In re A.P. CA1/2

Filed 9/28/21 In re A.P. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re A.P., a Person Coming Under
the Juvenile Court Law.
SONOMA COUNTY HUMAN
SERVICES DEPARTMENT,
Plaintiff and Respondent, A161645
v.
(Sonoma County
A.C.,
Super. Ct. No. 5981DEP)
Defendant and Appellant.
A.C., the mother of three-and-a-half-year-old A.P., appeals the order
terminating her parental rights. She contends that a limited reversal should
be ordered due to the juvenile court’s failure to properly discharge its duty of
inquiry concerning her daughter’s Indian heritage through the lineage of
A.P.’s presumed father. We reject her contentions and affirm the judgment.
BACKGROUND
A. Overview
These proceedings were initiated on August 23, 2019, when the Sonoma
County Human Services Agency (the agency) filed a petition under Welfare
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and Institutions Code section 3001 on behalf of A.P., who was then 14 months
old, and her older sister, based on allegations of domestic violence between
mother and her live-in boyfriend, S.P., and allegations concerning mother’s
serious medical issues that left her unable to safely care for her children.
A.P.’s sister turned 18 during the course of these proceedings below, and her
case is not at issue here.
Subsequently, at the jurisdiction/disposition hearing held on January 9,
2020, the court found that S.P. is A.P.’s presumed father, and that mother’s
estranged husband, Paul C., who was living in Oregon, is S.P.’s “legal” father.
Mother’s reunification services were terminated after six months at a
contested review hearing held on August 4, 2020, and the court terminated
her parental rights after a contested hearing held on December 11, 2020.
This timely appeal followed.
B. Relevant Facts
The issues in this appeal solely concern the Indian ancestry of A.P.’s
presumed father, S.P., who disclosed to the emergency response social worker
on the day A.P. was taken into emergency temporary custody (August 20,
2019) that he has Native American ancestry with the Pomo Indians.2
1All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
2 At the time, he also disclosed heritage with the Mishewal Wappo
band of Indians. The agency twice tried to contact their Indian Child Welfare
Act (ICWA) representative but could not reach anyone and determined they
are not a federally recognized tribe; mother concedes that fact and they are
not at issue here.
Later, on August 5, 2019, mother disclosed she may have “Piute”
ancestry. Mother concedes this was a misspelling of “Paiute” Indians, and
raises no issue as to the Paiute tribes, which were given notice of these
proceedings and responded that A.C. is not a member or eligible for Paiute
membership.
2
The agency immediately began to investigate his claim of Indian
ancestry. Three days after S.P.’s disclosure, and on the same day the
dependency petition was filed, the agency contacted the Hopland Band of
Pomo Indians who stated S.P. is not on their registry. Then, at the detention
hearing held a few days later, the parents were not present and so the
juvenile court ordered the agency to do an ICWA inquiry when “we get ahold
of the parents,” adding that “we’ll continue to do [that] with anybody involved
in the case.”
Shortly thereafter, on September 12, 2019, the agency interviewed S.P.
further about his Indian ancestry and completed a family tree with him. S.P.
disclosed that his mother and brother “may have been” registered with the
Manchester Point Arena Bands of Pomo Indians, but that he was unsure
because he had been raised by a different family (in what he described as an
“informal adoption”). Then, the same day, the social worker called and spoke
with the ICWA representative for the Manchester Point Arena Band of Pomo
Indians (an individual named Liz DeRouen). They went over the family tree
together and determined that both S.P. and A.P are eligible for enrollment in
the tribe.
On September 16, 2019, the agency obtained a continuance of the
jurisdiction hearing due to new disclosures of abuse and developments
concerning mother’s mental health (who had been taken by local police to the
hospital for a section 5150 hold due to erratic behavior). The continuance
request also cited the fact that the social worker had “determine[d] with the
assistance of ICWA representative Liz DeRouen that [A.P.] is indeed eligible
for enrollment in the Manchester Point Arena Band of Pomo Indians and the
Indian Child Welfare Act will be applicable.”
3
A few weeks later, on October 9, 2019, the agency filed its report for the
upcoming combined jurisdiction/disposition hearing recounting the foregoing
efforts to date. It asserted that on the basis of the information it had
received, “[a]t this time, the Indian Child Welfare Act does not apply.
