Filed 6/20/22 In re Levi M. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Debra R. Archuleta, Judge. Affirmed.

Lori Siegal, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel for Plaintiff and Respondent.

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Crisel A. (mother) appeals from the juvenile court’s order terminating parental rights to her daughter, Levi M. Mother contends the order should be reversed because the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with its duty of inquiry under the state laws (Welf. & Inst. Code, § 224 et seq.)[1] implementing the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) because it did not ask certain extended family members if the child had Indian ancestry. We conclude substantial evidence supports the juvenile court’s finding that ICWA does not apply and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Proceedings leading to termination of parental rights.

Levi was born in August 2018. Both mother and Levi tested positive for amphetamines and methamphetamines during delivery, and DCFS detained Levi shortly thereafter.

Mother reported having an open dependency case in San Bernardino County for her four older children (Levi’s half-siblings), who had been placed with the maternal grandparents.[2] Mother, too, had been living with the maternal grandparents “on and off” for the last two years. Mother said she had been born in Mexico, came to the United States with her parents when she was two years old, and was close with her parents and siblings. The maternal grandparents confirmed that mother had been living with them and said they would like to have Levi placed in their home.

Robert M. (father) said he and mother had known each other since they were children. Father had a long history of drug use and had served time in prison for drug offenses and robbery. He claimed he was living with his mother’s sister, paternal great-aunt Alicia G. Alicia denied that father was living with her, but said she had helped raise father and loved him like a son.

Levi was placed with paternal great-aunt Alicia when she was about ten days old and has remained in Alicia’s home throughout these proceedings. Alicia is the prospective adoptive parent.

DCFS filed an initial dependency petition on behalf of Levi on September 4, 2018, followed by a first amended petition on October 23, 2018. In November 2018, the court sustained counts of the amended petition alleging pursuant to section 300, subdivisions (b) and (j) that Levi was at substantial risk of physical harm because mother had a history of substance abuse, was a current abuser of amphetamines and methamphetamines, and father had an unresolved history of substance abuse and a lengthy criminal history. The court declared Levi a juvenile court dependent, ordered father to drug test and participate in individual counseling, and ordered mother to participate in a drug program, a parenting class, and individual counseling.

The juvenile court terminated mother’s reunification services in January 2020 and father’s reunification services in May 2021. Parental rights were terminated on September 24, 2021. Mother timely appealed.

II. Facts relevant to ICWA.

On August 31, 2018, a children’s social worker (CSW) signed an Indian Child Inquiry Attachment (ICWA-010) stating that she had spoken to both parents on August 28, 2018, and both denied Indian ancestry.

On September 5, 2018, mother signed under penalty of perjury a Parental Notification of Indian Status form (ICWA-020), and in which she stated that she had no Indian ancestry as far as she knew.

Mother, the maternal grandparents, maternal cousin Ashley S., and paternal great-aunt Alicia were present at the detention hearing. Father was incarcerated and did not attend. Mother confirmed on the record that she did not have Indian ancestry and said she did not believe father did. Paternal great-aunt Alicia confirmed that her family did not have Indian ancestry. The court said that because Alicia’s answer was consistent with mother’s, it would find there presently was no reason to know ICWA applied, but it would continue to inquire.

The September 5, 2018 minute order states: “The Court does not have a reason to know that this is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the BIA. Parents are to keep the Department, their Attorney and the Court aware of any new information relating to possible ICWA status. . . . ICWA-020 form is filed by [mother] this date.”

In the October 18, 2018 jurisdiction/disposition report, DCFS stated that both parents again denied having any Indian ancestry on September 28, 2018, and that Alicia again denied Indian ancestry on October 2, 2018.

Father’s first appearance was at the jurisdiction/disposition hearing on November 16, 2018, at which Alicia also appeared. Prior to the hearing, father completed and signed an ICWA-020 form, stating that he had no Indian ancestry as far as he knew. On the record, the court noted father’s denial of Indian ancestry and found no reason to know ICWA applied.

The court’s November 16, 2018 minute order states: “The Court finds that there is no reason to know that the child is an Indian child as defined by ICWA. . . . [¶] . . . ICWA-020 is filed by [father] this date.”

DCFS repeated the juvenile court’s November 16, 2018 finding that it had no reason to know Levi was an Indian child in its September 2021 section 366.26 report.

In the course of its supervision, DCFS spoke to the maternal grandparents, the maternal uncle, and the paternal grandmother, but the record does not indicate that the CSW asked these relatives about possible Indian ancestry.

DISCUSSION

Mother contends that DCFS failed to conduct an adequate ICWA investigation because it did not interview available extended family members, including the maternal grandparents, a maternal cousin, and the paternal grandmother. She therefore urges this court to conditionally reverse the order terminating parental rights and remand this case for compliance with ICWA. For the reasons that follow, we disagree and affirm.

