In re Christopher N. CA2/2

Filed 8/23/23 In re Christopher N. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re CHRISTOPHER N., a Person
Coming Under the Juvenile Court B325916
Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. DK23704)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
NADINE R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephanie M. Davis, Juvenile Court Referee.
Affirmed.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Deputy County
Counsel, for Plaintiff and Respondent.
******
Legal guardian and maternal grandmother Nadine R.
(MGM) appeals from an order terminating her legal guardianship
over her grandchild, Christopher N. (born September 2012). Her
sole argument is the juvenile court failed to ensure that the Los
Angeles County Department of Children and Family Services
(DCFS) complied with its duties of inquiry and notice under the
Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and
California’s equivalent law (Welf. & Inst. Code, § 224 et seq.).
MGM requests a limited reversal of the order terminating her
legal guardianship to allow DCFS to conduct a sufficient inquiry
and investigation and provide proper notice.
We find DCFS has, thus far in the proceedings, conducted a
sufficient inquiry and that proper notice was provided pursuant
to ICWA.
Further, the proceedings below are ongoing, and the order
terminating MGM’s legal guardianship does not affect any tribe’s
right to intervene in the proceedings should the ongoing
investigation reveal that Christopher is or may be an Indian
child.
For these reasons, we affirm the order.
2
FACTUAL AND PROCEDURAL BACKGROUND
The family
In 2015, the probate court granted MGM legal
guardianship over Christopher because the child’s mother,
Victoria R. (mother) was incarcerated. Christopher has special
needs, having been diagnosed with cerebral palsy and autism.
He is non-verbal, and uses a wheelchair. Christopher’s biological
father is Bobby Joe N., Jr. (father).1 At the time these
proceedings were initiated in 2017, father was incarcerated.
Initial referral and petition
In June 2017, DCFS responded to a referral that MGM
smoked crack cocaine in the home in front of Christopher. MGM
admitted the allegation and that she started using crack cocaine
about a month prior to the referral due to the stress of caring for
Christopher. MGM denied an allegation that she left the child
unsupervised.
On June 22, 2017, a petition on behalf of Christopher was
filed pursuant to Welfare and Institutions Code section 300,
subdivision (b), alleging that Christopher was at risk of serious
harm as a result of MGM’s substance abuse.2 The petition was
later amended to additionally allege that MGM suffered from
mental and emotional problems, had a history of engaging in
physical altercations, and that mother had a long criminal
history.
1 Although father remained an alleged father throughout
these proceedings, mother and father each reported that prior
DNA testing related to child support indicated father was
Christopher’s biological father.
2 All further statutory references are to the Welfare and
Institutions Code.
3
Attached to the petition was an ICWA- 010(A) form
indicating that MGM reported the maternal family had no known
American Indian ancestry.
Detention
The detention hearing was held on June 22, 2017. MGM
completed a parental notification of Indian status form (ICWA—
020) and reported having no American Indian ancestry as far as
she knew. MGM informed the court she had no American Indian
ancestry but did not know if the child’s maternal grandfather had
American Indian ancestry. Also, MGM did not know who
Christopher’s father was. The court found no reason to believe
ICWA applied and ordered Christopher detained from MGM’s
custody.
Investigation
MGM subsequently reported possible Native American
ancestry on the maternal side of the family, but she was unsure
what tribe was involved. She reported Native American ancestry
in both her family and mother’s paternal family. MGM’s father,
Nathaniel R. (deceased), was part of the “‘Gee chee’ (unknown
spelling) tribe.” He was born in Tallulah, Louisiana. MGM also
stated her mother, Lula M.F.R. is part of a tribe from Arkansas.
In addition, MGM was told mother’s biological father’s family had
American Indian ancestry. MGM stated mother’s paternal
grandmother lived in Arizona, but was unable to provide contact
information.
When asked about American Indian ancestry, mother
reported she probably had some, but was unable to further
explain. Mother identified Bobby Joe N., Jr. as Christopher’s
biological father and indicated there had been a DNA test. MGM
said father had not had any contact with the child since his birth
4
and had made clear that he did not wish to participate in the
child’s life. Father had made no effort to care for the child or
meet his basic needs.
DCFS contacted Lula, who stated she did not know much
about the family’s Native American ancestry because her parents
kept it a secret. However, her understanding was that it was
“West Indian or Blackfoot.” Lula reported her mother did not
have any American Indian ancestry, but her father did.
However, Lula did not know where her father was born, what
year he was born, or any further information about him.