However, there is reason to believe that the child, [A.P.] is eligible for
enrollment in the Manchester Point Arena Tribe of Pomo Indians through her
father, [S.P.]’s lineage. Neither [A.P.] or her father are currently enrolled
members of the tribe, but both are eligible for enrollment.” It thus concluded
that “[i]t . . . appears that the Indian Child Welfare Act does not apply . . . ,
however, were her father to enroll himself in the Manchester Point Arena
Band of Pomo Indians, the Indian Child Welfare Act would apply from that
point.” The jurisdiction hearing was continued multiple times after that.
In the meantime, on October 10, S.P. filed a parental notification of
Indian Status, indicating he is or may be a member of the “Pomo Manchester
Tribe.”
Then on December 12, 2019, the agency mailed ICWA notice of these
proceedings, and the upcoming jurisdiction hearing, to numerous tribal
representatives including to Liz De Rouen, the ICWA representative for the
Manchester Point Arena Band of Pomo Indians in Point Arena, California
with whom the social worker already had been in touch, as well as to the
Sacramento office of the Bureau of Indian Affairs and to the U.S. Secretary of
the Interior.
At the combined jurisdiction/disposition hearing held on January 9,
2020, the agency’s counsel informed the juvenile court that even though
neither S.P. nor A.P. were members or enrolled with the Manchester Point
Arena band of the Pomo Tribe, the agency was “working with the tribe
anyway because they’re there to work with and that’s good.” The juvenile
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court observed that ICWA did not apply at that juncture but would apply in
the future if S.P. were to register with the tribe. The court concluded the
hearing by observing that “[l]egal notice to the tribes has been prepared and
will go out,” and that ICWA’s applicability would “remain an open question.”3
In the six-month status review report filed on June 24, 2020, the
agency stated that ICWA “does not apply,” but also once again noted that
“there is reason to believe that the child, [A.P.]. is eligible for enrollment in
the Manchester Point Arena Tribe of Pomo Indians through her father,
[S.P.]” It added that “[n]either [A.P.] nor [S.P.] are currently enrolled
members of the tribe, but both are eligible for enrollment. [S.P.] has
stated . . . that he does not plan to enroll, but has implied that he would
enroll ‘so ICWA would apply’ if the Department did anything he did not agree
with.” Then at the six-month review hearing at which mother’s reunification
services were terminated, the juvenile court made a finding that ICWA “does
not apply to this case.”
The section 366.26 report, filed November 12, 2020, again said that
ICWA does not apply “[a]t this time” but that A.P. and S.P. were eligible for
enrollment in the Manchester Point Arena Tribe of Pomo Indians. At the
subsequent section 366.26 hearing, which was combined with a disposition
hearing on A.P.’s newborn baby brother (as to whom S.P.’s paternity was
alleged but had not yet been established), the agency’s counsel informed the
court that “[t]here is no indication that either parent is an enrolled member
of a tribe,” following which the juvenile court made an oral ruling that ICWA
does not apply in the brother’s case. The parties did not address the subject
3 It is unclear why the court said the notices “will” go out, because they
already had been sent. That discrepancy is irrelevant to our analysis,
however, and indeed mother has not mentioned it.
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further and the court made no ICWA ruling specific to A.P. at that final
hearing, where it terminated mother’s parental rights.
DISCUSSION
Section 224.2 governs the steps that the juvenile court and county
welfare agency must take to discharge their “affirmative and continuing duty
to inquire whether a child . . . is or may be an Indian child” for purposes of
ensuring compliance with ICWA in child dependency proceedings. (§ 224.2,
subd. (a).)
At issue here is solely the duty of further inquiry under subdivision (e).
That subsection states:
“(e) If the court, social worker, or probation officer has reason to believe
that an Indian child is involved in a proceeding, but does not have sufficient
information to determine that there is reason to know[4] that the child is an
Indian child, the court, social worker, or probation officer shall make further
inquiry regarding the possible Indian status of the child, and shall make that
inquiry as soon as practicable.
4 A “reason to know” exists in any of six situations: “(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 that the child is an
Indian child. [¶] (5) The court is informed that the child is or has been a ward
of a tribal court. [¶] [Or] (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).)
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“[e] (1) There is reason to believe a child involved in a proceeding is an
Indian child whenever the court, social worker, or probation officer 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. Information
suggesting membership or eligibility for membership includes, but is not
limited to, information that indicates, but does not establish, the existence of
one or more of the grounds for reason to know enumerated in paragraphs (1)
to (6), inclusive, of subdivision (d).
