In re N.D. CA2/6 ( 2021 )

Filed 12/14/21 In re N.D. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re N.D. et al., Persons 2d Juv. No. B312044
Coming Under the Juvenile (Super. Ct. Nos. 19JV00160,
Court Law. 19JV00161)
(Santa Barbara County)
SANTA BARBARA COUNTY
CHILD WELFARE SERVICES,
Plaintiff and Respondent,
v.
N.A.,
Defendant and Appellant.
N.A. (Father) appeals from the juvenile court’s order
terminating his parental rights to his two twin children and
selecting adoption as the permanent plan. (Welf. & Inst. Code,1
1Further
unspecified statutory references are to the
Welfare and Institutions Code.
§ 366.26.)
In his prior appeal, Father challenged the disposition
order removing his children from his custody and placing them in
foster care on the ground that the inquiry and notice
requirements of the Indian Child Welfare Act of 1978 (ICWA)
(§ 224 et seq.; 25 U.S.C. § 1901 et seq.) had not been satisfied.
We conditionally remanded to the juvenile court for the limited
purpose of allowing Santa Barbara County Child Welfare
Services (CWS) to comply with ICWA inquiry and notice
requirements. (In re N.D. (2020) 46 Cal.App.5th 620, 624.) In
this appeal, Father once again argues that CWS failed to comply
with ICWA inquiry requirements. We disagree and affirm.
FACTUAL AND PROCEDURAL HISTORY
Procedural History Prior to the First Appeal
CWS filed a petition alleging that Father’s children
were at substantial risk of harm due to his criminal history,
including domestic violence. At the detention hearing, Father
said he had Native American ancestry through his paternal
grandmother, but he did not know which tribe. On a Parental
Notification of Indian Status form (ICWA-020 form), he stated he
may have “Indian ancestry” through his father (paternal
grandfather) and grandmother (paternal great-grandmother) and
provided their names. At the detention hearing, S.R. (Mother)
said she did not have Native American heritage. She also stated
she did not have “Indian ancestry” on the ICWA-20 form.
In the jurisdiction report, CWS included an ICWA
matrix, which showed that it obtained names and other
information for Father, paternal grandfather, and paternal
great-grandparents. CWS attempted to contact Father and
mailed him an ICWA questionnaire, which was never returned.
2
CWS also reported that Mother said she had Native American
ancestry but did not know which tribe. CWS interviewed
maternal great-grandmother and asked about Native American
ancestry. She responded that “there might be but she was not
sure.”
At the jurisdiction hearing, the court found true the
allegations in the petition. At the disposition hearing, CWS’s
investigation into Father’s Native American heritage was still
ongoing. The court ordered the children to remain in foster care
and ordered reunification services for Father. It did not make a
finding on whether ICWA applied.
Father filed a notice of appeal from the disposition
order in September 2019. We conditionally remanded the matter.
(In re N.D., supra, 46 Cal.App.5th at p. 624.)
Procedural History After the First Appeal
After Father filed his notice of appeal in the first
appeal, CWS again attempted to contact Father and left a voice
message with callback information. It also mailed him another
questionnaire at an alternate address, and it mailed a
questionnaire to paternal grandfather. These unopened
questionnaires were returned to sender as undeliverable.
CWS mailed an ICWA Notice of Child Custody
Proceeding (ICWA-030 form) to the Bureau of Indian Affairs,
Secretary of the Interior, Father, and Mother. Both of the notices
sent to Father and Mother were returned to sender for
“insufficient address.” CWS attached a letter with the notices
sent to the Bureau of Indian Affairs and the Secretary of the
Interior in which CWS stated that it had “conducted a diligent
search to obtain as much family ancestry information as possible”
and requested that the agencies “search [their] census roll to
3
determine if this child is eligible for enrollment or enrolled” with
a tribe. The notices included all ancestry information known to
CWS, including Mother and Father’s names, birthdates,
addresses, and the names of other family members, including
maternal and paternal grandparents and paternal
great-grandparents. The reports reflect that CWS had no
additional information.
Two months later, CWS filed with the court the
certified return receipts of the ICWA notifications, including the
delivery receipts for the Bureau of Indian Affairs and the
Secretary of the Interior.
In the six-month status review report, CWS updated
the ICWA matrix regarding its investigation, including its
attempts to contact Father and Grandfather. CWS reported that
it “received all of the response letters” and recommended that the
juvenile court find that ICWA does not apply.
At the six-month status hearing in January 2020, the
court found that ICWA did not apply. All parties submitted on
CWS’s recommendations.
In October 2020, after we issued remittitur in the
first appeal, the juvenile court held a hearing, in which it
confirmed its finding that ICWA did not apply. The court stated
that the ICWA finding “was made following the disposition and
following the additional documentation being provided. The
issue has been addressed and complied with.” All parties
submitted on the ruling.
At the 12-month hearing, the court found Father
made minimal progress with his services and continued the
services. At the 18-month hearing, the court terminated Father’s
reunification services and set a section 366.26 hearing.
4
In April 2021, the court terminated Father’s parental
rights and found the children were adoptable. (§ 366.26.)
DISCUSSION
Father’s sole contention on appeal is that CWS and
the court did not comply with their duty of further inquiry before
his parental rights were terminated. We disagree.
CWS and the juvenile court “have an affirmative and
continuing duty to inquire whether a child . . . is or may be an
Indian child.” (§ 224.2, subd. (a).)2 Once a child is placed into
temporary custody of a county welfare 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 . . . whether the child is,
or may be, an Indian child.” (Id. at subd. (b).)
