Filed 4/20/22 In re A.P. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
In re A.P. et al., Persons Coming B314494
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 21CCJP01501A–C)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
N.P.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stacy Wiese, Judge. Affirmed.
Ernesto Paz Rey, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
N.P. (Mother) challenges the juvenile court’s jurisdictional
findings and dispositional orders made August 9, 2021. On
appeal, she does not contest the merits of the court’s adjudication;
instead, her sole contention is reversal is warranted because
substantial evidence does not support the juvenile court’s finding
that the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.
§ 1901 et seq.) and related California law (Welf. & Inst. Code,1
§ 224 et seq.) do not apply to the minor children in the underlying
proceedings.
We find Mother’s arguments unavailing and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because compliance with ICWA is the sole basis for
Mother’s appeal, we recite only those facts pertinent to her claim.
On March 30, 2021, a search of Mother’s house found a
large amount of methamphetamines, cocaine, heroin, and a
substance believed to be fentanyl in her bedroom and hallway
“within reach and access to any children in the home.” Mother
was arrested for possession of a controlled substance for sale,
possession/purchase cocaine base for sale, and child
endangerment.
On April 1, 2021, the Department of Children and Family
Services (DCFS) filed a petition on behalf of minors A.P., D.B.,
and M.B., pursuant to section 300, subdivision (b)(1). The
petition included an Indian Child Inquiry Attachment for each
child setting forth that the children’s social worker (CSW)
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
inquired as to Indian status and “on information and belief
confirm[ed] . . . by asking the child, the child’s parents, and other
required and available persons about the child’s Indian status.”
The inquiry gave “no reason to believe the child is or may be an
Indian child.”
The CSW discovered there was an ongoing family law case
in the Los Angeles County Superior Court where the court had
granted Mother and Adrian B. joint legal and joint physical
custody of D.B. and M.B. In the underlying dependency matter,
Adrian B. sought presumed father status as to all three minors.
Although Adrian B. is not A.P.’s biological father, he held himself
out as A.P.’s father since A.P.’s birth.
The children resided in the home of Adrian B.’s mother, i.e.,
paternal grandmother (PGM) for years. PGM identified herself
as the children’s main caretaker. Paternal great aunt (PGA) and
maternal uncle (MU) were also identified as caring for the
children or providing financial assistance.
On April 6, 2021, the minors’ parents did not appear at the
detention hearing; however, the children’s PGM and paternal
uncle2 (PU) were present by WebEx. The juvenile court deferred
paternity findings and the “determination of ICWA status . . . for
the appearance of parents.” The court removed all three minors
from the custody and care of parents and ordered temporary
placement and custody with DCFS pending further order of the
court.
The next day at the arraignment, Mother and Father made
their first appearance. PGM and PU were once again present by
2 PU “sometimes visits and spends nights” at PGM’s home
where the children stay.
3
WebEx. The court inquired as to the paternity of each minor
child. It found Adrian B. to be the presumed father of D.B. and
M.B., and deferred paternity findings as to A.P. until A.P.’s
father appeared.
The juvenile court reviewed each Parental Notification of
Indian Status form (Judicial Council form ICWA-020) filed by
Mother and Adrian B. Mother had checked the box on her form
stating that Indian status does not apply to her.3 Adrian B.
similarly stated on his form that Indian status does not apply to
him. The juvenile court found it “does not have a reason to know
that ICWA applies as to Mother.” The court found as to D.B. and
M.B. that “there is no reason to know the children are Indian
children within the meaning of ICWA and [found] ICWA does not
apply to those two children.” The court instructed the parents “to
keep [DCFS], their Attorney and the Court aware of any new
information relating to possible ICWA status.” The court stated
3 The form includes seven other checkboxes, which Mother
left unchecked:
a) “I am or may be a member of, or eligible for membership
in, a federally recognized Indian tribe.”
b) “The child is or may be a member of, or eligible for
membership in, a federally recognized Indian tribe.”
c) “One or more of my parents, grandparents, or other
lineal ancestors is or was a member of a federally recognized
tribe.”
d) “I am a resident of or am domiciled on a reservation . . .
or other tribal trust land.”
e) “The child is a resident of or is domiciled on a
reservation . . . or other tribal trust land.”
f) “Either parent or the child possesses an Indian
identification card indicating membership or citizenship in an
Indian tribe.”
