In re Skyla G. CA2/1

Filed 6/10/22 In re Skyla G. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re SKYLA G., a Person B314673
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 20CCJP01660)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
E.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Debra R. Archuleta, Judge. Affirmed.
Elizabeth C. Alexander, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________________
1
In this dependency case (Welf. & Inst. Code, § 300 et seq.),
E.G. (Mother) appeals from the juvenile court’s order terminating
parental rights. She contends we must reverse the order because
the court and the Los Angeles County Department of Children
and Family Services (DCFS) failed to comply with the duty to
make further inquiry regarding the possible Indian status of her
daughter, Skyla G., under section 224.2, subdivision (e),
California law implementing the Indian Child Welfare Act (25
U.S.C. § 1901 et seq.; (ICWA)). Mother argues DCFS failed to
interview her brothers (Skyla’s maternal uncles) as part of
DCFS’s further inquiry under section 224.2, subdivision (e), and
remand is required for DCFS to conduct this further inquiry. She
also contends DCFS’s misspelling of the maternal grandmother’s
name on the ICWA notices DCFS sent to the tribes was
prejudicial and requires remand for DCFS to comply with the
notice requirements under ICWA and California law.
As explained more fully below, we conclude the omission of
Skyla’s maternal uncles from DCFS’s further inquiry was
harmless in light of the information DCFS had already received
from Mother, Skyla’s maternal grandmother, and Skyla’s
maternal aunt regarding Skyla’s possible Indian status. The
misspelling of the maternal grandmother’s name on the ICWA
notices does not require a remand for DCFS to send revised
1
Further statutory references are to the Welfare and
Institutions Code.
2
ICWA notices. Although DCFS gave notice to the tribes of these
dependency proceedings, the notice requirement was not
triggered because there was no reason to know Skyla was an
Indian child within the meaning of ICWA and California law.
Moreover, the maternal grandmother had confirmed to DCFS
that she was not affiliated with any tribe. Accordingly, we affirm
the order and decline Mother’s request that we remand the
matter for DCFS to conduct a (second) further inquiry regarding
Skyla’s possible Indian status and send revised notices to the
tribes.
2
BACKGROUND
In March 2020, Mother tested presumptively positive for
amphetamines and methamphetamines at the hospital when she
gave birth to Skyla. The record indicates Skyla also tested
presumptively positive for these substances. Mother admitted to
methamphetamine use during her pregnancy. Mother informed
hospital staff that she lived with Skyla’s maternal grandmother,
and she “ha[d] the support of” the maternal grandmother, as well
as Skyla’s maternal aunt and uncles. A couple days after Skyla’s
birth, Mother consented to DCFS’s removal of Skyla from her
3
care. DCFS placed Skyla in a foster home.
DCFS stated in its Detention Report that ICWA “does or
may apply.” A DCFS social worker interviewed Mother on March
19, 2020, and Mother reported “her maternal great grandmother
2
We include here only the facts related to the issue on
appeal: the juvenile court’s and DCFS’s compliance with
California law implementing ICWA.
3
Skyla’s father was not identified during the proceedings
reflected in the record before us.
3
[Skyla’s great-great-grandmother] is Choctaw Indian and
currently lives on a reservation in Oklahoma.” The same day, the
social worker also interviewed Skyla’s maternal aunt, S.R.
(Mother’s sister), and Skyla’s maternal grandmother, O.J.
(Mother’s mother). S.R. “denied Native American Heritage [sic]
and stated she was unsure who [M]other was referring to with
Choctaw Indian heritage. [S.R.] stated maternal great
grandmother is deceased and was not a member of a tribe.” O.J.
“stated [M]other was unclear as to the part of the family that has
Choctaw heritage. Ms. J[.] stated they have distant family who
live in Mississippi on a reservation.” As set forth in the
Detention Report, DCFS determined it could not make an
emergency placement of Skyla with either S.R. or O.J. based on
their “CLETS [California Law Enforcement Telecommunications
System] search results.”
On March 23, 2020, DCFS filed a dependency petition
under section 300, subdivision (b), alleging Skyla’s positive
toxicology screen for amphetamines and methamphetamines, and
Mother’s history of and current drug abuse, endangered Skyla’s
physical health and safety and placed Skyla at risk of serious
physical harm, damage, and danger. DCFS attached to the
petition form ICWA-010(A), Indian Child Inquiry Attachment,
and checked the box stating, “The child may have Indian
ancestry,” based on Mother’s statements to the social worker on
March 19, 2020 (summarized above).