“If the court, social worker . . . has reason to believe
that an Indian child is involved in a proceeding, but does not have
sufficient information to determine that there is a reason to know
that the child is an Indian child, the court, social worker . . . 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), italics added.) “There is reason to believe a
child involved in a proceeding is an Indian child whenever the
court, social worker . . . has information suggesting that either
the parent of the child or the child is a member or may be eligible
2Section 224.2 has recently been amended and the most
recent version became effective September 18, 2020. (Assem. Bill
No. 2944 (2019-2020 Reg. Sess.); Stats. 2020, ch. 104, § 15.) The
most recent version of statute was effective at the time of the
April 2021 section 366.26 hearing and is applicable to this
appeal.
5
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 reasons to know
[pursuant to subdivision (d)(1)-(6)].” (Id. at subd. (e)(1).)
The duty of further inquiry includes (A) interviewing
the parents and extended family members; (B) contacting the
Bureau of Indian Affairs and the State Department of Social
Services for assistance in identifying names and contact
information of the tribes in which the child may be a member;
and (C) contacting the tribe 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).)
If, after proper and adequate further inquiry has
been made, there is “no reason to know whether the child is an
Indian child, the court may make a finding that [ICWA] does not
apply to the proceedings, subject to reversal based on sufficiency
of the evidence. 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 . . . to
conduct further inquiry pursuant to Section 224.3.” (§ 224.2,
subd. (i)(2).)3
3 The inquiry stage is “distinct from formal ICWA notice,
which requires a ‘reason to know’ —rather than a ‘reason to
believe’—that the child is an Indian child.” (In re D.S. (2020) 46
Cal.App.5th 1041, 1049); see also § 224.3, subd. (a).) Notice must
be provided to the relevant tribes only if the inquiry establishes
“a reason to know” an Indian child is involved. (§ 224.3, subds.
(a), (b).) Father does not challenge ICWA notice compliance here.
6
We review a juvenile court’s determination regarding
ICWA compliance for substantial evidence. (In re E.W. (2009)
170 Cal.App.4th 396, 404.)
Substantial evidence supports the juvenile court’s
finding that CWS complied with its duty of ICWA inquiry.
Father stated that he had Native American ancestry through
paternal great-grandmother, but did not know which tribe.
Based on this statement, there was a reason to believe4 his
children were Native American children, and further inquiry was
necessary.
Father argues that CWS failed to conduct “a diligent
further inquiry with both Father and Mother and their available
relatives,” including paternal grandfather, paternal
great-grandmother, Mother, and other maternal relatives. The
record does not support his argument.
4 We recognize that our conclusion that there was a “reason
to believe,” and not a “reason to know,” at this stage is
inconsistent with our determination in the prior appeal, In re
N.D., supra, 46 Cal.App.5th 620. At the time of the disposition
order (from which Father previously appealed), the previous
version of section 224.2 was in effect. (Assem. Bill No. 3176
(2017-2018 Reg. Sess.); Stats. 2018, ch. 833, § 5, eff. Jan. 1, 2019.)
As explained above (ante, fn. 2), the statute has since been
amended and the most recent version is applicable to this appeal.
The Legislature has included language in the most recent version
which clarifies the difference between the “reason to believe” and
“reason to know” standards. Moreover, our conclusion here is
consistent with cases filed contemporaneously or after our
previous decision that have directly examined these different
standards. (In re T.G. (2020) 58 Cal.App.5th 275; In re A.M.
(2020) 47 Cal.App.5th 303; In re D.S., supra, 46 Cal.App.5th
1041.)
7
First, CWS attempted to call Father and obtained the
names and other information for Father, paternal grandfather,
and paternal great-grandparents. No contact information was
reported for paternal great-grandparents. After Father filed the
first appeal, CWS continued its efforts by attempting to call
Father again and sending him and paternal grandfather an
ICWA questionnaire at their known addresses. Any attempts to
contact Father and paternal grandfather were unsuccessful—
CWS left voicemails with callback information for Father, and
any mail correspondences were returned to sender. Meanwhile,
CWS fulfilled its obligation to contact the Bureau of Indian
Affairs and Secretary of the Interior for assistance in identifying
the tribes to which the children may be members. (§ 242.2, subd.
(e)(2)(B).) It sent an ICWA-030 notice form to the Bureau of
Indian Affairs and the Secretary of the Interior, and attached a
letter in which it requested these agencies to “search [their]
census roll to determine if this child is eligible for enrollment or
enrolled” with a tribe. The record does not reflect any further
information was obtained from these contacts.
Second, the evidence supports a finding that CWS
complied with its duty of inquiry into Mother’s claim of Native
American ancestry. Mother stated that she had Native American
ancestry but did not know which tribe. CWS did not report that
Mother provided any leads into her Native American ancestry.
Nonetheless, CWS interviewed her maternal great-grandmother,
who said that “there might be [Native American ancestry], but
she was not sure.” CWS also attempted to contact maternal
aunt, but she was unavailable and was provided a callback
number. CWS was not required to “cast about” for further
investigative leads within the family. (In re Levi U. (2000) 78
8
Cal.App.4th 191, 199, superseded on other ground by statute as
stated in In re B.E. (2020) 46 Cal.App.5th 932, 940; see also In re
A.M., supra, 47 Cal.App.5th at p. 323 [agency complies with the
inquiry requirement where there is no “viable lead,” where the
parent does not provide the agency with information requiring a
follow-up, or where the family members refuse to talk to the
agency]; In re D.S., supra, 46 Cal.App.5th at p. 1053 [agency was
not required to pursue unproductive investigative leads with
extended family members].)
Based on this record, the court properly found that
CWS complied with its duty of ICWA inquiry. In light of our
opinion, we need not address CWS’s waiver argument.
DISPOSITION
The order (terminating the Father’s parental rights)
is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
9
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Patricia K. Saucier, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rachel Van Mullem, County Counsel, Lisa A.
Rothstein, Deputy County Counsel, for Plaintiff and Respondent.