Filed 6/7/22 In re C.R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.

Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Clyde R. (father) appeals the juvenile court’s order terminating his parental rights to C.R. (born September 2020) pursuant to Welfare and Institutions Code section 322.26.[1] He contends the juvenile court erred by finding that the Stanislaus County Community Services Agency (agency) adequately investigated C.R.’s possible Indian ancestry as required by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related state statutes. We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

On September 25, 2020, the agency received a referral on behalf of C.R. after Tiffany R. (mother) tested positive for amphetamines and THC at his birth. Mother reported Clyde R. was C.R.’s father, but that she was legally married to John R.

On September 25 and 28, 2020, the agency attempted to contact father to discuss the investigation, but was unsuccessful.

On September 28, 2020, a social worker contacted maternal aunt Hilary T., whom mother had identified as a potential relative to live with after being discharged from the hospital and for possible placement of C.R. She stated mother was not allowed at her house and that she would not be able to take placement of C.R. if he was removed. The social worker informed her that mother also stated she could possibly stay with maternal grandfather David T. [3] Maternal aunt expressed concern about mother staying with their father because he was a “heavy drinker.”

On September 29, 2020, mother and father participated in a team decision making meeting where they discussed placement options. Both mother and father mentioned they had “friends or family” for possible placement. Mother identified maternal grandfather David T. and maternal aunt Hilary T. as possible options, but father did not name anyone specifically. However, after the facilitator explained the resource family approval process and background clearance, neither parent identified anyone for possible placement.

On September 30 and October 1, 2020, the agency attempted to contact father for purposes of the investigation and C.R.’s detention, but was unsuccessful.

On October 4, 2020, the agency again attempted to contact father to serve the findings and orders portion of the protective custody warrant, but was unsuccessful and left a message with father’s friend.

On October 5, 2020, the agency filed a dependency petition on behalf of C.R. pursuant to section 300, subdivisions (b)(1) and (g). Because mother was legally married to John R., the petition listed him as the presumed father and Clyde R. as the alleged father.[4]

On October 6, 2020, prior to the detention hearing, mother and father met with a social worker and provided ICWA information. Each parent completed judicial council form ICWA-020, “Parental Notification of Indian Status.” Father checked the box indicating he did not have Indian ancestry and mother noted she may have Sioux or Cherokee ancestry. The agency’s service log indicated the parents provided the social worker “with some possible relatives for placement,” but it did not specify any names. The detention hearing was held that same day. The juvenile court asked mother and father about Indian ancestry. Mother stated she was “supposed to be Sioux or Cherokee,” and father denied having any known Indian ancestry. The court then confirmed the information they provided on the ICWA forms. The court found that “based upon the mother’s completion of the ICWA form, that she may have Sioux, and … Cherokee ancestry; that ICWA may, in fact, apply in this case.” The court ordered DNA testing for father and ordered C.R. detained.

The jurisdiction report indicated ICWA did or could apply because mother reported possible Sioux and Cherokee ancestry. The agency noted it would be sending notices to the Sioux and Cherokee tribes once a disposition hearing was set.

On October 27, 2020, mother and father failed to appear at the jurisdiction hearing. Father’s counsel informed the juvenile court that father was not responding to phone calls and had not been in contact with the social worker. The hearing was trailed.

On November 16, 2020, mother and father failed to appear at the trailed jurisdiction hearing. The juvenile court stated that it was unknown whether ICWA applied and trailed the hearing.

On November 24, 2020, a social worker spoke to the maternal grandparents to inquire about possible Indian ancestry. Maternal grandmother reported that her family was Jewish and German and did not have Indian ancestry. Maternal grandfather stated his family had Blackfeet ancestry from “years and years back,” and noted he also had Cherokee ancestry. He was informed mother reported possible Sioux ancestry and he said he did “not know where she got that from because they did not have Sioux ancestry.” He provided familial information for judicial council form ICWA-030, “Notice of Child Custody Proceeding for Indian Child.”

On November 30, 2020, the agency filed ICWA-030 forms with the Bureau of Indian Affairs (BIA)and 22 Sioux, Cherokee, and Blackfeet tribes. The notice provided detailed information relating to mother and the maternal side of the family. Maternal grandfather was identified as having Blackfeet and Cherokee ancestry. Additionally, a maternal great-grandfather was identified as being alive with a current address listed. C.R.’s biological father was listed as “unknown” and there was no information as to the paternal family. The notice listed Clyde R. as an “[o]ther alleged father.”