On March 24, 2020, the date of the detention hearing,
Mother completed and signed form ICWA-020, Parental
Notification of Indian Status. Mother checked the box stating, “I
may have Indian ancestry.” Handwritten next to this entry is the
word “Choctaw” and the name and telephone number of Skyla’s
4
maternal grandmother O.J., who DCFS had already interviewed
about Skyla’s potential Indian ancestry.
Mother was present at the March 24, 2020 detention
hearing. The juvenile court acknowledged it had received form
ICWA-020 from Mother, and the court confirmed the information
on the form. The court asked Mother to spell the first name of
Skyla’s maternal grandmother, and Mother did. The court asked
Mother if she was registered with any tribe, and Mother said she
was not. The court stated: “[DCFS] is ordered to investigate
Indian ancestry. The social study report is to include details
regarding the ICWA investigation. [¶] [DCFS] is ordered to
notice all federally registered Choctaw tribes, and the
Jurisdiction[/]Disposition Report is to include copies of details
regarding the ICWA investigation, copies of the ICWA notices,
return receipts, and responses from tribes.” The court found
DCFS made a prima facie showing that Skyla was a person
described by section 300, and the court detained Skyla from
Mother. Skyla remained placed in the same foster home.
DCFS stated in its Jurisdiction/Disposition Report that
ICWA “does or may apply.” On March 27, 2020, a dependency
investigator interviewed Mother, Skyla’s maternal aunt S.R., and
Skyla’s maternal grandmother O.J. about Skyla’s possible Indian
status. Mother stated Skyla’s maternal great-great-grandmother
“was possibly affiliated with the Choctaw tribe.” S.R. “denied
Native American Heritage [sic]” and stated Skyla’s great-
grandmother “may have had Indian heritage,” but S.R. “did not
specify which tribe.” O.J. stated she was “not a member of any
Indian tribe” and reported Skyla’s great-grandmother “may have
had Indian heritage,” but O.J. “did not specify which tribe.”
5
Mother also told the dependency investigator that she had
five siblings who lived in Southern California, and she had a
relationship with all of them. Mother also reported that her
parents separated when she was young, and she maintained a
relationship with both parents.
DCFS sent notice of the adjudication hearing (form ICWA-
030, Notice of Child Custody Proceeding for Indian Child) by
certified mail, with return receipt requested, to the Bureau of
Indian Affairs (BIA), the Secretary of the Interior, the Choctaw
Nation of Oklahoma, the Jena Band of Choctaw Indians, and the
Mississippi Band of Choctaw Indians. The notices included the
following information, in pertinent part: Skyla’s first and last
name and date and place of birth; Mother’s first and last name,
date and place of birth, and current and former addresses;
Skyla’s maternal grandmother’s first and last name (both,
apparently misspelled), date and place of birth, and current
address; Skyla’s maternal grandfather’s first and last name and
date and country of birth; Skyla’s maternal great-grandmother’s
first and last name, date and place of birth, and date and place of
death; and Skyla’s maternal great-grandfather’s first and last
name, date and place of birth, and date and place of death. For
each of Skyla’s relatives, the ICWA notices listed the tribe or
band as Choctaw Nation of Oklahoma, Jena Band of Choctaw
4
Indians, and Mississippi Band of Choctaw Indians.
4
Mother does not claim her paternal relatives have Indian
ancestry. Nor does she contend DCFS should have interviewed
any of her paternal relatives as part of its further inquiry
regarding Skyla’s possible Indian status.
6
In a Supplemental Report, dated July 16, 2020, DCFS
stated ICWA “does or may apply.” DCFS explained it sent two
sets of notices by certified mail, with return receipt requested, to
the BIA, the Secretary of the Interior, the Choctaw Nation of
Oklahoma, the Jena Band of Choctaw Indians, and the
Mississippi Band of Choctaw Indians—one for the May 14, 2020
adjudication hearing, and one for a July 16, 2020 rescheduled
5
adjudication hearing. DCFS reported that it received return
receipts for all the notices it sent, except the second notice it sent
to the Secretary of the Interior.
