In re Michael V.

Filed 9/12/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re MICHAEL V. et al., Persons Coming B268149
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK02646)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
KRISTINA C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Zeke D.
Zeidler, Judge. Conditionally affirmed and remanded with directions.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant
and Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Julia Roberson, Deputy County Counsel, for Plaintiff and Respondent.
______________
Kristina C., the mother of five-year-old Alissa M. and two-year-old K.C., appeals
the juvenile court‟s September 29, 2105 order terminating her parental rights and
identifying adoption as the permanent plan for her two daughters. Kristina contends the
court and the Los Angeles County Department of Children and Family Services
(Department) failed to comply with the inquiry and notice requirements of the Indian
Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We agree the Department
failed to adequately investigate Kristina‟s claim of Indian ancestry, remand the matter to
allow the Department and the juvenile court to fully comply with ICWA and related
California law and otherwise conditionally affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Proceedings Leading to Termination of Kristina’s Parental
Rights to Alissa and K.C.
Both Kristina and K.C. tested positive for methamphetamine immediately after
K.C.‟s birth in December 2013. On June 2, 2014 the court sustained a petition filed
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pursuant to Welfare and Institutions Code section 300, subdivision (b), alleging Kristina
had a history of alcohol and illicit drug abuse and was a current user of
methamphetamine, which rendered her incapable of providing regular care for her two
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daughters and their older brother, Michael, who was then six years old. The court also
sustained the allegation that Kristina had, on prior occasions, been under the influence of
methamphetamine while the children were in her care, endangering their physical health
and safety. At the disposition hearing on August 4, 2015 the court declared the children
dependents of the court, ordered Michael placed with his paternal great-grandmother and
the two other children suitably placed and ordered family reunification services for
Kristina, including a full drug and alcohol program with testing and aftercare, parenting
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Statutory references are to this code unless otherwise stated.
2
Michael was subsequently placed in a legal guardianship with his paternal great-
grandmother. The September 29, 2015 order terminating parental rights at issue in this
appeal does not apply to him.
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classes and individual counseling to address case issues. Reunification services were also
ordered for Alissa‟s presumed father, but not for K.C.‟s alleged (biological) father.
At the six-month review hearing (§ 366.21, subd. (e)), held on May 18, 2015, the
court found that Kristina was only in partial compliance with her case plan and Alissa‟s
father was not in compliance with his case plan. The court ordered family reunification
services terminated and set a selection and implementation hearing (§ 366.26) for
September 29, 2015.
The court conducted a contested hearing pursuant to section 366.26 on
September 29, 2015. Kristina testified, and her counsel argued she had established the
parent-child relationship exception to termination of parental rights (§ 366.26,
subd. (c)(1)(B)(i)). After considering the evidence and argument of counsel, the court
found by clear and convincing evidence that the return of Alissa and K.C. to their parents
would be detrimental and that the children were adoptable. The court also found,
although Kristina had regular, consistent visitation with the children, she had not
occupied a parental role in their life and the benefit to the children of permanency
through adoption outweighed the benefit of an ongoing relationship with Kristina.
Accordingly, the court terminated Kristina‟s and the two fathers‟ parental rights and
transferred care, custody and control of the children to the Department for adoptive
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planning and placement.
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After terminating parental rights and identifying adoption as the children‟s
permanent plan on September 29, 2015, the court denied as moot Kristina‟s section 388
petition to liberalize visitation, filed on September 16, 2015. Several days earlier the
court had denied those portions of the section 388 petition requesting a home-of-parent
order or the reinstatement of reunification services because Kristina had not presented
any new evidence or change of circumstances and the proposed modifications would not,
in any event, be in the best interest of the children. Although Kristina‟s notice of appeal
identifies both the September 29, 2015 order terminating parental rights and the order
denying her section 388 petition, her appellate brief challenges the ICWA ruling only as
it relates to the termination order. (See Tellez v. Rich Voss Trucking, Inc. (2015)
240 Cal.App.4th 1052, 1066 [“[o]n appeal we need address only the points adequately
raised by plaintiff in his opening brief on appeal”].)
