In re D.S.

Filed 3/18/20; Certified for publication 3/24/20 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.S., a Person Coming Under the
Juvenile Court Law.
D076517
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ4426)
Plaintiff and Respondent,
v.
M.J.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Gary M.
Bubis, Judge. Affirmed.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
M.J. (Mother) appeals the order entered following the jurisdiction and disposition
hearing in the juvenile dependency case of her minor child, D.S. Mother contends the
court erred by not complying with the inquiry provisions of the Indian Child Welfare Act
(25 U.S.C. § 1901 et seq.) (ICWA). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
"In accord with the usual rules on appeal, we state the facts in the manner most
favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal. App. 4th
1444, 1448, fn. 1.) In light of the limited scope of this appeal, we provide an abbreviated
summary of the dependency proceedings.
In July 2019, the San Diego County Health and Human Services Agency (Agency)
petitioned the juvenile court under Welfare and Institutions Code section 300,
subdivision (f),1 on behalf of 12-year-old D.S. D.S. was living with his paternal aunt
(Aunt), later determined to be his presumed mother. The Agency alleged that D.S.'s
father was deceased, Mother had previously caused the death of another minor, and Aunt
was no longer able to care for D.S. As discussed in the detention report, Mother's
parental rights were terminated after she was charged and convicted of killing D.S.'s
brother. D.S. had been placed in the care of his father, who subsequently died suddenly
in March 2018. Aunt assumed care for D.S., but reported to the Agency that she could
not currently care for D.S. due to her own health issues.
1 Further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2
At the detention hearing, the court found the Agency had made a prima facie
showing under section 300 and ordered that D.S. be detained in out-of-home care.
Mother denied any Indian ancestry. Based on representations by Aunt that D.S.'s father
may have Indian heritage, however, the court found that ICWA may apply and ordered
the Agency to investigate the allegation.2
In a report prepared for the jurisdiction and disposition hearing, the Agency stated
it had "reason to know" ICWA did not apply. The Agency detailed the inquiry used to
reach this conclusion, explaining that Aunt contacted her grandmother—D.S.'s great-
grandmother—to inquire about her Indian heritage. The great-grandmother stated that
her great-grandmother—D.S.'s great-great-great-great-grandmother—was "affiliated with
the Sioux and Blackfeet tribes." The Agency's report summarizes the additional
information received from Aunt as follows: "[Aunt] denied that she or [her grandmother]
have ever lived on an Indian reservation, have a tribal enrollment number or
identification card indicating membership/citizenship in an Indian tribe. [Aunt] denied
she has any reason to believe [D.S.] is an Indian child. She also denied that she or [her
grandmother] had further information."
In an addendum report, the Agency indicated it was conducting a further inquiry
based on the information it had previously gathered from Aunt (summarized ante). The
2 Aunt completed a parental notification of Indian status form stating she may have
Indian ancestry with the "Blackfoot" tribe in Delaware.
3
Agency stated it was "contacting the identified tribes" to determine whether D.S. was a
member, and that it would provide the results of its inquiry to the court in a future report.
In a second addendum report, the Agency explained that its ICWA specialist
contacted, or attempted to contact, multiple Sioux and Blackfeet tribes. One tribe
responded that D.S. was not a member; two tribes agreed to check their records regarding
the child's tribal eligibility;3 one tribe stated that "formal ICWA notice would be needed
to determine whether the child is a member or eligible for enrollment"; and the Agency
made multiple attempts to communicate with eight other tribes.4
At the jurisdictional hearing, the Agency asked the court to find the Agency "made
an adequate inquiry and find there is no reason to know that this is an Indian child," and,
therefore, that ICWA does not apply. The court agreed, finding "that the Agency so far
has used reasonable inquiry, and there is no reason to believe or know that [ICWA]
applies at this time. The information is so attenuated that it's really difficult to track it
down, and I believe the Agency has made more than a reasonable effort to try and do so."
In its minute order, the court found "the Agency has completed further inquiry as to
[ICWA]. The [c]ourt finds that there is no reason to believe or know that [ICWA]
applies."
3 As of the date of the Agency's report, these two tribes had not responded to the
Agency's inquiries.
4 Two of these eight tribes did not answer telephone calls and their voicemail boxes
were full, and six of them did not return voicemail messages left by the Agency. The
Agency attempted to contact each of the eight tribes at least two times.