“[e] (2) When there is reason to believe the child is an Indian child,
further inquiry is necessary to help the court, social worker, or probation
officer determine whether there is reason to know a child is an Indian child.
Further inquiry includes, but is not limited to, all of the following:
“[e][2] (A) Interviewing the parents, Indian custodian, and extended
family members to gather the information required in paragraph (5) of
subdivision (a) of Section 224.3.
“[e][2] (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.
“[e][2] (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. Contact with a tribe shall, at a
minimum, include telephone, facsimile, or electronic mail contact to each
tribe’s designated agent for receipt of notices under the federal Indian Child
Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.). Contact with a tribe shall
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include sharing information identified by the tribe as necessary for the tribe
to make a membership or eligibility determination, as well as information on
the current status of the child and the case.” (§ 224.2, subd. (e).)
If, after a proper further inquiry has been made in compliance with
section 224.2, and “there is no reason to know whether the child is an Indian
child, [then] the court may make a finding that the federal Indian Child
Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) does not apply to the
proceedings, subject to reversal based on sufficiency of the evidence. 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.” (§ 224.2, subd. (i)(2).)
Here, the parties agree the agency at most had only a “reason to
believe” A.P. is an Indian child (not a “reason to know” that, which triggers
heightened duties). As best we understand her briefing, mother asserts three
errors under section 224.2, subdivision (e) which we next address.
Overarching them all is the contention that the agency’s duty of inquiry did
not end once it determined that A.P. was eligible to enroll in the Manchester
Point Arena Band of the Pomo Indians. Rather, she contends, this
information itself “triggered the affirmative duty . . . to make further
inquiry.”
Our review here is deferential. “ ‘We review a court’s ICWA findings
for substantial evidence. [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.” ’ [Citation.] The
appellant ‘ “has the burden to show that the evidence was not sufficient to
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support the findings and orders.” ’ ” (In re J.S. (2021) 62 Cal.App.5th 678,
688.)
First, mother contends the agency’s inquiry was deficient because it
never contacted or attempted to contact S.P.’s brother or mother, whom S.P.
reported might have been registered tribe members although he was unsure.
She asserts that such contact “could determine the family’s involvement with
the Manchester Point Arena Tribe of the Pomo Indians, the family’s Indian
culture, the process of enrollment, or whether an enrollment application was
ever provided to father or for [A.P.].” Mother cites no authority, however,
that the inquiry provisions of section 224.2 are concerned with any of these
subjects. Moreover, the most reliable and definitive source of information
about the tribe’s enrollment procedures (and, indeed, whether S.P. procured
an enrollment application) was the tribe itself, not estranged biological
relatives who might or might not have been enrolled members themselves;
and here, the record affirmatively shows that the agency was in touch with
the tribe’s ICWA representative, remained in touch with her during the case,
and learned all it needed to know from her: namely, that A.P. and her father
were eligible to enroll. The agency “reasonably could conclude . . . that no
further inquiry was needed because there was no further information of value
to obtain from” either S.P’s mother or brother. (In re D.S. (2020)
46 Cal.App.5th 1041, 1053 [holding substantial evidence supports finding
agency complied with its duty of inquiry despite its failure to contact great-
grandmother].) It was “not required to ‘cast about’ for information or pursue
unproductive investigative leads.” (Ibid.)
Next, mother asserts that the agency did not have any contact with
father in the last nine months of the case, and thus failed to ascertain
whether he intended to enroll in the tribe or whether he or mother herself
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intended to enroll A.P. in the tribe. Once again, however, she cites no
authority that such an inquiry was required. Moreover, had mother herself
intended to try to enroll A.P. in the tribe she could have—and should have—
made a record of that fact herself for the juvenile court. She did not do so.
Indulging all presumptions in favor of the judgment as we must, we presume
mother harbored no such intentions.
Finally, mother asserts that the agency gave ICWA notice to the tribe
“without first having informal contact with the tribe to ‘share information
identified by the tribe as necessary for the tribe to make a membership or
eligibility determination’ ” as required by section 224.2. In this regard, she
contends that written notice was “clearly incorrect” because the tribal
information for S.P. was described as “no information available.” This
contention borders on frivolous. The agency’s informal discussions with the
tribe’s ICWA representative were sufficient for the tribe to ascertain that both
father and child were eligible for tribal membership; mother’s puzzling
assertion to the contrary is belied by this record.
