Filed 11/18/20 In re D.D. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re D.D. et al., Persons Coming Under B304210
the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. Nos. 19CCJP04973
FAMILY SERVICES, A, B)
Plaintiff and Respondent,
v.
I.N.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Sabina A. Helton, Judge. Conditionally affirmed and
remanded with directions.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and Stephen D. Watson, Deputy
County Counsel, for Plaintiff and Respondent.
I.N. (mother) appeals from jurisdictional and dispositional
orders of the juvenile court declaring her children, D. (born in
July 2014) and Z. (born in November 2016) juvenile court
dependents and removing them from her care. Mother contends
the Los Angeles County Department of Children and Family
Services (DCFS) did not comply with the inquiry and notice
requirements in the state statutes implementing the Indian
Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) We conclude
that DCFS’s ICWA inquiry was adequate as to father, but not as
to mother. We therefore conditionally affirm and remand with
directions.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Background
In August 2019, DCFS received a report that D.D. (father)
had fled with five-year-old D., mother had run through traffic
while holding two-year-old Z., and mother was on an involuntary
psychiatric hold pursuant to Welfare and Institutions Code1
section 5150. Both mother and father were alleged to have
significant untreated mental health issues. The children were
detained from mother and father and placed with the maternal
grandmother.
In August 2019, DCFS filed a juvenile dependency petition
pursuant to section 300, subdivisions (a), (b), and (j). The petition
alleged mother and father engaged in domestic violence in the
children’s presence (counts a-1, b-3, j-3); mother suffered mental
and emotional problems, including auditory and visual
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
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hallucinations, suicidal and homicidal ideation, bipolar disorder,
and post-traumatic stress disorder, for which she had failed to
seek treatment (counts b-1, j-1); and father suffered mental and
emotional problems, including bipolar disorder, for which he had
failed to seek treatment (counts b-2, j-2). On September 17, 2019,
DCFS filed an amended petition adding counts alleging that
mother physically abused D. by striking him with a belt and
brush (counts a-2, b-4, j-4), and that father physically abused D.
by striking his body, including his penis, with a belt and belt
buckle (counts a-3, b-5, j-5).
On October 1, 2019, the court sustained all allegations of
the amended petition and continued the disposition hearing to
allow DCFS to complete an ICWA investigation. On January 8,
2020, the court ordered the children removed from both parents,
ordered DCFS to provide mother with reunification services, and
denied father reunification services pursuant to section 361.5,
subdivision (b).
II.
Facts Relevant to ICWA
A. Mother
On August 7, 2019, mother submitted an ICWA-020 form,
which stated she may have Seminole Indian ancestry through her
father (the children’s maternal grandfather), Bruce N.
The jurisdiction/disposition report, dated October 1, 2019,
stated that the maternal grandparents denied that they were
registered members of any tribe.
B. Father
On August 7, 2019, father submitted an ICWA-020 form, on
which he checked a box indicating “I am or may be a member of,
or eligible for membership in, a federally recognized tribe.”
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Below, father wrote next to “Name of tribe(s)”: “Not sure—a tribe
from Oklahoma.”
At the detention hearing, father said his Indian ancestry
was on his father’s side, and his aunt and uncle would have more
information. The juvenile court directed DCFS to “look into that
and, if appropriate, to give I.C.W.A. notices.”
At the October 1, 2019 jurisdiction hearing, father’s counsel
provided the court and DCFS with the paternal great-uncle’s
name and phone number. The court directed DCFS to speak to
the paternal great-uncle and give ICWA notice if appropriate.
On October 17, 2019, DCFS mailed ICWA notices to the
Blackfeet Tribe of Montana, the Secretary of the Interior, and the
Bureau of Indian Affairs. The notices included the names and
birthdates (or partial birthdates) for father, the paternal
grandmother, and the paternal great-grandmother. A children’s
social worker (CSW) contacted the Blackfeet tribe several times
in November and December 2019, and the disposition hearing
was continued to December 4, and then to January 8, 2020,
pending a response from the tribe.
On January 2, 2020, DCFS provided the court with copies
of letters from the Blackfeet tribe’s ICWA coordinator. The
letters identified the two children by name and stated as follows:
“In researching the Blackfeet Tribal Enrollment records, I was
not able to find the above child[ren] . . . on the tribal rolls. [¶] As
of August 30, 1962, our blood quantum requirement for
enrollment is 1/4 Blackfeet blood. The above the children [are]
not eligible for enrollment, and the [children] [are] not domiciled
on the Blackfeet Indian reservation. [¶] . . . [¶] Therefore
[neither] above named child is . . . an ‘Indian Child’ as defined by
the Indian Child Welfare Act.”
