Filed 3/1/21 In re R.M. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
In re R.M., a person Coming B308812
Under the Juvenile Court Law. (Los Angeles County Super.
Ct. No. 19LJJP00474B)
NICOLE L.,
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDING. Petition for extraordinary
writ. (Cal. Rules of Court, rule 8.456.) Michael Kelley, Judge.
Petition denied.
Los Angeles Dependency Lawyers, Law Office of Amy
Einstein, Dominika Campbell, and Kelsey Moon for Petitioner.
No appearance for Respondent.
Office of the County Counsel, Rodrigo Castro-Silva, County
Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly
Roura, Senior Deputy County Counsel for Real Party in Interest.
******
A mother petitions for extraordinary relief pursuant to
California Rules of Court, rule 8.452. Specifically, she seeks
review of the juvenile court’s order setting a permanency
planning hearing under Welfare and Institutions Code section
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366.26 and the juvenile court’s finding implied in that order that
the Indian Child Welfare Act (id. at § 224 et seq.; 25 U.S.C.
§ 1901 et seq.) (ICWA) does not apply. Because substantial
evidence supports the court’s finding, we deny the petition and
dissolve the stay of the permanency planning hearing.
FACTS AND PROCEDURAL HISTORY
Renesmee M. is the daughter of Nicole L. (mother). She
was born in July 2020. Mother has a history of using
methamphetamines and amphetamines, including during her
pregnancy with Renesmee as indicated by positive tests for those
substances a few days before Renesmee was born and on the day
she was born.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
On August 4, 2020, the Los Angeles County Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to exert dependency jurisdiction over
Renesmee on two grounds: (1) mother’s “history of substance
abuse” and “current abuse[]” of amphetamine and
methamphetamine “renders [mother] incapable of providing
regular care for the child” and “places [Renesmee] at risk of
serious physical harm . . .” (thereby rendering jurisdiction
appropriate under section 300, subdivision (b)); and (2) mother’s
other child (and Renesmee’s sibling) “is a current dependent of
the Juvenile Court due to . . . mother’s substance abuse” (thereby
rendering jurisdiction appropriate under section 300, subdivision
(j)).2
During an interview with the Department on July 31, 2020,
and at the detention hearing before the juvenile court on August
7, 2020, mother indicated that she has no known Native
American heritage. She also turned in a blank Parental
Notification of Indian Status form and the Department reported
that ICWA was found inapplicable in the case of Renesmee’s
sibling. The juvenile court determined at the detention hearing
that it has no “reason to know that ICWA applies as to
[m]other.”3
2 The Department also alleged that dependency jurisdiction
was warranted because Renesmee’s alleged father, Kenneth M.
(father), knew or reasonably should have known of mother’s
substance abuse and failed to protect Renesmee.
3 As for father, he indicated on his Parental Notification of
Indian Status form that he may have Native American heritage
because his paternal grandmother (that is, Renesmee’s paternal
great-grandmother) is or was a member of the Cherokee and
3
The next month, mother informed the Department that she
believes she has Native American heritage. She did not know
which tribe she may be affiliated with and the two family
members who she believed may have more information—namely,
her maternal grandmother and great-grandmother (that is,
Renesmee’s maternal great-grandmother and great-great-
grandmother)—are both deceased. The Department requested
that the juvenile court make an order as to whether notices under
ICWA would be appropriate as to mother’s heritage.
The juvenile court did not make any further express ICWA
findings. On October 27, 2020, the court sustained amended
allegations of jurisdiction, and on November 4, 2020, the court
bypassed reunification services for mother because reunification
services were terminated in the case of Renesmee’s sibling
(§ 361.5, subd. (b)(10)) and set a hearing for February 10, 2021, to
select a permanent plan for Renesmee (§ 366.26).
Blackfoot or Blackfeet tribes. The juvenile court ordered the
Department to investigate father’s claim. The Department
followed up with father, but he had not spoken to his
grandmother and then he failed to return the Department’s call.
Father’s claim does not affect our analysis of mother’s petition
because (1) as an alleged father of Renesmee, ICWA’s special
protections are not triggered (25 U.S.C. § 1903(9) [requiring
biological parentage]; In re E.G. (2009) 170 Cal.App.4th 1530,
1533 [“an alleged father’s claims of Indian heritage” do not
trigger ICWA’s protections because “absent a biological
connection, [a] child cannot claim Indian heritage through [such
a] father”]); (2) if he was determined Renesmee’s biological father,
the juvenile court previously found, after inquiry and tribal
notification, that ICWA was inapplicable in the case of father’s
other child (that is, Renesmee’s sibling); and (3) mother does not
challenge any ICWA findings as to father.