4
it is “going to hold off on the full ICWA finding as to” A.P. until
A.P.’s father appeared.
On May 20, 2021, Jose D. informed the juvenile court that a
DNA test confirmed he is A.P.’s biological father. Jose D. filed a
Parental Notification of Indian Status form indicating Indian
status does not apply to him.
Mother and Jose D. appeared at the arraignment hearing
the next day.4 The juvenile court found Jose D. to be A.P.’s
biological father, but found Adrian B. to be A.P.’s presumed
father. The court next reviewed the Parental Notification of
Indian Status form filed by Jose D. and stated Jose D. indicated
he has no Indian ancestry. The court found “there is no reason to
know [A.P.] is an Indian child within the meaning of ICWA, and
. . . ICWA does not apply.”
In the jurisdiction/disposition report filed May 24, 2021 and
addendum report filed June 3, 2021, DCFS set out its conclusions
about ICWA’s applicability. DCFS referred to the juvenile court’s
April 7, 2021 finding that “it [did] not have a reason to know
[D.B. and M.B.] are Indian children, and [did] not order notice to
any tribe or BIA.” DCFS informed the court that during Mother’s
telephonic interview with the CSW on May 18, 2021, she denied
Native American ancestry; she said her cultural identification is
“Latina.” During the CSW’s telephonic interview with Jose D. on
May 19, 2021, he denied Native American ancestry and stated his
cultural identification is “Mexican-American.” Finally, Adrian B.
informed the CSW that his cultural identification is Hispanic and
denied Native American heritage. Based on the foregoing, DCFS
concluded ICWA “does not apply” to the three minor children.
4 MU was also present at the hearing by WebEx.
5
PGM had expressed interest in providing a permanent plan
for the children, including legal guardianship. However, Mother
ultimately decided she wanted to reunify with her children.
At the August 9, 2021, jurisdictional and disposition
hearing,5 the juvenile court sustained the petition as pled. The
minors were declared dependent children of the court under
section 300, subdivision (b); were ordered removed from the
parents’ home, custody, and care; and were placed with PGM
under DCFS supervision. DCFS was ordered to provide family
reunification services to all three parents.
Mother timely filed a notice of appeal. Fathers Adrian B.
and Jose D. are not parties to this appeal.
DISCUSSION
A. Standard of Review
We review the juvenile court’s ICWA findings “ ‘under the
substantial evidence test, which requires us to determine if
reasonable, credible evidence of solid value supports the court’s
order. [Citations.] We must uphold the court’s orders and
findings if any substantial evidence, contradicted or
uncontradicted, supports them, and we resolve all conflicts in
favor of affirmance.’ ” (In re D.F. (2020) 55 Cal.App.5th 558, 565
(D.F.); In re A.M. (2020) 47 Cal.App.5th 303, 314.) We review the
evidence in the light most favorable to the juvenile court’s
findings and draw all reasonable inferences in support of those
findings. (In re J.N. (2021) 62 Cal.App.5th 767, 774.)
5 Mother, Jose D., PGM, and PU appeared at the
jurisdictional and disposition hearing.
6
The appellant—in this case, Mother—has the burden to
show the evidence was not sufficient to support the ICWA
finding. (D.F., supra, 55 Cal.App.5th at p. 565; In re Austin J.
(2020) 47 Cal.App.5th 870, 885 (Austin J.).)
B. Applicable Law
ICWA reflects a congressional determination to protect
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal
standards that a state court must follow before removing an
Indian child from his or her family. (25 U.S.C. § 1902; Austin J.,
supra, 47 Cal.App.5th at pp. 881–882.) Both ICWA and the
Welfare and Institutions Code define 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, subds. (a) and (b)
[incorporating federal definitions].)
