In re V.F. CA3 ( 2021 )

Filed 12/10/21 In re V.F. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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 V.F., a Person Coming Under the Juvenile Court C093833
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD240283)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
V.F.,
Defendant and Appellant.
Presumed father of the minor (father), appeals from an order of the juvenile court
terminating his parental rights and freeing the minor for adoption. (Welf. & Inst. Code,
§ 366.26.)1 Father contends the court erred when it found the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.) did not apply. The Sacramento Department of Child,
1 Undesignated statutory references are to the Welfare and Institutions Code.
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Family and Adult Services (the Department) contends there was sufficient evidence to
support the juvenile court’s finding. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2019, the Department filed a dependency petition pursuant to section
300, subdivision (b) based on the parents’ inability to provide regular care due to
substance abuse. The minor was ordered into protective custody the same day that the
petition was filed.
The Indian child inquiry attachment to the petition indicated the minor may have
Indian ancestry through the maternal side of the family, either Cherokee or Blackfeet.
The mother had indicated that a family member named T.M. was an enrolled member of
a tribe or eligible for membership. The mother did not provide contact information, and
there was insufficient information provided to notify the tribe.
In November 2019, the social worker contacted A.C., an adult sibling, regarding
the ICWA disclosure. The sibling told the social worker that she was unaware of any
Indian heritage on the maternal side. The sibling did not know the name T.M. The social
worker also contacted a maternal cousin and left a voicemail asking about the family’s
Indian heritage. The record does not indicate that the cousin returned the call.
In November 2019, the mother filed a parental notification of Indian status form
(ICWA-20), indicating she might have Cherokee or Blackfeet ancestry. She also
indicated her maternal great-grandmother T.M. had Cherokee or Blackfeet heritage.
Father also filed an ICWA-20 indicating he did not have Indian ancestry.
Later that month, the Department filed a detention report recommending the minor
be placed in out-of-home foster care pending the jurisdiction/disposition hearing. The
social worker indicated she contacted the Eastern Band of Cherokee Indians, the
Cherokee Nation, and the Blackfeet Tribe via telephone and e-mail. She also attempted
to contact the mother to gather more information, including visiting a reported address,
but she was unable to reach the mother.
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During the November 2019 hearing, the juvenile court ordered the minor detained.
With respect to ICWA, the court found as to father there was no evidence the minor was
an Indian child. The court ordered the Department to conduct further inquiry regarding
the minor’s Indian heritage.
In the December 2019 jurisdiction/disposition report, the Department reported the
social worker had attempted to contact the mother three separate times in November but
had no contact with her. Father failed to show up to his scheduled interview with the
social worker. With respect to ICWA, the social worker contacted the Bureau of Indian
Affairs (BIA) and the State Department of Social Services, Office of Tribal Affairs on
December 16, 2019, and was referred to the BIA Tribal Leaders Directory for contact
information for the agents of the Cherokee Nation, the United Keetoowah Band of
Cherokee Indians in Oklahoma, the Eastern Band of Cherokee Indians, and the Blackfeet
Tribe. On December 16, 17, and 18, 2019, the social worker contacted each of the agents
via telephone and in writing. There had not yet been any response.
In the February 2020 addendum report, the Department indicated it had been
unsuccessful in its attempts to contact the parents. The parents had not been visiting with
the minor, and they were not participating in services. The minor was doing well in her
current placement, and the caregivers were willing to adopt her. The Department
recommended the court order reunification services for father but no reunification
services for the mother. (§ 361.5, subds. (b)(12) & (c).) On February 6, 2020, the court
sustained the petition, adjudged minor to be a dependent child of the court, and ordered
out-of-home placement for the minor and reunification services for father.
In a March 2020 report, the Department noted the following tribes had informed
the social worker that the minor was neither registered nor eligible to register as a tribal
member: the Cherokee Nation, the United Keetoowah Band of Cherokee Indians in
Oklahoma, the Eastern Band of Cherokee Indians, and the Blackfeet Tribe. The agent for
the United Keetoowah Band of Cherokee Indians in Oklahoma only responded by
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telephone, explaining that they were several months behind in sending out eligibility
notices. The agent said she had searched for the mother, T.M., and the minor, and none
of the individuals were registered or eligible to register. The agent said they would send
a letter documenting the tribe’s response within two to three months. The agent for the
Cherokee Nation sent an e-mail stating that neither the mother, minor, nor T.M. appeared
as enrolled members in her search of the tribal registry, and the tribe would send a formal
response letter in about 90 days. The Blackfeet Tribe sent a letter stating it had not found
the minor listed in its tribal roll and she was not eligible for enrollment. The agent
offered to search again if the social worker was able to gather more information on the
parents’ ancestry. Similarly, the Eastern Band of Cherokee Indians stated in a letter that
the minor (whose first name was misspelled in the letter) was neither registered nor
eligible to register as a member of the tribe.
