J.W. v. Superior Court CA2/5 ( 2022 )

Filed 7/14/22 J.W. v. Superior Court CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
B316616
J.W. et al., (Los Angeles County
Super. Ct. No.
Petitioners, 20CCJP04741A)
v.
LOS ANGELES COUNTY
SUPERIOR COURT,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for extraordinary writ.
Superior Court of Los Angeles County, Daniel Zeke Zeidler,
Judge. Petition conditionally granted.
Nicole J. Johnson, Nairi Dulgarian, Law Office of Jolene
Metzger, for Petitioner J.W.
Steven Shenfeld, David Paul, Law Office of Martin Lee, for
Petitioner L.M.
No appearance for Respondent.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel, for Real Party in Interest.
________________________________
I. INTRODUCTION
This is the second time we have been asked to consider the
adequacy of the efforts of the Los Angeles County Department of
Children and Family Services (Department) to investigate
father’s claims of Native American ancestry. On a previous
appeal from the juvenile court’s jurisdictional findings and
disposition orders, we concluded that the Department’s inquiry
efforts were inadequate and remanded the matter to the juvenile
court to ensure additional investigation of father’s Indian
ancestry claims pursuant to the Indian Child Welfare Act
(ICWA).
Father and mother of now two-year-old J.W. contend the
Department’s investigation and notice efforts after remand
remain inadequate and, therefore, the juvenile court’s findings
that the Department has completed its ICWA investigation and
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there is no reason to know J.W. is an Indian child are not
supported by substantial evidence. We agree.
II. BACKGROUND
A. August 6, 2020 to November 16, 2020
On September 9, 2020, the Department filed a petition on
behalf of then-one-month-old J.W. pursuant to Welfare and
Institutions Code section 300.1
The petition was preceded by an investigation by the
Department, during which father “confirmed” to the Department
on August 6, 2020, that he has Native American ancestry and is
“linked” with the Blackfoot2 and Cherokee tribes. He planned to
register with the tribes. Father subsequently filed a Parental
Notification of Indian Status stating he may have Indian
ancestry with the Cherokee tribe.
On September 29, 2020, paternal aunt L.W. told the
dependency investigator that her family may have Cherokee and
1 All further statutory references are to the Welfare and
Institutions Code.
2 “[T]here is frequently confusion between the Blackfeet
tribe, which is federally recognized, and the related Blackfoot
tribe, which is found in Canada and thus not entitled to notice of
dependency proceedings. When Blackfoot heritage is claimed,
part of the [Department]’s duty of inquiry is to clarify whether
the parent is actually claiming Blackfoot or Blackfeet heritage so
that it can discharge its additional duty to notice the relevant
tribes.” (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
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Blackfeet heritage, but she did not have any “information.” She
stated that paternal uncle M.U. had “all of the information” and
gave the dependency investigator his telephone number.
Paternal aunt L.W. provided paternal grandmother’s name, date
and place of birth, and date and place of death, and paternal
grandfather’s name and place and date of birth. She stated that
paternal grandfather suffered from dementia. She did not know
paternal great-grandmother’s date of birth or death or,
apparently, her name. She provided paternal great-grandfather’s
name, but did not know his date of birth or death.
On September 29, October 1, and October 5, 2020, the
dependency investigator tried, unsuccessfully, to contact paternal
uncle M.U. by telephone. She left a message each time, but he
did not return her calls.
The dependency investigator stated that father had not
been interviewed as he had not made himself available. She
stated she would continue to attempt to interview father about
ICWA.
On October 8, 2020, the Department mailed notices to the
Cherokee and Blackfeet tribes with “the information obtained so
far.”
In a Last Minute Information for the Court, filed on
October 15, 2020, the Department reported that on
October 8, 2020, it mailed ICWA notices to the “Bureau of Indian
Affairs Federal Office Building, Secretary of the Interior, the
Blackfeet Tribe of Montana, Cherokee Nation, Eastern Band of
Cherokee Indians, and the United Keetoowah Band of Cherokee.”
By the October 30, 2020, jurisdiction hearing, the only
return receipt received was from the Bureau of Indian Affairs.
After considering the evidence and the parties’ arguments, the
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juvenile court sustained the section 300 petition and continued
the disposition hearing to November 16, 2020.
