In re J.S. CA2/5

Filed 10/18/21 In re J.S. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.S., et al., Persons Coming B310457
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No.
CK74786B-D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.B. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Brett Bianco, Judge. Conditionally affirmed.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant C.B.
Christopher Blake, under appointment by the Court of
Appeal, for Defendant and Appellant R.S.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
2
C.B. (Mother) and R.S., Sr. (Father) appeal juvenile court
orders concerning three of their children: J.S., D.S., and S.S.
(collectively, the Minors). We are asked to decide whether the
juvenile court abused its discretion in denying Mother and
Father’s petitions seeking additional reunification services even
though, in the years since the Minors were removed from their
care due to substance abuse, they relapsed several times. We
also consider whether the appellate record shows there was full
compliance with the Indian Child Welfare Act (ICWA) and
related provisions of California law, particularly in light of our
disposition of a prior appeal requiring further inquiry into ICWA
issues.
I. BACKGROUND
A. Overview of Dependency Proceedings Through This
Court’s Resolution of a Prior Appeal
Mother and Father have four children together: J.S. (born
in 2011), D.S. (born in 2013), S.S. (born in 2015), and R.S., Jr.
(born in 2016). Mother’s fifth child, J.D. (born in 2007), has a
different father. This appeal concerns only the Minors (J.S., D.S.,
and S.S.).
In November 2014, the Los Angeles County Department of
Children and Family Services (the Department) received a
referral alleging Mother and Father use drugs, their home was
unsanitary and lacked utilities, and the children were “filthy”
and begged neighbors for food. The Department filed a petition
alleging J.S. and D.S. were at substantial risk of suffering
physical harm attributable to Mother and Father’s substance
abuse (cocaine), which rendered them incapable of providing
regular care for the children.
3
The juvenile court removed J.S. and D.S. from Mother and
Father’s custody. When S.S. was born a few months later, the
Department filed a petition based on the same allegations of
substance abuse. S.S. was also detained.
At a combined jurisdiction and disposition hearing in
December 2015, the juvenile court assumed jurisdiction over the
Minors and ordered family reunification services. Mother and
Father’s case plans included drug and alcohol treatment with
weekly testing, individual counseling, parenting classes, and
monitored visitation.
Prior to a status review hearing in January 2017, the
Department reported Mother tested positive for cocaine and
opiates once in July 2016, but she and Father had otherwise
tested negative. Both parents had been terminated from a drug
and alcohol treatment program, however, for failing to actively
participate in treatment. Visitation by the parents with the
Minors was inconsistent, and the parents were not forthcoming
with the Department regarding Mother’s recent arrest for petty
theft and Father’s recent arrest for domestic violence.
The juvenile court found Mother and Father to be in
“moderate” compliance with their case plans. The juvenile court
further found the Department had not provided reasonable
services to the parents and ordered further reunification services.
Prior to another status review hearing in October 2017, the
Department reported Mother missed several drug tests and
tested positive for hydrocodone in April 2017. Father tested
positive for cocaine five times between February 2017 and May
2017 and again in October 2017. Mother was arrested twice in
2017, including an arrest for assault with a firearm, and Father
was arrested four times, including an arrest for robbery. Both
4
parents were participating in a substance abuse treatment
program, but the Department emphasized this was the third
program in which they had enrolled within the last year.
Visitation remained inconsistent. The juvenile court terminated
reunification services and set the matter for a Welfare and
Institutions Code section 366.26 permanency planning hearing.1
The Department later reported Mother and Father
successfully completed an outpatient program addressing drug
and alcohol abuse, parenting skills, and domestic violence.
During treatment, however, Mother tested positive for cocaine
and opiates and Father tested positive for cocaine.2 The
Department recommended a permanent plan of legal
guardianship with T.W., a non-relative extended family member
with whom the Minors had been placed for more than two years.
The juvenile court appointed T.W. the Minors’ legal guardian and
granted Mother and Father monitored visitation.
Mother and Father appealed the section 366.26 orders,
contending, among other things, the Department did not satisfy
its duty of inquiry under ICWA and related California law. As
we shall later discuss in more detail, this court conditionally
affirmed the juvenile court’s orders and remanded to permit the
juvenile court to consider additional evidence of ICWA
compliance or, if none existed, to order further inquiry. (In re
R.S. (Dec. 19, 2018, B290032, B290033) [nonpub. opn.] (R.S. I).)
1
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
2
Mother and Father submitted to drug testing through their
treatment program as well as an outside laboratory. All of the
positive results were reported by the outside laboratory. Both
parents denied ever using cocaine.