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2. Investigation of Kristina’s Claim of Indian Ancestry and the Finding ICWA Did
Not Apply
The detention reported filed December 11, 2013 states ICWA does not apply and
explains, “On 12/07/13, mother, Kristina C[.], denied any American Indian Ancestry.”
The section 300 petition, filed the same date, included a Judicial Council form ICWA-
010(A), Indian Child Inquiry Attachment, for each of Kristina‟s three children, completed
by the children‟s social worker who had prepared the detention report. Each form also
states “mother denied any American Indian Ancestry.” (The material filed on
December 11, 2013 stated Michael‟s paternal great-grandmother denied any American
Indian ancestry, but provided no information concerning possible Indian ancestry of the
fathers of the two other children.)
In connection with her appearance at the detention hearing on December 11, 2013,
however, Kristina filed a form ICWA-020, Parental Notification of Indian Status, in
which she stated she “may have Indian ancestry through MGM,” that is, through her
mother, the children‟s maternal grandmother. At the hearing the court described the
statement on the ICWA-020 form, learned that the woman in court with Kristina was a
paternal aunt, and then asked, “Who told you you may have Indian ancestry?” Kristina,
who was then 22 years old, responded, “When I was, like, going through court for
myself, like, my social worker, she was looking up my mom because she‟s never, like, a
part of my life. So they were trying to track her down. And when they did, they told me
she was full-blood Indian. And they tried seeing if I could get services for that, but they
said something about, like, the number.” The court inquired further, “When the social
worker started looking into your Indian ancestry, what did the social worker find?”
Kristina answered, “That she was from two tribes.” The court asked, “And what were the
tribes?” Kristina responded, “I don‟t remember.”
The court ordered the Department to investigate Kristina‟s Indian ancestry, to
provide notice to the tribes if ICWA was triggered and to include details regarding its
ICWA inquiry in the social study report. The court then ruled, “At this point, the court
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does not have reason to know or believe that the child is an Indian child as defined by the
Indian Child Welfare Act. The Indian Child Welfare Act does not apply.”
The jurisdiction/disposition report prepared for the March 18, 2014 jurisdiction
hearing was received by the court on February 27, 2014. The report stated that Kristina
had been interviewed on February 24, 2014 regarding her knowledge of the family‟s
ancestry. The report quoted Kristina‟s comment, “My social worker from LA told me my
mom was full blooded and from 2 tribes, but I don‟t remember. This was about 7 years
ago.” Kristina explained she had been placed in foster homes, provided services and
eventually emancipated from the system. The report stated the records from Kristina‟s
dependency case were searched, and there was no indication the family had Indian
ancestry and no information was found as to the names of possible tribes. Alissa‟s father
was interviewed, and he stated he did not have Indian ancestry. The report reiterated
Michael‟s paternal great-grandmother had previously stated her family had no American
Indian ancestry.
In another section of the report, the Department briefly described Kristina‟s
childhood, noting she was raised by her paternal grandparents because both of her parents
were methamphetamine users. Kristina stated she had two siblings. Her grandmother
died when she was 13 years old, at which point she apparently became a dependent of the
court because she kept running away from her father and her aunt. Kristina also said she
believed her mother was currently living in San Diego.
At a status hearing on February 28, 2014 the court asked if any party wanted to be
heard regarding the ICWA investigation. No one responded. The court found the ICWA
investigation had been completed. It again ruled it had no reason to know or believe the
children were Indian children as defined by ICWA and concluded ICWA did not apply.
With respect to ICWA the Department‟s report prepared for the section 366.26
hearing, dated August 27, 2015, stated only, “On 02/28/2014 the court found that ICWA
does not apply.” There was no mention of ICWA at the September 29, 2015 hearing at
which the court terminated Kristina‟s parental rights as to Alissa and K.C.
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DISCUSSION
1. The ICWA Inquiry and Notice Requirements
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 a state court 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 re W.B.
(2012) 55 Cal.4th 30, 47.) For purposes of ICWA, an “Indian child” is a child who is
either a member of an Indian tribe or 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 § 224.1,
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subd. (a) [adopting federal definitions].)
