indian Affairs, the State Department of Social
Services, and any tribes the child may be affiliated with, and
anyone else, that might have information regarding the child’s
membership or eligibility in a tribe. (§ 224.2, subds. (e)(2)(B) &
(e)(2)(C); Cal. Rules of Court, rule 5.481(a)(4)(B) & (a)(4)(C).) If
the further inquiry under section 224.2, subdivision (e), results in
information that would give the court or the Department “reason
to know” that the child is an Indian child under ICWA, then the
relevant tribes must be given notice of the proceedings. (25
U.S.C. § 1912, subd. (a); §224.3, subd. (a); §224.2, subd. (d)
[describing circumstances where there is “reason to know” a child
is an Indian child].)
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asserted she had Indian heritage. More specifically, mother
argues that the Department should have broadly interviewed
members of the maternal-side family, including a maternal great-
cousin who was a prospective adoptive parent, to find contact
information for maternal relatives and to ask about possible
Indian ancestry.
The Department argues that mother’s narrow focus on the
bare assertion of tribal affiliation, inconsistently made on some
ICWA-020 forms and as explained to the court (i.e., a tribe
beginning with the letters “AW”), misrepresents the broader
record. The Department contends there was no reason to believe
the minors are Indian children, because in prior proceedings,
mother had made inconsistent and contradictory statements, and
juvenile courts had previously found ICWA inapplicable to five of
mother’s children, including M.M. in 2016. Further, the
Department argues that when mother claimed Indian ancestry in
2018, she did not identify a tribe and disclaimed having any
additional information about the source of the Indian ancestry.
We agree with the Department. Mother cites to cases
where appellate courts have determined that vague, incomplete,
or conflicting information provided to the Department was
nevertheless deemed sufficient to give it and the court “reason to
believe” a particular child might be an Indian child, triggering a
duty of further inquiry. But the cited authorities – including In
re T.G. (2020) 58 Cal.App.5th 275, In re D.S. (2020) 46
Cal.App.5th 1041, D.F., supra, 55 Cal.App.5th 558, and In re.
M.W. (2020) 49 Cal.App.5th 1044 – do not support the broad
proposition that mother proposes: mother contends the mere
assertion of possible Indian ancestry always requires the
Department to conduct further inquiry pursuant to section 224.2,
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subdivision (e). Whether the information provided or available in
any given case gives the Department and the court “reason to
believe” an Indian child may be involved in the proceeding is
specific to the facts of that case. None of the authorities relied
upon by mother dictate the result in the instant appeal, and we
read each of those cases to involve more compelling records upon
which a court might find reason to believe, including more
detailed information, such as more specific tribal names or
locations, or more specific information about family members
with knowledge of the claimed Indian ancestry.
Here, mother not only provided a vague statement
regarding possible ancestry for M.M. and P.M., but affirmatively
told the court that she did not have any other information. Her
statements came at a single hearing comprising only one part of a
decade long history of dependency proceedings, during which
there was ample opportunity to suggest leads to the Department.
That history includes conflicting statements by mother, and court
findings that ICWA was inapplicable to siblings of the minors
here. In past proceedings, the only claim of ancestry made by
mother was on the paternal side of her family. Now, on appeal,
she asserts for the first time that the Department had a duty to
identify and interview all of her maternal-side relatives. Given
this record, we find that mother’s arguments amount to an
attempt to obligate the court and the Department to cast about
for investigative leads, which ICWA does not require. (See In re
A.M., supra, 47 Cal.App.5th at p. 323.)
We accept, for argument’s sake, the general proposition
that “[w]hen a parent or other family member has informed a
dependency investigator or the juvenile court of the child’s
possible Indian ancestry, the use of a tribal name that does not
9
correspond to that of a federally recognized tribe—or saying
‘Indian’ but providing no tribal name at all—does not, without
more, relieve the child protective agency of its affirmative
obligation to interview family members and others who could be
expected to have relevant information concerning the child’s
status or the court of its duty to ensure an appropriate inquiry
has been conducted before concluding ICWA does not apply to the
case.” (Elizabeth M., supra, 19 Cal.App.5th at p. 786.) Mother
contends the Department should have further investigated
mother’s affiliation with the tribe she claimed started with “AW.”
However, on appeal both parties agree that the relevant listing of
recognized tribal entities published in the Federal Register does
not contain any tribe starting with the letters “AW,” so there is
no basis for mother’s contention of error.
In In re J.S. (2021) 62 Cal.App.5th 678, 683–684 (J.S.),
father submitted an ICWA-020 form claiming Indian ancestry
and explaining that paternal grandmother was 58% Native
American. The juvenile court ordered the Department to follow
up. Paternal grandmother explained that the information came
from a DNA test, the results had surprised her, and she was
certain no family members were enrolled in a tribe. On appeal,
Division Seven concluded that the Department’s interview of
paternal grandmother was “an adequate and proper investigation
under section 224.2, subdivision (e).” (Id. at pp. 869–690.)
In contrast to the information provided by the father in
J.S., supra, 62 Cal.App.5th at page 683, identifying paternal
grandmother as the basis for his belief that he had Indian
ancestry, the record here reflects that mother informed the court
she had no information about the source of her belief that she
had Indian ancestry. Because she did not identify a federally
10
recognized tribe or any family members “who could be expected to
have relevant information,” there is no reason to believe
requiring further inquiry by the Department. (Elizabeth M.,
supra, 19 Cal.App.5th at pp. 786–787.)
DISPOSITION
The juvenile court’s order terminating parental rights
under section 366.26 is affirmed.
MOOR, J.
We concur:
BAKER, Acting P.J.
KIM, J.
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