Filed 11/8/21 In re R.M. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE
In re R.M., Person Coming Under B311063
Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 19CCJP02882A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael Abzug, Judge. Affirmed.
Annie Greenleaf, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
INTRODUCTION
Mother appeals from the juvenile court’s termination of her
parental rights to her son, R.M. She argues the court and the
Department of Children and Family Services (DCFS) failed to
satisfy their duty of further inquiry into R.M.’s maternal lineage
under the Indian Child Welfare Act (ICWA). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prior Dependency History
R.M. is mother’s fifth child. Mother lost custody of her first
four children due to drug abuse. Most recently, mother’s fourth
child, M.G. was the subject of dependency proceedings in San
Bernardino County juvenile court (case No. 0000272967.)1 In
that case, mother claimed Blackfeet, Choctaw, Cherokee,
Chickasaw, and Chippewa ancestry. On March 12, 2019, after
DCFS noticed those tribes, the San Bernardino court made a
finding that ICWA did not apply. The actual ICWA notices filed
in San Bernardino were not made part of the record in the
present dependency proceedings. On July 28, 2019, the San
Bernardino court terminated mother’s parental rights to M.G.,
and he was freed for adoption.
2. Juvenile Court Proceedings as to R.M.
In May 2019, a few days after his birth, DCFS detained
R.M. On May 9, 2019, mother appeared with counsel at the
detention hearing and claimed she had Native American
ancestry, specifically Chippewa and Choctaw heritage from her
father’s side of the family. On her ICWA-020 form, she again
identified possible Chippewa and Choctaw heritage. The juvenile
court ordered DCFS to investigate the ICWA claims. Based on
mother’s representations of her lineage, ICWA notices were sent
1 M.G. is a half-sibling to R.M., the child in the present
dependency case. They have the same mother.
2
out on May 24, 2019 to Secretary of the Interior, Choctaw Nation
of Oklahoma, the Choctaw ICWA representative, and the
Mississippi Band of Choctaw Indians.2 These notices did not
contain information about the maternal grandfather, a point we
discuss later.
Around this time, the social worker from mother’s San
Bernardino case told DCFS that mother had claimed Native
American heritage in those dependency proceedings, but
maternal family members refuted mother’s heritage claim, and
no tribe recognized the family.
In late June 2019, mother told DCFS she may have
Choctaw, Chickasaw, or Chippewa Indian heritage through the
maternal grandfather. Mother, however, refused to provide the
maternal grandfather’s contact information. She said he had a
harsh temper and would be upset if questioned by DCFS. Mother
was unable to explain how her family was affiliated with any
Indian tribe and denied that she, the maternal grandfather, or
other family members were registered with any tribe. She said
she would provide DCFS with more information. Mother
subsequently texted the social worker the names of family
members, but without information about their Indian heritage.
2 DCFS also sent notice to the Blackfeet tribe because
mother had asserted that R.M.’s alleged father had Native
American heritage. Following the July 2019 receipt of paternity
test results, the alleged father was found to be unrelated to R.M.,
and DCFS ceased its ICWA investigation into his lineage. Son’s
biological father was never ascertained, and mother makes no
argument on appeal as to biological father’s lineage. Our
discussion of ICWA inquiry and notice issues relates to mother’s
lineage.
3
On June 28, 2019, relying on Mother’s latest
representations, DCFS sent ICWA notices to 31 tribes.3 The
notices included R.M.’s name, birthdate, and location of birth;
Mother’s name, birthdate, and contact information; maternal
grandmother and grandfather’s names and birth dates; and the
maternal grandfather’s birthplace.
In July 2019, the maternal grandmother denied the
maternal grandfather was registered with any Indian tribe or
that he or mother had any Indian heritage.4 She stated: “That is
3 The tribes included: Choctaw Nation of Oklahoma, Jena
Band of Choctaw Indians, Mississippi Band of Choctaw Indians,
Bay Millis Indian Community, Sokaogon Chippewa Community
of Wisconsin, Boise Fort Reservation, Turtle Mountain Band of
Chippewa Indians, Fond du Lac Reservation, White Earth
Indians, Grand Portage Reservation, Chippewa Cree Tribe of the
Rocky Boy’s Reservation of Montana, Keweenaw Bay Indian
Community, Grand Traverse Band of Ottawa & Chippewa
Indians, Lac Courte Oreilles Band of Lake Superior Chippewa
Indians of Wisconsin, Hannahville Indian Community of
Michigan, Lac du Flambeau Band of Lake Superior Chippewa
Indians, Bad River Band of the Lake Superior Tribe of Chippewa
Indians, Lac Vieux Desert Band of Lake Superior Chippewa
Indians of Michigan, Leech Lake Band of Ojibwe, Red Cliff Band
of Lake Superior Chippewa, Mille Lacs Band of Ojibwe, Red Lake
Band of Chippewa Indians, Sault Ste. Marie Tribe of Chippewa
Indians of Michigan, St. Croix Chippewa Indians of Wisconsin,
Minnesota Chippewa Tribe, Saginaw Chippewa Tribe of
Michigan, Chickasaw Nation, Jena Band of Choctaw Indians,
Choctaw Nation of Oklahoma, Mississippi Band of Choctaw
Indians, and Mississippi Band of Choctaw ICWA representative.
