In re O.G. CA3 ( 2024 )

Filed 10/23/24 In re O.G. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
In re O.G., a Person Coming Under the Juvenile Court C100827
Law.
SHASTA COUNTY HEALTH AND HUMAN (Super. Ct. No. 22JV3234601)
SERVICES AGENCY,
Plaintiff and Respondent,
v.
H.W.,
Defendant and Appellant.
Mother of minor O.G. appeals from the juvenile court’s orders terminating
parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395;
undesignated statutory references are to the Welfare and Institutions Code.) She contends
the initial inquiry under the Indian Child Welfare Act (ICWA) by the Shasta County
Health and Human Services Agency (Agency) was insufficient because the Agency failed
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to contact specified relatives to inquire whether they knew of possible Native American
ancestry. (25 U.S.C. § 1901 et seq.; § 224.2.) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2022, the Agency filed a juvenile dependency petition alleging that the
three-year-old minor came within section 300, subdivisions (b)(1) and (j). Initial
inquiries of mother gave no reason to believe the minor may be an Indian child. Mother
signed and filed a parental notification of Indian status (ICWA-020) form denying Indian
ancestry. The juvenile court asked mother and the maternal grandmother at the detention
hearing if they had any Indian ancestry, and both denied any Indian ancestry. In August
2022, father also submitted an ICWA-020 form denying Indian ancestry.
The Agency’s disposition report stated that both parents had reported no Indian
ancestry, but father had indicated he had “a few cousins with Indian Ancestry but he
wasn’t sure what tribe.” Twelve maternal relatives had been located and sent relative
notification letters. Family finding for father was still pending. Father had provided a
few family member names and some phone numbers. The Agency stated it would
continue family finding efforts and continue to investigate possible Indian ancestry. At
the September 2022, disposition hearing, the juvenile court made an ICWA-related
inquiry of mother, father, maternal grandmother, and paternal grandmother, and all four
denied any known Indian ancestry. The juvenile court found that the “Indian Child
Welfare Act is pending.”
At the March 2023, review hearing, the juvenile court again found that the ICWA
was pending verification.
On September 8, 2023, the Agency filed an addendum to its 12-month review
report that outlined the efforts the Agency had undertaken to locate extended family and
inquire about possible Indian ancestry. The addendum described prior parent reports of
no Native American ancestry and prior court findings. The addendum stated that, in
October 2022, the family finding department sent relative information letters with “the
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Important Information for Relatives pamphlet and the JV-285 Relative Information form”
to the 20 known maternal and paternal relatives. The addendum provides the addresses it
used to contact the relatives and describes the responses it received. If no response was
documented, no response had been received.
Of note in the addendum, on September 5, 2023, social worker Hodson had sent
ICWA inquiry letters to the 20 known relatives. The addendum did not describe the
content of the ICWA inquiry letters or attach an inquiry letter. The addendum again
provides the addresses it used to contact the relatives, some of which had been updated.
No responses had been received at the time of the addendum report.
The addendum concluded that, based on the above-described efforts, the Agency
“was not given any information from family members to support that the child may be an
Indian child.” It also stated, “No tribes were named as no readily available relatives
indicated there was any Indian ancestry.”
Also in the month the addendum was filed, September 2023, father again
submitted an ICWA-020 form denying Indian ancestry.
The juvenile court found there was no reason to believe the ICWA applies, and it
continued the ICWA proceedings to October 27, 2023.
At a hearing held on October 27, 2023, both mother and the maternal grandmother
told the court that there were no changes as to whether the minor is an Indian child. The
juvenile court found that there was no reason to believe or know that the ICWA applies,
signed findings and orders that the Agency had made all efforts to obtain familial history,
including contacting or attempting to contact the parents and/or available relatives, and
had submitted the information and notice to the appropriate tribes, Bureau of Indian
Affairs and Secretary of the Interior, pursuant to section 224.2.
On February 16, 2024, the juvenile court again asked mother, father, the maternal
grandmother, and the paternal grandmother if they had any reason to believe the minor
may have any Indian ancestry, and they each denied that they had any reason to believe
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she had such ancestry. At the March 19, 2024, section 366.26 hearing, mother’s counsel
confirmed for the court that there had been no change to the information mother
previously provided related to the ICWA. Father’s counsel, the maternal grandmother,
and the paternal grandmother also reported no change to any of the ICWA-related
information. The juvenile court found that the ICWA does not apply and terminated
parental rights.
Mother appeals. This matter was fully briefed in this court on August 22, 2024.
