In re Angela R. CA2/3

Filed 6/17/22 In re Angela R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication or ordered published for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 THREE
In re Angela R. et al., Persons B312951
Coming Under the Juvenile Court
Law. (Los Angeles County
___________________________________ Super. Ct. No. 19CCJP05694A–B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Demi R. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Craig S. Barnes, Judge. Affirmed.
William H. Hook, under appointment by the Court of
Appeal, for Defendant and Appellant Demi R.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant Richard R.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Demi R. (mother) and Richard R. (father) appeal from
orders of the juvenile court terminating parental rights to their
twin children, Angela and Richard, Jr. The parents contend the
juvenile court erred by finding that the Los Angeles County
Department of Children and Family Services (DCFS) adequately
investigated the children’s possible Indian ancestry, as required
by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.)
and related state statutes. We find no error, and thus we will
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention, adjudication, and disposition.
Angela and Richard were born in August 2019. Both
children tested positive for amphetamines and heroin at birth
and experienced symptoms of withdrawal thereafter. Mother
reported being homeless and using drugs daily during her
pregnancy. Father disclosed a prior gang affiliation and an
extensive criminal history related to drug use.
Two days after the children’s birth, mother discharged
herself from the hospital against medical advice. Neither mother
nor father left an address or any contact information other than
cell phone numbers. A children’s social worker (CSW) tried to
2
contact both parents the following day, but the parents had their
phones turned off and did not return the phone calls.
DCFS obtained an expedited removal order for the children
when they were three days old. Upon their release from the
hospital, the infants were placed with foster parents who
continued to care for them throughout these proceedings and are
the prospective adoptive parents.
DCFS filed a dependency petition in September 2019. The
petition alleged that mother’s use of illicit drugs while pregnant
with the children and the parents’ substance abuse placed the
children at serious risk of physical harm (Welf. & Inst. Code,
§ 300, subd. (b)).1 On January 31, 2020, the juvenile court
sustained the allegations of the petition, ordered the children
removed from mother and father, and ordered reunification
services for both parents.
In July 2020, DCFS reported that it had had only periodic
contact with the parents. Contact had been difficult because the
parents’ telephone number had changed at least four times over
the preceding ten months and the parents did not have
permanent housing. Mother periodically called the CSW to
report that she was participating in programs, but she was never
able to provide contact information for the programs and did not
respond to the CSW’s attempts to follow up. The parents
routinely failed to show up for scheduled visits with the children,
and neither parent ever appeared for a drug test.
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
3
DCFS reported in June 2021 that the parents had last
visited the children in November 2020 and last called the foster
parents in April 2021.
B. ICWA inquiry.
1. Inquiry as to father.
A CSW interviewed father in late August 2019, when the
children were two days old. Father said he was the oldest of four
children and that his father had died when he was six years old.
The CSW asked whether father had any family with whom the
children could be placed, and father provided the names of his
mother and stepfather, whom he said lived in Arizona. Father
did not have his parents’ contact information, but he said he
would ask them to call the CSW. They did not do so. Father also
said he had two daughters with his former wife but he did not
have an address or phone number for them.
On August 30, 2019, DCFS filed an ICWA-010 form, signed
by the CSW under penalty of perjury, stating he had interviewed
father in person, and father “denied any known Indian ancestry.”
Father, but not mother, appeared at the September 5, 2019
detention hearing. Prior to the hearing, father filed and signed
an ICWA-020 form in which he said, “I have no Indian ancestry
as far as I know.” The court asked father whether his statement
denying Indian ancestry was correct, and father said it was. The
court then asked whether father knew if mother had Indian
ancestry; father did not. Based on father’s response, the court
found that ICWA did not apply, but said it would revisit the issue
once mother was arraigned.
The CSW interviewed father again in October 2019. Father
said he was close to his mother, grandmother, and three living
4
siblings, but he was able to provide contact information for only
his grandmother (the children’s paternal great-grandmother).
When the CSW attempted to call the paternal great-
grandmother, however, the number was inoperable. The CSW
said he would inform the court if he was able to obtain any
additional contact information.
The CSW tried to contact father on January 23, 2020, but
father did not respond. The CSW had only sporadic contact with
father thereafter.
