In re K.F. CA2/3 ( 2021 )

Filed 10/27/21 In re K.F. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re K.F., a Person Coming B308855
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP04595A
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.G., et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Sabina A. Helton, Judge. Conditionally affirmed and
remanded with directions.
Roni Keller, under appointment by the Court of Appeal,
for Appellant B.G.
Paul A. Swiller, under appointment by the Court of Appeal,
for Appellant N.F.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
Father N.F. and mother B.G. separately appeal from the
juvenile court’s jurisdictional and dispositional orders concerning
their child K.F. (born November 2019). They do not contest
the merits of those orders. Rather, parents challenge the
juvenile court’s finding that the Indian Child Welfare Act of 1978
(25 U.S.C. § 1901 et seq.) (ICWA) did not apply. Father denied
American Indian heritage, but claimed Central American Indian
ancestry through the Karuk tribe. A federally-recognized
Karuk tribe is in California. Although father said his indigenous
ancestry was Central American, parents contend the juvenile
court failed to comply with its duty to further inquire into father’s
Indian heritage to determine if K.F. was an Indian child under
ICWA. They also contend the court failed to ensure the provision
of proper notice under ICWA to the federally-recognized Karuk
tribe in California.
We agree further inquiry into father’s and his family’s
native ancestry is necessary. Accordingly, we conditionally
affirm the court’s jurisdictional and dispositional orders
and remand the matter for the limited purpose of ensuring
ICWA compliance.
BACKGROUND
Because parents’ appeals raise only the issue of ICWA
compliance, we give only a brief summary of the factual and
procedural background.
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1. Summary of current dependency proceeding
In July 2020, police were called to the family’s home
concerning a domestic violence incident between father and
mother’s adult daughter, and between father and mother
when mother intervened. Father was slashing with a kitchen
knife and superficially cut mother’s wrist and arm. He also
punched mother. Parents had a history of domestic violence.
Mother was issued an emergency protective order. K.F.
was asleep in paternal grandmother’s upstairs unit during
the incident.
The Los Angeles County Department of Children and
Family Services (Department) received a report about the
incident. A social worker attempted to discuss the incident
with mother and father, but they appeared to be evading
the Department. The Department obtained a removal order
for K.F. and served it on father on August 28, 2020.1 The
Department could not locate mother and K.F.
On September 1, 2020, the Department filed a petition
under section 300 of the Welfare and Institutions Code2 alleging
father’s violence against mother and mother’s mental and
emotional problems endangered K.F. Mother surrendered K.F.
to the Department on September 3, 2020. K.F. was detained
in foster care.
1 The Department also removed K.F.’s half-sibling K.G.
(born May 2009) from mother. K.G.’s father has sole custody
of her through a family law order, and she is not a subject of
this dependency proceeding or these appeals.
2 Statutory references are to the Welfare and Institutions
Code.
3
The juvenile court convened a combined jurisdiction and
disposition hearing on November 6, 2020. The court sustained
one count of the petition against mother and father under
section 300, subdivision (b). The court removed K.F. and
ordered her to be suitably placed.
2. Facts relating to ICWA inquiry
A Department social worker asked paternal grandmother
about potential Indian ancestry during an initial interview in
July 2020. Paternal grandmother said the family was descended
from Caribbean and Mayan tribes, but she did not know the
specific tribe. The Department’s detention report states ICWA
“does or may apply.”
At the September 8, 2020 detention hearing, the court
noted father “indicates he has no Indian ancestry as far as
he knows.”3 Mother had indicated K.F. may have possible
membership or eligibility in a federally-recognized Indian tribe—
the Karuk tribe—through father’s ancestry, but had no Indian
ancestry, as far as she knew, herself. The following colloquy
between the court and father’s counsel ensued:
Counsel: “The father is Central American Indian.”
The Court: “Father said he has no Indian ancestry
as far as – mother says she has no Indian
ancestry as far as she knows. Father
says he has Karuk tribe ancestry.
Hang on a second.”
Counsel: “I believe it’s not an eligible tribe.”
The Court: “It says a California Tribe[,] though.”
3 Father’s counsel checked “[n]one of the above apply” on
father’s ICWA-020 parental notification of Indian status form.
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Counsel: “That’s not what my client has indicated.
It’s a Central American tribe.”
The Court: “Given father says he has no Indian
ancestry, mother only identifies that
father might have Indian ancestry,
I’m going to find there is no reason
to know the child is an Indian child
within the meaning of ICWA. I find
ICWA does not apply.”
