In re H.B.

Filed 6/20/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re H.B., A Person Coming B322472
Under the Juvenile Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF (Los Angeles County
CHILDREN AND FAMILY Super. Ct. No. 19CCJP07101A)
SERVICES,
Plaintiff and Respondent,
v.
S.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Gabriela H. Shapiro, Juvenile Court Referee.
Affirmed.
Richard L. Knight, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
S.B. (father) appeals from the juvenile court’s order
terminating his parental rights over his daughter H.B. pursuant
to Welfare and Institutions Code1 section 366.26. Father
contends only that the juvenile court erred in finding the Indian
Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.)
inapplicable based on the record of inquiry made by the Los
Angeles County Department of Children and Family Services
(Department) with H.B.’s extended family members. Finding no
error, we affirm.
BACKGROUND
H.B. was born November 2016 to father and R.V. (mother).
Just days after her birth, the Department received a report that
mother had used methamphetamine during her pregnancy with
H.B. and that father was also a methamphetamine user. The
Department’s investigation into general neglect of H.B. was
closed as inconclusive.
This case began about three years later. At the time, father
was on probation for methamphetamine charges. Law
enforcement conducting a probation check on him at the family
home turned up “large amounts of methamphetamines . . . in
plain sight and completely accessible to [H.B.].” Law
enforcement contacted the Department. A Department social
worker joined law enforcement at the home. The social worker
noted the home was dirty and in disarray, with trash piled
around and large rat traps, in addition to methamphetamine, in
areas accessible to H.B. The social worker removed H.B. Mother
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
and father were both arrested and detained. The Department
filed a dependency petition and these proceedings ensued.
As the issue on appeal is limited to the adequacy of the
Department’s inquiry supporting the juvenile court’s ICWA
findings, we limit our recitation of the facts accordingly.
The Department filed its petition on November 1, 2019.
Attached to the petition was a form ICWA-010(A) reflecting that
the Department had questioned mother about Indian2 ancestry,
and she denied having any.
At the November 2019 detention hearing, paternal
grandmother, paternal aunt, and maternal great-grandmother
were present in court. The parents were not present. The
juvenile court found ICWA did not apply based on the
information before it but ordered the parents to keep the
Department, their counsel, and the court aware of any new
information relating to possible ICWA status. Paternal
grandmother, paternal aunt, and maternal great-grandmother
made no statements in response to the court’s ICWA finding.
Later in November 2019, on the day of the arraignment
hearing, father and mother filed their respective form
ICWA-020’s, stating they had no Indian ancestry as far as they
knew. At the hearing, in addition to the parents, paternal
grandmother, paternal grandfather, paternal stepgrandmother,
and paternal aunt were present in court. The juvenile court
noted the parents’ ICWA-020 forms were filed and found no
reason to know H.B. was an Indian child. The juvenile court
2 In this opinion, we use the term “Indian” as defined in
section 1903 of title 25 of the United States Code.
3
ordered H.B. detained and set the case for an adjudication
hearing.
In its January 2020 jurisdictional and dispositional report,
the Department reported mother was raised by maternal
grandmother and maternal grandfather until she was 10 years
old, when maternal grandmother left the family home. After her
parents’ separation, mother stayed in the home with maternal
grandfather and maternal great-grandmother for a time. But
when she was 14, mother moved in with maternal great-
grandfather to be closer to maternal grandmother (who had been
incarcerated) when she was released from jail. Mother has since
lost contact with maternal grandfather.
Father’s parents are similarly separated. He was raised by
paternal grandmother and paternal stepgrandfather until he was
in ninth or 10th grade. Then he moved in with paternal
grandfather. He has a half brother and half sister on paternal
grandmother’s side, two half sisters on paternal grandfather’s
side, a full sister, and a stepbrother through paternal
stepgrandmother. Father is in contact with his parents and all of
his siblings.