5
B. Proceedings on Remand Leading to This Appeal
In April 2019, the juvenile court reinstated jurisdiction over
the Minors to address ICWA compliance.3 In late 2019, the legal
guardian and Father filed opposing section 388 petitions: T.W.
sought to change the Minors’ permanent plan from legal
guardianship to adoption and Father sought further reunification
services.
The Department initially recommended the juvenile court
grant T.W.’s petition because the Minors were doing well in
T.W.’s care and stated they wanted “Mama T.” to adopt them. A
few months later, based on Mother and Father’s enrollment in
individual counseling, negative drug tests, and successful
visitation, the Department recommended reinstating
reunification services contingent upon Mother and Father
submitting to regular drug testing and services.
In February 2020, the juvenile court denied Father’s
section 388 petition, granted T.W.’s petition, and set another
section 366.26 hearing.4 In May 2020, the Department reported
Mother and Father were visiting the Minors on a regular basis
and the Minors looked forward to the visits. J.S. and D.S.
indicated they wanted to remain living with T.W., however,
which is where they had been placed since 2015. S.S. was too
3
On the same date, Father filed section 388 petitions
seeking reinstatement of his parental rights and reunification
services. The juvenile court summarily denied the petitions.
4
Mother and Father filed notices of appeal from these
orders, which this court deemed notices of intent to file petitions
for extraordinary writ. No petitions were filed, and we
subsequently dismissed the appeals.
6
young to make a meaningful statement about where she wanted
to live. The Department recommended the Minors remain placed
with T.W. and the juvenile court set a date to finalize adoption.
In November 2020, the Department reported the Minors
“usually shrug or say ‘I don’t know’” when asked whether they
wanted to continue visiting Mother and Father but appeared
excited when Mother and Father arrived for visits. The
Department’s recommendations were unchanged.
The following month, Mother and Father filed section 388
petitions requesting further reunification services (it is these
petitions that are the subject of this appeal). They argued their
circumstances had changed because, among other things, they
completed six months of clean drug tests, consistently visited the
Minors, obtained adequate housing, and had a steady income.
Mother and Father argued granting additional reunification
services would be in the Minors’ best interest because “[i]t is
better for children to have [two] parents,” T.W. had other
children in her home, and Mother and Father were uniquely
aware of potential hereditary health issues. The juvenile court
set a hearing on the petitions.
Prior to the combined section 388 and section 366.26
hearing in February 2021, the Department submitted a report
recommending the juvenile court deny the parents’ section 388
petitions, terminate their parental rights, and “move forward
with adoption.” Between January and July 2020, Mother and
Father failed to appear for several drug tests. In May 2020,
Mother tested positive for cocaine twice and Father tested
positive for cocaine once. The Department had also been “made
aware” of a video in which Father appeared to smoke marijuana.
The Minors continued to enjoy regular visits with Mother and
7
Father, but the Department noted J.S. and D.S. gave
“indifferent” responses when asked whether they wanted to
continue the visits. (S.S., by contrast, stated she “ha[s] fun” with
Mother and Father during visits.) The Department emphasized
D.S. and S.S. “have only ever[ ] truly lived in the home of [T.W.]
while [J.S.] was raised in the home of [Father] and [Mother] for
her first few years of life.”
The juvenile court denied Mother and Father’s section 388
petitions, finding both a lack of changed circumstances and that
further reunification efforts would not be in the best interest of
the Minors. The juvenile court emphasized that although Mother
and Father had obtained adequate housing and “some stability
and employment as well,” these facts were “something of a red
herring because the issue here . . . was substance abuse.” The
parents demonstrated “paper compliance” with their case plans,
“but clearly not much was learned especially since we would
expect at this point parents to be really fighting and doing
remarkably well if they really were serious about having a 388
granted. [¶] And yet we still see substance use by both Mother
and Father at a time when they know the Department’s going to
be scrutinizing all their moves to see if they are truly serious.”
Both Mother and Father addressed the juvenile court
during the section 366.26 hearing and requested another chance
to reunify with the Minors. In addition to highlighting their
changed living situation, they suggested the Department
fabricated their positive drug tests. The juvenile court
acknowledged “[t]here is always a side—just the human side of
the court that, of course, would love to give people more chances
because we’re all deserving of more chances and to correct past
mistakes. But in dependency proceedings, the focus is always on
8
the permanency and stability for the children. And this case has
been around for a very, very long time. There is no more time left
under the law for further chances.” The juvenile court found the
Minors to be adoptable, found no exceptions to adoption applied,
and terminated Mother and Father’s parental rights.