2. Inquiry as to mother.
Mother refused to speak to the CSW while she was in the
hospital and then discharged herself on August 29, 2019, when
the children were two days old. The CSW tried to contact mother
several times in October 2019, but mother’s number no longer
was in service. In late October 2019, DCFS reported that
mother’s whereabouts were unknown. On October 28, 2019,
mother left a message for the CSW providing her new phone
number, but the CSW was not able to reach mother at that
number.
Mother appeared in court for the first time on December 11,
2019. Prior to the hearing, mother signed an ICWA-020 form
stating that she might have Indian ancestry through a Cheyenne
tribe. Mother did not check the boxes on the form indicating that
she or the children “[are] or may be . . . member[s], or eligible for
membership in, a federally recognized tribe,” or that “[o]ne or
more of [her] parents, grandparents, or other lineal ancestors is
or was a member of a federally recognized tribe.”
At the December 11, 2019 hearing, the court asked mother
whether she or any member of her family was a member of a
Cheyenne tribe. Mother said she did not know, but she believed
5
she had Cheyenne ancestry through her father’s grandmother
(the maternal great-great-grandmother). Mother did not know
the great-great-grandmother’s name or whether she was still
alive. Mother said her father’s name was Jerry Ruiz and he lived
in Los Angeles “last I heard.” However, mother was not in touch
with her father and did not know his phone number, address, or
date of birth. The court then asked whether there were any other
relatives who might have information about her family’s
ancestry, and mother said there were not. The court asked
mother to try to get contact information for any relatives who
might know about her family’s Indian ancestry and to provide the
information to her attorney. The court also directed DCFS to
follow up with mother.
The CSW texted mother on January 7, 2020 to ask if she
was available to talk, but mother did not respond. On
January 13, 2020, the CSW “called, left voicemail messages and
texted [mother] to inquire more about the ICWA claim.” Mother
did not call back, but she sent a brief text stating that she had
Cheyenne ancestry through her father. She did not give any
more information.
On January 16, 2020, DCFS sent partially completed ICWA
notices to the Bureau of Indian Affairs, Secretary of the Interior,
and federally recognized Cheyenne tribes. The notices indicated
the parents’ names, addresses, birth dates, and birth places, but
did not provide any information about the grandparents or great-
grandparents.
At the January 31, 2020 adjudication hearing, DCFS’s
counsel noted that ICWA notices had been sent and asked the
6
court to set a progress date in March or April. A hearing was set
for April 1, 2020.2
In June 2020, mother asked the CSW whether the children
could be placed with a member of her extended family. The CSW
texted mother asking for names and birth dates of family
members; mother did not respond.
Subsequently, DCFS reported that it had received signed
return receipts from the noticed tribes, Bureau of Indian Affairs,
and Secretary of the Interior, and had received a letter from the
Cheyenne River Sioux Tribe stating that the children were not
enrolled members of the tribe.
C. Six-month review, ICWA finding, termination of
parental rights.
Neither parent appeared at the six-month review hearing
on February 8, 2021. The juvenile court found no substantial
probability that the children would be returned to the parents in
the next six months, terminated reunification services, and set a
hearing to terminate parental rights pursuant to section 366.26.
Both parents were present at the June 7, 2021 permanency
planning hearing. The juvenile court inquired whether there was
any new information relevant to ICWA; none was provided. The
court found that ICWA did not apply to the proceeding and
terminated parental rights.
Both parents timely appealed from the order terminating
parental rights.
2 Due to the Covid-19 pandemic, the hearing did not go
forward in April 2020 as scheduled. It ultimately was
consolidated with the six-month review hearing and continued to
February 8, 2021.
7
DISCUSSION
I. Relevant law.
A. 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.) An “Indian child” is “any unmarried person who is under
age eighteen and is either (a) a member of an Indian 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”].)
“[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 has several elements. The
statute provides that 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 inquire whether a child is an Indian
8
child. Such inquiry “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 . . . .” (§ 224.2, subd. (b).) The court also must
make an ICWA inquiry when the parents first appear in court:
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 must require
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)).
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 the
Bureau of Indian Affairs, State Department of Social Services,
and any tribe that may reasonably be expected to have
information about the child’s membership, citizenship status, or
eligibility. (§ 224.2, subd. (e)(2), italics added.) There is “reason
to believe” a child involved in a proceeding is an Indian child
whenever the court or social worker “has information suggesting
that either the parent of the child or the child is a member or
may be eligible for membership in an Indian tribe.” (§ 224.2,
subd. (e)(1).)