At the January 2020, adjudication hearing, paternal
grandmother, paternal stepgrandfather, and maternal aunt were
present in court. The juvenile court sustained amended counts in
the section 300 petition and set the case for a dispositional
hearing.
At the dispositional hearing the following month, the
presence of a “maternal step-sister” was noted on the record. The
juvenile court ordered the Department to place H.B. with
paternal grandfather if there were no safety concerns and,
alternatively, with paternal grandmother. The juvenile court
4
declared H.B. a dependent of the court and ordered family
reunification services for the parents.
H.B. was initially placed in the home of paternal
grandmother and paternal stepgrandfather. Shortly thereafter
she was moved to the home of paternal grandfather and paternal
stepgrandmother.
In January 2021, the Department reported visiting
maternal great-uncle’s home, where mother was living, to assess
its suitability for visits between mother and H.B. The
Department made an unannounced visit to the same home in
March 2021 and met maternal great-aunt, maternal great-uncle,
and a maternal cousin.
In January 2022, the juvenile court terminated family
reunification services for the parents and set the case for a
section 366.26 hearing.
In its May 2022 section 366.26 report, the Department
recommended termination of parental rights, and that H.B. be
adopted by paternal grandfather and paternal stepgrandmother.
On the date initially set for the section 366.26 hearing, the
juvenile court ordered the Department to interview all known
living relatives regarding possible Indian heritage. It continued
the hearing for approximately two months to permit the
Department to comply with its order.
At an intervening hearing in July 2022, the juvenile court
asked father if he was aware of any Native American heritage or
any type of relationship with anyone in his familial lineage that
might have lived on a reservation, have received benefits from a
tribe, or be enrolled in a tribe. Father replied in the negative.
The court reminded the Department of its continuing duty to
5
inquire with extended family members and report its findings in
advance of the scheduled section 366.26 hearing.
The Department provided a summary of its efforts to
determine whether H.B. has Indian ancestry in a last minute
information filed with the juvenile court on July 28, 2022.
According to that report, a social worker spoke with paternal
grandfather, who stated, “ ‘No, I do not have any Native
American Heritage.’ ” The social worker asked him if there was
anyone else that might have information, and he said “no,” but
promised to inform the social worker if he had additional
information. He also provided contact information for paternal
grandmother.
The social worker asked father if he had any Indian
heritage, and he again said “no.” The social worker asked father
if there was anyone else the social worker could speak to about
Indian heritage, and he suggested only his parents, but, from his
understanding, he did not have any such heritage.
By text message, paternal grandmother informed the social
worker that she was not aware of any Indian heritage.
Maternal grandmother also confirmed by text message she
was not aware of any Indian heritage but promised to follow up
with the social worker if she learned of any.
The social worker asked mother if she had any Indian
heritage and mother reconfirmed that she did not. Mother could
not think of anyone else for the social worker to ask about Indian
heritage. The social worker asked mother to provide contact
information for maternal grandfather and maternal great-uncle.
Mother responded that she did not have contact information for
maternal grandfather but would follow up with the information
for maternal great-uncle. She apparently provided the
6
information for maternal great-uncle, who told the social worker
he did not think his family had any Indian heritage.3 He
explained his father was adopted so he did not know if his
father’s biological parents were Indian. He denied knowing
anyone that would know about possible Indian heritage. He
promised to let the social worker know if he learned anything
further.
On July 29, 2022, the juvenile court found that H.B. was
not an Indian child and terminated parental rights.
On August 1, 2022, father’s counsel filed a notice of appeal
on father’s behalf.
DISCUSSION
In involuntary state court proceedings concerning child
custody, such as these dependency proceedings, ICWA requires
notice to the relevant Indian tribe “where the court knows or has
reason to know that an Indian child is involved.” (25 U.S.C.
§ 1912(a).) It is incumbent upon the court administering such a
proceeding to inquire whether the subject child is an Indian child.