Nathaniel was also allegedly American Indian, but Lula did not
know what tribe, nor did she have any information about his
parents or further information regarding American Indian
ancestry related to Christopher.
In August 2017, DCFS sent Notice of Child Custody
Proceeding for Indian Child (ICWA—030) forms to the Blackfeet
Tribe, the Secretary of the Interior, and the Bureau of Indian
Affairs. The notice also mentioned maternal family’s alleged
association with two tribes that are not federally recognized: the
Geechee-Louisiana and West Indian tribes. The notice included
mother’s, MGM’s, and Lula’s identifying information and named
Bobby Joe N., Jr., as Christopher’s biological father.
DCFS subsequently received green card return receipts
from the Blackfeet Tribe of Montana, the Bureau of Indian
Affairs, and the Secretary of the Interior. DCFS later received
documentation from the Blackfeet Tribe indicating Christopher
was not eligible for enrollment.
5
Jurisdiction and disposition
Father signed a waiver form indicating he did not want to
be physically present at the jurisdictional hearing and gave up
that right. He did not want counsel or to participate by video.
On August 22, 2017, mother signed an ICWA- 020 form
indicating she might have Cherokee Indian ancestry. The
juvenile court’s minute order noted mother was present in
custody but was not brought into court due to court congestion.
Mother later wrote to DCFS and stated she would be paroled in
January 2018 and wanted to attend court after, but not before,
her release. The juvenile court rescheduled the jurisdictional
hearing.
At the March 13, 2018 hearing, the court noted that in a
last minute information for the court, DCFS reported mother was
institutionalized at Patton State Hospital. She was sent there
from prison rather than being released.3 The court proceeded to
the adjudication given that the petition had been filed in
August 2017 and the court was required to give substantial
weight to the minor’s need for prompt resolution of the matter.
The juvenile court sustained an amended version of the petition
based on MGM’s substance abuse and mother’s criminal history.
The matter was continued for disposition.
3 The dependency investigator received a telephone call from
mother on February 6, 2018, stating mother was being held
against her will at Patton State Hospital and she was sent there
from prison instead of being released. The investigator noted
that during the February 6, 2018 conversation, “Mother was
jumping from unrelated topic to topic and wasn’t able to have a
fully cohesive conversation.”
6
On May 29, 2018, the juvenile court declared Christopher a
dependent child and removed him from MGM’s custody. MGM
and mother were provided reunification services, but father was
denied such services. The court found there was no reason to
know Christopher was an Indian child and ICWA did not apply.
Reunification period
DCFS interviewed mother at Patton State Hospital in
June 2018. Mother was delusional and appeared confused about
reality. She reported false information, such as she owned a
home in Victorville, California and worked at Patton State
Hospital prior to her incarceration. Mother reported she had
many children besides Christopher and provided the names of
the children. DCFS was not aware mother had any children
other than Christopher. Mother reported speaking to
Christopher on the phone and being able to understand the child
even though he was non-verbal. DCFS was unable to obtain
information about mother’s mental health from the hospital due
to privacy concerns, but the hospital social worker indicated she
would try to obtain mother’s consent to release her treatment
information to DCFS.
In July 2018, mother became agitated and had difficulty
understanding Christopher’s diagnosis. Mother maintained the
child was walking and talking when in her care. She appeared
confused about reality. She requested DNA testing be done for
mother and MGM as she suspected the child was not hers.
Mother said she did not want to participate in services and would
follow up with the necessary people once released from the
hospital.
7
On November 27, 2018, the juvenile court terminated
family reunification services for mother but continued them for
MGM.
For the 18-month review hearing, DCFS reported father’s
whereabouts were unknown and mother remained in custody at
Patton State Hospital.
ICWA proceedings as to father
On January 28, 2019, father made his first appearance in
juvenile court and was appointed counsel. Father filed a
statement regarding parentage (JV-505) and an ICWA-020 form
indicating he might have American Indian ancestry with an
unknown tribe on his father’s maternal side. Father’s paternal
grandmother was no longer living. Father provided the name of
an aunt, Jeanette C., who lived in Florida, but he did not have
her telephone number. Father stated he could try to get in touch
with her via Facebook. The court informed father that DCFS
would be asking him to try to get in touch with her. The court
found it had no reason to believe that ICWA applied but ordered
DCFS to investigate father’s possible Indian heritage.
