In re Emma S. CA2/3

Filed 2/10/22 In re Emma S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 8.1115(a). This opinion has
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re EMMA S. et al., Persons B314100
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 20LJJP00331A–C
Plaintiff and Respondent,
v.
J.F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Michael C. Kelley, Judge. Affirmed.
Megan Turkat-Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
INTRODUCTION
J.F. (mother) appeals from the juvenile court’s orders at a
six-month review hearing concerning her three children, all of
whom had previously been declared dependents of the court and
removed from her care. Mother contends the Department of
Children and Family Services (Department) did not adequately
comply with its duty of further inquiry under the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) regarding her
eldest daughter. We affirm.
BACKGROUND
On May 28, 2020, the Department filed a dependency
petition alleging jurisdiction over Emma S. (age 13), Lucy M.
(age 8), and Donna M. (age 5) under Welfare and Institutions
Code section 300, subdivisions (a), (b)(1), and (j).1 Emma is the
daughter of Sam S. (father). Lucy and Donna are the daughters of
Richard M.2
The petition alleged that mother failed to protect the
children from domestic violence committed by her male
companion, James V. (count b-1), and mother’s history of
substance abuse and current marijuana abuse renders her
incapable of caring for the children (count b-3).3 On July 17, 2020,
the Department filed an amended petition adding allegations of
1 Allundesignated statutory references are to the Welfare and
Institutions Code.
2Only mother has appealed, and the issue on appeal concerns only
Emma.
3The petition also alleged four additional counts (a-1, b-2, b-4, and j-1)
concerning James, which the Department later dismissed.
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domestic violence between mother and Richard (counts a-2 and
b-5), Richard’s physical abuse of all three children (counts a-3
and b-6), and marijuana and heroin use by father (count b-7).
At the detention hearing, the court ordered the children to
be detained from mother and to remain with the maternal
grandmother. James was ordered not to have contact with the
children. Mother and both fathers were granted monitored
visitation.
Mother and Richard completed Parental Notification of
Indian Status (ICWA-020) forms indicating no known Indian
ancestry. Father, however, informed the court that he may have
Indian ancestry with the Assiniboine and Sioux Tribes of Fort
Peck. The court ordered the Department to investigate father’s
ancestry and found there was no reason to believe that ICWA
applied to mother, Richard, Lucy, or Donna.
At the July 17, 2020 adjudication hearing, mother pled no
contest to counts a-3, b-1, b-3, and b-6. The court sustained those
counts, as amended, as to mother; sustained count b-7 concerning
father after striking the reference to heroin; and sustained
counts a-2, a-3, b-5, and b-6 concerning Richard.
Meanwhile, the Department had started investigating
father’s Indian ancestry. Father revealed to the Department that
his mother (Emma’s paternal grandmother) had Indian ancestry
through the Assiniboine and Sioux Tribes of Fort Peck. A few
days later, the Department spoke with the paternal
grandmother. She explained that her mother (Emma’s paternal
great-grandmother) was a registered member of the Assiniboine
and Sioux Tribes of Fort Peck. She provided the Department with
her mother’s tribal enrollment number, disclosed that she herself
was registered “for medical benefits only” but was “not a fully
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registered tribe member,” and provided biographical information
for the paternal great-grandmother and extended family
members.
A week later, the Department mailed certified copies of
ICWA-030 notices with return receipts to the parents, the
Secretary of the Interior, the Bureau of Indian Affairs, and the
Assiniboine and Sioux Tribes of Fort Peck. The Department later
filed copies of the notices and return receipts with the court.
On August 12, 2020, the Department informed the court
that it had received correspondence from the Assiniboine and
Sioux Tribes of Fort Peck indicating Emma was not eligible for
enrollment. The Department included a form provided by the
Assiniboine and Sioux Tribes of Fort Peck that stated Emma “[i]s
not eligible for enrollment.” The form identified Emma, mother,
father, and their birthdates and was signed on July 9, 2020, by
the Enrollment Officer, who certified that enrollment records had
been reviewed and the information provided was true and
correct. The Department also provided a letter from the ICWA
Program Manager for the Assiniboine and Sioux Tribes of Fort
Peck that stated Emma was neither an enrolled member of the
tribes nor eligible for enrollment. The letter identified Emma,
mother, father, and their birthdates.
At the disposition hearing, counsel for the Department
addressed ICWA: “[Father] did disclose that he is a part of the
tribe that is a non-federally-recognized tribe, and notices were
signed or contacts were made with the tribe. But it’s not a
federally recognized tribe. Therefore, I believe that the court can
find that ICWA does not apply.”
The court asked, “what is the name of the non-federally-
recognized tribe that you were referring to?” Counsel replied, “I
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would actually note that the Department did receive
correspondence from [the] Assiniboine and Sioux Tribes [of] Fort
Peck indicating that Emma … is not eligible for enrollment.”