The scope of the duty on the court, as well as certain participants
in the proceeding, is defined by federal regulations and related
state law. (See, e.g., 25 C.F.R. § 23.107 (2023); Welf. & Inst.
Code, § 224.2; Cal. Rules of Court, rule 5.481.)
The duty of inquiry has three “phases.” Father claims error
with respect to the first. This phase—the “initial inquiry”—
3 Maternal great-uncle is referred to as “paternal uncle” in
the Department’s last minute information. This is obviously an
error. Maternal great-uncle is identified by name and shares a
common surname with mother (which is not the same as
father’s). Elsewhere in the record, the same named individual is
identified as mother’s uncle.
7
applies in every case. In broad terms, the initial inquiry requires
the court and the Department to ask certain persons related to
the proceedings about the child’s possible Indian ancestry. (See
§ 224.2, subds. (a), (b), (c); In re S.S. (2022) 75 Cal.App.5th 575,
581; In re D.F. (2020) 55 Cal.App.5th 558, 566.) As relevant to
father’s appeal, section 224.2, subdivision (b) requires a county
welfare department, like the Department, to ask, among others,
the child’s “extended family members” about “whether the child
is, or may be, an Indian child.” (Ibid.) “Extended family
members” include adults who are 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); § 224.1, subd. (c).)
A juvenile court’s finding that ICWA does not apply in a
proceeding implies that (a) neither the Department nor the court
had a reason to know or believe the subject child is an Indian
child; and (b) the Department fulfilled its duty of inquiry. (In re
Josiah T. (2021) 71 Cal.App.5th 388, 401.) “ ‘ “[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.” ’ ” (Ibid.)
Father claims error based on the Department’s failure to
inquire with maternal grandfather, paternal stepgrandmother,
and an unidentified paternal aunt and maternal stepsister.
Father acknowledges that paternal stepgrandmother and
maternal stepsister are not among the statutorily defined
extended family members. Nonetheless, he asserts that because
8
the initial inquiry duty in section 224.2, subdivision (b), is “not
limited to” inquiring of extended family members, we should
treat the steprelatives as extended family members that should
have been interviewed about Indian ancestry. We reject this
argument.
The Legislature expressly adopted the definition of
“extended family member” contained in section 1903(2) of title 25
of the United States Code (§ 224.1, subd. (c)) and used that
definition in defining the scope of the initial inquiry (§ 224.2,
subd. (b)). Nothing in section 224.2, subdivision (b) suggests that
a more expansive definition of “extended family members” was
intended. That the inquiry may extend to classes of persons in
addition to “extended family members” and those other classes
referenced in the statute4 does not expand who is an “extended
family member.”
Aside from legally irrelevant family ties, father offers no
reason that the Department should have inquired with paternal
stepgrandmother and maternal stepsister about Indian ancestry.
Put another way, he interprets the words “not limited to” in
section 224.2, subdivision (b) as making the duty of initial inquiry
limitless. This interpretation is absurd. Absent some affirmative
obligation to interview them under the statute, the Department’s
failure to inquire with paternal stepgrandmother and maternal
stepsister cannot form the basis for error.
Thus, the question comes down to whether substantial
4 The other classes are: “the child, parents, legal guardian,
Indian custodian, . . . others who have an interest in the child,
and the party reporting child abuse or neglect . . . .” (§ 224.2,
subd. (b).)
9
evidence supports the juvenile court’s findings that the
Department’s initial inquiry was adequate despite the
Department failing to inquire with maternal grandfather and an
unidentified paternal aunt. We conclude that substantial
evidence supports the court’s findings.
Father’s arguments notwithstanding, the extended family
member inquiry mandated by section 224.2, subdivision (b) is
limited. (In re S.S. (2023) 90 Cal.App.5th 694, 704-705.) It is not
intended to obligate county welfare departments to search for
possible Indian ancestry without regard to cost or other practical
considerations. Rather, it is intended to ensure social workers
“ask an added question of extended family members whom [they]
often already are investigating in their usual course of work.”