The disposition report indicated that ICWA did or could apply and noted that a social history could not be completed for father because he had not made himself available. All of the agency’s attempts to locate and contact him had been unsuccessful. However, in December 2020, the agency learned he was incarcerated. The social worker could not visit him due to COVID-19 restrictions, but she sent him a copy of a social history questionnaire, which he failed to return. The agency then conducted a due diligence search for mother and father’s relatives and attached a copy of the results to the disposition report. The due diligence report identified 21 relatives attributable to mother, but nine were deceased and three did not have a valid address or phone number. The agency sent connection letters to the nine remaining relatives, but no one had applied for placement. There was only one relative attributable to father—a paternal great-grandfather. The search failed to reveal a valid address for him, but the agency still sent him a connection letter.

On January 7, 2021, mother and father failed to appear at the combined jurisdiction and disposition hearing. The juvenile court noted that it was unknown whether ICWA applied, but that “all of the ICWA return receipts were received back and filed in a timely fashion.” The court confirmed father’s status as an alleged father and found the petition to be true.

The six-month status review report indicated ICWA could apply and noted the agency was still waiting to hear back from three tribes. The report attached an ICWA tracking log showing when notices were sent and the responses that were received.

On June 25, 2021, mother and father failed to appear at the six-month review hearing. The juvenile court noted it was still unknown whether ICWA applied but that “the receipts [had] been received in a timely manner.” Father’s counsel informed the court that father was incarcerated. Father wrote a letter to the court requesting photos of C.R. The social worker stated she had been providing him with monthly photos for the last three months and had been in contact with him.

On September 3, 2021, the agency filed a “Due Diligence Declaration for a Determination as to Applicability of ICWA,” indicating it had not received a response from one tribe and detailing the social worker’s efforts to solicit a response. The agency then filed a motion for determination of ICWA applicability, stating it had been 273 days since the tribes received the ICWA-030 notices. The juvenile court determined ICWA did not apply.

On September 15, 2021, the agency received father’s DNA results showing he was C.R.’s biological father.

On November 30, 2020, the juvenile court terminated mother and father’s parental rights at the trailed section 366.26 hearing.

On December 8, 2021, father filed a notice of appeal.

DISCUSSION

I. Legal Principles

“ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation. [Citations.] Congress enacted ICWA to further the federal policy ‘ “that, where possible, an Indian child should remain in the Indian community ….” ’ ” (In re W.B. (2012) 55 Cal.4th 30, 48, fn. omitted.)

“ICWA provides that ‘n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ ” ([i]In re A.R. (2022) 77 Cal.App.5th 197, 203; 25 U.S.C. § 1912(a).) “This notice requirement, which is also codified in California law [citation], enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives the required notice.” (In re Isaiah W. (2016) 1 Cal.5th 1, 5.)

“In California, section 224.2 ‘codifies and elaborates on ICWA’s requirements of notice to a child’s parents or legal guardian, Indian custodian, and Indian tribe, and to the [Bureau of Indian Affairs].’ ” (In re A.R., supra, 77 Cal.App.5th at p. 204.)

Section 224.2 provides in pertinent part that “[t]he court, [and the] county welfare department, … have an affirmative … 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. The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting the child abuse or neglect whether the party has any information that the child may be an Indian child.” (§ 224.2, subd. (a).) Once a child is placed in the temporary custody of a county welfare agency pursuant to section 306, the county welfare agency “has a duty to inquire whether that child is an Indian child. Inquiry 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 and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).) “At the first appearance in court of each party, the 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).)

In some cases, the court or social worker must also conduct what is called “further inquiry.” The duty of further inquiry is triggered when the court or social worker has “reason to believe” an Indian child is involved in the proceedings. (§ 224.2, subd. (e).) “There is reason to believe a child involved in a proceeding 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).) Further inquiry includes, but is not limited to, “nterviewing the parents, Indian custodian, and extended family members,” and contacting the BIA, the State Department of Social Services, and the tribes and any other person who may have information. (§ 224.2, subd. (e)(2)(A)–(C).)

“If the further inquiry ‘results in a reason to [i]know the child is an Indian child, then the formal notice requirements of section 224.3 apply.’ ” (In re Y.W. (2021) 70 Cal.App.5th 542, 552.) The “[n]otice … must … [include] enough information [for the tribe] to conduct a meaningful review of its records to determine the child’s eligibility for membership.” (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)

“ ‘[W]e 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.) “Thus, we do not consider whether there is evidence from which the dependency court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw.” (In re Noe F. (2013) 213 Cal.App.4th 358, 366.)

