In re Daniel C. CA2/3 ( 2022 )

Filed 8/2/22 In re Daniel C. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re DANIEL C., a Person Coming B315644
Under the Juvenile Court Law.
_____________________________________
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 18CCJP00018A)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARIA V. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Steff Padilla, Commissioner. Affirmed.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant Maria V.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant Daniel C.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Veronica Randazzo, Deputy County
Counsel for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Maria V. (mother) and Daniel C., Sr. (father) appeal from
the juvenile court’s order terminating parental rights to their son,
Daniel C., and mother appeals from an order denying her
modification petition under Welfare and Institutions Code 1
section 388. Both parents contend the orders terminating
parental rights should be reversed because the Los Angeles
County Department of Children and Family Services (DCFS)
failed to comply with its duty of inquiry under state laws
implementing the Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.) because it did not ask certain extended
family members if Daniel had Indian ancestry. Mother
additionally asserts that the juvenile court abused its discretion
by denying her request for increased visitation. We conclude the
juvenile court did not abuse its discretion by finding that DCFS
conducted an adequate ICWA investigation or by denying
mother’s petition to change court order. We therefore will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Father’s prior dependency history.
Father has three older children with a former wife: Kaia,
Aiden, and Jude. In 2000, the juvenile court sustained a
dependency petition alleging that Kaia was discovered at the age
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
2
of three months to have suffered subdural hematomas with
chronic bleeding from the brain, fractured ribs, and retinal
hemorrhaging. Kaia was removed from her parents’ care and
placed in a long-term guardianship.
In 2010, an allegation was substantiated that father had
sexually abused Aiden. In 2011, a civil protective order was
entered protecting Aiden and Jude from father for five years.
In 2016, the juvenile court sustained allegations that Aiden
and Jude were the victims of physical abuse by father and
domestic violence between father and their mother.
Reunification services for father were terminated in October
2017, and the children were placed with their mother.
II. Present petition.
Mother and father brought three-month-old Daniel to the
hospital in December 2017 because he had a swollen left leg.
Doctors determined that Daniel had sustained multiple fractures,
including to his ribs, clavicle, pelvis, and tibia, which were at
different stages of healing. The injuries appeared to be non-
accidental and the parents were not able to explain them.
In January 2018, DCFS filed a juvenile dependency
petition alleging that Daniel was at substantial risk of serious
physical harm because he had suffered multiple unexplained
fractures and his paternal half-sibling had suffered similar
injuries at the same age (counts a-1, b-2, e-1, j-1).2 A first
amended petition filed in February 2018 added an additional
allegation that Daniel had been diagnosed as failing to thrive.
2 The petition also alleged that the parents failed to obtain
timely medical care for Daniel’s injuries. The court dismissed
this count.
3
On January 3, 2018, the juvenile court ordered Daniel
detained from both parents, and in late January 2018, Daniel
was placed with his godmother, Vanessa L., who is the
prospective adoptive parent. In May 2018, the court sustained
counts a-1, b-1, and e-1 of the petition, and dismissed count j-1.
III. Disposition.
Mother reported that she had been raised by her mother
and father and was an only child. Her father had died about
15 years earlier. She has three adult children: Maria, Armando,
and Antonio. Mother expressed surprise that Daniel’s injuries
were being compared to Kaia’s, for which she denied father was
responsible. Mother did not suspect that father had caused
Daniel’s injuries.
Father said he had been removed from his parents as a
child due to severe physical child abuse, and he had been raised,
along with his six siblings, by his maternal uncle and aunt. His
mother suffered from bipolar disorder and schizophrenia, and his
parents spent time in prison for child abuse. Father believed his
mother lived in Arizona and his father lived in Huntington Park,
but he was not in contact with them. The uncle who raised him
had died in 2015, and father was not in contact with his uncle’s
wife. He was close with his brother Michael, with whom he had
been raised.
Father has a lengthy criminal history, including convictions
for spousal abuse, grand theft, and burglary. He denied causing
Daniel’s injuries but could not explain how they had happened.
He also denied injuring Kaia, saying she had not been under his
care when she was injured.
In April 2018, four months after Daniel was placed in foster
care, mother and father married.
4
At the September 6, 2018 disposition hearing, the juvenile
court denied father reunification services, concluding that he had
injured three children and had no insight into child protection.