At the November 16, 2020, disposition hearing, the juvenile
court removed the child from the parents’ custody, ordered the
Department to provide father with reunification services, and
denied mother reunification services. It then set the matter for a
progress hearing on January 15, 2021, and ordered the
Department to file a progress report one week before the hearing
that was to include the ICWA return receipts, responses from the
tribes, and efforts to contact the outstanding tribes. Mother and
father appealed from the jurisdictional findings and disposition
order.
B. Tribal Responses to ICWA Notices
On January 4, 2021, while the parents’ appeal was
pending, the Department filed an Interim Review Report
regarding further correspondence with the Blackfeet and
Cherokee tribes. The Blackfeet Tribe of Montana responded in
writing that the tribe was not able to find the child on the tribal
rolls, the tribe’s blood quantum requirement for enrollment is
“1/4 Blackfeet blood,” and the child is not eligible for enrollment
with the tribe. The Eastern Band of Cherokee Indians responded
that it had reviewed the tribe’s registry and the child was not a
tribal member or eligible for membership based on the
information provided by the Department.
In a Last Minute Information filed on February 19, 2021,
the Department reported it had also received a written response
from the United Keetoowah Band of Cherokee Indians, which
indicated it had reviewed the tribe’s registry, the tribe’s blood
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quantum requirement for enrollment is “1/4 . . . Keetoowah
(Cherokee) blood,” and the child was not a tribal member or
eligible for membership in the tribe based on the information
provided.
On April 19, 2021, the Department reported that a
representative of the Cherokee Nation, which had previously
indicated it was “extremely back logged” in processing ICWA
notices, had told a social worker over the telephone that the tribe
would likely provide a response within the next 30 days. A
month later, the Cherokee Nation informed the Department in
writing that the child “could POSSIBLY be connected to the
Cherokee Nation” but an accurate determination could not be
made without information about L.W. and M.U.’s relationships to
the child, or their middle names and/or dates of birth.
C. Appeal and Limited Remand
On appeal from the juvenile court’s jurisdictional findings
and disposition order, we concluded that while the court and the
Department met their initial inquiry duties, the Department did
not meet its duty of further inquiry under ICWA.
Specifically, we noted the Department failed to interview
the following individuals concerning father’s claimed Indian
ancestry: father; paternal aunts G.U. and Kay; and paternal
uncle M.U. We also concluded that the Department’s interview of
paternal aunt L.W. was incomplete. L.W. confirmed father’s
claim of possible Cherokee and Blackfeet heritage and provided
biographical information for paternal grandmother and
grandfather and paternal great-grandfather, but the Department
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did not obtain or include those relatives’ current or former
addresses.
In an opinion filed July 20, 2021, we conditionally affirmed
the juvenile court’s jurisdiction and disposition orders and
remanded the matter with directions to the juvenile court to
order the Department to make further inquiry into Father’s
Cherokee and Blackfeet ancestry and, if necessary, to provide
notice to any tribe. (In re J.W. (July 20, 2021, B309011) [nonpub.
opn.], pp. 16–17.) Remittitur issued on September 23, 2021.
D. Further Inquiry After Remand
On August 3, 2021, a social worker spoke to father again
about his Native American ancestry. Father reported paternal
great-grandparents were “Cherokee and Blackfoot.” When the
social worker asked for their identifying information, father said
he would call back with that information. On April 10, 2021, the
social worker asked father for the information again, but father
refused to provide it, became hostile, and said, “‘Why should I
help you with your job?’” On September 23, 2021, father again
said he had given the Department the information he knew and
added that “relatives that know have passed away.”
The Department also contacted paternal aunt L.W. again.
L.W. said paternal great-grandfather Robert Underwood had
“Cherokee heritage,” although she did not know if he was a tribal
member. L.W. also provided paternal grandmother’s name,
Leona W., and birth date and month, but she did not know the
years of her birth or death. In a subsequent conversation, L.W.
also provided the social worker with her full name and birth date
and paternal uncle M.U.’s full name and telephone number. A
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month later, L.W. gave a different last name for paternal great
grandfather, “Moore,” and said he had Cherokee ancestry and
once lived on a reservation before “he left.” L.W. did not have any
other identifying information for paternal great-grandfather. She
provided a last known address on Ezmirlian Street in Compton,
California for paternal grandmother Leona W.
