In re D.W. CA4/1

Filed 10/28/20 In re D.W. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.W., et al., Persons Coming
Under the Juvenile Court Law.
D077097
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ004225A-C)
Plaintiff and Respondent,
v.
BRITTNEY W.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Affirmed.
Donna B. Kaiser, under appointment by the Court of Appeal, for
Defendant and Appellant Brittney W.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and
Respondent.
Brittney W. (Mother) appeals from a judgment of the juvenile court
terminating her parental rights to her three minor children (“the children” or
“the W. children”). Mother’s sole contention on appeal is that the juvenile
court failed to comply with the federal Indian Child Welfare Act (ICWA) (25
U.S.C. § 1901 et seq.). D.W., Sr., the W. children’s father (Father) is an
enrolled member of the Barona Band of Mission Indians (the Barona Band).
The San Diego County Health and Human Services Agency (the
Agency) notified the Barona Band of the proceedings, as required by ICWA,
and the Barona Band initially indicated the W. children were not eligible for
enrollment. The Barona Band later requested, and the juvenile court
ordered, that Father and the W. children undergo DNA testing to determine
the children’s eligibility for enrollment. Father did not cooperate, and the
DNA testing was not completed. Mother contends the juvenile court erred by
finding that ICWA did not apply despite the outstanding request for DNA
testing. We disagree and affirm the judgment of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were married from January 2012 through January
2016. All three of the W. children were born during the marriage. Father
was listed on the birth certificates for each of the children and the family
court made a paternity finding indicating that Father was the father of all
three children during the dissolution proceedings.
In May 2015, the superior court granted a restraining order against
Mother and awarded Father full custody of the W. children. Thereafter, the
children lived with Father and his girlfriend, R.W. R.W. had four other
children, two of whom also lived with Father and R.W. Father was the
alleged father of R.W.’s youngest child, E.W.
2
Initial Detention
On December 21, 2017, the San Diego Health and Human Services
Agency filed petitions on behalf of the W. children and E.W. alleging they
were at risk of harm due to Father’s and R.W.’s use of narcotics and
prescription pain medication.1 The Agency included a form indicating that
Father was an enrolled member of the Barona Band. In the associated
detention report, the Agency indicated that the W. children were attending a
school on the Barona reservation, and that Father had requested ICWA
representation.
The juvenile court found the Agency made a prima facie showing on
the petitions and detained the children. The W. children, along with their
half-sister E.W., were initially placed with a paternal aunt. A couple of
weeks later, the Agency sent ICWA notices to a number of tribes, including
the Barona Band. The notices included a copy of the juvenile court’s
December 21, 2017 detention orders and information regarding the upcoming
jurisdiction hearing.
An Agency social worker tried to contact Father several times in
January, but he did not answer his phone and the social worker was unable
to leave a voicemail message. The Agency also made two unannounced visits
to Father’s home, but he was not home either time. A tribal representative,
Valarie Littlejohn, indicated she was also unable to reach Father. The
paternal aunt indicated Father was attending supervised visits with the
children, and that the visits were going well.
1 Although removed at the same time, E.W. has a different mother and,
thus, the dependency case concerning E.W. was separate from the case
concerning the three W. children. We focus our discussion herein on the
three W. children and include references to E.W. only as relevant to the case
concerning the W. children.
3
On January 19, 2018, the paternal aunt indicated that she could no
longer care for the children. She said that Father and R.W. were “too
comfortable” and would not do what they needed to do if the children
remained in her care. E.W. was placed with a maternal relative and, in early
February, the W. children were placed in the home of a non-relative extended
family member (NREFM). The home was near the reservation, the NREFM
was willing to transport the W. children to the school they attended on the
reservation, and the tribe approved of the placement.
Contested Jurisdiction and Disposition Hearing
The juvenile court held a contested jurisdiction and disposition hearing
on April 23, 2018. In an addendum report submitted that day, the Agency
indicated Father did not return phone calls and his voicemail was not set up.
Father had some contact with the children’s caregiver but only through text
message and had cancelled his most recent visit with the children. The court
made true findings on the petitions, ordered that the children remain placed
with the NREFM, and ordered that the Agency provide reunification services
for Mother and Father.
Tribal representative Littlejohn was present at the hearing and
reported that the children were not eligible for enrollment in the Barona
tribe. The juvenile court found the Agency had properly noticed each of the
Native American Indian tribes that had been identified by Mother, Father or
the Agency; the statutory 60-day period had run; and the tribes that
responded, including the Barona Band, indicated the children were not
eligible for enrollment. The court therefore made a finding that ICWA did
not apply.