Over DCFS’s objection, the court granted mother reunification
services, telling mother: “[Y]ou have a choice today: Your baby
or your husband. I’m sorry. That is the reality.” Mother
responded: “My baby, obviously.” The court therefore granted
mother monitored visits and ordered her to participate in
domestic violence counseling, a domestic violence support group
for victims, and individual counseling to address case issues,
telling mother she had “a lot of work to do to show me [you’re] not
going to that let that man, that father, into this child’s life until
he does a whole lot of work.” Father was also granted monitored
visits, but mother and father were not to visit together.
IV. Subsequent events; termination of parental rights.
Following the September 2018 disposition hearing, Vanessa
told a children’s social worker (CSW) that mother had said she
had no intention of ending her relationship with father and
intended to resume seeing him after the case was over.
In early January 2019, mother claimed father had moved
out of her home and was living with his brother Michael. The
following month, however, the CSW observed father’s truck
parked in front of mother’s house and saw father leave mother’s
home in the early morning. The same month, the CSW noted
that mother’s Facebook profile included a picture of father, and
mother had recently posted a picture of the family together on
New Year’s Day.
In November 2019, mother reported that she was no longer
seeing father and they were divorced. However, photographs and
5
text messages between mother and father indicated they were
still romantically involved.
In December 2019, DCFS reported that mother had
completed her court-ordered services and was voluntarily
participating in individual therapy, but she had not been
forthcoming about her continued relationship with father. DCFS
therefore recommended that mother’s reunification services be
terminated.
In January 2020, the CSW was told that mother and father
recently had been seen together at a community event. The CSW
spoke with a waitress at the restaurant where the event was
held, who confirmed mother and father had been there together
and had spent an hour kissing “like . . . teenagers.” Father
confirmed he had been at the restaurant on that date, but he
denied mother was with him. The waitress subsequently
reported that she had received a phone call from someone who
claimed to be representing the C. family and threatened she
would be harmed if she appeared at a hearing.
In May 2020, police were called to mother’s residence
because of an altercation between father and mother’s adult son,
Antonio. Antonio said father had yelled profanities at his sister,
Maria, after she inadvertently opened a DCFS report that
described why Daniel had been removed from the parents. When
Antonio told father not to speak to his sister that way, father
grabbed Antonio around the neck, injuring him, and mother
kicked Antonio and Maria out of the house. Both Antonio and
Maria told DCFS that father had never moved out of mother’s
house and had rented a room elsewhere only to deceive the court.
Both siblings separately told DCFS they supported Daniel
6
remaining with his caregiver because they did not believe mother
would protect Daniel from father.
On September 22, 2020, the trial court terminated mother’s
reunification services, finding that mother was not in compliance
with the case plan due to her continued contact with father. The
court found that mother had consistently chosen father over
Daniel and would continue to do so in the future.
V. Denial of mother’s section 388 petition; termination
of parental rights.
Mother filed a request to change court order pursuant to
section 388 in March 2021. Mother asked that her reunification
services be reinstated and Daniel be returned to her care or, in
the alternative, that her visitation be increased. Mother asserted
that circumstances had changed because she had completed her
case plan and “made significant personal changes and
improvements” which would allow her to properly parent and
protect her child. She further asserted that the proposed change
would be in Daniel’s best interests because he was deeply bonded
to mother and wanted to return to her care.
DCFS reported that mother had consistently participated
in virtual visits with Daniel, but he acted out during visits by
walking away from the phone or covering his face. Once, he
threw the caregiver’s phone on the floor and broke it. During a
virtual visit observed by the CSW, Daniel said hello to mother
and then ran away. When the caregiver tried to redirect him
back to the phone, he screamed, threw himself on the floor and
kicked, said, “No, no, no,” and again ran away from the phone.
DCFS further reported that although mother had filed for
divorce from father in August 2019, the matter was taken off
7
calendar when mother did not appear. Notices sent to mother in
June and December 2020 said the divorce was incomplete.
At a September 21, 2021, hearing, the court found that
mother had not demonstrated a substantial change of
circumstances or that the relief she requested was in Daniel’s
best interests. It therefore denied mother’s section 388 petition.
On October 5, 2021, the court terminated mother’s and
father’s parental rights to Daniel. Both parents timely appealed.