As the Supreme Court recently explained, notice to Indian tribes is central to
effectuating ICWA‟s purpose, enabling a tribe to determine whether the child involved in
a dependency proceeding is an Indian child and, if so, whether to intervene in or exercise
jurisdiction over the matter. (In re Isaiah W., supra, 1 Cal.5th at pp. 8-9.) Notice to the
parent or Indian custodian and the Indian child‟s tribe is required by ICWA in state court
proceedings seeking foster care placement or termination of parental rights “where the
court knows or has reason to know that an Indian child is involved.” (25 U.S.C.
§ 1912(a).) Similarly, California law requires notice to the parent, legal guardian or
Indian custodian and the Indian child‟s tribe in accordance with section 224.2,
subdivision (a)(5), if the Department or court “knows or has reason to know that an
Indian child is involved” in the proceedings. (§ 224.3, subd. (d); see Cal. Rules of Court,
rule 5.481(b)(1) [notice is required “[i]f it is known or there is reason to know that an
Indian child is involved in a proceeding listed in rule 5.480,” which includes all
dependency cases filed under Welfare and Institutions Code section 300].)
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In 2006, to increase compliance with ICWA, the California Legislature passed
Senate Bill No. 678 (2005-2006 Reg. Sess.), codifying and elaborating on ICWA‟s
requirements through revisions to several provisions of the Family, Probate and Welfare
and Institutions Codes. (See In re Isaiah W., supra, 1 Cal.5th at p. 9; In re W.B., supra,
55 Cal.4th at p. 52; see also § 224, subd. (a).)
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If the court has reason to know an Indian child may be involved in the pending
dependency proceeding but the identity of the child‟s tribe cannot be determined, ICWA
requires notice be given to the federal Bureau of Indian Affairs (BIA) (25 U.S.C.
§§ 1903(11), 1912(a)); see In re Isaiah W., supra, 1 Cal.5th at p. 8.) California law
reinforces this requirement: Section 224.2, subdivision (a)(4), provides, “Notice, to the
extent required by federal law, shall be sent to the Secretary of the Interior‟s designated
agent, the Sacramento Area Director, Bureau of Indian Affairs.” In addition, the
California statute requires any notice sent to the child‟s parents, Indian custodians or tribe
to “also be sent directly to the Secretary of the Interior” unless the Secretary has waived
notice in writing. (§ 224.2, subd. (a)(4); In re Isaiah W., at p. 9.)
The circumstances that may provide reason to know the child is an Indian child
include, without limitation, when a person having an interest in the child, including a
member of the child‟s extended family, “provides information suggesting the child is a
member of a tribe or eligible for membership in a tribe or one or more of the child‟s
biological parents, grandparents, or great-grandparents are or were a member of a tribe.”
(§ 224.3, subd. (b)(1); see In re Isaiah W., supra, 1 Cal.5th at p. 15 [“section 224.3,
subdivision (b) sets forth a nonexhaustive list of „circumstances that may provide reason
to know the child is an Indian child‟”]; Cal. Rules of Court, rule 5.481(a)(5)(A)
[containing language substantially identical to that in § 224.3, subd. (b)(1)]; see also
In re Kadence P. (2015) 241 Cal.App.4th 1376, 1386-1387 & fn. 9 [because only the
tribe may make the determination whether the child is a member or eligible for
membership, there is no general blood quantum requirement or “remoteness” exception
to ICWA notice requirements]; In re B.H. (2015) 241 Cal.App.4th 603, 606-607 [“a
person need not be a registered member of a tribe to be a member of a tribe—parents
may be unsure or unknowledgeable of their own status as a member of a tribe”].)
Importantly for our purposes, the burden of coming forward with information to
determine whether an Indian child may be involved and ICWA notice required in a
dependency proceeding does not rest entirely—or even primarily—on the child and his or
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her family. Juvenile courts and child protective agencies have “an affirmative and
continuing duty to inquire” whether a dependent child is or may be an Indian child.
