In re R.L. CA2/6 ( 2021 )

Filed 12/15/21 In re R.L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 R.L., a Person Coming 2d Juv. No. B312421
Under the Juvenile Court Law. (Super. Ct. No. J072630)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
B.G.,
Defendant and Appellant.
B.G. (Mother) appeals an order of the juvenile court
terminating her parental rights to R.L., her child. (Welf. & Inst.
Code, §§ 300, subd. (b)(1), 366.26.)1 The court found the Indian
Child Welfare Act (ICWA) did not apply. (25 U.S.C. § 1901 et
All statutory references are to the Welfare and
1
Institutions Code unless otherwise stated.
seq.) We conclude, among other things, that the Ventura County
Human Services Agency (HSA) did not conduct a sufficient
investigation to determine whether R.L. is or may be an Indian
child. HSA concedes that it did not ask paternal family members
whether R.L. was an Indian child and it agrees that a reversal
and remand are necessary. We conditionally reverse and remand
for further proceedings.
FACTS
On August 19, 2020, HSA filed a juvenile dependency
petition alleging Mother and Father had failed to protect and had
abused their infant child R.L.2 (§ 300, subd. (b)(1).) HSA said
that Mother gave birth to the child who tested positive for
codeine, morphine, methamphetamine, and amphetamine at
birth, and that she has substance abuse and mental health
problems that interfere with her ability to care for the child.
HSA said Mother and Father had another child (N.L.) who
was declared a dependent of the juvenile court in 2019 “due to the
child’s positive toxicology results at birth and the parents[’]
substance abuse.” In that prior case, N.L. was placed in a “legal
guardianship,” the parents were “bypassed for services,” and that
dependency case was dismissed.
In the current case involving R.L., HSA said the parents
have “failed to benefit from prior court intervention.” HSA
detained R.L.
At the detention hearing, Mother and Father did not
appear. HSA had obtained the parents’ signatures on “parental
notification of Indian status” ICWA-020 forms where they said,
among other things, that they and R.L. were not members or
eligible for membership in an Indian tribe and they had no lineal
2 Father is not a party to this appeal.
2
ancestors who are or were members of an Indian tribe. HSA
determined “there is no reason to believe the child is an Indian
Child.”
The juvenile court reviewed the ICWA forms and the HSA
determination on ICWA status and ruled R.L. had “no Indian
ancestry.” It also found detention was “necessary” for the child’s
protection. Aside from Father, HSA did not interview other
relatives on the paternal side of the family.
The juvenile court subsequently sustained the juvenile
dependency petition.
On November 2, 2020, at a jurisdiction and disposition
hearing, the juvenile court bypassed reunification services for
Mother. (§ 361.5, subd. (b)(3), (5), (6).)
At a contested section 366.26 hearing, the juvenile court
terminated Mother’s parental rights. It also found R.L. was
adoptable.
DISCUSSION
ICWA
Mother contends HSA did not conduct a sufficient ICWA
inquiry to determine whether R.L. is or may be an Indian child.
“Under California law, the court and county child welfare
department ‘have an affirmative and continuing duty to inquire
whether a child,’ who is the subject of a juvenile dependency
petition, ‘is or may be an Indian child.’ ” (In re Austin J. (2020)
47 Cal.App.5th 870, 883.) “The juvenile court must ask the
participants in a dependency proceeding upon each party’s first
appearance ‘whether the participant knows or has reason to
know that the child is an Indian child.’” (Ibid.) An Indian child
“is an unmarried individual under age 18 years, who is either (1)
a member of a federally recognized Indian tribe, or (2) is eligible
3
for membership in a federally recognized tribe and is the
biological child of a member of a federally recognized tribe.” (Id.
at p. 886.) A parent’s statement that there is a “possibility that
the children may have [Indian] ancestry” is not sufficient to
trigger ICWA notice to tribes. (Id. at p. 887.)
Mother contends HSA did not conduct a sufficient ICWA
inquiry with the child’s parents and the extended family
members. She claims a reversal and remand are required for
HSA to conduct new ICWA inquiries of the parents and the
maternal and paternal family members.
HSA agrees that its ICWA inquiry was not sufficient with
respect to the child’s paternal relatives. But it contends Mother
has not shown that it failed to conduct ICWA inquiries with
R.L.’s parents and the child’s maternal relatives. Consequently,
a remand should only apply for it to make further inquiry about
potential Indian heritage involving the child’s paternal relatives.
We agree.
HSA’s ICWA Inquiry with the Parents and Maternal Relatives
Mother notes that she was not present at the initial
detention hearing, but she and Father “were present at
subsequent hearings and . . . were never personally asked by the
court whether or not the child is or may be an Indian child.”