II. DISCUSSION
Mother and Father5 contend the juvenile court abused its
discretion in denying their changed circumstances petitions and,
in any case, the section 366.26 orders should be reversed because
the Department did not informally contact the Indian tribes to
which it sent formal ICWA notice. Neither argument has merit.
Mother and Father’s most recent period of sobriety did not
demonstrate changed circumstances in light of their history of
relapse. Moreover, it was within the juvenile court’s discretion to
conclude adoption by the caregiver with whom the Minors have
spent most of their lives is in their best interest. As for the ICWA
contentions, the purpose of pre-notice communication between
the Department and Indian tribes is primarily to determine
whether formal notice is necessary. Because the Department
actually sent ICWA notices to the relevant tribes and there is no
indication the notices were deficient in a manner that would have
been remedied by such pre-notice contact, any error in failing to
make pre-notice contact was harmless.
5
Father joins Mother’s arguments. Apart from suggesting
specific questions the Department should have discussed with the
relevant Indian tribes as part of its pre-notice ICWA inquiry—
which we shall address—he does not present any separate issues
on appeal.
9
There is, on the other hand, no documentation in the
appellate record of efforts by the Department to contact two of
the three relatives we previously held it should attempt to
contact as part of an adequate ICWA inquiry. Thus, and similar
to our disposition of the previous appeal, we will conditionally
affirm the juvenile court’s section 366.26 orders and remand for
the juvenile court to ensure the Department has correctly
documented compliance with its inquiry and notice obligations
under ICWA and related California law.
A. Denial of Mother and Father’s Section 388 Petitions
Was Not an Abuse of Discretion
A section 388 petitioner “has the burden of showing by a
preponderance of the evidence (1) that there is new evidence or a
change of circumstances and (2) that the proposed modification
would be in the best interests of the child.” (In re Mickel O.
(2011) 197 Cal.App.4th 586, 615 (Mickel O.).) We review the
juvenile court’s denial of a section 388 petition for abuse of
discretion. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478-479; In
re J.T. (2014) 228 Cal.App.4th 953, 965.)
As a preliminary matter, Mother’s contention that the
juvenile court’s remark that there was “no more time left . . . for
further chances” indicates it did not recognize the scope of its
discretion to grant the section 388 petitions is baseless. In
context, however, these remarks merely summarize the
consequences of the juvenile court’s finding that Mother and
Father did not satisfy their burden under section 388. The
juvenile court held a hearing on the petitions and expressly found
that circumstances had not changed and further reunification
efforts would not be in the best interest of the Minors. As we
10
shall explain, that conclusion was within the juvenile court’s
discretion to draw.
1. Changed circumstances
A change in circumstances warranting the reinstatement of
reunification services must be “substantial.” (In re Ernesto R.
(2014) 230 Cal.App.4th 219, 223.) Changing—as opposed to
changed—circumstances will not suffice. (Mickel O., supra, 197
Cal.App.4th at 615, citing In re Casey D. (1999) 70 Cal.App.4th
38, 47, disapproved on another ground in In re Caden C. (2021)
11 Cal.5th 614, 636, fn. 5 (Caden C.).)
Mother and Father contend they demonstrated changed
circumstances because they were no longer “living the lifestyle of
a drug addict.” They emphasize their improved housing and
career stability and they argue positive tests in May 2020 do not
undermine their showing that they were “free from drug
addiction.”
In our view, the positive tests in May 2020 were not
isolated events. In addition to missed drug tests throughout the
dependency proceedings, Mother tested positive for cocaine and
opiates in July 2016, hydrocodone in April 2017, cocaine in
October and November 2017, opiates in February 2018, and
cocaine in May 2020. Father tested positive for cocaine several
times in 2017, again in February 2018, and again in May 2020.
These positive drug tests coincided with Mother’s pregnancy with
the Minors’ younger sibling and the parents’ participation in at
least one of several treatment programs. The fact that Mother
and Father were able to improve their living situation and have
successful monitored visits with the Minors despite fairly recent
11
drug use does not demonstrate they addressed the substance
abuse issues that gave rise to jurisdiction.