As for the ICWA notices the agency sent, mother’s own cited authority
demonstrates it is unnecessary to address whether they might have lacked
necessary information. As mother acknowledges in her briefing, notice is not
legally required when, as here, there is only a reason to believe a minor may
be an Indian child, not a reason to know that. (See In re Dominic F. (2020)
55 Cal.App.5th 558, 570-572 [not reaching adequacy of ICWA notices in such
circumstances]; see also In re D.S., supra, 46 Cal.App.5th at p. 1054 [formal
ICWA notice “was not yet triggered under section 224.3” where agency had
only reason to believe, not reason to know, an Indian child may be involved];
In re S.R. (2021) 64 Cal.App.5th 303, 313 [ICWA notice is required under
federal and state law ‘ “where the court knows or has reason to know that an
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Indian child is involved’ ”].) Furthermore, even if the notices had been legally
required, they did apprise the tribes of S.P.’s Pomo heritage: they listed the
current address and date of birth of S.P.’s mother and identified that she was
affiliated with the Manchester Point Arena Band of Pomo Indians. As we
have noted, the information the agency gathered from father was sufficient
for the tribe to determine that both the child and her father are eligible to
enroll in the tribe. Nothing more was required in giving notice. (See In re
J.S., supra, 62 Cal.App.5th at p. 688 [“Notice to a tribe ‘must include enough
information for the tribe to “conduct a meaningful review of its records to
determine the child’s eligibility for membership” ’ ”].) Mother cites no case
standing for the illogical proposition that such an inquiry, sufficient for the
tribe itself, is nevertheless deficient under section 224.2 for purposes of
ensuring compliance with the court’s duty to ascertain whether the minor is
an Indian child.
In sum, the juvenile court’s implied findings that the agency conducted
an adequate inquiry under section 224.2 is supported by substantial
evidence.
Finally, we address one remaining point. Mother’s opening brief also
challenges the juvenile court’s description of her estranged husband as A.P.’s
“legal” father in various orders. She asserts that we must review the issue
and clarify that S.P. is A.P.’s presumed and biological father, “[i]n order to
correct the record and preserve [A.P.]’s paternal lineage for purposes of
ICWA.”
We decline to review this issue because mother lacks standing to raise
it. She has not shown that any of her rights (as opposed to those of A.P.) are
even conceivably affected by the court’s ruling. “Although standing to appeal
is construed liberally, and doubts are resolved in its favor, only a person
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aggrieved by a decision may appeal.” (In re K.C. (2011) 52 Cal.4th 231, 236
[holding father whose parental rights were terminated lacked standing to
appeal order denying petition to change child’s placement].) In her reply
brief, mother cites law concerning a mother’s standing to initiate and/or to
participate in a paternity action (see Fam. Code §§ 7630, subds. (a), (b);
Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 864), but that authority is
inapposite. The question here is whether her interest in avoiding the
termination of her parental rights is in any way potentially affected by the
court’s description of Paul C. as a “legal” parent. (See K.C., at p. 238 [“A
parent’s appeal from a judgment terminating parental rights confers
standing to appeal an order concerning the dependent child[] . . . only if
the . . . order’s reversal advances the parent’s argument against terminating
parental rights”].) Mother makes no argument that reversing the court’s
ruling concerning Paul C.’s “legal” father status could possibly lead the
juvenile court not to terminate her parental rights, and therefore she has
shown no “legally cognizable interest” in that paternity determination. (See
K.C., at p. 237; see also, e.g., In re P.R. (2015) 236 Cal.App.4th 936, 940 [on
appeal from order terminating parental rights, mother lacks standing to
contend that juvenile court erroneously deviated from ICWA adoption
placement preference, because “she makes no argument as to how [the]
alleged . . . errors might be related to the termination [of parental rights]
decision”].)
Moreover, even if mother had standing to raise this issue, we agree
with the agency that any error was harmless. The juvenile court designated
S.P. as A.P.’s presumed father and terminated his parental rights, and the
only claim of Indian heritage at issue below and at issue on appeal concerns
S.P.’s Indian ancestry. There is no argument that Paul C. had potential
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Indian ancestry that should have been, but was not, adequately explored or
considered. Thus, any error by the juvenile court in referring to Paul C. as
A.P.’s “legal” father is entirely harmless insofar as the juvenile court’s
compliance with ICWA is concerned.
DISPOSITION
The judgment is affirmed.
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STEWART, J.
We concur.
RICHMAN, Acting P.J.
MILLER, J.
In re A.P. (A161645)
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