VI. ICWA inquiry.
On December 17, 2017, the CSW signed under penalty of
perjury an Indian Child Inquiry Attachment (ICWA-010) stating
that an Indian child inquiry had been made and Daniel “has no
known Indian ancestry.”
On January 3, 2018, both parents signed ICWA-020 forms
denying Indian ancestry. The forms stated: “To the parent,
Indian custodian, or guardian of the above-named child: You
must provide all the requested information about the child’s
Indian status by completing this form. If you get new
information that would change your answers, you must let your
attorney, all the attorneys on the case, and the social worker or
probation officer, or the court investigator know immediately and
an updated form must be filed with the court.”
The same day, the court noted on the record, in the
presence of several members of the extended family, that it had
received parents’ ICWA-020 forms indicating no Indian ancestry.3
3 It is not entirely clear from the record which members of
the extended family were present in the courtroom. Minor’s
counsel stated that there were “quite a bit of relatives” in the
courtroom, including the paternal aunt, paternal cousin, adult
8
It therefore found “no reason to know or believe that the child is
an Indian child as that term is defined by the Indian Child
Welfare Act.” The January 3, 2018 minute order states: “The
Court does not have a reason to know that this is an Indian
Child, as defined under ICWA, and does not order notice to any
tribe or the BIA. Parents are to keep the Department, their
Attorney and the Court aware of any new information relating to
possible ICWA status. JV-020, the Parental Notification of
Indian Status, is signed and filed.”
At the disposition hearing, and again at the termination
hearing, the court found that Daniel was not an Indian child and
ICWA did not apply.4
sibling, paternal grandmother, and godmother. Mother’s counsel
then made a “correction,” stating that the people present were
the maternal grandmother, maternal aunt, maternal half-sibling,
and godmother. The same day, relative caretaker information
sheets were filled out by the maternal grandmother, maternal
half-sister Maria, paternal uncle Michael, godmother Vanessa,
and neighbor Anita D.
4 The jurisdiction/disposition report says that the parents
denied Indian ancestry on “1/16/17.” Since the case was not
opened until December 2017, the date is clearly in error. It is
likely the inquiry was made sometime between December 27,
2017, when the referral was received, and December 29, 2017,
when the CSW represented in the ICWA-010 form that an Indian
child inquiry had been made and Daniel had no known Indian
ancestry.
9
At various times during the proceedings, DCFS spoke to
the maternal grandmother, maternal half-sister Maria, paternal
uncle Michael, and a paternal aunt, Diane.5
DISCUSSION
Mother contends the juvenile court abused its discretion by
denying her section 388 petition, and both parents contend that
the court failed to ensure that DCFS made an adequate ICWA
inquiry. We disagree.
I. The juvenile court did not abuse its discretion by
denying mother’s section 388 petition.
Section 388 permits parents to petition the juvenile court
for modification of any order based upon changed circumstances.
(§ 388; In re Marilyn H. (1993) 5 Cal.4th 295, 308–309.) To be
entitled to modification, the parent must demonstrate both
changed circumstances and that the proposed change is in the
child’s best interests. (In re Alayah J. (2017) 9 Cal.App.5th 469;
Cal. Rules of Court, rule 5.570(a), (e).) We review the denial of a
section 388 petition for an abuse of discretion. (In re Mia M.
(2022) 75 Cal.App.5th 792, 806; In re D.P. (2022) 76 Cal.App.5th
153, 163.)
Mother’s section 388 petition requested that her
reunification services be reinstated and Daniel be returned to her
care or, in the alternative, that mother be permitted increased
5 Paternal aunt Diane C. contacted DCFS in early 2020 to
get information about the proceedings and to request that Daniel
be placed with her. She said she had learned about the juvenile
court proceedings through a sibling, but would not provide the
sibling’s name.
10
visitation. On appeal, mother does not contend the court should
have restored her reunification services, returned Daniel to her
care, or increased her visitation, but instead urges the trial court
abused its discretion by failing to ensure that mother received in-
person, rather than virtual, visitation.