Mother’s counterargument relies on In re J.M. (2020) 50
Cal.App.5th 833 (J.M.), a case in which the petitioner
“ameliorated all concerns leading to dependency court
jurisdiction” by avoiding contact with her abusive former partner
for more than a year. (Id. at 837, 846.) The petitioner in J.M.
prevailed notwithstanding her violation of a no-contact order as
to her abuser on only one occasion (id. at 840-841), but that
circumstance is not comparable to Mother and Father’s repeated
cycles of recovery and relapse here. The juvenile court could
reasonably conclude nine months of sobriety (at best) following
several years of recurring drug use under the scrutiny of the
Department and treatment programs demonstrated changing—
but not changed—circumstances. (In re Clifton B. (2000) 81
Cal.App.4th 415, 423-424 (Clifton B.) [holding seven months of
sobriety insufficient to demonstrate changed circumstances
where petitioner’s lengthy history of drug abuse included “periods
of sobriety alternated with recurring drug use”]; see also In re
Amber M. (2002) 103 Cal.App.4th 681, 685-686 [affirming denial
of section 388 petition where the petitioner “had been clean for
372 days, [but] she had previously relapsed twice during the
course of th[e] case”] (Amber M.).)
2. Best interest
Even assuming Mother and Father refrained from
substance abuse between May 2020 and February 2021 and this
was sufficient to demonstrate changed circumstances, they still
did not carry their burden to demonstrate further reunification
services would be in the Minors’ best interest. In making this
12
determination, courts consider “the seriousness of the problem
leading to the dependency and the reason for its continuation; the
strength of the parent-child and child-caretaker bonds and the
time the child has been in the system; and the nature of the
change of circumstance, the ease by which it could be achieved,
and the reason it did not occur sooner.” (Amber M., supra, 103
Cal.App.4th at 685.)
The first and third factors do not support Mother and
Father’s position. Mother and Father’s drug abuse came to the
attention of the Department due to reports that they were
seriously neglecting J.S. (then three years old) and D.S. (then one
year old). (In re Christopher R. (2014) 225 Cal.App.4th 1210,
1219 [highlighting the special problem of substance abuse in
relation to children of “‘tender years’”].) As courts have
recognized—and this case demonstrates—chronic substance
abuse is not easily addressed. (Clifton B., supra, 81 Cal.App.4th
at 423 [“relapses are all too common for a recovering drug user”].)
Mother emphasizes she had a traumatic childhood and suffered
several health crises during the dependency proceedings to
explain her delay in addressing her drug abuse. These hardships
do not meaningfully distinguish the latest period of sobriety from
earlier, unsuccessful efforts at recovery.
The relative strength of the Minors’ bonds to T.W. and their
parents also weighs against further reunification services.
Although “the bond to the caretaker cannot be
dispositive . . . , lest it create its own self-fulfilling
prophecy, . . . the disruption of an existing psychological bond
between dependent children and their caretakers is an extremely
important factor bearing on any section 388 motion.” (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 531.) Here, the Minors
13
have been placed with T.W. since 2015—the majority of J.S. and
D.S.’s lives, and nearly all of S.S.’s life—and referred to her as
“Mama T.” By all accounts, they were thriving in her care. J.S.
and D.S. wanted T.W. to adopt them, and S.S. was too young to
express a preference. Although J.S. and D.S.’s stated indifference
to continued visits with Mother and Father was tempered by
their anticipation and enjoyment of visits, it was within the
juvenile court’s discretion to conclude the Minors’ interests were
best served by ensuring permanency and stability with T.W.
B. Conditional Affirmance Is Appropriate Because the
Record Does Not Show the Department Undertook
Necessary ICWA Inquiry
1. Additional background
Father notified the Department early in dependency
proceedings that he may have Cherokee or Seminole ancestry. In
late 2016, the Department sent ICWA notices to the Cherokee
Nation, the Eastern Band of Cherokee Indians, the United
Keetoowah Band of Cherokee Indians in Oklahoma, the Seminole
Nation of Oklahoma, the Seminole Tribe of Florida, the Bureau of
Indian Affairs, and the U.S. Department of the Interior. As
discussed in this court’s opinion conditionally affirming the
juvenile court’s April 2018 section 366.26 orders, these ICWA
notice forms provided scant information regarding Father’s
family. (R.S. I, supra, B290032, B290033.) Among other things,
the forms did not include the addresses or places of birth of the
Minors’ paternal grandparents, the date and place of death of a
paternal great grandmother, and the birthdate and tribal
affiliation of a paternal great grandfather. (Ibid.)