The juvenile court’s September 8, 2020 minute order
acknowledges parents each filed an ICWA-020 parental
notification of Indian status form. The order states the court
“does not have reason to know” K.F. is an Indian child under
ICWA, and “does not order notice to any tribe or the BIA.” The
court ordered parents to keep the Department, their counsel,
and the court “aware of any new information relating to possible
ICWA status.”
The Department’s jurisdiction/disposition report noted the
juvenile court found no reason to know K.F. was an Indian child
under ICWA and did not order any notice to any tribe or the BIA.
No further ICWA inquiry was made.
DISCUSSION
When the facts are undisputed, we independently review
whether the requirements of ICWA have been satisfied. (In re
D.F. (2020) 55 Cal.App.5th 558, 565 (D.F.).) We review the
juvenile court’s ICWA findings under the substantial evidence
test and determine whether the juvenile court’s order is
supported by “ ‘reasonable, credible evidence of solid value.’ ”
(Ibid.) We must uphold the juvenile court’s orders and findings
“ ‘if any substantial evidence, contradicted or uncontradicted,
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supports them, and we resolve all conflicts in favor of
affirmance.’ ” (Ibid.)
1. ICWA inquiry and notice requirements
“ICWA 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.’ [Citation.] 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.’ ” (D.F., supra, 55 Cal.App.5th at p. 565,
fn. omitted.) “Being an ‘Indian child’ is thus not necessarily
determined by the child’s race, ancestry, or ‘blood quantum,’
but depends rather ‘on the child’s political affiliation with a
federally recognized Indian Tribe.’ ” (In re Austin J. (2020)
47 Cal.App.5th 870, 882 (Austin J.).)
Under ICWA and related California law, the juvenile court
and the Department have “an affirmative and continuing duty
to inquire” whether a child subject to a section 300 petition
is or “may be an Indian child.” (§ 224.2, subd. (a); D.F., supra,
55 Cal.App.5th at p. 566.) “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.” (D.F.,
at p. 566.) The Department’s initial duty to inquire “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 . . . .”
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(§ 224.2, subd. (b).) At each party’s first appearance, the
juvenile court, in turn, must ask whether any participant
in the proceeding “knows or has reason to know that the child
is an Indian child.” (Id., subd. (c); D.F., at p. 566; Cal. Rules
of Court, rule 5.481(a)(2)(A).) As part of that initial inquiry,
the court also must require each party to complete the
ICWA-020 form. (D.F., at p. 566; Cal. Rules of Court,
rule 5.481(a)(2)(C).)
A duty of further inquiry arises when the Department
or the juvenile court “has reason to believe that an Indian child
is involved in a proceeding.” (§ 224.2, subd. (e), italics added.)
Effective September 18, 2020, the Legislature added section
224.2, subdivision (e)(1) to explain a “reason to believe” exists
“whenever the court, social worker, or probation officer has
information suggesting that either the parent of the child or
the child is a member or may be eligible for membership in
an Indian tribe.”4 (§ 224.2, subd. (e)(1); see Stats. 2020, ch. 104,
§ 15, eff. Sept. 18, 2020; In re T.G. (2020) 58 Cal.App.5th 275,
290, fn. 14.)
This further inquiry “includes: 1) interviewing the parents
and extended family members to gather required information;
2) contacting the Bureau of Indian Affairs and State Department
of Social Services for assistance in identifying the tribes in which
4 We apply the law in effect at the November 6, 2020 hearing
when the court made its jurisdictional findings and disposition
orders from which parents appeal. Because the juvenile court
has a continuing duty to determine whether ICWA applies,
we can infer it implicitly reaffirmed on November 6 its earlier
September 8, 2020 finding that ICWA did not apply. (See In re
A.M. (2020) 47 Cal.App.5th 303, 321 [applying law in effect at
time of section 366.26 hearing].)
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the child may be a member or eligible for membership in;
and 3) contacting the tribes and any other person that may
reasonably be expected to have information regarding the
child’s membership or eligibility.” (D.F., supra, 55 Cal.App.5th
at pp. 566–567, fn. omitted; § 224.2, subd. (e)(2)(A)–(C); Cal.
Rules of Court, rule 5.481(a)(4).)
Once the Department or juvenile court has “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).)
2. Further inquiry is required
Here, father denied American Indian heritage in his
ICWA-020 form and at the September 8, 2020 detention hearing.