The juvenile court and DCFS have “an affirmative and
continuing duty to inquire whether a child for whom a petition
under Section 300 . . . may be or has been filed, is or may be an
Indian child.” (§ 224.2, subd. (a); see D.F., supra, 55 Cal.App.5th
at p. 566; see In re Isaiah W. (2016) 1 Cal.5th 1, 9, 11.) This
continuing duty can be divided into three phases: the initial duty
to inquire, the duty of further inquiry, and the duty to provide
formal ICWA notice. (D.F., at p. 566.)
The initial duty to inquire whether a child is an Indian
child begins with “the initial contact,” i.e., when the referring
party reports child abuse or neglect that jumpstarts DCFS
investigation. (§ 224.2, subd. (a).) DCFS’s initial duty to inquire
includes asking the child, parents, legal guardian, extended
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family members, and others who have an interest in the child
whether the child is, or may be, an Indian child. (Id., subd. (b).)
Similarly, the juvenile court must inquire at the “first
appearance in court of each party” whether he or she “knows or
has reason to know that the child is an Indian child.” (Id., subd.
(c), italics added.). The juvenile court must also require the
parties to complete Judicial Council form ICWA-020, Parental
Notification of Indian Status. (See D.F., supra, 55 Cal.App.5th at
p. 566.) The parties are instructed to inform the court “if they
subsequently receive information that provides reason to know
the child is an Indian child.” (§ 224.2, subd. (c).)
A duty of further inquiry is imposed when DCFS or the
juvenile court has “reason to believe” that an Indian child is
involved in the proceedings “but does not have sufficient
information to determine that there is reason to know” the child
is an Indian child. (§ 224.2, subd. (e); see D.F., supra,
55 Cal.App.5th at p. 566.) There is reason to believe an Indian
child is involved whenever the court or DCFS 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 as to the possible Indian
status of the child includes: 1) interviewing the parents and
extended family members to gather required information;
2) contacting the Bureau of Indian Affairs and State Department
of Social Services for assistance in identifying the tribes in which
the child may be a member or eligible for membership in; and
3) contacting the tribes and any other person that may
reasonably be expected to have information regarding the child’s
membership or eligibility. (§ 224.2, subd. (e)(2)(A)–(C).)
8
The juvenile court’s finding there is a “reason to know” an
Indian child is involved triggers the duty to send formal notice
per ICWA to the pertinent tribe(s) via registered or certified mail.
(§ 224.3, subd. (a)(1); see D.F., supra, 55 Cal.App.5th at p. 568.)
“The sharing of information with tribes at [the further] inquiry
stage is distinct from formal ICWA notice, which requires a
‘reason to know’—rather than a ‘reason to believe’—that the child
is an Indian child.” (In re D.S. (2020) 46 Cal.App.5th 1041,
1049.)6
C. Analysis
Mother argues the juvenile court’s findings that ICWA did
not apply to the children was “premature as neither the court nor
the CSW’s duty of inquiry ended with the parents’ form
notifications.” She believes the juvenile court’s ICWA findings
“are not supported by substantial evidence and should be
reversed.” We review the record for substantial evidence in
support of the juvenile court’s findings that ICWA did not apply
to the proceedings.
Here, Mother notified the juvenile court via her ICWA-020
form that she had no Indian heritage. Similarly, Adrian B. and
Jose D. stated Indian status does not apply to them via their
respective ICWA-020 forms filed with the court. At each parent’s
first appearance, the juvenile court reviewed the record before it
6 Here, neither the duty of further inquiry nor ICWA’s formal
notice provisions are at issue because Mother does not contend
there is “reason to believe” the children are Indian children.
Rather, her contention has to do with the juvenile court’s and
DCFS’s duty to conduct initial inquiry as to whether the minors
are Indian children.
9
before finding “there is no reason to know the children are Indian
children within the meaning of ICWA” and that “ICWA does not
apply.” In addition, during the CSW’s May 18, 2021 interview
with Mother, she once more denied Indian ancestry and
identified herself as Latina. Adrian B. and Jose D. also repeated
their denial of any Indian ancestry during their telephonic
interviews with the CSW on May 19, 2021. There was no other
information before the juvenile court that would suggest the
children might be Indian children. Under the deferential
standard of review that governs, we find the foregoing constitutes
substantial evidence supporting the juvenile court’s finding that
ICWA does not apply.
