In re J.D. CA2/8

Filed 10/8/21 In re J.D. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.D., A Person Coming B310568
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 19CCJP04645A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Philip L. Soto, Judge. Affirmed.
Karen B. Stalter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel, for Plaintiff and Respondent.
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Mother R.P. appeals the juvenile court’s order denying her
Welfare and Institutions Code section 388 petition and
terminating her parental rights, as to her now two-year-old son,
J.D. Mother’s only contention on appeal is that the juvenile court
failed to ensure compliance with the Indian Child Welfare Act
(ICWA; 25 U.S.C. § 1901 et seq.), because the record does not
contain the return receipts for notices sent to the Bureau of
Indian Affairs and Secretary of the Interior. Finding there was
no reason to know J.D. is an Indian child, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has an extensive child welfare history, with
dependency cases for five of J.D.’s older siblings in 2014 and
2016, arising from mother’s substance abuse, inappropriate
discipline of the children, and domestic violence in the home.
Mother failed to reunify with J.D.’s siblings, and her parental
rights to one sibling were terminated.
The Los Angeles County Department of Children and
Family Services (Department) received a general neglect referral
leading to this case after mother tested positive for drugs while
pregnant with J.D. He was removed in July 2019, when he was
nearly five months old, and placed with maternal aunt and uncle,
who had adopted one of his older siblings.
When mother was interviewed by the Department in April
2019, she denied any Indian heritage. In July 2019, she filed a
parental notification of Indian status form (ICWA-020) indicating
that she has no Indian ancestry. At the July 24, 2019 detention
hearing, the juvenile court found there was no reason to know
that J.D. was an Indian child, and that ICWA does not apply.
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On August 29, 2019, J.D.’s father filed a parental
notification of Indian status form indicating that he has no
Indian ancestry.
On August 20, 2019, mother told the Department “she was
not sure[,] but she heard that someone [on] her father’s side
might have [Indian ancestry].” Mother said that maternal
grandmother could have more information. Maternal
grandmother initially told the Department her husband
(maternal grandfather) may have some Indian ancestry, but she
did not know which tribe, and there was no one with any
additional information, as paternal grandfather, and his entire
family, were deceased. Later, maternal grandmother denied any
Indian ancestry in the family; however, she told the Department
she heard that her brother-in-law’s mother had married an
Indian man. In the prior dependency cases, ICWA was found not
to apply.
In August 2019, the Department sent notices of the
proceedings by certified mail to the Bureau of Indian Affairs and
Secretary of the Interior. The return receipts are not included in
the record. The Department’s reports consistently reported that
ICWA does not apply.
On October 24, 2019, the court sustained jurisdictional
findings based on the history of domestic violence between
mother and father, substance abuse by mother and father, and
abuse and neglect of J.D.’s siblings. The court bypassed
reunification services for mother and father.
On February 4, 2020, mother filed a Welfare and
Institutions Code section 388 petition, asking for J.D. to be
returned to her care, or that she receive reunification services.
The court set the petition for hearing. The Department opposed
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the requested change in orders, and recommended that mother’s
petition be denied, and that her parental rights be terminated.
On January 22, 2021, the court terminated mother’s and
father’s parental rights, and denied mother’s Welfare and
Institutions Code section 388 petition. Mother filed a timely
notice of appeal.
DISCUSSION
Congress enacted ICWA “ ‘to protect the best interests of
Indian children and to promote the stability and security of
Indian tribes and families.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1,
8.) ICWA requires notice to Indian tribes “in any involuntary
proceeding in state court to place a child in foster care or to
terminate parental rights ‘where the court knows or has reason
to know that an Indian child is involved.’ ” (In re Isaiah W., at
p. 8.) The child’s tribe must receive “notice of the pending
proceedings and its right to intervene.” (In re H.B. (2008)
161 Cal.App.4th 115, 120.)
Welfare and Institutions Code section 224.2 imposes on the
juvenile court and the Department “an affirmative and
continuing duty to inquire whether a child . . . is or may be an
Indian child . . . .” (Id., subd. (a).) If there is “reason to believe
[that an Indian child is] involved in a proceeding,” further inquiry
regarding the possible Indian status of the child “shall” be made,
including “[i]nterviewing . . . extended family members” to obtain
the necessary information to notice the tribes. (Id., subd. (e)(1) &
(2); see also Cal. Rules of Court, rule 5.481(a).)
If there is reason to know a child might be an Indian child,
the Department must provide notice to the Indian tribes. (In re
Jennifer A. (2002) 103 Cal.App.4th 692, 705.) “[T]here is ‘reason
to know’ a child is an Indian child if ‘(1) Any participant in the
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proceeding, officer of the court involved in the proceeding, Indian
Tribe, Indian organization, or agency informs the court that the
child is an Indian child; [¶] (2) Any participant in the
proceeding, officer of the court involved in the proceeding, Indian
Tribe, Indian organization, or agency informs the court that it
has discovered information indicating that the child is an Indian
child; [¶] (3) The child who is the subject of the proceeding gives
the court reason to know he or she is an Indian child; [¶]
(4) The court is informed that the domicile or residence of the
child, the child’s parent, or the child’s Indian custodian is on a
reservation or in an Alaska Native village; [¶] (5) The court is
informed that the child is or has been a ward of a Tribal court; or
[¶] (6) The court is informed that either parent or the child
possesses an identification card indicating membership in an
Indian Tribe.’ (25 C.F.R. § 23.107(c) (2019).)” (In re A.M. (2020)
47 Cal.App.5th 303, 315-316.)
The Department must file with the juvenile court the
ICWA notices, return receipts, and any responses to the notices.
(Welf. & Inst. Code, § 224.3, subd. (c).) “ ‘The juvenile
court must determine whether proper notice was given under
ICWA and whether ICWA applies to the proceedings. [Citation.]’
[Citation.] When . . . the facts are undisputed, we review
independently whether the requirements of ICWA have been
satisfied. [Citation.] However, we review the juvenile court’s
ICWA findings under the substantial evidence test . . . .” (In re
A.M., supra, 47 Cal.App.5th at p. 314.)
Here, the information available to the Department and
juvenile court did not trigger the notice requirements under
ICWA. Mother’s and maternal grandmother’s statements to the
effect that someone in the family might have Indian ancestry in
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an unknown tribe, but there was no living family member with
any additional information to provide, and that J.D.’s great
uncle-in-law’s mother had married an Indian man, are too vague
to give any reason to know J.D. is an Indian child. Accordingly,
there was no error in finding that ICWA does not apply.
DISPOSITION
The orders are affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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