Below, mother had in-person visits from the case’s
inception until the beginning of the Covid-19 pandemic, at which
time she began visiting virtually through FaceTime. Mother
reportedly was comfortable with virtual visits and did not ask
that in-person visits be resumed. Further, mother’s counsel did
not suggest, at either the September 20, 2020 hearing at which
mother’s reunification services were terminated, or at the
September 2021 hearing on mother’s section 388 petition, that
services had been inadequate because mother had not been
permitted in-person visits. Manifestly, the juvenile court did not
abuse its discretion by rejecting an argument mother did not
make. (See, e.g., In re Marriage of Falcone & Fyke (2008)
164 Cal.App.4th 814, 826 [appellate courts “ ‘are loath to reverse
a judgment on grounds that the opposing party did not have an
opportunity to argue and the trial court did not have an
opportunity to consider’ ”].)
Nor did the juvenile court abuse its discretion by
concluding that mother had not demonstrated changed
circumstances or that the proposed changes were in Daniel’s best
interests. Mother asserted in her petition that circumstances had
changed because she had completed her case plan and regularly
visited with Daniel, and that the proposed change was in his best
interests because he was deeply bonded to her. In fact, mother’s
completion of court-ordered services was not a change of
circumstance: DCFS reported in December 2019––nearly nine
11
months before the juvenile court terminated mother’s
reunification services––that mother had completed her court-
ordered services. DCFS nonetheless recommended that mother’s
reunification services be terminated because mother had
demonstrated a lack of protective capacity by continuing to be in
a relationship with father. The court agreed, noting when it
terminated mother’s services that “[m]other will always choose
the father over the baby.” Mother did not contend in her section
388 petition that she had ended her relationship with father, and
thus she failed to make a prima facie case of changed
circumstances.
There was, moreover, substantial evidence before the court
that Daniel was not bonded to mother. DCFS reported that
Daniel consistently acted out during virtual visits with mother,
running away from the phone, covering his face, and throwing
the caregiver’s phone on the floor. There is no evidence that
Daniel asked for mother between visits or said that he missed
her. On this record, therefore, the juvenile court did not abuse its
discretion by denying mother’s section 388 petition.
II. Substantial evidence supported the juvenile court’s
finding that ICWA did not apply.
A. ICWA.
ICWA was enacted “ ‘to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture . . . .’ [Citation.]”
12
(In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C.
§ 1902.)
“[T]he burden of coming forward with information to
determine whether an Indian child may be involved . . . in a
dependency proceeding does not rest entirely—or even
primarily—on the child and his or her family.” (In re Michael V.
(2016) 3 Cal.App.5th 225, 233.) Rather, “[j]uvenile courts and
child protective agencies have ‘an affirmative and continuing
duty to inquire’ whether a dependent child is or may be an Indian
child.” (Ibid.; see also Isaiah W., supra, 1 Cal.5th at pp. 9–11;
§ 224.2, subd. (a).) An “Indian child” is “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); see also § 224.1, subd. (a) [adopting federal
definition of “Indian child”].)
This affirmative duty to inquire has several elements. If a
child is removed from his or her parents and placed in the
custody of a county welfare department, the department has a
duty to inquire whether a child is an Indian child. Such inquiry
“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
. . . .” (§ 224.2, subd. (b).) The court also must make an ICWA
inquiry when the parents first appear in court: The court “shall
ask each participant present in the hearing whether the
participant knows or has reason to know that the child is an
Indian child” (§ 224.2, subd. (c)), and must require each party to
complete California Judicial Council Form ICWA-020, Parental
13
Notification of Indian Status (Cal. Rules of Court, rule
5.481(a)(2)(C)).
If the court or social worker has “reason to believe that an
Indian child is involved in a proceeding,” the court or social
worker must “make further inquiry regarding the possible Indian
status of the child” by, among other things, interviewing the
parents and extended family members, and contacting any tribe
that may reasonably be expected to have information about the
child’s membership, citizenship status, or eligibility. (§ 224.2,
subd. (e)(2).) There is “reason to believe” a child involved in a
proceeding is an Indian child whenever the court or social worker
“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.” (§ 224.2, subd. (e)(1).)