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C. ICWA Finding
At the January 8, 2020 disposition hearing, father told the
court that the paternal great-uncle and paternal great-
grandmother were registered members of the Blackfeet tribe.
The court acknowledged the children’s Blackfeet ancestry, but
said that the Blackfeet tribe had determined the children were
not eligible for tribal membership. It therefore found there was
“no reason to know the children are Indian children within the
meaning of ICWA.”
Mother timely appealed from the jurisdictional and
dispositional findings and orders.
DISCUSSION
I.
ICWA
ICWA was enacted “ ‘to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture . . . .’ [Citation.]” (In
re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C.
§ 1902.) Under ICWA, 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); see also § 224.1, subd. (a) [adopting federal
definition of “Indian child”].) It is up to the tribe to decide
whether a child is an Indian child under ICWA. (Isaiah W., at
p. 15.)
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“[T]he burden of coming forward with information to
determine whether an Indian child may be involved . . . in a
dependency proceeding does not rest entirely—or even
primarily—on the child and his or her family.” (In re Michael V.
(2016) 3 Cal.App.5th 225, 233.) Rather, “[j]uvenile courts and
child protective agencies have ‘an affirmative and continuing
duty to inquire’ whether a dependent child is or may be an Indian
child.” (Ibid.; see also Isaiah W., supra, 1 Cal.5th at pp. 9–11;
§ 224.2, subd. (a).)
This affirmative duty to inquire is a two-step process.
First, if a child is removed from his or her parents and placed in
the custody of a county welfare department, the department has
a duty to “ask[ ] the child, parents, legal guardian, Indian
custodian, extended family members, others who have an interest
in the child, and the party reporting child abuse or neglect,
whether the child is, or may be, an Indian child . . . .” (§ 224.2,
subd. (b), italics added.) The court must make a similar inquiry
when the parents first appear in court: “[T]he court shall 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), italics added.) The court’s duty of initial
inquiry includes requiring each party to complete California
Judicial Council Form ICWA-020, Parental Notification of Indian
Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Second, if the court or social worker has “reason to believe
that an Indian child is involved in a proceeding,” the court or
social worker must “make further inquiry regarding the possible
Indian status of the child,” by, among other things, interviewing
the parents and extended family members, and contacting the
tribe that may reasonably be expected to have information about
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the child’s membership, citizenship status, or eligibility. (§ 224.2,
subd. (e), italics added; see 224.3, subd. (a)(5)(C).)
If, after the initial and further inquiries, there is reason to
know that an Indian child is involved, notice of the proceedings
must be provided to the parent, legal guardian, or Indian
custodian and the child’s tribe. (§ 224.2, subd. (f).) There is
reason to know a child is an Indian child if any one of six
statutory criteria is met—e.g., if the court is advised that the
child “is an Indian child,” the child’s or parent’s residence is on a
reservation, the child is or has been a ward of a tribal court, or
either parent or the child possess an identification card
indicating membership or citizenship in an Indian tribe.
(Id., subd. (d).)
An Indian child’s tribe has the right to intervene at any
point in an Indian child custody proceeding. (§ 224.4.) A
determination by an Indian tribe “that a child is or is not a
member of, or eligible for membership in, that tribe . . . shall be
conclusive.” (§ 224.2, subd. (h).)
II.
DCFS Satisfied Its Duty of Inquiry Under ICWA
as to Father, But Not as to Mother
Mother contends the juvenile court erred in finding that
ICWA did not apply. Specifically, she contends: (1) DCFS did not
conduct an adequate inquiry into father’s possible Indian
ancestry; (2) DCFS did not conduct an adequate inquiry into
mother’s possible Indian ancestry; and (3) DCFS provided
inadequate ICWA notice to the Blackfeet tribe.
On appeal, we review the juvenile court’s ICWA findings
for substantial evidence. (In re D.S. (2020) 46 Cal.App.5th 1041,
1051; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; see
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§ 224.2, subd. (i)(2) [ICWA findings “subject to reversal based on
sufficiency of the evidence”].) But where the facts are
undisputed, we independently determine whether ICWA’s
requirements have been satisfied. (In re D.S., at p. 1051.)
A. DCFS Complied with its Duty to Inquire into Father’s
Possible Indian Ancestry
Mother contends DCFS did not conduct an adequate
inquiry into father’s possible Indian ancestry because it did not
interview paternal grandmother Z.S. or paternal great-uncle
Tommy. She says: “[F]ather and Tommy told the court and
county counsel at the hearing that Tommy was a registered
member of the Blackfeet tribe, along with his mother, who would
have been the minor’s [paternal] great-grandmother.”
