In re N.F.

Filed 8/10/23; certified for publication 9/5/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re N.F., a Person Coming B318674
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 18CCJP03317B
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Linda P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Nichelle L. Blackwell, Juvenile Court
Referee. Affirmed.
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Mother appeals from the juvenile court’s order denying
her post-permanency Welfare and Institutions Code1 section 388
petition that asked the court to grant her reunification services
with her thirteen-year-old son N.F. The juvenile court had
terminated its dependency jurisdiction over N.F. in January 2021
after appointing paternal uncle as his legal guardian. Mother
does not contest the merits of the court’s denial of her section
388 petition. Rather, she argues the juvenile court’s legal
guardianship order must be reversed because the court and the
Los Angeles County Department of Children and Family Services
(Department) did not comply with their initial inquiry duties
under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.
§ 1901 et seq.) and related California law.2 We affirm.
BACKGROUND
On May 24, 2018, the Department filed a section
300 petition alleging N.F. (born April 2008) and two of his
half-siblings—who are not the subjects of this appeal—were
at substantial risk of harm due in part to mother’s substance
abuse issues. The petition included an ICWA-010(A) Indian
Child Inquiry Attachment form stating mother had denied Native
American ancestry in a face-to-face interview.
Mother was present at the May 25, 2018 detention hearing.
The court went “through a series of documents” with her to
1 Undesignated statutory references are to the Welfare
and Institutions Code.
2 Because ICWA uses the term “Indian,” we do the same
for consistency, although we recognize other terms are preferred.
(In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
2
confirm the information mother had provided, including a
“Parental Notification of Indian Status” form.3 The court
confirmed with mother that, as she had indicated by the box
she checked on the form, she did not have any Indian ancestry
as far as she knew. The court then asked mother, “Do you know
if the fathers of the children have any Native American Indian
ancestry?” She said, “No.” The court also confirmed N.F.’s father
was deceased.4 The court thus found it had no reason to know
N.F. or his half-siblings were Indian children, and ICWA
therefore did not apply. According to the Department’s
November 14, 2019 section 366.26 report, the court’s order as
to N.F. specifically stated: “ ‘The Court does not have a reason
to know that this is an Indian Child, as defined under ICWA, and
does not order notice to any tribe or the BIA. Parents are to keep
the Department, their Attorney and the Court aware of any new
information relating to possible ICWA status. ICWA[-]20, the
Parental Notification of Indian Status is signed and filed.’ ”5
On July 31, 2018, the court sustained the petition,
amended by interlineation, removed N.F. from mother’s custody,
and granted mother reunification services. Mother failed
to reunify with N.F. The court terminated her reunification
3 This form, known as an ICWA-020 form, is not part of the
record.
4 The Department obtained N.F.’s father’s death certificate—
he died in July 2011. He and mother were married.
5 The record does not include the court’s May 25, 2018
minute order.
3
services in July 2019 and set a section 366.26 hearing to
determine N.F.’s permanent plan.
Between late 2019 and early 2021, the Department
reported on N.F.’s adoptability and the family’s circumstances.
Mother was serving a prison sentence in Arizona after being
convicted of possession of methamphetamine with intent to
distribute. She had not seen N.F. since August 2018 but had
some monitored phone calls with him. N.F. had been living with
paternal uncle in Texas since June 2019. Paternal uncle was
committed to providing N.F. with a stable home through legal
guardianship, rather than adoption. The Department’s final
section 366.26 report and December 24, 2020 status review
report stated ICWA did not apply and noted the juvenile court’s
detention finding that it had no reason to know N.F. was an
Indian child.
On January 14, 2021, the court held the section 366.26
hearing. The court selected legal guardianship as N.F.’s
permanent plan, appointed paternal uncle as N.F.’s legal
guardian, granted mother monitored visitation, and terminated
dependency jurisdiction over N.F. with Kinship Guardianship
Assistance Payment (Kin-GAP) funding in place.6 Mother did
6 “The Kin-GAP program is a state program that provides
ongoing funding for children who exit the dependency system
to live with relative legal guardians. In order to receive funding
under the program the county welfare agency must enter into
a written binding agreement with the relative guardian and
dependency jurisdiction must be terminated. (§§ 11386, 11387.)”
(In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1211 & fn. 2.)
The court here terminated its dependency jurisdiction. (Id. at
4
not appeal from the juvenile court’s orders or findings made
at the section 366.26 hearing.
Almost a year later, on January 10, 2022, mother filed a
section 388 petition in propria persona asking the juvenile court
to reinstate reunification services and give her the “cha[nc]e to
live together [with N.F.].” The court set a hearing on mother’s
petition for February 24, 2022.