On March 7, 2019, father confirmed he might have
American Indian ancestry to DCFS. Father provided contact
information for his niece, Ana, as she had more information
regarding paternal aunt Jeanette C. Ana told the social worker
she would provide the information in a week. The social worker
asked father if he would assist and provide the information
sooner. The social worker asked a second time for Jeanette C.’s
contact information, and in its March 13, 2019 report, DCFS
indicated it had not heard from father or Ana regarding the issue
of American Indian heritage.
8
At the March 13, 2019 hearing, DCFS informed the court it
had reached out to father but he was nonresponsive. As father
was present in court, he stated he had “no idea what tribe or
what my background is.” Father said had been trying to contact
his aunt or obtain contact information for DCFS. The court
ordered father to do his best to contact Jeanette C. The court
found no reason to believe that ICWA applied but ordered DCFS
to continue to investigate.
Further proceedings
On March 13, 2019, the juvenile court terminated family
reunification services and scheduled a section 366.26 hearing to
select and implement a permanent plan for the child.
For the initial section 366.26 hearing scheduled for July 10,
2019, DCFS again sent ICWA-030 notice forms to the Blackfeet
tribe. The notice identified father as also associated with the
Blackfeet tribe and included the name of paternal aunt,
Jeanette C., noting that her current address, former address, and
date and place of birth were unknown. The Blackfeet tribe
responded that based on its enrollment records, the child did not
fall under the provisions of ICWA.
On November 5, 2019, DCFS was contacted by the child’s
paternal half-sibling, Shaquan N., who reported father had
suffered a massive stroke and brain aneurism and was
hospitalized. Father was immobile and was being provided 14-
hour medical and nursing care.
On June 29, 2021 the juvenile court reinstated family
reunification services for MGM pursuant to section 388 and took
the section 366.26 hearing off calendar.
On March 8, 2022, the juvenile court again terminated
MGM’s reunification services.
9
In March 2022, DCFS was informed father had passed
away and obtained father’s death certificate.
At a section 366.26 permanency planning hearing on
July 1, 2022, DCFS asked to continue the matter for 90 days for
adoption assessment. The juvenile court granted the request,
and ordered DCFS to provide “an ICWA update report” and
“to inquire of all known maternal and paternal relatives as well
as any relatives for the legal guardian with respect to any Indian
heritage and provide that information to the court.”
At a continued section 366.26 permanency planning
hearing on October 3, 2022, the juvenile court ordered DCFS to
“make inquiry and interview of all known paternal and maternal
relatives as to ICWA and provide an update in the next report.”
Permanency planning was continued to January 31, 2023.
In December 2022, DCFS petitioned the juvenile court to
terminate MGM’s legal guardianship over Christopher.
On December 13, 2022, the juvenile court granted DCFS’s
section 388 petition and terminated MGM’s legal guardianship
over Christopher. The court found the child’s visits with MGM
detrimental to him and ordered no visits occur.
On December 13, 2022, MGM filed a notice of appeal.
DISCUSSION
MGM contends DCFS failed to perform its duties under
ICWA. MGM raises two specific issues on appeal: that DCFS
failed to interview father’s aunt, Jeanette C., about father’s
possible Indian heritage, and DCFS did not provide proper notice
to the Cherokee tribe.
10
We find no ICWA error on the record before us. Further,
we note that the court has ordered the ICWA investigation
continue, as the proceedings are continuing below and an order
terminating parental rights is not before us in this appeal.
I. Applicable law and standard of review
ICWA and related California statutes reflect the
Legislature’s intent “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.” (25
U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706,
fn. 3.) An “‘Indian child’” is defined as any unmarried person
under the age of 18 who is either a member of an Indian tribe or
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);
§ 224.1, subds. (a) & (b).)
“Because it typically is not self-evident whether a child is
an Indian child, both federal and state law mandate certain
inquiries to be made in each case. These requirements are
sometimes collectively referred to as the duty of initial inquiry.”
(In re Benjamin M. (2021) 70 Cal.App.5th 735, 741
(Benjamin M.).) “The duty to inquire begins with the initial
contact, including, but not limited to, asking the party reporting
child abuse or neglect whether the party has any information
that the child may be an Indian child.” (§ 224.2, subd. (a).) The
court and child welfare department “have an affirmative and
continuing duty” to inquire whether a child for whom a petition
under section 300 may be or has been filed may be an Indian
child. (Ibid.)
11
Under California law, the child welfare department’s initial
duty of inquiry 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 and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b).) Under ICWA, the
term “‘extended family member’” is “defined by the law or custom
of the Indian child’s tribe or, in the absence of such law or
custom, shall be 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).)
