Filed 3/3/22 In re R.R. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Hernan D. Vera, Judge. Affirmed.

Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.

_______________________

The juvenile court ordered two-year-old R.R. removed from his parents. In doing so, the juvenile court found that the Indian Child Welfare Act (ICWA) did not apply because there was no reason to believe R.R. was of Indian heritage through his mother’s parentage. Father Randy R. (Father) contends the juvenile court erred in making this finding. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Petition

On December 13, 2018, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition against Mother and Father as to their two-week-old son R.R. The petition alleged R.R. had been born with a positive toxicology screen for amphetamine and PCP and that Mother K.H., who also tested positive for amphetamine, cocaine and PCP at the birth of her child, had a history of substance abuse which rendered her unable to provide regular care for the child and placed him at risk of serious physical harm. The petition alleged Father knew or should have known of Mother’s substance abuse, failed to protect the child, and is unable himself to provide the child with ongoing care and supervision. Finally, it was alleged Mother’s five older children are prior dependents of the court who received permanent placement services due to Mother’s substance abuse. The petition was brought pursuant to Welfare and Institutions Code[1] section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). Ultimately the interlineated petition was sustained as to both parents and R.R. was recommended for adoption. The adoption is pending.

B. ICWA Inquiry

On December 14, 2018, the day of the detention hearing, Mother signed a Parental Notification of Indian Status form under penalty of perjury. She checked the box which stated, “I have no Indian ancestry as far as I know.” The juvenile court then made this finding: “Based on Mother’s parentage notification of Indian status, ICWA does not apply to her.”[2] On July 9, 2020, Mother’s attorney completed an updated version of the Parental Notification of Indian Status form, checking the box that none of the statements on the form about Indian status apply to Mother. Those statements about Indian status were: 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 of 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, rancheria, Alaska Native village, or other tribal trust land.”; e. “The child is a resident of or is domiciled on a reservation, rancheria, Alaska Native village, or other tribal trust land.”; f. “The child is or has been a ward of a tribal court.”; g. “Either parent or the child possesses an Indian identification card indicating membership or citizenship in an Indian tribe.”; h. “None of the above apply.” Where applicable, the form asks for the name, location and membership or citizenship number of the tribe.

After making its finding on December 14, 2018, neither the juvenile court nor DCFS revisited ICWA based on Mother’s parentage. Notably, on December 14, 2018, the juvenile court was also advised that for at least three of Mother’s older children who had been permanently placed by adoption, the court had previously found ICWA inapplicable.

Eventually the court terminated parental rights and ordered R.R.’s custody to be transferred to DCFS for adoption by his caregiver.

This appeal followed.

DISCUSSION

Father argues on appeal that the juvenile court erred in finding ICWA inapplicable to R.R. He contends DCFS failed to satisfy its duty to inquire whether R.R. was an Indian child based on Mother’s parentage. “Where, as here, the juvenile court finds ICWA does not apply to a child, ‘[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 (Austin J.)]; see In re D.S. [(2020) 46 Cal.App.5th 1041, 1050 (D.S.)] [‘[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.)

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. 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.).)

A. Applicable Law

ICWA reflects a congressional determination to protect American Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; Austin J., supra, 47 Cal.App.5th at p. 881.) To that end, ICWA established unique standards for the removal and placement of American Indian children. (25 U.S.C. § 1901 et seq.) Central to the protections of ICWA are procedural rules to determine whether an Indian child is involved. Federal regulations implementing ICWA require state courts to ask participants in child custody proceedings whether the participant knows or has reason to know the child is an Indian child. (25 C.F.R. § 23.107(a).) The court must also tell the parties to inform the court if the parties receive information giving them reason to know the child is an Indian child. (Ibid.)

The juvenile court has “an affirmative and continuing duty to inquire” whether a child subject to a section 300 petition may be an Indian child. (§ 224.2, subd. (a); D.F., supra, 55 Cal.App.5th at p. 566.) “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.)