I. Relevant law.

A. ICWA.

ICWA was enacted “ ‘to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .’ [Citation.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C. § 1902.)

“[T]he burden of coming forward with information to determine whether an Indian child may be involved . . . in a dependency proceeding does not rest entirely—or even primarily—on the child and his or her family.” (In re Michael V. (2016) 3 Cal.App.5th 225, 233.) Rather, “[j]uvenile courts and child protective agencies have ‘an affirmative and continuing duty to inquire’ whether a dependent child is or may be an Indian child.” (Ibid.; see also Isaiah W., supra, 1 Cal.5th at pp. 9–11; § 224.2, subd. (a).) An “Indian child” is “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 also § 224.1, subd. (a) [adopting federal definition of “Indian child”].)

This affirmative duty to inquire has several elements. The statute provides that if a child is removed from his or her parents and placed in the custody of a county welfare department, the department has a duty to inquire whether a child is an Indian child. Such 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 . . . .” (§ 224.2, subd. (b).) The court also must make an ICWA inquiry when the parents first appear in court: 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)), and must require each party to complete California Judicial Council Form ICWA-020, Parental Notification of Indian Status (Cal. Rules of Court, rule 5.481(a)(2)(C)).

If the court or social worker has “reason to believe that an Indian child is involved in a proceeding,” the court or social worker must “make further inquiry regarding the possible Indian status of the child” by, among other things, interviewing the parents and extended family members, and contacting any tribe that may reasonably be expected to have information about the child’s membership, citizenship status, or eligibility. (§ 224.2, subd. (e)(2).) 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).)

If the agency’s inquiry creates a “reason to know” that an Indian child is involved, notice of the proceedings must be provided to the parent, legal guardian, or Indian custodian and the child’s tribe. (§ 224.2, subd. (f).) There is “reason to know” a child is an Indian child if any one of six statutory criteria is met—e.g., if the court is advised that the child “is an Indian child,” the child’s or parent’s residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).) Thereafter, the court shall confirm that the agency used due diligence to identify and work with all of the tribes of which there is reason to know the child may be a member, or eligible for membership, to verify whether the child is in fact a member or whether a biological parent is a member and the child is eligible for membership. (§ 224.2, subd. (g).) A determination by an Indian tribe that a child is or is not a member of, or eligible for membership in, that tribe “shall be conclusive.” (§ 224.2, subd. (h).)

If the juvenile court finds that “proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child,” the court may make a finding that ICWA does not apply to the proceedings, “subject to reversal based on sufficiency of the evidence.” (§ 224.2, subd. (i)(2).)

B. Standard of review.

Where, as here, the juvenile court finds that ICWA does not apply, “ ‘ “[t]he finding implies that . . . social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry.” (In re Austin J. [(2020) 47 Cal.App.5th 870, 885]; see In re D.S. [(2020) 46 Cal.App.5th 1041, 1050] [“[t]he juvenile court may . . . make a 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”].)’ (In re J.S. (2021) 62 Cal.App.5th 678, 688.) ‘ “[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.)” (In re Josiah T. (2021) 71 Cal.App.5th 388, 401.) “ ‘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.)” (In re J.N. (2021) 62 Cal.App.5th 767, 774.)

II. Substantial evidence supported the juvenile court’s finding that ICWA does not apply to this proceeding.

Although mother acknowledges that she and father both repeatedly denied Indian ancestry, she asserts DCFS was required to make an ICWA inquiry of the children’s extended family members, and that the failure to do so was reversible error. We disagree.

As mother notes, DCFS had contact with the maternal grandparents, paternal grandmother, and maternal cousin, but apparently did not ask them about possible Indian ancestry. Although DCFS’s discharge of its initial duty of inquiry may have been imperfect in this regard, we nonetheless conclude there is substantial evidence to support the juvenile court’s finding that an adequate inquiry was conducted and there was no reason to know that ICWA applied to this case. (§ 224.2, subd. (i)(2).)

First, both parents verbally told DCFS they did not have Indian ancestry and signed ICWA-020 forms attesting to that under penalty of perjury. The juvenile court acknowledged the parents’ denials on the record, in the presence of the maternal grandparents, a maternal cousin, and a paternal great-aunt. None of the present family members told the court the denials were inaccurate, thus suggesting they agreed with the parents’ representations.

Second, at the detention hearing the juvenile court directly addressed the paternal great-aunt (the paternal grandmother’s sister), who stated on the record that her family did not have Indian ancestry. The paternal great-aunt repeated this denial in a subsequent interview with DCFS.