If the agency’s inquiry creates a “reason to know” that an
Indian child is involved, notice of the proceedings 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
9
child is an Indian child if any one of six statutory criteria is
met—e.g., if the court is advised that the child “is an Indian
child,” the child’s or parent’s residence is on a reservation, the
child is or has been a ward of a tribal court, or either parent or
the child possess an identification card indicating membership or
citizenship in an Indian tribe. (§ 224.2, subd. (d).) Thereafter,
the court shall confirm that the agency used due diligence to
identify and work with all of the tribes of which there is reason to
know the child may be a member, or eligible for membership, to
verify whether the child is in fact a member or whether a
biological parent is a member and the child is eligible for
membership. (§ 224.2, subd. (g).) A determination by an Indian
tribe that a child is or is not a member of, or eligible for
membership in, that tribe “shall be conclusive.” (§ 224.2,
subd. (h).)
If the juvenile court finds that “proper and adequate
further inquiry and due diligence as required in this section have
been conducted and there is no reason to know whether the child
is an Indian child,” the court may make a finding that ICWA does
not apply to the proceedings, “subject to reversal based on
sufficiency of the evidence.” (§ 224.2, subd. (i)(2).)
B. Standard of review.
Where, as here, the juvenile court finds that ICWA does not
apply, “ ‘ “[t]he finding implies that . . . social workers and the
court did not know or have a reason to know the children were
Indian children and that social workers had fulfilled their duty of
inquiry.” (In re Austin J. (2020) 47 Cal.App.5th 870, 885 [(Austin
J.)]; see In re D.S. (2020) 46 Cal.App.5th 1041, 1050 [(D.S.)]
[“[t]he juvenile court may . . . make a finding that ICWA does not
apply because the Agency’s further inquiry and due diligence was
10
‘proper and adequate’ but no ‘reason to know’ whether the child is
an Indian child was discovered”].)’ (In re J.S. (2021)
62 Cal.App.5th 678, 688.) ‘ “[W]e review the juvenile court’s
ICWA findings under the substantial evidence test, which
requires us to determine if reasonable, credible evidence of solid
value supports the court’s order. [Citations.] We must uphold
the court’s orders and findings if any substantial evidence,
contradicted or uncontradicted, supports them, and we resolve all
conflicts in favor of affirmance.” ’ (In re D.F. (2020)
55 Cal.App.5th 558, 565.)” (In re Josiah T. (2021) 71 Cal.App.5th
388, 401.) “ ‘Thus, we do not consider whether there is evidence
from which the dependency court could have drawn a different
conclusion but whether there is substantial evidence to support
the conclusion that the court did draw.’ (In re Noe F. (2013)
213 Cal.App.4th 358, 366.)” (In re J.N. (2021) 62 Cal.App.5th
767, 774.)
II. Substantial evidence supported the juvenile court’s
finding that ICWA did not apply.
Mother and father urge that the juvenile court erred in
finding ICWA did not apply because DCFS did not contact
extended family members to inquire about possible Indian
ancestry. We disagree.
A. Substantial evidence supports the juvenile
court’s ICWA finding as to father.
It is undisputed that father completed and signed an
ICWA-020 form in which he said he had “no Indian ancestry as
far as I know.” It also is undisputed that father told DCFS in
August 2019 that he did not have Indian ancestry, and he
confirmed this statement on the record during his first court
11
appearance on September 5, 2019. Nonetheless, the parents
contend that DCFS had a duty to investigate father’s possible
Indian ancestry by interviewing all identified members of father’s
extended family, including father’s mother, grandmother, and
siblings, and that the juvenile court erred by finding ICWA did
not apply without requiring DCFS to undertake such an inquiry.
There is a split among the Courts of Appeal as to a child
welfare agency’s duty to investigate a child’s possible Indian
ancestry where a parent denies such ancestry. Some Courts of
Appeal have adopted the approach the parents advocate,
concluding that even where a parent denies any Indian ancestry,
section 224.2, subdivision (b) requires DCFS to inquire of a child’s
extended family members regarding his or her possible Indian
ancestry. (See, e.g., In re Antonio R. (2022) 76 Cal.App.5th 421[although mother reported she had no Indian ancestry, the
juvenile court erred by concluding DCFS had conducted an
adequate ICWA inquiry because it failed to inquire of the
maternal grandmother, maternal aunts, and a maternal uncle
about the child’s possible Indian ancestry]; In re A.C. (2022)
75 Cal.App.5th 1009 [although parents denied Indian ancestry,
DCFS erred by failing to ask members of parents’ extended
family about the child’s possible Indian ancestry]; In re H.V.