But Mother concedes that she and Father filled out the
ICWA-020 form and they answered “not applicable” to all of the
following categories: “ ‘(a) I am or may be a member of, or eligible
for membership in, a federally recognized tribe; [¶] (b) The child is
or may be a member of, or eligible for membership in, a federally
recognized tribe; [¶] (c) One or more of my parents, grandparents,
or other lineal ancestors is or was a member of, or eligible for
membership in, a federally recognized tribe; [¶] (d) I am a
4
resident of or am domiciled on a reservation . . . ; [¶] (e) The child
is a resident of or is domiciled on a reservation . . . ; [¶] (f) The
child is or has been a ward of a tribal court; [¶] (g) Either parent
or the child possesses an identification card indicating
membership or citizenship in an Indian tribe.’ ” (Italics added.)
Mother claims the ICWA-020 form, in its current version,
does not give her the opportunity to state there is a possibility
that the child may have Indian ancestry. The prior ICWA form
permitted parents to state “the children may have Indian
ancestry.” (In re T.G. (2020) 58 Cal.App.5th 275, 283.)
But even if the current form had such a category, checking
that box would not be sufficient to show the child is an Indian
child. (In re Austin J., supra, 47 Cal.App.5th at pp. 886-887.)
The statements of belief that a child has Indian ancestry “is not
among the statutory criteria for determining whether there is a
reason to know a child is an Indian child. The statements,
therefore, do not constitute information that a child ‘is an Indian
child’ or information indicating that the child is an Indian child,
as is now required under both California and federal law.” (Id. at
p. 887, italics added.) Consequently, a parent who merely makes
such a statement does not “show that the court erred in failing to
ensure that notice of the proceedings was provided in accordance
with ICWA.” (Ibid.)
Mother cites In re T.G., supra, 58 Cal.App.5th 275, and
notes there the court held a child welfare agency had a
continuing duty to investigate ICWA eligibility, and its failure to
do so required a section 366.26 hearing order to be reversed. But
that case is distinguishable because in T.G. there was a reason
for a further ICWA inquiry. The parent in that case claimed she
may have had ancestral heritage from the Cherokee tribe.
5
Neither parent here has made such a claim or has identified any
specific tribe. Instead, their unequivocal not applicable answers
to the current ICWA-020 form categories show they and the child
are not members of a tribe, not eligible for membership, and have
no lineal ancestors who were members of a tribe or eligible for
membership in a tribe. (In re Austin J., supra, 47 Cal.App.5th at
pp. 886-887.) They have made no claim in the trial court, or on
appeal, of any ancestry connected to any specific Indian tribe.
Motion to Augment the Record
HSA claims it conducted an ICWA investigation with
maternal relatives as shown in its motion to augment the record.
We grant HSA’s motion to augment the record.
In appropriate cases the record may be augmented to show
ICWA compliance and to take judicial notice of prior juvenile
court records involving the same parents. (Evid. Code, § 452,
subd. (d); In re A.B. (2008) 164 Cal.App.4th 832, 841, 843; In re
C.D. (2003) 110 Cal.App.4th 214, 224, 226; see also San Jose
Neurospine v. Aetna Health of California, Inc. (2020) 45
Cal.App.5th 953, 960; American Contractors Indemnity Co. v.
County of Orange (2005) 130 Cal.App.4th 579, 581, fn. 1.)
Moreover, “[a] reviewing court has discretion to grant or
deny a motion to receive evidence on appeal.” (In re Marriage of
Crook (1992) 2 Cal.App.4th 1606, 1612.) Code of Civil Procedure
section 909 “permits appellate courts” to “ ‘take additional
evidence of or concerning facts occurring at any time prior to the
decision of the appeal’ ” and may be properly applied to achieve a
just result in a juvenile dependency case. (In re Elise K. (1982) 33
Cal.3d 138, 149 (conc. opn. of Bird, C.J.); id. at p. 151 (conc. opn.
of Bird, C.J.).) Appellate courts in juvenile dependency cases
have admitted evidence on appeal of ICWA compliance
6
documents. (In re E.W. (2009) 170 Cal.App.4th 396, 403, fn. 2; In
re Christopher I. (2003) 106 Cal.App.4th 533, 562 [ICWA evidence
added on appeal on the court’s own motion]; In re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1412.)
The declaration of HSA’s counsel includes juvenile court
records. HSA states the court records show HSA completed an
ICWA inquiry with “the parents and the maternal relatives”
involving R.L.’s full sibling N.L. in a prior dependency case “a
year and a half ago.” In that prior case, involving these parents,
the juvenile court ruled ICWA did not apply to N.L. The records
include an “Indian Child Inquiry Attachment” with a declaration
of the social worker declaring, “The child has no known Indian
ancestry.” HSA claims a judicial council court form shows HSA
interviewed the parents and maternal relatives in its ICWA
inquiry.
