Filed 6/17/21 Certified for Publication 7/9/21 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re CHARLES W., JR., et al.,
Persons Coming Under the Juvenile
Court Law.
D078574
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J519864A-C)
Plaintiff and Respondent,
v.
CHARLES W., SR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Affirmed.
Law Office of Marissa Coffey, LLC, and Marissa Coffey, under
appointment by the Court of Appeal, for Defendant and Appellant.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
Charles W. Sr. (Father) appeals from a jurisdictional/dispositional
hearing regarding his children Charles W. Jr. (Jr.), S.W., and R.W. Father
challenges the juvenile court’s finding that the Indian Child Welfare Act
(ICWA) does not apply, claiming there was insufficient inquiry of the
mother’s ancestry. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prior Dependency Case
The children’s parents have a history of substance abuse. In 2018, then
one-year-old Jr. and infant S.W. became juvenile dependents (Welf. & Inst.
Code, § 300, subd. (b))1 after law enforcement discovered drugs and drug
paraphernalia accessible to the children in the family’s vehicle. The parents
admitted their use of methamphetamine. In January 2019, the juvenile court
found ICWA did not apply in the proceeding. In July 2020,2 after completing
her reunification services, the children’s mother (Mother) was granted sole
custody of Jr. and S.W. Father did not complete his reunification services.
The dependency case was closed.
Current Dependency Case
Several months later in late September, R.W. was born to Mother and
Father. Baby R.W. is a full sibling to Jr. and S.W.
On December 2, police officers responded to the hotel room where the
family was living and seized a large quantity of illicit drugs, which were
accessible to the three young children. Both parents were arrested on drug-
1 Further unspecified statutory references are to the Welfare and
Institutions Code.
2 Further unspecified date references are to 2020.
2
related charges, and they admitted to using drugs. Mother told the assigned
social worker she had Yaqui and Aztec heritage but she “already went
through the Court process,” and the court had found ICWA did not apply.
On December 4, the Agency filed dependency petitions (§ 300, subd. (b))
on behalf of all three children. The Agency submitted a completed form
ICWA-010(A), indicating Mother’s report of “Yaqui and Aztec Native
American heritage” and Father’s denial of Indian heritage. The Agency also
filled out a “field worksheet for updating client demographics,” seemingly
used to collect or record basic demographic information. On this worksheet,
as to ICWA applicability (“ICWA?”), the Agency marked “No” for the two
older children and made no marking for R.W. Further, for each child, a tribal
affiliation of “Sioux” is denoted.
Along with a host of other relevant information, the Agency’s detention
report includes Mother’s comment regarding the court’s prior ICWA process
and a note that “on January 22, 2019, the [c]ourt found that ICWA did not
apply on behalf of children [Jr.] and [S.W.].”
At the December 8 detention hearing, Mother and the children’s
whereabouts were unknown. Father was in custody and represented at the
hearing by counsel, who waived Father’s presence. The court issued a “pick-
up and detain order” as to Mother and the children. In addition, the court
deferred making an ICWA finding based on Mother’s report of Native
American ancestry. The court remarked that it had conducted a search in
the federal register and Aztec was not a federally recognized Indian tribe for
ICWA purposes, but the Yaqui tribe was federally recognized. Accordingly,
the court directed the Agency to investigate and make further inquiry on the
matter and ordered the parents to complete the “Parental Notification of
Indian Status” form.
3
Around December 22, Mother and the children were located, and the
Agency requested a special hearing for appointment of Mother’s and minors’
counsel.
ICWA Finding
The special hearing was held on December 28, and all parties attended
the hearing remotely due to COVID-19 protocols. Mother was present
throughout the hearing, telephonically. The court confirmed the appointment
of counsel (Thomas Kisiel) for her. In addition, there was a discussion about
ICWA applicability.
At the outset, Mother’s counsel informed the court, “An ICWA-020 form
for these children was previously filed with the court. There are no changes
on behalf of the mother now, and she indicates she has no Native American
ancestry.”
A minute later, minors’ counsel commented, “The only thing I have in
my notes from the December 8th hearing is that it was put on the record that
mom claimed Yaqui and Aztec Native [American ancestry]. I just want to
make sure that is addressed.” Mother’s counsel responded, “I spoke to my
client this morning. She has no Native American ancestry. She does have
some ancestry through central Mexico.” Minors’ counsel replied, “Thank
you.”
Moments later, the Agency’s counsel asked for an ICWA finding, “given
Mother’s not claiming Native American ancestry.” There were no objections.
Throughout the hearing, Mother did not contest counsel’s representations
regarding her heritage. The court went on to “reconfirm ICWA does not
apply at this time based on the information provided to the court and the
reaffirmation of no Native American ancestry as stated and will be provided
on the 020 form by Mother’s counsel, Mr. Kisiel.”