(2022) 75 Cal.App.5th 433 [although mother denied Indian
ancestry, DCFS had a duty to inquire of the maternal great-
grandmother and maternal great-grandfather].) Other courts
have reached a contrary conclusion, holding that a parent’s
unequivocal denial of Indian ancestry may constitute substantial
evidence to support a juvenile court’s finding that ICWA does not
apply. (See, e.g., In re Charles W. (2021) 66 Cal.App.5th 483,
486–488, 490–491 [juvenile court and agency made adequate
12
ICWA inquiry where mother’s counsel, in mother’s presence,
denied that mother had Indian ancestry]; In re Austin J., supra,
47 Cal.App.5th at pp. 887–888 [no duty to make further inquiry
regarding children’s possible Indian ancestry through father
where father’s in-court statement and his parental notification of
Indian status declaration indicated that he and his children had
no Indian ancestry]; In re A.M. (2020) 47 Cal.App.5th 303, 323
[no need for further inquiry if no one has offered information that
would give the court or agency reason to believe that a child
might be an Indian child]; In re H.V., supra, 75 Cal.App.5th 433(dis. opn. of Baker, J.) [mother’s and father’s denials of Indian
ancestry were substantial evidence to support juvenile court’s
finding that ICWA did not apply].)
We need not resolve this issue here because even were
DCFS required to inquire further regarding father’s possible
Indian ancestry, substantial evidence supported the juvenile
court’s finding that that duty was satisfied in this case. While
the case was pending in the juvenile court, father was given
multiple opportunities to provide contact information for
extended family members, but he never did so. When he was
first interviewed by DCFS in late August 2019, father provided
the names of his mother and stepfather, whom he said lived in
Arizona, but could not provide any contact information for them.
Father said he would ask them to call DCFS; they never did.
Father also could not provide an address or phone number for his
ex-wife or two older children.
The CSW again asked father about his extended family in
October 2019. Father identified his mother, grandmother, and
ex-wife, but was able to provide a phone number for only his
grandmother. The phone number he provided was not in service,
13
however. And, although father said he had three living siblings,
he did not provide DCFS with their contact information.3 In
short, the record does not identify any member of father’s
extended family for whom DCFS had contact information but did
not attempt to reach.
Although father did not provide the CSW with contact
information for any member of his extended family, he suggests
that DCFS should have made efforts to “locate, contact, [and]
interview” his parents, grandparents, and siblings because he
provided their names and, in the case of his mother and
stepfather, the state where they lived.4 Father cites no authority
for the proposition that DCFS’s duty of inquiry includes
attempting to obtain contact information for family members for
whom it has only first and last names, and the case law is to the
contrary. (See, e.g., In re A.M., supra, 47 Cal.App.5th at p. 323
[although information provided by mother triggered a duty of
further inquiry, agency’s failure to interview maternal relatives
was reasonable where mother could not provide information
about maternal relatives and no maternal relative appeared at
3 Father suggests on appeal that DCFS did not do enough to
locate members of his extended family because the CSW
“apparently did not ask Father for his parents’ address in
Arizona” and “apparently [did] not ask Father for his siblings’
addresses or other contact information.” The record does not
support this inference.
4 Moreover, even were we to agree that DCFS has a duty to
attempt to locate extended family members for whom parents do
not provide contact information, we cannot imagine that such an
attempt would have been fruitful here, where father’s parents
have extraordinarily common names and father could say only
that they lived somewhere in Arizona.
14
any hearing or participated in the matter]; In re K.M. (2009)
172 Cal.App.4th 115, 119 [where child protective agency
“attempted on several occasions to elicit further information from
the child’s family, but was unsuccessful due to the family’s
hostility” toward the agency, the agency “did all that can or
should be reasonably expected of it to meet its obligation to the
child, to the family, to the tribes and to the court.].)
In the present case, father did not provide valid contact
information for a single member of his extended family––and
because no extended family member ever appeared in the action,
we are not certain what more DCFS could have done to
investigate father’s possible Indian ancestry. We therefore
conclude that substantial evidence supported the juvenile court’s
conclusion that DCFS conducted a “proper and adequate further
inquiry” (§ 224.2, subd. (i)(2)) as to father’s family.