Mother objects to the motion and HSA’s factual claims. But
she has not filed a declaration to contest the facts HSA stated
(Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 961), and
has not shown any statements are untrue or that the attached
court documents are not authentic. Mother claims it is unfair for
HSA to rely on court records from a prior case. But Mother was a
party in that case. In her opposition, she essentially attempts to
collaterally challenge the juvenile court’s ICWA finding in the
prior N.L. case. But she has not shown why such a claim may be
asserted at this late date or why she is not bound by that prior
court finding. (In re E.W., supra, 170 Cal.App.4th at pp. 400-401;
City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 490.)
Mother claims this appellate motion is unnecessary and
unauthorized. But adding ICWA compliance court records on
appeal is a recognized procedure justified by the need to avoid
7
undue delays that harm the interests of dependent children.
(Evid. Code, § 452, subd. (a); In re E.W., supra, 170 Cal.App.4th
at pp. 401-402; In re A.B., supra, 164 Cal.App.4th at pp. 841, 843;
In re C.D., supra, 110 Cal.App.4th at pp. 224, 226; In re Marriage
of Crook, supra, 2 Cal.App.4th at p. 1613.) Her argument also
fails to consider our authority to take judicial notice of court
records. (San Jose Neurospine v. Aetna Health of California, Inc.,
supra, 45 Cal.App.5th at p. 960; Pinela v. Neiman Marcus Group,
Inc. (2015) 238 Cal.App.4th 227, 235-236, fns. 2 & 3 [appellate
court on its own motion may take judicial notice of records of
other cases]; In re David C. (1984) 152 Cal.App.3d 1189, 1204
[judicial notice may be taken of “facts asserted in findings and
orders in a prior juvenile court proceeding”].)
Mother suggests the documents in the HSA motion are not
material to the current case. But in deciding HSA’s duty to make
further ICWA inquiry, it is highly relevant that Mother and
Father have repeatedly represented to HSA that neither they nor
their children are members, or eligible for membership, in an
Indian tribe and they have no lineal ancestors who are or were
tribal members. There is also a highly relevant connection
between the prior case and this case. In the juvenile dependency
petition in this case, HSA alleged the prior case involving N.L.
was a relevant related case, it included facts about it, showed its
relevance, and it described the ultimate decision and result. The
court in the current case sustained the allegations of the
dependency petition which necessarily included the facts about
the N.L. case. Moreover, because of the result in the N.L. case,
Mother was bypassed for reunification services in this case.
HSA also notes, “[T]he ICWA-related inquiries that were
made during the investigation that led to [N.L.’s] detention were
8
more expansive than the current inquiry that is directed by the
March 2020 version of the ICWA form, as it included questions
about whether a ‘child may have Indian ancestry.’ ” (Some italics
added.)
Mother responds that HSA has selectively cherry-picked
documents from the N.L. case in making this claim, and that
there might be other documents that refute it. But nothing
prevented Mother from presenting ICWA documents she signed
in the N.L. case as part of her opposition to HSA’s motion to
augment, and her failure to do so does not support her claim.
(Evid. Code, § 412; Sacks v. FSR Brokerage, Inc., supra, 7
Cal.App.4th at p. 961.) Moreover, HSA’s point about the
difference in the ICWA forms over the two time periods is both
well-established (In re T.G., supra, 58 Cal.App.5th at pp. 282-
283), and a point Mother also raises on this appeal. But even so,
because this case has to be remanded, if Mother’s cherry-picking
claim has merit, the juvenile court will have an opportunity to
consider it.
HSA cites In re Charles W. (2021) 66 Cal.App.5th 483, and
claims that case also supports its motion. There the issue was
whether a child was an Indian child. In a prior dependency case,
the juvenile court ruled the child’s full siblings were not Indian
children. Because all the siblings shared the same ancestry, the
court’s prior ICWA ruling established that the child in that
current case was also not an Indian child. Here, under
Charles W., because of the juvenile court’s prior ICWA ruling,
N.L. and R.L., as full siblings, would share the same biological
history on the maternal side of the family, and therefore not be
Indian children when considering that maternal lineage. (Ibid.;
In re E.W., supra, 170 Cal.App.4th at p. 400.)
9
Mother has not shown that HSA did not conduct an ICWA
inquiry of the parents and maternal relatives.
But because HSA concedes it did not conduct an ICWA
inquiry of the paternal relatives, a conditional reversal and
remand is required. If on remand HSA conducts a sufficient
ICWA inquiry and complies with ICWA requirements, and if the
juvenile court subsequently finds ICWA does not apply, the court
shall then reinstate the order terminating parental rights. (In re
Jonathan D. (2001) 92 Cal.App.4th 105, 111-112.)
DISPOSITION
The order terminating parental rights is conditionally
reversed and the matter is remanded for further proceedings
consistent with this opinion.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
10
Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Tiffany N. North, County Counsel, Ilene F. Mickens, Assistant
County Counsel, for Plaintiff and Respondent.
11