The juvenile court must also inquire at each participant’s
first appearance in court whether the participant knows or has
reason to know that the child is an Indian child. (§ 224.2, subd.
(c).) In addition, the juvenile court must instruct the parties to
inform the court if they subsequently receive information that
provides reason to know the child is an Indian child. (Ibid.)
If the “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.’ ([§ 224.2], subd. (e), italics
added.) . . . [I]f 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
12
‘reason to know’ a child is an Indian child as defined under
§ 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052
(D.S.).)
We review a 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
ICWA finding.” (In re Dezi C. (2022) 79 Cal.App.5th 769, 777,
review granted Sept. 8, 2022, S275578 (Dezi C.).) Even if
substantial evidence does not support the juvenile court’s ICWA
findings, we may not reverse unless we find that error was
prejudicial. (Cal. Const., art. VI, § 13; Benjamin M., supra,
70 Cal.App.5th at p. 742.)
II. No error occurred
A. Failure to contact Jeanette C.
MGM argues DCFS “did not interview Jeanette C. or
document its efforts to do so.” However, the record reveals that
DCFS did not have any way of contacting Jeanette C. Despite
repeated attempts to obtain her contact information, neither
father nor his family were able to provide it. DCFS was not
required to conduct an independent investigation to locate this
individual. The record shows that under the circumstances
DCFS undertook the best investigation it was able, and nothing
further was required.
At father’s initial appearance he filled out an ICWA-020
form indicating he might have Indian ancestry with an unknown
tribe on his father’s maternal side. His paternal grandmother
was no longer living, but he provided the name of a paternal
aunt, Jeanette C. He did not have her contact information, but
agreed to attempt to contact her.
13
Despite DCFS’s repeated requests, father was unable to
provide contact information for the individual who might have
information about his possible American Indian ancestry. With
father’s consent, DCFS contacted father’s niece Ana, who also
agreed to attempt to locate and provide Jeanette C.’s contact
information. This also proved fruitless. While the juvenile court
found it had no reason to believe Christopher was an Indian
child, DCFS was ordered to continue its efforts to investigate the
issue. Father subsequently suffered a massive stroke and brain
aneurism and later died.
While DCFS is required to inquire as to Indian ancestry
and act on any information it receives, DCFS “has no duty to
conduct an extensive independent investigation for information.”
(In re C.Y. (2012) 208 Cal.App.4th 34, 40.) Thus, “[w]ithout
reliable contact information, DCFS could not reasonably have
been expected to interview extended family members.” (In re
Q.M. (2022) 79 Cal.App.5th 1068, 1083.) MGM points to no legal
requirement that DCFS must conduct an independent search for
missing family members other than a parent, Indian custodian,
or guardian of the child.4 DCFS is not required to “‘cast about’ for
4 Rules of Court, rule 5.481(a)(3) states: “If the parent,
Indian custodian, or guardian does not appear at the first
hearing, or is unavailable at the initiation of a proceeding, the
court must order the person or entity that has the inquiry duty
under this rule to use reasonable diligence to find and inform the
parent, Indian custodian, or guardian that the court has ordered
the parent, Indian custodian, or guardian to complete Parental
Notification of Indian Status (form ICWA – 020).” There is no
similar requirement that DCFS conduct such a search for missing
extended family members.
14
information or pursue unproductive investigative leads.”
(D.S., supra, 46 Cal.App.5th at p. 1053.)
Neither father, nor any relative on father’s side, ever
identified a specific tribe. The “suggestion of Indian ancestry”
was insufficient to trigger the notice requirement. (In re D.F.
(2020) 55 Cal.App.5th 558, 571.) Therefore, DCFS was not
required to provide notice to any tribe on behalf of father. No
error under ICWA occurred.
B. Failure to contact the Cherokee tribe
On August 22, 2017, mother indicated possible Indian
ancestry in the Cherokee tribe. MGM cites law indicating that
notice under ICWA is error when the parent names a specific
tribe and DCFS fails to notice that tribe. (In re B.R. (2009) 176
Cal.App.4th 773, 778, 785–786 (B.R.). In B.R., a paternal aunt
indicated possible Apache heritage. Although ICWA notices were
sent to various other tribes, the court held notice was improper
because the Apache tribe had not been noticed. (Ibid.) The court
further held the lack of notice to the Apache tribe was not
harmless error. (Id. at p. 785.)