4
Mother filed this timely petition from the order setting the
permanency planning hearing, and we issued a stay of that
hearing pending disposition of mother’s petition.
DISCUSSION
Mother’s sole challenge to the order setting the permanency
planning hearing is that the Department and juvenile court
violated ICWA. We review a court’s ICWA findings for
substantial evidence. (In re Austin J. (2020) 47 Cal.App.5th 870,
885 (Austin J.); In re Hunter W. (2011) 200 Cal.App.4th 1454,
1467 (Hunter W.).)
ICWA was enacted to curtail “the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement.” (Miss. Band of
Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) Under the
ICWA and California statutes our Legislature enacted to
implement it (§§ 224-224.6), as recently amended, a juvenile
court—and, as its delegate, the Department—have duties all
aimed at assessing whether a child in a pending dependency case
is an “Indian child” entitled to the special protections of ICWA.
(§§ 224.2, 224.3; Stats. 2018, ch. 833 (Assem. Bill No. 3176); In re
A.M. (2020) 47 Cal.App.5th 303, 320 [applying ICWA law in effect
at time of order appealed from].) For these purposes, an ‘“Indian
child”’ is a child who (1) is “a member of an Indian tribe,” or (2)
“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), italics
added; § 224.1, subd. (a) [adopting federal law definition].) By its
terms, this definition turns “‘on the child’s political affiliation
with a federally recognized Indian Tribe,’” not “necessarily” “the
child’s race, ancestry or ‘blood quantum.’” (Austin J., supra, 47
5
Cal.App.5th at p. 882, quoting 81 Fed. Reg. 38801-38802 (June
14, 2016).)
Under ICWA as amended, the Department and juvenile
court have “three distinct duties.” (In re D.S. (2020) 46
Cal.App.5th 1041, 1052 (D.S.) [noting amendment’s creation of
three duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-884
[same].) The first duty is the initial “duty” of the Department
and the juvenile court “to inquire whether [a] child is an Indian
child.” (§ 224.2, subds. (a) & (b).) The Department discharges
this duty chiefly by “asking” family members “whether the child
is, or may be, an Indian child.” (Id., subd. (b).) For its part, the
juvenile court is required, “[a]t the first appearance” in a
dependency case, to “ask each participant” “present” “whether the
participant knows or has reason to know the child is an Indian
child.” (Id., subd. (c).) The second duty is the duty of the
Department or the juvenile court to “make further inquiry
regarding the possible Indian status of the child.” (Id., subd. (e).)
This duty is triggered if the Department or court “has reason to
believe that an Indian child is involved” (ibid), and, once
triggered, obligates the Department to conduct further interviews
to gather information, to contact the Bureau of Indian Affairs and
state Department of Social Services for assistance, and/or to
contact relevant Indian tribe(s). (Id., subd. (e)(2).) The third
duty is the duty to notify the relevant Indian tribe(s). (§ 224.3,
subd. (a); 25 U.S.C. § 1912(a).) This duty is triggered if the
Department or the court “knows or has reason to know . . . that
an Indian child is involved.” (§ 224.3, subd. (a).) The
Department or juvenile court has “reason to know a child
involved in a proceeding is an Indian child” in one of six
statutorily defined circumstances—namely, when (1) “[a] person
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having an interest in the child . . . informs the court that the
child is an Indian child” (§ 224.2, subd. (d)(1)), (2) “[a]ny
participant in the proceeding . . . informs the court that it has
discovered information indicating that the child is an Indian
child” (id., subd. (d)(3)), (3) “[t]he child . . . gives the court reason
to know that the child is an Indian child” (id., subd. (d)(4)), (4)
the child or the parents reside, or are domiciled, “on a reservation
or in an Alaskan Native village” (id., subd. (d)(2)), (5) “the child is
or has been a ward of a tribal court” (id., subd. (d)(5)), or (6)
“either parent or the child possess an identification card
indicating membership or citizenship in an Indian tribe” (id.,
subd. (d)(6)).4
Mother is effectively arguing that the Department and
juvenile court did not properly discharge the second and third
ICWA duties—that is, the duty to conduct further inquiry and
the duty to notify the Indian tribes. By statute, however, those
duties apply only if there is a “reason to believe” (as to the duty of
further inquiry) or a “reason to know” (as to the duty to notify)
that the child at issue is an Indian child. (§§ 224.2, subd. (e),
224.3, subd. (a).) We conclude that substantial evidence supports
4 In amendments which post-date the express ICWA finding
made by the juvenile court at the detention hearing in this case,
our Legislature clarified that the Department or juvenile court
“has reason to believe that an Indian child is involved” for
purposes of the duty of further inquiry if the Department or court
“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,” including information “indicat[ing]” but not
“establish[ing]” the existence of any of the above-enumerated six
circumstances. (§ 224.2, subd. (e)(1); Stats. 2020, ch. 104, § 15,
eff. Sept. 18, 2020.)