DISCUSSION
The ICWA defines an “ ‘Indian child’ ” as a child who “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).) “Under ICWA’s state
analogue, the California Indian Child Welfare Act (Cal-ICWA . . .), courts and child
welfare agencies are charged with ‘an affirmative and continuing duty to inquire whether
a child . . . is or may be an Indian child’ in dependency cases.” (In re Dezi C. (2024)
16 Cal.5th 1112, 1124.) “First, from the [Department]’s initial contact with a minor and
his [or her] family, [section 224.2] imposes a duty of inquiry to ask all involved persons
whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial
inquiry creates a ‘reason to believe’ the child is an Indian child, then the [Department]
‘shall make further inquiry regarding the possible Indian status of the child, and shall
make that inquiry as soon as practicable.’ (Id., subd. (e), italics added.) Third, if that
further inquiry results in a reason to know the child is an Indian child, then the formal
notice requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to
inquire at the first appearance whether anyone ‘knows or has reason to know that the
child is an Indian child’]; id., subd. (d) [defining circumstances that establish a ‘reason to
know’ a child is an Indian child]; § 224.3 [ICWA notice is required if there is a ‘reason to
know’ a child is an Indian child as defined under § 224.2, subd. (d)].)” (In re D.S. (2020)
46 Cal.App.5th 1041, 1052.)
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We review claims of inadequate inquiry into a child’s Native American ancestry
for substantial evidence. (§ 224.2, subd. (i)(2); H.A. v. Superior Court (2024)
101 Cal.App.5th 956, 961; In re Dezi C., supra, 16 Cal.5th at pp. 1131, 1134.) “[T]he
juvenile court’s fact-specific determination that an inquiry is adequate, proper, and duly
diligent is ‘a quintessentially discretionary function’ [citation] subject to a deferential
standard of review.” (Dezi C., at p. 1141.) “ ‘On a well-developed record, the court has
relatively broad discretion to determine whether the agency’s inquiry was proper,
adequate, and duly diligent on the specific facts of the case. However, the less developed
the record, the more limited that discretion necessarily becomes.’ ” (In re Kenneth D.
(2024) 16 Cal.5th 1087, 1101-1102.)
Mother contends that the Agency failed to conduct an adequate initial inquiry into
whether the minor has Native American heritage because it failed to attempt to contact
several members of minor’s extended family. She relies on section 224.2, former
subdivision (b), which provides: “If a child is placed into the temporary custody of a
county welfare department pursuant to Section 306 or county probation department
pursuant to Section 307, the county welfare department or county probation department
has a duty to inquire whether that child is an Indian child. 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 and where the child, the parents,
or Indian custodian is domiciled.”
Mother contends the Agency should have, but failed to, make reasonable efforts to
inquire about possible Native American ancestry from the following relatives:
(1) mother’s great-aunt and mother’s cousin with whom the minor had been placed on
July 26, 2022; (2) father’s sister, identified as Heather R.; and (3) father’s cousin with
whom he was living at the time of disposition. We address the contention as to each of
these relatives.
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Mother contends the Agency did not attempt to contact her great-aunt and cousin,
whose names mother states are unknown, but with whom the minor had been placed on
July 26, 2022. The record contradicts this contention. In the relative placement section
of the Agency’s disposition report, the social worker stated (after noting the minor was
placed with the maternal great-aunt and cousin) that she had “further discussion regarding
[the minor] with the Cousin Brandy when she called about concerns surrounding visits
with the father. Caregiver expressed more concerns about . . . [and then lists multiple
caregiver concerns].” The list of relatives to whom the Agency sent the ICWA letters
includes “[M.M.], Great Aunt (Maternal)” and “Brandy M[.] Cousin (Maternal),” and the
address provided for these two relatives is the same address. Thus, the record establishes
that the Agency sent mother’s great-aunt and cousin inquiry letters about the minor’s
possible Indian ancestry.
Mother also contends the Agency did not attempt to contact father’s sister,
identified as Heather R., “by phone or email” regarding possible Native American
ancestry. Mother does not further develop this argument. To the extent mother intends to
concede that the Agency did send father’s sister a letter inquiring about possible Indian
ancestry but contends only that she was not contacted “by phone or email,” we reject her
contention that the juvenile court could not find the Agency’s efforts reasonable in this
regard. To the extent mother is arguing the Agency did not send father’s sister an ICWA
inquiry letter, a reasonable reading of the record contradicts this contention. Father
referred to his sister as Heather R. and reported she lived near the paternal grandmother.
The Agency reported it sent an ICWA inquiry letter to Heather G. (same surname as
father), who it identified as the paternal aunt, and whose mailing address is near the
address listed for the paternal grandmother. Thus, a reasonable reading of the record
permits the conclusion that “Heather [R.]” and “Heather [G.]” is the same individual –
father’s sister – and that the Agency attempted to contact her.
