In re W.L. CA2/5 ( 2023 )

Filed 12/18/23 In re W.L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
In re W.L. et al., Persons Coming B328487
Under The Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 19CCJP07632B-E)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
V.L.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Annabelle G. Cortez, Judge. Affirmed.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
V.L. (mother) appeals from the juvenile court’s orders
denying her petition under Welfare and Institutions Code section
388 and terminating her parental rights over four of her
children.1 Mother does not challenge the merits of those orders;
instead, she argues the Department failed to comply with the
notice requirements under the Indian Child Welfare Act (ICWA)
(Welf. & Inst. Code, § 225 et seq.; 25 U.S.C. § 1901 et seq.) by
failing to supply more detailed information in the notices.
The Department responds that (1) the notice requirement
was never triggered because the Department’s investigation
yielded no “reason to know” the children were Indian children,
and (2) the inclusion of additional information on the notices
would have made no difference because on two occasions, both
orally and in writing, the Hopi tribe advised DCFS that it had
determined that the children were ineligible for membership
because the parents were not tribal members. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Mother has seven children with two fathers. Only four of
her children are at issue in this appeal. At the time of the orders
denying the 388 petition and terminating parental rights, the
children ranged from 10 to 14 years old. Because mother’s appeal
only challenges the Department’s ICWA efforts regarding her
side of the family’s Indian ancestry, we recite the ICWA-related
1
All undesignated statutory references are to the Welfare
and Institutions Code.
2
facts only as they concern mother’s family.2 Also because of the
limited nature of the appeal, we do not discuss in detail the facts
that led to jurisdiction over the children and the ultimate
termination of parental rights.
In November 2019, the Department filed a petition alleging
four of mother’s children were at risk of serious harm due to
mother and her boyfriend’s history of domestic violence, mother’s
substance abuse, and mother’s possession of drugs and of guns
within reach of her children.3
Before it filed the petition, the Department asked mother
whether she had Indian ancestry, and she said no. But on
November 27, 2019—the date of the detention hearing—mother
filed an ICWA-020 form stating mother “may have Indian
ancestry,” and adding “unsure, DNA says yes.” At the same
hearing, the court ordered the children removed from mother’s
care and required mother to leave the home she shared with
adult daughter Celeste and the children. Celeste remained the
children’s caregiver for the duration of the dependency
proceedings and repeatedly reaffirmed her desire to adopt them.
In December 2019, mother’s other adult daughter, Celena,
reported to the Department that mother did not have Indian
ancestry and that Celeste would know more. Celeste in turn
reported that she “think[s]” her family is Hopi, but she “d[id]n’t
2 The fathers and their family members the Department
interviewed all denied Indian ancestry.
3
Because of the number of relatives referred to in this
opinion and to avoid confusion, we have identified them by first
name or familial description (e.g., “maternal aunt”) rather than
by initials.
3
really know,” and “mother would have more information.”
Mother’s sister Andrea reported she did not know whether
mother had Indian ancestry and also suggested that mother
might have more information. Mother told the Department that
neither she nor the children were enrolled in a tribe, but that her
“maternal grandmother was from Colorado and . . . was part of
the Hopi Tribe.”4 Mother identified maternal great grandmother
as Annie, but said she had no further information.
Based on mother’s report, on December 17, 2019, the
Department sent ICWA notices to the Hopi tribe and the Bureau
of Indian Affairs (BIA).5 The Hopi tribe responded by letter in
February 2020 stating the children “are not eligible for
enrollment with the Hopi Tribe; therefore, [the Hopi] will not be a
party to this case.” The letter did not ask for any additional
information.
After several continuances, on December 4, 2020, the
juvenile court sustained the section 300 petition in its entirety.
Six months later, in June 2021, the court terminated mother’s
reunification services and set a permanency planning hearing.
For reasons the record does not reveal, in August 2021, the
court ordered the Department “to follow up with” “notice to the
Hopi tribe and provide an update to the court” “for .26 purposes.”