4 We observe Mother mistakenly refers to the maternal
grandmother as the maternal great-grandmother in her briefing.
The record makes no mention of the great-grandmother at the
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something [mother] is trying to do to interrupt the Court process.
She tried to do it here with [her fourth child, M.G.].” The
maternal grandmother said she did not have the maternal
grandfather’s contact information and that he would not speak
with DCFS because “he does not want to get involved with any of
this.”
On July 10, 2019, at DCFS’s request, the juvenile court
continued the hearing to allow additional time for the tribes to
respond. On September 18, 2019, DCFS submitted proof that 11
tribes had responded that R.M. was not eligible for membership.
That same day, the juvenile court made a finding that ICWA did
not apply to this case.
By October 18, 2019, from the 31 total notices, DCFS had
received 25 letters stating that R.M. was ineligible for
membership or had signed copies of certified mail receipts from
the tribes.5 Six tribes had not yet responded. Based on this
information, the court confirmed its previous finding that ICWA
did not apply.6
From this point until termination of parental rights, DCFS
received no additional responses from the tribes or any
information that would give DCFS reason to believe that R.M.
was an Indian child.
pages cited by mother. Rather, it discusses statements from the
maternal grandmother.
5 The signed certified mail receipts appear to indicate that
the ICWA notices were actually delivered to the tribe.
6 Mother makes no argument as to the six tribes that did not
respond. The juvenile court impliedly found that R.M. was
neither a member of those tribes nor eligible for membership.
5
On October 18, 2019, the court assumed jurisdiction over
R.M. pursuant to Welfare and Institutions Code section 300,
subdivisions (b)(1) and (j) based on mother’s drug use and
domestic violence history.7 The court declared R.M. a dependent,
removed him from his parents, and ordered no reunification
services for mother or any alleged father. The court ordered that
Mother was to have monitored biweekly two-hour visits.
Due to COVID-19 emergency procedures and other issues,
the section 366.26 hearing was continued several times. On
February 22, 2021, the court held the section 366.26 hearing.
Mother was not present, but her counsel objected to termination
of mother’s parental rights. Counsel stated she had discussed the
matter with mother, and they determined that no exception to
the recommendation for adoption existed. The juvenile court
found that R.M. was adoptable and that mother had not
maintained regular visitation with him. It found no exception to
adoption and terminated parental rights. It designated R.M.’s
caregivers as the prospective adoptive parents and set the matter
for further review. Mother appealed.
DISCUSSION
Mother argues DCFS failed to satisfy its duty of inquiry
into R.M.’s maternal ancestry because it did not obtain the ICWA
notices in the San Bernardino case and did not contact the
maternal grandfather. We begin with applicable ICWA
principles.
1. ICWA Principles
The court and DCFS have “three distinct duties regarding
ICWA in dependency proceedings.” (In re D.S. (2020)
46 Cal.App.5th 1041, 1052 (D.S.).) These duties include “the
7 All further undesignated statutory references are to the
Welfare and Institutions Code.
6
initial duty to inquire, the duty of further inquiry, and the duty
to provide formal ICWA notice.” (In re D.F. (2020)
55 Cal.App.5th 558, 566 (D.F.).)
For the initial duty of inquiry, DCFS must “ask all involved
persons whether the child may be an Indian child. (§ 224.2,
subds. (a), (b).)” (D.S., supra, 46 Cal.App.5th at p. 1052.) “At the
first appearance in court of each party,” the juvenile court is
required 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).) 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.” (§ 224.2, subd. (c).)
When “the court, social worker, or probation officer has
reason to believe that an Indian child is involved in a
proceeding,” the court and DCFS have a duty of further inquiry.
(§ 224.2, subd. (e); see also D.S., supra, 46 Cal.App.5th at
p. 1052.)
“There is reason to believe a child involved in a proceeding
is an Indian child whenever the court, social worker, or probation
officer 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).) Further inquiry
requires “[i]nterviewing the parents, Indian custodian, and
extended family members to gather . . . information” (§ 224.2,
subd. (e)(2)(A)), including all “names known of the Indian child’s
biological parents, grandparents, and great-grandparents, or
Indian custodians, including maiden, married, and former names
or aliases, as well as their current and former addresses, birth
dates, places of birth and death, tribal enrollment information of
other direct lineal ancestors of the child, and any other
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identifying information, if known” (§ 224.3, subd. (a)(5)(C)).