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Mother also contends the Agency should have attempted to contact father’s cousin
with whom he was living at the time of disposition. Neither mother nor the record,
however, provides the identity of this cousin. Father’s address on the disposition reports
(and preceding and subsequent reports) is listed as “whereabouts unknown” and lists only
a phone number. Notice of the hearing was given in person to father at that time. It is not
apparent that the Agency ever had that address to send an ICWA letter to that cousin,
even assuming that cousin still resided at that address. Nor does the record indicate the
Agency knew the identity of, or other contact information for, this unidentified cousin.
Indeed, it is possible that this cousin is one of the cousins to whom the Agency did send
an ICWA letter. Two paternal relatives who were sent letters were identified only as a
“[r]elative.” However, the record does reflect that the Agency sent ICWA inquiry letters
to all known paternal relatives. Thus, we conclude that the juvenile court’s finding that
the Agency complied with the ICWA inquiry requirements was supported by substantial
evidence. (See In re Dezi C., supra, 16 Cal.5th at p. 1141.)
Mother also contends that the list of relatives contacted described only whether the
relative was from the paternal or maternal side of minor’s family, not whether the
relatives were from the paternal or maternal side of the parents’ families. She further
contends there was no evidence that relatives were contacted from certain sides of
parents’ families. But the Agency here attempted to contact all available relatives. The
record does not reflect that the Agency was aware of the existence and/or identity of any
additional available relatives on either mother’s or father’s side. Thus, its failure to
identify to which side of each parents’ family the relatives belong does not impact the
reasonableness of its inquiry.
Finally, we also reject mother’s undeveloped argument that the Agency failed to
adequately describe the ICWA inquiry letter it sent to relatives or attach a copy to the
addendum to the report. She asserts in her reply brief that the Agency did not address
this contention in its brief. This contention, however, was not developed in mother’s
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opening brief. Instead she mentioned in passing, “[t]he addendum did not describe the
contents of the ICWA inquiry letters, and the report did not attach an inquiry letter” in the
middle of a paragraph under a heading asserting “The Agency Had Contact with, and
Apparent Ready Access to, Extended Family Members and Persons Who Had an Interest
in [the minor], But the Agency Did Not Interview or Attempt to Interview Them, and It
Did not Interview Anyone on the Paternal Side of Father’s Family or the Paternal Side of
Mother’s Family.” (Bolding omitted.) She also mentioned in passing and under this
same heading, that the relative information letter sent earlier was also not described or
attached to the addendum. She made no argument, provided no authority, and undertook
no analysis regarding any obligation of the Agency to describe or attach a copy of these
letters under this heading.
Under a subsequent heading in the opening brief entitled, “Since There Was Not
Documentation of An Adequate and Proper Inquiry by the Agency, the Court Erred in
Finding ICWA Does Not Apply and the Agency’s Inquiry Was a Proper and Adequate
Inquiry,” (bolding omitted) mother provides general statements of law with no
meaningful analysis or mention of the letters the Agency sent to the relatives. It is not
until mother’s reply brief that mother assigns to the Agency a duty to describe the letters
it sent or attach them to its report under California Rule of Court, rule 5.481(a)(5).
We do not consider underdeveloped arguments (People v. Freeman (1994)
8 Cal.4th 450, 482, fn. 2) or arguments raised for the first time in reply (People v. Tully
(2012) 54 Cal.4th 952, 1075). The lack of clarity surrounding her argument is a result of
her failure to make a distinct argument under a separate heading or subheading
summarizing the point, as required under California Rules of Court, rule 8.204(a)(1)(B).
“This is not a mere technical requirement.” (In re S.C. (2006) 138 Cal.App.4th 396,.
408.) It is designed so that we may be advised “ ‘of the exact question under
consideration, instead of being compelled to extricate it from the mass.’ ” (Ibid.) Had
mother developed her argument under a proper heading, it may have clarified her
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contention. Because she failed to do so, however, we find she forfeited this argument.1
(Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.)
DISPOSITION
The orders terminating parental rights are affirmed.
/s/
Mesiwala, J.
We concur:
/s/
Robie, Acting P. J.
/s/
Wiseman, J.*
1 Likewise, we deem forfeited further arguments that were neither developed nor set
forth under an appropriate heading.
For example, mother acknowledges that the Agency performed a “family finding.”
But then mother states in passing that the Agency did not affirmatively establish that it
attempted to gather information about father’s paternal side from either father or the
paternal grandmother (who were, according to the Agency, the only two family members
on father’s side with whom it had actual contact, so it is reasonable to assume they were
the source of the information about the six identified paternal relatives).
As another example, mother cites the following as a “weakness” but does not
assign error: ICWA letters had been sent out only three days before the the addendum
was prepared, which is not enough time for relatives to have responded. But the Agency
would have had to follow-up on any responses. And the court continued to inquire about
any changes. And the section 366.26 hearing and final determination that the ICWA did
not apply occurred six months after the addendum.
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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