Third, nothing in the present record suggests that the parents might not have been aware of their own ancestry or that their answers to the court’s and DCFS’s questions about ICWA might not have been reliable. Both mother and father had been raised by their own parents, with whom they reportedly remained close. Mother reported having a good relationship with her siblings, and father was close with his aunt, who had helped raise him. In view of the parents’ intact relationships with their extended families, the possibility that the parents might unknowingly have Indian ancestry appears trivially small. (Compare In re Y.W. (2021) 70 Cal.App.5th 542, 548 [mother was adopted and did not have information about her biological relatives]; In re Benjamin M. (2021) 70 Cal.App.5th 735, 740, 745 [father never appeared and mother had no reason to know father’s ancestry]; In re A.C. (2022) 75 Cal.App.5th 1009, 1017 [mother had grown up in foster care and thus “may not know her cultural heritage”].)

Mother asserts DCFS did not satisfy its duty of inquiry because there were available family members of whom an ICWA inquiry was not made. In other words, mother does not suggest that there is any reason to doubt the accuracy of mother’s or father’s responses, but she urges that more could have been done to explore the family’s ancestry.

While we agree that there were additional family members of whom DCFS could have inquired, the question before us is whether the juvenile court reasonably concluded that DCFS’s investigation was adequate––not whether a different factfinder could have reached a different conclusion. (In re J.N., supra, 62 Cal.App.5th at p. 774; In re Noe F., supra, 213 Cal.App.4th at p. 366; see also In re H.V. (2022) 75 Cal.App.5th 433, 440–441 (dis. opn. of Baker, J.) [proper application of substantial evidence standard of review mitigates ambiguity in governing statute, such that DCFS “has no way to reliably know when to say when—i.e., to predict how many interviews of extended family members and others will be enough to satisfy a court that it has discharged its continuing duty to investigate whether a minor could be an Indian child.”].) On the present record, for the reasons discussed above, we conclude that substantial evidence amply supports the juvenile court’s conclusion that DCFS conducted an adequate inquiry and there was no reason to know Levi was an Indian child. (See In re Charles W. (2021) 66 Cal.App.5th 483, 486–488, 490–491 [juvenile court and agency made adequate ICWA inquiry where mother’s counsel, in mother’s presence, denied that mother had Indian ancestry]; In re Austin J., supra, 47 Cal.App.5th at pp. 887–888 [no duty to make further inquiry regarding children’s possible Indian ancestry through father where father’s in-court statement and his parental notification of Indian status declaration indicated that he and his children had no Indian ancestry]; In re A.M. (2020) 47 Cal.App.5th 303, 323 [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]; In re H.V., supra, 75 Cal.App.5th at pp. 441 (dis. opn. of Baker, J.) [mother’s and father’s denials of Indian ancestry were substantial evidence to support juvenile court’s finding that ICWA did not apply]; see also Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016), p. 10 (BIA Guidelines), <https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf> [as of June 16, 2022], archived at <https://perma.cc/UM9T-P9FL> [definition of “Indian child” “is based on the child’s political ties to a federally recognized Indian Tribe, either by virtue of the child’s own citizenship in the Tribe, or through a biological parent’s citizenship and the child’s eligibility for citizenship. ICWA does not apply simply based on a child or parent’s Indian ancestry. Instead, there must be a political relationship to the Tribe”].)

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

I concur:

EGERTON, J.

LAVIN, J., Dissenting:

I disagree with the majority’s conclusion that substantial evidence supports the juvenile court’s finding that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related state laws implementing ICWA (Welf. & Inst. Code, § 224 et seq.) do not apply to these proceedings.

In my view, the Department of Children and Family Services (Department) has a duty to inquire of the child’s extended family members regarding the child’s possible Indian ancestry even when the parents denied having Indian ancestry. (See In re Antonio R. (2022) 76 Cal.App.5th 421, 431 [“By requiring the Department to inquire of a child’s extended family members as to the child’s possible Indian ancestry, the Legislature determined that inquiry of the parents alone is not sufficient.”].) And since the record does not indicate that the Department asked the maternal grandparents and other extended family members about the child’s possible Indian ancestry (Maj. opn. ante, at p. 5.), the Department did not satisfy its duty of initial inquiry in this case. (See In re K.T. (2022) 76 Cal.App.5th 732, 744 [where the child protective agency failed to conduct an adequate inquiry, the juvenile court should not find ICWA doesn’t apply]; Antonio R., at p. 435 [“Where the Department fails to discharge its initial duty of inquiry under ICWA and related California law, and the juvenile court finds ICWA does not apply notwithstanding the lack of an adequate inquiry, the error is in most circumstances, as here, prejudicial and reversible.”].)

Accordingly, I would conditionally affirm the court’s order terminating mother’s parental rights and remand for full compliance with the inquiry provisions of ICWA and related California law.

LAVIN, J.

[1] All subsequent undesignated statutory references are to the Welfare and Institutions Code.

[2] Mother’s family reunification services in that case were terminated in November 2018. Two of mother’s older children were placed with their father, and the other two children were placed in a legal guardianship with the maternal grandmother.