In re C.W. CA3 ( 2021 )

Filed 12/3/21 In re C.W. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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 C.W., a Person Coming Under the Juvenile C093918
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD241024)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
S.W.,
Defendant and Appellant.
S.W., mother of the minor (mother), appeals from the juvenile court’s
jurisdictional and dispositional orders. (Welf. & Inst. Code, §§ 300, 395; statutory
section citations that follow are to this code.) She contends the juvenile court and the
Sacramento County Department of Child, Family and Adult Services (Department) failed
1
to comply with the requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.) in the minor’s case. We will affirm the juvenile court’s orders.
FACTS AND HISTORY OF THE PROCEEDINGS
A detailed recitation of the facts and non-ICWA related procedural history is
unnecessary to our resolution of this appeal.
Mother and alleged father I.D. (father) are the parents of the minor C.W., who
tested positive for amphetamine at the time of his birth in December 2020, as did mother.
The minor was placed into protective custody. Mother had six other children (the half-
siblings) ranging in age from two to seven, all of whom were the subject of previous
dependency actions in which mother’s parental rights were terminated due to her failure
to reunify. Mother also had a seventh child, I.T., born in 2019, who was the subject of a
separate, ongoing dependency action. The prior dependency actions all stemmed from
mother’s failure to protect due to her substance abuse and neglect. Father’s whereabouts
were unknown.
On December 16, 2020, the Department filed a dependency petition on behalf of
the minor pursuant to section 300, subdivisions (b), (g), and (j), based on allegations
related to mother’s substance abuse and neglect and abuse of the minor’s half-siblings.
The Indian child inquiry attached to the petition stated mother gave no reason to believe
the minor was or might be an Indian child within the meaning of the ICWA.
Mother was present by videoconference at the December 17, 2020 detention
hearing. However, she did not respond when the court asked whether she had any Native
American ancestry. Mother’s attorney informed the court that mother had previously
indicated she did have Indian ancestry, but she did not know which tribe. The court
noted that mother had previously indicated having Indian ancestry in the dependency
cases involving the minor’s half-siblings and had apparently identified a tribe, although
the court appeared not to have that specific information. The court ordered the minor
2
detained and ordered the Department to follow up with mother and contact mother’s
relatives in order to obtain any relevant ICWA information. The court further ordered
that, in the event no additional information was forthcoming, the Department was to
make further inquiry regarding the information provided in the half-siblings’ dependency
cases.
The jurisdiction/disposition report stated that, in December 2020, mother indicated
she was eligible for membership in the Chippewa Tribe through the maternal great-
grandfather, but she did not know the name of the tribe. A review of the selection and
implementation report from the minor’s half-siblings’ dependency case confirmed that
mother provided the same information to the social worker in that case, including that the
primary residence of the parents and the minor was not on an Indian reservation, nor was
it in a predominantly Indian community. Mother also provided the following
information: mother’s full name and telephone number; the alleged father’s name; the
maternal grandmother’s name, address, telephone number, and birthdate; the maternal
grandfather’s name, birthdate, and birthplace; the maternal great-grandmother’s name
and the fact that she was deceased; and the maternal great-grandfather’s name and
potential tribe (Chippewa). The report stated the social worker reviewed the Bureau of
Indian Affairs (BIA) list of designated tribal agents on the federal register, contacted the
State Department of Social Services’ (DSS) office of tribal affairs to identify tribal names
and contact information; contacted the designated agent for 13 tribes (all of which were
Chippewa Tribes); and, on January 4, 2021, sent ICWA notices to those 13 tribes.
In an addendum report, the Department informed the court that, on January 6,
2021, the maternal grandmother stated the minor might be eligible for membership in the
Cherokee Tribe. With that information, the Department again contacted the BIA for
assistance, reviewed the BIA list of designated tribal agents and identified three possible
tribes (the Eastern Band of Cherokee Indians, the Cherokee Nation, and the United
Keetoowah Band of Cherokee Indians in Oklahoma) and their designated agents,
3
contacted the DSS office of tribal affairs for assistance, and contacted the three Cherokee
Tribes to obtain any additional information. On January 14, 2021, the Department
reportedly sent ICWA notices to the three Cherokee Tribes. The Department also
reported that it received responses from the Sokaogon Chippewa Tribe and the Grand
Traverse Band of Ottawa and Chippewa Indians, both of which indicated the minor was
neither enrolled nor eligible for enrollment in the tribe.