In February 2022, the court again ordered the Department
“to follow up and for .26 purposes reinitiate the ICWA
4
Mother was raised by her grandmother (maternal great
grandmother). Maternal great grandmother and both maternal
grandparents are deceased.
5 Mother did not include these notices in the record on
appeal.
4
investigation given that mother previously indicated . . . that the
maternal [great] grandmother was . . . part of the Hopi tribe.”
The court ordered the department to “interview appropriate
relatives . . . and anyone else who may have information
regarding the potential American Indian ancestry,” and to “follow
up with tribes . . . and provide detailed information regarding
[the Department’s] efforts to investigate as well as obtain
information from the tribes.”6
In April 2022, the Department spoke with mother’s sister,
maternal great aunt Elaine. Elaine informed the Department
that that “the family ‘talked’ of possibly having” Hopi ancestry
from maternal great grandfather Ruben who was deceased and
whose dates of birth and death she did not know. However,
Elaine also reported that Ruben was “from Mexico and did not
have any American Indian heritage.”
In May 2022, the Department sent the Hopi tribe a second
set of notices (ICWA-030 forms) to inform it of the upcoming
permanency planning hearing for the children. The notice stated
the children “[are] or may be eligible for membership” in the Hopi
tribe. The forms contain each child’s name, date and place of
birth, and birth certificate, as well as the full names of mother
and the children’s respective fathers, and each parent’s address
and birthdate. The forms also list the names of maternal
grandmother, maternal grandfather, and maternal great
grandmother, but provide no other information about these
6
The record does not reveal why the court ordered the
Department to reinitiate the ICWA investigation given that the
Hopi tribe had already indicated the family’s lack of membership
or eligibility for membership in February 2020.
5
relatives. For each child and relative, the form lists “Does not
apply” in the box provided for “Tribe or band, and location.”
The following month, the Department telephoned the Hopi
tribe to follow up about the ICWA notices, and was told the ICWA
coordinator was not available. The Department reinterviewed
adult daughter Celeste about Indian ancestry. Celeste
“reiterate[d] that there is no American Indian heritage in her
family,” and reported “mother [had] told her that she will use any
and all means necessary” to prevent Celeste from adopting the
children.
In September 2022, the Department contacted the Hopi’s
ICWA coordinator who requested the children’s and parent’s
names, which the Department provided.
In October 2022, the ICWA coordinator called the
Department and explained that “the parents are not enrolled
which . . . make[s] all of the children ineligible.” The Hopi tribe
then sent the Department a letter stating that neither the
parents nor the children are enrolled or eligible for enrollment in
the Hopi tribe.
At a hearing in February 2023, the court asked mother
whether there were “any additional relatives that the
Department can reach out to beyond those that [mother has]
already identified to the Department,” to which mother
responded: “No. My mother’s deceased now. My grandmother’s
deceased . . . . That’s who would have . . . any kind of bloodline
. . . and they’re both deceased.” The court nonetheless asked
mother for maternal great uncle’s (Leonard) contact information,
and she provided his phone number.
In February of 2023, mother filed a 388 petition in which
she requested the return of her children or, in the alternative,
6
reinstatement of reunification services. She also asked that her
visits be unmonitored.
In March 2023, the Department contacted maternal great
uncle who stated that his mother Annie talked about his father
Ruben being American Indian but that no specific tribe was
mentioned. Leonard stated that he never met Ruben, and that he
believed Ruben died in the 1970s or 1980s. Leonard informed the
Department that the only other person who might know anything
about Indian ancestry was Elaine, with whom the Department
had already spoken.
At a hearing on April 7, 2023, the juvenile court denied
mother’s section 388 petition and found “there is no reason to
know that there’s any American Indian ancestry and that the
children are Indian children or eligible for enrollment.” Three
days later, the juvenile court terminated mother’s parental rights
and found the children adoptable.
Mother filed a timely notice of appeal.