B. Substantial evidence supported the juvenile
court’s finding as to mother.
The parents also contend that DCFS did not conduct an
adequate inquiry into mother’s claimed Cheyenne heritage
because the record contains no evidence that DCFS attempted to
contact mother’s father (the maternal grandfather). Again, we
disagree.
Mother told the court at the disposition hearing that she
might have Cheyenne ancestry through her father’s grandmother
(the children’s maternal great-great-grandmother), whose name
she did not know. Mother said her father, Jerry Ruiz, was the
only member of her family who might have more information
about her family’s ancestry, but she did not have contact
information for him. The court directed mother to try to get more
information about her father’s whereabouts and to give that
15
information to her attorney, but mother never did so. And,
although DCFS tried repeatedly to contact mother through phone
and text, mother did not return the phone calls and did not
provide any additional information by text.
Notwithstanding mother’s inability to provide DCFS with
information about her extended family members, the parents
contend the juvenile court should have required DCFS to attempt
to contact her father or great-grandmother. We do not agree: As
we have said, the statute requires DCFS to make a reasonable
inquiry into the family’s ancestry, but it does not require the
agency to attempt to speak to extended family members for whom
the parents have not provided contact information.5 In any
event, it is not clear what more DCFS could have done to attempt
to contact mother’s father or great-grandmother: Lacking a
phone number or address for either, and without any additional
family members with whom to follow up, DCFS had, as a
practical matter, done all it could do to investigate mother’s
possible Indian ancestry. We therefore conclude that substantial
evidence supported the juvenile court’s conclusion that DCFS
conducted an “proper and adequate further inquiry” (§ 224.2,
subd. (i)(2)) as to mother’s family.
The parents further contend that the notices DCFS mailed
to the tribes were inadequate because they did not provide
complete information (names, current and former address, birth
and death dates, birth places, and tribal enrollment information)
for the children’s direct lineal ancestors. Not so. ICWA notice is
5 As with father’s parents, it is difficult to imagine that
DCFS would have been able to locate mother’s father in
Los Angeles even had it tried to do so because his name is so
common.
16
required only if after initial and further inquiries there is “reason
to know” that an Indian child is involved in the proceeding.
(§ 224.2, subd. (f), italics added.) As we have described, there is
“reason to know” a child is an Indian child if any one of six
statutory criteria is met—e.g., if the court is advised that the
child is a member or eligible for membership in an Indian tribe,
the child’s or parent’s residence is on a reservation, the child is or
has been a ward of a tribal court, or either parent or the child
possesses an identification card indicating membership or
citizenship in an Indian tribe. (Id., subd. (d).) Here, none of
these statutory criteria was met, and thus ICWA notice was not
required. Any insufficiencies in the notices sent, therefore, were
legally irrelevant.
17
DISPOSITION
The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
KIM, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
18
LAVIN, J., Dissenting:
D.R. (mother) and R.R. (father) appeal from the juvenile
court’s orders terminating their parental rights to their infant
children, A.R. and R.R. The parents argue the Department of
Children and Family Services (Department) failed to comply with
the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.)
and related state laws implementing ICWA (Welf. & Inst. Code,1
§ 224 et seq.).
I disagree with the majority’s conclusion that substantial
evidence supports the juvenile court’s finding that ICWA did not
apply. In my view, the Department failed to conduct an adequate
initial inquiry under ICWA as to both parents. Accordingly, I
would conditionally affirm the orders terminating mother’s and
father’s parental rights and remand the matter for the limited
purpose of requiring the Department to comply with ICWA. I
therefore respectfully dissent.
BACKGROUND
1. Proceedings Leading to the Termination of Parental
Rights
In September 2019, shortly after A.R. and R.R. were born,
the Department filed a dependency petition because the children
tested positive for amphetamine and heroin at birth. The petition
alleged mother’s use of illicit drugs while pregnant with the
children and the parents’ issues with substance abuse placed the
children at serious risk of suffering physical harm (§ 300, subd.
1All undesignated statutory references are to the Welfare and
Institutions Code.
(b); b-1 through b4 allegations). After the detention hearing, the
juvenile court found father was A.R.’s and R.R.’s presumed
parent.
In January 2020, the court sustained all the petition’s
allegations, declared the children dependents of the court, and
removed them from mother’s and father’s custody. The court
awarded the parents reunification services.