On February 19, 2021, the court sustained the petition as amended, took
jurisdiction over the minor, and ordered continued removal. The court stated it was
amending language in the proposed order stating the minor “may be an Indian child” to
read the minor “is not an Indian child” for purposes of the ICWA. The court bypassed
mother for reunification services and set the matter for a section 366.26 hearing.
At the placement hearing on April 2, 2021, the court ordered the minor to continue
in his current placement and ordered mother to appear for the section 366.26 hearing
scheduled for May 14, 2021.
Mother filed a timely notice of appeal from the court’s April 2, 2021 order.
DISCUSSION
Mother contends there is insufficient evidence to demonstrate the Department
complied with the ICWA requirements, and therefore there is insufficient evidence to
support the juvenile court’s finding that the ICWA did not apply.1 The claim lacks merit.
ICWA’s purpose is to protect the interests of Indian children and promote the
stability and security of Indian tribes by establishing minimum standards for, and
permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902,
1903(1), 1911(c), 1912; In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) The juvenile court and
1 Based on the ICWA issue raised by mother, we construe her notice of appeal to be
taken from the February 19, 2021 order containing the court’s ICWA finding.
4
the Department have “an affirmative and continuing duty to inquire” whether a child is,
or may be, an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a); see
In re K.M. (2009) 172 Cal.App.4th 115, 118-119.)
If, after the petition is filed, the juvenile court knows or has reason to know that an
Indian child is involved (25 U.S.C. § 1912(a)), notice of the pending proceeding and the
right to intervene must be sent to the tribe or the BIA if the tribal affiliation is not known.
(See § 224.2, subd. (d); § 224.3, subds. (a)-(g); Cal. Rules of Court, rule 5.481(b); In re
M.W. (2020) 49 Cal.App.5th 1034, 1043.)
If, on the other hand, the court has only a reason to believe the minor may be an
Indian child, “the court, social worker, or probation officer shall make further inquiry
regarding the possible Indian status of the child, and shall make that inquiry as soon as
practicable.” (§ 224.2, subd. (e)(2); In re M.W., supra, 49 Cal.App.5th at pp. 1043-1044.)
Relying on In re Robert A. (2007) 147 Cal.App.4th 982, 989, mother asserts that
the juvenile court needed only a suggestion of Indian ancestry to trigger the ICWA’s
notice requirement. She argues the record is inadequate to demonstrate the Department’s
compliance with the ICWA’s notice requirements because no ICWA notices or similar
documents appear in the record and, according to the juvenile court clerk, no such records
could be found. We are not persuaded.
In re Robert A., supra, 147 Cal.App.4th at page 989, which relies on In re Desiree
F. (2000) 83 Cal.App.4th 460, 471 and In re Nikki R. (2003) 106 Cal.App.4th 844, 848,
states the rule that ICWA notice “must be sent whenever there is reason to believe the
child may be an Indian child.” (In re Robert A., at p. 989.) The cases mother relies on
are inapposite. At the time these three cases were published, the phrase “reason to know”
was defined by the California Legislature to include information provided by “a person
having an interest in the child . . . suggesting the child is a member of a tribe or eligible
for membership in a tribe.” (Former § 224.3, subd. (b)(1), italics added; Stats. 2006, ch.
838, § 32. (Senate Bill No. 678).) “As demonstrated by case law at that time, little more
5
than a ‘minimal showing’ was required to trigger the statutory notice provisions.
[Citation.]” (In re M.W., supra, 49 Cal.App.5th at p. 1042.)
In January 2019, however, substantial revisions were made to the Welfare and
Institutions Code “to conform California law to the requirements of the federal
regulations governing proceedings covered by the ICWA.” (In re M.W., supra,
49 Cal.App.5th at p. 1043.) As relevant here, section 224.2, subdivision (c) requires that
the court ask each participant, at the first appearance, whether the participant “knows or
has reason to know that the child is an Indian child.” Subdivision (d) of that section
provides that a court has reason to know a child is an Indian child if any of the following
circumstances apply: “(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. [¶] (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); In re M.W., supra, at p. 1043.) “At that point, the social worker is required, as
soon as practicable, to interview the child’s parents, extended family members, the Indian
custodian, if any, and any other person who can reasonably be expected to have
information concerning the child’s membership status or eligibility.” (In re Michael V.