A social worker called paternal aunt G.U. on
September 11, 13, and 22, 2021 and tried to leave messages, but
her voicemail was full.
On September 1, 2021, a social worker spoke with paternal
uncle M.U., who said the family had Indian ancestry but he did
not know their tribal affiliation. He later said he knew about the
Indian ancestry through paternal great-grandmother, Amanda
Lee. M.U. did not know Amanda Lee’s date of birth or paternal
grandmother Leona W.’s date of death. He was able, however, to
provide Leona W.’s date of birth.
On September 3, 2021, the Department informed the
Cherokee Nation in writing of L.W. and M.U.’s birth dates. The
Cherokee Nation’s eligibility unit replied via e-mail L.W. and
M.U. were not registered as tribal members and that the child
was not an “Indian child” of the Cherokee Nation.
E. Twelve-Month Review Hearing
The juvenile court held a 12-month review hearing on
October 28, 2021. Neither parent was present. The court found
“the ICWA investigation and notice [were] complete” and that
there was no reason to know the child was an “Indian child” as
defined by ICWA. No party objected to the findings. The court
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then terminated father’s family reunification services and set the
matter for a hearing pursuant to section 366.26.
Mother and father each filed notices of intent to file a writ
petition. On March 21, 2022, father filed a petition for
extraordinary writ, arguing the juvenile court erred when
terminating reunification services and setting the matter for a
366.26 hearing because the Department did not fully comply with
its ICWA-related further inquiry and notice duties by failing to
“[s]hare [n]ew [r]elative [i]dentifying [i]nformation [w]ith the
[t]ribes.” Mother filed a joinder to the petition. We issued an
order to show cause and now conditionally grant the petition.
III. DISCUSSION
A. Legal Principles and Standard of Review
Pursuant to ICWA, “‘[i]n any involuntary proceeding in a
State court, where the court knows or has reason to know that an
Indian child is involved, the party seeking . . . termination of
parental rights to[ ] an Indian child shall notify the parent or
Indian custodian and the Indian child’s tribe’ of the pending
proceedings and its right to intervene. (25 U.S.C. § 1912(a); In re
Isaiah W. (2016) 1 Cal.5th 1, 8 . . . .) ‘As the Supreme Court
recently explained, notice to Indian tribes is central to
effectuating ICWA’s purpose, enabling a tribe to determine
whether the child involved in a dependency proceeding is an
Indian child and, if so, whether to intervene in or exercise
jurisdiction over the matter. ([In re ]Isaiah W., supra, 1 Cal.5th
at pp. 8[–]9.)’ [Citation.]” (In re H.V. (2022) 75 Cal.App.5th 433,
436–437.)
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We review claims of inadequate inquiry into and notice of a
child’s Indian ancestry for substantial evidence. (In re H.V.,
supra, 75 Cal.App.5th at p. 438.)
B. Duty of Inquiry
“The court, county welfare department, and the probation
department have an affirmative and continuing duty to inquire
whether a child for whom a petition under [s]ection 300, 601, or
602 may be or has been filed, is or may be an Indian child. The
duty to inquire begins with the initial contact, including, but not
limited to, asking the party reporting child abuse or neglect
whether the party has any information that the child may be an
Indian child.” (§ 224.2, subd. (a).) “If the court, social worker, or
probation officer has reason to believe that an Indian child is
involved in a proceeding, but does not have sufficient information
to determine that there is reason to know that the child is 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).) “If there is reason to know . . . the child is an
Indian child, the party seeking foster care placement shall
provide notice” to the child’s parents or guardians, and to the
child’s tribe, in accordance with section 224.3. (§ 224.2, subd. (f).)
Parents contend the Department did not satisfy its inquiry
and/or notice duties because it did not include the following
information in its October 2020 ICWA notices or share the
information with the Cherokee Nation via e-mail: (1) paternal
great-grandmother’s name, Amanda Lee; (2) paternal
grandmother’s last known address on Ezmirlian Street in
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Compton; and (3) information that paternal great-grandfather,
who L.W. believed had Cherokee ancestry and lived on a
reservation before “he left”, had a different last name, Moore.