Nonetheless, “it does not appear the Department ever
interviewed paternal great-uncle Tommy.” “Likewise, the
paternal grandmother, Z.S., who is registered-member Tommy’s
sister, was also not interviewed.”
Mother is correct that DCFS appears not to have spoken to
paternal grandmother Z.S. about the children’s Indian ancestry,
but that failure does not constitute reversible error. The paternal
grandmother was under conservatorship and, according to an
earlier report, “is unable to relay any information.” DCFS was
required under ICWA to contact only those persons “that may
reasonably be expected to have information regarding the child’s
membership, citizenship status, or eligibility.” (§ 224.2,
subd. (e)(2)(C), italics added; see In re D.S., supra, 46 Cal.App.5th
at p. 1041, 1053.) Based on the paternal grandmother’s
conservatorship, DCFS reasonably could have concluded that she
could not have provided any information of value, and thus that
no further inquiry was needed. (See In re D.S., at p. 1053 [“The
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Agency is not required to ‘cast about’ for information or pursue
unproductive investigative leads.”].)
Mother also is correct that none of the reports in the
appellate record say that DCFS spoke to paternal great-uncle
Tommy. However, two weeks after father provided DCFS with
Tommy’s name and phone number, DCFS sent ICWA notices to
the Blackfeet Tribe of Montana. Because father had not been
able to identify the tribe from which his family was descended,
we infer that DCFS must have spoken to great-uncle Tommy,
who was the only known source of the information included in the
ICWA notices.
The present case thus is distinguishable from In re N.G.
(2018) 27 Cal.App.5th 474, on which mother relies. In In re N.G.,
the appellate court held the social services department had not
made an adequate ICWA inquiry because, among other things, it
had failed to contact paternal cousins who the paternal
grandfather had said were registered members of the Cherokee
tribe. (Id. at p. 482.) In the present case, in contrast, DCFS did
not fail to speak to the family member most knowledgeable about
the child’s Indian ancestry; to the contrary, as we have said, it
appears DCFS spoke to paternal uncle Tommy and provided the
information obtained from him to the Blackfeet tribe.
Finally, we conclude that the omission of some biographical
information from the ICWA notices was not reversible error
because ICWA notice was not required. As indicated above,
notice to the tribe and/or Indian custodian is required by ICWA
only if there is “reason to know . . . that the child is an Indian
child” in dependency proceedings. (§ 224.2, subd. (f).) In the
present case, there was not “reason to know” the children were
Indian children: To the contrary, the Blackfeet tribe had advised
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DCFS in writing in December 2019, after several telephone
conversations with the CSW, that the children were “not . . .
listed . . . on the tribal rolls” and “[were] not eligible for
enrollment” in the Blackfeet tribe under the tribe’s “blood
quantum requirement for enrollment,” i.e., “1/4 Blackfeet blood.”
Because ICWA notice therefore was not required, the omission of
some biographical information from the notices was not
reversible error.
B. The Matter Is Remanded to Allow DCFS to Conduct
an Adequate Initial Inquiry into Mother’s Possible
Indian Ancestry
Mother contends DCFS did not conduct an adequate
inquiry into her possible Indian ancestry. She notes that
although she reported that she had Seminole ancestry, DCFS did
not adequately explore with the maternal grandparents mother’s
possible link to a Seminole tribe. We agree.
The jurisdiction/disposition report states that the maternal
grandparents denied that they were registered members of any
Indian tribe. However, the duty of inquiry under ICWA is not
whether a child’s ancestors are registered members of a tribe, but
rather “whether the child is, or may be, an Indian child . . . .”
(§ 224.2, subd. (b), italics added.) Because we cannot determine
from the record whether DCFS made the broader inquiry
required by statute, the case must be remanded.
On remand, the court shall direct DCFS to conduct such
inquiry, including interviewing the maternal grandparents about
the children’s Indian ancestry, and file documentation of its
efforts. Based on the information obtained by such inquiry, the
court shall determine whether further inquiry and/or notice is
required. If notice is required and a tribe responds that the
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children are Indian children, then the jurisdictional and
dispositional orders shall be vacated, and further proceedings
conducted under ICWA.
DISPOSITION
The jurisdictional and dispositional orders are conditionally
affirmed. The matter is remanded to the juvenile court with
directions to DCFS to comply with ICWA in accordance with the
views expressed in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
DHANIDINA, J.
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