4
The juvenile court sustained the allegations of the petition under section 300,
subdivision (f). The court placed D.S. in his foster home and gave the Agency discretion
to allow unsupervised and overnight visits with Aunt. The court ordered reunification
services for Aunt but denied reunification services for Mother.
Mother appealed.
DISCUSSION
Mother argues that the juvenile court and the Agency failed to satisfy their inquiry
obligations under ICWA, and asks that we remand the matter with directions for the
Agency to perform further inquiry in compliance with section 224.2, subdivision (e).
I.
ICWA Requirements and Standard of Review
Congress enacted ICWA in 1978 to address concerns regarding the separation of
Indian children from their tribes through adoption or foster care placement, usually in
non-Indian homes. (In re Isaiah W. (2016) 1 Cal. 5th 1, 7 (Isaiah W.).) ICWA
established minimum standards for state courts to follow before removing Indian children
from their families and placing them in foster care or adoptive homes. (25 U.S.C.
§ 1921; 25 C.F.R. § 23.106; see In re Elizabeth M. (2018) 19 Cal. App. 5th 768, 783.) In
2006, California adopted various procedural and substantive provisions of ICWA. (In re
Autumn K. (2013) 221 Cal. App. 4th 674, 703-704.) In 2016, new federal regulations were
adopted concerning ICWA compliance. (81 Fed.Reg. 38864 (June 14, 2016), revising
25 C.F.R. Part 23.) Following the enactment of the federal regulations, California made
conforming amendments to its statutes, including portions of the Welfare and Institutions
5
Code related to ICWA notice and inquiry requirements. (Assem. Bill No. 3176 (2017-
2018 Reg. Sess.); In re A.W. (2019) 38 Cal. App. 5th 655, 662, fn. 3 (A.W.).) Those
changes became effective January 1, 2019 (A.W., at p. 662, fn. 3.), and govern here.5
The new statute specifies the steps the Agency and the juvenile court are required
to take in determining a child's possible status as an Indian child. An "Indian child" is
defined in the same manner as under federal law, i.e., as "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); accord Welf. & Inst. Code, § 224.1, subd. (a) [adopting
the federal definition].) The Agency and the juvenile court have "an affirmative and
continuing duty" in every dependency proceeding to determine whether ICWA applies.
(Welf. & Inst. Code, § 224.2, subd. (a) ["The duty to inquire [whether a child is or may
be an Indian child] begins with the initial contact, including, but not limited to, asking the
party reporting child abuse or neglect whether he or she has any information that the
child may be an Indian child."]; Cal. Rules of Court, rule 5.481(a); see Isaiah W., supra,
1 Cal.5th at p. 14 ["juvenile court has an affirmative and continuing duty in all
dependency proceedings to inquire into a child's Indian status"].)
Section 224.2, subdivision (b) specifies that once a child is placed into the
temporary custody of a county welfare department, such as the Agency, the duty to
5 The parties do not dispute that the new statutory framework applies in this case, in
which the hearings all occurred after January 1, 2019. Unless otherwise specified,
statutory references are to the code sections as currently numbered.
6
inquire "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."
When the Agency has "reason to believe" that an Indian child is involved, further inquiry
regarding the possible Indian status of the child is required. (§ 224.2, subd. (e).) The
required further inquiry includes (1) interviewing the parents and extended family
members;6 (2) contacting the Bureau of Indian Affairs and State Department of Social
Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that
might have information regarding the child's membership or eligibility in a tribe.7 At this
stage, contact with a tribe "shall, at a minimum," include telephone, facsimile, or
6 Unless otherwise defined by the law or custom of the Indian child's tribe, the term
"extended family members" shall mean "a person who has reached the age of eighteen
and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law
or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C.
§ 1903(2); accord § 224.1, subd. (c) [adopting ICWA definition of extended family
member].)
7 Specifically, section 224.2, subdivision (e) provides in relevant part: "Further
inquiry includes, but is not limited to, all of the following: [¶] (1) Interviewing the
parents, Indian custodian, and extended family members to gather the information
required in paragraph (5) of subdivision (a) of Section 224.3 [ICWA's notice provisions].
[¶] (2) Contacting the Bureau of Indian Affairs and the State Department of Social
Services for assistance in identifying the names and contact information of the tribes in
which the child may be a member, or eligible for membership in, and contacting the
tribes and any other person that may reasonably be expected to have information
regarding the child's membership status or eligibility. [¶] (3) Contacting 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." California Rules of
Court, rule 5.481(a)(4) sets forth these same requirements.