14
This court concluded there was no substantial evidence to
support a finding that the Department adequately investigated
Father’s potential Indian ancestry. (R.S. I, supra, B290032,
B290033.) There was no documentation suggesting the
Department asked Father if he knew of other family members
who might possess relevant information. (Ibid.) Moreover,
although Department social workers spoke with the Minors’
paternal grandparents and a paternal great aunt while
investigating the allegations against Mother and Father and
assessing placement options, there was no indication the
Department asked these relatives whether they possessed
information relevant to the ICWA inquiry. (Ibid.) Our opinion
did not identify these relatives by name, but the Department’s
records reflect that social workers were in contact with Rory S.
(the paternal grandfather), Charlene B. (the paternal
grandmother), and Kimberly F. (a paternal great aunt) in 2015.
Recognizing that the Department may have discharged its
duty of inquiry without providing documentation of its efforts, we
remanded for the Department to submit any such documentation
and, if none existed, for the juvenile court to order the
Department to make the required inquiries. (R.S. I, supra,
B290032, B290033.) We held that, “at a minimum,” the
Department must “exhaust Father’s own knowledge of any
Cherokee or Seminole ancestry” and make adequate efforts to
interview paternal family members of which the Department was
already aware “(such as paternal grandmother, grandfather, and
great-aunt) or that Father is able to identify as possibly having
pertinent information.” (Ibid.)
On remand, the juvenile court found there was “no
documentation . . . to demonstrate the Department undertook
15
meaningful inquiry in the beginning” and ordered the
Department to further inquire as to the Minors’ potential Indian
ancestry. In January 2019, Father told a Department social
worker that a paternal great aunt, Janette S.Z. (Janette), and
paternal great grandmother, Emma Jean S. (Emma Jean), are
registered members of the Seminole tribe. He further stated that
his “[g]reat, great, great [g]randfather, John Horse,” is on the
cover of a book entitled Black Indians. Father’s older daughter,
Meshawn S. (Meshawn), told the social worker that both Emma
Jean and her husband, John S., were “associated with” the
Seminole tribe, and suggested the Department contact her aunts
Janette and Sadee H. (Sadee) for more information.
The Department was unable to find contact information for
Sadee, but a social worker spoke with Janette in February 2019.
Janette told the social worker she is estranged from Father and
“did not want to be involved [ ]or assist in any way.”
Nonetheless, Janette confirmed she is a member of the Seminole
Nation. She did not have her tribal registration number with
her, and she declined a follow-up call with the social worker.
Janette could not identify any other relatives who might be able
to provide additional information, but stated the Minors are
descended from Chief John Moon of the Seminole tribe and
named Irma Jones S., Sharna L.J., and John J. as others in this
lineage.6
6
According to the social worker’s notes, Janette stated
Father is the “son of Rorrick S., husband of Irma Jones S. (sister),
daughter of Sharna L.J., daughter of John J., son of Chief John
Moon of the Seminole tribe.” The family tree suggested in these
notes, which identify Irma Jones S. as the Minors’ paternal
grandmother, conflicts with the Department’s records identifying
Charlene B. as the paternal grandmother. Indeed, Father
16
Rory S., the paternal grandfather, told a Department social
worker the Minors’ great great great great grandfather was
named John Bear Blackfoot, but Janette “is the only other
member of the family that he knows that has knowledge of [the]
family’s Indian heritage.” The paternal grandfather ended the
call abruptly because he was at work and did not answer follow-
up calls and a text message.
Although the Department’s records commendably reflect
multiple attempts to reach the Minors’ paternal great
grandmother, Emma Jean, by phone, there is no record of any
follow-up with the Minors’ paternal grandmother, Charlene B.
(Notes summarizing the Department’s efforts to contact Emma
Jean mistakenly describe her as the paternal grandmother.)
There is also no mention of further attempts to contact Kimberly
F., the paternal great aunt mentioned in our earlier opinion.
The Department sent ICWA notices to the Seminole Tribe
of Florida, the Seminole Nation of Oklahoma, the Choctaw
Nation of Oklahoma, the Mississippi Band of Choctaw Indians,
the Jena Band of Choctaw Indians, and the Blackfeet Tribe of
Montana in 2019.7 The ICWA notices identify Charlene B. as the
Minors’ paternal grandmother, but form fields for her current
and former addresses, birth date and place, and date and place of
identified Emma Jean (a name the Department listed as an alias
of Irma Jones in its ICWA notices) as the Minors’ paternal great
grandmother. It appears the notes of the social worker’s
conversation with Janette misidentify Rorrick/Rory S., the son of
Irma Jones/Emma Jean, as her husband.
7
The Minors’ potential Choctaw and Blackfeet ancestry is
through Mother’s adoptive family and is not at issue in this
appeal.