DCFS attached to the July 16, 2020 Supplemental Report
letters it received from the tribes. On June 5, 2020, the Choctaw
Nation of Oklahoma sent DCFS a letter stating it researched its
records, using the information DCFS provided, and it was
“unable to establish Indian heritage” for Skyla. The letter also
stated the Choctaw Nation of Oklahoma determined ICWA did
not apply at that time. The letter further explained: “The
Choctaw Nation of Oklahoma shall consist of all Choctaw Indians
by blood whose names appear on the final rolls of the Choctaw
Nation approved pursuant to Section 2 of the Act of April 26,
1906 (34 Stat. 136) and their lineal descendants.”
On April 13 and June 2, 2020, the Mississippi Band of
Choctaw Indians sent DCFS identical letters stating it
researched its enrollment records, using the information DCFS
5
DCFS repeated the misspelling of Skyla’s maternal
grandmother’s name on the second set of ICWA notices it sent.
There is no indication in the record that anyone (including
Mother) raised the misspelling with DCFS or the juvenile court
or requested a correction.
7
provided, and it determined Skyla and Mother are not enrolled
members and “are not eligible for membership with this tribe.”
DCFS did not receive a letter from the Jena Band of Choctaw
Indians.
The adjudication/disposition hearing did not go forward on
July 16, 2020; it was continued to October 7, 2020. Mother was
not present at the October 7, 2020 adjudication/disposition
hearing. DCFS’s counsel asked the juvenile court to make a
finding that ICWA did not apply, as it had been more than 60
days since DCFS sent the ICWA notices. The court stated: “The
court does intend to make the ICWA finding that the court has no
reason to believe this is a case governed by [ICWA].” The record
does not reflect, however, that the court actually made an ICWA
finding. The court sustained the allegations against Mother in
the dependency petition, as summarized above. The court
declared Skyla a dependent of the court, removed her from
Mother’s custody, and granted Mother reunification services and
monitored visitation.
In a Status Review Report, filed on March 18, 2021, DCFS
requested the juvenile court make a finding that ICWA does not
apply, based on the ICWA notices it sent and the responses it
received. DCFS reported that Mother failed to show for all drug
tests (19 tests) during the period of supervision from October 20,
2020 to February 22, 2021; and she had not informed DCFS that
she had enrolled in a drug and alcohol treatment program, which,
along with testing, was required under her case plan. Mother
had not attempted to schedule a visit with Skyla since the child
was detained from her in March 2020. Skyla remained in the
same foster home where DCFS placed her prior to DCFS filing
the dependency petition.
8
On April 6, 2021, the juvenile court held a six-month
review hearing. Mother was not present. The court referenced
the letters DCFS received from the tribes and found ICWA did
not apply. The court stated in its minute order: “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.”
The court found by clear and convincing evidence that returning
Skyla to Mother’s custody would create a substantial risk of
detriment to Skyla. The court also found Mother’s progress in
her case plan had been poor. The court terminated Mother’s
reunification services and set a section 366.26 permanency
planning hearing.
In DCFS’s report for the section 366.26 hearing, filed on
July 15, 2021, DCFS reported Mother called the foster Mother
twice to inquire about Skyla: once in early April 2020, when
Skyla was two weeks old, and once in May 2021, when Skyla was
14 months old. Mother had not requested any in-person visits.
She had one, five-minute FaceTime call with Skyla on May 21,
2021. DCFS also stated in the report: “On 07/09/2021, the foster
mother reported she has not been contacted by the maternal
grandmother, or the maternal aunt, or by the maternal uncle.”
DCFS reported that Skyla’s caregiver—the same foster mother
who had cared for the child since she was three days old—wanted
to adopt Skyla. DCFS recommended the juvenile court terminate
parental rights and select adoption as Skyla’s permanent plan.
Mother was not present at the August 10, 2021 section
366.26 permanency planning hearing. Her counsel explained she
had no “direction from Mother,” but counsel made a general
objection to termination of parental rights on Mother’s behalf.
Counsel did not argue that an exception to termination of
9
parental rights under section 366.26 applied. Counsel for Skyla
and DCFS urged the juvenile court to terminate Mother’s
parental rights. The court found by clear and convincing
evidence that Skyla was adoptable and there were no legal
impediments to adoption. The court also found no exception to
adoption applied. Accordingly, the court terminated parental
rights and selected adoption as Skyla’s permanent plan. The
court designated the foster mother as Skyla’s prospective
adoptive parent.