In a status review report submitted in preparation for the six-month
review hearing on October 22, 2018, the Agency indicated it had no further
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contact with Father over the previous six-month period, despite several
attempts to contact him via phone, letter, and his attorney. In an addendum
report submitted a few weeks later, the Agency indicated that a social worker
was able to reach Father by phone once, on October 19, but Father appeared
to be under the influence of a controlled substance and his speech was slurred
and incoherent to the point the social worker could not understand him. In
addition, Father had not had any visits or phone calls with the children, and
there was no evidence Father had been in contact with the Barona Band.
Father’s counsel also indicated she had not had any contact with Father.
The Agency noted it had consulted with Barona Band tribal
representatives regularly about the case. The Agency also continued to the
provide Barona Band with notices of upcoming juvenile court hearings
regarding the children. The Agency recommended the juvenile court
terminate reunification services for Father and order an additional six
months of services for Mother, and indicated the Barona Band agreed with
those recommendations. The juvenile court set the matter for trial.
Father participated in one supervised visit with the children in
November but cancelled the next two visits and did not have any further
contact with the children or their caregiver thereafter.
Barona Band Request for DNA Testing
On January 22, 2019, a tribal representative obtained a letter from the
Barona Band indicating Father was an enrolled member and, therefore “his
children are direct lineal descendants of our tribe.” The tribe then requested
copies of the paternity declaration, in order to further assess the children’s
eligibility for membership.
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At a hearing on January 23, the juvenile court inquired about the letter
and whether “we need either a blood test or declaration of parentage.”2
Father’s counsel indicated she had provided the social worker with a copy of
the divorce judgment, which adjudicated Father as the father of all three W.
children. The court ordered the Agency to provide an update as to ICWA at
the next hearing and, specifically, whether the children needed to be made
available for testing.
In February 2019, the Agency recommended termination of
reunification services for both Mother and Father. Mother had been involved
in an altercation while holding her infant child, and the Agency indicated
there was an open investigation for allegations of child abuse. Father
reported that his drug use had escalated from oxycodone to heroin, and that
he had also recently used fentanyl and methamphetamine. The Barona Band
agreed with the Agency’s recommendation to terminate reunification services
for both parents. Around the same time, the tribe indicated it would not
provide a letter indicating the children were eligible for membership.
On March 8, 2019, the Agency submitted a request for a special hearing
and asked that the juvenile court order the Father and the children to
undergo paternity testing, to determine tribal eligibility. In an associated
2 As noted, E.W. was also removed from Father’s care in December 2017.
Although the dependency case regarding E.W. was separate from that of the
W. children, the record indicates the same social worker handled both cases,
and the juvenile court at times held hearings concurrently and cross-
referenced information from the Agency’s reports in both cases. For example,
it appears the court’s inquiry regarding the need for a blood test was based on
information contained in an Agency report submitted in E.W.’s case.
Accordingly, we grant the Agency’s unopposed motion to augment the record
with the Agency reports submitted in E.W.’s case dated January 23, February
12, and April 5, 2019. (Cal. Rules of Court, rules 8.155, subds. (a)(1)(A) and
(a)(2); 8.340, subd. (c); 8.410, subd. (b)(1); 8.416, subd. (d).)
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addendum report, the Agency indicated the tribe was requesting the Agency
provide DNA evidence of Father’s paternity and the Agency wished to assist
the tribe in determining the children’s potential eligibility for enrollment.
The Agency tried to reach Father several times in March. Father’s
voicemail box was not set up, but a social worker sent a text message to
Father requesting that he call back. On March 15, a social worker visited
Father’s residence and left a business card informing Father there was a
court hearing the following Monday, March 18, and again on April 5, 2019.
The Barona Tribal Enforcement reported Father had been seen driving
recklessly on the reservation while under the influence; they had been called
to conduct welfare checks on Father’s residence; and there were various
people known to be associated with heroin use living at Father’s residence.
At a hearing on Monday, March 18, 2019, the juvenile court granted
the request and issued an order for genetic testing. Specifically, the court
ordered “[F]ather to submit to genetic testing [at a specified date and time]”
and the Agency “to make the child[ren] available for testing.”
The Agency attempted to contact Father at least five times to inform
him of the order and assist him in obtaining a DNA test but was not
successful. In April, the Agency reported that Father’s drug use continued
“to escalate to the point that the Tribe and Agency have requested welfare
checks be done to ensure that he is alive.” The Agency continued to
recommend that the juvenile court terminate reunification services for both
parents.