The court concluded, “So even if it were a federally
recognized tribe, which it is not, so this child would not be an
Indian child.” The court then held that ICWA did not apply,
removed Emma from parental custody, ordered reunification
services, and set a six-month review hearing.
At the April 8, 2021, six-month review hearing, the court
found it would be detrimental to return the children to parental
custody, ordered continued reunification services, and set a 12-
month review hearing.
Mother filed a timely notice of appeal identifying the
April 8, 2021 findings and orders as the subject of the appeal.
DISCUSSION
Mother contends the Department did not substantially
comply with its further inquiry duties under ICWA because it
failed to provide all relevant information to the tribes. We
disagree.
1. 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.]” (In re
Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C. § 1902.)
Under ICWA, an “ ‘Indian child’ ” is “any unmarried person who
is under age eighteen and is either (a) a member of an Indian
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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”].) It is up to the tribe to decide whether a child is
an Indian child under ICWA. (Isaiah W., at p. 15.)
“[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).)
This affirmative duty to inquire comprises a two-step
process. First, 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 “ask[ ] 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), italics added.) The court must make
a similar inquiry when the parents first appear in court: “[T]he
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), italics added.) The court’s duty
of initial inquiry includes requiring each party to complete
California Judicial Council Form ICWA-020, Parental
Notification of Indian Status. (Cal. Rules of Court,
rule 5.481(a)(2)(C).)
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Second, 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), italics added; see § 224.3, subd. (a)(5)(C).)
If, after the initial and further inquiries, there is reason to
know that an Indian child is involved, notice 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 the six statutory criteria is met. (Id.,
subd. (d).)
We review ICWA-related matters for substantial evidence.
(In re D.N. (2013) 218 Cal.App.4th 1246, 1251.) But, “where the
facts are undisputed, we independently determine whether
ICWA’s requirements have been satisfied. [Citation.]” (In re D.S.
(2020) 46 Cal.App.5th 1041, 1051, fn. omitted.)
2. The Department complied with its duty of further
inquiry.
There appears to be split of authority about when, under
California’s revised ICWA statutes, further inquiry is required.
(Compare In re A.M. (2020) 47 Cal.App.5th 303 with In re
Austin J. (2020) 47 Cal.App.5th 870.) We need not resolve that
issue, however, because here, the Department does not dispute
that it was required to inquire further. The question before us,
therefore, is whether that further inquiry was sufficient. We
conclude it was.
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Mother contends the ICWA-030 notices sent to the tribes in
this case were insufficient because they lacked complete
biographical data and did not provide all the information the
paternal grandmother had supplied to the Department. The
notices contained: father’s name, birthdate, and current and
former addresses; the paternal grandmother’s married and
maiden names, birthdate, and current address; the paternal
grandfather’s name and birthdate; the paternal great-
grandmother’s name, birthdate, place of birth, and tribal
enrollment number; and information about other great-
grandparents. But, mother argues, the notices failed to note that
the paternal grandmother was registered for medical benefits
and to provide her registration number. Mother also notes that
although birth dates were provided for one set of Emma’s great-
grandparents, the notices did not include birthdates for either
great-grandmother Betsy S. or great-grandfather Raymond S.
“Notice given by DCFS pursuant to ICWA must contain
enough information to permit the tribe to conduct a meaningful
review of its records to determine the child’s eligibility for
membership.” (In re S.E. (2013) 217 Cal.App.4th 610, 615.) We
conclude the notices in this case were sufficient because they
provided the key information: the name, birthdate, birth place,
and tribal enrollment number of Sharon H., the paternal great-
grandmother who belonged to the Assiniboine and Sioux Tribes of
Fort Peck. This information, combined with the complete
biographical information provided for Sharon’s daughter, the
paternal grandmother, allowed the tribes to determine for
themselves that the grandmother was enrolled for medical
benefits. In addition, because Emma’s possible Indian heritage
came from father’s maternal grandmother, we are not persuaded
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that the missing birthdates for father’s paternal grandparents
would have helped matters. (Compare In re Breanna S. (2017)
8 Cal.App.5th 636, 654 [ICWA notice deficient where “[s]ome of
the omitted information pertained directly to the maternal great-
grandmother,” who was the ancestor that mother and the
maternal grandmother had identified as a tribal member],
disapproved on other grounds by In re Caden C. (2021) 11 Cal.5th
614, 637, fn. 6.)
Nor do we agree with mother about the significance of the
Department’s claim at the disposition hearing that the
Assiniboine and Sioux Tribes of Fort Peck lacked federal
recognition. The court’s holding did not rest on the tribes’ claimed
lack of federal recognition. Instead, the court clearly held that
“even if it were a federally recognized tribe … this child would
not be an Indian child.” As such, the error was harmless.
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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