DISCUSSION
I. Applicable Law
Under ICWA, an “Indian child” is an unmarried person
under 18 years of age who is (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].)
DCFS and the juvenile court “have an affirmative and
continuing duty to inquire whether a child” involved in
dependency proceedings “is or may be an Indian child.” (§ 224.2,
subd. (a).) When DCFS detains a child and places that child in
foster care, its duty to inquire “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.” (§ 224.2, subd. (b).)
Under ICWA, the term “extended family member” is “defined by
the law or custom of the Indian child’s tribe or, in the absence of
such law or custom, shall be a person who has reached the age of
10
eighteen and who is the Indian child’s grandparent, aunt or
uncle, brother or sister, brother-in-law or sister-in-law, niece or
nephew, first or second cousin or stepparent.” (25 U.S.C.
§ 1903(2).)
“At the first appearance in court of each party, 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 order the parents to
complete form ICWA-020 (Parental Notification of Indian
Status). (Cal. Rules of Court, rule 5.481(a)(2)(C).)
If the juvenile court or social worker “has reason to believe
that an Indian child is involved in a proceeding,” based on the
initial inquiry described above, the court or social worker “shall
make further inquiry regarding the possible Indian status of the
child,” including, but not limited to: (1) interviewing the parents
and extended family members; (2) contacting the Bureau of
Indian Affairs and the State Department of Social Services for
assistance in identifying and contacting tribes; and (3) contacting
tribes and others “that may reasonably be expected to have
information regarding the child’s membership status, or
eligibility.” (§ 224.2, subd. (e).) There is reason to believe a child
is an Indian child if there is information suggesting that either
the child or the parent is a member or may be eligible for
membership in an Indian tribe. (§ 224.2, subd. (e)(1).)
“Information suggesting membership or eligibility for
membership includes, but is not limited to, information that
indicates, but does not establish, the existence of one or more of
the grounds for reasons to know enumerated in paragraphs (1) to
(6), inclusive, of subdivision (d),” which we set forth below. (Ibid.)
11
ICWA notice is required if DCFS or the juvenile court
knows or has reason to know a child is an Indian child under any
of the circumstances described in section 224.2, subdivision (d).
(25 U.S.C. § 1912(a); § 224.3, subd. (a); Cal. Rules of Court, rule
5.481(b)(1).) Under subdivision (d), “There is reason to know a
child involved in a proceeding is an Indian child under any of the
following circumstances:
“(1) A person having an interest in the child, including the
child, an officer of the court, a tribe, an Indian organization, a
public or private agency, or a member of the child’s extended
family informs the court that the child is an Indian child.
“(2) The residence or domicile of the child, the child’s
parents, or Indian custodian is on a reservation or in an Alaska
Native village.
“(3) Any participant in the proceeding, officer of the court,
Indian tribe, Indian organization, or agency informs the court
that it has discovered information indicating that the child is an
Indian child.
“(4) The child who is the subject of the proceeding gives the
court reason to know 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.
“(6) The court is informed that either parent or the child
possess an identification card indicating membership or
citizenship in an Indian tribe.” (§ 224.2, subd. (d).)
II. Analysis
Mother does not contend DCFS’s initial inquiry under
section 224.2, subdivision (b) was inadequate. She contends
DCFS’s initial inquiry provided “reason to believe” Skyla is an
Indian child under section 224.2, subdivision (e)(1), so DCFS was
12
required to conduct a further inquiry, which would include
6
interviewing extended family members. As Mother
acknowledges, DCFS reinterviewed Mother, Skyla’s maternal
grandmother, and Skyla’s maternal aunt as part of its further
inquiry. As Mother points out, there is no indication in the
record that DCFS interviewed Skyla’s maternal uncles. Mother
argues DCFS’s failure to interview Skyla’s maternal uncles as
part of its further inquiry was prejudicial because information
from them “was likely to bear meaningfully upon whether the
child is an Indian child.” (In re Benjamin M. (2021) 70
Cal.App.5th 735, 744.)