In the July 2020 permanency review report (§ 366.21, subd. (e)), the Department
recommended that father’s reunification services be terminated. Despite court orders
requiring his participation, father had not participated in any parenting classes, individual
counseling, alcohol and other drug assessment, substance abuse treatment, or substance
abuse testing. Neither the mother nor father was visiting with the minor. The
Department had not had contact with the mother.
On August 6, 2020, the court continued the permanency hearing (§ 366.21, subd.
(e)) and found that ICWA did not apply. In September 2020, after holding a contested
hearing, the court terminated father’s reunification services and set the matter for a
section 366.26 hearing.
In the January 2021 selection and implementation report, the Department
recommended terminating the mother’s and father’s parental rights and freeing the minor
for adoption. In March 2021, after holding a contested hearing, the court terminated
parental rights and freed the minor for adoption.
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DISCUSSION
A. ICWA Requirements and Standard of Review
The applicable law is summarized in two recent cases, In re D.S. (2020)
46 Cal.App.5th 1041 (D.S.) and In re Austin J. (2020) 47 Cal.App.5th 870, as follows:
“Congress enacted ICWA in 1978 to address concerns regarding the separation of
Indian children from their tribes through adoption or foster care placement, usually in
non-Indian homes. [Citation.] ICWA established minimum standards for state courts to
follow before removing Indian children from their families and placing them in foster
care or adoptive homes. [Citations.] In 2006, California adopted various procedural and
substantive provisions of ICWA. [Citation.] In 2016, new federal regulations were
adopted concerning ICWA compliance. [Citation.] Following the enactment of the
federal regulations, California made conforming amendments to its statutes, including
portions of the Welfare and Institutions Code related to ICWA notice and inquiry
requirements. [Citations.] Those changes became effective January 1, 2019 [citation],
and govern here.
“The new statute specifies the steps the [Department] and the juvenile court are
required to take in determining a child’s possible status as an Indian child. An ‘Indian
child’ is defined in the same manner as under federal law, i.e., 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); accord, Welf. & Inst. Code, § 224.1, subd. (a)
[adopting the federal definition].) The [Department] and the juvenile court have ‘an
affirmative and continuing duty’ in every dependency proceeding to determine whether
ICWA applies. (Welf. & Inst. Code, § 224.2, subd. (a) [‘The duty to inquire [whether a
child is or may be an Indian child] begins with the initial contact, including, but not
limited to, asking the party reporting child abuse or neglect whether [he or she] has any
information that the child may be an Indian child’]; Cal. Rules of Court, rule 5.481(a);
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see [In re] Isiah W. [(2016)] 1 Cal.5th [1,] 14 [‘juvenile court has an affirmative and
continuing duty in all dependency proceedings to inquire into a child’s Indian status’].)
“Section 224.2, subdivision (b) specifies that once a child is placed into the
temporary custody of a county welfare department, such as the [Department], the 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.’ ”
(D.S., supra, 46 Cal.App.5th at pp. 1048-1049, fn. omitted.)
“California law also requires ‘further inquiry regarding the possible Indian status
of the child’ when ‘the court, social worker, or probation officer has reason to believe
that an Indian child is involved in a proceeding.’ (§ 224.2, subd. (e).) The Legislature,
which added the ‘reason to believe’ threshold for making a further inquiry in 2018, did
not define the phrase. When that threshold is reached, the requisite ‘further inquiry’
‘includes: (1) interviewing the parents and extended family members; (2) contacting the
Bureau of Indian Affairs and State Department of Social Services; and (3) contacting
tribes the child may be affiliated with, and anyone else, that might have information
regarding the child’s membership of eligibility in a tribe.’ [Citations.]
“In addition to the inquiry that is required in every dependency case from the
outset and the ‘further inquiry’ required under California law when there is a ‘reason to
believe’ an Indian child is involved, a third step⸺notice to Indian tribes⸺ is required
under ICWA and California law if and when ‘the court knows or has reason to know that
an Indian child is involved.’ ” (In re Austin J., supra, 47 Cal.App.5th at pp. 883-884.)
“The juvenile court may . . . make a finding that ICWA does not apply because the
[Department]’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 [Department] and the court have a
continuing duty under ICWA, and the court ‘shall reverse its determination if it
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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.)
“On appeal, we review the juvenile court’s ICWA findings for substantial
evidence. [Citations.] But where the facts are undisputed, we independently determine
whether ICWA’s requirements have been satisfied.” (D.S., supra, 46 Cal.App.5th at
p. 1051.)
B. Analysis
Father’s central argument is that the Department’s inquiry into the minor’s
possible Indian heritage was inadequate under the new statutory framework.2
Specifically, father argues the Department did not demonstrate that it made adequate
efforts to interview maternal relatives regarding the minor’s Indian heritage. Father notes
that the social worker only attempted to contact two maternal relatives, a maternal adult
sibling and a maternal cousin regarding the family’s Indian heritage. Although the social
worker spoke with the adult sibling, the record indicates that the social worker only left a
message for the maternal cousin. There were no other documented attempts to reach the
mother’s relatives.