We previously concluded the Department’s inquiry was
inadequate because it did not interview (or adequately interview)
father, paternal uncle M.U., and paternal aunts G.U., L.W., and
Kay. The record reflects that the Department completed these
interviews after the matter remanded to the juvenile court, and
the parents do not contend otherwise. Rather, the parents argue
that the Department also should have provided the tribes with
newly obtained information regarding various paternal relatives’
identities and last known address.
Under section 224.2, subdivision (e)(2)(C), the
Department’s further inquiry duties include “[c]ontacting 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.” (§ 224.2, subd. (e)(2)(C).)
“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” ICWA. (Ibid.) “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.” (Ibid.)
In light of new information provided by L.W. that paternal
great-grandfather once lived on a reservation, we agree that
paternal great-grandfather’s last name was information that
should have been shared with the Cherokee Nation as part of the
Department’s further inquiry duties. Although the Cherokee
Nation had responded the child is not an “Indian child” in
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relation to the tribe, the response specifies that “[a]ny incorrect
or omitted information could invalidate this determination.” The
October 2020 notice to the Cherokee Nation included paternal
grandfather’s name, but the last name used was “Underwood”
and not “Moore.” In addition, while the Department informed the
Cherokee Nation by letter on September 3, 2021, of paternal aunt
L.W. and paternal uncle M.U.’s respective dates of birth, it failed
to include paternal great-grandmother’s name, paternal
grandmother’s last known address, or information that paternal
great grandfather may have had a different last name, Moore.
(See In re S.R. (2021) 64 Cal.App.5th 303, 317 [grandparents’
statement that great-grandmother was member of the Yaqui
tribe of Arizona was “very specific evidence of Indian ancestry,”
triggering duty to further investigate children’s potential Indian
ancestry prior to termination of parental rights].)
Because the Department did not provide reasonably
available and relevant information to the Cherokee Nation when
it solicited the tribe’s assistance in determining whether there is
reason to know the child is an Indian child, we conclude the
Department’s further inquiry efforts were inadequate and
prejudicial.3 (See In re H.V., supra, 75 Cal.App.5th at p. 438.)
C. Duty of Notice
The Department also has an obligation to provide sufficient
notice to Indian tribes, which duty is triggered when the
3 Parents do not contend additional relative information
should have been shared with any tribe other than the Cherokee
Nation as part of the Department’s further inquiry efforts.
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Department has a “reason to know” a child is an Indian child.
(§ 224.3, subdivision (a)(3).) There is “reason to know” a child is
an Indian child when any of the following is true: “(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 [he or she] is an Indian child[;] [¶]
(5) The court is informed that the child is or has been a ward of a
tribal court[; or] [¶] (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).)
The record does not establish any of the listed
circumstances for having a “reason to know” the child is an
Indian child, and the parents have not argued otherwise. The
Department therefore had no duty to provide formal notice in
accordance with section 224.3, much less any duty to provide
amended notice. Accordingly, we reject the parents’ suggestion
that the Department improperly discharged any notice
requirements.
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IV. DISPOSITION
The petition for extraordinary writ is conditionally granted.
The matter is remanded with directions to the juvenile court to
order the Department to comply with ICWA as follows:
1. The Department shall conduct further inquiry
concerning father’s Cherokee ancestry by providing additional
information to the Cherokee Nation, including (1) paternal great-
grandmother’s name, Amanda Lee; (2) paternal grandmother’s
last known address on Ezmirlian Street in Compton, California;
and (3) paternal great-grandfather’s last name, “Moore.”
2. If from that further inquiry the Department has a
reason to know the child is an Indian child, then it shall comply
with the formal notice requirements in section 224.3.
3. The Department shall document its investigation,
including contact with tribes, if any, and any information
obtained from the tribes, and provide that documentation to the
juvenile court.
4. The juvenile court shall conduct a noticed hearing to
review the adequacy of the Department’s investigation. If the
court determines the Department’s investigation was adequate
and there is no reason to know the child is an Indian child as that
term is defined under ICWA, then the order setting a hearing
pursuant to section 366.26 shall be reinstated.
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5. If the court determines the Department’s
investigation was adequate and there is a reason to know the
child is an Indian child as that term is defined under ICWA, then
the Department shall provide adequate ICWA notice to the tribe
or tribes, mother, father, and the regional Bureau of Indian
Affairs and shall proceed thereafter in compliance with ICWA
and related California statutes and court rules.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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