II. Substantial Evidence Supports the Juvenile Court’s ICWA Finding as to Father

Father contends the agency failed its duty of inquiry because the record does not indicate it sought out extended family members to inquire about possible Indian ancestry. We disagree.

The record shows the agency did not have contact information for any of father’s extended family members despite its efforts to gather information. Early in the proceedings, father participated in a team decision making meeting where the team discussed placement options. Mother identified two relatives by name, but father failed to provide any relative contacts at all. After the approval and background clearance process was explained, he again failed to provide any relative contacts. Thereafter, the agency attempted to contact him multiple times for the purposes of the investigation, but was unsuccessful. Father then completed an ICWA‑020 form where he denied having Indian ancestry. At the detention hearing, the juvenile court conducted an ICWA inquiry and father confirmed he did not have Indian ancestry. Father failed to appear at subsequent hearings and the agency’s attempts to contact him remained unsuccessful for the most part.[5] Because he had not made himself available, the agency was unable to complete a social history for him. He also failed to return the social history questionnaire the agency sent him while incarcerated. The agency conducted a due diligence search for family members, but only a paternal great-grandfather was located. However, the search did not yield a valid address for him. Nonetheless, the agency sent paternal great-grandfather a connection letter.

Thus, there was no extended family member the agency could have contacted to interview for purposes of ICWA. (In re K.M. (2009) 172 Cal.App.4th 115, 119 [where the agency “attempted on several occasions to elicit further information from the child’s family, but was unsuccessful due to the family’s hostility” toward the agency, the agency “did all that can or should be reasonably expected of it to meet its obligation to the child, to the family, to the tribes and to the court”].) “ICWA does not obligate the court or [agency] ‘to cast about’ for investigative leads. [Citation.] There is no need for further inquiry if no one has offered information that would give the court or [agency] reason to believe that a child might be an Indian child. This includes circumstances where parents ‘fail[ ] to provide any information requiring followup’ [citations], or if the persons who might have additional information are deceased [citation], or refuse to talk to [the agency].” (In re A.M. (2020) 47 Cal.App.5th 303, 323.)

On appeal, father does not identify any specific individuals whom the agency could have interviewed, aside from noting that mother mentioned a paternal grandfather for potential placement. However, as previously discussed, we believe mother was actually talking about maternal grandfather. (See fn. 3.) While it is well established that the “duty to develop information concerning whether a child is an Indian child rests with the court and the [agency], not the parents or members of the parents’ families” (In re Antonio R. (2022) 76 Cal.App.5th 421, 430), the court and agency often cannot satisfy this duty without participation from the parents. Without cooperation from father, the agency was unable to cultivate any viable leads.

Father cites to three recent cases that have expressly held it was prejudicial error for the agency not to inquire of extended family members. However, in those cases the appellate court found prejudicial error because there were available or readily available extended family members that the agency failed to inquire of. In In re Antonio R., supra, 76 Cal.App.5th at p. 426, the juvenile court found ICWA did not apply based on mother, father, and paternal great-grandmother’s denials of Indian ancestry. However, there were known and available extended family members that the agency could have contacted to inquire about possible Indian ancestry. (Ibid.) On appeal, the court found the error prejudicial. (Ibid.)

In In re A.C. (2022) 75 Cal.App.5th 1009, the juvenile court found ICWA did not apply based on mother and father’s ICWA-020 forms, which indicated they had no known Indian ancestry. (Id. at p. 1014.) The children were placed with mother’s extended family, and father lived with his mother and brother. The department failed to contact those relatives to ask about possible Indian ancestry despite their availability. (Id. at p. 1015.) On appeal, the court concluded that the agency’s failure to ask the extended family members about potential Indian ancestry was prejudicial error. (Id. at p. 1011.)

In In re H.V. (2022) 75 Cal.App.5th 433, the juvenile court found ICWA did not apply based solely on mother’s denial that neither she, nor the nonappearing father, had Indian ancestry. (Id. at p. 436.) The agency interviewed the maternal great-grandmother and maternal great-grandfather in preparation of the detention report’s writing; however, there was no indication in the record that they were ever asked about Indian ancestry. (Ibid.) On appeal, the court held the failure to inquire was prejudicial error. (Id. at 438.)

Those cases are distinguishable from the present case because in each of those cases, the agency failed to interview available or readily available relatives. Here, there were none. Thus, we find no failure of inquiry occurred as to father.