State law lays out the requirements for initial inquiry and further inquiry. (Austin J., supra, 47 Cal.App.5th at p. 883.) Initial inquiry includes the following: DCFS must ask “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 each participant’s first appearance at dependency proceedings, the court must ask whether the participant knows or has reason to know the child is an Indian child. (Id., subd. (c).)

The court and DCFS social workers must make “further inquiry” if the court or DCFS has “reason to believe” an Indian child is involved. (§ 224.2, subd. (e).) “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. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know [the child is an Indian child].” (Id., subd. (e)(1).)

The law lays out steps the court and DCFS must take in “further inquiry,” including, but not limited to, interviewing parents and extended family members and notifying the Bureau of Indian Affairs and any tribes “that may reasonably be expected to have information regarding the child’s membership, status or eligibility.” (§ 224.2, subd. (e)(2)(B); see also Cal. Rules of Court, rule 5.481(a)(4).) Contact with a tribe must include, at a minimum, “telephone, facsimile, or electronic mail contact to each tribe’s designated agent” and information “necessary for the tribe to make a membership or eligibility determination.” (§ 224.2, subd. (e)(2)(C).)

A court’s finding there is “reason to know” a child is an Indian child requires formal notice to the tribe. (§ 224.3, subd. (a); see also D.F., supra, 55 Cal.App.5th at p. 568.) Sharing information with a tribe at the “further inquiry” stage is distinct from formal notice. (D.F., at p. 567.)

B. Analysis

Father contends DCFS failed in its initial inquiry. Father argues DCFS and the juvenile court should not have accepted at face value Mother’s two statements that she had no Indian heritage; instead, DCFS should have asked maternal great aunt and maternal grandmother—Mother’s “available extended family members” – what they knew about possible Indian heritage. (Maternal great aunt and maternal grandmother were caretakers for Mother’s other five children and R.R. is placed with maternal great aunt.)

Father cites In re T.G. (2020) 58 Cal.App.5th 275, In re Benjamin M. (2021) 70 Cal.App.5th 735, and Cal. Rules of Court, rule 5.481, subdivision (a), for the proposition that Welfare and Institutions Code section 224.2, subdivision (b) does not allow reliance solely on a parent’s statement, but also requires the social services agency to inquire of extended family members whether there is reason to believe the child may be an Indian child. (See also In re Y.W. (2021) 70 Cal.App.5th 542, 552.)

We are not persuaded that line of cases holds true under the facts of this case. Instead, we rely on In re Charles W. (2021) 66 Cal.App.5th 483. There, the juvenile court found ICWA inapplicable to Mother’s two eldest children. When Mother later gave birth to a third child who became the subject of a separate petition, the court again found ICWA did not apply, relying on Mother’s denial of Indian heritage and the ICWA findings for the two older children. (Id. at pp. 486–487.) The Court of Appeal affirmed, finding no error in either the initial inquiry conducted by the agency or the trial court’s finding that ICWA was inapplicable. (Id. at p. 491.)

Here, the detention report chronicled prior findings that ICWA is inapplicable to three of Mother’s other five children. (The record is silent as to the other two children.) Those prior findings are undisputed and unchallenged. If ICWA did not apply to Mother’s other children (R.R.’s half-siblings), it does not apply to R.R., given the tandem finding that Father’s parentage does not invoke ICWA. We find no purpose in compelling a reinvestigation of a parent’s heritage where, as here, there are prior findings of inapplicability based on the same parentage.[3] We hold that the prior findings as to Mother’s older children, combined with Mother’s unwavering denial of Indian heritage, constitute substantial evidence in support of DCFS’s initial inquiry and the court’s findings as to R.R.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.

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

[2] The juvenile court’s findings that ICWA is inapplicable based on Father’s ancestry are not challenged on appeal.

[3] The irony of this appeal is that DCFS and the juvenile court have recommended R.R.’s maternal great aunt as his adoptive parent. If R.R. has Indian ancestry through his mother, adoption by the maternal great aunt carries out the very purpose of ICWA—to keep Indian children with Indian families.