In February 2021, the court found mother and father were
not in compliance with their case plans, terminated their
reunification services, and scheduled a selection and
implementation hearing under section 366.26.
In June 2021, the court held the selection and
implementation hearing. The court found A.R. and R.R. were
adoptable, terminated mother’s and father’s parental rights, and
designated the children’s foster parents as their prospective
adoptive parents.
Mother and father appealed from the orders terminating
their parental rights.
2. ICWA Investigation
Shortly after the children were born in August 2019, the
Department interviewed father. Father has four siblings: two
brothers and two sisters. His father died when he was six years
old, and one of his sisters recently passed away. Father provided
the Department with the names of the children’s paternal
grandmother and paternal step-grandfather, who lived in
Arizona. Father didn’t have the paternal grandparents’ contact
information, but he told the Department he would try to obtain it.
Father also stated he was on parole and provided the
Department with two possible telephone numbers for his parole
officer. The Department called one of those numbers on October
2
11, 2019 and left a voicemail message with return contact
information. Although the Department had not received a return
phone call from a parole officer as of October 18, 2019, there is no
indication in the record that the Department made any further
attempt to contact father’s parole officer.
Father told the Department in August 2019 that he had
two other children, Angel Marie, born in 2001 or 2002, and
Michelle Victoria, born in 2003, and provided the Department
with the dates and months of their births. Father also stated that
their mother, Victoria R., “had full custody of the girls through
divorce Court” and provided the Department with Victoria R.’s
date, month, and year of birth. Father could visit the girls every
other weekend but had not seen them since prior to his last
arrest about one year ago. Although father did not have a contact
number or address for the girls and Victoria R., he stated the
family was residing in Hemet, California. In addition, the
Department had prior contact information for this family since it
investigated, and closed, a 2002 allegation of emotional abuse
and general neglect involving father, Victoria R., Angel Marie,
and two stepchildren.
In early September 2019, father filed an ICWA-020 form on
which he checked a box stating, “I have no Indian ancestry as far
as I know.”
Father, but not mother, appeared at the detention hearing.
Father told the court that he didn’t know if his or mother’s
families had any Indian ancestry. The court found it didn’t have
reason to know A.R. and R.R. were Indian children and ordered
the parents to keep the Department, their attorneys, and the
court aware “of any new information relating to possible ICWA
status.”
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In October 2019, the Department interviewed father again.
Father was on good terms with his siblings, his mother, and his
grandmother. He provided a phone number for his grandmother,
but the number didn’t work when the Department tried to
contact her. Father didn’t provide contact information for any of
his other relatives.
In December 2019, mother submitted an ICWA-020 form,
stating she may have Indian ancestry through the Cheyenne
tribe. At her first court appearance that same day, mother told
the court that she has Cheyenne ancestry through her father’s
side of the family. When the court asked mother if she knew
whether anyone in her family was a member of the tribe, mother
replied, “I don’t. It’s on my father’s side. I believe his
grandmother was.” Mother didn’t know if her father’s
grandmother was still alive because she no longer spoke to her
father. Mother didn’t have her father’s contact information, but
she provided his name and stated she believed he and his
grandmother, if still alive, lived in Los Angeles. Mother told the
court she would try to obtain her father’s date of birth and
contact information. The court instructed mother to contact her
relatives and ordered the Department to investigate mother’s
claim of Indian ancestry.
In mid-January 2020, the Department sent notices to the
“Cheyenne and Arapaho Tribes of Oklahoma,” the “Cheyenne
River Sioux Tribe,” and the “Cheyenne-Arapaho Tribes of
Oklahoma.” The notices included: (1) each child’s name and date
of birth; (2) mother’s name, contact information, and date and
place of birth and a statement that mother claimed ancestry from
the noticed tribes; and (3) father’s name, contact information, and
date and place of birth. The notices did not include names or any
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other information for any of the family’s extended relatives,
listing their identification as “unknown.” The court found the
Department’s notices were proper.
The Department received return receipts from the tribes,
the Bureau of Indian Affairs, and the Secretary of State. The
Cheyenne River Sioux Tribe responded to the Department’s
notices. The tribe’s enrollment specialist conducted an enrollment
check and found that mother, father, and both children were not
enrolled in the tribe.