17
death are completed with the notation “FATHER UNABLE TO
PROVIDE.” The notices identify Rory S. as the paternal
grandfather and list his current address, but the remaining form
fields all indicate “FATHER UNABLE TO PROVIDE.” The only
information provided for the paternal great grandmother, Erma
Jean J. AKA Emma Jean S. AKA Irma Jones S., is her birthdate
and the fact that she is “REGISTERED WITH THE SEMINOLE
TRIBE.” The only information provided for the paternal great
grandfather, John S., is his date and place of birth and death.
Several form fields, including those relevant to whether
any family members attended an Indian school, received medical
treatment at an Indian health clinic, and “[o]ther relative
information,” mention that “Father’s great, great, great
grandfather is John Horse AKA John S[.] AKA John Moon AKA
John Jefferson AKA John Caballo AKA Juan Cavallo AKA John
Cowaya AKA Gopher John.”8 The “[o]ther relative information”
section also mentions Janette and her Seminole affiliation (with
fields for her address and date and place of birth indicating “[s]he
refused to provide”) and Sharna L.J. (with all related fields
indicating “[f]amily unable to provide”). Although Janette
indicated Sharna L.J. was Emma Jean’s mother (making her the
Minors’ great great grandmother), the notices list her as a cousin.
The notices do not mention the paternal great aunts Kimberly F.
or Sadee.
Each of the noticed tribes responded that the Minors are
not enrolled members or eligible for membership. Five of the six
8
The appellate record does not indicate the source of several
of these aliases. Nor is it clear why the notices do not include the
name John Bear Blackfoot, mentioned by the paternal
grandfather, Rory S.
18
tribes responded by letter. A Department social worker obtained
a response from the sixth tribe—the Seminole Nation of
Oklahoma—by telephone.
At a September 25, 2019, progress hearing regarding ICWA
notices, the Department represented it had complied with ICWA
requirements. Counsel for the Minors and Mother submitted on
the matter, and Father’s attorney did not address the matter
when invited to do so. The juvenile court found the Department
satisfied ICWA’s inquiry and notice requirements, citing “the
Department’s exhaustive efforts to inquire of all persons with
potential information,” and “reiterate[d] its previous findings that
ICWA does not apply in this case.”
2. ICWA and related California statutes
ICWA reflects a congressional determination to protect
American Indian children9 and to promote the stability and
security of Indian tribes and families. (25 U.S.C. § 1902; In re
Isaiah W. (2016) 1 Cal.5th 1, 7-8 (Isaiah W.).) “The minimum
standards established by ICWA include the requirement of 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.’ (25 U.S.C. § 1912(a).)” (Isaiah W., supra, at 8
[explaining that ICWA’s notice requirement enables tribes to
9
For purposes of ICWA and related state statutes, an Indian
child is an unmarried person under age 18 who is either a
member of a federally recognized Indian tribe or 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); § 224.1, subd. (a) [adopting federal definitions].)
19
determine whether the proceedings involve an Indian child and,
if so, “to intervene in or, where appropriate, exercise jurisdiction
over a child custody proceeding”].)
“ICWA itself does not impose a duty on courts or child
welfare agencies to inquire as to whether a child in a dependency
proceeding is an Indian child.” (In re Austin J. (2020) 47
Cal.App.5th 870, 883.) Federal regulations implementing ICWA,
however, require state courts to ask each participant in child
custody proceedings whether they know or have reason to know
that the child is an Indian child and to instruct the participants
to inform the court if they if they subsequently receive
information that provides reason to know the child is an Indian
child. (25 C.F.R. § 23.107(a).) Additionally, pursuant to ICWA’s
provision that states may provide “a higher standard of
protection to the rights of the parent or Indian custodian of an
Indian child than the rights provided under” ICWA (25
U.S.C. § 1921), California statutory law “incorporates and
enhances ICWA’s requirements.” (In re Breanna S. (2017) 8
Cal.App.5th 636, 650 (Breanna S.), disapproved on another
ground in Caden C., supra, 11 Cal.5th at 629.)
At the time that the juvenile court terminated Mother and
Father’s parental rights, requirements regarding inquiry into
whether a child is an Indian child were enumerated in section
224.2.10 The statute requires a child services agency to, among
10
Amendments to section 224.2 took effect on January 1,
2020 (Stats. 2019, ch. 434, § 2) and September 18, 2020 (Stats.
2020, ch. 104, § 15). Although the juvenile court determined
ICWA did not apply in September 2019, the juvenile court has
“affirmative and continuing duty” to ensure ICWA compliance
(§ 224.2, subd. (a)) and we apply the law in effect when the
juvenile court made the order from which the parents appeal.