If the agency’s inquiry creates a “reason to know” that an
Indian child is involved, notice of the proceedings must be
provided to the parent, legal guardian, or Indian custodian and
the child’s tribe. (§ 224.2, subd. (f).) There is “reason to know” a
child is an Indian child if any one of six statutory criteria is
met—e.g., if the court is advised that the child “is an Indian
child,” the child’s or parent’s residence is on a reservation, the
child is or has been a ward of a tribal court, or either parent or
the child possess an identification card indicating membership or
citizenship in an Indian tribe. (§ 224.2, subd. (d).) Thereafter,
the court shall confirm that the agency used due diligence to
identify and work with all of the tribes of which there is reason to
know the child may be a member, or eligible for membership, to
verify whether the child is in fact a member or whether a
biological parent is a member and the child is eligible for
membership. (§ 224.2, subd. (g).) A determination by an Indian
14
tribe that a child is or is not a member of, or eligible for
membership in, that tribe “shall be conclusive.” (§ 224.2,
subd. (h).)
If the juvenile court finds that “proper and adequate
further inquiry and due diligence as required in this section have
been conducted and 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.” (§ 224.2, subd. (i)(2).)
B. Standard of review.
As noted above, section 224.2, subdivision (i)(2) sets out two
statutory predicates to a juvenile court’s finding that ICWA does
not apply. First, the court must determine whether there is
“reason to know” whether the child is an Indian child. Second,
the court must decide whether a “proper and adequate further
inquiry and due diligence as required in this section have been
conducted.” If the court finds an adequate inquiry has been
conducted and there is no reason to know a child is an Indian
child, “the court may make a finding that the federal Indian
Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) does not
apply to the proceedings.” (§ 224.2, subd. (i)(2).)
The first element––whether there is reason to know
whether the child is an Indian child––requires the juvenile court
to determine, based on the evidence before it, whether any one of
six statutory criteria is met—e.g., (1) the court has been advised
that the child “is an Indian child,” (2) the child’s or parent’s
residence is on a reservation, (3) any participant in the
proceeding informs the court that it has discovered information
indicating the child is an Indian child, (4) the child gives the
court reason to know that he or she is an Indian child, (5) the
15
child is or has been a ward of a tribal court, or (6) either parent or
the child possess an identification card indicating membership or
citizenship in an Indian tribe. (§ 224.2, subd. (d).) If none of
these six factors is met, the court must make a finding that there
is no reason to know the child is an Indian child. Because this
determination is fundamentally factual, we review it for
substantial evidence. (In re Ezequiel G. (2022) __ Cal.App.5th __,
2022 WL 3009914, *7 (Ezequiel G.); In re Josiah T. (2021)
71 Cal.App.5th 388, 401; In re D.F. (2020) 55 Cal.App.5th 558,
565.) In other words, we “should ‘not reweigh the evidence,
evaluate the credibility of witnesses, or resolve evidentiary
conflicts,’ ” but should uphold the lower court’s determinations
“ ‘if . . . supported by substantial evidence, even though
substantial evidence to the contrary also exists and the trial court
might have reached a different result had it believed other
evidence.’ ” (In re Caden C. (2021) 11 Cal.5th 614, 640; In re J.N.
(2021) 62 Cal.App.5th 767, 774; In re Noe F. (2013)
213 Cal.App.4th 358, 366.)
The second element––whether a “proper and adequate
further inquiry and due diligence as required in this section have
been conducted”––is somewhat different. Deciding whether an
inquiry was “adequate” and an agency acted with appropriate
diligence requires more of a court than simply applying a
statutory checklist to undisputed facts. Instead, it requires the
court to “engage in a delicate balancing” (see In re Caden C.,
supra, at p. 640) to assess whether an ICWA inquiry was
appropriate and sufficient in light of the facts of a particular case.
In short, the statute directs the juvenile court to perform a
quintessentially discretionary function, and thus we review it for
16
abuse of discretion. (In re Ezequiel G., supra, 2022 WL 3009914,
at *7.)
If we conclude that the trial court erred in finding that an
adequate ICWA inquiry was conducted, we will return the case to
the juvenile court only if the error was prejudicial––that is, if
“the record contains information suggesting a reason to believe
that the child may be an ‘Indian child’ within the meaning of
ICWA, such that the absence of further inquiry was prejudicial to
the juvenile court’s ICWA finding.” (In re Dezi C. (2022)
79 Cal.App.5th 769, 779.) As our colleagues in Division Two have
recently explained, this test is “outcome focused,” asking whether
“it is reasonably probable that an agency’s error in not conducting
a proper initial inquiry affected the correctness (that is, the
outcome) of the juvenile court’s ICWA finding,” and remanding
only in those cases “in which the record gives the reviewing court
a reason to believe that the remand may undermine the juvenile
court’s ICWA finding.” (Id. at pp. 781–782, italics added.)