DISCUSSION
1. ICWA Overview
Mother argues that the Department failed to comply with
ICWA because the “notice[s] only contained the names of three
relatives, with no other information about them.” The
Department responds that (1) no formal notice was required
because no information the Department obtained gave it “reason
to know” the children were Indian children (§ 224.2, subd. (f)),
and (2) any flaw in the notices was harmless because the Hopi’s
determination was based on the parents’ uncontested lack of
enrollment with the tribe.
Congress enacted ICWA out of concern that “ ‘an
alarmingly high percentage of Indian families are broken up by
7
the removal, often unwarranted, of their children from them by
nontribal public and private agencies.’ ” (Haaland v. Brackeen
(2023) 599 U.S. 255, 265.) Under ICWA and the related
California statutes (§§ 224-224.6), a juvenile court and the
Department have duties aimed at determining whether a
dependent child is an “Indian child.” (§§ 224.2, 224.3.)
An “Indian child” is a child who is (1) “a member of an
Indian tribe,” or (2) “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); § 224.1, subd. (a).) “ ‘Conversely, if the child
is not a tribe member, and the mother and the biological father
are not tribe members, the child simply is not an Indian child.’ ”
(In re A.A. (2023) 88 Cal.App.5th 393, 399 (A.A.).)
“ICWA does not define ‘ “member of a tribe” ’ or ‘ “eligible
for membership in an Indian tribe.”’ ” (A.A., supra,
88 Cal.App.5th at p. 399.) Instead, Indian tribes have the sole
authority to determine whether a child is a member or is eligible
for membership. (Ibid.) A tribe’s determination that a child is
not eligible for membership is therefore conclusive. (Ibid.)
The Department and juvenile court have “three distinct
duties” under ICWA. (In re D.S. (2020) 46 Cal.App.5th 1041,
1052.) The initial “duty” is “to inquire whether [a] child is, or
may be, an Indian child,” which the Department discharges by
“asking” family members, including “extended family members,”
and “others who have an interest in the child.” (§ 224.2, subds.
(a) & (b).) For its part, the juvenile court is required, “[a]t the
first appearance” in a dependency case, to “ask each participant
present” “whether the participant knows or has reason to know
that the child is an Indian child.” (§ 224.2, subd. (c).) There
8
appears to be no serious dispute that the Department discharged
its initial duty.
The second duty is that of “mak[ing] further inquiry
regarding the possible Indian status of the child.” (§ 224.2, subd.
(e).) This duty is triggered when the Department “has reason to
believe that an Indian child is involved” (ibid.), and obligates the
Department to conduct a “more robust investigation” and to make
a “ ‘meaningful effort’ ” through further interviews aimed at
gathering information, and through contacting the BIA and
relevant Indian tribes. (In re M.M. (2022) 81 Cal.App.5th 61, 70;
In re K.T. (2022) 76 Cal.App.5th 732, 744; In re D.F. (2020)
55 Cal.App.5th 558, 566.) The Department “has reason to believe
that an Indian child is involved” if the Department or the court
“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,” including information “indicat[ing]” but not
“establish[ing]” the existence of any of the six circumstances
satisfying the “reason to know” a child is an Indian child, which
are detailed next. (§ 224.2, subd. (e)(1).) “At this stage, contact
with a tribe ‘shall, at a minimum,’ include telephone, facsimile, or
electronic mail contact to each tribe’s designated agent for receipt
of ICWA notice, and ‘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.’ ” (In re D.S. (2020) 46 Cal.App.5th 1041,
1049.)
The third duty is the duty to notify the relevant Indian
tribes. (§ 224.3, subd. (a).) This duty is triggered when the
Department or the court “knows or has reason to know . . . that
an Indian child is involved” based on the further inquiries
9
performed under the second duty. (§ 224.3, subd. (a).) “[R]eason
to know a child involved in a proceeding is an Indian child” arises
from one of six statutorily defined circumstances. Only two of
these circumstances are conceivably relevant here: “[a] person
having an interest in the child . . . informs the court that the
child is an Indian child” (§ 224.2, subd. (d)(1)) or “[a]ny
participant in the proceeding . . . informs the court that it has
discovered information indicating that the child is an Indian
child” (id., subd. (d)(3)). We conclude neither actually applies in
this case.