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other things, “[c]ontact[ ] the tribe or tribes and any other person
that may reasonably be expected to have information regarding
the child’s membership, citizenship status, or eligibility.”
(§ 224.2, subd. (e)(2)(C).) Contact with a tribe pursuant to section
224.2, subdivision (e)(2)(C) “shall, at a minimum, include
telephone, facsimile, or electronic mail contact to each tribe’s
designated agent for receipt of notices under [ICWA]” and “shall
include sharing information identified by the tribe as necessary
for the tribe to make a membership or eligibility determination,
as well as information on the current status of the child and the
case.” (§ 224.2, subd. (e)(2)(C).)
The sharing of information with tribes at this inquiry stage
is distinct from formal ICWA notice to tribes. (In re D.S. (2020)
46 Cal.App.5th 1041, 1049 (D.S.).) Formal notice must include,
among other things, biographical information regarding the child
and their parents, grandparents, and great grandparents.
(§ 224.3, subd. (a)(5).) The noticed tribes’ determinations of
whether the child is a member, or eligible for membership, are
conclusive. (§ 224.2, subd. (h); In re T.G. (2020) 58 Cal.App.5th
275, 294.)
We review challenges to the juvenile court’s findings
regarding ICWA inquiries for substantial evidence. (In re Hunter
W. (2011) 200 Cal.App.4th 1454, 1467.) Although failure to
comply with ICWA’s notice requirements ordinarily constitutes
prejudicial error, violations of state statutes imposing higher
(See In re A.M. (2020) 47 Cal.App.5th 303, 320 [“The
determinative factor is not when the ICWA-030 notices were
mailed to the relevant tribes, but when the section 366.26
hearing was held” because the “termination order ‘necessarily
subsume[s] a present determination’ of ICWA’s applicability”].)
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inquiry and notice standards will be held harmless unless the
appellant demonstrates a reasonable probability of a different
result. (Breanna S., supra, 8 Cal.App.5th at 653; In re S.B.
(2005) 130 Cal.App.4th 1148, 1162.)
3. Analysis
Mother and Father contend the Department failed to
discharge its duty of further inquiry because it did not make
informal contact with the tribes before providing formal notice.
Assuming without deciding the Department was required to
make pre-notice contact with the tribes,11 there is no basis to
conclude pre-notice contact would have produced a different
result.
Citing the paternal relatives’ lack of cooperation with
Department social workers, Mother contends informal contact
with the tribes would have provided “another way to obtain the
necessary information as to whether the proceedings involved an
Indian child.” In effect, Mother argues that if the Department
had informally shared with the tribes the information that was
ultimately included in the formal notice, the tribes might have
provided additional information to include in the formal notice.
The problem with this argument is that, with or without pre-
notice contact, the tribes’ membership determinations would be
based on the same information. If, for example, a social worker
had made a pre-notice phone call to the Seminole Tribe of Florida
11
In at least one case, the Court of Appeal has suggested
formal notice satisfies the pre-notice contact requirement. (In re
D.F. (2020) 55 Cal.App.5th 558, 570 [characterizing formal notice
as “correspondence” sufficient to satisfy pre-notice contact
provision in former section 224.2, subdivision (e)(3)].)
22
and learned Janette’s tribal identification number, the only
difference between the formal notice actually provided in this
case and formal notice informed by pre-notice contact would be
the addition of information already possessed by the tribe. Under
these circumstances, there is no reasonable probability that pre-
notice contact would have resulted in a finding that the Minors
are Indian children.
Joining Mother’s argument, Father suggests specific
questions the Department might have posed to the Seminole
Tribe of Florida in a pre-notice discussion: “(1) Is Aunt Janette a
member? How does that affect the ability of her great-nieces and
nephews to apply for membership? [¶] (2) Assuming . . . that
[Father] is a direct descendant of Chief John Moon and that can
be proven, are appellant and his children eligible for membership
or is their blood quantum too dilute for membership or is there
some other barrier, one that might be overcome, to obtaining
membership in the tribe? [¶] (3) What are the basic criteria for
membership in the tribe?” None of these questions would
generate new information for the tribe to consider in determining
whether the Minors are eligible for membership. As we have
already said, the Seminole Tribe of Florida was issued a notice
reflecting Janette’s tribal membership and the Minors’ purported
descent from Chief John Moon. Father’s questions are geared
toward collecting information from the tribe regarding its reasons
for concluding the Minors are not eligible for membership. But
we do not second guess the tribes’ conclusions. (§ 224.2, subd.