In late January 2020, the Department reported it had
called mother, left her voicemails, and texted her asking for more
information about her claim of Cheyenne ancestry. Mother never
returned the Department’s calls, but she responded through text
message that she has Cheyenne ancestry through her father. She
didn’t provide any other information. Nothing in the record
indicates the Department otherwise tried to locate or contact
mother’s father or her father’s grandmother.
In its selection and implementation report filed in May
2021, the Department didn’t provide any new information about
its investigation into the family’s ICWA status. The Department
urged the court to make ICWA findings before deciding on a
permanent plan for the children.
At the June 7, 2021 selection and implementation hearing,
the court found ICWA did not apply to the children’s proceedings.
During that hearing, mother and father requested that A.R. and
R.R. be placed with father’s ex-wife—Victoria R.— and mother’s
counsel told the court that he has “the information for the court if
the court does need that information.”
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DISCUSSION
To effectuate ICWA, state law imposes on the Department
and the juvenile court an affirmative and continuing duty to
inquire whether a child in a dependency proceeding “is or may be
an Indian child.” (§ 224.2, subd. (a); In re Michael V. (2016) 3
Cal.App.5th 225, 233.) The duty to inquire “begins with initial
contact [citation] and obligates the juvenile court and child
protective agencies to ask all relevant involved individuals
whether the child may be an Indian child.” (In re T.G. (2020) 58
Cal.App.5th 275, 290, citing § 224.2, subd. (a).) “[T]he burden of
coming forward with information to determine whether an Indian
child may be involved and [the extent of] ICWA notice required in
a dependency proceeding does not rest entirely—or even
primarily—on the child and his or her family.” (Michael V., at p.
233.)
Under its “duty of initial inquiry,” the Department must
“make meaningful efforts to locate and interview … ‘extended
family members’ ” when it takes a child into temporary custody.
(In re Y.W. (2021) 70 Cal.App.5th 542, 552–553 (Y.W.).) To that
end, the Department must ask “the child, parents, legal
guardian, Indian custodian, extended family members, others
who have an interest in the child,” and the reporting party
whether the child is or may be an Indian child. (§ 224.2, subd.
(b).) Extended family members include adults who are the child’s
stepparents, grandparents, aunts, uncles, brothers, sisters,
nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2);
§ 224.1, subd. (c).) The court is also required, at the first
appearance of each party, to “ask each participant present in the
hearing whether the participant knows or has reason to know
that the child is an Indian child.” (§ 224.25, subd. (c).) To meet its
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obligations under ICWA, the Department “must on an ongoing
basis include in its filings a detailed description of all inquiries,
and further inquiries it has undertaken, and all information
received pertaining to the child’s Indian status.” (Cal. Rules of
Court, rule 5.481(a)(5).)
The court may find ICWA doesn’t apply to a child’s
proceeding if it finds the Department’s duty of inquiry has been
satisfied and there is no reason to know that child is an Indian
child. (§ 224.2, subd. (i)(2); Cal. Rules of Court, rule
5.481(b)(3)(A).) We review the court’s ICWA findings for
substantial evidence. (In re E.W. (2009) 170 Cal.App.4th 396,
404.) As I will explain, the Department failed to satisfy its duty of
inquiry as to both parents.
As to mother, the Department concedes “it had a duty of
inquiry to interview the maternal grandfather and any other
available extended maternal relatives given that mother claimed
she had possible Cheyenne ancestry and then identified the
maternal grandfather and his grandmother at court on December
11, 2019.” The Department also acknowledges that although it
“made some effort at following up with mother the following
month to inquire about her ICWA claim, the record is silent on
whether the agency made any additional efforts thereafter to
speak with her extended relatives.”
The Department’s inquiry into mother’s claim of Cheyenne
ancestry was inadequate. The Department was aware that
mother claimed Cheyenne ancestry through her father’s side of
the family. Although mother didn’t have contact information for
her father or personal information for her father’s grandmother,
she provided her father’s name and the city where she believed
he and his grandmother, if still alive, lived (Los Angeles).
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Nothing in the record indicates the Department tried to locate or
contact mother’s father, or to identify, contact, or locate her
father’s grandmother, after mother identified them as relatives
who potentially had information pertaining to her claim of
Cheyenne ancestry. As the petitioning agency, it was incumbent
upon the Department “to make a meaningful effort to locate and
interview extended family members” to investigate mother’s
claim that she has Cheyenne ancestry stemming from her
father’s side of the family. (In re K.R. (2018) 20 Cal.App.5th 701,
709 (K.R.).) The Department failed to satisfy that duty in this
case.
