In re T.J. CA2/8

Filed 3/21/23 In re T.J. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
In re T.J., a Person Coming B322929
Under the Juvenile Court Law.
_______________________________ Los Angeles County
Super. Ct. No. CK38360F
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.J.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robin Kesler, Juvenile Court Referee.
Conditionally affirmed.
Sarah Vaona, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
Mother A.J. appeals the juvenile court’s order terminating
parental rights to her child T.J. She does not challenge the
merits of the juvenile court’s decision to terminate her rights.
Mother’s contention is that the Los Angeles County Department
of Children and Family Services (DCFS) did not comply with its
further duty of inquiry under Welfare and Institutions Code 1
section 224.2, subdivision (b), in that DCFS failed to contact the
Cherokee tribe to ascertain whether the child had Indian
ancestry within the meaning of section 1903 of the federal Indian
Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
We find DCFS erred in failing to contact the tribe after
Mother indicated she believed she had Cherokee ancestry. (No
fathers or paternal relatives are involved in this case as the
identity of the father remains unknown.)
BACKGROUND
On December 20, 2016, DCFS filed a section 300 petition
alleging Mother had shoplifted in the presence of her children
and engaged in a police pursuit with the children in the vehicle.
It further alleged mother’s history of substance abuse and prior
child welfare history. The petition named T.J. and a sibling, but
only T.J. is the subject of this appeal.
After several years of hearings and different proposed
permanent plans, on August 9, 2022, the court found no exception
to adoption applied, terminated Mother’s parental rights, and
ordered adoption by T.J.’s maternal cousin as her permanent
plan.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
As for Indian ancestry, in its detention report of December
2016, DCFS indicated mother claimed possible Blackfoot or
Cherokee ancestry. DCFS wrote that Mother “stated that her
maternal side of the family has Blackfoot/Cherokee in their line.
Past court reports have not indicated that the children qualify for
ICWA.” On December 20, 2016, Mother, a maternal aunt, and
the maternal grandmother all indicated no known Indian
ancestry. That same date the juvenile court found there was no
reason to known T.J. was an Indian child.
On March 10, 2022, the court ordered DCFS to interview
all known relatives about Indian ancestry and to include
interview summaries in its next report. In its report filed April 1,
2022, DCFS indicated both the maternal cousin and maternal
grandmother denied Indian ancestry. However, in a report filed
April 12, 2022, DCFS again reported Mother believed she may
have Blackfeet and Cherokee ancestry and could not provide any
additional information.
The court ordered DCFS to further investigate and to
provide notice to the tribes and the Bureau of Indian Affairs.
DCFS sent notice to the Blackfeet Tribe in Montana only. On
June 9, 2022, the tribe responded that T.J. was not eligible for
enrollment. The Bureau of Indian Affairs responded as well,
stating that only a tribe could determine tribal affiliation. On
August 9, 2022, the juvenile court found ICWA did not apply.
DISCUSSION
I. Standard of Review
The juvenile court’s determination that ICWA does not
apply is reviewed for substantial evidence. (In re A.M. (2020)
47 Cal.App.5th 303, 314.) On review any evidence “ ‘which is
reasonable, credible, and of solid value to support the conclusion
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of the trier of fact’ ” will support the challenged findings. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393, abrogated on
other grounds by In re R.T. (2017) 3 Cal.5th 622, 628–629.) The
ultimate test is whether it is reasonable for a trier of fact to make
the ruling in question in light of the whole record. (Id. at
p. 1394.)
II. Applicable Law
In enacting ICWA, Congress found “that an alarmingly
high percentage of Indian families are broken up by the removal,
often unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high
percentage of such children are placed in non-Indian foster and
adoptive homes and institutions.” (25 U.S.C. § 1901(4).) ICWA
reflects the intent of Congress “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, and
by providing for assistance to Indian tribes in the operation of
child and family service programs.” (25 U.S.C. § 1902.) The
court is obligated to ask each “participant” in the proceedings
whether they have reason to believe the child is an Indian child
and to instruct the parties to inform the court if they
subsequently receive information that provides a reason to know
the child is an Indian child. (In re Austin J. (2020)
47 Cal.App.5th 870, 882–883, superseded by statute on other
grounds as stated in In re E.C. (2022) 85 Cal.App.5th 123, 147;
see 25 C.F.R. § 23.107(a) (2022).)
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ICWA authorizes states to provide even more protection
than the federal statute provides. In 2006, the California
legislature enacted parallel statutes to affirm ICWA’s purposes
and mandate compliance with ICWA in all Indian child custody
proceedings. (In re K.R. (2018) 20 Cal.App.5th 701, 706, fn. 3.)
In California, the child protection agency is obligated to ask “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 child protection
agency, in this case DCFS, must complete the Indian Child
Inquiry Attachment form ICWA-010(A) and attach it to the
petition. (Cal. Rules of Court, rule 5.481(a)(1).)
There are three distinct duties with regard to ICWA
compliance: initial inquiry, further inquiry, and notice. If the
initial inquiry causes the court or DCFS to have a reason to
believe the child is or may be an Indian child, but there is
insufficient reason to know the child is an Indian child, then
further inquiry is required. (§ 224.2, subd. (e).) This “reason to
believe” arises when the court or social worked 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.
(Id., subd. (e)(1).) This information, upon further inquiry, could
lead to a reason to know the child is an Indian child. Once there
is sufficient information to believe that the children might be
Indian children, responsibility for compliance with the statutes
falls squarely and affirmatively on both the social services agency
and the court. (In re N.G. (2018) 27 Cal.App.5th 474, 484.)
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Further inquiry includes “(A) Interviewing the parents,
Indian custodian, and extended family members[;] [¶]
(B) 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[; and] [¶] (C) 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.” (§ 224.2, subd. (e)(2)(A)–(C).)
In this case, Mother indicated she believed she had
Blackfeet or Cherokee ancestry. The juvenile court ordered
DCFS to notify the Blackfeet tribe, but inexplicably did not order
notice to the Cherokee nation based on the same statement.
Neither did DCFS on its own notify the Cherokee nation after it
received Mother’s statement.
We conclude Mother’s statement, notwithstanding denials
of Indian ancestry by other members of her family, is sufficient
evidence to give the court and DCFS reason to believe T.J. may
have Indian ancestry with the Cherokee nation. Although
Mother’s statement was bare bones, it did identify a particular
tribe. Along with that specific identification, DCFS and the court
also had identifying information for the maternal grandmother,
maternal aunt, and maternal cousin, which could have aided in
further inquiry. Given the named tribe and the family contact
information on hand, we are not requiring DCFS to “cast about”
for investigative leads. (See In re D.S. (2020) 46 Cal.App.5th
1041, 1053.)
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We decline DCFS’s invitation to characterize Mother’s
statement as speculation carrying little weight. She repeated her
belief on two separate occasions. That she checked the boxes on
the ICWA-020 form denying Indian ancestry does not necessarily
nullify her oral statements. As the juvenile court never
questioned her about the alleged inconsistency, our only recourse
is speculation, upon which we also decline to base our ruling.
DISPOSITION
The trial court’s order is conditionally affirmed. DCFS and
the juvenile court are ordered to proceed with further inquiry of
the Cherokee nation as to possible Indian ancestry for the child.
If further inquiry reveals no Indian ancestry, the court’s
permanent adoption plan remains unchanged.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
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