In its report responding to mother’s petition, filed
February 17, 2022, the Department stated it had been unable
to contact mother. The social worker had tried to locate mother
at the address she gave on her petition, had left voicemail and
text messages at the phone number mother provided asking
mother to call back, and had sent messages through social media
platforms asking for a return call. The social worker spoke
to maternal grandfather at the address mother had provided.
He said mother had moved out three to four months earlier.
He didn’t know her current home address or contact number.
He agreed to give mother the social worker’s information if he
had any contact with mother.
N.F. told the social worker he wanted to continue living
with his paternal uncle. He wanted to have calls and visits with
mother but did not want to live with her. He didn’t know where
she was living. The Department recommended the court deny
mother’s section 388 petition.
p. 1216; § 366.3, subd. (a)(3).) The court nevertheless retained
jurisdiction “over the guardianship.”
5
The Department’s response included the court’s earlier
finding in May 2018 that it had no reason to know N.F. was
an Indian child.
At the February 24, 2022 hearing, the court re-appointed
counsel for mother and N.F. Counsel, mother (assisted by a
Spanish language interpreter), N.F., and paternal uncle appeared
remotely by WebEx. Mother’s counsel asked the court to
reinstate mother’s reunification services due to her changed
circumstances—she had completed programs in her place of
incarceration and had been released on December 8, 2021—and
argued doing so was in N.F.’s best interests. She alternatively
asked for a continuance so the social worker could interview
mother. The court denied mother’s request for a continuance
and denied the petition.7 The court ordered: “[N.F.] will continue
to reside with his paternal uncle under that legal guardianship,
and the case remains closed through the Kin-GAP matter that
I have already closed last year.”
DISCUSSION
1. Applicable law and standard of review
“To implement ICWA, the county welfare department
and the juvenile court must determine whether a case involves
an Indian child.” (In re Robert F. (2023) 90 Cal.App.5th 492, 499
(Robert F.), review granted July 26, 2023, S279743.) California
law thus imposes on the juvenile court and the Department
7 Mother does not raise any claim of error with respect to the
court’s denial of her continuance request. She thus has forfeited
the issue. (Doe v. McLaughlin (2022) 83 Cal.App.5th 640, 653
[“An appellant abandons an issue by failing to raise it in the
opening brief.”].)
6
“an affirmative and continuing duty to inquire whether a child
for whom” a section 300 petition “may be or has been filed, is
or may be an Indian child.” (§ 224.2, subd. (a); In re Ezequiel G.
(2022) 81 Cal.App.5th 984, 998 (Ezequiel G.).) An “ ‘Indian
child’ ” is “any unmarried person who is under age eighteen
and 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.” (25 U.S.C. § 1903(4); § 224.1,
subd. (a) [adopting federal definition].)
“ ‘The duty to inquire consists of two phases—the duty
of initial inquiry and the duty of further inquiry.’ . . . [¶] ‘The
duty of initial inquiry applies in every dependency proceeding.’ ”
(Robert F., supra, 90 Cal.App.5th at p. 499.) The Department’s
“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).) “In addition, ‘[f]ederal
regulations require state courts to ask each participant “at
the commencement” of a child custody proceeding “whether
the participant knows or has reason to know that the child is
an Indian child.” (25 C.F.R. § 23.107(a) (2022).)’ ” (Robert F.,
at pp. 499–500; In re Benjamin M., supra, 70 Cal.App.5th
at p. 741.) State law, in turn, requires the juvenile court,
at a party’s first appearance, to ask “each participant present
in the hearing whether the participant knows or has reason
to know that the child is an Indian child” (§ 224.2, subd. (c)) and
require each party to complete an ICWA-020 form (Cal. Rules
of Court, rule 5.481(a)(2)(C)).8 “The parties are instructed to
8 Rules references are to the California Rules of Court.
7
inform the court ‘if they subsequently receive information that
provides reason to know the child is an Indian child.’ (25 C.F.R.
§ 23.107(a) (2020); § 224.2, subd. (c).)” (In re D.F. (2020) 55
Cal.App.5th 558, 566.)
And, if the Department takes a child into its temporary
custody under section 306, it “has a duty to inquire whether
that child is an Indian child. 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.” (§ 224.2, subd. (b);
but see Robert F., supra, 90 Cal.App.5th at pp. 497–498 [county
welfare department that took child into protective custody
“pursuant to a warrant,” rather than under section 306, “had
no obligation” to ask extended family members about child’s
Indian status under section 224.2, subd. (b) (review granted
on this issue, see S279743 and In re Ja.O., review granted
July 26, 2023, S280572)].)9
If the initial inquiry gives the juvenile court or Department
a “reason to believe that an Indian child is involved,” then their
duty to “make further inquiry regarding the possible Indian
status of the child” is triggered. (§ 224.2, subd. (e); Ezequiel G.,
supra, 81 Cal.App.5th at p. 999.) Once there is a “reason to
9 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) [adopting
federal definition].) The record does not indicate whether the
Department took N.F. into protective custody under section 306.