Mother, however, contends the juvenile court and DCFS
failed to inquire of extended family members, specifically PGM
and PU, as to whether the children are Indian children. She
argues the “record is devoid of any indication that . . . the juvenile
court or [DCFS] inquired of PGM or the [PU] whether the
children are or may be Indian children.” We review claims of
inadequate inquiry into a child’s Indian ancestry for substantial
evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
To the extent Mother argues the juvenile court (as opposed
to DCFS) should have asked extended family members PGM and
PU about Indian ancestry, the argument lacks merit because
section 224.2, subdivision (b) requires only the child welfare
agency (here, DCFS) to interview a child’s extended family about
Indian ancestry. (See In re Darian R. (2022) 75 Cal.App.5th
502, 509 [Mother’s argument that the juvenile court should have
asked extended family members or paternal aunt about Indian
ancestry “lacks merit” based on § 224.2, subdivision (b)].)
10
Mother argues the juvenile court should have inquired at
PGM’s and PU’s first appearance as to whether the children are
Indian children. She relies on section 224.2, subdivision (c).
Section 224.2, subdivision (c) imposes an initial duty upon the
juvenile court to ask at “the first appearance in court of each
party” whether he or she knows or has reason to know the child is
an Indian child. (§ 224.2, subd. (c), italics added.) In the case
before us, the juvenile court conducted its initial inquiry as to
whether A.P., D.B., and M.B. are Indian children, during
Mother’s and Adrian B. first appearance at the April 2021
hearing and Jose D.’s first appearance at the May 2021 hearing.
The court reviewed the ICWA-020 forms submitted by each
parent. After noting Mother and both Fathers indicated no
Indian ancestry, the court found ICWA was not applicable. The
record also confirms the court instructed the parties, in
conformance to section 224.2, subdivision (c), to inform the court
if they subsequently receive information that provides reason to
know the child is an Indian child.
We disagree with Mother’s broad interpretation of “the first
appearance in court of each party” (§ 224.2, subd. (c)) to include
the first appearance in court of any third party and/or extended
family member. Section 224.2, subdivision (c) specifies that the
court’s initial duty to inquire at the first court appearance is
limited to “each party” which, in this case, are the minors’
parents. PGM was not a legal guardian of the three children, and
nothing in the record demonstrates she was a party in this case.
As for Mother’s contention that DCFS had an obligation
under section 224.2, subdivision (b), to inquire of extended family
members PGM and PU about Indian ancestry—we agree. And
the record contains substantial evidence that DCFS did inquire to
11
that effect. The petition filed by DCFS on April 1, 2021 included
an Indian Child Inquiry Attachment, one for each child, that
provided the CSW inquired as to Indian status and “on
information and belief confirm[ed] . . . by asking the child, the
child’s parents, and other required and available persons about
the child’s Indian status”; the attachment also states the inquiry
gave “no reason to believe the child is or may be an Indian child.”
We note as well—as neither party raised this important
distinction—that PGM and PU are not biologically related to A.P.
and thus their possible Indian heritage would have no bearing on
A.P.
Mother relies on In re Benjamin M. (2021) 70 Cal.App.5th
735, but that case is inapposite. In that case, “Father never
appeared in the juvenile court and thus [was] never asked
whether he had reason to believe [the child] is an Indian child.”
(Id. at p. 744.) The reviewing court found DCFS “failed its duty
of inquiry by not asking ‘extended family members’ [citation]
such as Father’s brother and sister-in-law whether [the child] has
Indian ancestry on his paternal side,” especially since DCFS had
spoken to Father’s brother and sister-in-law and “the missing
information was readily obtainable.” (Ibid.) In contrast, all three
parents were available and denied Indian heritage multiple times
in the case before us. (See also In re Noreen G. (2010)
181 Cal.App.4th 1359, 1388 [“Where the record below fails to
demonstrate and the parents have made no offer of proof or other
affirmative assertion of Indian heritage on appeal, a miscarriage
of justice has not been established and reversal is not
required.”].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J. *
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
13