In re S.B. CA5 ( 2024 )

Filed 9/17/24 In re S.B. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re S.B. et al., Persons Coming Under the
Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F087642
SERVICES,
(Super. Ct. Nos. JD144602-00,
Plaintiff and Respondent, JD144603-00, JD144905-00)
v.
OPINION
JASMINE B.,
Defendant and Appellant.
THE COURT*
APPEAL from orders of the Superior Court of Kern County. Christie Canales
Norris, Judge.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Margo A. Raison, County Counsel, and Elizabeth M. Giesick, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Franson, J. and Snauffer, J.
Appellant Jasmine B. (mother) is the mother of now five-year-old S.B.,
three-year-old B.B., and one-year-old R.B. (collectively, the children), who are the
subjects of this dependency case. Mother challenges the juvenile court’s orders issued at
a disposition hearing that resulted in the removal of the children from mother’s custody.
On appeal, mother contends the juvenile court and the Kern County Department of
Human Services (department) failed to comply with their duty of inquiry under the Indian
Child Welfare Act (ICWA). Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
In April 2023, the department filed original petitions alleging S.B. and B.B. were
described by Welfare and Institutions Code section 300, subdivision (b)(1).2 The
allegations involved ongoing domestic violence between mother and her boyfriend and
mother’s untreated mental health issues. S.B. and B.B. were taken into protective
custody pursuant to warrants on April 25, 2023. The Indian Child Inquiry Attachment
forms (ICWA-010) attached to the petitions indicated that mother was asked about S.B.
and B.B.’s Indian status, and mother gave no reason to believe they are or may be Indian
children.
The department’s detention report set forth mother’s child welfare history, which
involved numerous referrals and three prior dependency proceedings from 2014 to 2022.
In October 2019, a petition was filed on behalf of S.B. due to physical abuse, neglect, and
a prior dependency case. S.B. was removed from mother’s custody, and family
reunification services were ordered for mother on December 16, 2019.
B.B. was removed shortly after his birth in September 2020, due to mother’s
mental health issues and substance abuse. Mother was reportedly recovering from
1 The sole issue on appeal concerns ICWA; therefore, we primarily restrict our facts
to those bearing on that issue.
2 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2.
fractures that were caused by B.B.’s father, Christian P., in April 2020. Christian was
found to be B.B.’s biological father in December 2020, and mother and Christian were
ordered to complete family reunification services. Both children were returned to
mother’s custody in March 2022. S.B.’s father, A.B., was also granted shared custody
with mother.
At the detention hearing held on April 27, 2023, mother and Christian were not
present. S.B. and B.B. were detained from mother’s custody, and a combined jurisdiction
and disposition hearing was set for June 7, 2023. The whereabouts of Christian were
determined to be unknown by the juvenile court.
The department’s jurisdiction report, dated June 21, 2023, recommended that the
allegations in the original petition be found true. The department’s disposition report,
dated June 23, 2023, recommended that S.B. and B.B. remain in out-of-home care and
mother be provided family reunification services. S.B. and B.B. were placed together in
the home of a nonrelative extended family member.
In May 2023, the social worker attempted to contact mother, Christian, and A.B.
regarding family finding and ICWA, but none of the parents could be reached by phone.
A maternal aunt, D.R., contacted the social worker, and she explained that she was in
agreement with S.B. and B.B. remaining in the care of their current resource family. The
resource family almost adopted B.B. during prior dependency proceedings. D.R. stated
that the maternal grandparents and a maternal uncle live in Las Vegas. She did not know
the current location of another maternal aunt, M.S., and the maternal great-grandmother
lived in Oregon. D.R. indicated that there was no Indian ancestry in her family.
The social worker eventually found information for another sibling, maternal
grandparents, maternal uncle, four maternal aunts, maternal great-aunt, and maternal
great-grandparents. Attempts to reach the identified maternal relatives by phone were
unsuccessful, and voice messages were left for family members where possible. At the
time of the report, there were no relatives applying for placement, but D.R. visited with
3.
the children often. On June 20, 2023, the social worker discovered that Christian was
incarcerated in Los Angeles County. A notice of the upcoming hearing was sent to the
facility, and an inmate transport request was submitted on his behalf.
On July 28, 2023, the juvenile court found the allegations in the original petitions
true as to S.B. and B.B., and it continued the disposition hearing for ICWA compliance at
the department’s request. In August 2023, R.B. was taken into protective custody after
mother tested positive for amphetamines at the time of her birth. The department filed an
original petition on behalf of R.B. alleging that she was described by section 300,
subdivisions (b)(1) and (j).