In assessing ICWA compliance, we independently review
any questions of law, but review the court’s ICWA findings for
substantial evidence. (Dwayne P. v. Superior Court (2002)
103 Cal.App.4th 247, 254; In re Rebecca R. (2006)
143 Cal.App.4th 1426, 1430.)
2. The Requirement of Formal Notice to the Hopi Tribe
Was Not Triggered
The Department does not dispute that its initial inquiry
yielded information that required it to conduct a further inquiry
because mother’s statement about maternal great grandmother’s
possible Hopi ancestry gave it “reason to believe” the children
may have Native American ancestry. Formal notice to the Indian
tribes is only required if information the Department gleans from
its further investigation yields a “reason to know” a child is an
Indian child. The Department’s argument that no notice was
required may also suggest that the Department questions
whether the notices to the tribe constituted proper notice.
We start our analysis with a review of the ICWA facts that
we have previously summarized. After initially reporting no
Indian ancestry, mother filed an ICWA-020 form stating she
10
“may have Indian ancestry.” The parties seem to agree that
mother’s report of her grandmother’s possible Hopi ancestry
provided a “reason to believe” the children may be Indian
children, triggering the Department’s duty to conduct a “further
inquiry.” (See, e.g., In re T.G. (2020) 58 Cal.App.5th 275, 292
[mother’s and maternal grandmother’s statement of possible
Indian ancestry triggered duty of further inquiry]; In re A.M.
(2020) 47 Cal.App.5th 303, 322 [mother’s statement she may
have Indian ancestry through her grandfather did not trigger
ICWA notice requirement, but did require further inquiry].)
As part of its initial inquiry, the Department interviewed
mother’s adult daughters and maternal aunt, each of whom
indicated a lack of knowledge of Indian ancestry and deferred to
mother. In its further inquiry, the Department interviewed
maternal great aunt, who told the Department “the family
‘talked’ of possibly having” Hopi ancestry from maternal great
grandfather Ruben, then deceased. Maternal great uncle was
interviewed and unable to provide any additional information or
to identify any individuals who might know more and who had
not already been interviewed.
The Department also sent a second set of notices to the
Hopi tribe inquiring about tribal membership. Having received
no initial response, the Department spoke with the Hopi’s ICWA
coordinator in September 2022, who requested the children’s and
parent’s names The following month, on October 25, 2023, the
ICWA coordinator orally advised DCFS that “the parents are not
enrolled which would make all of the children ineligible.” Two
days later, in an “Updated Information as to ICWA,” DCFS
advised the juvenile court that “the Hopi Tribe provided a letter
stating that the children [names omitted], and the mother and
11
the father [names omitted] are not enrolled in the Hopi Tribe.”
The tribe did not request any further information; nor did it
suggest that the information it had was insufficient to determine
whether the parents or the children were enrolled or were eligible
for enrollment in the Hopi tribe. Even with this information, the
court asked mother whether she had any other relatives the
Department might inquire with regarding Indian ancestry, to
which mother responded, “No,” and explained that her mother
and grandmother who might have had more information were
both deceased.
None of the information gleaned from mother, her relatives,
or from the Hopi tribe revealed any of the circumstances giving
rise to a “reason to know” the children were Indian children
(§ 224.2, subd. (d)(1)-(6)). The possibility of any such “reason to
know” is precluded by the fact that on two occasions the
Department provided notice and received a response from the
Hopi tribe – both orally and in writing – that the children were
not members or eligible to be members of the Hopi tribe because
their parents were not members. We conclude that no further
ICWA notice was required, and any flaws in the notices the
Department sent are of no legal consequence.
DISPOSITION
The orders are affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J. KIM, J.
12