7
electronic mail contact to each tribe's designated agent for receipt of ICWA notice, and
"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)(3).)
The sharing of information with tribes at this inquiry stage is distinct from formal
ICWA notice, which requires a "reason to know"—rather than a "reason to believe"—that
the child is an Indian child.8 Unlike the term "reason to believe," which is not defined by
statute, a "reason to know" exists under any of the following circumstances: "(1) A
person having an interest in the child, including the child, an officer of the court, a tribe,
an Indian organization, a public or private agency, or a member of the child's extended
family informs the court that the child is an Indian child; [¶] (2) The residence or
domicile of the child, the child's parents, or Indian custodian is on a reservation or in an
Alaska Native village; [¶] (3) Any participant in the proceeding, officer of the court,
Indian tribe, Indian organization, or agency informs the court that it has discovered
information indicating that the child is an Indian child; [¶] (4) The child who is the
subject of the proceeding gives the court reason to know he or she is an Indian child;
[¶] (5) The court is informed that the child is or has been a ward of a tribal court; and
8 See section 224.3, subdivision (a) ["If the court, a social worker, or probation
officers knows or has reason to know, as described in subdivision (d) of Section 224.2,
that an Indian child is involved, notice pursuant to Section 1912 of [ICWA] shall be
provided for hearings that may culminate in an order for foster care placement,
termination of parental rights, preadoptive placement, or adoptive placement, as
described in paragraph (1) of subdivision (d) of Section 224.1."].
8
[¶] (6) The court is informed that either parent or the child possess an identification card
indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d).)
If the inquiry establishes a reason to know an Indian child is involved, notice
must be provided to the pertinent tribes. (§ 224.3, subds. (a), (b).) The notice must
include enough information for the tribe to "conduct a meaningful review of its records
to determine the child's eligibility for membership" (In re Cheyanne F. (2008)
164 Cal. App. 4th 571, 576), including the identifying information for the child's
biological parents, grandparents, and great-grandparents, to the extent known (In re
Francisco W. (2006) 139 Cal. App. 4th 695, 703; § 224.3, subd. (a)(5)(C)).
The juvenile court may alternatively make a finding that ICWA does not apply
because the Agency's further inquiry and due diligence was "proper and adequate" but no
"reason to know" whether the child is an Indian child was discovered. (§ 224.2,
subds. (i)(2), (g).) Even if the court makes this finding, the Agency and the court have a
continuing duty under ICWA, and the court "shall reverse its determination if it
subsequently receives information providing reason to believe that the child is an Indian
child and order the social worker or probation officer to conduct further inquiry." (Id.,
subd. (i)(2).)
Previously, before the 2019 amendments discussed ante, the same distinction
existed between the inquiry and notice requirements of ICWA. Former section 224.3
"outline[d] the scope of a trial court's and a county welfare department's duty of
inquiry under ICWA" (In re J.L. (2017) 10 Cal. App. 5th 913, 919 (J.L.)), and former
section 224.2 "outline[d] specific notice requirements that apply '[i]f the court, a social
9
worker, or probation officer knows or has reason to know that an Indian child is
involved.' " (Id. at p. 920.)9 However, the prior statute did not include the language
"reason to believe"—now found in section 224.2, subdivision (e)—and instead specified
that ICWA's inquiry and notice obligations were triggered when the juvenile court or the
Agency "knows or has reason to know that an Indian child is involved." (Id. at pp. 919-
920 [quoting former § 224.3, subd. (c) (further inquiry requirement) and § 224.2 (notice
requirement)].)
On appeal, we review the juvenile court's ICWA findings for substantial evidence.
(In re Hunter W. (2011) 200 Cal. App. 4th 1454, 1467 (Hunter W.); see § 224.2,
subd. (i)(2) [ICWA findings "subject to reversal based on sufficiency of the evidence"].)
But where the facts are undisputed, we independently determine whether ICWA's
requirements have been satisfied. (J.L., supra, 10 Cal.App.5th at p. 918.)10
9 Former section 224.3, subdivision (b) "outline[d] the circumstances 'that may
provide reason to know the child is an Indian child," including "information suggesting
the child is a member of a tribe or eligible for membership in a tribe or one or more of the
child's biological parents, grandparents, or great-grandparents are or were a member of a
tribe." (Id. at p. 919 [quoting former § 224.3, subd. (b)].) Former section 224.3,
subdivision (c) "specifie[d] that '[i]f the court, social worker, or probation officer knows
or has reason to know that an Indian child is involved,' the social worker must make
'further inquiry' concerning the possible American Indian status of the child." (Ibid.