(Ibid.) Despite its broad terms, section 224.2, subdivision (b) does
not require inquiry with every adult living extended family
member. “[C]omplying with the literal language of the statute—
that is, making an initial and further ICWA inquiry of every
member of a child’s extended family . . . —is absurd at best and
impossible at worst.” (In re Ezequiel G. (2022) 81 Cal.App.5th
984, 1006.) Our review is therefore not a mechanistic analysis of
whether the record supports a finding of literal compliance with
the statute, but “whether the ICWA inquiry conducted has
reliably answered the question at the heart of the ICWA inquiry:
Whether a child involved in a proceeding ‘is or may be an Indian
child.’ ” (Id. at p. 1009.)
In answering this question, we must also consider the
limitations on the Department’s ability to carry out its inquiry
under the particular facts of the case. “Where . . . a parent
largely fails . . . to provide names and contact information for
extended family members, [the Department’s] ability to conduct
10
an exhaustive ICWA inquiry necessarily is constrained.” (In re
Q.M. (2022) 79 Cal.App.5th 1068, 1082.) “[W]e cannot ask the
[Department] to intuit the names of unidentified family members
or to interview individuals for whom no contact information has
been provided.” (Ibid.) Requiring the Department to track down
information about extended family members beyond that offered
by participants in the proceedings would impose an undue
burden on the Department and necessarily reduce the resources
it has to otherwise protect the welfare of dependent children.
(Ibid.)
Whether remand for an expanded inquiry is appropriate
must also be assessed in light of how much information the
Department has already obtained. The more family members the
Department has already inquired of, the less the benefit that is
likely to obtain from an additional inquiry. At the same time as
the incremental value of another interview decreases, the burden
of locating and contacting the next family member typically
increases. The juvenile court has discretion to determine when
enough is enough. (In re Ezequiel G., supra, 81 Cal.App.5th at
p. 1008.)
In this case, the Department did not disregard its duty to
inquire with extended family members about possible Indian
ancestry. The juvenile court specifically ordered the Department
to carry out such an inquiry. The Department expanded its
initially deficient inquiry and reported the scope and results of its
expanded inquiry to the court. The court impliedly found the
Department’s expanded inquiry was satisfactory in concluding
the ICWA was inapplicable.
We find no basis for disturbing the juvenile court’s
conclusion. After the juvenile court ordered it to expand its
11
inquiry, the Department asked both parents to direct them to
other people who might have knowledge about possible Indian
ancestry. Father identified only his parents as an avenue for
further inquiry. Paternal grandfather suggested only that the
Department inquire also with paternal grandmother. The
Department inquired with paternal grandmother.
The Department also inquired with maternal grandmother.
After the Department informed mother it had done so, mother
was unable to suggest anyone else for the Department to speak
with on the topic. Nevertheless, the Department asked mother
for contact information for mother’s father, but mother explained
she did not have this information. In lieu of maternal
grandfather’s information, the Department requested and
obtained contact information for mother’s uncle—maternal
grandfather’s brother—and inquired with him about Indian
ancestry. He denied it, denied knowing anyone who could
provide more information, and further explained that, because
his father (maternal great-grandfather) was adopted, the
likelihood of getting reliable information on the topic was limited.
In short, the Department inquired about Indian ancestry
with representatives from both sides of two generational levels of
H.B.’s family. It contacted every person its interviewees
identified as a likely source of information about ancestry. The
juvenile court had an adequate basis on which to conclude the
Department fulfilled its inquiry obligations under section 224.2,
subdivision (b), and that neither the Department nor the court
had reason to know or believe that H.B. is an Indian child.
Under our deferential standard of review, the juvenile court did
not need the Department to contact every unnamed extended
family member that had attended a court hearing, regardless of
12
difficulty in doing so, to reach its conclusion.
DISPOSITION
The juvenile court’s order terminating parental rights over
H.B. is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
VIRAMONTES, J.
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