8
know” an Indian child is involved, formal notice under ICWA
must be given to the child’s “parents or legal guardian, Indian
custodian, if any, and the child’s tribe.” (§ 224.3, subd. (a);
rule 5.481(c)(1); 25 U.S.C. § 1912(a).)
The juvenile court may find ICWA does not apply to a
child’s proceeding if it finds the Department’s duty of inquiry
has been satisfied and there is no reason to know that child
is an Indian child. (§ 224.2, subd. (i)(2); rule 5.481(b)(3)(A).)
The juvenile court’s finding that ICWA does not apply thus
“ ‘ “implies that . . . social workers and the court did not know
or have a reason to know the children were Indian children
and that social workers had fulfilled their duty of inquiry.” ’ ”
(In re Josiah T. (2021) 71 Cal.App.5th 388, 401.)
We generally review the juvenile court’s ICWA findings
for substantial evidence, “ ‘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. 21, 2022, S275578; see also Ezequiel G.,
supra, 81 Cal.App.5th at pp. 1004–1005 [reviewing juvenile
court’s finding that it had no reason to know a child is an
Indian child for substantial evidence, but reviewing decision
that ICWA inquiry was adequate for abuse of discretion].)
2. Mother’s claim of error fails
Mother appeals from the juvenile court’s order and findings
made at the hearing on her post-permanency section 388 petition.
She nevertheless asks us to reverse the court’s legal
guardianship order on the ground the court and the Department
failed to comply with their initial and continuing duty of inquiry
under section 224.2 when the Department did not ask paternal
uncle or maternal grandfather about N.F.’s Indian status. The
9
Department argues mother forfeited her challenge to the legal
guardianship order by not appealing from it, and it no longer
had an ICWA duty of inquiry at the post-permanency proceeding.
Mother did not file a reply brief to respond to these arguments.
We agree with the Department.
As the Department notes, the juvenile court did not order
a legal guardianship at the section 388 hearing from which
mother appeals. The court selected legal guardianship as N.F.’s
permanent plan, and appointed paternal uncle as N.F.’s legal
guardian, at the section 366.26 hearing held a year earlier
on January 14, 2021.
Mother had the right to appeal from the court’s legal
guardianship order, including the court’s implicit finding it
continued to have no reason to know N.F. was an Indian child
and the Department had satisfied its duty of ICWA inquiry.
(See In re Isaiah W. (2016) 1 Cal.5th 1, 10 [parent could raise
ICWA error for first time from order terminating parental rights
made at section 366.26 hearing because order was “necessarily
premised on a current finding by the juvenile court that it had
no reason to know [the child] was an Indian child”]; In re
Josiah T., supra, 71 Cal.App.5th at p. 401 [juvenile court’s
finding that ICWA does not apply “ ‘ “implies that . . . social
workers and the court did not know or have a reason to know
the children were Indian children and that social workers had
fulfilled their duty of inquiry” ’ ”].) There is no record mother
ever appealed from the court’s January 14, 2021 legal
guardianship order, however. The time to do so expired many
months ago. (See § 395, subd. (a)(1); rules 5.585, 8.406(a)(1).)
10
Mother cannot now use her appeal from her
post-permanency section 388 petition to challenge the legal
guardianship order and findings made at the section 366.26
hearing—including the finding that ICWA did not apply. (In re
Daniel K. (1998) 61 Cal.App.4th 661, 667 [“ ‘An appeal from
the most recent order entered in a dependency matter may not
challenge prior orders for which the statutory time for filing
an appeal has passed.’ ”].) By failing to file a timely appeal
from the court’s legal guardianship order—entered at the time
the court terminated its dependency jurisdiction—mother has
forfeited her right to challenge the court’s implied ICWA finding
made as part of that order.
As for mother’s appeal from the court’s denial of her
section 388 petition on the ground the Department’s initial ICWA
inquiry was inadequate, mother has failed to demonstrate error.
When the juvenile court establishes a legal guardianship for
a dependent child, the court “may continue jurisdiction over the
child as a dependent child of the juvenile court or may terminate
its dependency jurisdiction and retain jurisdiction over the child
as a ward of the legal guardianship.” (§ 366.3, subd. (a)(3).)
Here, the juvenile court terminated its dependency jurisdiction
over N.F.—as required for his guardian to receive Kin-GAP
funding—and merely retained jurisdiction over the guardianship.
(§§ 11361 [recognizing relative Kin-GAP legal guardianship
is “the permanent plan” for the dependent child allowing for
dependency to be dismissed as “there is no need for continued
governmental intervention in the family life through ongoing,
scheduled court and social services supervision of the
placement”], 11386 [eligibility for Kin-GAP funding requires
dependency jurisdiction to have been terminated].)