The Department also didn’t satisfy its duty of inquiry as to
father. While father denied knowing of any Indian ancestry in his
family, that didn’t relieve the Department of its duty to try to
locate and contact the children’s extended paternal relatives. As
several courts have observed, parents often “may not know their
possible relationship with or connection to an Indian tribe.”
(Y.W., supra, 70 Cal.App.5th at p. 554; see, e.g., In re S.R. (2021)
64 Cal.App.5th 303, 314 [“parents apparently had no idea of their
family’s connection to the Yaqui tribe of Arizona, even though the
children’s great-grandmother was a member”]; In re Elizabeth
M. (2018) 19 Cal.App.5th 768, 787 [“Oral transmission of relevant
information from generation to generation and the vagaries of
translating from Indian languages to English combine to create
the very real possibility that a parent’s identification of the
family’s tribal affiliation is not accurate.”]; In re Breanna S.
(2017) 8 Cal.App.5th 636, 650 [“ ‘parents may be unsure or
unknowledgeable of their own status as a member of a tribe’ ”],
disapproved on other grounds by In re Caden C. (2021) 11 Cal.5th
614, 637, fn. 6.) Accordingly, “ICWA and state law place the duty
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[to inquire] with the child protective agency in the first instance,
not the child or his or her parent, to determine whether
additional information exists that may link a child with Indian
ancestry to a federally recognized tribe.” (Elizabeth M., at p. 787.)
Thus, “[n]othing in section 224.2, subdivision (b), relieves the
Department of its broad duty to seek … information [about a
family’s ancestry] from ‘all relevant’ individuals … simply
because a parent states on the ICWA-020 form … ‘I have no
Indian ancestry as far as I know.’ ” (Y.W., at p. 554, citation
omitted.)
Here, father provided the Department with the names of
several of his family members, including his mother, his step-
father, and his grandmother, and he told the Department he still
has good relationships with his surviving siblings. While father
gave the Department an inactive phone number for his
grandmother, nothing in the record shows the Department
followed up with father to find a working phone number for her
or otherwise made any effort to locate and contact her or any of
father’s other relatives.
In addition, the Department should have followed up on
obvious leads and sources to obtain contact information for
father’s extended family members, including his two eldest
daughters. For example, it should have attempted to interview
father’s ex-wife, Victoria R. Indeed, the Department had prior
contact information for this family since it investigated a
previous abuse and neglect allegation involving father, Victoria
R., and Angel Marie. Father also stated that his eldest daughters
and Victoria R. lived in Hemet, and father and Victoria R. had
been involved in family court litigation. To the extent the
Department could not locate Victoria R. from public sources of
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information or its own records, mother’s counsel appeared ready
and able to provide the court with that information at the June 7,
2021 hearing. And although the Department had not received a
return phone call from father’s parole officer—another potential
source of information concerning father’s family—as of October
18, 2019, there is no indication that the Department made any
further attempt to contact the officer.
In sum, the Department failed to comply with its duty “to
make a meaningful effort to locate and interview extended family
members to obtain whatever information they may have” as to
A.R.’s and R.R.’s possible Indian status. (K.R., supra, 20
Cal.App.5th at p. 709.) And where, as here, a child protective
agency has not complied with its inquiry duty, I would not defer
to the juvenile court’s ICWA finding. Under section 224.2,
subdivision (i)(2), an ICWA finding is entitled to substantial
evidence review only if the juvenile court first ensures that
“proper and adequate further inquiry and due diligence as
required [by the statute] have been conducted and there is no
reason to know whether the child is an Indian child.” (See In re
N.G. (2018) 27 Cal.App.5th 474, 482–485 [rejecting agency’s
argument that substantial evidence supported court’s ICWA
findings and remanding matter for ICWA compliance because the
agency did not document what efforts, if any, it made to ask
extended family members about the child’s possible Indian
ancestry]; K.R., at p. 709 [“the court has a responsibility to
ascertain that the agency has conducted an adequate
investigation and cannot simply sign off on the notices as legally
adequate without doing so”].)
For these reasons, I would conditionally affirm the court’s
orders terminating mother’s and father’s parental rights and
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remand for full compliance with the inquiry provisions of ICWA
and related California law.
LAVIN, J.
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