III. Substantial Evidence Supports the Juvenile Court’s ICWA Finding as to Mother

Father next contends mother and maternal grandfather gave the agency and the juvenile court reason to believe C.R. had Indian ancestry, thus triggering the duty of further inquiry. He argues that the agency’s failure to inquire of maternal great-grandfather resulted in inadequate further inquiry and constituted prejudicial error. We agree that mother and maternal grandfather’s statements regarding possible Sioux, Cherokee, and Blackfeet ancestry were sufficient to establish a reason to believe C.R. was an Indian child and triggered the duty of further inquiry. Thus, the sole issue is the adequacy of the agency’s further inquiry. We conclude that substantial evidence supports the juvenile court’s finding that the agency complied with its further inquiry obligations, and any failure to inquire of maternal great-grandfather was harmless.

When an agency has reason to believe a child is an Indian child it must conduct a further inquiry. (§ 224.2, subd. (e).) “First, the Agency must interview the parents, Indian custodian, and extended family members to gather relevant information, specified by statute, regarding the details of the child’s birth, family members, and possible tribal affiliations. [Citations.] Second, the Agency must contact ‘the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in, and contact[] the tribes and any other person that may reasonably be expected to have information regarding the child’s membership status or eligibility.’ [Citation.] Third, the Agency must contact ‘the tribe or tribes and any other person that may reasonably be expected to have information regarding the child’s membership, citizenship status, or eligibility.’ ” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052–1053 (D.S.).)

“Under both ICWA and California law, ‘ “extended family member[s]” ’ include the child’s ‘grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.’ ” (D.S., supra, 46 Cal.App.5th at p. 1053; 25 U.S.C. § 1903(2); § 224.1, subd. (c).) “It does not include great-grandparents.” (D.S., at p. 1053.) Here, although the agency did not interview maternal great-grandfather whom it had contact information for, it did interview maternal grandmother and maternal grandfather about possible Indian ancestry. Accordingly, the agency did comply with its obligation to interview extended family members as defined by statute.

We recognize, however, that the agency also had an obligation to contact “any other person that may reasonably be expected to have information regarding the child’s membership, citizenship status, or eligibility.” (§ 224.2, subd. (e)(2)(C).) Although the maternal “great-[grandfather] may fall within this category, the [a]gency reasonably could [have] conclude[d] … that no further inquiry was needed because there was no further information of value to obtain from this third party.” (D.S., supra, 46 Cal.App.5th at p. 1053.) Maternal great-grandfather was maternal grandfather’s father. The agency had already interviewed maternal grandfather regarding Indian ancestry and he provided thorough familial information for the ICWA-030 form. The ICWA-030 form included substantial information regarding the maternal line. In addition to providing detailed information about the maternal grandparents, it included information on an aunt, multiple great aunts and uncles, multiple cousins, great-great-grandparents, and great-great-great-grandparents. There were names and maiden names, birth dates and locations, dates of death where applicable, current and former addresses, and tribe affiliations for the maternal grandfather.

Moreover, the agency went beyond the requirements of further inquiry and served formal notice to the BIA and 22 Sioux, Cherokee, and Blackfeet tribes. Twenty-one tribes responded that C.R. was not an Indian child of their tribe. The agency provided the juvenile court with copies of the responses and a due diligence declaration for the one tribe that did not respond. In doing so, the agency not only satisfied, but exceeded its duty of further inquiry.

Thus, we find any error in the agency’s failure to contact maternal great-grandfather harmless.

DISPOSITION

The juvenile court’s order is affirmed.

* Before Detjen, Acting P. J., Peña, J. and Meehan, J.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

[2] The sole issue on appeal concerns ICWA; therefore, we restrict our facts to those bearing on that issue.

[3] Although the social worker noted David was the “paternal grandfather,” we believe this to be an error. The note stated, “[Social worker] informed Hilary [that] mother also provided David … Paternal Grandfather[] as possible relative to stay with. Hilary reported she has concerns with her father David[,] reporting he is a heavy drinker and it is not a good environment.”

We believe the social worker meant to notate “maternal grandfather” because maternal grandfather’s name is David. Additionally, Hilary referred to David as “her father,” which indicated they were talking about maternal grandfather. Moreover, on a later date, mother reiterated that her father David T. could serve as a possible placement option.

[4] John R. lived out of state and mother had not seen him in four or five years. The juvenile court eventually found he could not be C.R.’s biological father and dismissed him from the proceedings.

[5] As previously noted, father eventually made contact with the agency to request photos of C.R. However, the nature and extent of that contact was unknown.