11
Accordingly, as the juvenile court did not vacate its order
terminating its dependency jurisdiction over N.F.10 when it heard
mother’s section 388 petition—and a section 300 petition was
not being filed on N.F.’s behalf—the court’s and the Department’s
continuing duty of inquiry under section 224.2 was not
implicated. The situation is thus distinguishable from that in
Isaiah W. There, the parent failed to appeal from a dispositional
order that included the juvenile court’s finding that ICWA was
inapplicable. (In re Isaiah W., supra, 1 Cal.5th at p. 10.) Our
high court held that, although the parent could not challenge
that order through her appeal from the court’s order terminating
her parental rights, because the juvenile court “had a continuing
duty to inquire whether [the child] was an Indian child in all
dependency proceedings, including a proceeding to terminate
parental rights,” the parent could challenge “the juvenile
court’s finding of ICWA’s inapplicability underlying” the order
terminating parental rights. (Ibid.) Thus, the parent’s “inaction
in the face of the earlier order d[id] not preclude” the parent from
claiming in her current appeal that the court erred in finding
ICWA notice unnecessary. (Ibid.)
That reasoning does not apply to the court’s order denying
mother’s section 388 petition here for the simple reason that the
hearing was not a dependency proceeding as N.F. no longer was
a dependent of the juvenile court. Indeed, when the court denied
mother’s request for reunification services, it specifically stated,
10 A court that has dismissed its dependency jurisdiction
following the establishment of a legal guardianship may vacate
its order dismissing its dependency jurisdiction. (§ 366.3, subd.
(b)(1); In re Priscilla D., supra, 234 Cal.App.4th at p. 1216.)
12
“[T]he case remains closed through the Kin-GAP matter that
I have already closed last year.” (Italics added.) Unlike in
Isaiah W., therefore, there is no basis for us to infer the court
made a current no-ICWA finding when it denied mother’s
section 388 petition. Nor does the record indicate mother
asked the juvenile court to reopen the dependency case based
on new information relating to N.F.’s possible Indian status. (See
§ 224.2, subd. (i)(2) [juvenile court must reverse its finding ICWA
does not apply “if it subsequently receives information providing
reason to believe that the child is an Indian child and order
the social worker . . . to conduct further inquiry pursuant to
Section 224.3”].)
Moreover, as the Department asserts, ICWA did not apply
to the post-permanency hearing on mother’s section 388 petition
because it was not an Indian child custody proceeding. (§ 224.1,
subd. (d)(1) [defining “ ‘Indian child custody proceeding’ ” as
“a hearing during a juvenile court proceeding . . . that may
culminate in” foster care placement—including guardianship
placement—termination of parental rights, preadoptive
placement, or adoptive placement]; see also 25 U.S.C. § 1903(1).)
ICWA notice must “be provided for hearings that may culminate
in an order for foster care placement, termination of parental
rights, preadoptive placement, or adoptive placement.” (§ 224.3,
subd. (a).) The section 366.26 hearing at which the court selected
legal guardianship as N.F.’s permanent plan was an Indian child
custody proceeding; the post-permanency section 388 hearing
was not. None of the above outcomes was possible at that
hearing—mother was seeking to reunify with N.F. and for his
ultimate return to her care. (See In re A.T. (2021) 63 Cal.App.5th
267, 274 [ICWA not implicated in a proceeding when dependent
13
child is placed with a parent].) ICWA thus did not apply. (25
U.S.C. § 1911(c) [“In any State court proceeding for the foster
care placement of, or termination of parental rights to, an Indian
child, the Indian custodian of the child and the Indian child’s
tribe shall have a right to intervene at any point in the
proceeding.”].)
Accordingly, as mother has failed to show ICWA or related
state law applied to the hearing on her post-permanency section
388 petition, we find no error.
DISPOSITION
We affirm the juvenile court’s February 24, 2022 order
denying mother’s section 388 petition.
EGERTON, J.
I concur:
EDMON, P. J.
14
LAVIN, J., Concurring:
I concur in the judgment. I write separately to clarify that I
disagree with the harmless error analysis in In re Dezi C. (2022)
79 Cal.App.5th 769, review granted September 21, 2022,
S275578, and in the majority opinion in In re Ezequiel G. (2022)
81 Cal.App.5th 984.
LAVIN, J.
Filed 9/5/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re N.F., a Person Coming Under B318674
the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN AND 18CCJP03317B
FAMILY SERVICES,
ORDER CERTIFYING
Plaintiff and Respondent, FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
v.
Linda P.,
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter, filed on August 10, 2023,
was not certified for publication in the Official Reports. For good cause,
it now appears that the opinion should be published in the Official Reports.
There is no change in the judgment.
________________________________________________________________________
EGERTON, J. LAVIN, J., Acting P.J.