At a detention hearing held on August 9, 2023, mother and A.B. were both present
and represented by counsel. The juvenile court inquired of mother and A.B. regarding
possible Indian ancestry, and each of them denied having any Indian ancestry in their
families. At a continued detention hearing on August 11, 2023, R.B. was ordered
detained from her parents’ custody, and a combined jurisdiction and disposition hearing
was set for September 12, 2023.
The report prepared for R.B.’s disposition hearing, dated October 24, 2023,
recommended that family reunification services be provided for mother and A.B. R.B.
was placed in a resource family home in Bakersfield. The department’s family finding
social worker contacted several maternal family members in August 2023. The maternal
grandmother, maternal aunt D.R., maternal great-grandmother, maternal uncle, and
maternal cousin denied that there was Indian ancestry in their family. The maternal
grandmother and maternal uncle were not aware of the identity of mother’s biological
father. R.B.’s paternal uncles both denied that their family had Indian ancestry, and it
was reported that A.B.’s family came from Israel.
On September 12, 2023, mother completed a Parental Notification of Indian Status
form (ICWA-020), which provided no circumstances to suggest that R.B. may be an
Indian child. A.B. was found to be R.B.’s biological father, and the jurisdiction hearing
4.
for R.B. was continued to October 25, 2023. At the continued jurisdiction hearing, the
allegations in the original petition for R.B. were sustained. The disposition hearing for
each of the children was continued on several occasions for ICWA compliance.
In November 2023, B.B.’s father, Christian, the paternal great-uncle, and paternal
great-grandmother reported possible Indian ancestry with the “Cochise Tribe” in Arizona.
The paternal aunt denied having Indian ancestry, but she requested additional information
about taking placement of B.B. The social worker attempted to contact other paternal
relatives by phone, and messages were left when possible. The paternal
great-grandmother explained that the possible Indian ancestry came through her maternal
grandmother’s family. She was unable to recall her grandmother’s name, but she referred
the social worker to the paternal grandmother for additional information. The social
worker sent a text message and attempted to contact the paternal grandmother by phone,
but there was no response.
The department submitted a declaration of its paralegal regarding the ICWA
inquiry for B.B. on January 29, 2024. The paralegal obtained the information gathered
by the department regarding Christian’s possible Indian ancestry. It was determined that
the “Cochise Tribe” was not listed in the BIA “Designated Agents” listing or the “Tribal
Leaders” directory.
At the continued disposition hearing held on January 30, 2024, mother was present
and represented by counsel. The juvenile court received and reviewed the social
worker’s reports and the paralegal’s declaration regarding the ICWA inquiry. Mother’s
counsel submitted on the department’s recommendation, and the disposition proceeded
without contest. The children were ordered to remain in out-of-home placement, and
mother was provided family reunification services. The juvenile court found that there
was no reason to know the children were Indian children. The court’s ICWA finding was
made without prejudice due to the department’s continuing duty to comply with ICWA.
A six-month review hearing was set for June 25, 2024.
5.
DISCUSSION
Mother claims the juvenile court and department failed to adequately discharge
their duty of initial inquiry by failing to inquire of any Apache tribes regarding B.B.’s
possible Indian ancestry. The department contends that its inquiry was adequate.
A. Applicable Law
ICWA reflects a congressional determination to protect Indian children and to
promote the stability and security of Indian tribes and families by establishing minimum
federal standards that a state court, except in emergencies, must follow before removing
an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1
Cal.5th 1, 7–8.) In any “proceeding for the foster care placement of, or termination of
parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s
tribe … have a right to intervene” (25 U.S.C. § 1911(c)), and may petition the court to
invalidate any foster care placement of an Indian child made in violation of ICWA (25
U.S.C. § 1914; see § 224, subd. (e)). An “ ‘Indian child’ ” is defined in ICWA as an
unmarried individual under 18 years of age who is either (1) a member of a federally
recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe
and is the biological child of a member of a federally recognized tribe. (25 U.S.C.
§ 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)
In every dependency proceeding, the department and the juvenile court have an
“affirmative and continuing duty to inquire whether a child is or may be an Indian
child .…” (Cal. Rules of Court, rule 5.481(a);3 see § 224.2, subd. (a); In re W.B. (2012)
55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The continuing
duty to inquire whether a child is or may be an Indian child “can be divided into
three phases: the initial duty to inquire, the duty of further inquiry, and the duty to
provide formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
3 All further references to rules are to the California Rules of Court.
6.
The initial duty to inquire arises at the referral stage when the reporting party is
asked whether it has “any information that the child may be an Indian child.” (§ 224.2,
subd. (a).) Once a child is received into temporary custody, the initial duty to inquire
includes asking the child, parents, legal guardian, extended family members, and others
who have an interest in the child whether the child is, or may be, an Indian child.
(§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance
of each parent to ask whether he or she “knows or has reason to know that the child is an
Indian child.” (§ 224.2, subd. (c).) The court must also require each parent to complete
form ICWA-020. (Rule 5.481(a)(2)(C).)