(2016) 3 Cal.App.5th 225, § 224.2, subd. (b).)
Here, mother’s counsel informed the court early on that mother indicated she had
Indian ancestry but could not identify a particular tribe. The court was also informed
6
that, in prior dependency proceedings, mother had made the same statement and had
apparently identified a particular tribe. At that point in time, none of the circumstances in
section 224.2, subdivision (d) applied. Thus, there was no reason to know the minor was
an Indian child.
The court did, however, have a reason to believe the minor may be an Indian
child. “There is reason to believe a child involved in a proceeding is an Indian child
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. Information suggesting membership or eligibility for membership
includes, but is not limited to, information that indicates, but does not establish, the
existence of one or more of the grounds for reason to know . . . .” (§ 224.2, subd. (e)(1)-
(3); In re M.W., supra, 49 Cal.App.5th at pp. 1043-1044.)
The reason to believe triggered the Department’s duty of further inquiry which
included, but was not limited to, all of the following: (1) interviewing the parents and
extended family members to gather the information required in section 224.3, subdivision
(a)(5); (2) contacting the BIA and the DSS for assistance in identifying the names and
contact information of the tribes in which the minor may be a member, or eligible for
membership in, and contacting the tribes and any other person that may reasonably be
expected to have information regarding the minor’s membership status or eligibility; and
(3) contacting the tribes and any other person that may reasonably be expected to have
information regarding the minor’s membership, citizenship status, or eligibility. (§ 244.2,
subd. (e)(2).) “Contact with a tribe shall, at a minimum, include telephone, facsimile, or
electronic mail contact to each tribe’s designated agent for receipt of notices under the
[ICWA]. Contact with a tribe shall include sharing information identified by the tribe as
necessary for the tribe to make a membership or eligibility determination, as well as
information on the current status of the child and the case.” (§ 224.2, subd. (e)(2).)
7
The record makes plain that the Department made such further inquiry. The
Department first obtained information from mother identifying possible Indian heritage
with the Chippewa Tribe through the maternal great-grandfather, which information was
consistent with information provided by mother in prior dependency proceedings. The
Department also obtained information regarding the minor’s maternal relatives and, after
contacting the BIA and the DSS, communicated that information via ICWA notices to 13
different Chippewa Tribes. Thereafter, the Department learned the minor may also have
Indian heritage with the Cherokee Tribe. After again contacting the BIA and the DSS,
the Department sent additional ICWA notices to three Cherokee Tribes.
As of the date of the court’s ICWA finding on February 19, 2021, the Department
had received responses from two of the 16 tribes indicating the minor was neither a
member nor eligible for membership. Having no indication otherwise from the
remaining tribes, the BIA, or the DSS, the juvenile court found the minor was not an
Indian child for purposes of the ICWA.
As the Department aptly argues, mother conflates the notice requirements when
there is a reason to know with the inquiry requirements when there is a reason to believe.
Contrary to mother’s assertion in her reply brief, the Department’s use of ICWA notices
to communicate with the tribes to obtain information regarding the minor’s membership,
citizenship status, or eligibility did not elevate the reason to believe to a reason to know.
Because section 224.2, subdivision (e) “does not require that any extensive or particular
formal documentation of ICWA inquiry be provided to the tribe” (In re M.W., supra,
49 Cal.App.5th at p. 1046), the use of notices was a proper means of contacting the
tribes. Evidence of the Department’s due diligence inquiry provided to the court via
reports was also proper and sufficient to demonstrate compliance with the ICWA.
(§ 224.2, subd. (g); In re M.W., at p. 1046.)
8
The juvenile court did not err in finding the minor was not an Indian child for
purposes of the ICWA.
DISPOSITION
The juvenile court’s orders are affirmed.
HULL, J.
We concur:
RAYE, P. J.
KRAUSE, J.
9