4
Jurisdiction and Disposition
The Agency’s subsequently filed jurisdiction and disposition report
states that on “12/28/2020, the Court found that ICWA did not apply on
behalf of the children[.]” The record contains no further discussion of ICWA.
Following a contested jurisdiction/disposition hearing in which the Agency’s
reports were received in evidence without objections, the court assumed
dependency jurisdiction over the children and removed them from parental
custody. The court’s written dispositional order indicates a finding “without
prejudice that the [ICWA] does not apply to this proceeding.”
Father’s appeal followed.
DISCUSSION
Father contends the juvenile court and the Agency did not make a
sufficient inquiry into the children’s possible Indian ancestry through Mother
before the court found ICWA does not apply.3 We disagree.
“Congress enacted ICWA in 1978 in response to ‘rising concern in the
mid-1970’s over the consequences to Indian children, Indian families, and
Indian tribes of abusive child welfare practices that resulted in the
separation of large numbers of Indian children from their families and tribes
through adoption or foster care placement, usually in non-Indian homes.’ ”
(In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) ICWA established
minimum standards that courts are required to follow in involuntary
proceedings to place a child in foster care or to terminate parental rights to
ensure Indian tribes receive notice “where the court knows or has reason to
know that an Indian child is involved.” (25 U.S.C. § 1912(a); Isaiah W.,
supra, at p. 8.)
3 Father’s standing to raise an ICWA challenge is undisputed.
5
ICWA defines an “Indian child” as “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 § 224.1, subd. (a).) The trial court
and Agency have an affirmative and continuing duty in every dependency
proceeding to determine whether ICWA applies. (§ 224.2, subd. (a); Cal.
Rules of Court, rule 5.481(a)4; Isaiah W., supra, 1 Cal.5th at pp. 10-11.) In
cases “where the court knows or has reason to know that an Indian child is
involved,” ICWA requires the Agency, or other party seeking adoption or
foster care placement, to notify “the Indian child’s tribe, by registered mail
with return receipt requested, of the pending proceedings and of their right of
intervention.” (25 U.S.C. § 1912(a); Isaiah W., supra, at p. 5.)
Following changes to the federal regulations concerning ICWA
compliance, California made conforming amendments to its statutory scheme
regarding ICWA, effective in 2019. (In re D.S. (2020) 46 Cal.App.5th 1041,
1048 (D.S.).) In D.S., the court explained that the resulting clarification of
law, found in part in section 224.2, “creates three distinct duties regarding
ICWA in dependency proceedings. First, from the Agency’s initial contact
with a minor and his family, the statute imposes a duty of inquiry to ask all
involved persons whether the child may be an Indian child. (§ 224.2, subds.
(a), (b).) Second, if that 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.’ (Id., subd. (e), italics added.) Third, if 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. [Citations.]” (D.S., supra, at p. 1052.)
4 Further rule references are to the California rules of court.
6
At the first step, “[s]ection 224.2, subdivision (b) specifies that once a
child is placed into the temporary custody of a county welfare department,
such as the Agency, the duty to inquire ‘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.’ ”
(D.S., supra, 46 Cal.App.5th at pp. 1048-1049.)
There is a “reason to believe” a child is an Indian child whenever the
court or social worker 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.” (§ 224.2, subd. (e)(1); see also § 224.2, subd. (d)(1)-(6); In re
T.G. (2020) 58 Cal.App.5th 275, 290 [further inquiry required when there is a
“reason to believe” child is Indian].)
We review a juvenile court’s ICWA findings for substantial evidence.
(D.S., supra, 46 Cal.App.5th at p. 1051; In re Hunter W. (2011) 200
Cal.App.4th 1454, 1467.)
In this case, we conclude the juvenile court and the Agency made an
adequate inquiry under ICWA. The inquiry yielded no reason to believe the
children were members of or eligible for membership in an Indian tribe. In
its initial investigation and report, the Agency learned that in January 2019,
the juvenile court found ICWA did not apply to the two older children. This
prior finding is undisputed and unchallenged. Baby R.W. is a full sibling of
the two older children, i.e., all three children share the same ancestry. If
ICWA did not apply to the two older children, then it would not apply to the
baby. Nevertheless, because there was an outstanding claim of Mother’s
potential Indian ancestry at the detention hearing, the juvenile court
deferred making an ICWA finding and ordered further investigation.