(§ 224.3, subd. (a); In re Isaiah W., supra, 1 Cal.5th at pp. 9, 10-11; see Cal. Rules of
Court, rule 5.481(a); see also In re W.B., supra, 55 Cal.4th at pp. 52-53.) This
affirmative duty to inquire is triggered whenever the child protective agency or its social
worker “knows or has reason to know that an Indian child is or may be involved . . . .”
(Cal. Rules of Court, rule 5.481(a)(4).) At that point, the social worker is required, as
soon as practicable, to interview the child‟s parents, extended family members, the Indian
custodian, if any, and any other person who can reasonably be expected to have
information concerning the child‟s membership status or eligibility. (§ 224.3, subd. (c);
Cal. Rules of Court, rule 5.481(a)(4)(A); see In re Kadence P., supra, 241 Cal.App.4th at
p. 1386; In re Shane G. (2008) 166 Cal.App.4th 1532, 1539.)
2. The Department Did Not Adequately Investigate Kristina’s Claim of
Indian Ancestry
a. The issue of ICWA compliance is properly before this court
As discussed, the juvenile court ruled ICWA did not apply to this dependency
proceeding on December 11, 2013 and February 28, 2014. Emphasizing that Kristina has
appealed only from the juvenile court‟s order of September 29, 2015 terminating her
parental rights as to Alissa and K.C., not either of those earlier orders, the Department
contends we lack jurisdiction to consider the ICWA issue and Kristina‟s appeal should be
dismissed.
The Department‟s argument is directly refuted by the Supreme Court‟s recent
decision in In re Isaiah W., supra, 1 Cal.5th 1, which held a parent who did not file a
timely appeal from a juvenile court order that included a finding of ICWA‟s
inapplicability may nonetheless challenge such a finding by appealing from a subsequent
order terminating parental rights. (Id. at p. 6.) The Supreme Court explained the juvenile
court has “a continuing duty” to inquire whether the child before it is an Indian child “in
all dependency proceedings, including a proceeding to terminate parental rights.” (Id. at
p. 10.) In light of that continuing duty, an order terminating the mother‟s parental rights
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“was necessarily premised on a current finding by the juvenile court that it had no reason
to know [the child] was an Indian child and thus ICWA notice was not required.” (Ibid.)
In In re Isaiah W. that finding was explicitly made during the section 366.26 hearing.
(In re Isaiah W., at p. 10.) Here, that essential finding was implicit in the court‟s order
terminating parental rights, grounded on its earlier ICWA rulings, which were identified
in the Department‟s section 366.26 report. (See In re Asia L. (2003) 107 Cal.App.4th
498, 506 [juvenile court is not required to make an express finding that ICWA does not
apply; “its finding may be either express or implied”]; cf. In re Zacharia D. (1993)
6 Cal.4th 435, 456 [recognizing implied findings in dependency proceedings].) As in
In re Isaiah W., Kristina‟s appeal, properly understood, does not challenge the juvenile
court‟s December 11, 2013 and February 28, 2014 findings of ICWA inapplicability, but
the implied finding of ICWA inapplicability underlying the September 29, 2015 order
terminating her parental rights. (See In re Isaiah W., at p. 15.)
b. The Department apparently made no affirmative effort to inquire about the
children’s possible Indian ancestry by contacting members of Kristina’s
family
Kristina‟s principal argument on appeal is that her social worker‟s comments
when she was a dependent of the court about her mother‟s Indian ancestry triggered
ICWA‟s notice requirements and it was, therefore, error for the juvenile court not to order
the Department to notify the BIA of the dependency proceedings. We agree with the
Department that Kristina‟s recollection of what she had been told seven years earlier,
coupled with the absence of any corroborating information in the records from her
dependency case, was insufficient without further substantiation to require notice to the
BIA. (See, e.g., In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467 [mother‟s inability
to identify tribe or nation and failure to provide any contact information to substantiate
her unsupported belief insufficient to invoke ICWA; family lore alone is insufficient to
give court reason to know a child is an Indian child]; In re O.K. (2003) 106 Cal.App.4th
152, 157 [grandmother‟s statement that child “„may have Indian in him,‟” without more,
insufficient to invoke ICWA notice requirements]; see also In re Jeremiah G. (2009)
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172 Cal.App.4th 1514, 1520 [“more than a bare suggestion that a child might be an
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Indian child” is required to trigger ICWA notice requirements].)