(D.F., supra, 55 Cal.App.5th at pp. 566–567.)
The duty of formal notice to relevant Indian tribes is only
required “[i]f the court, a social worker, or probation officer
knows or has reason to know . . . that an Indian child is involved
. . . .” (§ 224.3, subd. (a); see also D.S., supra, 46 Cal.App.5th at
p. 1052.) Once notified, the tribe then decides whether the child
is an “Indian child,” i.e. a child who is “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. subd. (a) & 224.3, subd. (a)(3); see In re
Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.)
We review the juvenile court’s finding that ICWA does not
apply for substantial evidence. (In re S.R. (2021) 64 Cal.App.5th
303, 312.)
2. DCFS Satisfied its Further Inquiry Duty
Mother essentially argues that DCFS should have engaged
in further inquiry related to the San Bernardino ICWA notices
and should have contacted the maternal grandfather. We
address each contention in turn.
a. ICWA Notices from San Bernardino
We first address mother’s contention that DCFS should
have obtained the San Bernardino case’s ICWA notices. She
asserts: “Had [DCFS] obtained the notices from San Bernardino
county, that would have provided additional information for other
extended family members and provided more information to the
tribes to make their determination as to [R.M.]’s eligibility.” She
asserts DCFS should have noticed the Cherokee and Blackfeet
tribes with the maternal grandfather’s information, since those
8
tribes were noticed in the San Bernardino dependency case.8
Mother asserts DCFS “had reason to believe [R.M.] may be an
Indian child by the fact it was aware San Bernardino County
Children and Family Services had sent out ICWA noticing to
Blackfeet and Cherokee tribes.”
We are not persuaded. The record shows that the Blackfeet
and Cherokee tribes were noticed in the San Bernardino case,
and after receipt of information from those tribes, the San
Bernardino court determined ICWA did not apply. A finding that
ICWA did not apply to the half sibling does not create a reason to
believe R.M. may be Indian. Such information, in this case,
proves the converse. As it is only mother’s lineage at issue here,
the lineage of the father in the San Bernardino case was
irrelevant. The absence of any Native American lineage in San
Bernardino was, thus, useful in determining R.M.’s lineage in the
present proceedings. Mother fails to demonstrate that DCFS
should have engaged in further inquiry as to the Blackfeet and
Cherokee tribes.9
8 These tribes were noticed early on in the present case
based on the alleged father’s heritage, but these notices did not
provide maternal grandfather’s information, a point we discuss
later.
9 Mother also argues that the “record is silent as to any
efforts DCFS made to obtain [the San Bernardino Blackfeet and
Cherokee] notices or any efforts it made to contact San
Bernardino county to obtain further information on the maternal
grandfather or other relatives.” It is mother who is silent on
what useful information might have been gleaned from the San
Bernardino notices. The evidence was that notices were sent to
the two tribes, and the San Bernardino court found ICWA did not
apply.
9
b. Contacting the Maternal Grandfather
Mother contends DCFS should have contacted the maternal
grandfather. She argues, “the record is silent as to any efforts
[DCFS] made to gather further information from the
grandfather.” We disagree. Here, DCFS pursued the paternal
grandfather’s contact information from mother and then from the
maternal grandmother. First, mother refused to disclose the
maternal grandfather’s contact information. Mother told DCFS
he had a harsh temper and would be upset if questioned by
DCFS. Then, DCFS sought the grandfather’s contact information
from the maternal grandmother, who said she could not provide
it to DCFS. She confirmed the grandfather would not speak with
DCFS. The grandmother also explained that to her knowledge,
the maternal grandfather did not have any Indian heritage, let
alone possess tribal membership.
Mother does not propose additional actions DCFS should
have undertaken or other leads it should have pursued to make
contact with the maternal grandfather. Where there is a viable
lead, DCFS “has 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.).
Nonetheless, ICWA does not obligate the court or DCFS “to cast
about” for investigative leads. (In re A.M. (2020) 47 Cal.App.5th
303, 323.) The court and DCFS satisfy their duty of inquiry if the
parent does not provide information requiring follow-up, or if
individuals with additional information refuse to talk to DCFS.
(Ibid.; see In re Hunter W. (2011) 200 Cal.App.4th 1454, 1468 [no
duty to investigate further where no contact information was
provided for the relative with information]; In re K.M. (2009)
172 Cal.App.4th 115, 119 [where agency cannot obtain additional
10
information for ICWA notice because of family hostility, the
agency need not investigate further].)
Given that both mother and the maternal grandmother
refused to or could not provide the maternal grandfather’s
contact information, and both said grandfather would not talk to
DCFS, we conclude DCFS satisfied its duty of inquiry. DCFS
properly proceeded to notice the tribes identified by mother with
the maternal grandfather’s name, birthdate, and birthplace.
DISPOSITION
The juvenile court’s order terminating parental rights is
affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
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