Termination of Reunification Services
In April 2019, the juvenile court terminated reunification services for
both Mother and Father. At the conclusion of the hearing, counsel for the
Agency noted this was “a case where ICWA does not apply but is a spirit-of-
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ICWA case”. Counsel indicated the Agency continued to work with the tribe,
the tribe had indicated in February that it would not provide a letter saying
the children were eligible for enrollment, and the Agency was making efforts
to get Father to take the DNA test but that they had been unsuccessful. In
the written orders, the court made an additional finding that ICWA did not
apply. In addition, the court noted a tribal representative was actively
involved in the case plan and the Agency “solicited and integrated into the
case plan” the input of the tribal representation.
Mother filed a section 388 petition shortly before the section 366.26
hearing. She requested return of the children with family maintenance
services, extended reunification services, and/or expanded visitation to
unsupervised or overnight visitation.
Termination of Parental Rights
On November 12, 2019, the juvenile court denied Mother’s section 388
petition and terminated Mother’s and Father’s parental rights. A tribal
representative was present at the hearing and indicated the children’s
caregiver was working with the tribe. In addition, the court noted the W.
children had contact with their sibling, E.W., at school and at tribal
functions. In its written orders, the court found, “Notice pursuant to the
Indian Child Welfare Act is not required because the court knows the child is
not an Indian child. Reasonable inquiry has been made to determine
whether the child is or may be an Indian child.”
Mother appeals.
DISCUSSION
Mother’s sole contention on appeal is that the juvenile court erred by
finding that ICWA did not apply absent the completion of the court-ordered
DNA testing. She asserts the order terminating her parental rights must
8
therefore be reversed and that the matter must be remanded to the juvenile
court with directions to order DNA testing of the children and Father or
paternal relatives.
I. Relevant Law 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 with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1,
7.) The federal statute defines “Indian child” as a child who “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” and establishes
minimum standards for the removal and placement of such children in foster
or adoptive homes reflecting the unique values of their Indian culture. (25
U.S.C. §§ 1901(3), 1902, 1903, subd. (4); In re A.W. (2019) 38 Cal.App.5th 655,
662 (A.W.).)
The juvenile court and the Agency have an affirmative and continuing
duty in every dependency proceeding to determine whether ICWA applies.
(In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th
1160, 1165; Cal. Rules of Court, rule 5.481(a); Welf. & Inst. Code, § 224.2,
subd. (a).) In cases “where the court knows or has reason to know that an
Indian child is involved,” ICWA requires the Agency, or other party seeking
adoption or foster care placement, to notify “the Indian child’s tribe, by
registered mail with return receipt requested, of the pending proceedings and
of their right of intervention.” (25 U.S.C. § 1912; In re Isaiah W., supra, 1
Cal.5th at p. 5.) This is often referred to as the ICWA notice provision.
California adopted the main provisions of ICWA into California
statutory law in 2006. (In re Autumn K. (2013) 221 Cal.App.4th 674, 703-
704.) Following the enactment of new federal regulations concerning ICWA
9
in 2016, California amended its own statutes, including portions of the
Welfare and Institutions Code3 related to notice and inquiry. (25 C.F.R.
§ 23.107(c); 81 Fed. Reg. 38803 (June 14, 2016) [“The final rule . . . provide[s]
specific guidance regarding what constitutes ‘reason to know’ that a child is
an Indian child”]; In re Breanna S. (2017) 8 Cal.App.5th 636, 650, fn. 7.; A.W.,
supra, 38 Cal.App.5th at p. 662, fn. 3; Assem. Bill No. 3176 (2017-2018 Reg.
Sess.).) Those changes became effective January 1, 2019. (A.W., at p. 662,
fn. 3.)
As relevant here, section 224.2 now provides additional guidance
regarding the juvenile court and Agency’s obligations to provide inquiry and
notice pursuant to ICWA. (§ 224.2, subds. (d)-(f).) Section 224.2 specifies
that once a child is placed into the temporary custody of a county welfare
department, such as the Agency, the duty to 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.” (§ 224.2, subd. (b).) Further, if the court or social worker “has
reason to believe that an Indian child is involved in a [dependency]
proceeding,” section 224.2 requires additional inquiry, which includes but is
not limited to “[i]nterviewing the parents, Indian custodian, and extended
family members to gather the information required [by the notice provisions
set forth in section 224.3, subdivision (a)(5)].” (§ 224.2, subd. (e) [emphasis
added].) If that further inquiry indicates there is reason to know the child is
an Indian child, section 224.2 requires the Agency to provide notice to the
tribes in accordance with section 224.3, subdivision (a)(5). (§ 224.2, subd. (f).)