7
At the next hearing on December 28, in Mother’s presence, her counsel
denied Mother had Native American ancestry. Counsel was aware of the
court’s prior finding and represented that Mother had no changes and no
Native American ancestry. Even after minors’ counsel raised the issue of
Mother’s claim to Yaqui and Aztec ancestry, counsel reiterated he had spoken
to his client that very morning and Mother “has no Native American
ancestry.” Minors’ counsel, serving as guardian ad litem for the children, was
satisfied with this inquiry. Father has consistently denied Indian heritage.
Thus, the court had no reason to believe the children were Indian.
In contesting the juvenile court’s finding, Father argues that Mr.
Kisiel’s statements were made in Mother’s absence. Father is mistaken, as
he concedes in his reply brief. Indeed, Mother was present throughout the
December 28th hearing, and she was in apparent agreement with her
counsel’s representation of “no Native American ancestry.” Counsel is an
officer of the court and a practitioner in juvenile dependency matters; there is
no reason to believe he misreported Mother’s ancestry or misunderstood the
implications of his report. Furthermore, the court reasonably relied on a
prior finding involving the same family. Substantial evidence supports the
finding that ICWA does not apply.
Father points out that the Agency’s initial field worksheet denotes a
Sioux tribal affiliation. He acknowledges there is “no explanation” in the
appellate record about the denotation. Father fails to establish the source of
the information, or, that it was even a credible report. On our review for
substantial evidence, we look for reasonable, credible, solid evidence that
supports the trial court’s order, whether contradicted or uncontradicted, and
resolve all conflicts in favor of affirmance. (In re D.F. (2020) 55 Cal.App.5th
558, 565.) Here, the social worker interviewed the parents and relatives, and
8
no one mentioned a Sioux affiliation. Given Mother’s (and Father’s) denial of
Native American ancestry, which postdated the field worksheet, the Sioux
denotation was too “vague, attenuated and speculative to give the
dependency court any reason to believe the children might be Indian
children.” (In re J.D. (2010) 189 Cal.App.4th 118, 125.)
Father argues on reply that the juvenile court was under a duty to
directly interview Mother about her ancestry. In the face of counsel’s
unequivocal denial, twice, of Mother’s Indian heritage in her presence, we are
hard pressed to find that the court was required to disregard counsel’s
representations and directly question Mother. This is especially true in light
of a prior court finding that ICWA did not apply. The court reasonably
inquired of Mother’s counsel, who disclaimed his client’s Indian heritage. (In
re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1521 [no reason to believe
children were Indian where, at jurisdictional/dispositional hearing and upon
inquiry from the court, “father’s counsel clarified that although father had
initially claimed he might have Indian ancestry, he had retracted that claim
and did not have any Indian heritage”].)
The record does not contain Mother’s completed Parental Notification
of Indian Status form (ICWA-020) despite the court’s order to submit one,
possibly due to pandemic-related hardships and/or virtually conducted
hearings. The form should be completed. (Rule 5.481(a).) As Father argues,
the trial court and the Agency have a continuing duty to determine whether
ICWA applies and must revisit a prior determination that ICWA does not
apply “if it subsequently receives information that provides reason to know
the child is an Indian child.” (§ 224.2, subd. (c); Rule 5.481(a); Isaiah W.,
supra, 1 Cal.5th at pp. 10-11.) However, if there are no changes in Mother’s
information, the “Agency is not required to ‘cast about’ for information or
9
pursue unproductive investigative leads.” (D.S., supra, 46 Cal.App.5th at p.
1053.)
In sum, the juvenile court and the Agency made an adequate inquiry
into the children’s possible Indian ancestry, relying on a prior court finding
that ICWA did not apply and the parents’ representations that they had no
change in information and no Native American ancestry. We perceive no
error by the juvenile court in fulfilling its duty of inquiry or in finding that
ICWA does not apply.
Even if the court’s or the Agency’s inquiry was inadequate, we find any
error harmless. Father does not assert on appeal that Mother or a relative
has any new or pertinent information regarding Indian ancestry. To the
contrary, given the prior ICWA finding regarding this family and the parents’
unequivocal denials of Indian ancestry, we do not find it reasonably probable
that further inquiry based on the record before us would yield a different
result. Thus, Father fails to demonstrate a miscarriage of justice requiring
remand. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431.)
DISPOSITION
The court’s findings and orders are affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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Filed 7/9/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re CHARLES W., JR., et al., Persons
Coming Under the Juvenile Court Law.
D078574
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J519864A-C)
Plaintiff and Respondent,
v. ORDER CERTIFYING OPINION
FOR PUBLICATION
CHARLES W., SR.,
Defendant and Appellant.
THE COURT:
The opinion in this case filed June 17, 2021, was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of
Court, rule 8.1105(c), the request pursuant to rule 8.1102(a) for publication is
GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
McCONNELL, P. J.
Copies to: All parties
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