[quoting former § 224.3, subd. (c)]; see id. at pp. 919-920 [duty of further inquiry
included "interviewing the parents, Indian custodian, and extended family members to
gather the information required" to complete ICWA notices].)
10 Mother contends that the de novo standard of review applies because the
underlying facts are undisputed. (See Dwayne P. v. Superior Court (2002)
103 Cal. App. 4th 247, 254.) Our conclusion in this case would be the same under either
standard of review.
10
II.
ICWA Compliance
In her opening brief, Mother initially focused on challenging the Agency's
compliance with the notice, rather than the inquiry, requirements of ICWA, contending
the Agency "flouted . . . the notification requirements" and "[n]o formal ICWA notice
ever issued." After the Agency responded that notice was not required under the new
statutory framework discussed ante, Mother argued that the Agency's inquiry into D.S.'s
possible Indian heritage was inadequate under the new statutory framework. Despite the
principle that " '[p]oints raised for the first time in a reply brief will ordinarily not be
considered' " (Jameson v. Desta (2009) 179 Cal. App. 4th 672, 674, fn. 1 (Jameson)), we
exercise our discretion to consider the merits of Mother's claim of inadequate compliance
with the inquiry requirements of ICWA.11
As detailed ante, section 224.2 creates three distinct duties regarding ICWA in
dependency proceedings. First, from the Agency's initial contact with a minor and his
11 An appellate court may properly exercise its discretion to consider a contention
raised in a reply brief when the respondent fully briefed the issue in the respondent's brief
and, therefore, is not deprived of an opportunity to address the issue. (Jameson, supra,
179 Cal.App.4th at p. 674, fn. 1.) Here, the Agency fully briefed the issue of ICWA
compliance under the amended statutory framework in its respondent's brief. Moreover,
because Indian tribes have an interest in ascertaining whether a child in a dependency
action is an Indian child, we address the merits of the ICWA claim despite any defects in
a parent's brief. (See, e.g., In re Jonathon S. (2005) 129 Cal. App. 4th 334, 340 [declining
to find a waiver when mother omitted an argument in her opening brief "given concerns
that have been expressed about allowing a parent to waive a tribe's right to ICWA
notice"]; In re Suzanna L. (2002) 104 Cal. App. 4th 223, 231-232 [notice requirements
serve the interests of the Indian tribes and violations cannot be waived by a parent's
failure to raise them].)
11
family, the statute imposes a duty of inquiry to ask all involved persons whether the child
may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a
"reason to believe" the child is an Indian child, then the Agency "shall make further
inquiry regarding the possible Indian status of the child, and shall make that inquiry as
soon as practicable." (Id., subd. (e), italics added.) Third, if that further inquiry results in
a reason to know the child is an Indian child, then the formal notice requirements of
section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first
appearance whether anyone "knows or has reason to know that the child is an Indian
child"], id., subd. (d) [defining circumstances that establish a "reason to know" a child is
an Indian child]; § 224.3 [ICWA notice is required if there is a "reason to know" a child
is an Indian child as defined under § 224.2, subd. (d)].)
Here, both parties agree that Aunt's statements regarding possible tribal affiliation
were sufficient to establish a reason to believe D.S. is an Indian child and triggered a duty
to conduct a further inquiry. Thus, the sole contested issue is the adequacy of the
Agency's further inquiry.12 We conclude that substantial evidence supports the juvenile
court's finding that the Agency complied with its obligations pursuant to section 224.2,
subdivision (e).
12 The Agency argues that the standard for determining whether there is a "reason to
know" a child is an Indian child—triggering the notice requirement—has changed under
the amended statute, and that notice is no longer required upon a mere suggestion that the
child is a member of a tribe. We need not address this argument because we resolve this
case based on the inquiry requirements of ICWA and California law, and it is undisputed
that the information provided by Aunt triggered the Agency's further inquiry obligations.
12
When the Agency has a reason to believe a child is an Indian child, as in this case,
it must satisfy three requirements. First, the Agency must interview the parents, Indian
custodian, and extended family members to gather relevant information, specified by
statute, regarding the details of the child's birth, family members, and possible tribal
affiliations. (§ 224.2, subd. (e)(1); see also § 224.3, subd. (a)(5).) Second, the Agency
must contact "the Bureau of Indian Affairs and the State Department of Social Services
for assistance in identifying the names and contact information of the tribes in which the
child may be a member, or eligible for membership in, and contacting the tribes and any
other person that may reasonably be expected to have information regarding the child's
membership status or eligibility." (§ 224.2, subd. (e)(2).) Third, the Agency must
contact "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." (Id.,
subd. (e)(3).) The Agency's contact with the tribe "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."