But Kristina also contends the investigation of her Indian ancestry conducted by
the Department was inadequate. We agree. (See In re Alice M. (2008) 161 Cal.App.4th
1189, 1200 [“the duty to inquire is triggered by a lesser standard of certainty regarding
the minor‟s Indian child status . . . than is the duty to send formal notice to the Indian
tribes”].) The Department, as well as the court, has an affirmative obligation “to make
further inquiry regarding the possible Indian status of the child, and to do so as soon as
practicable by interviewing the parents, Indian custodian, and extended family members”
(§ 224.3, subd. (c); see Cal. Rules of Court, rule 5.481(a)(4)(A)) if a person having an
interest in the child “provides information suggesting the child is a member of a tribe or
eligible for membership in a tribe or one or more of the child‟s biological parents,
grandparents, or great-grandparents are or were a member of a tribe” (§ 224.3,
subd. (b)(1); see Cal. Rules of Court, rule 5.481(a)(5)(A)). Kristina did precisely that,
suggesting Alissa and K.C.‟s maternal grandmother was a member of two Indian tribes in
answer to questions from the court. Although the court then ordered the Department to
investigate the children‟s possible Indian ancestry, the Department did not take
appropriate affirmative steps to do so; and the court failed to ensure that an adequate
investigation had been conducted.
To be sure, following Kristina‟s statements to the court that she had been told by a
social worker that her mother was a full-blooded Indian, the Department reinterviewed
Kristina and checked its own records but could not find any information that confirmed
Kristina‟s recollection. Then, notwithstanding the express requirements of section 224.3
and rule 5.481, it did nothing more. The Department made no effort to locate the
children‟s maternal grandmother to interview her even though it was she who reportedly
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When the facts are undisputed, we review independently whether ICWA
requirements have been satisfied. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th
247, 254.)
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had the direct link to a tribe. (Kristina had said her mother might be living in San Diego,
thus giving the Department at least a starting place for its inquiry.) Moreover, although
Kristina said she had two siblings, the Department did not attempt to interview them, nor
does it appear a social worker even asked Kristina their names or where they lived. In
addition, while the children‟s paternal relatives, including Alissa‟s father, indicated there
was no Indian ancestry on their side of the family, the Department did not inquire
whether they might have any information regarding Alissa and K.C.‟s possible Indian
ancestry through their mother.
The Department‟s brief in this court reflects its misunderstanding of its duty to
meet ICWA‟s requirements. The Department attempts to defend its investigation by
asserting, “Mother‟s paternal aunt, who was present at the detention hearing, also never
spoke up to indicate mother‟s paternal family believed mother might have Indian
heritage.” It was not the paternal great-aunt‟s obligation to speak up; it was the
Department‟s obligation to inquire, an affirmative and continuing duty imposed by both
ICWA and California law. (See In re Isaiah W., supra, 1 Cal.5th at pp. 10-11.)
We remand the matter for the juvenile court to direct the Department to conduct a
meaningful investigation into Kristina‟s claim of Indian ancestry, including making
genuine efforts to locate other family members who might have information bearing on
the children‟s possible Indian ancestry. If that investigation produces any additional
information substantiating Kristina‟s claim, notice must be provided to any tribe that is
identified or, if the tribe cannot be determined, to the BIA. The Department shall
thereafter notify the court of its actions and file certified mail return receipts for any
ICWA notices that were sent, together with any responses received. The court shall then
determine whether the ICWA inquiry and notice requirements have been satisfied and
whether Alissa and K.C. are Indian children. If the court finds they are Indian children, it
shall conduct a new section 366.26 hearing, as well as all further proceedings, in
compliance with ICWA and related California law. If not, the court‟s original
section 366.26 order remains in effect.
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DISPOSITION
The section 366.26 order of the juvenile court is conditionally affirmed. The
matter is remanded to the juvenile court for compliance with the inquiry and notice
provisions of ICWA and related California law as set forth above and for further
proceedings not inconsistent with this opinion.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.
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