3 All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
10
Section 224.2 defines “reason to know” using the same six-part
definition as set forth in the federal regulations adopted in 2016. (Compare
§ 224.2, subd. (d) with 25 C.F.R. § 23.107(c).) Among other factors, there is
reason to know that a child is an Indian child if the child’s parent lives on an
Indian reservation. (§ 224.2, subd. (d)(2).)
“If there is reason to know the child is an Indian child, but the court
does not have sufficient evidence to determine that the child is or is not an
Indian child, the court shall confirm . . . that the [A]gency or other party 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).) If
the court finds that the Agency has conducted “proper and adequate further
inquiry and due diligence” and there is no “reason to know” the child is an
Indian child, the juvenile court may find that ICWA does not apply. (§ 224.2,
subd. (i)(2).) However, 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 pursuant to section 224.3.” (Ibid.)
On appeal, we review the juvenile court’s ICWA findings for substantial
evidence. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) Where the
facts are undisputed, we independently determine whether the requirements
of ICWA have been satisfied. (In re J.L. (2017) 10 Cal.App.5th 913, 918
(J.L.).)
II. Analysis
Father is an enrolled member of the Barona Band. Accordingly, as
Father’s children, the W. children would be Indian children under the federal
11
ICWA statute if they were eligible for enrollment in the tribe and, thus, the
juvenile court had reason to know the children were Indian children at the
outset of the dependency case. (See 25 U.S.C. § 1903, subd. (4); A.W., supra,
38 Cal.App.5th at p. 662; see also § 224.2, subd. (d)(2).) Based on this
knowledge, the Agency provided notice to the Barona Band as required by
ICWA and the tribe initially indicated the children were not eligible for
enrollment. Accordingly, in April 2018, the juvenile court appropriately
determined that ICWA did not apply. Mother does not dispute that initial
finding.
However, approximately nine months later, the Barona Band indicated
that Father was an enrolled member and, therefore, any children of Father’s
were lineal descendants of the tribe. The tribe requested DNA evidence of
Father’s paternity and the juvenile court ordered that Father and the W.
children undergo DNA testing. Despite several attempts, the Agency was
unable to reach Father and the DNA testing was not completed. Because the
Barona Band declined to provide a letter stating the children were eligible for
enrollment, the juvenile court once again found, on April 5, 2019, that ICWA
did not apply.
Mother contends the juvenile court erred in making the second finding
that ICWA did not apply because there was not substantial evidence the
Agency used due diligence to verify whether the children were eligible for
membership in the tribe, as required by section 224.2, subdivision (g). We
disagree.
The record indicates the Agency had been trying to reach Father about
the case, in general, for months, and that the Agency continued to do so after
the juvenile court ordered the DNA testing. The agency called Father, sent
him text messages, sent him letters, made unannounced visits to his home,
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and consulted with his attorney and the tribe. However, by April 2019,
Father’s drug use had escalated “to the point that the Tribe and Agency [had]
requested welfare checks be done to ensure that he [was] alive,” and Father
did not respond to any of the Agency’s attempts to reach him. Moreover, the
only reason the juvenile court ordered the DNA testing in the first instance
was because the Agency requested it, in attempt to assist the tribe in
determining the children’s potential eligibility for enrollment. Accordingly,
there is substantial evidence the Agency used due diligence to work with the
Barona Band to verify whether the children were eligible for membership.4
(See 224.2, subd. (g); In re D.S. (2020) 46 Cal.App.5th 1041, 1054 [Agency
exercised due diligence by attempting to reach tribes several times despite
lack of response].)
Mother argues the Agency’s efforts to reach Father were not sufficient
because the Agency did not specifically indicate to Father that it was
attempting to reach him concerning DNA testing or the children’s eligibility
for enrollment in the tribe, but there is no reason to believe Father would
have been more cooperative if the Agency had done so. Father did not return
any of the Agency’s phone calls or text messages and was incoherent the one
time the Agency was able to reach him, in October 2018. By April 2019,
Father was using drugs so heavily that the Tribe and Agency had requested
welfare checks to ensure that he was alive, and when an adoption social
worker did get ahold of Father in May, he claimed he did not know what she
4 Mother argues the juvenile court did not make an affirmative finding
on the record that the Agency used due diligence as required by section 224.2,
subdivision (g) but, in its written orders, the court found reasonable inquiry
had been made. To the extent Mother believes that finding is not sufficient,
the requisite finding may be inferred from that and the juvenile court’s
subsequent finding that ICWA did not apply. (See In re Kristin W. (1990) 222
Cal.App.3d 234, 253.)