C. The juvenile court did not prejudicially err in
finding that ICWA did not apply.
Although both parents denied Indian ancestry below, they
contend on appeal DCFS’s failure to make an ICWA inquiry of
the children’s extended family members was reversible error. We
disagree.
First, substantial evidence unquestionably supported the
juvenile court’s finding that there is no reason to know that
Daniel is an Indian child. DCFS made an initial ICWA inquiry
before filing the petition and attached to the petition an ICWA-
010 form attesting that an Indian child inquiry had been made
and Daniel had no known Indian ancestry. Subsequently, both
parents signed ICWA-020 forms in which they stated, under
17
penalty of perjury, that they did not have Indian ancestry. At no
point––including now, on appeal––has either parent suggested
these responses were inaccurate, and no member of Daniel’s
extended family has ever told DCFS that Daniel has Indian
ancestry. Accordingly, all the evidence before the juvenile court
required the conclusion that there was no reason to know Daniel
is an Indian child.
Second, the juvenile court did not abuse its discretion in
concluding that DCFS conducted an adequate inquiry. In
reviewing a juvenile court’s ICWA findings for abuse of
discretion, the key question for a reviewing court is whether the
ICWA investigation has reliably answered the question at the
heart of the ICWA inquiry: Whether a child involved in a
proceeding “is or may be an Indian child” (§ 224.2, subd. (a))––
that is, whether he or she either (a) “is 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, subd. (4); see also § 224.1, subds. (a) & (b).) In other
words, the focus of the court’s analysis is not on the number of
individuals interviewed, but on whether the agency’s ICWA
inquiry has yielded reliable information about a child’s possible
tribal affiliation. (In re Ezequiel G., supra, 2022 WL 3009914, at
*9.)
As we recently have explained, “ICWA does not apply
simply based on a child or parent’s Indian ancestry.” (In re
Ezequiel G., supra, 2022 WL 3009914, at *9, citing U.S. Dept. of
Interior, Bureau of Indian Affairs, Guidelines for Implementing
the Indian Child Welfare Act (Dec. 2016) (BIA Guidelines), p. 10
[as of July 29, 2022], archived at
18
.) Instead, the definition of
“Indian child” is “based on the child’s political ties to a federally
recognized Indian Tribe, either by virtue of the child’s own
citizenship in the Tribe, or through a biological parent’s
citizenship and the child’s eligibility for citizenship.” (Indian
Child Welfare Act Proceedings, 81 Fed.Reg. 38795 (June 14,
2016) (BIA ICWA Proceedings), italics added.) In other words, an
Indian child is one with a tribal affiliation, not merely Indian
ancestry.
“Tribal citizenship (aka Tribal membership) is voluntary
and typically requires an affirmative act by the enrollee or her
parent.” (BIA ICWA Proceedings, supra, 81 Fed.Reg. 38783,
italics added.) Specifically, “Tribal laws generally include
provisions requiring the parent or legal guardian of a minor to
apply for Tribal citizenship on behalf of the child. [Citation.]
Tribes also often require an affirmative act by the individual
seeking to become a Tribal citizen, such as the filing of an
application. [Citation.] As ICWA is limited to children who are
either enrolled in a Tribe or are eligible for enrollment and have
a parent who is an enrolled member, that status inherently
demonstrates an ongoing Tribal affiliation.” (Ibid., italics added;
see also BIA Guidelines, supra, at p. 10 [“Most Tribes require
that individuals apply for citizenship and demonstrate how they
meet that Tribe’s membership criteria.”].) Because membership
in an Indian tribe therefore requires that an individual or his or
her parent apply for tribal membership, a child’s parents will, in
most cases, be a reliable source of information for determining
whether a child is an Indian child.
In the present case, nothing in the record gives us reason to
doubt the accuracy of mother’s denial of a tribal affiliation.
19
Mother had been raised by her parents and continued to live with
her mother (the maternal grandmother) at the time of the
detention hearing. Thus, the possibility that mother might
unknowingly be a member of a tribe appears trivially small.
