Filed 6/16/22 In re J.C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 orders of the Superior Court of Los Angeles County, Jean M. Nelson, Judge. Affirmed.

Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey M. Blount, Deputy County Counsel, for Plaintiff and Respondent.

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A.G. (mother) appeals juvenile court orders terminating parental rights to minors J.C., M.C., and J.G. Mother argues that the Department of Children and Family Services (DCFS) breached its duty of initial inquiry to determine whether the children were Indian children under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) by failing to ask certain extended family members if the children had Indian heritage. We conclude that substantial evidence supports the juvenile court’s findings that ICWA does not apply and affirm.

FACTUAL AND PROCEDURAL BACKGROUND[1]

I. The dependency proceedings

The family has been the subject of three prior dependency proceedings in 2013 and 2016. In 2013 and 2016, DCFS filed a Welfare and Institutions Code[2] section 300 petitions alleging that mother’s heroin use put J.C. at substantial risk of serious physical harm on behalf of mother’s three children, alleging that father[3] failed to protect the children; and in 2017, DCFS filed a petition alleging that mother tested positive for opiates at M.C.’s birth and father failed to protect the children from mother’s drug use. In 2018, the juvenile court terminated its jurisdiction and awarded father sole legal and physical custody of the children.

In June 2019, DCFS filed another section 300 petition on behalf of the three children alleging that J.G. tested positive for opiates at birth, mother had a history of substance abuse, and father had failed to protect the children from mother’s substance abuse. The children were detained from both parents, J.C. was placed with mother’s aunt, and M.C. and J.G. were placed with mother’s sister.

Mother reported that she had been raised primarily by her parents but lived for a time with her grandparents when she was about 14 years old. She reported having a close relationship with her parents and three siblings. Father, too, reported having been raised by his parents and having a good relationship with his parents and siblings.

The juvenile court sustained the petition as amended and placed the children with father under the condition that mother did not reside in the family home. That placement led to additional referrals, and DCFS filed a section 387 supplemental petition and a section 342 subsequent petition.[4] The juvenile court sustained the petitions, removed the children from parents’ physical custody, and ordered family reunification services.[5] The children initially were placed in foster care, but subsequently were placed together with paternal aunt who is the prospective adoptive parent.

At the six-month review hearing, the juvenile court found that the parents had failed to make substantial progress in their case plans and terminated family reunification services. On August 31, 2021, the juvenile court found the children were adoptable and terminated parental rights.

Mother timely appealed.

II. ICWA inquiry and notice

In June 2019, the children’s social worker signed and attached to the petition an Indian child inquiry attachment (ICWA–010(A)) stating that she had spoken to father on May 31, 2019, and he denied Indian ancestry.

On June 10, 2019, mother signed a parental notification of Indian status form (ICWA–020) stating that she had no Indian ancestry. The same day, mother, but not father, appeared at the detention hearing. The maternal aunt and maternal great-aunt were also present. The juvenile court noted on the record that mother had denied Indian ancestry and asked mother whether father had ever claimed Indian ancestry in prior dependency proceedings. Mother said, “No. He doesn’t have any.” The court then found there was no reason to know the children were Indian children and ordered DCFS to continue to investigate. The minute orders from the June 10 hearing state as to each child, “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 [DCFS], their Attorney[,] and the Court aware of any new information relating to possible ICWA status.”

In August 2019, both parents told DCFS they did not have Indian ancestry. DCFS reported that in a prior dependency case, the juvenile court found that ICWA did not apply.

Father submitted an ICWA–020 form denying Indian ancestry at his first appearance on September 3, 2019. The court noted father’s denial on the record and found there was no reason to know the children were Indian children. It therefore found ICWA did not apply.

During DCFS’s investigation, it contacted the children’s maternal great-aunt, maternal aunt, and paternal grandparents, but did not ask about their Indian ancestry.

DISCUSSION

Mother contends the orders terminating parental rights must be reversed because DCFS breached its duty of inquiry under ICWA by failing to interview extended family members, including the maternal great-aunt, maternal aunt, and paternal grandparents about their Indian ancestry. We find no reversible error, as we discuss.