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a finding that there is no reason to believe or reason to know that
Renesmee is an Indian child, and we do so for two reasons.
First, when the juvenile court made an express finding at
the detention hearing that ICWA did not apply, mother had
informed the Department and the court that Renesmee was not
an Indian child. What is more, it was previously determined that
Renesmee’s full sibling was not an Indian child. Based on this
information, the Department and the court had no “reason to
believe an Indian child was involved” and, therefore, the duty of
further inquiry and, by extension, the duty to notify were not
triggered.
Second, mother’s later representation to the Department
that she may have Native American heritage did not trigger any
duty of further inquiry or duty to notify. To be sure, these are
“continuing” duties and, though silent on the issue of ICWA’s
applicability, the juvenile court’s order setting a permanency
planning hearing necessarily subsumed its earlier express
determination that ICWA does not apply. (§ 224.2, subd. (a); In
re Isaiah W. (2016) 1 Cal.5th 1, 15; see also In re Asia L. (2003)
107 Cal.App.4th 498, 506 [express ICWA finding not required]; In
re Levi U. (2000) 78 Cal.App.4th 191, 199 (Levi U.) [same],
superseded on other ground by statute as stated in In re B.E.
(2020) 46 Cal.App.5th 932, 940.)
However, the information mother provided to the
Department did not trigger those continuing duties for two
reasons.
To begin, mother’s statement that she may have Native
American “ancestry” or “heritage” was insufficient by itself to
trigger further investigation. “Indian ancestry, without more,
does not provide a reason to believe”—and thus does not provide
8
a ‘“reason to know”’—“that a child is a member of a tribe or is the
biological child of a member.” (Austin J., supra, 47 Cal.App.5th
at pp. 888-889; but see In re T.G. (2020) 58 Cal.App.5th 275, 294
(In re T.G.) [bare statement of Indian ancestry can sometimes
trigger a duty to inquire further].) Here, there was nothing more.
Further, even if mother’s claim of possible Indian heritage
did trigger a duty to investigate, the Department discharged that
duty. ICWA does not obligate the Department or court “to cast
about” for investigate leads. (Levi U., supra, 78 Cal.App.4th at p.
199.) As a result, the Department and the court satisfied their
duties here where mother “fail[ed] to provide any information
requiring followup” (In re S.B. (2005) 130 Cal.App.4th 1148,
1161; In re C.Y. (2012) 208 Cal.App.4th 34, 42) and the only
persons mother identified as having additional information were
deceased (In re J.D. (2010) 189 Cal.App.4th 118, 123). (See also
Hunter W., supra, 200 Cal.App.4th at p. 1468 [parent’s inability
to identify tribe and failure to provide contact information to
substantiate unsupported belief insufficient to trigger ICWA duty
of further inquiry; family lore alone insufficient].) Only when
there is a viable lead does the Department have “the obligation to
make a meaningful effort to locate and interview extended family
members to obtain whatever information they may have as to the
child’s possible Indian status.” (In re K.R. (2018) 20 Cal.App.5th
701, 709; cf. In re T.G., supra, 58 Cal.App.5th at p. 292 [mother’s
identification of specific tribe on ICWA form and at detention
hearing “unquestionably provided reason to believe Indian
children might be involved”].) There was no viable lead in this
case and, therefore, the Department’s duty to conduct further
inquiry and to notify were not triggered. (See D.S., supra, 46
Cal.App.5th at p. 1050 [“The juvenile court may . . . make a
9
finding that ICWA does not apply because the agency’s further
inquiry and due diligence was ‘proper and adequate’ but no
‘reason to know’ whether the child is an Indian child was
discovered”].)
DISPOSITION
Mother’s petition for extraordinary relief is denied. This
opinion shall become final immediately upon filing. (Cal. Rules of
Court, rule 8.490(b)(2)(A).) The stay of the February 10, 2021
hearing set pursuant to section 366.26 is hereby dissolved.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
HOFFSTADT
We concur:
_____________________, Acting P.J.
ASHMANN-GERST
_____________________, J.
CHAVEZ
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