(h).)
The Department’s efforts to investigate the Minors’
potential Indian ancestry were hampered by lack of cooperation
from Father’s family and, as we shall discuss, its failure to
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contact all relatives who might possess pertinent information.
But pre-notice contact with the tribes would have made no
difference and any error in declining to make informal tribal
contact was harmless.
Finding this particular asserted informal contact error
harmless, on the other hand, does not mean that outright
affirmance ought to be the result. The state of the record reveals
another problem with the Department’s inquiry that requires
remediation.
In our previous opinion, we held that a meaningful ICWA
inquiry must include efforts to interview Rory S. (the paternal
grandfather), Charlene B. (the paternal grandmother), and
Kimberly F. (a paternal great aunt), with whom the Department
was already in contact. The record in this appeal reflects follow-
up with Rory S., but no further attempts to interview Charlene B.
or Kimberly F. Instead, the Department documented its contact
with a different great aunt (Janette) and efforts to contact the
Minors’ great grandmother (Emma Jean), misidentified in a
social worker’s notes as their grandmother.
The Department’s apparent failure to contact these
relatives is reflected in the ICWA notices. For example, form
fields for Charlene B.’s biographical information indicate
“FATHER UNABLE TO PROVIDE.” Although the Minors’
purported Indian ancestry runs through Rory S. and Charlene B.
may accordingly be unlikely to provide information beyond that
already shared by Rory S. and Janette, the appellate record does
not disclose whether Kimberly F. is the sister of Charlene B. or
Rory S. If the latter, it is reasonably probable that Kimberly F.
may possess information regarding her family’s ancestry that
Rory S. was unable (and Janette unwilling) to provide. For
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example, it is reasonably probable that a sister of Rory S. would
be able to provide contact information for her mother (the Minors’
great grandmother), Emma Jean, who other relatives identified
as a registered member of an Indian tribe, or Sadee, who another
relative indicated might have more information about the Minors’
Indian ancestry.
We are mindful of the fact that no relatives suggested
Kimberly F. was likely to possess relevant information. But
following up with a paternal relative with whom social workers
were already in contact—and a person we specifically held the
Department must make efforts to interview—does not amount to
“cast[ing] about” for relevant information. (See D.S., supra, 46
Cal.App.5th at 1053 [“The [child welfare agency] is not required
to ‘cast about’ for information or pursue unproductive
investigative leads”].)
Under the circumstances, we believe it is appropriate to
conditionally affirm the section 366.26 parental rights
termination order and remand to the juvenile court with
directions. (Breanna S., supra, 8 Cal.App.5th at 656; In re
Michael V. (2016) 3 Cal.App.5th 225, 236; see also In re Elizabeth
M. (2018) 19 Cal.App.5th 768, 788.) On remand, the juvenile
court shall permit the Department to submit evidence of its
attempts to interview the Minors’ paternal grandmother,
Charlene B., and paternal aunt, Kimberly F., regarding the
Minors’ potential Indian ancestry.
If additional evidence demonstrates the Department was
unable to reach these relatives or they indicated they had no
pertinent information before the Department sent ICWA notices
to the relevant tribes, the juvenile court need only make a finding
to that effect on the record or in a minute order. If, however,
25
there is no documentation demonstrating such an inquiry was
undertaken by the Department, the juvenile court shall order the
Department to conduct such an inquiry and to submit evidence of
its efforts. If the Department’s inquiry produces additional
material information regarding the Minors’ potential Indian
ancestry, the Department must re-notice the pertinent tribe(s)
with the additional information included in the notice. (If no
additional material information is produced, re-noticing is not
required.) Upon receipt of responses to any further ICWA notice
that may be required, the juvenile court shall then determine
whether ICWA-related inquiry and notice requirements have
been satisfied and whether the Minors are Indian children. If the
court finds the Minors are Indian children, the court shall vacate
the parental rights termination orders and proceed in compliance
with ICWA and related California law. If the court finds the
Minors are not Indian children, the section 366.26 orders shall
remain in effect.
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DISPOSITION
The juvenile court’s February 10, 2021, orders denying
Mother and Father’s section 388 petitions as to J.S., D.S., and
S.S. are affirmed. The juvenile court’s February 10, 2021, section
366.26 parental rights termination orders as to J.S., D.S., and
S.S. are conditionally affirmed. The cause is remanded to the
juvenile court for further proceedings consistent with this
opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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