I. ICWA

Pursuant to ICWA, “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 . . . of the pending proceedings and their right of intervention.”[6] (25 U.S.C. § 1912(a).) This notice requirement, which is also codified in California law (§ 224.2), enables a tribe to determine whether a child is an Indian child and, if appropriate, to exercise jurisdiction over a child custody proceeding ([i]In re Isaiah W. (2016) 1 Cal.5th 1, 8).

During the pendency of a dependency proceeding, the juvenile court and DCFS have an affirmative and continuing duty to inquire whether a child is or may be an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a).) The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child. (§ 224.2, subd. (a).) If DCFS takes a child into temporary custody, its 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).)[7] 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 a parental notification of Indian status form ICWA-020 (Cal. Rules of Court, rule 5.481(a)(2)(C)).

If this initial inquiry leads to a “reason to believe” the child is an Indian child, then DCFS “shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e).) If the further inquiry results in a “reason to know” that the child is an Indian child, DCFS must provide notice to the child’s parents or legal guardian, Indian custodian, if any, and the child’s tribe in accordance with the requirements set forth in section 224.3. (§ 224.2, subd. (f).)

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 [DCFS]’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. Analysis

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 available to it––specifically, the maternal aunt, maternal great-aunt, and paternal grandparents––during its investigation, and that the failure to do so was reversible error. We disagree.

As mother notes, DCFS interviewed the maternal aunt, maternal great-aunt, and paternal grandparents, 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 told DCFS they did not have Indian ancestry and signed ICWA–020 forms attesting to the same under penalty of perjury. The juvenile court acknowledged the parents’ denials on the record, in the presence of (in mother’s case) the maternal aunt and great-aunt. Neither the parents, the maternal aunt, nor the maternal great-aunt suggested the denials were inaccurate or provided the court with contrary information about the family’s possible Indian ancestry.

Second, DCFS provided the juvenile court with information in a prior dependency proceeding concerning J.C. and M.C. where the court found that ICWA did not apply. J.G. has the same parents as his older siblings, and thus if ICWA did not apply to his siblings, it could not apply to J.G. (See In re Darian R. (2022) 75 Cal.App.5th 502, 504 [prior finding ICWA did not apply to one child supported conclusion ICWA did not apply to his siblings with same parents].)

Finally, nothing in the present record suggests that the parents might not have been aware of their 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. Both parents reported having good relationships with their siblings, several of whom stepped forward to foster the children. In view of the parents’ intact relationships with their extended families, the possibility that the parents might unknowingly have Indian ancestry thus appears trivially small. (Cf. 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, as a foster care product, may not know her cultural heritage”].)

For all of these reasons, we conclude that the juvenile court’s finding that ICWA did not apply was supported by substantial evidence. (See, e.g., In re Charles W. (2021) 66 Cal.App.5th 483, 486–488, 490–491 [court and DCFS 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 [father’s in-court statement and declaration provided substantial evidence that DCFS and court satisfied their initial duty of inquiry regarding ICWA]; 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 [DCFS] reason to believe that a child might be an Indian child”]; In re H.V. (2022) 75 Cal.App.5th 433, 441–442 (dis. opn. of Baker, J.) [parents’ denials of Indian ancestry were substantial evidence to support court’s finding ICWA did not apply].)

DISPOSITION

The orders terminating parental rights are affirmed.

NOT TO BE PUBLISHED.

KIM, J.*

We concur:

EDMON, P. J. EGERTON, J.

[1] We provide an abbreviated summary of the dependency proceedings due to the limited scope of mother’s appeal.

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

[3] All three children have the same father.

[4] The section 387 petition alleged that father allowed mother to have unlimited access to the children, and father failed to comply with the juvenile court’s disposition order. The section 342 petition alleged that parents engaged in domestic violence, father was a current abuser of drugs and alcohol, and father neglected and abused J.C. It further alleged that mother failed to protect the children from father’s conduct.

[5] A different panel of this court affirmed the juvenile court’s orders.

[6] ICWA defines 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, subd. (a).)

[7] ICWA defines “ ‘extended family member’ ” as any person so defined by the law or custom of the Indian child’s tribe, or in the absence of such law or custom, “a person who has reached the age of eighteen and who is the Indian 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.” (25 U.S.C. § 1903(2).)

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.