6
DCFS argues Mother cannot raise her ICWA claims on
appeal from the order terminating parental rights as “the
juvenile court had no evidence before it indicating DCFS failed to
adequately comply with its further inquiry duties” because “at
the section 366.26 hearing, the juvenile court was not offered,
and so did not consider, any evidence relevant to the issue of
whether DCFS failed to comply with its further inquiry duties.”
We reject this argument. As DCFS acknowledges, in In re Isaiah
W. (2016) 1 Cal.5th 1, our Supreme Court held a parent may
“challenge a finding of ICWA’s inapplicability in an appeal from
[a] subsequent order, even if she did not raise such a challenge in
an appeal from the initial order.” (Id. at p. 6.) And, in any event,
we note that although the parties did not introduce into evidence
at the section 366.26 hearing the relevant reports and ICWA
documents, the juvenile court’s minute order from the section
366.26 hearing states that in addition to the documents
introduced by DCFS, the court took “judicial notice of the legal
file” and “read, considered, and admit[ted] into evidence the
social worker’s reports and any other information reviewed,”
which included the pertinent information related to ICWA
compliance.
13
When Skyla was born, Mother told hospital staff her
support system included Skyla’s maternal grandmother,
maternal aunt, and maternal uncles. The maternal uncles are
7
not identified by name in the record. To the extent DCFS was
required to interview the maternal uncles as part of a duty of
further inquiry under section 224.2, subdivision (e), the omission
was harmless for the reasons explained below.
As Mother points out, the purpose of interviewing extended
family members as part of the further inquiry is “to gather the
information required in paragraph (5) of subdivision (a) of Section
224.3.” (§ 224.2, subd. (e)(2)(A).) Such information includes: “All
names known of the Indian child’s biological parents,
grandparents, and great-grandparents, or Indian custodians,
including maiden, married, and former names or aliases, as well
as their current and former addresses, birth dates, places of birth
and death, tribal enrollment information of other direct lineal
ancestors of the child, and any other identifying information, if
known.” (§ 224.3, subd. (a)(5)(C).) Mother does not argue any of
the pertinent information specified in section 224.3, subdivision
(a)(5) was missing after DCFS’s interviews with Mother, Skyla’s
maternal grandmother, and Skyla’s maternal aunt.
It is not clear from Mother’s appellate briefing what
additional information she believes the maternal uncles could
have provided that “was likely to bear meaningfully upon
whether the child is an Indian child.” (In re Benjamin M., supra,
70 Cal.App.5th at p. 744.) She asserts the maternal uncles “may
7
During pendency of these dependency proceedings,
Mother informed DCFS that one of Skyla’s maternal uncles
passed away.
14
have given clarifying information” regarding the information
already provided by Skyla’s maternal grandmother and maternal
aunt, such as the maternal grandmother’s statement that
“distant family” lived on a reservation in Mississippi. Skyla’s
maternal grandmother provided information about Skyla’s direct
lineal ancestors. Mother does not explain how additional
information about “distant family”—as opposed to direct lineal
ancestors already mentioned—might bear meaningfully upon
whether Skyla is an Indian child. Thus, Mother has not
demonstrated prejudice by omission of Skyla’s maternal uncles as
8
part of a further inquiry under section 224.2, subdivision (e).
Notice to the tribes of the dependency proceedings was not
required here because there is no reason to know Skyla is an
Indian child under any of the circumstances set forth in section
224.2, subdivision (d). (§ 224.3, subd. (a).) Mother does not argue
in her appellate briefing that any of the enumerated
circumstances (listed above) apply to Skyla. Therefore, we need
not address Mother’s claim notice to the tribes was inadequate
because DCFS misspelled Skyla’s maternal grandmother’s name
on the ICWA notices it sent to the BIA, the Secretary of the
Interior, and the tribes. We note that Skyla’s maternal
grandmother confirmed to DCFS that she was not affiliated with
any tribe, so it is not clear how the misspelling of her name could
have misled the tribes’ and the federal government’s inquiries
into Skyla’s possible Indian status.
For the foregoing reasons, we decline Mother’s request that
we remand the matter for DCFS to conduct a (second) further
8
Mother does not otherwise challenge the sufficiency of the
evidence supporting the juvenile court’s ICWA findings.
15
inquiry regarding Skyla’s possible Indian status and send revised
notices to the tribes.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
16