In addition, father argues the record does not detail what ancestral information was
sent to the tribes. Arguing that “[n]otice to the tribes is ‘meaningless’ if no information
or insufficient information is presented to the tribe for it to make the determination of
whether the minor is an Indian child,” father contends the social worker should have
documented whether she disclosed to the tribes (1) the minor’s and the mother’s name
and dates of birth and (2) T.M.’s relationship to the mother (mother’s maternal great-
2 Neither party disputes that the mother’s statements regarding possible tribal affiliation
were sufficient to establish a reason to believe the minor is an Indian child and triggered a
duty to conduct a further inquiry.
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grandmother) and status as a member of a federally recognized tribe. Father also notes
that one tribe misspelled minor’s name in its formal response letter, suggesting they were
given incorrect information. In addition, father contends the social worker should have
attached a family tree.
Finally, father argues the juvenile court should have waited until all the tribes had
sent formal responses. Father notes that, when the court made its finding that ICWA did
not apply, the United Keetoowah Band of Cherokee Indians in Oklahoma had only given
a preliminary response by telephone in March 2020, saying it would send a letter
documenting its response in two to three months. Similarly, the Cherokee Nation had
only responded by e-mail in March 2020, and said an official response letter would be
sent in about 90 days. We conclude that substantial evidence supports the juvenile
court’s finding that the Department complied with its obligations pursuant to section
224.2, subdivision (e).
As explained in D.S., when the Department “has a reason to believe a child is an
Indian child, as in this case, it must satisfy three requirements. First, the [Department]
must interview the parents, Indian custodian, and extended family members to gather
relevant information, specified by statute, regarding the details of the child’s birth, family
members, and possible tribal affiliations. (§ 224.2, subd. (e)(1); see also § 224.3, subd.
(a)(5).) Second, the [Department] must contact ‘the Bureau of Indian Affairs and the
State Department 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 contacting the tribes and any other person that may reasonably be expected to
have information regarding the child's membership status or eligibility.’ (§ 224.2, subd.
(e)(2).) Third, the [Department] must contact ‘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.’ (Id., subd. (e)(3).) The [Department’s] contact with the
tribe ‘shall include sharing information identified by the tribe as necessary for the tribe to
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make a membership or eligibility determination, as well as information on the current
status of the child and the case.’ (Ibid.)” (D.S., supra, 46 Cal.App.5th at pp. 1052-1053.)
The record supports the juvenile court’s finding that the Department complied
with these requirements. With respect to the Department’s duty to interview extended
family members (§ 224.2, subd. (e)(2)), ICWA and California define the term to include
the minor’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)). The Department complied with its obligations by interviewing the maternal
adult sibling and attempting to contact the maternal cousin. Based on the adult sibling’s
statement that she was unfamiliar with the name T.M. and was unaware of any familial
Indian heritage, the Department reasonably could conclude that no further inquiry was
needed because there was no additional information of value to obtain from other
relatives. (See D.S., supra, 46 Cal.App.5th at p. 1053 [the Department “is not required to
‘cast about’ for information or pursue unproductive investigative leads”].)
Moreover, the Department fulfilled its obligation to contact the pertinent tribes and
share the information the tribe identifies as “necessary for the tribe to make a
membership or eligibility determination.” (§ 224.2, subd. (e)(2)(B), (C).) After
confirming the appropriate tribal and contact information from the BIA and the State
Department of Social Services, Office of Tribal Affairs, the social worker contacted the
agents via telephone and in writing of the Cherokee Nation, the United Keetoowah Band
of Cherokee Indians in Oklahoma, the Eastern Band of Cherokee Indians, and the
Blackfeet Tribe. Although the Department could have documented some of its efforts in
more detail, father points to no legal authority requiring the Department to submit copies
of its specific correspondence with the tribes when formal ICWA notice has not yet been
triggered under section 224.3. (§ 224.2, subd. (d).) Given each tribe’s response that the
minor was neither a registered member nor eligible for enrollment, it was reasonable for
the court to infer that the Department had provided the necessary information to the
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tribes. (§ 224.2, subd. (e)(2)(C).) We further note that the mother (1) failed to provide
any contact information or further details for T.M. (other than her relationship as
maternal great-grandmother) and (2) did not respond to the Department’s additional
attempts to talk with her. Although two of the tribes did not provide a formal notice, and
one tribe misspelled the minor’s first name, we decline father’s invitation to find that
these clerical issues made it unreasonable for the court to find that the Department had
met its obligations.
In sum, the juvenile court’s finding that the Department completed its further
inquiry is supported by the evidence. There is also substantial evidence supporting the
court’s finding that there was no reason to believe or know that ICWA applies.
DISPOSITION
The juvenile court’s order is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
HULL, J.
/s/
KRAUSE, J.
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