Next, a duty of further inquiry arises when the department or the juvenile court has
“reason to believe” the proceedings involve an Indian child but “does not have sufficient
information to determine that there is reason to know that the child is an Indian child .…”
(§ 224.2, subd. (e).) As recently clarified by the Legislature, a “reason to believe” exists
when the juvenile court or department “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.” (Id., subd. (e)(1).)
If there is a reason to believe an Indian child is involved, the juvenile court or the
department “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).) Further inquiry
includes, but is not limited to, “[i]nterviewing the parents, Indian custodian, and extended
family members,” and contacting the Bureau of Indian Affairs (BIA), the State
Department of Social Services, and the tribes and any other person who may have
information. (§ 224.2, subd. (e)(2)(A)–(C).)
The final duty component arises when the court or department has “ ‘reason to
know’ ” the child is an Indian child. (In re D.F., supra, 55 Cal.App.5th at p. 567.) A
“reason to know” exists if one of the following circumstances is present: “(1) A person
having an interest in the child … informs the court that the child is an Indian child[;] [¶]
7.
(2) The residence … of the child [or] the child’s parents … is on a reservation or in an
Alaska Native village[;] [¶] (3) Any participant in the proceeding … informs the court
that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The
child … gives the court reason to know that the child 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[es] an identification card
indicating membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d)(1)–(6).)
If the juvenile court makes a finding that proper and adequate further inquiry and
due diligence 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, subject to reversal
if the court subsequently receives information providing reason to believe the child is an
Indian child. If the court receives such information, it must direct the social worker or
probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)
B. Standard of Review
Where the juvenile court finds ICWA does not apply to a child after completion of
an initial inquiry, “[t]he finding implies that … social workers and the court did not know
or have a reason to know the children were Indian children and that social workers had
fulfilled their duty of inquiry.” (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) We
review the court’s ICWA findings for substantial evidence. (In re Hunter W. (2011) 200
Cal.App.4th 1454, 1467.) We must uphold the court’s orders and findings if any
substantial evidence, contradicted or uncontradicted, supports them, and we resolve all
conflicts in favor of affirmance. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.)
The appellant “has the burden to show that the evidence was not sufficient to support the
findings and orders.” (Ibid.)
C. Analysis
Mother contends that the department’s inquiry was inadequate because it failed to
contact any Apache tribes about B.B.’s potential Indian ancestry. In support of this
8.
contention, mother references the name “Cochise” as a “famous leader[] of the Apache
people.” Thus, she argues that the department should have made an initial inquiry of the
Apache tribes. However, this factual material was not presented below and is improper
for us to consider. (See In re K.P. (2009) 175 Cal.App.4th 1, 5 [disregarding Internet
information outside the appellate court record purporting to indicate that parents’ reported
tribe might be affiliated with a federally recognized Indian tribe].)
We reject mother’s claim that the department failed to conduct an adequate inquiry
into the potential Indian ancestry identified by B.B.’s paternal family. The only tribe the
paternal relatives ever claimed to have potential Indian ancestry from was a nonfederally
recognized tribe. The department conducted interviews of multiple maternal and paternal
family members of the children, and none of the information provided a basis to conclude
that further inquiry of the BIA or any federally recognized tribes was necessary. ICWA
imposes no duty on the department to investigate ancestry related to a nonfederally
recognized tribe. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 338 [“ ‘Indian
tribe’ is defined so as to include only federally recognized Indian tribes.”], citing
25 U.S.C. § 1903(8); In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1009 [“[A]n Indian
child is one with a tribal affiliation, not merely Indian ancestry.”].)
In the present case, the department documented that it undertook family finding
efforts for both maternal and paternal relatives, and the attempts to contact those relatives
were contained in its reports. The inquiry yielded reliable information about B.B.’s
possible tribal ancestry through the paternal relatives, but there was no information
provided to suggest that the ancestry involved a federally recognized tribe requiring
further inquiry.
In sum, because the department’s inquiry of several extended family members
yielded reliable information that B.B. had possible Indian ancestry but was not affiliated
with a federally recognized tribe, we conclude the juvenile court’s ICWA finding was
proper. (See In re Dezi C. (Aug. 19, 2024, S275578, ___ Cal.5th ___ [2024 Cal.
9.
LEXIS 4634, p. 11] [“If, upon review, a juvenile court’s findings that an inquiry was
adequate and proper and ICWA does not apply are found to be supported by sufficient
evidence and record documentation as required by California law (rule 5.481(a)(5)), there
is no error and conditional reversal would not be warranted even if the [department] did
not inquire of everyone who has an interest in the child.”].) Therefore, we affirm.
DISPOSITION
The orders are affirmed.
10.