At the hearing, through counsel, he asserted he was a Central
American Indian through the Karuk tribe. Nevertheless, the
court acknowledged the Karuk tribe was a federally-recognized
tribe in California. Mother also thought K.F. might be eligible
for membership in a federally-recognized tribe through father’s
Karuk ancestry. Relying on Austin J., the Department argues
the fact a federally-recognized tribe happens to share the same
name as the tribe under which father claimed his Central
American Indian ancestry—with no showing of any connection
to the federally-recognized tribe—is insufficient to trigger a
further duty of inquiry under section 224.2. (Austin J., supra,
47 Cal.App.5th at p. 889 [“Indian ancestry, without more,
does not provide a reason to believe that a child is a member
of a tribe or is the biological child of a member.”].)
We disagree. Father’s claim of heritage in the Karuk tribe
—even if he believed the tribe was from Central America—
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required the court to ensure the Department inquired further
into father’s claimed Karuk ancestry. It was information
“suggesting” father—and therefore K.F.—might be eligible
for membership in an Indian tribe under ICWA. (§ 224.2,
subd. (e)(1).)
Austin J. is distinguishable. First, that case was decided
before the Legislature clarified the meaning of “reason to
believe.” Second, the Department in Austin J. in fact asked
the mother, who claimed possible Cherokee ancestry, if other
relatives may have more information, but the other relative gave
only similar information—that mother’s maternal grandmother
“ ‘may have had Cherokee heritage.’ ” (Austin J., supra, 47
Cal.App.5th at p. 878, italics added.) The appellate court
concluded the information it had was “ ‘too vague, attenuated
and speculative’ ” to indicate a possible tribal connection so
as to support “a ‘reason to believe’ ” the mother’s children were
Indian children under ICWA. (Id. at pp. 888–889.) Based on
the record here, in contrast, father did not equivocate when
he declared his ancestry in the Karuk tribe. The question was
whether father was correct in stating his ancestry arose from
a Karuk tribe in Central America or whether he was mistaken,
and his ancestry arose from a Karuk tribe in California.
“[T]he question of membership in the tribe rests with
the tribe itself,” however. (In re Damian C. (2009) 178
Cal.App.4th 192, 199.) Thus, father’s ignorance of the Karuk
tribe’s federal recognition did not—in father’s words—“absolve
the Department’s and court’s duty to further inquire about
[K.F.’s] Indian status.” (See, e.g., In re Andrew S. (2016) 2
Cal.App.5th 536, 547 [“burden of developing . . . information”
about Indian ancestry “is not properly placed on [the parent]
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alone”; “ ‘finding of ICWA’s inapplicability before proper and
adequate ICWA notice has been given is not conclusive and
does not relieve the court of its continuing duty . . . to inquire
into a child’s Indian status’ ”].)
For instance, the Department should have asked father
and paternal grandmother if other paternal relatives might have
more information about father’s Karuk heritage. It then could
better have assessed whether father’s ancestry originated from
California rather than Central America, as father had believed.
The Department also could have contacted the Karuk tribe.
Based on the record, it does not appear that the Department
made any further inquiry. Nor does it appear the Department
investigated whether a Karuk tribe exists in Central America.
In short, we agree with father that the court and
Department failed to comply with their statutory duty to
inquire further into K.F.’s possible status as an Indian child.
We need not reverse the jurisdictional or dispositional orders,
however, as there is not yet a sufficient showing that K.F.
is an Indian child under ICWA. (See In re Hunter W. (2011)
200 Cal.App.4th 1454, 1467.) Rather, we remand for the
Department to comply with ICWA’s inquiry requirements
and, if applicable, notice provisions.
On remand, the Department is to discharge its duty
of further inquiry under section 224.2, subdivision (e) and to
prepare a report of its investigation for the court. As there
was not a reason for the court to know K.F. was an Indian child
based on father’s claim of Central American Karuk ancestry,
we do not order the Department to give formal ICWA notice
to the Karuk tribe under sections 224.2, subdivision (f) and 224.3,
subdivision (a)(5), as father argues we should. Rather, if—
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after its further inquiry on remand—the Department obtains
information providing a reason to know—as set forth in section
224.2, subdivision (d)—K.F. is an Indian child under ICWA,
then the court must order the Department to provide the
required ICWA notice(s).
DISPOSITION
We conditionally affirm the court’s jurisdictional and
dispositional orders. The matter is remanded to the juvenile
court with directions to ensure the Department complies with
the inquiry—and, if applicable, notice—provisions of ICWA
and related California law, consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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