(Ibid.)
The record adequately supports the juvenile court's finding that the Agency
complied with these requirements. As part of its duty to inquire about a child's Indian
ancestry pursuant to subdivision (e)(1), the Agency must interview extended family
members. Under both ICWA and California law, "extended family members" includes
the child's "grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law,
niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2); Welf. &
13
Inst. Code, § 224.1, subd. (c).) It does not include great-grandparents. The Agency
therefore complied with this obligation by interviewing Aunt, the person who qualified as
an "extended family member" within the meaning of ICWA.
The Agency has a further obligation under Welfare & Institutions Code
section 224.2, subdivision (e)(3), to contact "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." (Welf. & Inst. Code § 224.2, subd. (e)(3), italics added;
see In re K.R. (2018) 20 Cal. App. 5th 701, 709 (K.R.) ["a social services agency has the
obligation to make a meaningful effort to locate and interview extended family members
to obtain whatever information they may have as to the child's possible Indian status"].)
Although D.S.'s great-grandmother may fall within this category, the Agency reasonably
could conclude (based on its further communications with Aunt) that no further inquiry
was needed because there was no further information of value to obtain from this third
party. The Agency is not required to "cast about" for information or pursue unproductive
investigative leads. (In re Levi U. (2000) 78 Cal. App. 4th 191, 199.) Based on this
record—including Aunt's representations, after having spoken with her grandmother, that
she had no "reason to believe [D.S.] is an Indian child," and had no "further information"
to give the Agency—there was substantial evidence supporting the court's conclusion that
the Agency complied with its further inquiry obligations.
Also pursuant to section 224.2, subdivision (e)(3), the Agency was required to
contact the pertinent tribes and, in doing so, was required to "shar[e] information
identified by the tribe as necessary for the tribe to make a membership or eligibility
14
determination, as well as information on the current status of the child and the case."
(§ 224.2, subd. (e)(3).) The juvenile court did not err in finding that the Agency
complied with these obligations. Although the Agency could have documented some of
its efforts in more detail, it provided sufficient information to support the court's findings.
The Agency explained its numerous attempts to contact twelve tribes based on the limited
information provided by Aunt. The Agency obtained one response stating the child was
not a member, and two tribes failed to notify the Agency of the child's membership status
after agreeing to check their records. For eight of the remaining tribes, the Agency made
repeated attempts to contact them, but it was ultimately unsuccessful because the tribes
did not respond to the Agency's requests (or in two cases their voicemail boxes were
full). One tribe informed the Agency that it would require a formal ICWA notice, but
formal ICWA notice was not yet triggered under section 224.3, and there is no reason to
conclude there was any further information to provide regarding the child's "membership
or eligibility determination." (§ 224.2, subd. (e)(3).) As the juvenile court concluded, the
Agency followed the proper procedures in conducting its further inquiry, but the limited
information provided by Aunt was too attenuated for the Agency to do anything further.
In sum, the juvenile court's finding that the Agency completed its further inquiry is
supported by the evidence. Similarly, there is substantial evidence supporting the
juvenile court's conclusion that "there is no reason to believe or know that [ICWA]
applies." Before finding ICWA inapplicable, the court must find that the Agency
conducted a "proper and adequate further inquiry" and exercised "due diligence to
identify and work with" all of the pertinent tribes. (§ 224.2, subds. (i)(2), (g).) For
15
reasons we have discussed ante, the court made an appropriate finding based on this
record and the circumstances before it.
DISPOSITION
The juvenile court's order is affirmed.
GUERRERO, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
16
Filed 3/24/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.S., a Person Coming Under the
Juvenile Court Law.
D076517
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ4426)
Plaintiff and Respondent,
ORDER CERTIFYING OPINION
v. FOR PUBLICATION
M.J.,
Defendant and Appellant.
THE COURT:
The opinion in this case filed on March 18, 2020, was not certified for publication.
It appearing the opinion meets the standards for publication specified in California Rules
of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is
GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page one of said opinion be deleted and the opinion herein be published in the Official
Reports.
McCONNELL, P. J.
Copies to: All parties
2