Additionally, mother’s mother (the maternal grandmother) and
mother’s grown daughter were present at the courtroom when the
juvenile court stated that both parents had denied having any
Indian heritage, and neither contradicted mother’s report or
offered different information. Accordingly, the juvenile court did
not abuse its discretion by concluding that DCFS conducted an
adequate ICWA inquiry as to mother.
Father presents a closer question: He had been removed
from the custody of his parents when he was a child and, at the
time of these proceedings, he was not in touch with his own
mother or father. We therefore cannot be as certain as we are in
mother’s case that father was fully knowledgeable about his own
ancestry. We nonetheless conclude that the juvenile court did not
abuse its discretion by finding that DCFS conducted an adequate
ICWA inquiry as to father. First, although father was removed
from his parents as a child, he, along with his six brothers and
sisters, were raised by his uncle, not in foster care. Because
father therefore remained connected to his extended family into
adulthood, we believe it highly unlikely that father might
unknowingly be a tribal member. Moreover, even were we to
conclude that further inquiry into father’s ancestry was
warranted, the juvenile court record does not suggest there were
any members of father’s extended family who were both
reasonably available to DCFS and likely to have had relevant
information about the family’s ancestry. Father was not in
contact with his parents, was not certain where they lived, and
20
did not provide DCFS with their names or contact information.
Father’s uncle, who had raised him, had died, and father did not
identify any of his parents’ siblings (if they had any) who were
still living. Father also did not identify any living grandparents.
The only member of father’s family for whom he had contact
information, his brother Mark, had been raised by the same uncle
who raised father, and thus he was unlikely to have any different
information about the family’s ancestry than father did.
For all of these reasons, we see no reasonable avenue by
which DCFS could have obtained any additional information
about father’s theoretical tribal membership. We note, moreover,
that neither father nor mother challenged DCFS’s ICWA inquiry
or the juvenile court’s ICWA findings below, when they could
have been readily corrected. We therefore conclude that the
juvenile court did not abuse its discretion by finding that DCFS
had conducted an adequate ICWA inquiry as to father. (See, e.g.,
In re A.M. (2020) 47 Cal.App.5th 303, 323 [agency’s failure to
interview maternal relatives was reasonable where mother could
not provide information about maternal relatives and no
maternal relative appeared at any hearing or participated in the
matter]; In re K.M. (2009) 172 Cal.App.4th 115, 119 [where child
protective agency “attempted on several occasions to elicit further
information from the child’s family, but was unsuccessful due to
the family’s hostility” toward the agency, the agency “did all that
can or should be reasonably expected of it to meet its obligation to
the child, to the family, to the tribes and to the court.”].)
For all the same reasons, even if the juvenile court erred by
finding DCFS’s inquiry adequate, that error was not prejudicial
because it is not “reasonably probable that an agency’s error in
not conducting a proper initial inquiry affected the correctness
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(that is, the outcome) of the juvenile court’s ICWA finding.” (In re
Dezi C., supra, 79 Cal.App.5th at p.781, italics added.) As we
have said, nothing in the juvenile court record gives us a reason
to doubt the accuracy of the parents’ denial that they or their
children were members of or eligible for membership in an Indian
tribe, and neither parent has made a proffer on appeal that he or
she has Indian heritage. Further, even were we to send the
matter back, there appear to be no persons reasonably available
to DCFS who are likely to provide relevant information. No
remand therefore is warranted.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
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LAVIN, J., Concurring and Dissenting:
I agree that the juvenile court did not abuse its discretion
by denying mother’s petition under Welfare and Institutions
Code section 388. In my view, however, the juvenile court erred
by finding that the Department of Children and Family Services’
inquiry under the Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.) and related state laws implementing ICWA (Welf.
& Inst. Code, § 224 et seq.) was adequate, and that error was
prejudicial. (See, e.g., In re Antonio R. (2022) 76 Cal.App.5th 421,
431 [“By requiring the Department to inquire of a child’s
extended family members as to the child’s possible Indian
ancestry, the Legislature determined that inquiry of the parents
alone is not sufficient.”]; In re A.R. (2022) 77 Cal.App.5th 197,
207 [a rule requiring reversal in all cases where ICWA
requirements have been ignored is consistent with the
recognition that parents are effectively acting as surrogates for
the interests of Native American tribes].)
LAVIN, J.
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