The present matter is distinguishable. Under the
circumstances of this case, it was not error for the trial court to
decline to order notice to the Cherokee tribe. Mother’s statement
must be considered in view of the mental health issues from
which she was suffering at the time, which included delusional
thoughts. While mother was scheduled to be released from
prison in January 2018, she was instead involuntarily held at
Patton State Hospital due to mental health concerns. Mother
was unable to have a cohesive conversation. She remained
delusional several months later when the social worker
interviewed her at the hospital. Mother then reported she had
15
many children, although this was known to be untrue. Mother
reported speaking to Christopher on the phone and
understanding him even though he was nonverbal. Mother
insisted Christopher could walk and talk when he was in her
custody, and sought DNA testing because she thought
Christopher was not her child. Mother’s discharge date from
Patton State Hospital was later extended due to continued
concerns about her mental health. Given mother’s delusions, the
juvenile court was justified in its implied finding that mother’s
statement of possible ancestry with the Cherokee tribe was
unreliable.
The juvenile court’s decision is supported by the reliable
testimony of mother’s relatives. MGM reported there might be
American Indian ancestry on the maternal side of family, but she
was unsure which tribe or tribes might be involved. MGM noted
that her father, who was deceased, was part of the “‘Gee chee’
(unknown spelling) tribe.” She also noted her mother might have
ancestry with a tribe in Arkansas. MGM offered that mother’s
biological father’s family might have American Indian ancestry,
but she did not have the contact information for any of mother’s
paternal relatives. Lula also reported she did not know much
about any American Indian ancestry, as her parents kept it a
secret. She understood the American Indian ancestry to be “West
Indian or Blackfoot.” Lula added that mother’s maternal great-
grandfather may have had American Indian ancestry, but she did
not know where he was born nor did she have any further
information about him. She did not know which tribe might have
been involved nor did she have any information about the parents
of the maternal great-grandfather.
16
Significantly, none of mother’s other relatives mentioned
Cherokee heritage in the maternal family. Only mother
mentioned it. And previously, when mother was asked in June
2017 about her American Indian ancestry, she stated that she
“probably has some because ‘I have a couple of my grandmas
inside of my body.’” Mother was unable to further explain any
ICWA-related information. Thus, her later statement that she
had possible affiliation with the Cherokee tribe lacked
credibility—particularly when it was made near the time she
demonstrated delusional behavior and had to be institutionalized
for mental health reasons.
As set forth above, we review the juvenile court’s ICWA
findings under the substantial evidence test. (Dezi C., supra,
79 Cal.App.5th at p. 777.) There was sufficient credible evidence
from maternal relatives that the Cherokee tribe was not part of
Christopher’s ancestry. The juvenile court was not required to
credit mother’s lone indication of such heritage, viewed in light of
mother’s delusional behavior and forced hospitalization. Notice
to the Cherokee tribe was unnecessary under the circumstances.
III. The ICWA investigation is ongoing
Finally, we note the ICWA investigation is ongoing in the
present matter. “[T]he only order which would be subject to
reversal for failure to give notice would be an order terminating
parental rights.” (In re Brooke C. (2005) 127 Cal.App.4th 377,
385.) No such order is before us here. The order terminating
MGM’s status as legal guardian does not affect a tribe’s right to
intervene in the proceedings, which are ongoing.
The juvenile court repeatedly ordered DCFS to continue to
investigate Christopher’s possible American Indian heritage.
The juvenile court thus recognized that “the duty to inquire is a
17
continuing one.” (In re S.H. (2022) 82 Cal.App.5th 166, 176.)
And even after a juvenile court has concluded that ICWA does
not apply, it “retains the power (and duty) to reverse that
determination ‘if it subsequently receives information providing
reason to believe that the child is an Indian child.’” (Ibid.) The
juvenile court and social workers in this case expressed
awareness of their continuing duty. The court made its ICWA
finding without prejudice, and has ordered DCFS to continue to
investigate the issue.
The juvenile court did not err in making its preliminary
determination that ICWA was inapplicable at this stage of the
proceedings. Because the record before us makes clear the ICWA
investigation was ongoing below, should it become known, or
should there be reason to know, that Christopher is an Indian
child, the notice requirement will be activated, and the relevant
tribe or tribes will need to be notified. The order terminating
MGM’s legal guardianship need not be reversed in order to direct
the court and DCFS “to do something they recognize they must
do anyway.” (In re S.H., supra, 82 Cal.App.5th at p. 177.)
DISPOSITION
The order terminating MGM’s legal guardianship is
affirmed.
________________________
CHAVEZ, J.
We concur:
________________________ ________________________
LUI, P. J. ASHMANN-GERST, J.
18