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was talking about and hung up the phone. Thus, the record indicates Father
was not interested in participating in any aspect of the dependency
proceedings. Further, there was no evidence Father was concerned about the
children’s eligibility for enrollment or that he would have responded if the
Agency had told him that was the reason for their calls.
Mother asserts that the Agency should have obtained DNA from
Father’s relatives in the absence of obtaining DNA from Father himself.
Relying on section 224.2, subdivision (e),5 Mother asserts the juvenile court
and Agency had a duty to make further inquiry of Father’s relatives
regarding the children’s eligibility. Section 224.2, subdivision (e)(2) indicates
that the “further inquiry” required includes interviewing additional family
members. (Ibid.) Although it is not exhaustive, section 224.2, subdivision
(e)(2) does not include DNA testing, or anything nearly as invasive, in the
types of further inquiry identified. (Ibid.) Mother provides no additional
authority to support her assertion that the juvenile court or Agency had a
duty to obtain DNA testing from Father’s relatives, and we decline to
conclude that section 224.2, subdivision (e) requires such testing. Moreover,
there is no evidence in the record the Barona Band requested or would have
accepted results based on DNA testing relatives, as opposed to Father
himself.
Mother asserts the record does not indicate what entity or person
within the Barona Band had the authority to decide whether the children
5 Mother refers to section 224.2, subdivision (e)(3) in her briefing.
Section 224.2, subdivision (e) was amended and renumbered in September
2020 and the current version does not include a subdivision (e)(3). (See
§ 224.2, amended by Stats.2019, c. 434 (A.B.686), § 2, eff. Jan. 1, 2020;
Stats.2020, c. 104 (A.B.2944), § 15, eff. Sept. 18, 2020.) We refer to the
current statute but note that the portions of the statute concerning the types
of inquiry required were not changed in any material way.
14
were eligible for membership and, therefore, the statements of the tribal
representatives were not sufficient. To the contrary, the record indicates that
the Southern Indian Health Council, and specifically tribal social worker
Littlejohn, was appropriately identified as a tribal representative.
Regardless, there is no indication the juvenile court relied solely on the
statements of the tribal representatives. As noted, the Agency provided
notice to the Barona Band, as required by the statute, and the Barona Band
never provided any determinative statement indicating the children were
eligible for enrollment. Moreover, the record suggests that it was the same
representatives that requested the DNA testing in the first instance. Thus,
to the extent their statements were not relevant to the court’s ICWA finding,
the same is true of that request.
Finally, even if we were to find that the juvenile court did not comply
with ICWA or the California statutes implementing ICWA, which we do not,
we would conclude that any such error was harmless. (See, In re E.W. (2009)
170 Cal.App.4th 396, 402-403.) The Agency treated the case as a “spirit-of-
ICWA” case and continued to work with the tribe throughout the case. The
tribe actively participated in the case plan and was in agreement with the
Agency’s recommendations and the placement of the W. children. In
addition, the Agency provided notice of the court hearings, including the
section 366.26 hearing to the Southern Indian Health Council, a tribal
representative attended the section 366.26 hearing, and the juvenile court
gave the tribal representative an opportunity to be heard.
Mother’s arguments to the contrary assume that the children were
eligible for enrollment. However, as discussed, the Barona Band was aware
that Father had been adjudicated the biological father of the W. children and
the Agency exercised due diligence to obtain DNA testing to further confirm
15
Father’s paternity, but Father refused to cooperate. Thus, the Barona Band
had all the information available to the Agency and declined to find the
children eligible for enrollment. (cf. In re Jack C. (2011) 192 Cal.App.4th 967,
981 [tribe indicated children would be enrolled once the tribe received a copy
of the father’s birth certificate].) There is no indication that the outcome
would have been different if the Agency or juvenile court had acted
differently with respect to ICWA.
For the foregoing reasons, we conclude substantial evidence supports
the juvenile court’s finding that ICWA did not apply, and that any error in
failing to comply with the ICWA statutes was harmless.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O’ROURKE, J.
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